Department of Social Security, Secretary v Le-Yen Thanh Le
[1991] FCA 78
•15 MARCH 1991
Re: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
And: LE-YEN THANH LE
No. V G239 of 1990
FED No. 78
Social Security
100 ALR 422
13 AAR 208/28 FCR 396
22 ALD 582
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)
CATCHWORDS
Social Security - application for special benefit - husband in receipt of dependant spouse allowance under AUSTUDY scheme - whether dependant spouse allowance is a payment in respect of the applicant for benefit.
Social Security Act 1947, ss. 129, 136
Student Assistance Act 1973, ss. 9, 10
Student Assistance Regulations, r. 41
HEARING
MELBOURNE
#DATE 15:3:1991
Counsel for the respondent: Mr Nicholas Green
Solicitor for the applicant: Australian Government Solicitor
Counsel for the respondent: Dr J.A. Scutt
Solicitor for the respondent: Legal Aid Commission
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal (the AAT) involving the construction of section 136(1) of the Social Security Act 1947.
The facts are not in dispute. The respondent to the appeal had been a tertiary student but deferred her studies in February 1989 because of illness associated with pregnancy. On 3 April 1989 she married one Kiet Anh Nguyen who was then a student in receipt of AUSTUDY allowance amounting to $317.40 per fortnight, being living allowance of $232 plus dependant spouse allowance of $85.40.
The respondent applied to the Department of Social Security for the grant of a special benefit pursuant to section 129(1) of the Social Security Act but the applicant refused to grant same on the ground that the respondent's husband was in receipt of a dependant spouse allowance in respect of her under a prescribed educational scheme. The Social Security Appeals Tribunal set aside the applicant's decision and decided that the respondent be paid special benefit from the date of claim at a rate equivalent to the difference between the full rate of AUSTUDY paid to her husband and the full married rate of unemployment benefit. The period of time for which the benefit was sought was 1 May 1989 to 8 January 1990. The applicant sought a review of the decision of the Social Security Appeal Tribunal's decision in the AAT and the latter tribunal affirmed the earlier tribunal decision. The applicant now appeals from the decision of the AAT. Such an appeal may only be brought on a question of law (AAT Act 1975, s.44(1)).
The notice of appeal identifies the questions of law which arise as:
(1) Whether a person in respect of whom a payment is made under a
prescribed educational scheme is entitled to receive a special benefit pursuant to section 129 of the Social Security Act 1947 ("the Act").
(2) Whether a person in respect of whom a payment is made under a
prescribed educational scheme is deemed to be in receipt of a sufficient livelihood as prescribed in section 129(1)(c) of the Act.
(3) Whether the expression "the person" as contained in section
136(1) of the Act refers to the direct recipient of a payment under a prescribed educational scheme or may include a person in respect of whom such payment may be made, not being the direct recipient thereof.
The notice of appeal refers to the following grounds of appeal:
(a) Receipt by the respondent of a spouses benefit pursuant to a
prescribed education scheme as defined by section 136(4) of the Act is a bar to the receipt of a special benefit pursuant to section 129 of the Act.
(b) The Tribunal erred in finding that it was open to it to
conclude that the amount paid by the applicant in respect of the respondent as a spouse of the recipient of a payment under the AUSTUDY scheme did not provide a sufficient livelihood for the respondent pursuant to section 129(4) of the Act.
(c) The payment made in respect of the respondent under the AUSTUDY
scheme should have been a bar to the receipt of a special benefit, it being the amount deemed by Parliament to be a sufficient livelihood.
(d) The Tribunal erred in not holding that the applicant was,
pursuant to section 136(1) of the Act a person in respect of whom a payment had been made under a prescribed educational scheme and was thereby not entitled to receive a special benefit payment pursuant to section 129 of the Act.
