HOPE-JOHNSTONE and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 294

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 294

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2939

GENERAL ADMINISTRATIVE DIVISION		)
Re		NERIDA HOPE-JOHNSTONE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date23 April 2010

PlaceCanberra

Decision The decision under review is affirmed.

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

Mr S. Webb Member

CATCHWORDS

SOCIAL SECURITY - Austudy - tertiary courses - progress rules - allowable study time - periods of part time and full time study - formula for time spent as a part time student - full time study - matters to be disregarded when determining whether a person has exceeded the allowable study time - allowable study time exceeded - decision affirmed

Social Security Act 1991 ss 568, 569, 569A, 569C, 569H

REASONS FOR DECISION

23 April 2010 Mr S. Webb, Member         

1.      Nerida Hope-Johnstone completed a Bachelor of Arts degree and later commenced a Bachelor of Midwifery degree. She claimed and was paid Austudy. Those payments ceased at the end of the first semester in the first year of her Midwifery degree course. She requested review by successive decision makers, thus far without success.

2.      The issue, simply put, is whether Ms Hope-Johnstone is entitled to Austudy after the end of the first semester of the first year of her Bachelor of Midwifery degree course.

3.      

Much is agreed by the parties. Ms Hope-Johnstone enrolled in the Bachelor of Midwifery degree course as a full time student in January 2009. Previously, in 2005 she completed a Bachelor of Arts degree course, studying on a part time and a full time basis at different times. It is accepted that the degree course required satisfactory completion of 24 units, or completion of eight units per year for a full time student. Nevertheless, it is agreed for the purposes of section 569C of the Social Security Act 1991 (the Act) that a person is a full time student if he or she has a study load of 3 units per semester if the usual study load for a full time student is

4 units per semester as was the case with Ms Hope-Johnstone’s Bachelor of Arts degree course. It is also agreed that she did not enrol in any year-long units during this course. It is agreed that both the Arts and the Midwifery degree courses are

level B courses for the purposes of section 569H. Furthermore it is agreed that

Ms Hope-Johnstone satisfies all of the eligibility requirements for Austudy, but for the progress rules set out in s 569H of the Act, which lie at the heart of this dispute.

4.      Ms Hope-Johnstone asserts that she completed her Bachelor of Arts degree course in five and a half years: she studied as a part time student for most of that time. Applying the formula set out in subsection 569H(5), she asserts that the result is less than three years.

5.      

In her submission the calculation of her allowable study time under

subsection 569H(3) of the Act is not correct. She informed me that part of her midwifery degree course involves practical clinical training, with a requirement to complete a certain number of hours each year. This, she says, cannot simply be treated as a semester unit and must be considered to be a full year subject. On that basis, Ms Hope-Johnstone says that the allowable study time should be four years, not three and a half years.

6.      

Furthermore, Ms Hope-Johnstone says that she failed one subject as a result of circumstances beyond her control, whereby she was required to care for her

two-year old nephew. She informed me that she withdrew from two units in different semesters for the same reason. In her submission these are matters that should be considered under subsection 569H(7) of the Act, and related amounts of time should be disregarded when calculating her allowable study time.

7.      For these reasons, Ms Hope-Johnstone asserts that she is entitled to Austudy payments after the end of the first semester of her Bachelor of Midwifery degree course.

8.      I do not agree.

9.      Under the Act in order for a person to qualify for Austudy he or she must satisfy the activity test.[1]  The activity test may be satisfied if the person is undertaking qualifying study.[2]  In order to be ‘undertaking qualifying study’ the person must be enrolled in an approved course of education or study on a full time or concessional study-load basis.[3] These matters are not controversial in these proceedings. In order to qualify for Austudy, however, a person must satisfy the progress rules. 

[1] Section 568, Social Security Act 1991.

[2] Section 569, Social Security Act 1991.

[3] Section 569A, Social Security Act 1991.

10.     The progress rules for a full time tertiary student are set out at section 569H, relevantly:

A person who is a full‑time student in respect of a tertiary course satisfies the progress rules if:

(a)  in the case of a person who is enrolled in the course—on the day on which the person enrolled in the course; or

(b)  in the case of a person who is not yet enrolled in the course but intends to enrol in the course—on the day on which enrolments in the course are next accepted;

the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course.

11.     

The course to which this subsection refers is the course in which Ms Hope-Johnstone is enrolled – the Bachelor of Midwifery degree course. It does not refer to particular units or units of the degree course. As can be seen, the subsection requires time spent on the course and on other previous tertiary courses at the same level to be taken into account. As Ms Hope-Johnstone is enrolled in the course paragraph (a) applies. Thus, the subsection requires quantification of the time

Ms Hope-Johnstone previously spent on the Arts degree course and calculation of the allowable study time for her Midwifery degree course.

12.     

The quantification of time spent for a full time student is a simple question of fact, whereas the time spent by a part time student is to be calculated under subsection 569H(5). That subsection applies a formula to periods of part time study in a course: study undertaken is divided by normal full time study in respect of the relevant period. Ms Hope-Johnstone’s academic transcript[4] reveals that she

[4] ST4 folios 18-19.

enrolled in:

(a)two units in semesters 1 of 2000;

(b)two units in semesters 2 of 2000;

(c)three units in semester 1 of 2001, but withdrew from one of those units;

(d)two units in semester 2 of 2001;

(e)three units in semester 1 of 2002, but withdrew from one of those units;

(f)two units in semester 2 of 2002, but she failed one of those units;

(g)three units in semesters 1 of 2003;

(h)three units in semesters 1 of 2003;

(i)two units in semester 1 of 2004;

(j)three units in semester 2 of 2004; and

(k)two units in semester 1 of 2005.

