Matheson; Secretary, Department of Family and Community Services
[2003] AATA 542
•10 June 2003
CATCHWORDS – SOCIAL SECURITY – YOUTH ALLOWANCE –
whether undertaking full-time study – whether undertaking in study period for which enrolled, or intended to be enrolled, three-quarters of the normal amount of full-time study in respect of course for that period – whether study period the academic year or a semester – decision varied.
Social Security Act 1991 ss. 540, 541, 541A, 541B, 1237AAD
Beadle v Director-General of Social Security (1985) 60 ALR 225
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Secretary, Department of Family and Community Services and Machan [2001] AATA 434, (2001) 33AAR 174
Re Coleman and Secretary, Department of Family and Community Services [2002] AATA 772, (2002) 71 ALD 105
Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433
Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67
Secretary, Department of Family and Community Services v Gray [1999] FCA 1150, (1999) 57 ALD 67
DECISION AND REASONS FOR DECISION [2003] AATA 542
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2002/170
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
AndDONNA MARIE MATHESON
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 10 June, 2003
Place: Melbourne
Decision:The Tribunal:
1.sets aside that part of the decision of the Social Security Appeals Tribunal dated 18 April, 2002 in so far as it relates to the period from 20 October, 2000 to the end of the 2000 academic year; and
2.in respect of that part of the decision:
(1)substitutes a decision that the respondent was overpaid the amount of youth allowance paid to her in the period from 20 October, 2000 to the end of the 2000 academic year; and
(2)remits the matter to the applicant to determine the end of the 2000 academic year; and
3.otherwise affirms the decision under review.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 28 May, 2002, the applicant, the Secretary of the Department of Family and Community Services (“the Secretary”), applied for review of a decision of
the Social Security Appeals Tribunal (“SSAT”) dated 18 April, 2002. The SSAT’s decision had set aside a decision that had been made by a delegate of the Secretary on 25 January, 2002, and affirmed by an Authorised Review Officer on 12 March, 2002, to raise and recover from the respondent, Ms Donna Marie Matheson, a debt of $2,628.91 for the period 20 October, 2000 to 26 July, 2001. The delegate did so on the basis that Ms Matheson had not been undertaking full-time study during that period. That sum represented the youth allowance that had been paid to her. The SSAT substituted a decision that Ms Matheson had not been overpaid youth allowance.
At the hearing, Ms Pugsley, an advocate with Centrelink, represented the Secretary and Ms Matheson was represented by her advocate, Ms Riley. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) together with copies of Ms Matheson’s enrolment form for the year 2001, Subject Amendment to Enrolment dated 27 March, 2000, Course Amendment to Enrolment dated 21 March, 2001, a Transcript of Academic Record dated 9 April, 2002 and Ms Matheson’s claim for youth allowance. No oral evidence was given on behalf of the Secretary but Ms Matheson gave oral evidence in support of her case. After the hearing, I located Program Information and Student Notes relating to Ms Matheson’s study. Ms Pugsley and Ms Riley both consented to my referring to them.
THE ISSUE
The issue in this case is whether Ms Matheson was overpaid youth allowance during the period 20 October, 2000 to 26 July, 2001. If she was not undertaking full-time study throughout the period, she was overpaid. Whether she was undertaking full-time study or not depends upon the amount of study that she was undertaking in the particular study period for which she was enrolled for her course, or intended to undertake in the next study period for which she intended to enrol for her course. Provided she undertook at least three-quarters of the normal amount of study in respect of the course for that period, she was regarded as a full-time student. Resolution of this issue requires a consideration of what is meant by a “study period”, in particular, s. 541B of the Social Security Act 1991 (“the Act”).
BACKGROUND
There was no disagreement between the parties as to the facts forming the background in this case. In view of that and on the basis of the evidence, I have made the findings of fact that I set out in the following paragraphs.
In 1997, Ms Matheson commenced studies at the University of South Australia (“the University”) that would lead to a Bachelor of Arts Degree (Communication Studies). Her course was given the code MBAR Option A. In order to qualify for the degree, Ms Matheson had to complete subjects amounting to 108 units. Each course was allotted 4.5 credit points. It was a three year Program, which Ms Matheson commenced in 1997. She enrolled in, and completed, courses equating to 36 units in 1997 and equating to 31.5 units in 1998. Ms Matheson interrupted her studies in 1999 in order to work full-time.
