Budd and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 963

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3010

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Pamela Budd

Applicant

And Sec, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date24 November 2010

PlaceSydney

Decision The decision under review is AFFIRMED.  

....................[sgd]..................

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY:  Application for payment of pensioner education supplement.  Not in fact undertaking study.  Proposed course of study not qualifying study as Applicant is holder of a Masters Degree.  Decision to refuse claim affirmed.

LEGISLATION

Social Security Act 1991, Ss 23(1), S 1061PA, 1061PB.

Student Assistance Act 1973, Ss3(1)

Determination No.2002/1 under the Student Assistance Act 1973; paragraph 5

University of Sydney Act 1989

REASONS FOR DECISION

24 November 2010 M D Allen, Senior Member            

1.      By application made 20 July 2010, the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”), which decision affirmed a prior determination, that the Applicant was not entitled to the payment of pensioner education supplement.

2.      At the request of the Applicant, this matter was dealt with “on the papers” without the appearance of either party to the review.

3. The criteria for the payment of Pensioner Education Supplement are set out in Section 1061PA of the Social Security Act 1991 (“SSA”), namely:

“A person is qualified for a pensioner education supplement if the person:

(a)  is undertaking qualifying study (see Subdivision B); and
(b)  is receiving a payment attracting pensioner education supplement (see Subdivision C); and
(c)  is of pensioner education supplement age (see Subdivision D); and
(d)  meets the residency requirements under Subdivision E.”

4. In its Statement of Facts and Contentions, filed with the Tribunal on 21 October 2010, the Respondent conceded that the Applicant met the criteria in paragraphs (b), (c) and (d) of Section 1061PA SSA.

5.      The Applicant lodged a claim for Pensioner Education Supplement with the Centrelink office at Maroubra, New South Wales, on 8 May 2010.  In that form she stated that the course she proposed to undertake was a Graduate Diploma in Media Practice.

6.      Accompanying that application was a document from the Universities Admissions Centre (“UAC”) headed “UAC Apply-by-Web Postgraduate Confirmation of Application”.  That document revealed that the Applicant holds, and held at the time her claim was made, a Masters degree in the Faculty of Arts from the University of Sydney.

7. Subsection 1061PB(2) SSA states:

“A person is not undertaking qualifying study if the person:

(a)  is employed on a full‑time basis as an apprentice or trainee under an industrial instrument or the National Employment Standards, and has a training agreement (however described) with a training authority (by whatever name called) of a State or Territory; or

(b)  has completed a course for:

(i)  a degree of Master or Doctor at an educational institution; or
(ii)  a qualification at a foreign institution that is, in the Secretary's opinion, of the same standing as a degree of Master or Doctor at an educational institution.”

8. Educational Institution is defined in Ss23(1) SSA as follows:

“ ‘educational institution’ means an education institution within the meaning of subsection 3(1) of the Student Assistance Act 1973.”

9. Subsection 3(1) of the Student Assistance Act 1973 (“SAA”) defines an “education institution” as:

“(a)  a higher education institution; or
(b)  a technical and further education institution; or
(c)  a secondary school; or

(d)  any other institution (including an educational institution), authority or body, that is in Australia and that, in accordance with a determination by the Minister, is to be regarded as an education institution for the purposes of this Act.”

10. Determination No.2002/1 made under subsections 3(1) and 5D(1) SAA states at paragraph 5(1):

“For the purposes of the Act, the following are regarded as education institutions:

(a) a ‘higher education institution’ being an institution that is established under Commonwealth, State or Territory government legislation as a higher education institution or is registered by the relevant State or Territory higher education recognition authority.”

11.     The University of Sydney is established under the University of Sydney Act 1989 and is obviously a higher education institution. Therefore the University of Sydney is an education institution under Ss3(1) of the SAA and an educational institution pursuant to Ss23(1) SSA.

12. As the Applicant holds a Masters degree from an educational institution, namely the University of Sydney, in undertaking a Graduate Diploma in Media Practice the Applicant would, pursuant to Ss1061PB(2) SSA, not be undertaking qualifying study.

13. In any event, in her Application for Review, the Applicant states that she was in fact prevented from enrolling in the course by the university. I cannot see how the Applicant can qualify for the payment of Pensioner Education Supplement when paragraph (a) S1061PA SSA requires that to qualify for that payment she must be undertaking study.

14.     The decision under review is AFFIRMED.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .....................[sgd]....................................
  K. Lynch, Associate

Date of Hearing on the Papers      19 November 2010
Date of Decision        24 November 2010