GREGORY CROCETTI and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 528

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 528

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/4276

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GREGORY CROCETTI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date16 July 2009

PlaceMelbourne

Decision The decision under review, being a decision made only under s 613(1) of the Social Security Act 1991, is affirmed.

(Sgd)  John Handley
  Senior Member

SOCIAL SECURITY – Application for Newstart Allowance – applicant a full time student – entitlement to benefits applies only if exempted from provisions of s 613(1) and a Newstart Activity Agreement approves undertaking full time study – applicant did not ever enter into an activity agreement – decision affirmed

Social Security Act 1991(Cth) s 601, s 601(2), s 613(1) and s 613(2)

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005

Social Security Legislation Amendment (Employment Services Reform) Act 2009

Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659

REASONS FOR DECISION

16 July 2009 Mr John Handley, Senior Member           

1.      Mr Crocetti, the applicant, applies to review a decision of the Social Security Appeals Tribunal (SSAT) made on 4 August 2008.  The SSAT then affirmed a decision previously made by an Authorised Review Officer (ARO) of Centrelink.

2.      The circumstances giving rise to this application were not in dispute and may be briefly summarised as follows.

3.      The applicant is presently 34 years of age and holds the degrees of Batchelor of Science, Master of Science and a Doctorate in Philosophy.  His specialist field of study is environmental microbiology.

4.      In 2007 the Victorian State Government, in recognition of a shortage of mathematics and science teachers, created a scheme to encourage mature age professional persons to undertake teacher training in those subjects.  Opportunities were made available to suitable persons to enter into an agreement with the Victorian Government to undertake practical training and study to obtain a Diploma of Education.  On 17 January 2008 the applicant entered into an agreement with the Victorian Government to participate in such a course of study.  On 29 January 2008 he claimed Austudy and on 3 March 2008 commenced a Diploma of Education at the RMIT University in Melbourne.  Later in March 2008 his application for Austudy was rejected.  That decision was not challenged.

5.      On 1 April 2008 the applicant made an enquiry of Centrelink concerning his eligibility for Newstart Allowance (NSA) and on 8 April 2008 a claim for that benefit was made.  On 22 April 2008 the claim for NSA was rejected and affirmed by an ARO on 20 May 2008.  The appeal to the SSAT was against that decision and accordingly it was the case of the applicant that at all relevant times he qualified for, and should have been paid, NSA.  For reasons which will hopefully become apparent, the applicant did not ever enter into a Newstart Activity Agreement (NSAA).

6.      The hearing of this application was convened on 1 July 2009.  The applicant appeared without representation.  The respondent was represented by Mr Carson.

austudy

7.      The applicant said he made two telephone enquiries to Centrelink Call Centres in July and October 2007 in order to determine his eligibility for Austudy.  On both occasions he said he notified the call centre operator that he had a PhD and said he was advised that that qualification would not preclude him from Austudy payments.  In November 2007 he finished a period of casual employment as a teacher with TAFE.  In February 2008 he claimed Austudy and that application was eventually rejected.  No review of that decision was ever sought.  Nonetheless it was the case of the applicant that by reason of him being unemployed between November 2007 and February 2008, when he eventually claimed Austudy, that he would be able to demonstrate –when he claimed NSA later – that his qualifications did not permit him to obtain employment and he would otherwise qualify for NSA by reason of an interpretation he made of the Centrelink Policy Guide.

8.      I indicated to the applicant during the hearing that by reason of there not ever having been a decision made with respect to Austudy that is capable of review – by this Tribunal – that the focus of this review must remain on the decision of the SSAT which concerned the rejection by Centrelink of his application for NSA.

newstart allowance

9. The primary decision of Centrelink (T14, p59) to reject the application for NSA was by reason of the applicant being a full time student. The legislation in support of that decision was not identified but I assume that the decision‑maker was mindful of the provisions of s 613(1) of the Social Security Act 1991 (the Act) that provides that NSA is not payable to a person who is enrolled in a full time course of education or vocational training for a period commencing when a person starts the course and concludes when the person completes the course.  Relevantly, the applicant claimed NSA on 8 April 2008 and had commenced the course at RMIT in March 2008.

10. The applicant challenged that decision and sought review by an ARO. He was unhappy with that decision, not only its conclusion, but the absence as he asserted, of any proper consideration of the difficulties experienced in obtaining regular employment over the previous five years. Had such a proper consideration been given the applicant asserted that the provisions of s 613(2) of the Act would have had applied and an exemption from the provisions of s 613(1) would have operated. Sub-section (2) provides that NSA is payable to a person if there is an engagement in a course undertaken under a NSAA.

11.     The applicant also drew attention to the Centrelink Policy Manual where at 3.2.9.70 there is provision to approve NSA payments to persons engaged in full time educational training if there is entry into a program approved by an Employment Service Provider and if that training is included in a NSAA.  Additionally, approval to undertake such training or education ‑

(i)        would be expected to be in a course of less than 12 months;

(ii)there is  a likelihood of obtaining employment by reason of completing the course;

(iii)      there is little chance of finding employment with existing skills; and

(iv)completion of the course would lead to qualifications in an identified area of skills shortage.

