Karla Noble and Secretary, Department of Social Services
[2013] AATA 784
[2013] AATA 784
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3598
Re
Karla Noble
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 7 November 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Relocation scholarship payment – Qualification for youth allowance at the independent rate based on self – supporting employment – Qualification requirements for relocation scholarship payment not met – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 592J, 1067A
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 November 2013
BACKGROUND
In 2012, Karla Noble commenced study in the Bachelor of Science program at James Cook University, having moved from Marian to Townsville in order to do so.
In discussions with an officer of the respondent on 29 April 2011, Ms Noble provided information of her employment and earnings history for the financial years ending June 2009 and 2010. By letter, dated 15 February 2012,[1] the respondent wrote to her with advice of the nature and extent of income support payments that were payable to her under the Social Security Act 1991 (Cth) (“the Act”) in relation to her course of study. These included youth allowance as an independent person based on her employment history. In that letter, Ms Noble was not granted a relocation scholarship payment in relation to her move to Townsville. On 30 May 2012, an authorised review officer affirmed that Ms Noble was not qualified for the relocation scholarship payment and, on 3 May 2013, the Social Security Appeals Tribunal also affirmed that decision.
[1] Exhibit 1, T-Document 5, p. 23.
ISSUES, LEGISLATION AND SUBMISSIONS
The qualification criteria for the relocation scholarship payment are set out in s 592J of the Act which reads:
592J Qualification for relocation scholarship payment
A person is qualified for a relocation scholarship payment at a time (the qualification time) if:
(a) at the qualification time, the person is qualified for youth allowance and youth allowance is payable to the person; and
(b) at the qualification time, the person is receiving youth allowance and would be receiving youth allowance if steps 2 and 3 of the method statement in point 1067G‑A1 of the Youth Allowance Rate Calculator were disregarded for the purposes of working out the person’s rate of that allowance; and
(c) the person:
(i) is independent because of subsection 1067A(3), (5), (6), (7), (8), (9) or (11); or
(ii) is not independent (see section 1067A) but is required to live away from home (see section 1067D); and
(d) the person is receiving youth allowance because the person is undertaking full‑time study in an approved scholarship course; and
(e) the Secretary is satisfied that in the period of 35 days starting immediately after the qualification time, the person proposes to start to undertake the course or to continue to undertake the course; and
(f) the Secretary is satisfied that the person is not likely to receive the amount or value of a Commonwealth Accommodation Scholarship in the period of 12 months starting immediately after the qualification time.
For the respondent, Mr Ashley Burgess submitted that Ms Noble was correctly assessed as being independent and that this was based upon her meeting the terms of s 1067A(10) of the Act. For that reason, he submitted, Ms Noble does not satisfy the requirements of
s 592J of the Act. He submitted that the decision was confirmed by reference to
ss 3.2.5.80 and 3.8.15.10 of the Social Security Guide[2] (“the Guide”). He submitted that the decision under review ought be affirmed.
[2] For use of the Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
Mrs Cheryl Purcell, spoke at the hearing on behalf of Ms Nobel, her daughter.
Mrs Purcell submitted that denial of the relocation scholarship payment was unfair because Ms Noble had been required to move away from her home town to live in Townsville to undertake her course of study and was disadvantaged by not receiving the additional payment. She submitted that the law relating to payment of the relocation scholarship payment should be amended to enable students in the position of Ms Noble to continue more effectively with their tertiary studies.
The issue for the Tribunal is whether Ms Noble meets the qualifying requirements for the relocation scholarship payment.
CONSIDERATION
A student may be assessed as being independent based on being self-supporting in accordance with the terms of s 1067A(10) of the Act which reads:
1067A (10) A person is independent if the person has supported himself or herself through paid work consisting of:
(a) full‑time employment of on average 30 hours per week for at least 18 months during any period of 2 years; or
(b) part‑time employment of at least 15 hours per week for at least 2 years since the person last left secondary school; or
(c) a period or periods of employment over an 18 month period since the person last left secondary school, earning the person at least the equivalent of 75% of:
(i) the maximum rate of pay under Wage Level A of a transitional Australian Pay and Classification Scale or modern award generally applicable to trainees; or
(ii) that maximum rate as varied or replaced from time to time by the Fair Work Commission;
that applied at the start of the period of employment.
In evidence were Ms Noble’s records of employment and earnings from the Australian Taxation Office from 1 July 2008 until 11 February 2011 with T.J. Picture Framing Pty Ltd. Those records also detail Ms Noble’s total earnings in that period. It is not disputed and I am satisfied that Ms Noble met the requirements of s 1067A(10) of the Act and that she was independent on that basis when she discussed her situation with an officer of the respondent in April 2011 and thereafter.[3]
[3] See also s 3.2.5.10 of the Guide (Exhibit 2, Attachment B).
In this matter, the terms of the legislation are clear. All of the requirements of s 592J of the Act must be met before the qualifying criteria are satisfied. While I have noted the submissions of Mrs Purcell, that provision does not allow for the exercise of any discretion in its application. Because Ms Noble’s independent status is based on
s 1067A(10) of the Act, she does not meet the terms of s 592J(c) of the Act and the relocation scholarship payment is not payable to her.[4][4] See also s 3.8.15.10 of the Guide.
DECISION
The decision under review is affirmed.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member.............................[Sgd]...........................................
Associate
Dated 7 November 2013
Date of hearing 31 October 2013 Advocate for the Applicant Mrs Cheryl Purcell Solicitor for the Respondent Mr Ashley Burgess, Departmental Advocate
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