There are some difficulties with these grounds as expressed. Ground (a) suggests that the respondent was in receipt of a spouse's benefit under a prescribed education scheme. This is not the case, and indeed begs the whole question of the appeal, namely whether the payment of a spouse's benefit to her husband amounts to a payment in respect of the respondent. Ground (b) suggests that the Tribunal found that the applicant is responsible for the payment of allowances under the AUSTUDY scheme, which is not the case. But nothing turns on that point. Ground (c) suggests that there is some specific enactment deeming the payment of living allowance under the AUSTUDY scheme to provide a sufficient livelihood for the purpose of section 129. There is no such provision in any statute. Ground (d) does however concisely state the issue which was argued on this appeal.
In view of the conclusion I have reached in relation to the construction of section 136(1) of the Act, it is unnecessary to consider whether it was open to the Tribunal to conclude that the respondent was unable to earn a sufficient livelihood for herself and her dependants.
The provisions of the Social Security Act which are relevant to this appeal are found in sections 129 and 136. The former section provides that the Secretary may in his discretion grant a special benefit to certain persons identified in paragraphs (a), (b) and (c) of subsection (1). One criterion for granting a special benefit is a finding that the applicant is unable to earn a sufficient livelihood for himself and his dependants.
For present purposes it can be assumed that nothing in section 129 disentitled the respondent to a grant of a special benefit.
Section 136 bears the heading "Benefit Not Payable to Full-time Students". At the time the respondent applied for special benefit (namely on 1 May 1989) the section provided:
136. (1) Subject to subsection (2A), a benefit is not payable to a
person (not being an eligible person) in respect of any period during which -
(a) a payment in respect of the person has been or may be made under a prescribed educational scheme; or
(b) the person is engaged, otherwise than in compliance with a requirement made of the person under section 170, in a course of education on a full-time basis.
(2) For the purposes of paragraph (1)(b), a person who is enrolled in a course of education shall be taken to be engaged in that course from the day on which the person commences that course until the person completes or abandons that course, including during periods of vacation but not including during periods of deferment.
(2A) Where:
(a) a person may commence a course of education on a full time basis; and
(b) a payment may be made to or in respect of the person under a prescribed educational scheme; the Secretary may decide that a benefit may be granted to the person or may continue to be payable to the person but, if the person commences that course, the benefit ceases to be payable on the day on which the person commences that course.
(3) In subsection (1), "eligible person" means a person:
(a) who is under the age of 16 years; and
(b) to whom subsection 118(8) would apply if:
(i) the person had attained the age of 16 years; and
(ii) ", and for a continuous period of at least 6 weeks has not lived," were omitted from paragraph 118(8)(a).
(4) In this section, "prescribed educational scheme" means any of the following schemes:
(a) the AUSTUDY scheme;
(b) the Aboriginal Study Assistance Scheme to the extent that that scheme applies to full-time students;
(c) the Aboriginal Secondary Assistance Scheme;
(d) the Post-Graduate Awards Scheme;
(e) the Veterans' Children Education Scheme;
(f) the Assistance for Isolated Children Scheme;
(g) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance;
(h) the scheme to provide an allowance known as the Maintenance Allowance for Refugees.
The section was amended by the Social Security and Veterans' Affairs Legislation Amendment Act (No. 4) 1989 (Act No. 164 of 1989) but for the purpose of this appeal the amendments have no relevance.
In paragraph 10 of its reasons for decision the AAT identified the focus of the application, posed what it thought was the relevant question and proceeded to answer that question in these terms:
The real focus of this application was and should be on s.136.
Can it be said that "the person" referred to in s.136(1) and to
whom special benefit is not payable is the same "person" referred
to in s.136(1)(a).
Logically how could it be any other person?With the greatest respect to the Tribunal, it is my view that it asked itself the wrong question. The real issue which called for its attention was whether the dependant spouse allowance paid to the respondent's husband was paid in respect of the respondent. Clearly "the person" referred to in the opening lines of subsection (1) is the applicant for special benefit; equally clearly "the person" referred to in paragraph (a) is the same person; but it is the payment of money under the AUSTUDY scheme in respect of that person which would disentitle that person from receiving a special benefit.
