ZVTL and Secretary, Department of Social Services (Social services second review)

ZVTL and Secretary, Department of Social Services (Social services second review) [2019] AATA 682 (9 April 2019)
Division:GENERAL DIVISION
File Number: 2018/1557
Re:ZVTL
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:9 April 2019
Place:Sydney

The decision under review is affirmed.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Austudy debt owed to the Commonwealth – applicant ceased studying on a full-time basis – whether debt should be written off, waived or set aside – debt recoverable at law – applicant knowingly failed to report that he was not studying full-time – applicant has capacity to repay the debt – no special circumstances to justify waiver of the debt – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 568, 569, 569A, 569C, 569E, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) s 196
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
REASONS FOR DECISION
Professor R McCallum AO, Member
9 April 2019
Introduction

Mr ZVTL made an online application for austudy payment on 12 August 2016. Mr ZVTL recorded in his application that he would be studying full-time for a Certificate 4 in Accounting at Open Colleges. The dates of the course were from 7 July 2016 to 15 March 2017.
On 30 August 2016, the Department of Human Services which is better known as Centrelink, sent Mr ZVTL a notice stating that he would be paid austudy payment. However, the notice informed Mr ZVTL that he is required to notify Centrelink if his circumstances change. In other words, if Mr ZVTL ceased to be a full-time student, he was required to notify Centrelink.
From the evidence before the Tribunal, I find that on 3 March 2017, Mr ZVTL contacted Centrelink stating that he had changed from full-time to part-time study.
On 9 August 2017, Mr ZVTL contacted Centrelink and stated that he had been a full-time student at Open Colleges. He was asked to provide a transcript or statement of attainment from Open Colleges.
On 17 August 2017, Mr ZVTL provided Centrelink with a copy of a Course Enrolment Confirmation from Open Colleges dated 8 August 2017 stating that Mr ZVTL was enrolled in Certificate 4 in Accounting with the commencement date being 7 July 2016.
On 7 August 2017, Centrelink records which are before the tribunal show a data match from Open Colleges stating that the Applicant commenced the course on 7 July 2016 and that the last date he submitted work was 19 July 2016.
On 24 August 2017, Centrelink informed Mr ZVTL that his austudy payment was cancelled effective from 18 August 2016 as he was no longer engaged in full-time study.
On 1 September 2017, Centrelink formally advised Mr ZVTL that he has a legally recoverable austudy payment debt totalling $8,931.27 for the period 18 August 2016 to 3 March 2017.
Mr ZVTL Seeks Reviews
Mr ZVTL sought review of Centrelink’s decision to raise and to recover the austudy debt by an Authorised Review Officer (ARO). However, on 10 January 2018, the ARO affirmed the decision under review.
Mr ZVTL then sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). However, on 23 February 2018, the AAT1 affirmed the decision of the ARO.
Mr ZVTL now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).
The Hearing
Mr ZVTL attended the hearing in person and represented himself. Mr ZVTL gave evidence by affirmation.
I find that in giving his evidence, Mr ZVTL was evasive in answering a number of questions.
Consideration
In this matter, the Tribunal is required to decide whether Mr ZVTL qualified for austudy.
If the Tribunal finds that Mr ZVTL did not qualify for austudy during the period from 18 August 2016 to 3 March 2017, the Tribunal must decide whether this is a recoverable debt to the Commonwealth.
If the tribunal decides that Mr ZVTL owes a recoverable debt to the Commonwealth, the Tribunal is required to determine whether the debt should be written off, waived or set aside.
Was Mr ZVTL qualified to receive Austudy?
The relevant law governing austudy is contained in the Social Security Act 1991 (Cth) (the SS Act). Part 2.11A of the SS Act is titled “Austudy payment”. Section 568 of the SS Act sets out the general rule for qualification for austudy payment. In Mr ZVTL’s circumstances, Section 568 relevantly provides as follows:
568 Qualification for austudy payment—general rule
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test (see Subdivision B)
…
Section 569 of the SS Act provides that the activity test is satisfied if throughout the period the person is undertaking qualifying study.
Section 569A of the SS Act provides as follows:
569A Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying study if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re enrolments in the course are next accepted; or
(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c) the person is a full time student or a concessional study load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H).
In Mr ZVTL’s circumstances, under section 569A(c) he will be qualified for austudy if he is a full-time student throughout the period.
Section 569C of the SS Act relevantly defines full-time student as follows:
569C Full-time students
For the purposes of this Subdivision, a person is a full time student in respect of a course if:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)—the person is undertaking at least three quarters of the normal amount of full time study in respect of the course for that period;
…
Section 569E(1) of the SS Act is as follows:
569E Normal amount of full time study
(1) For the purposes of this Subdivision, the normal amount of full time study in respect of a course is:
(a) if:
(i) the course is a course of study within the meaning of the Higher Education Support Act 2003; and
(ii) there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;
the full-time student load for the course; or
(b) if the course is not such a course and the institution defines an amount of full time study that a full time student should typically undertake in respect of the course — the amount so defined; or
(c) otherwise—an amount of full time study equivalent to the average amount of full time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
The normal amount of full-time study applicable to the flexible learning mode of delivery of the Certificate 4 in Accounting at Open Colleges in which Mr ZVTL was enrolled was not defined. Therefore, section 569E(1)(c) of the SS Act provides that the normal amount of full-time study will be the amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
Therefore, for Mr ZVTL to qualify for austudy from 18 August 2016 to 3 March 2017, the Tribunal must be satisfied that ZVTL studied for at least 75% of the normal amount of full-time study required to complete the Certificate 4 Accounting course.
Earlier I referred to the 7 August 2017 data match from Open Colleges which stated that the last time ZVTL submitted work was 19 July 2016.
In answer to a notice sent to Open Colleges pursuant to section 196 of the Social Security (Administration) Act 1999 (Cth), Ms Monica Woodrow from Open Colleges wrote an email in response dated 1 February 2019. This email reads in part as follows:
“I can confirm the student enrolled in 7/07/2016 but cancelled the course on 21/08/2017. Our courses are based online and student hours are not tracked outside of any Structured Workplace Learning (if applicable), so therefore it is not considered full-time or part-time. We also cannot provide an Academic Transcript for this student as no unit of competencies were gained. The student completed one quiz with us on 19/07/2016”.
In his evidence before the Tribunal, Mr ZVTL said that Open Colleges were in error. He added in words to the effect that Open Colleges was only interested in making money, and he opined that their system was fraudulent. Mr ZVTL presented no evidence to show that the records of Open Colleges were inaccurate with respect to his enrolment and completion of one quiz.
Mr ZVTL said that he had completed work in the course on his home laptop computer, but that he no longer had the computer. He did not present any evidence of him undertaking study in the course from 18 August 2016 to 3 March 2017.
Having considered this evidence, I find that Mr ZVTL did not undertake full-time study in Certificate 4 Accounting at Open Colleges from 18 August 2016 to 3 March 2017.
I further find that Mr ZVTL knowingly did not inform Centrelink of this change in his circumstances that he was no longer undertaking full-time study in the course.
Does Mr ZVTL owe a debt to the Commonwealth?
Section 1223 of the SS Act relevantly provides as follows:
1223 Debts arising from lack of qualification, overpayment etc.
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
…
(b) the person for whose benefit the payment was intended to be made was not qualified to receive the payment;…
…
(d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
…
As I have found that Mr ZVTL did not undertake full-time study between 18 August 2016 and 3 March 2017, I further find that Mr ZVTL was aware that he was not qualified to receive austudy payment pursuant to subsection 1223(1AB)(b) of the SS Act.
I further find that Mr ZVTL breached social security law by not informing Centrelink of his changed circumstances pursuant to subsection 1223(1AB)(d) of the SS Act.
