Van Loon and Secretary, Department of Education, Training and Youth Affairs [1999] AATA 706 (20 September 1999)

Last Updated: 23 September 1999

DECISION AND REASONS FOR DECISION [1999] AATA 706

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/767

GENERAL ADMINISTRATIVE DIVISION )

Re STEPHEN VAN LOON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION TRAINING AND YOUTH AFFAIRS

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 20 September 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

AUSTUDY - commencement of course - debt - waiver of the right of recovery - special circumstances.

REASONS FOR DECISION

20 September 1999 Deputy President DP Breen, Presidential Member

1. This is a review of a decision of the Social Security Appeals Tribunal dated 8 July 1998 affirming a decision of the delegate of the Secretary of the Department of Education, Training and Youth Affairs dated 5 March 1998 as affirmed by an Authorised Review Officer on 14 April 1998, to raise and recover an overpayment of Austudy in the sum of $916.52 for the period 1 January 1998 to 11 February 1998.

2. The hearing of this matter took place in Darwin on 22 July 1999. The applicant appeared on his own behalf and the respondent was represented by Mr A Heath of the Australian Government Solicitor's Office.

3. The following documents were tendered at the hearing as exhibits:

* Exhibit 1 "T" Documents

* Exhibit 2 Statement of Agreed Facts

4. The applicant, who is now serving in the Australian Army, had been trying for some time to enlist. He had served in the Royal Australian Air Force and was discharged in 1989. In 1996 he commenced enlistment procedures for the Australian Army. His applications for enlistment had been rejected on 3 or 4 occasions. He then undertook an educational course at Mt Druitt College of TAFE. He first applied for Austudy in June 1997. He completed the subjects for his course in 1997 and on 3 December 1997 he lodged a continuing application for Austudy for the year 1998.

5. The course in which the applicant had enrolled commenced its classes on 9 February 1998. The applicant was of the understanding that the course commenced on 28 February 1998. He enlisted in the Australian Army on 10 February 1998. He did not commence studies in the 1998 year.

6. In evidence, the applicant told the Tribunal that in late 1997 he had received a letter requiring him to attend an interview and a medical examination on 10 February 1998. He had never got to this point in the enlistment process before and because of his previous experience of rejections he was not confident of being accepted for enlistment. If unsuccessful he was going to continue with his studies at TAFE.

7. He was taken straight to Kapooka for his recruit training on the same day that he had formally enlisted.

8. Shortly after his enlistment he notified the relevant persons of his discontinuance of the course of study. The applicant had received four fortnightly payments of Austudy in the sum of $916.52 before his Austudy was cancelled.

9. Regulation 9 of the Austudy Regulations provides the criteria for the receipt of Austudy.

"9. Is AUSTUDY paid for the long vacation?

9.(1) AUSTUDY is payable for the period from 1 January of the year of study to when the student's course starts in the year only if:

(a) the course is a full year course; and

(b) the student:

(i) starts full-time study in his or her course by the Friday of the second week of classes in the first term or semester; or

(ii) was prevented by illness or circumstances beyond his or her control from starting on time; or

(iii) in the case of a secondary student - the school has approved the absence of the student; and

(c) the student is entitled to get AUSTUDY for the first day on which he or she starts to undertake his or her course in the year.

(2) This regulation applies to a student who is studying part-time as if the student were studying full-time, if the student is eligible to get AUSTUDY under Part 4 in this Chapter.

Note to regulation 9

1 The circumstances in which AUSTUDY is paid from the end of the academic year to the end of the calendar year are set out in items (a)(i) and (f) of the table in regulation 8."

10. There was no issue as to whether or not the applicant commenced his course in 1998 and whether the payments of $916.52 were made. There is no issue as to whether or not a debt of $916.52 exists. The only issue is whether the right to recover that debt can be waived.

11. The respondent may waive the right to recover the debt where special circumstances exist.

"290C. 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; 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.

Note: Section 287 allows the Secretary to write-off a debt on behalf of the Commonwealth."

12. There is no evidence of the applicant making any false statement at the time that he made his application for continuance of Austudy. Although it was his intention to join the Army, he was not certain that such would be the case and he fully intended to continue his education pending enlistment in the Army.

13. There is no evidence that the applicant failed or omitted to comply with any provision of the Act.

14. "Special circumstances" is a term that has been before this Tribunal on many occasions. The starting point is the decision in Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225 where the Full Federal Court said at page 228:

"Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. For example, where the delay beyond six months was due to the claimant's being mislead by a departmental officer or was due to the negligence of a third party it might be thought the normal six months would be inappropriate; that special circumstances had been shown which warranted a longer period. More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss."

15. The applicant in this case has been diligent in his pursuit of improvement of his education. He had suffered disappointment in his efforts to join the Army on a number of occasions. Although having never got to the stage of the interview before, he had no reason to believe that he would be successful at the interview of 10 February 1998. Nothing had essentially changed. He would have commenced his studies on 9 February had he known that classes commenced on that date. He submitted that "special circumstances" existed because he misunderstood the time of commencement of his course, which was 9 February 1998. If he were aware that the course commenced on that date he would have commenced on that date and then gone to his enlistment appointment on the next day.

16. However, even if the applicant did commence his first day of classes, as events turned out he would have had to cease his studies and he would have incurred an overpayment in any case.

17. The Tribunal finds that there are no "special circumstances" in this case which would warrant a decision that the right to recover the debt be waived.

18. Accordingly, the Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed: Denise Burton

Secretary

Date/s of Hearing 22.7.99

Date of Decision 20.9.99

Counsel for the Applicant

Representative for Applicant Applicant appeared in person

Counsel for the Respondent

Solicitor for the Respondent Mr A Heath, Australian Government Solicitor's Office