No argument was addressed to me concerning what precisely the AUSTUDY scheme is. The Social Security Act contains no definition of the term nor any other assistance to identify its meaning. It seemed to me during the course of argument, and still does, that one cannot answer the question as to whether a payment is made in respect of a person under a scheme without examining the structure of the scheme itself. When I raised this matter during the course of argument neither counsel was able to provide any assistance. I have therefore conducted my own research.
My first task was to ascertain exactly what is meant by the AUSTUDY scheme. As the Social Security Act provides no assistance in this respect the meaning is in my view uncertain and accordingly I have had recourse to the type of extrinsic material permitted by section 15AB of the Acts Interpretation Act 1901 to assist me in construing the statute.
The Student Assistance Act 1973 originally made provision, inter alia, for the approval of grants of Tertiary Education Assistance under what was known as the Tertiary Education Assistance Scheme (TEAS). The original scheme was modified by amendments contained in the Student Assistance Amendment Act 1986 (Act No. 114 of 1986) when the relevant sections of the principal act were repealed and reenacted in the following form:
PART III - EDUCATION ASSISTANCE
Education Assistance
10. An authorised person may, subject to and in accordance with the
regulations, approve the grant of Education Assistance to a person
who is an Australian citizen or a permanent resident of Australia and
is undertaking, or proposes to undertake, at an education institution-
(a) a course of study or instruction that the Minister has
determined in writing is -
(i) a secondary course for the purposes of this section; or
(ii) a tertiary course for the purposes of this section; or
(b) a part of a course of study or instruction, being a part that
the Minister has determined in writing is -
(i) a part of a secondary course for the purposes of this section; or
(ii) a part of a tertiary course for the purposes of this section.
Benefit under Education Assistance
11. Benefit under Education Assistance granted to a person shall
consist of -
(a) where the person is a full-time student, the payment of such
amount of living allowance as is payable under the regulations in respect of the person or in respect of the person and any dependants of the person; and
(b) the payment of such other allowances, if any, as are payable in
accordance with the regulations.
In moving the second reading of the Student Assistance Amendment Bill 1986 in the Senate on 8 October 1986 the Minister (Senator Ryan) said:
This Student Assistance Amendment Bill 1986 seeks to amend the
Student Assistance Act 1973, which since 1974 has provided the
legislative basis for the tertiary education assistance scheme -
TEAS - and the postgraduate awards scheme. The Bill will not
alter the existing arrangements for postgraduate awards but by
including secondary education in the principal Act will allow for
the introduction of the Government's new age-related student
assistance scheme, Austudy. Austudy, which will replace TEAS, the
secondary allowances scheme, or SAS, and the adult secondary
education assistance scheme, or ASEAS, will provide benefits to
both secondary and tertiary students.
(Hansard, p 955)The Student Assistance Amendment Act 1987 (Act No. 125 of 1987) further repealed and reenacted section 10 of the principal act. For present purposes nothing turns upon the new form of the section. However, the Student Assistance Amendment Act 1989 (Act No. 76 of 1989) again amended the principal act. Relevant changes (which came into force on 1 July 1990) included the substitution of the heading to Part III to read:
"PART III - AUSTUDY SCHEME" ;
the enactment of a new section 9:
"9. The scheme for the provision of benefits under this Part is
referred to as the AUSTUDY scheme." ;
the amendment of section 10 so as to read:
"Education Assistance
10. (1) Subject to and in accordance with this section and the
regulations, an authorised person may grant a benefit under this Part
to a person who:
(a) is an Australian citizen or a permanent resident of Australia;
(b) is enrolled, or proposes to enrol, as a student of an education
institution for that year or that part of that year; and
(c) is undertaking, or proposes to undertake, wholly at that
institution in that year or that part of that year:
(i) a course of study or instruction that the Minister has determined in writing to be a secondary course, or a tertiary course, for the purposes of this section; or
(ii) a part of a course of study or instruction, being a part that the Minister has determined in writing to be a part of a secondary course, or a part of a tertiary course, for the purposes of this section.
