The Tribunal sets aside the decision under review and in substitution therefor decides to waive part of the debt due to the Commonwealth for the period 14 February 2000 to 31 December 2000. This means Mr Dean's application for review is partly successful.

STUDENT ASSISTANCE - Abstudy - overpayment - debt due to the Commonwealth - waiver - administrative error - special circumstances

Student Assistance Act 1973 s43B, 43F

Prince v. Secretary, Department of Education, Employment and Youth Affairs [1997] FCA 1565; [1997-98] 50 ALD 186

Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541

Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 53 ALD 277

Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60)

Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316

Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443

Woodward and Department of Family and Community Services [2001] AATA 818

Secretary, Department of Family and Community Services and Temesgea [2002] AATA 1290

Hill and Secretary, Department of Family and Community Services [1999] AATA 909

Secretary, Department of Social Security and Winters [1007] AATA 12518

This is an application by Troy Dean to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 20 October 2003 to recover an ABSTUDY debt of $21,763.33 for the period 14 February 2000 to 26 November 2002.

In reaching its decision the SSAT concluded:

"It must be noted that waiver under this provision [administrative error] requires that, in this case, any Centrelink administrative error be the sole cause of the debt or part thereof. In the Tribunal's view, Mr Dean's incorrect response to question 37 of the claim form contributed to the commencement of the incorrect payments. Any Centrelink error in failing to cross-check available records was not the sole cause of the resulting debt. Waiver under this provision is not open." [Emphasis added] (T2, Folio 8);

and

"[In relation to the 'special circumstances' provision] Mr Dean knew he had at least attempted full-time study at JCU from 1991 to 1996 and been paid ABSTUDY on this basis. His answer to question 37 was false and he failed to list this prior study as required by the question. While satisfied there was no intent to defraud, the Tribunal nevertheless finds that Mr Dean knowingly provided false information in completing the form. Mr Dean's failure to correctly respond to question 37 contributed to the incorrect ABSTUDY payments subsequently made. In these circumstances, waiver under section 43F of the Act is not available." [Emphasis added] (T2, Folio 9)

and

"However, Mr Dean plainly contributed to the incorrect payments by providing false information on the claim form. In these circumstances, and having regard to the relevant waiver provisions, the Tribunal finds the debt should be repaid." [Emphasis added](T2, Folio 9)

At the hearing, Mr Dean represented himself. The respondent was represented by Miss E Ford of Counsel, instructed by Phillips Fox. Mr Dean gave evidence on his own behalf. The respondent did not call any witnesses.

The Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) (Exhibit 1) and the various documents lodged by the parties.

The only issues for the Tribunal to decide was whether the debt due to the Commonwealth of $21,763.33 could be waived in part, or in full under:

(a)

the "administrative error" provisions; or

(b)

the "special circumstances" provisions of the Student Assistance Act 1973.

On the basis of the evidence before it, the SSAT made the following findings of fact:

"(i) Mr Dean received ABSTUDY from 1991 to 1996 on the basis of full-time study at JCU.

(ii) Mr Dean received ABSTUDY from 14 February 2000 to 26 November 2002 on the basis of full-time study at JCU, including some cross-institutional study at UQ.

(iii) When completing his claim for ABSTUDY in April 2000, Mr Dean incorrectly answered in the negative a question about having attempted or completed other non-school study" (T2, Folio 7)

(a)

Mr Dean acknowledged finding (i) as correct;

(b)

with respect to finding (ii), he stated that he initially enrolled, cross-institutionally, at the University of Queensland ("UQ"). However, a James Cook University ("JCU") academic adviser had approved him to study full-time at UQ for Semester 1, 2000. He had then been advised by JCU that this was a mistake and he was required to study some subjects externally from JCU, together with the subjects studied at UQ;

(c)

with respect to finding (iii), Mr Dean acknowledged that there were many mistakes in the paper work (T12, the completed Abstudy Claim Form (18 April 2000) and referred specifically to the following:



T12 Folio 71, Questions 38, 42, 43: series of mistakes crossed out;



T12, Folio 79, Question 68: mistake crossed out;



T12, Folio 80, "Income From Self Employment": mistake crossed out; and



T12, Folio 63, Question 14: Wrong Bank Account Number since an extra digit had been inserted.



