Martinsen and Secretary, Department of Family and Community Servi Ces

[2003] AATA 801

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 801

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/800

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY MARTINSEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date15 August 2003 

PlaceBrisbane

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a decision that the applicant remain eligible for Austudy as at 26 June 2002.

(Sgd)  O Rinaudo
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – austudy – eligibility - whether applicant has exceeded the allowable time limit for the completion of his course of study

Social Security Act 1991 ss 568, 569(1)(d), 569H(1), 569H(3), 569H(7)

Student and Youth Assistance Act 1973

Austudy Regulations

Re Priest and Secretary, Department of Family and Community Services [2002] AATA 1191

REASONS FOR DECISION

15 August 2003  Mr O Rinaudo, Member    

Decision Under Review

1.      Mr Martinsen makes application for a review of a decision of Centrelink to cancel his Austudy payment on 6 March 2002 on the basis that he had exceeded his total allowable time. 

2.      An Authorised Review Officer varied the decision on 17 July 2002, deciding that Mr Martinsen would be entitled to Austudy until the end of semester 1 in 2003.  The Social Security Appeals Tribunal affirmed this decision on 4 September 2002.

Evidence at the Hearing

3.       The only evidence at the hearing was the exhibits as follows:

§Exhibit 1             “T” Documents

§Exhibit 2             “S” Documents

§Exhibit 3             Download document for re-enrolment at JCU

§Exhibit 4Download document for re-enrolment at QUT

4.      Mr Martinsen made oral submissions to the Tribunal. 

Legislation

5.      Prior to 1 July 1998, the relevant law was contained in the Austudy Regulations made under the Student and Youth Assistance Act 1973.  Since 1 July 1988, Austudy payments now form part of Part 2.11A of the Social Security Act 1991 (“the Act”). In particular, section 568 of the Act provides that a person will be eligible for Austudy provided the person, among other things, satisfies the activity test.

6. The activity test is set out in section 569(1) of the Act and says that a person will satisfy the activity test if the person is “undertaking qualifying study”.

7.      “Undertaking qualifying study” is defined in section 569A and, in particular, sub-paragraph (d) which says that a person is undertaking qualified study if, among other things, they satisfy the progress rules. Section 569H(1) defines “progress rules – tertiary students” as follows: 

“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.”

8.      The “allowable study time” is set out in section 569H(3) and is as follows:

“The allowable study time for a course undertaken by a full-time student or a 66% concessional study-load student is:

(a)if the minimum amount of time needed to complete the course as a full-time student is one year or less—that minimum amount of time; or

(b)if the minimum amount of time needed to complete the course as a full-time student is more than 1 year and:

(i)    the student is enrolled, or intends to enrol, in a year-long subject; or

(ii)   the student’s further progress in the course depends on passing a whole year’s work in the course;

the minimum amount of time plus 1 year; or

(c)in any other case—the minimum amount of time needed to complete the course as a full-time student plus half an academic year.”

9. Section 569H(7) sets out a list of matters to be disregarded when calculating the allowable study time. This is not directly relevant in this case, save that consideration has been given to various periods which Centrelink has not taken into account in calculating the applicant’s allowable study time.

Issue

10.     The issue for the Tribunal to determine in this application is whether the applicant remains eligible for Austudy as at 6 March 2002 when the decision was made by Centrelink to cancel his Austudy payments.

Facts

11.     The facts in this case are not in dispute.  The applicant commenced his law degree at the beginning of 1996 at James Cook University as a full-time student and later continued his law degree at the Queensland University of Technology.  He has been a full-time student in this course up until the present time.  The applicant accepted that Centrelink’s calculation of 3.625 years as his total study undertaken to date for progress rule purposes was correct.

Submissions and Discussion

12. In his submission, Mr Martinsen argues that Centrelink and the Social Security Appeals Tribunal have misconstrued the effect of section 569H(1). He said that the correct amount of allowable study time for his course is 5 years and not 4½ years as determined by Centrelink and the Social Security Appeals Tribunal.

13. Mr Martinsen based his argument on his interpretation of section 569H(3)(b)(i). He said:

“If, on the day in which I enrolled in my course, my previous time spent studying at that level did not exceed my allowable study time (which at that time was 5 years based on enrolment and intention…see s.569(3)(b)(i)), and I am enrolled in a full-time capacity, the progress rules are satisfied. There is never again a question of satisfying the progress rules, unless, of course, the student has withdrawn and is seeking to re-enrol, or has re-enrolled in the course, then the question of ‘qualification’ under s.568 would again used need to be answered.”

14.     He went on to say:

“On the day I enrolled in my course, my previous time spent studying this course, or any other course at the same level, did not exceed the allowable study time for the course and therefore the progress rules are satisfied for the purposes of qualification.  The only question remaining to be answered is want is the allowable study time for the course undertaken and when does that period expire?”

15. Mr Martinsen is saying that the allowable study time based on the course undertaken by him is calculated at the commencement of the course based on the wording of section 569H(3) and that this is done at the commencement of the course of full-time study undertaken by the student. In his case, as the course of study was for four years, then pursuant to section 569H(3)(b)(i) he is enrolled in a one year long subject, and the progress in the course must be for the minimum amount of time (that is, 4 years) plus one year, the total being 5 years.

16.     Mr Martinsen stated it did not matter subsequent to his first year of study whether he studied year-long subjects or half-year subjects as at the time of commencement of his study the allowable study time was calculated at 5 years – it remains 5 years. 