In 2000, Ms Matheson resumed her studies and enrolled in six courses equating to 27 points. On 21 February, 2000, she submitted a Subject Amendment to Enrolment form and enrolled in eight subjects equating to 36 units. At that stage, she indicated that she would complete her course in Semester 3 of 2001. On 27 March, 2000, she withdrew from Communication Practicum I and Desktop Publishing in Semester 1 and added Desktop Publishing to Semester 2. As a result of the amendment, Ms Matheson noted on the Subject Amendment to Enrolment Form that she would now complete her course in Semester 1 of 2001. On that form, Ms Matheson noted that her original enrolment had been incorrect as she had enrolled in Communication Practicum I in both semesters and was unable to attend Desktop Publishing in Semester 1. She subsequently withdrew from three of those courses leaving her with 22.5 units undertaken and completed in 2000.
At the end of 2000, Ms Matheson had six subjects remaining to complete her degree. They were Communication Practicum I, Media Production 5: Specialisations, Radio and Society, Communication Practicum II, Desktop Publishing and Media Production 6: Professional Standards. On 13 November, 2000, Ms Matheson submitted an enrolment for 2001. By this time, the language used in the University had changed. A course was now referred to as a Program, a subject as a course and a (credit) point as a unit. Ms Matheson submitted an enrolment in respect of six courses. That equated with 27 points. Three of them were to be undertaken in Semester 1 and three in Semester 2 of 2001. Ms Matheson noted on her form that she would undertake three in Semester 1 and three in Semester 2 and that she expected to complete the Program in Semester 2 of 2001, her Program load was full-time and that her mode of attending was “Internal/mixed”. In addition, Ms Matheson noted that she was enrolling in the third year of the Program.
On 31 October, 2000, Ms Matheson lodged a claim for youth allowance. By this time, Ms Matheson, who lived with her parents, was in the third year of her studies. She stated in her claim that she was undertaking full-time study and had completed each semester of her three years of study in 1997, 1998 and 1999 on a full-time basis. Her course in 2001 would be full-time for both Semester 1 and Semester 2. She stated that she was also employed as a sales assistant for eleven hours each week for $163.00 each week. She indicated that, excluding private study times, she would spend 15 hours each week undertaking formal course work.
Ms Matheson’s claim for youth allowance was ultimately granted and it was paid to her with effect from 20 October, 2000 on the basis that she was a full-time student. In a letter dated 2 November, 2000 she was advised of the decision and that she would be paid the “at home” rate of youth allowance. Ms Matheson was advised that:
“We have recorded that you are studying full-time. If your study load changes or if you cease study you should let us know within 14 days. You can earn up to $230 a fortnight before your income affects your payments because you are now studying or training full-time. …
…
You must tell us within 14 days about events or changes in circumstances affecting your payment. You can tell us by writing, phoning or coming into any of our offices.
This is an information notice given under the social security law.
…
THE CHANGES YOU MUST TELL CENTRELINK ABOUT ARE:
…
stop being a full-time student;
…” (T documents, pages 20-21)
Semester 1 and lectures commenced on 26 February, 2001 and the semester break commenced on 2 July, 2001. Semester 2 commenced on 23 July, 2001 and the end of year break began on 26 November, 2001. Due to the manner in which the University had scheduled its subjects, Ms Matheson could only undertake two subjects (Communication Practicum I and Media Production 5: Specialisations) in Semester 1 and four (Radio and Society, Communication Practicum II, Desktop Publishing and Media Production 6: Professional Standards) in Semester 2 of 2001. She submitted a Course Amendment to Enrolment to the University on 13 March, 2001. The University considered that Ms Matheson was enrolled as a full-time student in 2001 and indicated that in a memorandum dated 8 March, 2002 (T documents, page 34) and in its Notification of Results for 2001 (T documents, page 25). I also find that Ms Matheson was given a card indicating that she was a full-time student.