In addition he referred to the following document completed at much the same time as the ABSTUDY Claim Form:



T25, Folio 121, Cross Institutional Study Document in which he had written down the incorrect date 12/1/99, rather 12/1/00. Both dates appear on the signed form.

Mr Dean submitted that the whole series of errors that appeared on his completed ABSTUDY Claim Form arose because of ill health and work related stress during 2000 - the first years of his tertiary enrolment.

Mr Dean then referred to the statement prepared by treating neurologist, Dr P McCombe (T25, Folio 120, 23 October 2000):

"Troy is under my care for a medical condition. I do not think he is able to continue all of his university studies because of his ill health. I have advised him to withdraw from some of his subjects because I do not think he is fit to manage these subjects. He has indicated that he wishes to try to continue to proceed with some of his subjects and I request that he be given special consideration for these remaining subjects."

Mr Dean said that he had been diagnosed with Epstein-Barr Virus ("EBV") on November 1999. Microbiological serology tests undertaken for Dr K Cayzer confirmed this medical condition (T25, Folio 129, 23 November 1999). He said that at the time his symptoms became observable, his treating GP thought he may have had leukaemia.

Mr Dean stated that his problems with ill-health in Semester 1, 2000 were compounded by combining study with a stressful work situation. He was attempting to complete a contracted project in the contract period - whilst applying for other jobs. His contract with the Queensland Government was to end in March 2000.

He said that he suffered the following side effects of EBV: long-term chronic fatigue, severe headaches, muscular soreness, joint pain and anaemia. In addition, he suffered relapses of this condition over time.

Mr Dean stated that a central issue for the overpayments arising related to Q37 on the ABSTUDY Claim Form ("Have you attempted or completed any other non-school study including any previous study so far in the course you are doing now?"). The box marked "No" was ticked and this answer directed the applicant to proceed to Q38 and to answer questions dealing with "Away from home details". Notwithstanding the box "No" was ticked in response to Q37, the completed claim form had the following notation recorded as part of Q37:

Current Course: "James Cook Uni" "Bach Arts" "1st [year]"

"F/T [Semester 1]" "F/T [Semester 2]".

As a basis for explaining the notation, Mr Dean stated that shortly after completing the Claim Form, he was contacted by a Centrelink officer and asked about the discrepancy in some of the answers to Questions on the Claim Form. He said that the officer had added the handwritten text under Q37. In addition, he said that he had told this officer that he had studied at JCU over the period 1991-1996.

Mr Dean gave the following responses to questions asked during cross-examination:

(a)

That his contract with the Queensland Government was for a 6 month period from early September 1999 to the end of March 2000;

(b)

That he understood "most things" of the questions asked of him on the ABSTUDY Claim Form (T12);

(c)

With respect to ticking the "No" Box to Q37, when this question required him to list courses undertaken in the preceding 10 years, Mr Dean claimed that he had not given this response to the Centrelink officer and stated that he had told the officer of his previous study; and

(d)

That he had completed his Government consultancy in late March 2000, shortly after his Semester 1 tertiary studies commenced in February 2000.

The Student Assistance Act 1973 ("the Act") provides for circumstances where a debt due to the Commonwealth may be waived, either in part or in full. These circumstances arise if the overpayment arose from "administrative error" or whether there were "special circumstances" that led to the overpayment.

Section 43B provides for a debt due to the Commonwealth to be waived, either in part or in full, because of "administrative error".

"SECTION 43B - WAIVER OF DEBT ARISING FROM ERROR

Subject to subsection (2), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor." [Tribunal emphasis].

For this section of the Act to apply to Mr Dean's factual situation, Mr Dean must not have contributed, in any way, to the administrative error that led to the overpayment. In addition, Mr Dean must have received his overpayments of ABSTUDY entitlements in "good faith". Both these requirements must be satisfied for Mr Dean to succeed under the "administrative error" provisions of the Act.

The legal meaning of "good faith" was considered by the Federal Court in Prince v Secretary, Department of Education, Employment and Youth Affairs [1997] FCA 1565; [1997-98] 50 ALD 186. In this case, Finn J stated:

"If that person knows or has reason to know that he or she is not entitled to a payment received - i.e. is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith...the [legislation] does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that the Parliament intended otherwise".

