O'Niell and Department of Family and Community Services [1999] AATA 259 (23 April 1999)

Last Updated: 28 April 1999

DECISION AND REASONS FOR DECISION [1999] AATA 259

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/66

GENERAL ADMINISTRATIVE DIVISION )

Re ARTHUR O'NEILL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 23 April 1999

Place Brisbane

Decision The Tribunal decides that: (a) the decision under review is set aside; (b) there be substituted therefor a decision that the applicant has been overpaid in respect of: (i) Job Search Allowance paid from 21 June 1994 to 3 July 1995; (ii) New Start Allowance paid from (A) 4 July 1995 to 31 December 1995; (B) 1 January 1997 to 28 February 1997; and (c) such overpayments are debts due to the Commonwealth to be recovered by the respondent.

Decision No 259/1999 (Sgd) K L Beddoe

Senior Member

CATCHWORDS

SOCIAL SECURITY : Overpayment and Debt Recovery - Job Search/Newstart Allowance - full time course of education - abandonment of studies - false statement

Social Security Act 1991 ss 531, 613, 1224

Re Department of Social Security and Perlich (AAT - 21 March 1997 - Unreported)

Secretary, Department of Social Security v Jordan (1998) 49 ALD 496)

Secretary, Department of Social Security v Jiang (1998) 49 ALD 496)

REASONS FOR DECISION

23 April 1999 Mr K L Beddoe (Senior Member)

1. The applicant seeks review of the following decisions of the respondent:

A decision that the applicant had been overpaid Job Search Allowance from 21 June 1994 to 3 July 1995;

A decision that the applicant had been overpaid New Start Allowance for the periods:

4 July 1995 to 31 December 1995

1 January 1997 to 27 July 1997, and

a decision that the respondent should recover debts due to the Commonwealth amounting to $15,845.38.

Those decisions were in effect affirmed by the Social Security Appeals Tribunal (that Tribunal inadvertently referred to the total debt as an amount of $158,453.38).

2. Sections 531(1), 613(1) and 1224 of the Social Security Act 1991 ("the Act") are the relevant provisions. They read as follows (at the relevant times):

531. (1) Subject to subsection (2), a job search allowance is not payable to a person who is enrolled in a full-time course of education or of vocational training for the period that:

(a) starts when the person starts the course; and

(b) finishes when the person:

completes the course; or

abandons the course; or

gives notice to the provider of the course that the person:

wishes to withdraw from the course; or

wishes to withdraw from such number of subjects that the person's course will no longer be a full-time course; and

(c) includes periods of vacation

613. (1) Subject to subsection (2), a newstart allowance is not payable to a person who is enrolled in a full-time course of eduction or of vocational training for the period that:

starts when the person starts the course; and

finishes when the person:

completes the course; or

abandons the course; or

gives notice to the provider of the course that the person:

wishes to withdraw from the course; or

wishes to withdraw from such number of subjects that the person's course will no longer be a full-time course; and

(c) includes periods of vacation.

1224. (1) If:

(a) an amount has been paid to a recipient by way of social security payment; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act:

(c) (Omitted)

the amount so paid is a debt due by the recipient to the Commonwealth.

3. At the hearing Ms C Heyworth-Smith of counsel appeared for the applicant and Mr P Kanowski represented the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and by Dr Tapper, the applicant's Ph.D. Supervisor. After closing its case the respondent sought leave to reopen its evidence at the resumed hearing. Leave was refused.

4. The Tribunal findings of fact are as follows:

(a) On 21 June 1994 the applicant lodged a claim for Job Search Allowance (T7). The claim form included a question "Are you enrolled at an educational institution?" to which the applicant answered "No" by ticking the appropriate box. He also said in response to other questions that he had ceased employment with the City of Prahran as a casual traffic counter and supported that with a letter "To whom it May concern" from the City of Prahran dated 30 June 1994 (T9).

(b) On 4 July 1994 the applicant lodged with the respondent a fortnightly review form. That form includes a question "Did you enrol or did you study in a full time course in the above period?" The applicant answered "No" by ticking the NO box (T10).