THE LEGISLATIVE BACKGROUND
Part 2.11 of the Act provides for youth allowance. The basic qualifications are set out in Subdivision A of Division 1.. In so far as they are relevant, those basic qualifications are:
“Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:
(a)either of the following applies:
(i)throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
(ii)…
(b)…
(c)…
(d)…” (s. 540)
Sections 541 and 541A are concerned with the activity test. In general terms, a person satisfies the activity test in respect of a period if he or she satisfies the Secretary that, throughout the period, he or she is undertaking full-time study, actively seeking and willing to undertake paid work in Australia, taking reasonable steps to comply with the terms of a Youth Allowance Activity Agreement or taking reasonable steps to comply with a requirement of the Secretary notified to him or her under s. 541(2) (s. 541(1)). A person cannot be taken to satisfy the activity test in the circumstances set out in ss. 541(3) and 541A of the Act.
What is meant by “undertaking full-time study” is dealt with in s. 541B(1) of the Act:
“For the purposes of this Act, a person is undertaking full-time study if:
(a)the person;
(i)is enrolled in a course of education at an educational institution; or
(ii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(i)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; and
(b)the person:
(i)is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
(ii)intends to undertake in the next study period for which he or she intends to enrol for the course;
either
(iii)in a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) or (4)); or
(iv)in a case to which subsection (1A) applies – at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and
(c)the course in question is an approved course of education or study (see subsection (5); and
(d)in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.”
The expression “normal amount of full-time study in respect of the course” as used in s. 541B(1)(b) is defined to mean:
“(a) if the course is a designated course of study within the meaning of Chapter 4 of the Higher Education Funding Act 1988 – the standard student load determined in respect of the course by the institution in question under subsection 39(2) of that Act; or
(b)if the course is not such a designated course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course –the amount so defined; or
(c)otherwise – an amount of full-time study that a full-time student equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.” (s. 541B(2))
Section 541B(3) is also concerned with the meaning of the expression, “normal amount of full-time study in respect of a course” and it provides:
“For the purposes of paragraph (1)(b), and without limiting subsection (2), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.”
Again for the purposes of s. 541B(1)(b), s. 541B(4) provides that:
“… a person is taken to be undertaking full-time study in respect of a course during the period (the relevant period):
(a)starting on the first day of classes in a study period; and
(b)ending on the Friday of the second week of classes in the study period;
if the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period.”
Section 541B(1A) sets out the circumstances in which s. 541B(1)(b)(iv) has application. They are circumstances in which
“… the person cannot undertake the normal amount of full-time study in respect of the course for that period:
(a)because of the usual requirements of the institution in question in respect of the course; or
(b)because of a specific direction in writing to the student from the academic registrar, or an equivalent officer, of the institution in question; or
(c)because the academic registrar, or an equivalent officer, of the institution in question recommends in writing that the person undertake the amount of study mentioned in subparagraph (1)(b)(iv) in respect of the course for specified academic or vocational reasons.”
CONSIDERATION
In essence, Ms Pugsley submitted that the words “particular study period (such as, for example, a semester) for which he or she is enrolled in the course”, as they are used in s. 541B(1)(b)(i), should be interpreted to refer to a period representing a semester and not to the whole of the academic year. She submitted that the reference to “a semester” in s. 541B(1)(b)(i) is a strong indicator that the “particular study period” to which reference is made is a semester. A more prescriptive approach precludes enrolment options outside the traditional university structure. Enrolment, Ms Pugsley submitted, is a matter of administrative convenience. Enrolling students for an entire year’s progamme is a cost effective approach to administration and allows both the academic institution and students to plan their year’s work. What she described as the “aggregate style of enrolment” does not remove the distinction between distinct periods for which subjects are scheduled. Students may modify their enrolment without penalty provided they do so within set periods.
