Campbell and Secretary, Department of Employment and Workplace Relations
[2006] AATA 80
•2 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 80
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/199
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINE CAMPBELL Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date2 February 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Pensioner Education Supplement – undertaking qualifying study – approved course of education or study – Bachelors degree converted to Masters degree – decision affirmed
Social Security Act 1991 ss 1061PA, 1061PB, 1061PC
Student Assistance Act 1973 s 5D
REASONS FOR DECISION
2 February 2006 Senior Member L Hastwell 1. Ms Campbell (the applicant) is a mature age student. During the relevant period she was in receipt of Parenting Payment (Single).
2. The applicant completed her Bachelor of Arts degree from Monash University in or around 2001, however it did not qualify her to teach primary studies. She then applied for and was offered a place in the Bachelor of Primary Education Studies course offered by Charles Sturt University. After her application had been accepted, and before she commenced her studies, that course was converted to a Master of Teaching programme. She accepted a place in that course, commencing her studies in 2005.
3. The applicant lodged a claim for Pensioner Education Supplement (PES) with Centrelink on 6 January 2005. Her claim was rejected on 27 January 2005 on the basis that the course that she was undertaking was not an approved course for payment of PES. Upon review, that decision was affirmed by an Authorised Review Officer on 26 April 2005 and then by the Social Security Appeals Tribunal (the SSAT) on 24 June 2005.
4. The applicant contends that she should be eligible for PES as she is not qualified to teach without obtaining the relevant qualification. She contends that, despite its name, the Master of Teaching course should be treated as a pre-entry or pre-service course and equated with a Bachelor degree.
relevant legislation
5. The relevant legislation is found in the Social Security Act 1991 (the Act)
6. Section 1061PA of the Act provides as follows:
“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.
Note: Division 2 sets out situations in which pensioner education supplement is not payable even if the person qualifies for it.”
7. There is no issue with respect to the criteria set out in ss 1061PA(b), (c) and (d) of the Act. The issue arises from s 1061(a) of the Act.
8. “Undertaking qualifying study” is defined in s 1061PB(1) of the Act as follows:
“(1)For the purposes of this Part, a person is undertaking qualifying study if the Secretary is satisfied that:
(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 1061PC); and
(c)the person is a full-time student or a concessional study-load student in respect of that course (see sections 1061PD and 1061PE); and
(d)the person satisfies the progress rules (see sections 1061PH and 1061PI).”
9. The only issue arising under this provision is under s 1061PB(1)(b) of the Act.
10. To qualify as an approved course of education or study pursuant to s 1061PB(1)(b), s 1061PC provides as follows:
“For the purposes of paragraph 1061PB(1)(b), a course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.”
11. Section 5D of the Student Assistance Act1973 gives the Minister power to determine whether a course of study or instruction is a secondary course or a tertiary course for the purposes of that act.
12. Determination No 2002/1 dated 17 October 2002 (the Determination) sets out the relevant approved courses. Schedule 2 of the Determination sets out what qualifies as tertiary courses for the purposes of the Student Assistance Act 1973. The relevant sections of that Determination are as follows:
“Interpretation
4. In this Determination, unless the contrary intention appears:
…
"Masters qualifying course" means a bridging course which gives participants the qualifications necessary for entry into a Masters degree course, but does not include any course which forms part of a Masters degree course;
…
Tertiary Courses
7. (1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.
(2) For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.
SCHEDULE 2 – TERTIARY COURSES
Column 1 – Course Column 2 – Education institution
…
Undergraduate or postgraduate Higher education institution
accredited higher education coursewhich is at the level of: Registered training organisation
associate degree;
associate diploma;
diploma;
advanced diploma;
Bachelor degree;
graduate degree;
graduate certificate;
graduate diploma;
NBCOTP funded course;
Master’s qualifying course; or
a combined course which leads
to two of these awards,
and is classified as such in the
institution’s handbook and is not:
a secondary course specified inSchedule 1; or
a course at the level of a Masters
or Doctoral degree unless otherwisespecified in Schedule 2.
