Ferrier and Secretary, Department of Family and Community Services - [2002] AATA 756

DECISION AND REASONS FOR DECISION [2002] AATA 756

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/868

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LISA FERRIER
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date4 September 2002
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  Ms S M Bullock   Senior Member
CATCHWORDS
SOCIAL SECURITY – Austudy - Qualifying Study – Full-Time Study – Part-Time Study

LEGISLATION
Social Security Act (1991) (Cth) ss 568, 569, 569A, 569B, 569C, 569D, 569E

REASONS FOR DECISION

4 September 2002 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Ms Lisa Ferrier, of a decision of the Social Security Appeals Tribunal (" the SSAT") made on 3 May 2001, that Ms Ferrier was not a full-time student in respect of a full-time course and accordingly was not qualified for Austudy (T2). An Authorised Review Officer ("ARO") of the Respondent, the Secretary, Department of Family and Community Services ("the Department") decided on 3 April 2001 (T15, T16), to affirm the decision of a delegate of the Department made on 21 March 2001, refusing Ms Ferrier's claim for Austudy (T10, T11).
A Telephone Hearing was held before the Tribunal in Sydney on 6 December 2001. The hearing was adjourned part-heard, to allow the Respondent to obtain more information from TAFE in respect of Ms Ferrier's study. Final written submissions dated 30 January 2002, were received by the Tribunal on 4 February 2002.
Ms Ferrier was self-represented and provided oral evidence and written submissions. The Respondent, the Department, was represented by Ms S Fahey, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 - T17) and the following exhibits:

Exhibit No.     Description    Date
A1      Letter from the Applicant, Ms Lisa Ferrier           6 December 2001
A2      Applicant's further written submissions   30 January 2002
R1      Respondent's Statement of Facts and Contentions     5 December 2001
R2      Print out from TAFE website – "Horticulture" and "Craft and Visual Art Practice-Business Skills" 11 December 2001 3 December 2001
R3      Respondent's Additional Statement of Facts and Contentions          23 January 2002

Issues

The issue to be determined in this matter is whether or not Ms Ferrier can be considered a full-time student counting her two part-time courses for the purpose of receiving Austudy and if so, can her claim be backdated.
Legislation
The determination in this matter requires consideration of the Social Security Act 1991 ("the Act").
Specifically, section 568 of the Act deals with qualification for austudy payment and as relevant states:
"568 Qualification for austudy payment—general rule
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test (see Subdivision B); and
(b) the person is of austudy age (see Subdivision C); and
(c) the person is an Australian resident.
Note: Division 2 sets out situations in which an austudy payment is not payable even if the person qualifies for it."
Section 569 of the Act deals with the Activity Test and as relevant states:
"569 Activity test
General
569(1) Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).
Persons who do not satisfy the activity test
569(2) A person cannot be taken to satisfy the activity test if the person:
(a)is employed on a full-time basis as an apprentice or trainee under an industrial instrument 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.
Note: For educational institution see subsection 23(1).
Industrial instrument
569(3) In paragraph (2)(a):
industrial instrument means an award or agreement (however described) that:
(a)is made under or recognised by a law of the Commonwealth or of a State or Territory that:
(i) regulates the relationships between employers and employees; or
(ii) provides for the prevention or settlement of disputes between employers and employees; and
(b) concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees."
The concept of qualifying study is dealt with under section 569A of the Act, which states:
"569A Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying study if:
(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 569B); and
(c) the person is a full-time student or a concessional study-load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H)."