12.     It was the applicant's case that he satisfied all four of the qualifications which would have otherwise permitted the Employment Service Provider to approve the program at RMIT and would have entitled him to qualification under s 613(2) of the Act.  However, the applicant did not ever enter into a NSAA.  Approval to undertake training or study on a full time basis must be contained within a NSAA and the course of study or training must be undertaken as part of the NSAA.  It is intended to be a substitute for the activity test (refer s 601 of the Act).  But the absence of the applicant ever having entered into a NSAA will prove fatal to this application.

13.     The applicant was unhappy with the decision of the ARO because he asserted that there was a failure to comprehend the difficulty that he had experienced in the preceding five years in obtaining employment, indeed it was incorrect to record (T17 p70) that the applicant had been in regular employment for around five years . . . there is nothing to suggest that you could not have continued in this employment.  The applicant said he moved to Melbourne from Queensland in order to obtain employment having previously only obtained limited part time work in a laboratory at the University of Queensland.  He eventually found some employment in a laboratory in Melbourne and then obtained some casual teaching work with TAFE throughout the 2007 academic year.  Subsequently he obtained some casual teaching work with CSIRO whilst he was undertaking his study with RMIT.  It was the case of the applicant that had the ARO properly understood his employment history, he would not have reached the conclusions that he did and may then have turned his mind to the provisions of s 613(2) of the Act.

14.     The decision of the ARO, has two significant legal errors, namely, the application of s 601(2) and s 613(2)(a) of the Act.  Both those provisions were repealed by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.  The current ss (2) of s 601 differs remarkably from its predecessor and upon which the ARO relied.

15. Section 601(2) previously referred to circumstances where a person would satisfy the Activity Test if the person participated in a course approved by the Employment Secretary which was likely to improve the prospects of obtaining suitable work. Section 613(2)(a) previously provided that the prohibition against payment of NSA found within s 613(1) did not apply if a person was enrolled in a course that the Secretary required the person to undertake under s 601(2) of the Act.

16.     The ARO concluded by reference to those (repealed) sections that there was no evidence that the applicant was enrolled in a course required by the Secretary pursuant to s 601(2) and he was therefore satisfied that the requirements of s 613(2)(a) of the Act were not met.  Section 601(2), in its current form has no reference to approval, in a course by the Secretary.

17.     The ARO then decided that it was necessary to deal with whether you are engaged in a course undertaken under a Newstart Activity Agreement pursuant to s 613(2)(b).  The remainder of the decision of the ARO indicates that no consideration was given at all to the applicant not ever having entered into a NSAA.  The remainder of the decision refers to the Social Security Policy Manual and later concludes (refer earlier) that the applicant had been in regular employment for the preceding five years.  A conclusion was also reached that obtaining the graduate diploma (the Diploma of Education) would not clearly improve short term employment prospects.

18.     It is not difficult to comprehend the applicant's unhappiness with the reasons of the ARO but as I indicated to him at the hearing, the role of the Tribunal is to reach the correct or preferable decision on the material before it.  Review does not involve consideration of whether the decision under review was open to the decision-maker on the material before him.

19.     The applicable legislation, in its form before 1 July 2009 and current at the date of application for NSA is as follows:

601  Activity test  

(1)Subject to subsections (1A) and (5), 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. 

Note 1:For situations in which a person is taken to satisfy, or is not required to satisfy, the activity test see: 

(a)section 603 (persons attending training camps or in remote areas); 

(b)section 603A (special circumstances); 

(c)section 603AA (persons 55 and over who are engaged in work); 

(d)section 603AB (certain principal carers and people with partial capacity to work). 

Note 2:See subsections (2A) and (2B) on what paid work is unsuitable. 

613  Full-time students 

(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)Repealed

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

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

20. Section 613(2)(b) was amended with effect from 1 July 2009 by the Social Security Legislation Amendment (Employment Services Reform) Act 2009.  It substitutes the words Activity Agreement with the words Employment Pathway Plan.  The amendment has no bearing on this decision because it was not operative when the applicant applied for NSA nor when the ARO and the SSAT made their decisions.

21.     I have recorded matters above with respect to the decision of the ARO and the conclusions reached only to highlight the difficulty which cannot be cured by this review namely, the entitlement to payment of NSA under s 613(2) of the Act only applies where there is engagement in a course undertaken under a NSAA.  No such agreement was ever entered into by the applicant.  The reasons for that are not clear and there is nothing from the T‑documents which would indicate that the applicant was ever referred to an Employment Service Provider where such an agreement could be negotiated and consideration be given to him undertaking a course which would have the imprimatur of the Employment Service Provider.

22. The only decision which is under review by this proceeding is the decision made under s 613(1) of the Act. Only that decision can be reviewed. There is nothing to review under s 613(2) of the Act because a decision was not ever made under those provisions. A Statute that sets out strict conditions for eligibility for a particular benefit is not amenable to a construction that treats that which ought to have been done as though it had been done (refer Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659).

23.     This decision does not prohibit the applicant from exercising other rights that he may, or may not have either against Centrelink or by the intervention of the Ombudsman.  I make no finding or recommendation on those courses of action but include these comments only because they were raised during the hearing.  The Tribunal has no powers with the respect to either of those courses of action.

24. For all of the above reasons I am obliged in the circumstances to find that the decision under review, being a decision made only under s 613(1) of the Act, must be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Date of Hearing  1 July 2009
Date of Decision  16 July 2009
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr A Carson, Centrelink