Section 43F of the Act provides for a debt due to the Commonwealth to be waived, either in part or in full, because of "special circumstances":

"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 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." [Tribunal emphasis]

For this section of the Act to apply to Mr Dean's factual situation, there must be "special circumstances" that led to the overpayment of social security entitlements. In addition, Mr Dean must not have "knowingly" made a false statement or false representation or failed to have complied with a provision of the Act. Both these requirements must be satisfied for Mr Dean to succeed under the "special circumstances" provisions of the Act.

The meaning of the term "knowingly" has been considered by the Tribunal in Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435 where Deputy President Forgie stated (at 445):

"There is nothing in s 1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act of or omission."

The Tribunal has had to consider the meaning and application of the expression "special circumstances" on many occasions. The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 has been an oft-quoted benchmark as to the interpretation of "special circumstances". In that case the Tribunal said (at 3):

"An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."

In Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 (a case on "special circumstances" and section 1184 of the Act) at 545, Kiefel J, after referring to the Federal Court's decision in Beadle, observed that special circumstances:

"...would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case...It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."

In Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 53 ALD 277, French J considered a number of authorities (including Beadle's case) in arriving at a conclusion to the meaning of "special circumstances":

"The word 'special' conditioning 'reasons' or 'circumstances' guards the entrance to the exercise of many different statutory discretions... Circumstances or reasons will not necessarily fall outside the designation of 'special' because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise - Re Hutchins; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 74 ALR 455 at 473. The core of the requirement for 'special circumstances' or 'special reasons' is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322." [Emphasis added].

The Tribunal agrees with the following observations of Senior Member Handley in Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543, with respect to advice given to social security recipients by Departmental officers:

"Any failure to regard the seriousness of the consequences of the giving of wrong advice as not being a circumstance special to the person or persons who have suffered as a result of that advice would be cruel. Citizens are entitled to act upon the advice given to them by representatives of government through its departments and agencies. Citizens also are entitled to have confidence in the advice that they are given by persons in authority and who represent government departments and agencies. Citizens should be entitled to expect nothing less."

and

"the responsibility for efficient and effective administration of departmental practice and policy must carry with it a responsibility for any error or mistake which is made by the departmental officers alone. The presence of the debt in the circumstances of this case is a circumstance undoubtedly special. That the department would seek to enforce it and recover it only reinforces the circumstances being special."

Ms Ford submitted that the debt was not due solely to an administrative error made by the Commonwealth as it was contributed to by the manner in which Mr Dean completed the ABSTUDY claim form, namely:



Failing to state in answer to Question 28 [study details including proof of enrolment] that he was doing cross-institutional study at James Cook University;



Answering "No" to Question 37 [study attempted or completed in the past 10 years] which asked whether he had done any previous study including in the course he was doing;



Failing to provide details of that previous study in the box provided under Question 37;



Later telling a person who completed the box under Question 37 that he was currently enrolled in first year of a Bachelor of Arts degree at James Cook University when in fact he had been studying there for six years between 1991 and 1996.

Miss Ford contended that the administrative error provision could not be relied on to waive the debt due to the Commonwealth under the section 43B provisions of the Act, as Mr Dean had agreed he had made mistakes completing his ABSTUDY Claim Form. In doing so he had contributed to the administrative error.

Miss Ford referred to the following statements contained in the "Discussion of Evidence" by the SSAT:

"13. Nevertheless, Mr Dean's contention that Centrelink was in possession of all the information needed to properly assess his claim has force. From 1991 to 1996, ABSTUDY was paid by the then Department of Employment Education and Training. Some Centrelink officers had access to those payment records. Whilst Mr Dean clearly indicated on the claim form that he applied for ABSTUDY in 1997, it appears that no checking of prior payment records occurred." (T2, Folio 7)

Miss Ford acknowledged that it was not in dispute that no search had been done since Centrelink did not carry out computer searches for every application made. In addition, Ms Ford referred to Mr Dean's oral evidence where he had said that he knew what he was being asked on the Claim Form.

With respect to the "knowingly" requirement prescribed in the "special circumstances" [section 43F] provision of the Act, Miss Ford contended that at all times, Mr Dean had actual knowledge of the fact that he had received ABSTUDY from 1991 to 1996. Mr Dean also knew what information was sought by Questions 28 and 37. Furthermore, she submitted that Mr Dean knew he had answered Question 28 and 37 incorrectly, and incompletely, so as to give a false impression. Accordingly, Mr Dean "knowingly" made a false statement or representation and cannot satisfy the "knowingly" requirement of section 43F of the Act.