(1A) Without limiting the generality of matters that may be
dealt with by the regulations the regulations may:
(a) specify the benefits that may be granted under this Part; and
(b) specify circumstances in which benefits are not payable under
this Part.
(2) Where a person undertaking:
(a) a course of study or instruction; or
(b) a part of a course of study or instruction;
offered by an education institution is required or allowed by that
institution to attend, and attends, for the purposes of that course,
or that part of the course, a place other than that institution (not
being a place in respect of which a determination under subsection
(3) is in force), the person shall, for the purposes of paragraph
(1)(c), be taken to be undertaking that course or that part of the
course wholly at that institution.
(3) The Minister may determine, in writing, that subsection
(2) does not apply in relation to a place, or to a class of places,
specified in the determination.
(4) Where a person is undertaking, or proposes to undertake,
by correspondence with an education institution:
(a) a course of study or instruction; or
(b) a part of a course of study or instruction;
offered by that education institution, the person shall, for the
purposes of paragraph (1)(c), be taken to be undertaking that course,
or that part of that course, wholly at that institution." ;
and the repeal of section 11.
In moving the second reading of the Student Assistance Amendment Bill 1989 in the House of Representatives on 2 March 1989 the Minister said:
The Student Assistance Amendment Bill seeks to make a number of
minor changes to the Students Assistance Act 1973. This Act
provides the legislative basis for Austudy and the postgraduate
awards scheme.
(Hansard, p 374)From the foregoing I am able to conclude that the term the AUSTUDY scheme when used prior to 1 January 1990 referred to the scheme of assistance which operated pursuant to the provisions of sections 10 and 11 of the Student Assistance Act 1973 as amended by the Student Assistance Amendment Act 1986, and that subsequent to 1 January 1990 the term has referred to the scheme authorised by Part III of the principal act as amended by the Student Assistance Amendment Act 1989.
At the time the respondent applied for a grant of special benefit (and indeed throughout all but the final few days for which the Tribunal granted her such benefit) the AUSTUDY scheme operated under legislative authority which provided for the granting of a benefit which (in the case of a full-time student) included:
"the payment of such amount of living allowance as is payable
under the regulations in respect of the person or in respect of
the person and any dependants of the person."
(Student Assistance Act 1973, section 11(a))The payment of assistance pursuant to the Student Assistance Act 1973 at all relevant times was regulated by the Student Assistance Regulations made pursuant to that Act. Since 1 January 1991 new regulations known as the AUSTUDY Regulations have applied but they have no relevance to this appeal.
Regulation 41(3) of the Student Assistance Regulations provided for the payment of living allowance to persons granted assistance in respect of an approved course. Regulation 41(5) provided:
(5) Where living allowance is payable under sub-regulation (3) in
respect of a grantee, or in respect of a grantee and his dependants,
and the grantee has a spouse dependent on the grantee who is not -
(a) a grantee in respect of whom living allowance is payable under
paragraph 11(b) of the Act; or
(b) in receipt of income -
(i) consisting of any amount paid under the Social Security Act (other than family allowance paid under Part X of that Act) or the Veterans' Entitlements Act 1986; or
(ii) from other sources, at a rate exceeding $30 per week, the rate of the living allowance shall be increased by $42.70 per week.
The amount of the "dependant spouse allowance" referred to earlier in these reasons equates to the additional amount of living allowance payable pursuant to regulation 41(5). There is no doubt that this amount was payable to the "grantee", that is the student being assisted, in this case the respondent's husband. The short question in this appeal is whether the additional amount was payable "in respect of" the present respondent. In my view it was and for these reasons.
