Editors --- "Overpayment of youth allowance: consideration of write off; waiver and 'full-time course of education'" [2007] SocSecRpr 8; (2007) 9(1) Social Security Reporter, Article 8

• TALSMA and SECRETARY TO THE DEST
• The issue
• The law and discussion
• Formal decision

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Overpayment of youth allowance: consideration of write off; waiver and 'full-time course of education'

TALSMA and SECRETARY TO THE DEST

Decided: 30th November 2006 by E.K. Christie

The issue

Centrelink raised a debt of youth allowance of $4850.85 for the period 25 May 2005 to 18 December 2005 on the basis that Talsma was considered not to have undertaken full time study during that period. She was enrolled in the Certificate III in Financial Services at the Open Learning Institute (OLI) from May 2005, enrolling in 5 subjects with attached time credit of 135 hours. A full-time study load in this course was166 hours across 17 weeks [¾ load was 124.5 hours]. On 19 December 2005, she commenced three new subjects with OLI.

The law and discussion

The central issue before the AAT was whether the debt should be waived pursuant to s.1237AAD of the Social Security Act 1991 (the Act) which states, among other things, that the Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt.

The AAT concluded there were ‘special circumstances’ in Talsma’s case on the basis that:

• Both she and Centrelink had had difficulty understanding the course requirements as provided by OLI. The OLI course could not be characterised as being similar to a University course as there were no lectures or tutorials and the course was undertaken externally. The times for assessments and home study and the times and days required to attend classes created further uncertainty for characterising this course, relative to a course offered by a University based on semester long subjects. All these factors could be considered uncommon for education in further and tertiary training institutions in Australia.

• Not only did Talsma not understand the OLI Guide as to what represented full-time enrolment status, she also did not understand the completion date for finalisation of subjects. This had a direct effect on full-time study status and therefore, youth allowance entitlements. Following a query to OLI, Talsma then acted on that advice and approached Centrelink. She made it clear that she was very aware of her obligations as a social security recipient to provide correct information to Centrelink. The advice she received from Centrelink was that the course ended on 31 December 2005. The AAT accepted that all of these actions indicated that she made queries about her enrolment. Rather than provide incorrect advice on her youth allowance application form she queried and sought advice from Centrelink staff and relied on that advice. The AAT accepted Talsma’s evidence and concluded that it was a relevant consideration in understanding how the overpayment arose.

• The AAT also concluded that advice provided by Centrelink staff in response to Talsma’s queries in May 2005 was incorrect and led to an overpayment. Applying Secretary, Department of Social Security and McAvoy (1996) 23AAR543, it found that the presence of a debt in circumstances where a person acts upon advice given to them by a Government department is relevant for any consideration of special circumstances. Such a conclusion would not be reached if a social security recipient had doubts in relation to entitlements to social security, but had made no attempt to raise this with Centrelink.

• Talsma’s evidence was that the OLI did not provide her with any advice or reminder when the 17 week period for the five subjects she had been enrolled in from 25 May2005, had been reached. In these circumstances, Talsma would not have been able to determine her enrolment status or her entitlement to youth allowance which had been placed in jeopardy in September 2005. As the OLI course was offered by flexible delivery, each student commenced and finalised their study at a different date. This situation was entirely different from the University semester system where the entire student population started and completed their courses at the same time.

The AAT waived the debt because of ‘special circumstances ‘for part of the debt period, being the 17 week period from 25 May 2005 to 20September 2005. Information provided to students enrolled in Talsma’s course made it clear that a specific workload for subjects enrolled in must be completed within 17 weeks and that this period was a factor directly affecting whether a student was undertaking a full-time workload. Consequently, the AAT considered that Talsma had a responsibility to be aware that her youth allowance entitlements were dependent on her completing the five subjects she commenced in May 2005 in 17 weeks. However, at no time after May 2005 did Talsma raise any query with OLI or Centrelink about her enrolment and the requirements for full-time education and youth allowance when she had not completed the subjects within 17 weeks by 20 September 2005.

The AAT noted that the responsibility for undertaking full-time education and receiving youth allowance is a two-way process requiring ongoing care after commencing studies, by both parties. As Talsma took no action in this regard after May 2005, there was no alternative other than to find that waiver for special circumstances could only apply for the 17 week period commencing 25 May 2005.

Formal decision

The AAT set aside the decision under review and substituted its decision that the debt due to the Commonwealth accrued over the 17 week period, commencing 25 May 2005 was to be waived under the ‘special circumstances’ provision of the Act.

The AAT also remitted the matter to the respondent with a direction that the fortnightly amount to recover the outstanding debt be determined by mutual agreement following Talsma completing a statement of financial circumstances.

[S.P.]