Section 569B of the Act deals with the concept of an approved course of education or study and as relevant states:
"569B Approved course of education or study
For the purposes of paragraph 569A(b), a course is an approved course of education or study if it is a course that the Employment Minister has 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."
Section 569C of the Act deals with full-time students and states:
"569C Full-time students
For the purposes of this Subdivision, a person is a full-time student in respect of a course if:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)—the person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period—the person intends to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period.
Note: For normal amount of full-time study see section 569E."
Section 569D of the Act deals with concessional study-load students and as relevant states:
"569D Concessional study-load students
569(1) For the purposes of this Subdivision, there are 2 classes of concessional study-load students, namely:
(a)25% concessional study-load students; and
(b)66% concessional study-load students.
569D(2) For the purposes of this Subdivision, a person is a 25% concessional study-load student in respect of a course if this subsection applies to the person and:
(a)in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)—the person is undertaking at least one quarter, but less than three quarters, of the normal amount of full-time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period—the person intends to undertake at least one quarter, but less than three quarters, of the normal amount of full-time study in respect of the course for that period.
569D(3) For the purposes of this Subdivision, a person is a 66% concessional study-load student in respect of a course if this subsection applies to the person and:
(a)in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)—the person is undertaking at least two thirds, but less than three quarters, of the normal amount of full-time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period—the person intends to undertake at least two thirds, but less than three quarters, of the normal amount of full-time study in respect of the course for that period.
Note: For normal amount of full-time study see section 569E.
569D(4) Subsection (2) applies to a person if:
(a)an officer in the Commonwealth Rehabilitation Service or an appropriate medical practitioner who has a detailed knowledge of the person's physical condition has stated in writing that:
(i) the person has a substantial physical disability; and
ii) the person cannot successfully undertake the normal amount of full-time study in respect of the course because of the disability; or
(b) a medical practitioner specialising in psychiatry has stated in writing that:
(i) the person has a substantial psychiatric disability; and
(ii)the person cannot successfully undertake the normal amount of full-time study in respect of the course because of the disability; or
(c)a psychologist who is registered with the Board established under the law of a State or Territory that registers psychologists has stated in writing that the person:
(i) is intellectually disabled; and
(ii)cannot successfully undertake the normal amount of full-time study in respect of the course because of the disability.
569D(5) Subsection (3) applies to a person if:
(a)the person cannot undertake the course as a full-time student because of:
(i) the relevant educational institution's usual requirements for the course; or
(ii) a specific direction in writing to the person from the academic registrar or an equivalent officer; or
(b) the academic registrar (or an equivalent officer) of the relevant educational institution recommends in writing that the person undertake less than the normal amount of full-time study in respect of the course for specified academic or vocational reasons for a period not exceeding half an academic year."

Section 569E deals with the normal amount of full-time study and states:
"569E Normal amount of full-time study
569E(1) For the purposes of this Subdivision, the normal amount of full-time study in respect of a course is:
(a) if the course is a designated course of study within the meaning of Chapter 4 of the Higher Education Funding Act 1988—the standard student load determined in respect of the course by the institution in question under subsection 39(2) of that Act; or
(b) if the course is not such a designated course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course—the amount so defined; or
(c) otherwise—an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
569E(2) Without limiting subsection (1), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week."

Background

The following information is provided by way of background and is not disputed:

Ms Ferrier was born on 14 May 1967.
In February 2001, Ms Ferrier enrolled for study in two part-time courses at Bega TAFE. The courses were Certificate II in Horticulture and a Certificate IV in Craft and Visual Art Practice-Business Skills (T5, T6). The Horticulture course had a 12 hours per week load and the Craft and Visual Art Practice course required six hours per week.
On 6 March 2001, Ms Ferrier lodged her claim for Austudy (T4).
On 21 March 2001, a delegate of the Department refused Ms Ferrier's claim for Austudy because she was not enrolled in a full-time course of study (T10, T11).
Ms Ferrier subsequently sought a review by an ARO who on 3 April 2001, affirmed the decision of the delegate (T15, T16), deciding that Ms Ferrier was not a full-time student as she was undertaking two part-time courses.
On 6 April 2001, Ms Ferrier lodged an application for review to the SSAT and on 3 May 2001, the SSAT affirmed the decision of the ARO.
On 21 June 2001, Ms Ferrier lodged an application for review to the Tribunal (T1), stating:
"I am undertaking this form of study because both courses are only offered part time. If I could do it quicker without incurring hefty tuition fees I would. If the government were committed to education and training why don't they support and encourage low income casual employees to train into a better paid and skilled occupation. How will their life and prospect ever improve? This decision not to support me is unfair policy red tape which needs reviewing. If I were of a different racial or medical background or if I were on unemployment benefit, I would have funding all the way. I now know what it is like to be discriminated against." (T1, p2)
Ms Ferrier has been in receipt of a Newstart Allowance since 9 August 2001.