(c) On 29 August 1994 the applicant lodged a review form which contained the question "Are you doing any study or attending a training course?" to which he also answered "No" by ticking the appropriate box (T12).

(d) On 30 June 1995 the applicant lodged a claim for Job Search/New Start Allowance (T16). The claim form included a question "Before making this claim were you a ... student (full or part time) ..." to which the applicant did not respond thereby indicating a negative answer. On the same day the applicant also lodged a fortnightly review form again ticking the "NO" box in relation to the study question (T17).

(e) On 5 May 1997 the applicant lodged a claim for payment of Newstart/Youth Training Allowance and on which he against gave the negative response to the study question (T23).

(f) The same responses were given for further claims lodged 20 May 1997 (T24), 16 June 1997 (T26), 18 July 1997 (T27), 28 July 1997 (T28), 11 August 1997 (T30), 25 August 1997 (T31), 8 September 1997 (T32), 22 September 1997 (T33), 6 October 1997 (T34), 4 November 1997 (T35).

(g) I am satisfied and find that the applicant failed to advise the respondent that he was enrolled in a course of study.

(h) On 29 May 1998 Centrelink wrote to the University of Melbourne with a requisition for information regarding the applicant (T36) to which the University replied on 4 June 1998. The questions and answers are as follows:

Questions. Answers

1. Centrelink has been advised that

Mr O'Neill was studying for his

PhD in 1997 (and possibly earlier).

What date did Mr O'Neill

Commence his PhD studies? 26 January 1993

2. Have his studies ceased? Yes.

If so, what date did this occur? 31 December 1997

3. Was Mr O'Neill considered to

have been enrolled on a full

time basis for the entire period Yes. (Was granted

he was studying? If not, what leave of absence from

periods was he considered to be 1 January 1996 to

a part time student? 31 December 1996)

(i) On the basis of the documents and oral evidence I am satisfied and find that the applicant was enrolled at the University of Melbourne as a full time candidate for Doctor of Philosophy by thesis at all relevant times.

(j) On the basis of the documents and oral evidence I am satisfied that the applicant undertook work towards his thesis at least until the beginning of 1996 in what should be accepted as a reasonable endeavour to complete the thesis.

(k) On the basis of Dr Tapper's evidence I am satisfied that the applicant did not apply himself by reasonable endeavour to the completion of the thesis after 1995.

(l) On the basis of the applicant's evidence I am satisfied that he maintained his enrolment at the University after 1995 just to maintain eligibility to complete the degree some time in the future.

Consideration of the Issues

5. In Re Department of Social Security and Perlich (AAT - 21 March 1997 - Unreported) the Tribunal (DP McMahon) said at page 5:

"... it must now be regarded as settled that a full time program leading to a PhD degree is both a course and a full time course. There have been at least six decisions of this Tribunal holding this to be the case. The notion is now so settled that it would require a change in the legislation to alter the concept."

That decision is dated 21 March 1997.

6. On 4 June 1998 the Federal Court (Hill J) gave judgment in Secretary, Department of Social Security v Jordan and Secretary, Department of Social Security v Jiang (1998) 49 ALD 496). In particular Mr Jiang was enrolled as a full time student in the PhD course at the University of New South Wales but the Tribunal had found that he was a part time student because he was only filling in time while searching for a job.

7. In the course of judgment Hill J set out the issues to be considered when determining whether a person is enrolled in a full time course of education as follows at 502-03:

"In the Secretary's submission, should a university declare a course full time, then a student enrolled in that course would satisfy the criteria of s 531 and s 613, becoming ineligible for a job search or newstart allowance. In her submission, this would be the case irrespective of the amount of time the student was required by the course to spend attending the university, working on assignments or preparing for the course generally. She submitted that 'we are not entitled to second guess the institution'.

Counsel for the respondents submitted that the question must be resolved by the tribunal by looking at all the facts and that the classification by the institution of the course is merely one of the factors to consider. With respect, I agree.