13.     Thus it can be seen that Ms Hope-Johnstone completed 16 units over eight semesters of study at the rate of two units per semester and nine units over three semesters at the rate of three units per semester. It is agreed that in the normal course the 24 unit degree course would be completed in three years or six semesters. Thus the normal full time study required for 16 units is four semesters. Thus the result of applying the formula to these periods of part time study is two years. It can also be seen that Ms Hope-Johnstone undertook nine units over three semesters, being the equivalent of a full time load for present purposes, taking one and a half years. That being so, the time spent on her Bachelor of Arts degree is three and a half years.

14.     

One must then look to subsection 569H(7) to determine whether any of the matters set out therein must be disregarded. There are two paragraphs on which

Ms Hope-Johnstone relies: 569H(7)(b) and (i). Under paragraph (b) if a person fails a year of study, or part of a year of study, because of the person’s illness or other circumstances that are beyond his or her control, the relevant period must be disregarded. Ms Hope-Johnstone says that she failed the unit in semester two

of 2002 because she was called upon to care for her nephew, aged two at the time, in circumstances that were beyond her control. On her evidence, her sister was homeless and her nephew required surgery at the Canberra Hospital; as Ms Hope-Johnstone lives at Mawson, which is near the hospital, her sister called upon her to care for the child, and she did.

15.     Unfortunately, I am not able to accept that these circumstances are within the terms of paragraph 569H(7)(b). It is clear that Ms Hope-Johnstone, herself, was not unwell and the circumstances whereby she cared for her nephew are far from clear. For that reason I am not able to determine whether those circumstances were truly beyond her control. Furthermore, I am not persuaded that the reason Ms Hope-Johnstone failed the particular unit was because of the arrangement whereby she cared for her nephew. At the time she was studying only two units in that semester. By her own account, in other semesters she enrolled in three units but was forced to withdrawn from one for the same reasons concerning her nephew. Her academic transcript reveals that she achieved credit and distinction grades for the two units she undertook in those semesters. If she could achieve those grades in two units when caring for her nephew, it is difficult to comprehend why those same circumstances would cause her to fail one of two units in another semester.

16.     

With regard to the issue of withdrawal from the two units in the first semesters of 2001 and 2002, paragraph 569H(7)(i) must be considered. Under this paragraph, time spend undertaking a subject from which the student withdrew must be disregarded if the institution did not record the withdrawal as a failure. It appears that Ms Hope-Johnstone’s withdrawals fall within the terms of the paragraph. In the Secretary’s submission this is not material because Ms Hope-Johnstone effectively continued to study part time at the rate of two units in each of those semesters. I do not accept that submission is correct, however. As it appears to me, the purpose of the paragraph is to remove from consideration time spend on subjects from which the student withdrew. The significance of this can be seen in the present case.

By applying the formula in subsection 569H(5) Ms Hope-Johnstone is deemed to have taken three and a half years to complete her Bachelor of Arts degree. If the two units from which she withdrew are removed from the calculation, this will mean the removal from consideration of one unit of her study load for each of the relevant semesters in 2001 and 2002. When these amounts are combined, the result is the removal of two units, being the equivalent of one semester at the rate of two units per semester. Applying this reduction to the calculation under subsection 569H(5) results in an overall result of 3 years.

17.     For this reason the time Ms Hope-Johnstone spent studying for her Bachelor of Arts degree is deemed to be 3 years by application of subsection 569H(5) and (7). I so find.

18.     

The allowable study time is to be calculated pursuant to subsection 569H(3).  Ms Hope-Johnstone asserts that paragraph 569H(3)(b) should apply in her case. As I understand her submission, this is because she is required to undertake practical clinical training as a part of her degree course in addition to semester-based theoretical units. By her account the clinical training requirement is for 720 hours per year. She also gave evidence, however, that the clinical training is linked to particular theoretical units of study and incrementally increases in complexity as progress is made, semester by semester; it is not possible to progress to a higher level of clinical training without first completing the prerequisite components. Furthermore, by her own account, the clinical training is assessed on a semester by semester basis.

For this reason, I am reasonably satisfied that the clinical training component of her Midwifery degree course is not properly construed as year-long subjects, but is more consistent with semester-based course content that is practical in nature, but is linked to theoretical units each semester. That being so, Ms Hope-Johnstone is

not within the terms of paragraph 569H(3)(b). But she is within the terms of paragraph 569H(3)(c). Thus the allowable study time that applies in her case is the minimum amount of time needed to complete the course as a full time student plus half an academic year, that is, three and a half years.

19.     Thus, returning to the initial question posed by subsection 569H(1), I am reasonably satisfied that when Ms Hope-Johnstone enrolled in the Bachelor of Midwifery degree course she is deemed to have spent three years completing her Bachelor of Arts degree course and the allowable study time is three and a half years. It follows, therefore, that at that time, Ms Hope-Johnstone had half of one year allowable study time remaining. Once that allowable time elapsed, she ceased to satisfy the progress rules and ceased to be entitled to Austudy payments.   

20.     For these reasons, the decision under review must be affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:  ....................[sgd]......................................................
  J. Lakin, Associate

Date of Hearing  16 April 2010
Date of Decision  23 April 2010
Applicant self-represented

Solicitor for the Respondent         Centrelink Advocacy & Litigation Branch