17.     Mr Ffrench, advocate for the respondent, submitted that this was the incorrect approach and that on each re-enrolment the allowable time must be recalculated.  In written submissions Mr Ffrench said:

“51.     However, s569H can only allow an assessment as to whether a person has or has not exceeded the allowable time requirement as at a certain date.  That determination then remains in force until the next time the provision is activated – on the student’s next enrolment.

52.      Given the structure of this provision it is not possible to make a prospective determination.  The assessor simply finds that the student either has or has not satisfied the progress rules.

53.      It is then incorrect to find that the substantive decision under review is, say, ‘to assess the applicant’s total allowable time for austudy payment purposes as 4.5 years to expire at the conclusion of semester 2, 2003, as varied by Centrelink on 20 November 2002’

54.      Such a determination could only be made were the applicant to re-enrol for Semester 1, 2004 and claim austudy for that period.  At that point in time the assessor would calculate the applicant’s allowable study time and the time already spent on the course, less disregarded matters pursuant to subsection (7).

55.      There are good reasons for this.  No person can currently know, for example, whether the applicant will fail further subjects and have these disregarded for the purposes of the progress rules.  Such a situation would result in the applicant being entitled to austudy for a longer period of time.

56.      The respondent contends that the substantive decision under review is simply to find that as at 26 June 2002 the applicant satisfied the progress rules.”

18.     The Tribunal was referred to the decision of Re Priest and Secretary, Department of Family and Community Services [2002] AATA 1191 and to the passage at paragraph 25 that:

“…the ‘further progress’ referred to is progress beyond the current enrolment period.  Mr Priest’s current enrolment is for semester-based subjects only and so his further progress in the course does not depend on passing a whole year’s work in the course.”

19.     The Tribunal respectfully agrees with the reasons as set out in the decision by Mr M Allen, Member in that case.

20.     In the respondent advocate’s summary, the Tribunal was told that:

“81.     The substantive decision under review is that the applicant satisfied the progress rules, and thus remained eligible for austudy as at 26 June 2002.

82.      After making allowances for matters to be disregarded under subsection (7), namely for subjects the applicant failed due to illness, it is clear that the applicant had not exceeded his allowable time for austudy.

83.      As such he remained eligible and the decision should be affirmed.

84.      Arguably the determination to calculate the applicant’s allowable time limit is not a reviewable decision.”  

21.     The Tribunal accepts the submission of the respondent’s advocate that the decision under review is whether the applicant was eligible for Austudy on 26 June 2002.  Centrelink concedes that he was and has continued to pay him.

22.     The Tribunal further accepts the submission of the respondent’s advocate that calculation of the applicant’s allowable time limit is not a reviewable decision.  As the respondent’s advocate correctly pointed out, the Tribunal was persuaded by the argument that:

“71.     Even were it to be viewed a reviewable decision it has had absolutely no affect on the applicant’s present circumstances, and is subject to change (for instance, it is dependent on the applicant’s subject choices in his final allowance year of study).  He is not a person affected by the decision, and does not have the requisite standing to request a review under s129.”

23.     Having said that, the Tribunal does not consider it appropriate to simply make a determination based on what the Tribunal regards as being the reviewable decision.

24.     There is no doubt in the Tribunal’s mind that Mr Martinsen has misconstrued the legislation and his interpretation of it is simply incorrect.

25. The Tribunal is satisfied that the legislation clearly sets out the requirements with respect to eligibility for payment of Austudy. Section 569H(1) refers to:

“…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.”

26.     Clearly, this provision envisages initial enrolment and re-enrolment.  Re-enrolment will, of course, occur on a number of occasions during the course.  After successfully completing an enrolment period, the student will be required to re-enrol for the next study period.  This is clearly indicated in the words used in the section “the time already spent by the student on the course”. 

27. The Tribunal cannot accept the respondent’s contention that the date referred to in this section can only ever be the date that the student initially enrols in the course. So that on each occasion there is a re-enrolment, Centrelink must calculate the allowable study time in accordance with the provisions of section 569H(3). If, at the point of re-enrolment, the applicant has completed 4 years of study but requires another year to complete the study, then section 569H(3)(b)(i) would apply and the student would have a further one year period to complete the study. However, it would be ridiculous to suggest that if the student had completed 4 years of study but required only a further semester or half-year to complete the course of study, that section 569H(3)(b)(i) should apply and the student be entitled to a further year. Clearly, in that case, section 569H(3)(c) would apply.

28. There seems no difference in that scenario to the current circumstances. Accordingly, although the Tribunal has determined that it is not necessary to make a determination as to how long the applicant can continue in study, as the Tribunal will not have all of the relevant information and, in particular, any matters referred to in section 569H(7), the Tribunal is satisfied that the provisions of section 569H are clear in respect of the calculation of a student’s allowable study time.

29.     As has been stated, Centrelink has reviewed its decision with respect to Mr Martinsen’s continuing study and, at this time, the Tribunal was advised that the practical effect of that decision is that the applicant will not exceed his allowable study time until after the end of semester 2, 2003.  Accordingly, in accordance with the reasons set out above, the Tribunal affirms the decision under review that the applicant is entitled to Austudy as at 26 June 2002.

Decision

30.     The Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes the following decision that the applicant remain eligible for Austudy as at 26 June 2002.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  30 January 2003
Date of Decision  15 August 2003

The Applicant appeared in person
For the Respondent                  Mr T Ffrench, Departmental Advocate