Editors --- "Eatock v Secretary, Department of Family and Community Services - Case Summary" [2003] AUIndigLawRpr 16; (2003) 8(2) Australian Indigenous Law Reporter 11

• Eatock V Secretary, Department Of Family And Community Services
• Facts:
• Held, Accepting The Application:

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Court and Tribunal Decisions - Australia

Eatock v Secretary, Department of Family and Community Services

Administrative Appeals Tribunal (Mr M Griffith)

25 October 2002

[2002] AATA 1015

Aboriginal and Torres Strait Islanders — social security — Abstudy allowance — overpayment of allowance — special circumstances — waiver of repayment

Facts:

The Applicant, a 64 year old Aboriginal woman, had been attempting postgraduate study and was, for the period of that study, receiving Abstudy instead of the age pension. Due to a range of personal health problems and ongoing difficulties with the university administration and social security bureaucracy, the applicant ceased study and reapplied for the age pension. A Centrelink delegate of the Secretary of the Department of Family and Community Services decided that the Applicant had been overpaid in the period between the cessation of her studies and her notification to Centrelink. An authorised review officer determined that the amount of the overpayment had been incorrectly assessed, but that the debt should be repaid.

The Social Security Appeals Tribunal had affirmed this decision, declining to waive the Applicant’s obligation to repay the overpaid amount of her Abstudy allowance on the basis of special circumstances. The Tribunal considered that the debt should not be waived on the basis of special circumstances because the difficulties experienced by the Applicant were within the range of ‘postgraduate student experience’ and thus ‘not sufficiently “unusual, uncommon or exceptional”’.

Held, accepting the application:

1. It is desirable to waive the debt owed by the Applicant to the Commonwealth for overpaid Abstudy allowance pursuant to s 43F of the Student Assistance Act 1973 (Cth).

2. In determining whether the Applicant ‘knowingly’ made a false statement or false representation or failed or omitted to comply with the relevant requirements in respect of her Abstudy allowance, ‘knowingly’ should be taken as meaning actual knowledge, as distinct from constructive knowledge of recklessness [34].

3. In determining whether there existed special circumstances (other than financial hardship alone) as a result of which the repayment should be waived, what must be considered are the particular circumstances of the Applicant viewed in context and not whether the circumstances of the Applicant fell within or outside of the range of postgraduate experience [36].