Editors --- "Austudy debt: waiver and special circumstances; multiple errors including Jobnet provider's poor advice" [2006] SocSecRpr 30; (2006) 8(3) Social Security Reporter, Article 7

• ANDERSON and SECRETARY TO THE DEST
• Background
• The issue and legislation
• The Tribunal’s findings
• Formal decision

---

Austudy debt: waiver and special circumstances; multiple errors including Jobnet provider's poor advice

ANDERSON and SECRETARY TO THE DEST

(2006/589)

Decided: 4th July 2006 by S. Webb

Background

As a long term unemployed person, Anderson was provided with intensive support by an employment agency under an agreement with the Department of Employment and Workplace Relations, (DEWR). Anderson was assisted to enroll in a distance education course in Equine Studies where he selected two subjects, half of the full-time load. Anderson advised on a form when applying for Austudy that he was a full-time student, however, there were no details of numbers of subjects studied and no course completion date was advised on the application form. The level of study was not verified by the Department and an arbitrary completion date was placed on the form, presumably for administrative convenience.

Following a data matching exercise in the middle of the year, Anderson failed to respond to an inquiry for information as to his level of study, but nonetheless continued to be paid.

On 20 December 2004, Anderson’s Austudy was cancelled because his level of study, which was two subjects or fifty percent of a full-time workload, did not constitute ‘full-time study’ as required by section 569 of the Social Security Act 1991 (the Act). The SSAT waived a portion of the debt on the basis of administrative error. Anderson appealed to the AAT.

The issue and legislation

The primary issue in this case was whether all or part of the debt should be waived. Sections 1237A(1) of the Act provides for waiver of a debt where the debt arose solely due to administrative error on the part of the Commonwealth and the payments have been received in good faith. Section 1237AAD enables a debt to be waived where there are special circumstances which would justify doing so.

The Tribunal’s findings

The Tribunal found that because Anderson had studied at a fifty percent level, he was not entitled to Austudy payments and owed a debt to the Commonwealth. The question was whether waiver was applicable.

The Tribunal found there were errors on both sides. Anderson was found to have treated his responsibilities in a cavalier fashion, and to have contributed to the debt to a degree that ruled out any finding of sole administrative error as a ground for waiver. A ‘repeated failure to provide required information’ was noted (Reasons, para. 72).

In considering whether there were special circumstances that would justify waiver, the Commonwealth was found to have committed administrative errors that were, ‘extraordinary and at the extreme’. Submissions made by the Department that what had occurred was in fact a matter of common administrative practice appear not to have assisted the Tribunal.

The Tribunal found that erroneous advice which Anderson received from the Jobnet provider about study requirements was the responsibility of the Department. Accordingly, it was responsible when Anderson acted on that advice, in the process losing the opportunity to comply with the eligibility requirements for either newstart allowance or Austudy.

Also of concern to the Tribunal, was the Department’s failure to verify Anderson’s enrolment at the University or his status as a student when assessing his Austudy claim, its failure to act in a timely manner on information in its possession concerning Anderson’s study workload, the fact that Centrelink’s reviews of Anderson’s case were fragmented and were not completed in a timely manner, and that reinstatement of his payments occurred without reference to either the University or Anderson.

The Tribunal as a result determined that the appropriate ‘course’ of action was to waive the balance of the debt outstanding as at the date of decision, on the basis that the Commonwealth committed a series of administrative errors that constituted special circumstances.

Formal decision

The decision under review was set aside and in substitution thereof the Tribunal decided that it was appropriate, in the special circumstances, to waive the balance of Anderson’s debt then outstanding.

[J.S.]