Particular reference needs to be made to the fact that the provision requires that the person “is enrolled”, Ms Pugsley submitted. That means that regard must be had to his or her enrolment at the point of time being considered. If the study period were the whole of the academic year, the person would be unable to demonstrate enrolment in Semester 1 subjects when he or she was studying in Semester 2. Defining a “study period” as the academic year precludes a person from applying for youth allowance were he or she to enrol for full-time study in only Semester 1 but undertake no study at all in Semester 2. It is only appropriate to define a “study period” as an academic year if the subjects he or she is studying occupy the whole of the academic year.
Ms Pugsley supported her submission by reference to the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 (“Study Progress Guidelines”), the Explanatory Memoranda to the Social Security Legislation Amendment (Youth Allowance) Act 1998 (“1998 Amendment Act”) and the Youth Allowance Consolidation Act 2000 (“Consolidation Act”). With regard to the Study Progress Guidelines, Ms Pugsley noted that satisfactory progress in a long course (i.e. a course longer than one year; clause 1.4) is completion of the course within the standard minimum length of the course plus an additional period for completion of one uncompleted subject or unit that is part of the course (clause 2.1). To define the “study period” in s. 541B(1)(b)(i) as an academic year would render this provision redundant, Ms Pugsley submitted.
Relying on the Second Reading Speech to the Youth Allowance Bill 1997, Ms Riley submitted that the object of the provisions relating to youth allowance were to “… encourage young people to complete or further their education by removing undesirable incentives to leave education early …” and “… to make income support arrangements simpler and more flexible”.. She also submitted that an uneven study load should be assigned a yearly value. That was the situation in Ms Matheson’s case. She was viewed by the University as a full-time student and paid fees and was issued a student card accordingly.
Both Ms Pugsley and Ms Riley referred to authorities, which they acknowledged were in conflict. Ms Pugsley preferred the approach of the Tribunal in Re Coleman and Secretary, Department of Family and Community Services [2002] AATA 772, (2002) 71 ALD 105 (Senior Member Kiosoglous). In Coleman, Senior Member Kiosoglous concluded:
“39. In considering this matter the Tribunal agrees with the Department that it needs to consider the need for flexible learning options by the various universities in providing their courses. The Tribunal is satisfied that the Department's semester focus is not exclusionary but a rather consistent approach to students in similar circumstances. In making submissions Mr Underwood referred to the extrinsic evidence and the legislation. The Tribunal is satisfied that the legislation supported by the extrinsic evidence means that a student has to do a certain amount of points per semester and on the facts presented to this Tribunal the applicant unfortunately falls short.
40. Notwithstanding this and the intention of the legislation it is not made clear to students as to the proper interpretation of the legislation so as to enable students to know how to spread out their subjects during the year. The Tribunal is satisfied and finds that the youth allowance is not a study allowance but rather an activity allowance which allows, inter alia, the right to study. The proper meaning should be made quite clear to students to assist them in planning their study program not only for a full academic year but also for the amount of subjects it is necessary for them to undertake each semester in order to reach the 75% minimum required in section 541B(1)(b)(i) of the Act. This is unfortunate for the applicant who has shown himself to be a very keen and conscientious student.” (pages 112-113)
Ms Riley relied on the general approach of the Federal Court in Secretary, Department of Family and Community Services v Gray [1999] FCA 1150, (1999) 57 ALD 67 and the particular approach of the Tribunal in Re Secretary, Department of Family and Community Services and Machan [2001] AATA 434 (Senior Member Allen). She submitted that the words “study period” should be interpreted as referring to the whole of the year in the circumstances of this case. In Machan, Senior Member Allen found that Ms Machan was enrolled in the fourth year of an engineering degree. She structured her study so that she completed all of her compulsory and elective subjects in the first semester and concentrated only upon a thesis in the second semester. Senior Member Allen found that the University of Sydney considered that Ms Machan was enrolled on a yearly basis rather than, as might occur in some other faculties, on a semester basis.
Since these two cases were decided, Deputy President Handley has delivered a decision in Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433 in relation to similar provisions relating to Austudy payments. Mr Zhang initially enrolled in five subjects in each of two semesters in a Bachelor of Information and Communication Technology degree at the University of Wollongong. He subsequently withdrew from two in the autumn session and later withdrew from three in the spring semester. He also enrolled in two subjects in the summer session. Consequently, he completed five in the first two sessions of the year but completed a further two subjects in the summer session. The University of Wollongong had determined that the standard student load was 48 credit points per year and that a student would ordinarily undertake eight subjects each worth six credit points. In the three sessions during the year, Mr Zhang completed seven subjects worth 42 credit points. He completed more than three-quarters of the full-time study load for the year.
