Editors --- "Abstudy debt: waiver and sole administrative error" [2010] SocSecRpr 9; (2010) 12(1) Social Security Reporter, Article 9

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Abstudy debt: waiver and sole administrative error

BARTLEY and SECRETARY TO THE DEEWR

(2010/11)

Decided: 11th January 2010 by S. Karas

Background

Bartley was in receipt of Abstudy benefits from Centrelink. On 10 November 2008, Centrelink decided to raise and recover an Abstudy debt from Bartley for the period 1 January 2008 to 1 October 2008 which was later revised to $5800.72. The debt was raised because Centrelink determined that Bartley had been overpaid by incorrectly receiving Abstudy payments based on the living away from home rate while living with his parents. Bartley had returned to his parental home just before Christmas in 2007. Bartley contended that he had notified Centrelink on several occasions not only of the change of address but also that he had returned to the parental home, including during an attendance at the Centrelink office in Rockhampton in which he and his mother had spent about an hour at the office and via a rent certificate lodged with Centrelink on 24 June 2008.

The issues

The key issue for the Tribunal’s determination was whether the debt should be recovered or waived.

Administrative error

Section 43B of the Student Assistance Act 1973 (the Act) states that the Department must waive the whole or part of a debt where the debt arises solely due to an administrative error by the Commonwealth and the debtor received the payment in good faith.

The Tribunal first considered the evidence of Bartley and his mother that they had attended the Centrelink office in January 2008 and told them of his changed circumstances and change of address to Boyd Street. Whilst the Tribunal found Bartley and his mother to be generally honest it concluded that it was unable to accept their evidence that the purported meeting had occurred given the description and duration of the purported meeting, the absence of any record of it and the evidence given by a Centrelink officer regarding its record keeping procedures.

The Tribunal went on to consider the rent certificate lodged with Centrelink on 24 June 2008 and noted that at question 23 Bartley had stated that he shared the Boyd Street address with his parents. The Tribunal rejected DEEWR’s submission that Centrelink did not commit an ‘administrative error’ by failing to apply that information to Bartley’s Abstudy payment rate because the relevant information was only provided in a communication which had a different purpose.

The Tribunal held that the information contained at question 23 of the rent certificate satisfied the reporting requirements as prescribed by the Act and communicated to Bartley in Centrelink’s correspondence. The Tribunal further held that Bartley was obliged to (and, on the evidence, did) inform Centrelink of changes to his accommodation arrangements; and he was not obliged to communicate such information only within a specific context.

The Tribunal found that the continued payment from 24 June 2008 of Abstudy at the away from home rate was attributable solely to administrative error because Centrelink had not correctly actioned the information provided and applied it to the entirety of Bartley’s situation, i.e. the Abstudy benefit he was receiving. The Tribunal also found that Bartley had received the overpayment in good faith. On the evidence the Tribunal accepted that neither Bartley nor his mother actually knew that he was being overpaid and furthermore there was no reasonable basis for them to have queried the payment given Bartley’s level of education and knowledge of the system shown by both him and his mother at the hearing.

The Tribunal concluded that the requirements of s.43B of the Act were satisfied and so the right to recover the proportion of the debt arising from 24 June 2008 (the date Bartley informed Centrelink he resided at his parental home) to 1 October 2008 must be waived.

Formal decision

The Tribunal varied the decision under review by waiving that proportion of the debt incurred between 24 June 2008 to 1 October 2008.

[G.B.]