Gray and Secretary, Department of Education, Employment and Workplace Relatio

[2010] AATA 916

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 916

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2628

GENERAL ADMINISTRATIVE DIVISION		)
Re		JACQUELINE GRAY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date17 November 2010   

PlaceSydney

Decision  The decision under review is affirmed.   

..................[sgd].................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – youth allowance – whether applicant met activity test – whether studying full-time in approved course of education or study – whether applicant was actively seeking or willing to undertake paid work that is not unsuitable – whether applicant complied with notification requests to advise Centrelink – decision under review affirmed.

Social Security Act 1991, ss 540, 541, 541B

Student Assistance Act 1973, s 5D

Student Assistance (Education Institutions and Courses) Determination 2009 (No.2)

REASONS FOR DECISION

November 2010 Ms N Isenberg, Senior Member

Background

1. Miss Gray had been receiving youth allowance since 2005 on the basis that she was a full time student. On 20 February 2010 Centrelink suspended her youth allowance. On 2 March 2010, Centrelink decided to cancel her youth allowance because she was not enrolled in an ‘approved course of education or study’ for the purposes of subsection 541B(5) of the Social Security Act 1991 (the Act).  That decision was affirmed on internal review on 22 April 2010, and then again affirmed by the Social Security Appeals Tribunal on 8 June 2010.  Miss Gray now seeks review of that decision.

Legislation

2.      Section 540 of the Act contains the qualification criteria for youth allowance.  This includes the requirement to be of youth allowance age and to satisfy the activity test.

3.      Section 541(1)(a) of the Act provides that a person satisfies the youth allowance activity test if the person is undertaking full-time study.

4.      Section 541B of the Act provides:

(1) For the purposes of this Act, a person is undertaking full-time study if:

(a)       the person:

(i)is enrolled in a course of education at an educational institution; …

…

(c)the course in question is an approved course of education or study (see subsection (5)); …

…

(5)For the purposes of paragraph (1)(c), the course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.

5. Section 5D of the Student Assistance Act 1973 provides that the Minister may determine, in writing that a course of study is a tertiary course.  The Student Assistance (Education Institutions and Courses) Determination 2009 (No.2) lists a number of courses, which have been determined to be an approved course of education or study for the purposes of the Student Assistance Act 1973. Schedule 3 lists the approved tertiary courses at Masters level by Higher Education Provider. 

Consideration

6.      At the hearing Miss Gray was represented by her mother, Mrs Georgette Gray. 

7.      Mrs Gray said that her daughter had, on leaving school, studied at Sydney University on a scholarship.  The four year course concluded in 2009.  After final examinations, Miss Gray worked extended hours in the part-time employment where she had worked during university term. 

8.      On 12 January 2010 Centrelink sent Miss Gray a letter asking her to provide full course details within 14 days.  On 18 January 2010 Centrelink sent Miss Gray a letter advising her that youth allowance was paid to her on an interim basis, due to her intent to undertake further study.

9.      In anticipation of the commencement of the 2010 academic year, Miss Gray lodged with Centrelink on 21 January 2010 a Course Details Required for Youth Allowance form, and a letter dated 21 January 2010 from Sydney University regarding course confirmation for Master of Professional Communication.  In March 2010 she enrolled in the Master of Professional Communication course at the University of Sydney as a full-time student.

10.     The Master of Professional Communication at the University of Sydney is not on the Schedule 3 list provided in the Student Assistance (Education Institutions and Courses) Determination 2009 (No.2). As such, Miss Gray is not enrolled in an approved course of education or study for the purposes of subsection 541B(5) of the Act. It follows that she does not satisfy the activity test and therefore is not qualified for youth allowance.

11.     Miss Gray and her mother are no doubt very disappointed that her chosen course of study is not on the list.  I accept that Mrs Gray has contacted the university which, she said, is similarly perplexed as to why that course does not appear on the list.  However, I must make my decision having regard to the courses that do in fact appear on the list, and I am unable to enquire as to why a particular course does or does not appear on the list.  Furthermore, this is not a matter about which I have any discretion.  Having said that, I note that Mrs Gray and Miss Gray each have disabilities which may make the non-entitlement to youth allowance especially financially difficult for them.

12.     For completeness, I looked at other criteria for youth allowance.  A person may still satisfy the activity test, in relation to a period if, as an alternative to being enrolled as a full-time student in an approved course, the person is actively seeking, and willing to undertake, suitable paid work in Australia: subsections 540(a) and 541(1)(b).  Section 541D of the Act sets out the circumstances where paid work may be deemed unsuitable by the Secretary.  The application of s 541(1)(b) is subject to section 541(4), which provides the following:

… a person who has:

(a)ceased undertaking full‑time study; and

(b)been given a notice under section 68 of the Administration Act that has the effect of requiring the person to inform the Department of that cessation; and

(c)refused or failed to comply with the notice in respect of that cessation;

cannot satisfy the Secretary that, at a particular time after the refusal or failure, the person is actively seeking, and willing to undertake, paid work in Australia unless, before that time, the person has informed the Department of that cessation or the Department has become aware of that cessation.

13.     After suspending Miss Gray’s youth allowance on the basis she was no longer a full time student, Centrelink sent Miss Gray on 22 February 2010 her Centrelink statement, her reporting statement and a letter advising her to report.  The reporting statement was sent for the purpose of reporting changes in circumstances including any earning information for the reporting period 20 February 2010 to 5 March 2010.  Miss Gray was to report within 14 days.  On 24 February 2010 Centrelink sent a letter to Miss Gray asking her to attend an interview and register as looking for work, as she was no longer a full time student.  On 5 March 2010 Miss Gray attended a walk-in appointment at a Centrelink Office, but did not provide the information that had been requested.   

14.     Mrs Gray said that she and her daughter went to Centrelink at Leichhardt in February and complains that there they were “fobbed off”.  Her daughter spent over 1½ hours on the phone to Centrelink to try to have ”the position” clarified which, Mrs Gray explained, was about why the course was not on the list of approved courses.   On 2 March 2010 a Centrelink officer spoke to Miss Gray to inform her that the course in which she was enrolled in was not an approved Masters course.  Miss Gray was advised by Centrelink that she could drop to part-time and apply for job seeker payments or enrol in another course that is an approved course. 

15.     Even if Miss Gray’s entitlement to youth allowance were to be considered on the basis provided under section 541(1)(b), I would find it difficult, on the available evidence, to be satisfied that Miss Gray met all of the requirements under the Act.  I note that she was already engaged in paid work.  There was no evidence about the hours worked other than that she was working “as much as she could”.   

Decision

16.     As I have noted earlier, I have no discretion in respect of entitlement to youth allowance in circumstances where a chosen course of study is not approved.  As the course in which Miss Gray is enrolled is not an approved course of education or study under the Act, I must find that she is not qualified for youth allowance. 

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ...............[sgd].................................................
             Associate

Date of Hearing   4 November 2010
Date of Decision   17 November 2010
Representative for the Applicant    Mrs Georgette Gray

Solicitor for the Respondent      Ms Biljana Salaji, Centrelink Advocacy   

Branch