Deputy President Handley’s concluded that Mr Zhang was not a full-time student for the following reasons:
“36. The issue that has arisen in this case is as a result of Mr Zhang’s spreading the normal full-time student load undertaken in spring session over the spring and summer sessions. He did this in order to undertake what he perceived to be two particularly difficult subjects in spring session 2001 in the aftermath of the theft and torching of his car. Neither the legislation nor the departmental policy makes any express reference to a situation where a student spreads their load over three sessions. In the Tribunal’s view, clarification is required.
37. The Tribunal considers that the decision in Re Machan (supra) should be distinguished from this case because the student in that case was at all times regarded by the University of Sydney as a full-time student and because of the particular character of the thesis subject she undertook which was recognised as requiring a very significant commitment of time. Moreover, the Tribunal found that results were annual and the emphasis was on yearly enrolment.
38. The facts of Re Coleman (supra) are closer to those in Mr Zhang’s case. In Re Coleman, a less than three quarter load in one semester was dictated because of the subjects on offer. The student completed more than a three quarter load if his enrolments in both semesters were taken into account.
39. While in many tertiary institutions, the standard student load is determined on an annual basis, because subjects are often semester based or sessional, a student may be permitted to study full-time in one semester and part-time in another. The dictates of work and family not uncommonly require this. In the Tribunal’s view, the bachelor degree in which Mr Zhang was enrolled at the University of Wollongong was, at least in the first year of the program, organised around semester based or sessional subjects. The particular study period was one semester or session. The fact that students enrolled for both autumn and spring sessions at the beginning of the academic year was a matter of administrative convenience and it was open to students to vary their enrolment for spring session at a later time.
40. In Mr Zhang’s case, he undertook and completed only two subjects in spring session 2001, representing one half of a standard student load for one session. The Tribunal notes that the advice he received from a University administrative officer did not identify this as a problem in relation to his Austudy payments. Mr Zhang had an obligation to notify Centrelink of the variation in his enrolment for spring session 2001 – and he attempted to do so. That attempt, however, failed. Had it succeeded, Mr Zhang might not be in his present predicament. Nevertheless, there were mitigating circumstances which the Tribunal discusses below.
41. The Tribunal concludes that because Mr Zhang only completed one half of a standard student load in spring session 2001, he was not qualified for Austudy payments in that session and an overpayment of Austudy, constituting a debt to the Commonwealth, was correctly raised against him.”
In Gray, Hill J was concerned with whether Mr Gray was a full-time student within the meaning of the provisions of the Austudy Regulations made under the Student and Youth Assistance Act 1973 (“the SYA Act”) but his approach is relevant in this case. It was to dissect the requirements of the Austudy Regulations and then to apply the facts to those requirements. That is the approach that I intend to apply in this case. When I do that and disregarding some of the requirements that are not in dispute in this case, the requirements are that, throughout the period under consideration:
Ms Matheson must be enrolled in a course of education at an educational institution or must intend to re-enrol in the course when enrolments are next accepted (s. 541B(1)(a));
the course must be an approved course of education or study (s. 541B(1)(c);
she is either undertaking in the particular study period for which she is enrolled for the course, or intends to undertake in the study period for which she intends to enrol for the course, what I will call the “requisite amount of work” (s. 541B(b)(i) and (ii));
in the circumstances of this case, the “requisite amount of work”, is a minimum of three-quarters of the normal amount of full-time study in respect of the course for that period (s. 541B(b)(iii)). “That period” must refer back to the particular study period for which Ms Matheson was enrolled; and
in the Secretary’s opinion, Ms Matheson is making satisfactory progress towards completing the course (s. 541B(1)(d)).
