Cordaro and Secretary, Department of Family and Community Services

[2005] AATA 909

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/230

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		LEONARD CORDARO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date19 September 2005

PlaceSydney

Decision The decision under review is set aside and the matter is remitted to the Secretary for reconsideration with the recommendation that the final 12 months of Mr Cordaro’s Master of Law and Legal Practice course be approved by the Secretary for inclusion as an activity in his Preparing for Work Agreement.

..........................................................

Ms N Bell   Senior Member

SOCIAL SECURITY – Newstart Allowance – Preparing for Work Agreement – Terms of Agreement – Applicant Submitted that Master of Law and Legal Practice Course Ought to Have Been Made Requirement of Preparing for Work Agreement – Respondent Contended Applicant Was Not Required to Complete Course  – Nature of Course Comparable to Those Considered in Guidelines – Completion of Course Required Given Applicant’s Chosen Vocation – Decision Under Review Set Aside and Remitted for Reconsideration.

Social Security Act 1991sections 593, 604, 606, 613

Guide to Social Security Law 3.2.8.110 Approved Activity - Study

REASONS FOR DECISION

19 September 2005 Ms N Bell, Senior Member

1.      Mr Cordaro was enrolled as a full-time student in the Masters of Law and Legal Practice course (MLLP) at the University of Technology, Sydney (UTS).  He commenced that course in 2002, and completed the course in July 2005.  He received Youth Allowance until 2003 when it was cancelled by Centrelink on the basis that he was no longer undertaking “approved study”.  That decision was ultimately affirmed by this Tribunal on 24 December 2004.

2.      On 29 September 2004, Mr Cordaro claimed and was granted Newstart Allowance.  He entered into a Preparing for Work Agreement which had a number of requirements for job searching.  At this time Mr Cordaro was still a full-time student. On 15 October 2005, he lodged an application for approval of the remaining term of his MLLP course so as to include the course as a requirement of his Preparing for Work Agreement.  That application was rejected.  On 12 November 2004, his Newstart Allowance was cancelled on the basis that he was a full-time student.  The decision to cancel Newstart Allowance was affirmed by an Authorised Review Officer (ARO) in 11 November 2004 and by the Social Security Appeals Tribunal (SSAT) on 31 January 2005.

3.      Mr Cordaro contended he should have been paid Newstart Allowance because his course was appropriate for approval and inclusion in his Preparing for Work Agreement.

4.      The Respondent contended that Newstart Allowance is not payable to a full-time student except where a person is required to undertake a course.  The Respondent contended that Mr Cordaro’s Preparing for Work Agreement did not include that requirement and it was appropriate that it did not, because Newstart Allowance is not intended as a payment to students undertaking a higher degree.

the issues and the legislation

5. Section 593 of the Social Security Act 1991 (the Act) requires a person, for qualification for Newstart Allowance, to satisfy the Activity Test (synonymous with a Preparing to Work Agreement) or to be made exempt from it. Section 604 of the Act provides a person may be required to enter into a Newstart Activity Agreement and section 606 provides for a range of activities, including vocational training, a person may be required to undertake under an Activity Agreement. Section 606 also provides for an activity to be approved by the Secretary. Section 613 of the Act provides that Newstart Allowance is not payable to full-time students except where a course is undertaken under a Newstart Activity Agreement, or the Secretary has required the person to undertake the course, or the student has deferred the course.

6. There is no dispute that Mr Cordaro’s Preparing for Work Agreement does not include his MLLP course. Nor is there any dispute that the Secretary had not required Mr Cordaro to undertake vocational training or that Mr Cordaro had deferred his course. This attracts the operation of section 613 to preclude Mr Cordaro from payment of Newstart Allowance.

7.      However, Mr Cordaro contended that his course should have been included in his Activity Agreement as an approved activity.

8. Given the term of sections 606 and 613 of the Social Security Act, and the absence of approval by the Secretary of Mr Cordaro’s MLLP course from the terms of his Preparing for Work Agreement, the only issue for me to consider is whether Mr Cordaro’s application to have his course approved by the Secretary for inclusion as an activity under his Newstart Allowance Activity Agreement should have been granted.

9. The Respondent also submitted that the Tribunal’s power, on review, is limited by section 150 of the Social Security Administration Act 1999, which provides that the SSAT may only affirm or set aside and send back with recommendations, a decision under section 606 of the Social Security Act 1991 concerning the terms of a Newstart Allowance Activity Agreement. The Respondent submitted that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, this Tribunal is similarly limited in its power.

10.     I have had regard to the decision of the Full Federal Court in Walker v Secretary Department of Social Security (75 FCR 493). In light of that decision, I consider the Respondent’s submission to be correct.

evidence and submissions

11.     Mr Cordaro gave the evidence that he completed a Bachelor of Arts (Comm.) at Charles Sturt University in 2001.  He commenced his MLLP course in 2002 and finished in July 2005.  Mr Cordaro did not dispute that he signed a Preparing for Work Agreement on 29 September 2004 and that the agreement does not include the MLLP course as a requirement.  He described his attendances at Centrelink Offices at Haymarket and Leichhardt, applying for and being granted Newstart Allowance and applying for approval of his course for inclusion in his Preparing for Work Agreement.

