Humphrey and Department of Family and Commmunity Services

[2001] AATA 679

DECISION AND REASONS FOR DECISION [2001] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/1191

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      STUART HUMPHREY      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date23 July 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.          
  ............(Signed)..................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
AUSTUDY – Part-time study, extra study on one particular subject does not change the status from part-time to full-time
Social Security Act 1991: ss569A, 569C

REASONS FOR DECISION

23 July 2001            Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision to raise and recover an overpayment of Austudy in the sum of $3,369.24 for the period 1 January 1999 to 26 June 1999, that is, the first semester of 1999.  The applicant was enrolled as a part-time student during the said period.  Austudy was only payable to the applicant on the basis that he was a full-time student.

2. In the first semester of 1999, Mr. Humphrey, the applicant, enrolled at the Queensland Conservatorium (Griffith University) to do the following subjects:

   Major Study 4 Guitar          Credit Points           10
   Project Studies 1                 Credit Points            10
   Baroque Ensemble             Credit Points              2.5
     Total Credit Points  22.5

1. The normal full-time load of a student doing the course in which the applicant was enrolled, was for subjects worth a total of 40 credit points.  The applicant was in fact treated by Griffith University as being a part-time student for the first semester of 1999.

2. On 9 March 1999, an officer of Centrelink, Mt. Gravatt, wrote to the applicant to tell him that Centrelink required proof of his enrolment for 1999 before Austudy payments could continue.  On 10 March 1999, the applicant gave a copy of his enrolment to the Centrelink officer.  The enrolment form showed the subjects to be taken by the applicant for the first semester but it is not known whether it showed the applicant to be a full-time or part-time student.  It probably did not.  The form has not been able to be produced by Centrelink, the applicant or the University.  One thing is clear, the applicant never specifically alerted Centrelink to the fact that he was a part-time student.  The applicant knew that he was not entitled to receive Austudy if he was a part-time student.  He has maintained that he was studying full-time in the first semester of 1999 and hence that he was a full-time student.

3. It is the applicant's claim that his enrolment in the subject "Baroque Ensemble" required him to learn to play an ancient instrument called the archlute.  He spent at least 7.5 hours per week on the archlute.  This, he contends, amounted to the equivalent of doing an extra subject worth 7.5 credit points.  He also spent many hours per week with the Guitar Ensemble.  The applicant contends, therefore, that he was really doing the equivalent of subjects totalling at least 30 credit points for the first semester of 1999.

4. To receive Austudy a student must be a full-time student, except for exceptions which do not apply to the applicant.  (S.569A of the Social Security Act 1991 (the Act)). To be a full-time student the person must be enrolled in the course for a particular study period (for example, a semester) and undertake at least three quarters of the normal amount of full-time study in respect of the course for that period (s.569C (a) of the Act).

5. The applicant contends that he was enrolled in the appropriate course for the first semester of 1999 and that he undertook at least 30 hours of study (that is the equivalent of at least 30 credit points) when the normal amount of full-time study was 40 points.  He therefore contends that he satisfied the criterion relating to undertaking at least three quarters of the normal amount of full-time study during the semester.

6. In support of his application, the applicant has furnished statements from his lecturers to back his claims relating to the work he did over and above that for which he actually enrolled.  The Tribunal accepts that the applicant did the extra work he claims to have done.

7. The office of the Registrar of Griffith University has refused to change the status of the applicant from part-time to full-time for semester 1, 1999.

8. There is no doubt there are part-time students who do as much and possibly more work than some full-time students.  There would also be full-time students, who do less work than some part-time students.  Nevertheless, the legislation contemplates that it is the subjects in which the student enrols and the extent to which the passing of those subjects furthers the object of completing the particular course which is relevant to the provision of Austudy.  The fact that particular students may do a lot of extra work in certain subjects or a lot of extra curricular activities is not relevant.  It is the subjects in which the student actually enrols which is the relevant factor for Austudy purposes.

9. The applicant was a part-time student in the first semester of 1999 and was not entitled to Austudy for that semester.

10. The applicant was not entitled to the Austudy paid to him and it is a debt which must be repaid.

11. The decision under review is affirmed.

    I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

    Signed:         .....................................................................................
               B. Hitchcock, Secretary

    Date/s of Hearing  23 July 2001
    Date of Decision  23 July 2001
    Applicant  Mr. Humphrey, himself
    Respondent  Ms. J. Dwyer, departmental advocate