Having set out the requirements in this way, it seems to me on their face that the emphasis of the requirements set out in s. 541B is upon enrolment. It is upon enrolment in the course. It then moves to the study period for which the person is enrolled and then to the normal amount of full-time study for the period for which he or she is enrolled for that study period. The study period for which a person is enrolled then becomes a question to be ascertained on the facts of the case. Reference is made to a semester in s. 541B(1)(b)(i) but it is given as an example and not as the only possible period of study for which a person may be enrolled. I note that this interpretation is consistent with s. 15AD(a) of the Acts Interpretation Act 1901, which provides that “Where an Act includes an example of the operation of a provision … the example shall not be taken to be exhaustive”.
Reference was also made to the Study Progress Guidelines. They are a disallowable instrument made by the Minister under s. 541B(3B) of the Act and so have the character of delegated legislation. As a general rule, regard is not had to delegated legislation in interpreting the provisions of the Act. There are, however, exceptions to that general rule. Of relevance in the circumstances of this case are two exceptions. One occurs when regard must be had to both an Act and the delegated legislation made under it in order to ascertain the nature of a scheme. The other is perhaps a variation on the theme of the first. That occurs where an Act and the delegated legislation is prepared contemporaneously and establish an
interdependent regime (Pearce and Geddes, Statutory Interpretation in Australia, 5th edition, 2001, paragraph 3.37 and cases referred to therein).
In this case, it is not the case that regard must be had to both the Act and the Study Progress Guidelines to ascertain the nature of the scheme. The nature is clear from the Act. Rather, it is the case that the Study Progress Guidelines supplement one of the details of the scheme provided for in the Act. Whether their supplementary nature goes so far as to mean that the two establish an interdependent regime is not something that I need decide. Even if they do, I do not consider that the Study Progress Guidelines assist in the interpretation of the period to which reference is made in s. 541B.. They specify what amounts to satisfactory progress in relation to a long course, short course, honours course, masters qualifying course, combined course option and competency-based training and self-paced study together with study following failure of a previous course or withdrawal from a previous course. A “long course” is a “… course of education the standard minimum length of which is a period longer than 1 year” (cl. 1.4). In relation to such a course:
“satisfactory progress … is completion of the course within a period of time comprising:
(a)the standard minimum length of the course; and
(c)an additional period for the completion of 1 uncompleted subject or unit that is part of the course.
Examples
1. If the course is a 3 year course and includes semester units, one of which has been failed, or not completed – satisfactory progress is completion in 3 years and 1 further semester; or
2. If the course is a 3 year course and includes yearly units, one of which has been failed, or not completed – satisfactory progress is completion in 3 years and 1 further year
…” (cl. 2.1(1))
This provision in relation to the satisfactory completion of a long course does not shed any different light, or any light indeed, on the manner in which s. 541B(1)(b)(i) should be interpreted. It assumes that subjects will be either a semester or a year in length and sets the time for successful completion accordingly. In order to have effect, it does not necessarily require that the study period for which a person is enrolled for a course extends only for one semester if the subjects or units comprising the course are each completed in a semester. The two operate quite independently. A person may be undertaking full-time study in the particular study period for which he or she is involved and, regardless of the length of that study period, may not be regarded as making satisfactory progress towards completing it by reference to the time within which the person completes the course.
In summary, it seems to me that no assistance is to be gained from either the Study Progress Guidelines or the Explanatory Memoranda. What is the study period for which a person is enrolled remains a question of fact to be decided in each case. This is not an easy question to answer in this case because there is very little information available to me from the University.
In the case of Ms Matheson, certain factors point to the study period’s being the full academic year. The first is that she has enrolled for the academic year on each occasion. Certainly, her enrolment indicates that some subjects are to be studied in Semester 1 and others in Semester 2 but that does not detract from her enrolment for the course being for the whole of the year. It only indicates an administratively expedient way of managing the load both for the student and the University. This is supported also by the reference in the Student Notes to the University’s stating that “A full-time student is one undertaking at least 75% of the load prescribed in the schedules as a normal full year’s work”. The second is that the enrolment form is headed “enrolment – 2001” suggesting that enrolment is for the whole of the year and not just part of it. The third is that Ms Matheson was permitted to change subjects from one semester to the other. Certainly, changes had to be effected by certain dates in each semester in order to avoid a person’s incurring a HECS debt or a failure in the subject but that reflects only upon the person’s enrolment in particular subjects during the year and not upon his or her enrolment in the course. The fourth is that the Program Information relating to Ms Matheson’s course suggests that a person would, in a typical full-time programme, complete 36 points spread evenly over the two semesters in each of the three year course (Program Information, note 7). That general statement is, however, qualified by the further statement that the order of courses, or subjects, may be varied to suit individual students subject only to their meeting timetabling constraints and pre-requisites are met (Program Information, note 7).