Evidence of ms lisa ferrier

Ms Ferrier told the Tribunal that she enrolled on 4 February 2001 at Bega TAFE in Horticulture Certificate II and Craft and Visual Art Practice-Business Skills Certificate IV. The courses were run by different faculties. Ms Ferrier's overall aim was to establish a business in the landscaping and garden art field. Accordingly, Ms Ferrier was studying the Craft and Visual Arts Practice course to assist her with business principles. She needed to know about bookkeeping, accounting practice and tax matters. Ms Ferrier stated that TAFE did not realise the interrelationship between the courses. These courses could only be undertaken at TAFE colleges at Lighting Ridge, Bega and Walgett, Ms Ferrier told the Tribunal. The Horticulture course involved 12 hours which was spread over two days and one evening and the Craft and Visual Art Practice-Business Skills course was undertaken over six hours. The Tribunal noted from evidence to the SSAT, that Ms Ferrier already has a degree in Visual Art, but wanted to increase her business skills.
Ms Ferrier told the Tribunal that she would not be able at her local TAFE, to go on to study further Horticultural courses but would have to go to the city to do this.
Ms Ferrier stated that she tried to apply for Austudy but Centrelink refused her claim. She contacted the Complaint Section who told her to submit her form. Ms Ferrier told the Tribunal that she was made to feel quite worthless by the process. Ms Ferrier stated that on one occasion, she was advised by a Centrelink officer that she was not eligible for either Austudy or Newstart Allowance. She stated that she now cannot go anywhere near a Centrelink office because of the humiliation she experienced. She struggled for six months without financial assistance. In a statement made by Ms Ferrier to Centrelink, dated 6 March 2001, she noted that she had taken her complaint to the Ombudsman's office, an officer of which told her to disregard what she had been told at her first meeting with a Centrelink Officer. She was advised to fill out an Austudy application. Furthermore, Ms Ferrier noted in her statement that she wished to claim back pay to the beginning of the semester and be provided with a rebate for course fees (T8, p44).
Ms Ferrier later applied for a Newstart Allowance, but this was not paid for six months, because she was considered to have moved to an area of low employment and was penalised. Ms Ferrier told the Tribunal that she had moved to live on her land at Bemboka. She had left seasonal work and associated rental accommodation to reside on her own land because it was much less expensive. She had lived in Sydney during the Olympics and wanted to move to the country to undertake her course. Thus there were physical and financial reasons behind the move. For her to be able to live permanently and rent free made a big difference to her life. She had also been unwell and this prompted her decision to cease work and commence study.
At the time of the hearing, Ms Ferrier told the Tribunal that she did not know what she was going to study next. She would look at what was offered full-time at Bega TAFE, which was in line with her interests.
Ms Ferrier completed the Horticulture Certificate II course satisfactorily and passed her exams, as she also did for the Craft and Visual Art Practice-Business Skills course. The business course in fact was meant to last for one year, but was sandwiched into five or six months. Ms Ferrier then enrolled in another business course at Cooma TAFE.
In a written statement Ms Ferrier made to the Department's Administrative Law Team on 25 September 2001, she noted that at page four of the "Austudy Guide", "full-time study" meant that a person was undertaking a minimum of 15 hours per week of face to face study (Exhibit A1). Ms Ferrier noted in her statement that it did not say anywhere that a person had to be enrolled in a full-time course. Ms Ferrier submitted that that section of the Guide is extremely misleading. It did not communicate the whole situation. Ms Ferrier noted that anyone taking classes totalling more than 15 hours per week would seem to be eligible for Austudy, given their ability to satisfy the other qualifying criteria. Ms Ferrier noted that the SSAT's decision stated that TAFE did not classify students as full-time or part-time, although it also noted that full-time courses are normally between 15, 18 and 24 hours per week. She noted that considering that a 75 per cent study load of a full-time course is considered full-time and eligible for Austudy, she found that she had experienced red tape, which was cruel and unjust. Ms Ferrier furthermore pointed out to the Tribunal that there is no legislative guidance as to what constitutes full-time study. Ms Ferrier believed that the SSAT acknowledged that a study load of 18 hours per week, which involved attending the campus on four different occasions, was equal to and in fact greater than an allowable load in respect of other full-time courses. She found that this objective fact, in the face of the Department's refusal to pay Austudy, left her "Confused, disheartened, and finding it difficult to concentrate on study when I've struggled to buy food to eat!" (Exhibit A1, p1).
Ms Ferrier told the Tribunal that in July 2001, she was in receipt of Sickness Benefit. She attends a Community Health Centre in Bega, consulting a visiting psychiatrist every week or so. She has consulted a counsellor at the centre. Ms Ferrier told the Tribunal that she does not take any medication.
Other Evidence
ms d walter, campus administration manager, tafe, bega campus
Ms Walter provided an advice, dated 5 December 2001, that Ms Ferrier was enrolled in Certificate II in Horticulture and Certificate IV in Craft and Visual Art Practise-Business Skills at Bega TAFE in 2001. The courses were part-time courses. Ms Walter reported that the Horticulture course consisted of 12 hours per week while the Craft and Visual Art Practice was for six hours per week, over 18 weeks. Ms Walter noted that this latter course changed after enrolment due to low numbers and reduced to three hours per week for the last nine weeks of the course. Both these courses were advertised and offered as part-time courses based on the attendance requirements. Ms Walter noted that Ms Ferrier was enrolled in two different faculties at the Bega campus as a part-time student of each faculty (Exhibit R1, Attachment A).
tafe course outline