…
Integrated undergraduate/postgraduate Higher education institution
course leading to a Masters degree,
excluding that year or years of the
integrated course in excess of
the normal full-time duration of
the related undergraduate accredited
higher education course or related
undergraduate and postgraduate
accredited higher education courses
that are not at the Masters level.
(That is, excluding the year or yearsrelating to study at the Masters level).
…”
issues for determination
13. The sole issue to be determined in this case is whether the course of study that is being undertaken by the applicant is a tertiary course within the meaning of Schedule 2 of the Determination and therefore qualifies as an approved course of study for the purposes of attracting PES.
hearing
14. The applicant appeared by telephone at the hearing. The T Documents were received into evidence. No other witnesses were called by either the applicant or the respondent (the Department).
15. The applicant explained to the Tribunal that she was studying to qualify herself to teach in primary education, and in particular she was interested in working as a full-time relief teacher in the community. Her Bachelor of Arts degree that she obtained in or around 2001 was not sufficient to qualify her as a teacher and so she applied for a place in the Bachelor of Primary Education Studies course at Charles Sturt University, to gain qualification as a teacher. At all times she was studying by distance education mode.
16. When the applicant originally applied for the course it was termed a Bachelor of Primary Education Studies. It was shortly thereafter restructured to a Master of Teaching degree. She agreed to allow her application for the Bachelors course to be treated as an application for the Masters course into which she was then accepted.
17. In 2005 the applicant commenced her studies. She lodged an application for PES at Centrelink in January 2005, and she also applied for the pensioner education entry payment, fully expecting that she was eligible for these allowances. She was not advised at the time that she may not be eligible for PES and the allowance (a one off payment) as she understood that PES would have been payable with respect to the Bachelors degree that she had originally applied for.
18. She was distressed to discover subsequently that because of the restructuring of the course it no longer qualifies as a course that attracts payment of PES.
19. She explained to the Tribunal that this decision created considerable financial hardship for her which is ongoing. She said that a major expense for her as a distance education student was the postage required in sending books and material back and forth. She was reliant on a payment such as PES to assist with those expenses. She has been forced to withdraw from a number of subjects for financial reasons, and currently has $109 outstanding in fines for her failure to return books on time at different times.
20. The applicant will now not finish her degree until June 2007. Her youngest child turned 16 at the end of August 2005, which resulted in a reduction in her Parenting Payment, and she is now required to find a job as well as maintain a certain required load of study.
21. She asked the Tribunal to treat her current course as a qualifying course for PES as she argued that it was a pre-service course and not a true Masters course.
22. The Tribunal had regard to a letter contained at T1, being the applicant’s application for review and the matters set out therein. The Tribunal also noted a letter from Professor Meyenn, Dean of the Faculty of Education at Charles Sturt University dated 6 October 2005, in which he refers to the course as a pre-service teaching course. The Tribunal noted that in the documents there was evidence of information provided by the Course Co-ordinator to the Authorised Review Officer which further elaborated on the nature of the course being undertaken by the applicant.
23. The Department contended that Masters degrees were specifically excluded from the category of approved courses under the Student Assistance Act1973 and therefore it was a simple case of the applicant not being eligible under the terms of the legislation.
24. The Department referred to the fact that the Authorised Review Officer had spoken to Dr Peter Wilson, the Charles Sturt University Course Co-ordinator, who confirmed that the relevant course was a post-graduate course which should be preceded by 2-3 years of under-graduate study in another degree. There is no clear exit point at diploma graduate level. Dr Wilson had confirmed that all subjects in the course are considered to be at Masters level.
findings of fact
25. The applicant has a Bachelor of Arts degree which she obtained from Monash University in 2001.
26. The applicant wants to be a teacher and a Bachelor of Arts degree does not qualify her for primary teaching. Another qualification was required to obtain employment in that field.
