Hallyburton and Department of Family and Community Services

[2001] AATA 826

DECISION AND REASONS FOR DECISION [2001] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/570
GENERAL ADMINISTRATIVE DIVISION
  Re:         LAUREN JOY HALLYBURTON
  Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             27 August 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  MemberSTUDENT ASSISTANCE - youth allowance - eligibility - Masters degree
Social Security Act 1991  
Student Assistance Act 1973 s3(1), s5D(1)

REASONS FOR DECISION

27 August 2001  G.D. Friedman, Member

1. This is an application by Lauren Joy Hallyburton (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 23 April 2001 which affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 8 March 2001.  In its original decision Centrelink found that the applicant was not eligible for Youth Allowance payment (youth allowance) in respect of her studies in the Master of Nutrition and Dietetics degree (the Masters course) at Deakin University.

2. At the hearing of this matter on 27 August 2001 the applicant represented herself, assisted by her father. The respondent was represented by Mrs R. Bradley of the Administrative Law Team, Centrelink. The evidence before the Tribunal comprised oral evidence and the documents lodged under s37 of the Administrative Appeals Tribunal Act1975, together with two exhibits (Exhibits A1 and A2) tendered by the applicant.
   BACKGROUND

3. The applicant was born on 29 April 1980.  In 1998 she enrolled as a full-time student in the Bachelor of Applied Science course at Deakin University and received youth allowance during her studies, which she completed in 2000.  On 29 January 2001 the applicant advised Centrelink that she had been accepted into the Masters course which was a pre-requisite for accreditation as a dietitian.  Centrelink notified her that her youth allowance would be cancelled from 30 January 2001 because Masters degree courses were not approved courses for the purpose of eligibility for youth allowance. 

4. Following the decisions by a Centrelink review officer and the SSAT to affirm the decision the applicant lodged an application with the Tribunal on 21 May 2001.
   EVIDENCE

5. The applicant produced a letter dated 20 February 2001 from Professor Mark Hargreaves, Head, School of Health Sciences at Deakin University, who confirmed that the Masters degree is currently the only qualification in Victoria that allows graduates to work as dietitians.  He stated that the course is two years full-time and that because of the contact hours and clinical placement requirements, it is difficult for students to pursue significant paid employment. 

6. The applicant told the Tribunal that she believed the decision to refuse the grant of youth allowance was unfair because she was required to undertake study at the Masters degree level to qualify as a dietitian.  She emphasised that, unlike a research degree for which no justification could be made for the payment of youth allowance, her studies involved coursework and clinical placements as outlined by Professor Hargreaves, and that regular part-time employment would be impractical.  The applicant stated that the cancellation of her youth allowance has caused financial hardship. 

7. The Tribunal was told that Deakin University has taken steps in 2001 to overcome this situation by re-structuring the course requirements to provide for a four-year undergraduate degree course leading to qualification as a dietitian.  Consequently students would be eligible for youth allowance throughout their studies.  However the applicant explained to the Tribunal that she is in an anomalous position as she has already commenced the Masters degree and is ineligible for youth allowance whilst students commencing the undergraduate course in 2001 are eligible.  She stated that there should be an exemption in relevant legislation to allow eligibility in situations such as this, and that she has been unsuccessful in her efforts to have the anomaly addressed satisfactorily. 
   CONSIDERATION OF THE ISSUES

8. Subsections 3(1) and 5D(1) of the Student Assistance Act 1973 (the Act) have the effect of providing that the Minister may, by means of the Ministerial Determination of Education Institutions and Courses, determine what is an approved course for the purpose of payments to students.  The Explanatory Statement in respect of Determination 1999/2 (the determination) which commenced on 1 January 2000 states that since 1 July 1998 the Social Security Act 1991 has required that, to qualify for youth allowance, a person must be enrolled in and undertaking study at an education institution and in a course determined by the Minister under the Act.  The determination describes the types of approved tertiary courses.

9. Paragraph 7 of the determination states:

   (1)     For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.

   (2)     For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.

10. Mrs Bradley, on behalf of the respondent, submitted that the degree of Master of Nutrition and Dietetics at Deakin University is at the Masters level and is not expressly specified in Schedule 2 of the determination.  She submitted further that Schedule 2 expressly excludes the year or years relating to study at the Masters level. 

11. In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing.  The Tribunal finds that the applicant is undertaking a Master of Nutrition and Dietetics degree at Deakin University on a full-time basis.  As this course is at the Masters level and is not expressly specified in Schedule 2 of the determination, the Tribunal finds that the applicant is not eligible to receive youth allowance.
    DECISION

12. The Tribunal affirms the decision under review.

    I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of
    G.D.Friedman, Member

    (sgd)       Catherine Thomas
                  Clerk

    Date of hearing:  27 August 2001
    Date of decision:  27 August 2001
    Solicitor for applicant::                 Nil - Self-represented

    Solicitor for respondent:              Nil - Mrs R. Bradley, Advocate with Centrelink