Exhibit R2 contains information on each of the courses at Bega TAFE in which Ms Ferrier was enrolled.

Horticulture Certificate II - This course provided the students with skills and knowledge needed to work under supervision as a skilled operator or assistant to a trade person in the horticultural industry. The course consisted of a range of general horticultural modules in the fields of arboriculture, floriculture, landscaping, nursery, parks and gardens, or turf sectors. Completion of the course would enable the students to apply for advanced study in Horticulture Certificate III.
Craft and Visual Art Practice - Business Skills Certificate IV - This course provided professional craft practitioners with small business knowledge, the skills and attitudes required to establish and run a viable business.

Submissions

Ms Ferrier wrote that there are few opportunities in the country for education, particularly full-time courses, given the lack of rural population and the distance required to be travelled to obtain education. Where there are full-time courses, Ms Ferrier submitted that the scope of such courses was very limited. The most usual case for a person in the country to be able to enrol in a full-time course in his or her chosen field, often necessitated the person going to the city or undertaking study by correspondence. A person in the country may have the possibility, Ms Ferrier submitted, to undertake several small courses at once to develop a broader range of skills in a shorter period of time. In 2001, Ms Ferrier noted that she completed courses in Senior First Aid, Legal Issues in the Arts, Assessing Business Opportunity, Writing a Business Plan, Responsible Service of Alcohol, Responsible Conduct of Gambling, Chemical Handling. All of these courses, Ms Ferrier submitted, had been "no cheap part-time picnic!" (Exhibit A1).
Ms Ferrier submitted that someone may study horticulture and several business courses in order to gain broader skills if the person was going to set up business in the horticultural industry. This was in fact what Ms Ferrier's aim had been. Such form of study may mean that the person is better served to implement his or her business earlier, rather then waiting to finish one course at a time, and may have a higher chance for success due to the added business skills,Ms Ferrier contended.
With Commonwealth Government financial cut backs in education, Ms Ferrier contended that it was becoming increasingly difficult to find quality education at an affordable price in a convenient location. She predicted that full-time courses in the country were very likely to no longer exist in the future. Furthermore, Ms Ferrier contended that unless Austudy qualifying criteria were expanded to encompass a broad range of study options, there would be no one in the rural area on Austudy payment outside of university. Ms Ferrier submitted that people in rural areas could not have the same educational opportunity as those living in the cities.
Ms Ferrier submitted that she is trying to make a better life for herself and cease the never-ending casual employment cycle. In those circumstances she receives no holiday pay, no sick pay, irregular superannuation payments and no job security. Ms Ferrier asked the Tribunal to review the SSAT's decision taking into account the ambiguously worded legislation. She asked the Tribunal to be open minded, just, fair and understanding (Exhibit A1).
In her final written submissions to the Tribunal (Exhibit A2), Ms Ferrier submitted that the question that the Tribunal should ask is not whether she was attending enough hours in total at TAFE, but whether the two separate courses from two different faculties could be counted together to qualify her for Austudy. Her study load afterall, amounted to a full-time load. Ms Ferrier noted that the fact that TAFE did not classify students as full or part-time students, certainly did not help her cause. Ms Ferrier reiterated that in the country there are very few full-time courses and that unless the person was studying an equivalent in Year 10 or 12 at High School, or studying information technology, then the course choice was very limited.
