Anderson and Secretary, Department of Family and Community Services

[2005] AATA 654

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 654

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/653

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RICHARD ANDERSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of decision       16 June 2005

Date of written reasons for oral decision           7 July 2005

Place  Sydney

Decision The reviewable decision, being the decision of the Social Security Appeal Tribunal of 24 October 2003, is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Debt - Austudy – full time or part time student – hours of study – private study – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, ss 568, 569, 569A, 569C, 569E, 1237, 1237AAD

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly   

1.      This is my decision in the matter of Richard Anderson and the Secretary, Department of Family and Community Services.  During 2002, Mr Anderson, the applicant in these proceedings, was a student at the Southern Queensland Institute of TAFE at Warwick. He also attended some classes at the Stanthorpe Campus.  He received Austudy payments from 5 February 2002 to 11 February 2003.  He has appealed to this Tribunal from the reviewable decision of the Social Security Appeals Tribunal dated 24 October 2003 which affirmed Centrelink's decision of 11 June 2003 to raise and recover an Austudy debt of $3861.60 for the period 5 February 2002 to 11 February 2003.

2. The issue in these proceedings is whether he was a full time or part time student. If he was a part time student, he was not entitled to receive Austudy payments. The issue arises because Mr Anderson enrolled at the beginning of 2002 in 13 modules of study, but withdrew from six on 7 July 2002. He did not advise Centrelink that he had done so. The documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were part of the evidence before the Tribunal. Other exhibits are referred to by the exhibit number that was given. There is no dispute about the following facts.

3.      Mr Anderson enrolled at the beginning of 2002 to study for Certificate 3 in Software Applications, Certificate 3 in Networking and Certificate 4 in Help Desk.  I will refer to these as Applications, Networking and Help Desk respectively.  There were core and elective subjects or modules for each certificate.  Some modules were credited to more than one of the certificate courses.  Mr Anderson enrolled in the following modules for which I provide summary details.  In this regard, I do not accept Mr Anderson's correction to the enrolment confirmation, that is exhibit T9, that he undertook module 8NB in applications as well as those listed. That assertion was not supported by the enrolment or the confirmation and was also inconsistent with what he had told the SSAT.

4.      In the Applications Certificate course he enrolled in 23B, which was called One to One Instruction, 28B Packaged Software, 126A Advanced Applications, 19B Migrate to New Technology and 128A Create User and Technical Documentation, which he did not finish.  In relation to the Help Desk certificate, he enrolled in 129A Project Integration, 403A Time Management.  He initially enrolled in 27B Relate to Client's Business, however withdrew from that because he had obtained a pass the previous year.  He also enrolled for six modules relating to networking which I do not need to specify as he withdrew from them as described earlier.

5.      Effectively, at the beginning of 2002, he was enrolled in a total of 13 modules.  On 11 July 2002, he signed a module withdrawal form. It was signed by a teacher on 14 July 2002. He withdrew from the six networking modules 32B, 34B, 20A, 21A, 01A and 30B.  His reason for doing so was that he had been offered more work which unfortunately did not last very long.  I have the benefit of the timetable covering Mr Anderson's subjects for semesters 1 and 2 in 2002, that is document T10.  During the first semester he had four three-hour classes each week for Applications modules, that is 12 hours a week. 

6.      They were not formal lectures, rather a teacher was available in a classroom to assist students, usually about 15 in number, as they worked through a manual or printout that set out the requirements of the course, including exercises and a final assignment.  The first semester was 15 weeks long. During the second semester, classes continued for software applications.  There were two blocks of three hours, that is six hours a week.  There was also one three hour block for project 4A courses, that is the Help Desk subjects. 

7.      The total for the timetabled classes was nine hours a week for the subjects Mr Anderson took during second semester which lasted 18 weeks.  The total available hours of classes he could have attended for the modules he was studying was 180 for the first semester and 162 for the second semester, that is a total of 342 for the year or an average of 10.36 hours per week. I note that the classes for Networking were not available in the first semester but only in the second.  There were two blocks of three-hour classes a week, however, of course, Mr Anderson did not undertake those subjects.

The law,

8.      Relevantly, the Social Security Act 1991 requires that a person has to be a full-time student in respect of a course of study to qualify for Austudy payments: sections 568, 569 and 569A. Section 569C provides:

For the purposes of this Subdivision, a person is a full-time student in respect of a course if: (a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)-The person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period; or (b) in the case of a person who intends to enrol in a course for a particular study period-the person intends to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period. 

9. Section 569E provides:

(1) For the purposes of this Subdivision, the normal amount of full-time study in respect of a course is: (a) if: (i) the course is a course of study within the meaning of the Higher Education Support Act 2003; and (ii) there are Commonwealth supported students (within the meaning of that Act) enrolled in the course; the full-time student load for the course; or (b) if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course-the amount so defined; or -

10.     (c) and most relevantly -

Otherwise-an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.

11. Section 569E(2):

Without limiting subsection (1), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.

12.     I note that the information from the Southern Queensland Institute of TAFE has been confusing.  Mr Alan Coleman, a teacher, advised Centrelink in October 2002 that Mr Anderson was a full-time student.  In a data matching document, the information provided by that institution was "student has part-time work load for submission 3", that is T18.  It was that information in that document that began the process whereby the debt was raised in this case. 

