Ardill and Secretary, Department of Family and Community Services

[2000] AATA 274

DECISION AND REASONS FOR DECISION [2000] AATA 274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/1072

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ALLAN ARDILL     
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date7 April 2000    

PlaceBrisbane

..............(Signed)........................
  D.W. MULLER
  SENIOR MEMBER
CATCHWORDS
STUDENT ASSISTANCE – Austudy – undertaking qualifying study – activity test
Social Security Act 1991: ss568, 569, 569A

WRITTEN REASONS FOR DECISION

7 April 2000          Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision that

Allan Ardill was not entitled to be paid Austudy living allowance after 20 November 1998, the day of his last examination to complete his degree.

1. The relevant facts are not in dispute and they are:

   (i)In 1998, Mr. Ardill was enrolled as a full-time student in the Bachelor of Laws/Business Studies course at Griffith University.

   (ii)Throughout 1998, Mr. Ardill duly studied as a full-time student, did the relevant assignments, sat for the exams and satisfied the progress rules for his course.

   (iii)During the week ending Friday 20 November 1998, Mr. Ardill handed in his final piece of assessment for his course.

   (iv)Friday 20 November 1998, was the final day of the examination period for Griffith University.

   (v)On 18 December 1998, a Centrelink officer decided that Mr. Ardill was not entitled to receive Austudy living allowance after 20 November 1998.  This decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal.

   (vi)Mr. Ardill in fact received the allowance until 7 December 1998.

   (vii)Mr. Ardill was successful in his studies and completed his degree course at the end of 1998.  He received his final results in the week between Christmas and New Year's Day.

2. It was contended on behalf of Mr. Ardill that he was entitled to be paid Austudy allowance until 31 December 1998 because the second semester ran, in effect, from 1 July 1998 to 31 December 1998.

3. At the beginning of 1998, the entitlement to Austudy was governed by the provisions of the Student and Youth Assistance Act 1973 and the Regulations made under the said Act.  If there had been no change to the legislation, Mr. Ardill would have been entitled to receive Austudy until 31 December 1998, see Regulation 8.

4. After 1 July 1998, entitlement to Austudy was governed by the provisions of the amendments to the Social Security Act 1991 (the Act) brought about by the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 (No. 45, 1998) which inserted Part 2.11A into the Act.

5. The sections and subsection of Part 2.11A, relevant to Mr. Ardill's case are as follows:

   "SECTION 568 QUALIFICATION FOR AUSTUDY PAYMENT – GENERAL RULE
   568  Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
   (a)       the person satisfies the activity test (see Subdivision B);
   SECTION 569  ACTIVITY TEST
   569(1) General. Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).
   SECTION 569A  UNDERTAKING QUALIFYING STUDY
   569A  For the purposes of this Part, a person is undertaking qualifying study if:
   (a)       the person:

   (i)        is enrolled in a course of education at an educational institution;  or

   (ii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted;  or

   (iii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted;  and

   (b)the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B);  and

   (c)the person is a full-time student or a concessional study-load student in respect of that course (see sections 569C and 569D);  and

   (d)the person satisfies the progress rules (see sections 569G and 569H)."

1. The Griffith University Academic Calendar for 1998 was not made available to the Tribunal but the Academic Calendars for 1999 and 2000 were.  The 1999 Calendar shows "Summer Vacation November 22 – February 2000"  The 2000 Calendar shows "Summer Vacation November 20 – February 2001".

2. The short point in this case is whether or not Mr. Ardill satisfied the "activity test" of section 569 of the Act, after 20 November 1998. That is, throughout the period 20 November 1998 to 31 December 1998, was he undertaking qualifying study? The fact is that during the period under review he was not doing any study at all in relation to the course he had just completed. He was no longer doing the course.

3. It was submitted on behalf of the applicant that Mr. Ardill was still enrolled in the course after the examination period and that he remained enrolled in the course until 31 December 1998, or at least until his results were released.

4. There is no indication from Griffith University as to when that body regards a student as having ceased to be enrolled in a course.

5. The intent of student assistance legislation is to provide financial support for needy students while they are doing their study.  It is provided so that they may concentrate on their studies without the distraction of having to find employment to survive.  Once the course of study has been completed and the student is no longer undertaking study, there seems to be no rational basis for providing student assistance.  The ex-student should then enter the job market or, if entitled, receive unemployment benefits.

6. The Tribunal finds that Mr. Ardill did not satisfy the "activity test" pursuant to section 569 of the Act after the last day of the examination period, namely Friday 20 November 1998 and consequently was not entitled to Austudy living allowance after 20 November 1998.

7. The decision under review is affirmed.

   I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date/s of Hearing  30 March 2000
   Date of Decision  7 April 2000       
   Applicant  Ms. G. Bolton, Welfare Rights Centre
   Respondent  Mr. N. Foster, departmental advocate