Ms Ferrier submitted that TAFE and the Department do not seem to understand that not every occupation involves just one faculty. This is especially so given the Commonwealth Government 's new taxation law which requires all business people to have a sound knowledge of taxation and accounting. She submitted that to succeed in business, there was also a need to be well qualified in customer service. If Ms Ferrier had been interested, for argument sake, in operating a business selling paintings in individually crafted welded frames, then she may need to study painting, welding, accounting and customer service. This would involve study across four different faculties including Arts and Media, Rural and Mining, Business and Information Technology and Hospitality and Tourism respectively. It would also take a considerable amount of time and effort, Ms Ferrier contended. The fact is, Ms Ferrier submitted, that like people, occupations and lines of study can not be neatly cut and divided into separate "boxes".
Ms Ferrier referred the Tribunal to the "Guide For Austudy" which continuously refers to full-time study for students, studying approved certificate courses at approved establishments. Ms Ferrier noted that the Guide states that a student is considered to be undertaking full-time study when he or she undertakes at least 15 hours face to face study per week. Ms Ferrier further referred the Tribunal to the "The Guide to Social Security Law" at 3.3.4.20 which noted that customers who are undertaking a substantial study load but who do not fit the normal definition of a full-time tertiary student, can be considered full-time if they do at least 15 contact hours per week. The explanation offered is that as full-time study is an average of 20 contact hours per week, a student needs to undertake only 15 contact hours per week, that is, three quarters of a full-time work load, to qualify as a full-time student under Austudy.
Ms Ferrier stated that she had been wondering why her claim for Austudy kept being rejected. She asked the question, that if this statement was written in a non-government sales brochure, would the Department of Fair Trading consider the statement to be false advertising. Ms Ferrier further noted that the SSAT had acknowledged that there is no legislative guidance as to what constitutes full-time study (T1,p7). Ms Ferrier stated that 18 hours per week of study, attending campus on four different occasions, as she did, is certainly equal to and in fact greater than an allowable load in respect of other full-time courses. The argument is whether her two courses of study can be considered related. Ms Ferrier noted that the Respondent posed this question to Mr R Tolhurst, Director of Studies at the Illawarra Institute. She reported that Mr Tolhurst's response was:
"This depends on the student's intentions after course completion. For example, if the student was taking part in the Horticulture to gain expertise in producing dried native flowers to use in the Craft & Visual Arts then they would be related." (Exhibit A2, p2)
Ms Ferrier submitted that it should be accepted that her overall intention on course completion was to produce garden sculptures and landscape designs. The sad end to her study scenario is that despite having the student numbers required, Bega TAFE was not going to run the Certificate III in Horticulture. Yet another example of the poor state of rural education is the fact that Bega TAFE no longer conducts courses in the Dairy Industry, in a valley renowned for and relying upon this industry, Ms Ferrier submitted. She added that these circumstances say more about the dire situation for education in the country than she could possibly articulate. If Ms Ferrier wished to continue her study in her chosen field, she noted that she would have to move again.
In conclusion, Ms Ferrier referred to her inability to be eligible for Newstart payment for 26 weeks, because she had moved to an area of lower employment. Ms Ferrier submitted that she had moved out of seasonal work and rental accommodation to reside on the land that she owned. This, she contended, hardly constituted moving to an area of lower employment, as this is her permanent rent-free base. Again, Ms Ferrier pointed to Commonwealth Government red tape as to where it draws social security borderlines. Bemboka, she submitted, is hardly Byron Bay. Due to her lack of financial support, Ms Ferrier noted that she is now several thousand dollars in debt and in addition, has suffered the emotional stress which she still suffers, due to the time that she was trying to make do with no Austudy payment. She noted that it is now a year since the battle started and it still will take her a considerable time to recover both financially and emotionally. Ms Ferrier submitted that she is not just a case number but a person trying to improve her job prospects and future.