Furthermore, Miss Ford submitted that Mr Dean had not provided any evidence to support his claim that there were "special circumstances" to justify waiver of the debt.

Mr Dean commenced with the submission that the effects of his serious illness had contributed to the many errors made in completing the ABSTUDY Claim Form. Mr Dean submitted that he was unaware that the responses on the ABSTUDY Claim Form were not cross-checked - notwithstanding that he had provided his correct name and reference number on the Claim Form.

Mr Dean submitted that correct Departmental protocols and procedures had not been followed in relation to the follow up telephone call made by the Centrelink officer soon after he had lodged his ABSTUDY Claim Form. Changes were made to his Claim Form - including changes he had not made, for example the notation in Q37. However, the change had not been initialled. Furthermore, there was no file note of the phone conversation that had taken place at this time.

Mr Dean concluded with the submission that he had always been upfront with Centrelink and that the overpayment situation would not have occurred if Centrelink had a cross-checking process in place and followed standard protocols that were in place.

At the end of the hearing, the Tribunal adjourned the application for review in order to exert its inquisitorial powers to ensure the best-informed decision could be made with respect to this application for review. With Mr Dean's consent, the Tribunal sought a medical opinion from Mr Dean's Treating GP in relation to the effects of Mr Dean's medical condition and treatment regime on his capacity to manage his day to day affairs and to make rational decisions in 2000, particularly around the period April 2000.

The parties were invited to make supplementary submissions when this medical opinion was filed with the Tribunal. Following the filing of Dr Nyst's report (17 April 2005), supplementary submissions were filed by the applicant on 7 May 2005. The respondent filed supplementary submissions on 1 June 2005.

EXPERT OPINION EVIDENCE OF DR P NYST (TREATING GP OF THE APPLICANT)

In response to the Tribunal Direction (9 September 2004), Dr Nyst's report was filed on 17 April 2005 and provided the following expert opinion.

"In researching the patient's file I have been back through his clinical records including investigation results from the time concerned.

Mr Dean had been a patient of this Practice since 1999. I gather he had moved to Brisbane from Townsville at about that time. As early as November 1999, he had been suffering from Nebulous symptoms. These tended to take the form of tiredness, lack of ability to concentrate, and various forms of muscle aches and pains. The symptoms he reported included things like chest pain, recurrent infections, general lethargy and feeling out of sorts.

Throughout 2000, he had many visits to our Practice. In the period finally ending in about December 2000, he had some 6 or 8 visits to our Practice. As part of the workup for this he was tested repeatedly. The blood tests show that he had previous exposure to Epstein Barr virus but no signs of acute infection. Furthermore he was shown to have a reduced white cell count. (This is consistent with a persistent viral infection.) Other blood testing revealed that his kidney and liver function were normal, and that all of the other tests done showed nothing abnormal. In summary therefore he had blood test signs which were genuinely abnormal and indicated the presence of some form of low grade viral infection. The abnormal blood tests were documented repeatedly between November 1999 and January 2001. From these conditions you can deduce that he was suffering a genuine viral condition.

Throughout this time he complained repeatedly and persistently of this lethargy, general unwellness and various vague muscle aches and pains. While these conditions are consistent with a persistent viral infection, no definitive final cause was ever found.

He seems to have made a spontaneous resolution in the first part of 2001, and has not been seen by this Practice since 2001.

In summary therefore, I cannot say exactly what condition we were treating. However, I can say that he had acute symptoms which were highly suggestive of a long term viral infection which persisted through 2001. Furthermore I believe these symptoms to have been true and factual because the blood tests at the time also reflected a viral illness of some form.

You also request what medications Mr Dean was prescribed during 2000. I would report that during 2000 he had one course of antibiotics, Vibramicin, a course of a nasal spray Rhinocort, and some Mycostatin Oral Drops for his mouth condition. As there was no specific diagnosis made relating to the condition mentioned above he received no specific treatment. We simply allowed him to make a slow spontaneous recovery.