12.     Mr Cordaro drew my attention to the decision of Senior Member Lindsay and his earlier application to the Tribunal in respect of the cancellation of his Youth Allowance, and in particular to paragraphs 24 to 27 of that decision in which the Senior Member found the MLLP course to be an integrated Masters course leading to a Masters degree.

13.     Mr Cordaro described the course, and this is reflected in Senior Member Linsday’s decision, as being comprised of core subjects in first two years of study, one year of Masters elective subjects, then six months of practical legal training.  It is clear, and was found by the Senior Member, that, at the conclusion of the core subjects undertaken in the first two years of the course, a person is eligible to be granted a Graduate Diploma in Law.  It was Mr Cordaro’s evidence that a person cannot, with a Graduate Diploma in Law, proceed to undertake the practical legal training course necessary for admission as a legal practitioner.  Mr Cordaro also provided documents from the UTS Handbook and from the Legal Practitioners Admission Board which show that the Graduate Diploma in Law does not qualify the person for admission as a legal practitioner.  I accept this evidence.

14.     Both parties directed my attention to the “Guide to the Social Security Law” which contains the policy applied by administrators in relation to relevant provisions.  The Guide provides, relevantly:

“3.2.8.110 Approved Activity – Study

Summary

Both full-time and part-time study may be included as an approved activity in a PFWA (1.1.P.510) for the purpose of fulfilling the activity test for jobseekers receiving NSA.

Newstart allowance

NSA provides a safety net for people who are unemployed and looking for suitable work. NSA is not intended as a payment for students and recipients are generally not able to undertake full-time study, but should claim YA or Austudy. However, there are some circumstances under which full-time study can be approved, as an activity for inclusion in their PFWA for NSA recipients. These are where the customer:

·Is undertaking a full-time vocational short course of less than 12 months duration, or

·Has less than 12 months of full-time study remaining to complete an undergraduate course, and are not eligible for another payment, or

·Has claimed ABSTUDY (3.2.1.20).”

…

Masters

It is not intended that approval should be given to allow a person on NSA to complete a higher degree, such as a Doctor of Philosophy or most Masters degrees.

However, some undergraduate courses include a Masters component essentially as part of an undergraduate course.

Examples include (but are not limited to) some physiotherapy and psychology courses.

With these courses, the undergraduate degree cannot be considered complete until the student has undertaken the Masters component and they will be unable to work in their professional field without it.  This means that a person must be UNABLE to use their undergraduate degree on its own (without the Masters component).  In these cases, Masters study can be included as part of a PFWA where the student has less than 12 months of full-time study remaining.

15.     Mr Cordaro submitted there is no difference between his MLLP course and the psychology course referred to in the Guide.  He claimed that a person can leave the psychology course after 3 years with a degree, just as a person may leave the MLLP course after 2 years with a Graduate Diploma.

16.     Ms Green, for the Respondent, referred to the UTS Handbook entry for the Graduate Diploma in Law which states:

“Graduates typically work as managers, administrators in government or business in areas that would benefit from a detailed understanding of the Common Law legal system.”

17.     She submitted, on this basis, that, as a person with a Graduate Diploma in law is able to obtain work of the kind referred to above, the course has vocational value and should not be regarded in the same way as is the Master of Psychology course referred to in the Guide.

18.     I do not agree.  It is clear, from his completion of the Practical Legal Training Course that Mr Cordaro intended to obtain qualifications that would enable him to be admitted as a solicitor.  It is also clear that the Graduate Diploma in Law would not qualify him for such admission and therefore had no vocational value for him.  The value for Mr Cordaro, was in completion of the entire integrated MLLP course, without which he could not be admitted as a solicitor.  In the words of the Guide, Mr Cordaro would be “UNABLE to use (his) undergraduate degree on its own (without the Masters component)”.

19.     On this basis, I consider that the application by Mr Cordaro for approval of the remainder of his MLLP course for inclusion as a term of his Preparing for Work Agreement is supported by the Guide.  I consider that it should have been approved by the Secretary for such inclusion.  Had it been so included, Mr Cordaro’s continued study would have been in compliance with the terms of his Agreement, he would have satisfied the Activity Test and he would have been eligible to receive Newstart Allowance.

20. I remain mindful of the limitations placed on me by section 150 of the Social Security Administration Act 1999 and section 43 of the Administrative Appeals Tribunal Act 1975.  Consequently, I may only set aside the decision under review and send the matter back to the Secretary for reconsideration with the recommendation that the final 12 months of Mr Cordaro’s Master of Law and Legal Practice course be approved by the Secretary for inclusion as an activity in his Preparing for Work Agreement.

decision

21.     The decision under review is set aside and the matter is remitted to the Secretary for reconsideration with the recommendation that the final 12 months of Mr Cordaro’s Master of Law and Legal Practice course be approved by the Secretary for inclusion as an activity in his Preparing for Work Agreement.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .........[Linda Blue]....................................
  Associate

Date of Hearing  3 August 2005
Date of Decision  19 September 2005
Solicitor for the Respondent     Centrelink, Legal Services