In her initial written submissions, Ms Fahey submitted that to be qualified for Austudy payment provided for under section 568 of the Act, Ms Ferrier must satisfy the Austudy Activity Test as provided under subsection 568(a) of the Act. Ms Fahey submitted that there is no dispute that Ms Ferrier satisfies subsection 568(b) and (c) of the Act, in that she is a person of Austudy age and an Australian resident. Ms Fahey submitted however that Ms Ferrier did not satisfy the Activity Test, because she is not undertaking qualifying study, as defined in section 569A of the Act. Specifically, Ms Fahey contended that Ms Ferrier did not meet subsection 569A(c) as she was not a full-time student or a concessional study-load student.
Furthermore, Ms Fahey contended that Ms Ferrier does not satisfy section 569C of the Act, as she was not "undertaking at least three quarters of the normal amount of full-time study in respect of either course she was studying during the particular study period".
Neither of Ms Ferrier's courses was considered to be full-time study, Ms Fahey submitted. Ms Fahey noted that information from Bega TAFE indicated that Ms Ferrier was enrolled as part-time student for each of the courses. Furthermore, Ms Fahey submitted that the Manager of Student Services at the Illawarra Institute of Technology gave evidence to the SSAT that most full-time courses are between 15 to 24 hours per week. As Ms Ferrier's courses were 12 contact hours and six contact hours respectively, they could not be considered to be full-time study (T2, p12). Further information from Bega TAFE indicated that the contact hours for study for the Certificate of Visual Art consisted of six hours per week for 18 weeks and three hours per week for the last nine weeks of the course.
Ms Fahey submitted that Ms Ferrier also does not satisfy the concessional study-load requirements of section 569D of the Act. In this regard, Ms Ferrier is not a concessional study-load student because she is unable to undertake full-time study because neither course is a full-time course, she therefore does not satisfy section 569D of the Act.
Ms Fahey submitted that a student can be a concessional study-load student if the person is studying under either a 25 per cent concessional study-load or 66 per cent concessional study load. A 25 per cent concessional study-load applies to disabled students only and a 66 per cent concessional study-load applies to a student who is unable to study 75 per cent loads for any of the following reasons including : the Institution's normal requirements for the course; a specific direction in writing from the academic registrar or equivalent officer; or, a recommendation provided in writing from the academic registrar or equivalent officer, noting that for academic or vocational reasons, a person is to undertake less than the normal amount of full-time study, regardless of whether a reason is given with the recommendation or not. Accordingly, Ms Fahey contended that Ms Ferrier is not a concessional study-load student because she is unable to undertake full-time study, because neither course is a full-time course and none of the reasons outlined above for a concessional study-load student were met by Ms Ferrier's circumstances.
Considering subsection 569E(1) and (2), Ms Fahey contended that Ms Ferrier was not undertaking the normal amount of full-time study in respect of either of her part-time courses as required by section 569E of the Act. These subsections refer to full-time study in terms of "the course". Ms Fahey submitted that the word "the" has a specified and particular effect. In this regard the word "the" refers to a particular item contained in the class of items. The phrase "the course" relates to a singular particular course, rather then "any" or "more then one course". Thus, Ms Fahey submitted that subsections 569E(1) and (2) do not allow two part-time courses to be assessed as full-time study. Ms Fahey contended that the purposive approach to the interpretation of the legislation intends that full-time study is examined in terms of one course. That view, Ms Fahey submitted, is supported by the Explanatory Memorandum for the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Bill 1998. The Explanatory Memorandum notes that the amendment states, in relation to subsection 569D(1), that there are two types of concessional study-load students, firstly a 25 per cent concessional study-load student and 66 per cent concessional study-load student of the normal full-time study-load and detailed circumstances in which those concessional study-load students might reach the required definition. In relation to section 569E, which deals with the normal amount of full-time study, the Explanatory Memorandum noted that the section provides that the normal amount of full-time study for students occurs in a number situations, namely:

where a course is a designated course of study within the meaning of Chapter 4 of the Higher Education Funding Act 1988, that is, it attracts the Higher Education Contribution Scheme ("HECS"), then the standard student load is the amount determined by the institution for the purpose of HECS; or
where the course is not such a designated course and the educational institution sets out the amount of full-time study that a full-time student should typically undertake, then it is that amount; or
the amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it. These criteria allow for some fluctuation in study-load for those who do not meet either of the previous criteria; or
otherwise it is an average of 20 contact hours per week in respect of the course.

In her final written submissions, Ms Fahey contended that the purposive approach to the interpretation of the Austudy legislation is supported by the Newstart Allowance qualification provisions which provide that a student undertaking part-time study may be eligible for a Newstart payment, if it is part of their Activity Test requirements. Ms Fahey submitted that it is clearly intended that students undertaking part-time study are assessed under the Newstart Allowance qualification provisions not the Austudy qualification provisions.
Ms Fahey noted that the Social Security legislation provides that income support payments are available to full-time and part-time students. Ms Fahey submitted that the appropriate payment for which Ms Ferrier is qualified, given her circumstances, is the Newstart Allowance. As Ms Ferrier moved to an area of lower employment for social security purposes, she was caught by the provisions which impose a non-payment period on the payment of Newstart Allowance.
Furthermore, Ms Fahey submitted that although the "Guide to Social Security Law" ("the Guide") does not provide an explanation as to how to assess the enrolment of two part-time courses, it does provide how to assess study at more than one institution. How study of two part-time courses is to be treated may be extrapolated from this explanation, Ms Fahey contended. In this regard, Ms Fahey noted that the Guide indicates that a customer may study at more than one institution and continue to be a full-time tertiary student for Austudy. However, the person must study at least 75 per cent of a normal full-time study-load in at least one course and, study through the second institution can be counted for study-load purposes, only if the subjects are recorded as enrolment in the approved course, by the first institution, or the customer provides evidence that the subjects will be counted towards the approved course on completion. Furthermore, the student cannot add together workloads in unrelated subjects that do not form part of an approved course, and both institutions must be approved for Austudy purposes.
In conclusion, Ms Fahey submitted that the two part-time courses being undertaken by Ms Ferrier, whether related or not, cannot be added together to be considered as allowing her to have qualifying study as defined under the Act. Accordingly, Ms Fahey submitted that Ms Ferrier is not a full-time student nor was she undertaking a normal amount of full-time study.
Even if Ms Ferrier was able to satisfy subsection 569E(2) of the Act and the total amount of study for the two distinct courses could be added together, she would still not satisfy the section because her hours of study were 18 contract hours per week and not the requisite 20 contract hours per week. Furthermore, even if the course was considered in terms of the three quarters of the requisite 20 hours per week as provided for in section 569C, Ms Ferrier does not satisfy the 15 hours rule as 20 hours per week refers to a course of full-time study. Neither course is considered by TAFE to be full-time study and Ms Ferrier's contact hours of 12 and six hours respectively are below three-quarters of full-time study required for each course, that is 15 hours.
Ms Fahey concluded that the SSAT made the correct decision to reject Ms Ferrier's claim for Austudy payment. Finally, in relation to Ms Ferrier's longer qualifying period for a Newstart Allowance, if she had not moved to an area of lower employment she would be eligible for a Newstart Allowance. In all the circumstances, Ms Fahey submitted that the decision under review should be affirmed.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal considers that Ms Ferrier provided truthful evidence and found her to be a credible witness. The Tribunal finds that Ms Ferrier enrolled in the courses of Horticulture-Certificate II and Craft and Visual Art Practice-Business Skills-Certificate IV, because both courses were consistent with her plans to develop a gardening business focusing on garden art. Ms Ferrier decided that she needed both the horticultural knowledge to assist with propagation and the care of plants in addition to the business skills from the other course. The course outline for the Craft and Visual Art Practice-Business Skills indicated that the course aimed to provide professional craft practitioners with small business knowledge, to establish themselves in a viable business.
Ms Ferrer's contention is that she could only undertake these courses in the form available at her local TAFE college at Bega. She would have studied the courses full-time if such courses were available. Furthermore, Ms Ferrier contended that although the courses were each part-time, effectively they amounted in total hours to a full-time course of study, which were in related fields and were being studied for the purpose of her establishing her own business.

