Ellis and Secretary to the Department of Family and Community Ser Vices

[2003] AATA 1113

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1113

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/674

GENERAL ADMINISTRATIVE DIVISION

Re:         BROOKE ELIZABETH ELLIS

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             7 November 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - eligibility for newstart allowance - activity test - full-time student - two‑year Master’s degree

Social Security Act 1991 ss593(1), 601(1), (2), 613(1), (2)

Green v Daniels (1977) 13 ALR 1

REASONS FOR DECISION

7 November 2003  G.D. Friedman, Member

1.      This is an application by Brooke Elizabeth Ellis (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 16 May 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 21 February 2003 to refuse the applicant’s application for newstart allowance.

2.      At the hearing of this matter by telephone on 31 October 2003 Mr D. Walsh, solicitor, SRC Legal Service, La Trobe University, represented the applicant and Mr M. Todd, a Centrelink advocate, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T16).

BACKGROUND

4.      In 2003 the applicant enrolled in a two-year full-time Master of Clinical Psychology degree (by coursework) at La Trobe University.  In January 2003 she applied for newstart allowance.  On 3 February 2003 a Centrelink officer informed the applicant that her application was unsuccessful.

5.      On 21 February 2003 an authorised review officer affirmed the decision on the grounds that the applicant was unable to satisfy the activity test because she was a full-time student.  On 17 March 2003 the applicant sought review of the authorised review officer's decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 24 June 2003 for review of the decision.

EVIDENCE

6.      In oral evidence the applicant explained that she has completed an undergraduate degree in psychology and is required to study for at least two more years to obtain her qualifications to practise as a clinical psychologist..  She said that her course involves twenty contact hours per week plus research and seminar requirements and placements, in which she deals with clients under supervision.  The applicant told the Tribunal that under the terms of her course she is not permitted to undertake employment of more than eight hours per week, and may not take more than one month’s leave per year from her studies.

7.      The applicant stated that she had been granted youth allowance in October 2002 but this was discontinued in December 2002, and Centrelink had informed her that she was ineligible for youth allowance during her Master’s degree course.  She has used all her savings and has to repay a student loan.  She lives at home with her parents, who provide food and accommodation, but she relies on friends to lend her money for necessities such as transport and living expenses.  The applicant told the Tribunal that she is unable to support herself because of the limitation of eight hours’ work per week and the demands of her course.  She stated that she is being penalised because her current course is compulsory for registration as a clinical psychologist and she would be eligible for youth allowance if she was studying another undergraduate or postgraduate degree.

CONSIDERATION OF THE ISSUES

8.      The relevant sections of the Social Security Act 1991 (the Act) are:

593.(1)     Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:

(a)the person satisfies the Secretary that:

(i)throughout the period the person is unemployed; or

(ii)the person is a CDEP Scheme participant in respect of the period; and

(b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:

(i)satisfies the activity test; or

(ii)is not required to satisfy the activity test; and

601.(1)     Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a)actively seeking; and

(b)willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

(2)          A person also satisfies the activity test in respect of a period if:

(a)the Secretary is of the opinion that, throughout the period, the person:

(i)should undertake particular paid work, other than paid work that is unsuitable to be done by the person; or

(ia)should participate in an approved program of work for unemployment payment; or

(ii)should:

(A)undertake a course of vocational training; or

(B)participate in a labour market program; or

(BA)participate in a rehabilitation program; or

(C)participate in another course;

approved by the Employment Secretary which is likely to:

(D)improve the person's prospects of obtaining suitable paid work; or

(E)assist the person in seeking suitable paid work; or

613.(1)     Subject to subsection (2), a newstart allowance is not payable to a person who is enrolled in a full-time course of education or of vocational training for the period that:

(a)starts when the person starts the course; and

(b)finishes when the person:

(i)completes the course; or

(ii)abandons the course; or

(iii)gives notice to the provider of the course that the person:

(A)wishes to withdraw from the course; or

(B)wishes to withdraw from such number of subjects that the person's course will no longer be a full-time course; and

(c)includes periods of vacation.

(2)          Subsection (1) does not prevent a newstart allowance from being payable for any period during which:

(a)a person is enrolled in a course that the Secretary has required the person to undertake under subsection 601(2); or

(b)the person is engaged in a course undertaken under a Newstart Activity Agreement; or

(c)the person has deferred a course of education.

9.      Mr Walsh submitted that the intention of the Act is that newstart allowance be available to enable persons to complete vocational courses.  He said that the Government policy that excludes full-time courses of twelve months or more from eligibility is inflexible and is an arbitrary barrier that frustrates rather than assists the achievement of this aim.  He said that social security legislation does not impose any time limit on vocational courses and each case should be considered on its merits.

10.     Mr Walsh referred the Tribunal to Green v Daniels (1977) 13 ALR 1 in which Stephen J observed, at 9:

…The Director-General is not concerned, in his administration of s107 with the carrying out of any policy.  No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer.  He must, no doubt, for the benefit of his delegates and in the interests of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction.  But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant's compliance with the criteria will be vitiated.

Mr Walsh stated that the twelve-month policy is contrary to the legislation and is not a lawful ground for denying the applicant newstart allowance when her course satisfies all other legislative and policy requirements.

11.     Mr Todd submitted that under s613 of the Act newstart allowance is not payable to full-time students.  He said that the Government’s specific policy is that a person undertaking a short-term vocational course would be eligible for newstart allowance, but full-time study for a Master’s degree, for more than twelve months, is excluded.  

12.     In reaching its decision, the Tribunal takes into account the oral and written evidence and submissions made at the hearing.

13.     The Tribunal accepts the applicant’s evidence that she is undertaking an intensive full-time course to complete her qualifications for registration as a clinical psychologist.  The Tribunal also accepts that the restrictions imposed by La Trobe University on the applicant seeking employment or taking leave during the course have led to financial problems and difficulty in seeking casual or part-time employment.  However, under s593 of the Act a person must be unemployed and satisfy the activity test.  Under s613(1) of the Act newstart allowance is not payable to the applicant as a full-time student.  In addition, the course undertaken by the applicant is not a course that the Secretary has required her to undertake under s601(2) of the Act, that would result in newstart allowance being payable under s613(2) of the Act.  

14.      In relation to the activity test under s601 of the Act, the Tribunal notes that the applicant will satisfy the test if she is actively seeking, and is willing to undertake, paid work in Australia.  She will also satisfy the test by participating in vocational training or another course that will improve her opportunities in obtaining suitable paid work, or in seeking such work, as required by the Secretary of the Department.  Policy guidelines contained in the Guide to the Social Security Law include determinations of the Minister for Education in respect of approved activities that satisfy the activity test.  The Tribunal has considered the guidelines and is satisfied that they are consistent with social security legislation, so there is no reason why the guidelines should not be followed in this case.

15.      The guidelines allow for short courses (up to twelve months’ duration) and specifically exclude Master’s degree courses under the Minister’s determination.  As the applicant is undertaking a full-time Master’s degree course of two years’ duration she does not satisfy the activity test under s601 of the Act, and under s593 of the Act she is not qualified for newstart allowance.

DECISION

16.      The Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)     Catherine Thomas

Clerk

Date of hearing:  31 October 2003

Date of decision:  7 November 2003
Advocate for applicant:                Mr D. Walsh
Solicitor for applicant:                  SRC Legal Service, La Trobe University
Advocate for respondent:            Mr M. Todd, Centrelink