The classification of the course by the educational institution offering it is a factor to consider; indeed it may provide at the least a prima facie indication and perhaps often will, absent other factors, be determinative. But that classification can not be the only factor to be considered. In Thomson a question arose under the 1947 Act as then applicable to the facts of the case whether an applicant was 'unemployed' while enrolled in a course. The Court said at ALR 629:

To describe her, and others undergoing different courses, as 'full time', serves, in our opinion, only to disguise the problem. Some 'full time' courses may be 9 am to 5 pm, Monday to Friday, or even more demanding. At the other extreme a 'full time' course may require attendance at lectures for only a relatively insignificant part of the week. In Miss Thomson's case, she attended lectures on two days per week in the first semester and on four days per week in the second semester in the relevant year.

Other relevant facts will include the number of hours the student is required to attend the university, the number of hours expected to be spent working at home on study and assessments and the times and days the student is required to attend the university. The task of statutory interpretation, however, is not to define an expression in the abstract. The context in which the expression is employed will cast light on the meaning which parliament intended. In the present case the context is that of conferring upon unemployed applicants a benefit where they are seeking work. An applicant who is enrolled in a full time course of educational or vocational study is to be regarded as not able to participate in the full time work force and thus disentitled to the benefit. Hence in construing the expression 'full time course of education' it will often be relevant to consider whether the course is so structured that it would be inconsistent with the ability of the applicant to become engaged in full time employment.

Thus, whether a person is enrolled in a full time course of study will involve an issue of fact and degree to which these factors will all be relevant. In my opinion, the classification by an institution cannot be the final answer. If it were, difficulties might arise were an institution to fail to classify a course or where the educational institution flies in the face of common sense and reality in classifying what might otherwise be thought to be a part time course as a full time course, or vice versa."

8. Adopting those criteria I make the following findings:

(a) Classification of the course by the University of Melbourne?--At all relevant times the University treated the applicant as enrolled as a full time student as distinct from a part time student.

(b) Number of hours required to attend the University?---No formal requirements about attendance apply to candidates for a PhD by thesis. Supervision was however provided by the University and some tutorial work was also required.

(c) Number of hours expected to be spent on study?---On the evidence there was a very considerable workload in research, reading and writing which might be expected to involve more than 40 hours per week but not on a structured or program basis.

9. Those findings lead me to a conclusion that pursuit of the PhD by thesis on a full time basis so that the thesis can be completed within the maximum of four years laid down by the University is inconsistent with an ability of the applicant to become engaged in full time employment. That conclusion is consistent with the applicant's evidence that at times when he was in employment (albeit not full time) he was less diligent, even desultory, in his approach to the thesis.

10. Lack of application by the candidate in pursuit of a course does not however change the characterisation of that course. If the applicant had pursued the completion of the course on the basis contemplated by the University his workload would be such that he should be regarded as not being able to participate in the full time work force.

11. I am therefore satisfied that the applicant was enrolled in a full time course of education at all relevant times. In so far as Ms Heyworth-Smith submitted that the course leading to PhD by thesis was not a course of education I must reject that submission. While it may be appropriate to distinguish the course from an undergraduate course which involves formal lectures and tutorials it seems to me that pursuit of a PhD by thesis is still a course of education albeit perhaps better described as self-education, a concept embraced within the wider concept of education. It follows from what the Tribunal said in Perlich that no distinction should be made between a PhD by thesis and a degree by coursework in determining what is a course of education.

12. I turn now to Ms Heyworth-Smith's submission that the applicant had abandoned the course by mid 1994. It is clear from the evidence that on a subjective basis the applicant did not consider that he had abandoned the course. This is because he was still pursuing his reading and research into his subject and he was still being supervised by Dr Tapper. Furthermore he applied for 12 months leave from the course for the 1996 calendar year - something totally inconsistent with abandoning the course. The applicant's evidence was that he merely wished to maintain his eligibility to complete the course at some time in the future.

13. Ms Heyworth-Smith correctly, in my view, distinguished abandonment from cancellation in terms of the legislation. She also correctly drew the Tribunal's attention to the definition of the word "abandon" in the Macquarie Dictionary which makes it clear that "abandon" has a meaning inconsistent with maintaining the enrolment, if only to maintain eligibility to complete the course in the future.