The Tribunal finds that Ms Ferrier satisfies subsection 568(b) and (c) of the Act because she is of eligible Austudy age and is an Australian resident. The Tribunal must determine whether or not Ms Ferrier meets the Activity Test as defined in subsection 568(a) of the Act. To meet the Activity Test, under subsection 569(1) of the Act, Ms Ferrier must be undertaking qualifying study which is defined in section 569A of the Act. Ms Ferrier meets subsection 569A(a) of the Act, and as the course is an approved course she meets subsection 569A(b) of the Act. The Tribunal then must determine whether or not Ms Ferrier is a full-time student or concessional study-load student, as dealt with in section 569C and 569D of the Act, and establish whether she satisfies the progress rules contained within subsection 569A(d) of the Act.
Ms Fahey submitted that Ms Ferrier cannot meet the requirements of section 569C, because neither of her courses are considered to be full-time study. Bega TAFE has Ms Ferrier recorded as being enrolled as a part-time student for each course. Each course had 12 or six hours respectively of contact time, therefore, Ms Fahey submitted, and the Tribunal agrees, that Ms Ferrier cannot meet the full-time requirements, which requires study of between 15 to 24 hours per week.
In relation to whether or not Ms Ferrier is a concessional study-load student under section 569D of the Act, she does not meet the prerequisites available under subsection 569D(4) and (5) of the Act.
In relation to section 569E of the Act, Ms Ferrier's courses do not attract HECS fees and therefore she does not satisfy subsection 569E(1)(a) of the Act. In relation to subsection 569E(1)(b) of the Act, Bega TAFE defines the courses as part-time and Ms Ferrier as a part-time student. She is not undertaking for each course, the three quarters of the full-time load, that is 15 hours, of the requisite 20 hours considered to be necessary for full-time study.
In relation to subsection 569E(1)(c) of the Act, again, Ms Ferrier is not studying a full-time course. She was not, the Tribunal finds, in either course undertaking 20 hours of study, nor was she undertaking in each course three quarters of the course requirements of 15 hours. Subsection 569E(2) of the Act does not assist Ms Ferrier as, even if the two courses study time could be combined, she would still not satisfy subsection 569E(2) because her 18 hours do not meet the 20 contact hours. The Tribunal further finds that even if the courses were considered in terms of three quarters of the requisite 20 hours per week as provided in subsection 569C, Ms Ferrier did not satisfy this 15 hours rule as each course refers to a course of full-time study. Neither course was considered by Bega TAFE to be full-time study and the hours of 12 and six hours respectively are below the three quarters requirement of full-time study for each course.
The Tribunal notes Ms Fahey's submission that the legislation appears to reflect that people who study part-time may be eligible for income support, not from Austudy, but from Newstart Allowance.
While seemingly logical to combine two courses because in Ms Ferrier's submission they are related, the Tribunal finds that even if they are related, there is no formal recognition by the institution that this is the case. It is true that the legislation does not explicitly deal with the issue raised by Ms Ferrier's circumstances and nor is it dealt with in the Guide. The Tribunal does note that there is reference in the Guide to study in two institutions. While not binding, the Guide is instructive. The Guide noted that in relation to study in two separate institutions, there must be study of at least 75 per cent of the full-time study-load in at least one course and the other courses counted only if the subjects in the other course are recorded on the enrolment for the approved course or evidence must be provided that the subject will be counted towards the approved course. Ms Ferrier has no such evidence from the institution in relation to such matters in terms of both courses constituting full-time study for the purpose of either the Horticulture course or the Business course. While Ms Ferrier submits that the unrelated subjects could be added together, there is no formal recognition by the institution for either course that this is possible or that it could constitute full-time study.
Given the Tribunal's understanding of Ms Ferrier's evidence, the submissions, the legislation, the Explanatory Memorandum and the policy considerations in the Austudy and Social Secutity Guides, the Tribunal finds that Ms Ferrier does not satisfy the Activity Test as she was not undertaking qualifying study as a full-time student, nor undertaking the normal requirements of full-time study. Accordingly, the decision under review is affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing                  12 December 2001
Date of Final Submissions                      4 February 2002
Date of Decision                  4 September 2002
Representative for the Applicant            Self Represented
Representative for the Respondent Ms S Fahey, Departmental Advocate