13.     This matter was further complicated when Mr Graham Anderson, not related to the applicant, and a teacher of Mr Anderson in 2002, gave oral evidence that the SQIT does not identify students as part or full-time because they have a flexible learning program.  I therefore cannot rely on the categorisation given by that institution, but must consider the evidence and determine Mr Anderson's status in accordance with the legislation.  One piece of evidence before me is the attendance records for Mr Anderson for both the Warwick and the Stanthorpe campuses that show that he attended for 189 hours during 2002, that is part of T1.

14. That is an average of 5.73 hours per week over the year. The 189 hours can also be compared to the timetabled 342 for the year. If he had attended all available timetable classes, he would have averaged 10.36 hours per week. Mr Lozynsky, who appeared for the respondent and Mr Boulton, who represented Mr Anderson, agreed that applying section 569E(2) of the Act would require 660 hours contact hours over the year, that is 20 hours per week times the total number of weeks in the two semesters which is 33.

15.     Other evidence before me was an exercise that had been carried out by Mr Graham Anderson, exhibit R2.  The document showed hours attributable to various subjects.  Unfortunately, that document was based on the 2003 timetable, rather than the 2002 one and therefore did not include all the relevant modules and included irrelevant modules relied upon by Mr Graham Anderson.  Mr Boulton had also prepared a document based on the 2002 timetable which was contained in exhibit A1.  I note the hours included in both those documents are for various subjects, for example, 10 or 20, was derived for the purpose of the Queensland department which funds TAFEs.

16.     The figure reflects how many hours that department was prepared to pay the institution for each subject.  How it was derived and what it reflects is not known.  I understand that the purpose of Mr Graham Anderson's exercise, repeated by Mr Boulton in part, was to provide evidence to determine the amount of study that a person would have to undertake over the duration of the three certificate courses in order to complete them.  However, as SQIT does not operate by categorising the courses full or part time, I am not assisted very much by that evidence.  As Mr Graham Anderson described, that institution is based on a flexible learning program. 

17.     For example, how long it would take a student to do the application certificate would depend upon the ability, diligence and time constraints on the student.  There were classes available during both semesters, but completion of the modules was a matter of completing the exercises and assignments set.  However, some assistance can perhaps be gained by considering the hours estimated in exhibit A1, assuming those hours listed for each module to be accurate.

18. The total hours for the Application Certificate was 520 when the core subjects and electives of maximum time were included. For the Network Certificate, it was 422 and for the Help Desk or Client Support Certificate, 440. If the electives taken, taking the minimum time, were taken into account, clearly each figure would be less. None of those courses approached the 660 hours which is derived by applying section 569E(2) of the Act. Further, it has to be remembered that Mr Anderson did not enrol for all the subjects necessary to complete any one of the certificates.

19.     Mr Boulton supplied another analysis in exhibit A1 to support the argument that Mr Anderson had been studying full time.  I do not find that material of assistance.  It refers to networking modules which Mr Anderson never studied, having withdrawn in July 2002.  Mr Boulton also speculates about time actually spent by Mr Anderson undertaking what he described as directed or private study.  I accept that Mr Anderson was very diligent and spent hours outside the timetable classes doing exercises and assignments, as do all students.  I also accept that he had to master the Powerpoint computer program in order to do one subject, as this was an underpinning requirement of the course.

20. Even accepting that, he was not told that Powerpoint was a required skill until some time into the module that does not assist me. I have to apply the legislation to the facts of the case. Doing the best I can, given the evidence in the case, I rely on section 569E(2) of the Act and apply it to the number of timetabled hours for which Mr Anderson was enrolled over the year as set out above. He was timetabled for an average of 8.73 hours per week which falls very far short of the 20 hours prescribed by the section. Even considering the 12 hours available in the first semester per week, that also falls far short. I also note that he attended on an average of 5.37 hours a week over the semester.

21.     I am reinforced in my conclusions by the evidence provided by Mr Boulton as discussed above that shows that each certificate for which Mr Anderson originally enrolled did not meet the 660 hours in this section and that only one exceeded 75 per cent of that requirement. I find that Mr Anderson was not a full time student during 2002 and therefore did not qualify for Austudy payment. The debt was properly raised.  I find that there was no administrative error which would require a waiver of the debt pursuant to section 1237A.

22. Unfortunately, Mr Anderson did not read the correspondence sent to him and did not appreciate that he should have notified his withdrawal from the subject. I also find that there were no special circumstances which would cause me to exercise a discretion pursuant to section 1237AAD. Mr Anderson should have notified Centrelink of the withdrawal and did not. It was unfortunate that Mr Coleman of SQIT advised Centrelink that he was a full time student, however Mr Anderson was already not qualified at that time to receive Austudy and the debt had arisen.

Decision

23.     Accordingly, I affirm the reviewable decision.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  15 June 2005
Date of Decision  16 June 2005
Date of Written Reasons for Oral Decision     7 July 2005
Applicant’s Representative   Mr T Boulton

Advocate for the Respondent     Mr G. Lozynsky
Centrelink Legal Services Branch