Loadsman and Secretary, Department of Family and Community Servic Es

[2003] AATA 1152

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1152

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2003/1037

GENERAL ADMINISTRATIVE DIVISION )

Re AMY LOADSMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date17 October 2003

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2003/1037

GENERAL ADMINISTRATIVE DIVISION		)
Re		AMY LOADSMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date17 October 2003

PlaceSydney

Decision FOR the reasons given orally at the hearing in this matter, the decision of under review is AFFIRMED.

(Sgd)  M.D. Allen

..............................................

Senior Member

CATCHWORDS

Social Security – Entitlement to Youth Allowance – course leading to qualifications to practice as a Chiropractor designated as a Masters degree – no authority to permit Tribunal to go behind University’s description of the course.

Social Security Act 1991 – ss 540; 41B

Student Assistance Act 1973 – s.5D

Secretary, Department of Employment, Education, Training and Youth Affairs v. Lander (1996) 24 AAR 39 followed.

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed:         K.  Wong
          ....................................................................................……………………………….

Associate

Date of Hearing  17 October 2003

Date of Decision  17 October 2003

Solicitor for Applicant                   Self-represented

Representative for Respondent  Mr A. Zhang, Department of Family and
  Community Services

DRAFT JUDGMENT

ADMINISTRATIVE APPEALS TRIBUNAL

Matter N03/1037

By MR M.D. ALLEN, Senior Member

LOADSMAN and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

SYDNEY, 17 OCTOBER 2003

MR ALLEN:   Pursuant to an application for review made the 26th day of June 2003, the applicant sought review of a decision of a Social Security Appeals Tribunal made the 20th day of May 2003, affirming a prior decision that she was not entitled to Youth Allowance for the 2003 academic year.  The facts of the matter are in a relatively short compass, and are set out in the respondent's statement of facts and contentions which became exhibit R1 in these proceedings.

The applicant is enrolled at Macquarie University in a course which will ultimately permit her to practice as a chiropractor.  For reasons best known to itself, the university has divided the course into two parts.  The first is a bachelor's degree which is a bachelor of chiropractic science.  This is basically a science degree with some chiropractic subjects, but the net result is, as the applicant has said, that it qualifies her for nothing because to practice as a chiropractor she must then continue on and undertake what Macquarie University has deemed to be a master's degree, namely, a Master of Chiropractic.

Section 540 of the Social Security Act (1991) states that a person is entitled to the payment of Youth Allowance if satisfying the activity test. Paragraph 541(1)(a) of the said Act states that a Youth Allowance claimant satisfies the activity test by undertaking full-time study. However, 541B(5) provides that the Youth Allowance claimant must undertake full-time study in an approved course of education or study determined by the Employment Minister under Section 5D of the Student Assistance Act (1973) to be a secondary or tertiary course for the purposes of the Act.

Section 5D of the Student Assistance Act (1973) states that the Employment Minister may determine in writing that a course of study is a secondary or tertiary course. A determination under section 5D is a disallowable instrument. The then Employment Minister made a determination under section 5D(1) on

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17 October 2002 with a commencement date of 1 January 2003, being determination number 2002/1, determination of education institutions and courses under (3)(1) and 5D(1) of the Student Assistance Act (1973).

Clause 7 of the said determination 2002/1 defined a tertiary course in the following terms, namely, (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 master's or doctoral level offered by a higher education institution is a tertiary course unless expressly specified in schedule 2.

Schedule 2 provides further:

Undergraduate or postgraduate accredited higher education course which is at the level of a graduate degree and is classified as such in the institution's handbook, and is not a course at the level of a master's or doctoral degree unless otherwise specified in schedule 2, and integrated undergraduate/postgraduate course leading to a master's degree excluding that year or years of the integrated course in excess of the full-time duration of the related undergraduate accredited postgraduate accredited courses that are not at the master's level.

The situation here is, as I have stated earlier, that for reasons best known to itself, Macquarie University has deemed the last two years of the course leading to professional qualifications to practice as a chiropractor to be at a master's level. As was said by the Full Court of the Federal Court in Secretary, Department of Education and Training and Youth Affairs v Lander 24 AAR 39, where the Tribunal had regard to the actual bases of a psychology course offered by Sydney University, as follows:

The Tribunal has in effect said that in its opinion the University of Sydney has inappropriately described its own course.  It has over dignified it by calling it a master's degree course.  It should have called

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it a graduate diploma course.  There is little likelihood that in formulating the determination, the Minister contemplated that he or his delegates would perform that task.  Neither he nor they could be expected to be qualified to do so.  But, more importantly, the Tribunal's approach is inconsistent with the notion of accreditation contained in the definition of accredited tertiary course, a course conducted and accredited as a tertiary course by that institution.

Lander's case was expressly applied by Mr Friedman, Member, in the Tribunal decision of re Halliburton v Secretary, Department of Family and Community Services 2001 AATA 826.

In this matter, therefore, as I am bound by the decision of the Federal Court in Lander supra, once Macquarie University has designated the final two years of the course leading to practice as a chiropractor as a master's degree, I am bound by that.  It is not a course which is specified in the particular determination referred to.  There is a total illogicality about this.  For example, I am informed that the Royal Melbourne Institute of Technology for its chiropractic course runs a double degree bachelor's course, which means that if the applicant had enrolled at RMIT rather than Macquarie University, she would have been prima facia entitled to Youth Allowance.

But, of course, equity and common sense are not qualities which are usually found in the Department of Education and Training.  I can say that having regard to other cases I have dealt with in this Tribunal, it is a pity that some of the bureaucrats in Canberra do not have regard to realities of situations;  however, as that may be, I am still bound by the law in this matter and, as the course is not one which is specified, the only decision I can make is to affirm the decision under review.

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