In your letter you also asked in my professional opinion what affect would the medical condition and symptoms have had on Mr Dean's capacity to manage his day to day affairs in 2000 and to make rational decisions in 2000. In response I would say that Mr Dean appeared to be suffering a very genuine viral condition. I feel that as a result of this condition he was forced to consult repeatedly with doctors at this Practice. He did in fact present some 6 or 8 times during the period in question. For this reason I think it is entirely plausible that he would not have been able to go about his day to day activities during this time. Specifically around April 2000, Mr Dean was seen on March 27th 2000 when he complained that he felt the Epstein Barr condition was still a problem that he was studying very hard, and was unable to cope. He next presented on 3rd May, 2000 when he requested a certificate. Furthermore on the 9th May, 2000 he presented with further viral symptoms associated with vomiting. For these reasons, I feel there is ample evidence that around April, 2000 he was not functioning well and I think it entirely plausible that his ability to make rational decisions at that time may have been impaired.

In summary I feel that this unfortunate man has suffered a genuine problem. Whilst I can offer no definitive diagnosis I would be inclined to give him the benefit of the doubt. I conclude most definitely that he was suffering a genuine medical condition which was slow to resolve." [Tribunal emphasis]

SUPPLEMENTARY SUBMISSIONS TO DR P NYST'S REPORT

Mr Dean submitted there were "special circumstances" of his medical condition, in 2000, that contributed to the error. It was his contention that the absence of "proper checks and balances in Centrelink systems" left him without any opportunity to correct mistakes made by Centrelink staff in recording his information.

Mr Dean relied on the expert evidence provided by Dr Nyst with respect to his ability to manage the events in his life, at that particular time, as the basis for waiver of the debt due to the Commonwealth under the "administrative error" or "special circumstances" provisions of the Act. It was his further contention that the Centrelink, Abstudy Continuation Forms to be completed by him at the end of each year, in not requiring information relating to prior studies, were a contributing factor for the subsequent overpayments made to him.

The respondent submitted that it "appeared" that Mr Dean had relied on a 2003 Continuation Form to show that he was not asked for any details of prior study during the debt period. The Continuation Form provided by Mr Dean was dated 16 January 2003 and is outside the debt period.

The respondent submitted that had Centrelink received a Continuation Form from Mr Dean at any time containing the correct information that his course started in 1991, Mr Dean's eligibility for Abstudy would have been apparent.

The respondent also contended that it could not be inferred that because a Centrelink officer said she believed the handwriting on the applicant's Abstudy form was Ms Stiller's that Ms Stiller called the applicant and was informed by him that he had prior studies from 1991 to 1996. In addition, what could be inferred from the handwriting was that a person wrote on the Abstudy form that the applicant was in first year of a BA and was undertaking his course through James Cook University. The reference to James Cook University was in the enrolment information from the University of Queensland provided by the applicant as evidence of enrolment.

In relation to Mr Dean's further submission that his medical condition at the time of lodging his Abstudy application in 2000 was a "special circumstance", the respondent contended that the report of Dr Nyst did not change the fact that Mr Dean knew that he had studied in 1991 to 1996 and that he had stated in his application form that he had not done so.

The respondent concluded with the submission that the debt had resulted, wholly or partly, from Mr Dean knowingly making a false statement or a false representation in his Abstudy application form. In Mr Dean's failure to mention his previous study in the previous 10 years, as required by the form, Mr Dean had done so knowingly in the sense that he knew he had studied previously.

The question for determination of the Tribunal when conducting an application for review is whether the decision under review was the correct (that is, where there is only one decision possible) or preferable one (that is, where there is more than one decision possible) on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) [Full Federal Court at 68]. In Mr Dean's case there is more than one decision possible under the waiver provisions of the Social Security Act.

Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 at 324-326. In this application for review, the Tribunal considers all the evidence and information before the Tribunal at the date of the hearing, including the supplementary submissions in relation to the Tribunal Direction and the information provided by Dr P Nyst.

Central to the determination of the disputed issues is the application of the ABSTUDY Policy Guidelines (at 4.2.2.2.1) which requires students to complete their studies within a "reasonable time". "Reasonable time" for courses in excess of two years is the normal course duration plus two years (see T23, Folio 117). Mr Dean had previously studied for a BA Degree from 1991-1996 and had also been granted ABSTUDY. Applying the Departmental policy, Mr Dean had reached his allowable time for ABSTUDY payment for the period 1991-1996. As a result, Mr Dean would not have been entitled to any further payments of ABSTUDY when he re-enrolled cross-institutionally for a BA Degree at JCU/UQ and applied for ABSTUDY on 18 April 2000 (T12). Mr Peter Shirres, Abstudy Manager, Centrelink, Fortitude Valley, provided the SSAT with the following "explanatory notes" on the ABSTUDY Scheme.