Starting with this last aspect and looking at the case from the other point of view, it could be said that the variation of the courses does not detract from the fact that the University itself has said that the typical full-time programme is spread evenly over two semesters and typically comprises 18 units in each of the two semesters. The specification of dates in each of the two semesters for withdrawal from subjects and the payment of HECS fees suggests that the course is semester-based and not year-based. Enrolment in the course for the year is only an administrative convenience and does not alter the fact that enrolment is in respect of each semester.
Having regard to these aspects and to the evidence in the case generally, I have concluded that the particular study period for which Ms Matheson was enrolled for the course was an academic year. The subjects she studied during that study period were spread between two semesters and each only extended for the length of a semester but s. 541B(1) is not referring to the study period for which Ms Matheson was enrolled in a subject but to the study period during which she was enrolled in the course. The focus is not upon the subjects at that stage but upon the course. Whether it was a matter of administrative expediency or not, the fact remains that her enrolment extended across the whole of the academic year even if the individual subjects did not. The specification of separate dates to pay student amenities fees and HECS fees in Semester 1 and Semester 2 spreads the costs but does not break the study period into two.
The next issue is to determine what amounts to the normal amount of full-time study in respect of the course for that period. While I accept that Ms Matheson held a full-time student card and was regarded by the University as a full-time student for the whole of the period, s. 541B has its own way of deciding whether or not she is undertaking full-time study. It is based on how much of the normal amount of full-time study in respect of the course that she “is undertaking” or “intends to undertake” in the study period. I do not have any evidence that the University has determined a standard student load pursuant to s. 39 of the Higher Education Funding Act 1988 or that it has defined the amount of full-time study that a student should typically undertake. That means that I must look to s. 541B(2)(c) and look to the average amount of full-time study that she would have to undertake for the duration of the course in order to complete it in the minimum time. As I have already found that 108 units represents the amount of full-time study and the minimum time to complete it is three years, the average amount of study in the study period would be 36 units.
Having reached this conclusion, I must now look to the application of my conclusions in Ms Matheson’s case. Although the debt has been raised against her in respect of the period from 20 October, 2000 to 26 July, 2001, it seems to me that I need to look at the period in three separate segments. One runs from 20 October, 2000 until the completion of the academic year in 2000. The next runs from the completion of the academic year until she is actually enrolled by the University for the 2001 academic year and the final runs from the date of her enrolment until 26 July, 2001. This follows from the requirements of s. 541B(1) that I must look to the amount of study that Ms Matheson is undertaking in the particular study period or intends to undertake in the next study period for which she intended to enrol.
The period from 20 October, 2000 to the end of the academic year in 2000 was a part only of the study period comprising the whole of the 2000 academic year. Looking at the study period as a whole, as I think I must, Ms Matheson was undertaking study in subjects representing only 22.5 units. That is less than three-quarters of the full-time study for that study period. There has been no suggestion that the ameliorating provisions of s. 541B(1A) apply in this case but, even if they did, she would not benefit from them for 22.5 units is less than two-thirds of the normal amount of full-time study.
The period from the end of the academic year to the acceptance of Ms Matheson’s enrolment in the course for 2001 is a period in which I find that she intended to re-enrol in the course. This is shown by her completing the enrolment form before the end of the 2000 academic year. In this period, she intended to undertake subjects representing 27 units. This represents three-quarters of the full-time study for the study period in 2001 and so Ms Matheson satisfied the requirements of s. 541B(1) in this period.