First, the legislation under which the AUSTUDY scheme operated at the time contemplated the granting of assistance in the form of living allowance in respect both of full-time students and full-time students and any dependants.
Second, the regulations made pursuant to that legislation provided for the payment of living allowance to grantees both in respect of the grantee and in respect of the grantee and his dependants.
Third, the payment of the increased living allowance pursuant to regulation 41(5) is conditional upon the grantee having a spouse dependent upon him.
Having regard to all of these factors it is my view that within the total structure of the AUSTUDY scheme, it can properly be said that the additional living allowance payable under regulation 41(5) was payable to the grantee in respect of the dependant spouse of the grantee. It follows therefore that for the purposes of section 136(1)(a) of the Social Security Act the respondent was at the relevant time a person in respect of whom a payment had been or may be made under a prescribed educational scheme, and thus was a person to whom a special benefit pursuant to section 129 was not payable.
A number of arguments raised by counsel for the respondent during the appeal need to be addressed. It should however be understood that the argument proceeded without any reference to the foregoing material concerning the structure and operation of the AUSTUDY scheme.
Attention was drawn to the heading to section 136 "Benefit Not Payable to Full-time Students". It was not suggested that the heading could affect the construction of the section but it was argued that it indicated the purpose of the section, namely, to disentitle full-time students from the receipt of a special benefit. As paragraph 136(1)(b) specifically refers to full-time students it is not immediately apparent what purpose paragraph (a) would serve if the operation of the section was to be confined merely to full-time students. One suggestion is that it covers the circumstance where a payment is made under a prescribed educational scheme not to the student but to some other person, such as the parent of a minor. (Although not referred to in argument, it is to be noted that section 32 of the Student Assistance Act does make provision for the payment of benefit under the Act to persons determined by the Minister) And indeed, paragraph (a) would disentitle persons in receipt of a payment under a prescribed educational scheme which covers part-time study. In my view the only conclusion open is that two classes of persons are excluded from entitlement to special benefit by section 136(1), namely full-time students (paragraph (b)) and persons in respect of whom payments are made under a prescribed educational scheme, which would include full-time students (whether or not the payment is made to the student direct or to some other person), other students in receipt of a payment under any such scheme and other persons (not being a person who is in receipt of a payment under a scheme) in respect of whom such a payment is made. None of this helps resolve the question of whether in the case of the AUSTUDY scheme the additional living allowance paid under regulation 41(5) of the Student Assistance Regulations is payable in respect of the grantee's spouse.
Nor do I think that any assistance can be derived one way or the other from the terms of subsection 136(2A). In paragraph (b) reference is made to a payment which may be made under a prescribed education scheme "to or in respect of" a person. Subsection (2A) is obviously intended to apply to students about to commence a full-time course and cannot have any bearing upon the question of whether an AUSTUDY spouses allowance is payable in respect of the spouse.
I was referred to a number of authorities dealing with the construction of beneficial legislation and there can be no question as to how this should be approached. Nor is there any doubt that the Social Security Act is of that type. But in the instant case, the resolution of the question of construction can be readily achieved by a proper examination of the available material which leaves no issues in doubt.
On a proper construction of the Act I am left in no doubt that the respondent was a person in respect of whom a payment was made under a prescribed educational scheme and that she was not eligible to receive a special benefit. This conclusion is based upon my understanding of the AUSTUDY scheme as it applied during the period in respect of which special benefit was sought. My findings have no necessary application to any of the other prescribed educational schemes and I express no opinion (because it is unnecessary to do so) as to whether the same conclusion would be open upon the proper construction of the Student Assistance Act and the AUSTUDY Regulations as they now apply.
I would allow this appeal. The decision of the AAT will be set aside and in lieu thereof there will be an order allowing the applicant's appeal from the Social Security Appeals Tribunal and reinstating the decision of the applicant.
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