From Centrelink records this recoverable debt is $8,931.27.
From his evidence before the Tribunal, Mr ZVTL said that he was in receipt of austudy payment with respect to further study, and that he was paying back the debt at a rate of $15 per fortnight.
Should the recoverable debt be written off, waived or set aside?
To determine whether this recoverable debt should be waived or set aside, it will be necessary to examine several provisions of the SS Act in the light of the evidence before the Tribunal.
Section 1236 of the SS Act empowers the Commonwealth to write off social security debts in limited circumstances.
Section 1236 relevantly provides as follows:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
…
I find that none of the circumstances in this provision apply to Mr ZVTL. I find that he does have a capacity to repay the debt. Mr ZVTL is repaying the debt at a rate of $15 per fortnight from his current newstart allowance.
Section 1237A of the SS Act enables the Commonwealth to waive a debt which is solely due to administrative error. At the hearing, Mr ZVTL adduced no evidence of any administrative errors concerning his receipt of austudy payment between 18 August 2016 and 3 March 2017. Therefore, section 1237A is inapplicable and the debt cannot be waived.
Finally section 1237AAD of the SS Act enables the Commonwealth to waive a debt where there are special circumstances.
Section 1237AAD provides as follows:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
In this decision, it is not necessary for me to examine all of the elements of section 1237AAD of the SS Act. It will suffice to ask whether there are special circumstances in Mr ZVTL’s situation.
The phrase “special circumstances” has come before the courts on a number of occasions.
In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J examined the case law. His honour commented upon the phrase “special circumstances” in section 1237AAD of the SS Act at [33]:
… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
Therefore, in determining whether there are special circumstances in Mr ZVTL’s case, I am required to decide whether there is something in Mr ZVTL’s case which distinguishes it from the ordinary or usual case.
A statement of his financial circumstances which was written by Mr ZVTL and dated 19 February 2018 is before the Tribunal. At the hearing, Mr ZVTL gave evidence about his situation.
As I noted above, Mr ZVTL is in receipt of austudy payment as he is studying a tertiary course. He is paying back the debt at a rate of $15 per fortnight. In his evidence, Mr ZVTL said that he lives with his sister and that he pays her $150 per week to assist his sister with her mortgage payments. Mr ZVTL said that he contributes to the cost of household expenses. Mr ZVTL also said that he has a higher education contribution scheme debt of $18,000.
A police statement made and signed by Mr ZVTL and dated 20 December 2010 is before the Tribunal. The statement details the late evening of Saturday 11 December 2010, when Mr ZVTL was the victim of an assault by a male teenager. He suffered an injury to the side of his face just below the right eye. The police took him to the Sydney Eye hospital where he was treated. Mr ZVTL said that he still has some numbness below his right eye.
However, the assault took place more than eight years ago. Mr ZVTL has no difficulty studying, and he can take public transport without any difficulty. Mr ZVTL did not adduce any evidence that he cannot look after himself.
I find that Mr ZVTL’s circumstances are no different from those of other tertiary students who are in receipt of austudy payment. In other words, I find that there is nothing in Mr ZVTL’s case which distinguishes it from the ordinary or usual case.
Therefore, I find that there are no special circumstances which would warrant the Commonwealth to waive the debt.
Conclusion
I have found that Mr ZVTL was not qualified for austudy payment from 18 August 2016 to 3 March 2017. I have further found that Mr BT owed a debt to the Commonwealth of $8,931.27 and that he has been paying it back at a rate of $15 per fortnight.
Finally, I have found that it is not appropriate to write off, waive or set aside this debt.
Decision
The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate
Dated: 9 April 2019

Date of hearing: 25 March 2019

Applicant: In person

Solicitors for the Respondent: Mr S Thompson, Department of Human Services

[2019] AATA 682

9 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Remedies

Date of hearing:	25 March 2019
Applicant:	In person
Solicitors for the Respondent:	Mr S Thompson, Department of Human Services