Although she changed the subjects in which she was enrolled in March, 2001, she continued to be undertaking subjects representing 27 points even though she studied only two of them in Semester 1 and four in Semester 2. As the study period is the academic year and not each semester, I find that Ms Matheson satisfied the requirements of s. 541B(1) for the period beginning from the date of her enrolment for the course in 2001 to 26 July, 2001. I note that the application of the Study Progress Guidelines and s. 541B(1)(d) would mean that Ms Matheson could not receive youth allowance beyond Semester 1 of 2001. That is because she could only be regarded as making satisfactory progress if she completed the three year course comprising subjects extending over a semester in three years plus a semester.
The result of my conclusions is that Ms Matheson was overpaid youth allowance for the period from 20 October, 2000 to the end of the academic year in 2000. In view of the provisions of s. 1223(1) of the Act, the amount that she was overpaid was a debt due to the Commonwealth as she was not qualified for youth allowance and the amount was not payable.
Should the amount of that debt be waived? The Secretary may waive the Commonwealth’s right to recover the whole or part of a debt from a person only in the circumstances set out in ss.. 1237A 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD of the Act (s. 1237(1)). Only one section is relevant in this case. It is s. 1237AAD, which provides:
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that makes it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
I am satisfied that the debt did not arise as a result of Ms Matheson’s making a false statement or representation. The debt may only be waived if the second aspect of s. 1237AAD is also satisfied. That is that there are special circumstances that make it desirable to waive. The expression, “special circumstances”, has been considered in the past. I have had regard first to the words of the Full Court of the Federal Court when it said that it is not “... possible to lay down precise limits or precise rules.” (Beadle v Director-General of Social Security (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ)). Of the expression “special circumstances”, it has been said by Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 that:
“… although imprecise [it is] sufficiently understood not to require judicial gloss: Beadle’s case [(1985) 60 ALR 225, 7 ALD 670] (at ALR 229; ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.” (page 545)
More recently, the expression was considered again by Kiefel J in a different context in Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67. Her Honour adopted similar principles and considered their application in the context of determining the length of a preclusion period when a person has received a compensation payment. In doing so, she clearly referred not only to the circumstances of the individual affected by the preclusion provisions of the Act but to the effect that those preclusion provisions were intended to achieve and the consequences for every person who was affected by them. Having regard to all of the circumstances, would the result be one that is unfair, unintended or unjust so that the circumstances may be described as special?
In this case, the provisions of the Act are clearly intended to characterise as debts owed to the Commonwealth amounts of Commonwealth money paid to a person who was not entitled to receive them regardless of whether that person received them in good faith or not. The objective is to recover those debts but latitude is allowed if there are special circumstances. Ms Matheson’s being paid youth allowance in that period did not arise because of any deliberately made false statement on her part. Ms Matheson did, though, make a false statement and she was overpaid youth allowance because of it. That false statement was given in relation to question 13 when she was asked whether she was enrolled on a full-time or part time basis. Fully believing her answer to be honest and accurate, she answered that she was full-time. The question, however, specifically drew her attention to the fact that she needed to meet the course workload rules if she were to be a full-time student and so eligible for youth allowance. As Ms Matheson does not meet the requirements of s. 1237AAD(a) of the Act, I am unable to waive the debt.
For the reasons I have given, I:
1.set aside that part of the decision of the Social Security Appeals Tribunal dated 18 April, 2002 in so far as it relates to the period from 20 October, 2000 to the end of the 2000 academic year; and
2.in respect of that part of the decision:
(1)substitute a decision that the respondent was overpaid the amount of youth allowance paid to her in the period from 20 October, 2000 to the end of the 2000 academic year; and
(2)remit the matter to the applicant to determine the end of the 2000 academic year; and
3.otherwise affirm the decision under review.
I certify that the forty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: .....(sgd. P. Paczkowski)..........................
P. Paczkowski Associate
Date/s of Hearing 7 March, 2003
Date of Decision 10 June, 2003Advocate for the Applicant Ms A. Pugsley
The Service Recovery Team CentrelinkAdvocate for the Applicant Ms M. Riley
Welfare Rights Centre
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