"Troy [Dean] incurred a very large debt because he spent too long completing his arts course. The information on this aspect of Abstudy is obscure and buried in notes that go with the claim.

Although he was technically 'advised', there are no interviews (papers are usually given to the customer and returned to the unit via CSC's) he would not have easily known about the reasonable time period for study.

He has given a reasonable explanation re ticking a box saying he hadn't studied but where we are considering admin error it has to be solely Centrelink error - I had nothing to stand on when it came to a waiver.

In short I believe we have real problem with indigenous people incurring massive debts - a large number incurred quite innocently on the customers part." (T24, Folio 19).

The Tribunal has considered all of the evidence and information and makes the following findings of fact:

(a) The Tribunal accepts Dr Nyst's expert medical opinion that Mr Dean suffered a genuine viral condition. This was confirmed by abnormal blood test pathology between November 1999 and January 2001.

(b) The Tribunal accepts Dr Nyst's report with respect to the resolution of his condition and concludes that on the balance of probabilities that Mr Dean had made a spontaneous resolution from this condition in the first part of 2001; furthermore, that Mr Dean did not see him in 2001. This finding is corroborated by Mr Dean's oral evidence that the whole series of errors that appeared on the ABSTUDY Claim Form arose because of ill health [and work-related stress] during 2000 (see paragraph 8). Furthermore, Dr McCombe's expert neurological report (T25, 23 October 2000) confirms that Mr Dean's general state of health warranted withdrawal from some subjects because he did not consider him fit to manage these subjects (see paragraph 9).

(c) The Tribunal accepts Dr Nyst's report that there was ample evidence around April 2000 that Mr Dean was not functioning well and accepts, on the balance of probabilities, his ability to make rational decisions at that time had been impaired.

(d) There were limitations in administrative procedures, practices and information available to ABSTUDY students as stated by Mr Shirres at the time Mr Dean completed his ABSTUDY Claim Form in terms of understanding the "reasonable time period for study" (see paragraph 48).

The first issue for the Tribunal to consider is the factual evidence relating to whether the debt could be waived under the "administrative error" provisions of the Act.

The Tribunal concludes that both Centrelink and Mr Dean have contributed to the "administrative error" that has led to the overpayments of Austudy to Mr Dean and that the administrative error has not been solely caused by the Commonwealth. Specifically, Mr Dean has acknowledged that he had made mistakes in completing his ABSTUDY Claim Form. In doing so, he has contributed to the administrative error.

Accordingly, the debt due to the Commonwealth cannot be waived under the administrative error provisions of the Act.

Next, the Tribunal considers the factual evidence relating to whether the debt could be waived under the "special circumstances" provisions of the Act.

The Tribunal considers the "knowingly" issue in relation to Mr Dean's state of knowledge around April 2000 and to events surrounding the false statement or the act and omission.

The Tribunal has made a finding, based on the expert medical opinion evidence, that Mr Dean's ability to make rational decisions around the time he completed his ABSTUDY Claim Form (April 2000) had been impaired. Accordingly, the Tribunal concludes that Mr Dean's statement of knowledge at the time he completed the ABSTUDY Claim Form in April 2000 - as well as the events surrounding the statement, or the act or omission, do not represent a situation whereby he "knowingly" made a false statement, or act and omission.

The application of Callaghan's case requires Mr Dean to have "actual knowledge" that he was making a false statement. However, because of his medical condition and its impact upon him in making rational decisions in April 2000, the Tribunal concludes that Mr Dean could only have had "constructive knowledge" rather than "actual knowledge", that he was making a false statement or representation or that he was failing or omitting to comply with a provision of the Act.