14. In so far as the applicant submits that the course was abandoned in the period 21 June 1994 to 31 December 1995 I reject that submission. I do so because I am satisfied that the applicant deliberately maintained his enrolment in a full time course of education because he intended to complete the course at some time in the future. He cannot be said to have abandoned a course when his clear intention was otherwise.

15. The same consideration might be said to apply to the applicant's re-enrolment for the 1997 academic year. It seems to be a contradiction to say that a person who re-enrols for a course can also be said to have abandoned the course. The University says the applicant's studies ceased 31 December 1997 (T36). I have interpreted this to mean that enrolment ceased on that date.

16. The applicant's evidence led me to the conclusion that he did work on his thesis in only the first month or so after his enrolment for the 1997 calendar year. Dr Tapper's evidence corroborated that evidence of the applicant. The applicant's evidence in explanation was that he had a continuing problem with his financial circumstances and he was looking for full time work. Dr Tapper made it clear that full time employment was inconsistent with capacity to pursue the degree on a full time basis.

17. Taking all the material into account I am satisfied there was a constructive abandonment of the course in early 1997. I am unable to say when this occurred but I am satisfied it probably had occurred by the end of February 1997. I am therefore satisfied, on the balance of probabilities, that the applicant had abandoned the course of education by 28 February1997, and I so find.

18. I turn now to the issue of the recovery of the debt. It is the respondent's case that there were two particular instances where the applicant made false statements to the respondent in relation to the payment of allowances. The first is Document T7 where the applicant gave a negative response to a question "Are you enrolled at an educational institution" on the claim for Job Search Allowance. The negative response was contrary to the fact that the applicant was enrolled at an educational institution. I am satisfied that it was a deliberately false statement.

19. The second instance of false statement relied on is one requiring an inference to be drawn. In a signed statement obviously written by an officer of the respondent the applicant did not disclose scholarship income derived by him because of his enrolment in the PhD course. Given that the applicant disclosed sources of income from past employment in the statement dated 24 June 1994 it is submitted that he failed to disclose the income from the scholarship and therefore made a false statement. I am not satisfied that I should come to that conclusion. If the applicant had been asked about income from employment only then the signed statement would not be false. The statement is not sufficiently explicit to allow me to conclude that it is a false statement or false representation coming within the terms of s 1224.

20. Contrary to the applicant's submissions I am satisfied that there is a causative link between the payment of the allowances and the false statement on the initial claim. Certainly allowances were only payable on a fortnightly basis and on the basis of a review application lodged each fortnight but the questions on the fortnightly application did not repeat the question to which the applicant gave a false answer. Nor did the applicant correct his false answer. The respondent must be taken to be aware of the law and in particular ss 531 and 613 of the Act. It follows, in my view, that the allowances were paid because, inter alia, the respondent was told in effect that the applicant was not enrolled in a full time course of education. While the question asked on the claim form (T7) was not expressed in the terms of ss 531(1) and 613(1) the question was sufficiently explicit to put the respondent on notice to make further enquiries when a "Yes" answer is indicated.

21. I agree with the applicant's submission that the relevant answers on the fortnightly review forms before the Tribunal were correct. However they did nothing to correct the false answer given on the initial application (T7). That could only be corrected by telling the respondent that the applicant was enrolled in a course of education. The applicant did not do so and thereby perpetuated the effect of the false answer.

22. I am satisfied that s 1224 applies to make the relevant amounts a debt due to the Commonwealth.

23. For these reasons the decision under review will be set aside and there will be substituted therefor a decision that the applicant has been overpaid in respect of:

(a) Job Search Allowance paid from 21 June 1994 to 3 July 1995;

(b) New Start Allowance paid from:

(i) 4 July 1995 to 31 December 1995;

(ii) 1 January 1997 to 28 February 1997; and

(c) such overpayments are debts due to the Commonwealth to be recovered by the respondent.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: .....................................................................................

Associate

Date/s of Hearing 26 March 1999

Date of Decision 23 April 1999

Counsel for the Applicant Ms Heyworth-Smith

Solicitor for Applicant Welfare Rights Centre Inc

Respondent Mr Kanowski