27. The applicant applied to do a Bachelor of Primary Education Studies by distance education mode from Charles Sturt University in 2003. Before she commenced that course she was advised that the intended course was to be replaced by a Master of Teaching at the beginning of 2005. She was asked to indicate whether she wished to enrol in that course. She was also advised that there would be no further intake into the Bachelor of Primary Education Studies course, thereby excluding her from undertaking that course in any event.
28. The applicant returned the appropriate forms to Charles Sturt University in June 2004 indicating that she wanted her application for a Bachelor of Primary Education Studies to be treated as an application for the replacement course of Master of Teaching. She was offered a place in that course and she accepted. Her studies commenced in 2005.
29. The Masters degree was a restructured course and not identical to the Bachelors degree that it replaced. It is a post-graduate course and includes several subjects now considered essential by accreditation boards.
30. The applicant lodged a claim for PES on 6 January 2005, which was rejected.
31. The course that the applicant commenced is not an integrated under graduate/post-graduate course leading to a Masters degree. It has been confirmed by the Course Co-ordinator that it is a Masters degree in its own right with no exit point below Masters level. It is defined at T24 in a document generated by Charles Sturt University as being a pre-service primary teacher training program, which can be studied over 18 months full-time or 3 years part-time and only by distance education.
32. Charles Sturt University states that the Masters course is a post-graduate course and a Masters degree.
consideration
33. Schedule 2 of the Determination defines a tertiary course for the purposes of s 1061PC of the Act. In that set of definitions the following passage is relevant for the purposes of the Tribunal’s decision in this case:
“a combined course which leads
to two of these awards,
and is classified as such in the
institution’s handbook and is not:
a secondary course specified inSchedule 1; or
a course at the level of a Masters
or Doctoral degree unless otherwisespecified in Schedule 2.”
34. At first glance, the punctuation and phraseology used in that portion of the Determination could lead to an interpretation that “a course at the level of a Masters or Doctoral” is included in the definition. However, an alternative interpretation, and that put forward by the Department, is that those words are part of a larger paragraph which should be read as follows:
“a combined course which leads to two of these awards, and is classified as such in the institution’s handbook and is not: a secondary course specified in Schedule 1; or a course at the level of a Masters or Doctoral degree unless otherwise specified in Schedule 2.”
35. The Tribunal looked at Schedule 2 as a whole, and it appears clear that the definition of “tertiary course” intends to exclude what the Tribunal will refer to as pure Masters studies. For instance, in the last portion of Schedule 2 there is a reference to integrated courses that lead to a Masters degree. That reference is as follows:
“Integrated undergraduate/postgraduate
course leading to a Masters degree,
excluding that year or years of the
integrated course in excess of
the normal full-time duration of
the related undergraduate accredited
higher education course or related
undergraduate and postgraduate
accredited higher education courses
that are not at the Masters level.
(That is, excluding the year or yearsrelating to study at the Masters level).”
Study at Masters level is specifically excluded.
36. The Tribunal is satisfied that the Department’s interpretation of the schedule is correct, and that the degree that is being undertaken by the applicant is excluded from the definition of “tertiary course” as defined by Schedule 2 in that it is a degree at Masters level. It follows that the applicant is therefore not undertaking “qualifying study” for the purposes of s 1061PA of the Act in that the course that she is undertaking is not an approved course for the purposes of s 1061PC of the Act.
37. The Tribunal had some sympathy for the applicant’s position in that she applied for a Bachelors degree course which would have qualified for student education assistance, but that course was then restructured and became a Masters degree course. She was still left with no option but to do that course as the undergraduate course that would have qualified her for teaching was no longer available. This has left her in a position where progress to completion of her course has been slowed and she has suffered considerable financial difficulties.
38. Nevertheless, the Tribunal is satisfied that on the basis of the law as it currently stands the decision under review is a correct decision and the Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ..........J Coulthard...............................................
AssociateDate of Hearing 28 November 2005
Date of Decision 2 February 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms J Powell
Solicitor for the Respondent Centrelink Legal Services Branch
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