The Tribunal considers that there are facts within Mr Dean's circumstances that warrant the description of "special circumstances":

(a) based on the expert medical opinion of Dr Nyst, a genuine viral medical condition suffered by Mr Dean impaired his ability to make rational decisions at the time he completed his ABSTUDY Claim Form in April 2000. Further factual support of the impact of this medical condition is evident in the general confusion and whole series of mistakes made by Mr Dean in completing his Claim Form [see paragraph 49(c)]; and

(b) that limitations in administrative procedures and practices and, in turn, information availability to ABSTUDY claimants under the ABSTUDY Scheme created further constraints in understanding the "reasonable time period for study requirement"; information on this aspect has been described as "obscure" by one Abstudy Manager of Centrelink (see paragraph 48).

However, the Tribunal qualifies the length of the period for which special circumstances apply. The Tribunal finding based on all of the expert medical opinion on the status of Mr Dean's viral medical condition was that Mr Dean had made a spontaneous resolution from his viral medical condition in the first part of 2001. Accordingly, the Tribunal concludes that the past impacts caused by his viral condition on Mr Dean's ability to make rational decisions in managing his day-to-day affairs did not apply from 2001. In the 2001-2002 academic years Mr Dean should have raised a query with Centrelink in relation to his ABSTUDY entitlements. However, no such query was raised - notwithstanding that Mr Dean had been an ABSTUDY recipient during earlier undergraduate studies from 1991 - 1996 and presumably aware of his obligations for student assistance in relation to academic course loading, given that the impacts of his medical condition on his ability to make rational decisions in managing his day to day affairs did not apply from 2001.

In making the conclusion that "special circumstances" apply for part of the period that Austudy overpayments were made to Mr Dean, the Tribunal had given due regard to the following legal principle as to the breadth of the discretion in relation to "special circumstances":

The Full Federal Court, in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443 at 450: commented:

"Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other."

Accordingly, in the context of Riddell's case, and an analysis of cases decided by the Tribunal as to the circumstances which fall within the meaning of "special circumstances" because of the impacts of the medical condition on the social security recipients, the following principles emerge:

(a) Woodward and Department of Family and Community Services [2001] AATA 818

The Tribunal found that the applicant who was suffering from emotional and psychological trauma at the time of overpayments of social security benefits had been impaired to the extent she was unable to manager her affairs. The Tribunal accepted that during the period the applicant was distraught and disorganised, she was severely depressed and distressed in her factual circumstances.

(b) Secretary, Department of Family and Community Services and Temesgea [2002] AATA 1290

The Tribunal found "special circumstances" to apply because of the "respondent's prevailing state of mental and emotional distress at the time the debt was incurred" [reducing the respondent's ability to understand his obligations and responsibilities under the Act];

(c) Hill and Secretary, Department of Family and Community Services [1999] AATA 909

At the relevant time, the applicant was being treated for "severe depression". The Tribunal accepted the medical opinion evidence that the applicant was "capable of rational decision making although his cognitive functioning is impaired by his medication and his depression and that ["the applicant] has trouble thinking rationally" and "exhibits confusion and difficulty with decision-making". In its conclusion that "special circumstances" applied, the Tribunal accepted that the applicant was "not capable of great feats of rational thought and has impaired cognitive functions"; and

(d) Secretary, Department of Social Security and Winters [1007] AATA 12518

The Tribunal concluded that there were "special circumstances" operating in the life of the applicant at the time overpayments of social security were made. The Tribunal concluded that the impacts of her psychiatric state (depression, schizophrenia) on her actions to act impulsively, panic and depression, were "special".

Accordingly, with respect to "special circumstances", the application of the law in cases decided by the Tribunal involves a consideration of the impacts of the medical condition on the Social Security recipient's capacity to make rational decisions in managing their day to day affairs.

Applying these legal principles, the Tribunal concludes that the facts in paragraphs 57(a) and (b) warrant the description of being either "uncommon" or "unusual" - although not necessarily "extremely unusual or uncommon", and where the facts are "something unusual or different to take the matter the subject of the discretion out of the ordinary": Beadle's case; Boscolo's case.

For all of the above reasons, the Tribunal sets aside the decision under review and in substitution therefor decides to waive part of the debt due to the Commonwealth under the "special circumstances" provisions of the Act. The relevant period of time for waiver of the ABSTUDY overpayment is the 2000 academic/ABSTUDY entitlement period: 14 February 2000 - 31 December 2000.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed: Jenny Tran

Associate

Date/s of Hearing 9 September 2004

Date of Decision 21 June 2005

The Applicant appeared in person

Counsel for the Respondent Miss E Ford

Solicitor for the Respondent Phillips Fox