McKaskill and Secretary, Department of Education, Science and Training

[2007] AATA 1827

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1827

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1033

GENERAL ADMINISTRATIVE DIVISION		)
Re		KINGSLEY MCKASKILL

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date3 October 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]............................

SENIOR MEMBER  

CATCHWORDS

SOCIAL SECURITY – austudy payments – whether applicant had full-time student load for relevant period – whether applicant has to repay debt – decision of Social Security Appeals Tribunal affirmed

Social Security Act 1991 (Cth) ss 559C, 568, 569A, 569D, 1237A

REASONS FOR DECISION

3 October 2007   Senior Member P McDermott, RFD

Introduction

1.      I have to decide whether Mr Kingsley McKaskill was qualified to receive austudy payments while he was a student at Bond University in Semester 1 (or the January Semester) of 2006. My decision will depend upon whether he had a full-time student load in that semester.

Background

2.      On 12 December 2005 Mr McKaskill was offered a place in the Bachelor of Laws course at Bond University. This offer was conditional upon Mr McKaskill undertaking two law subjects only in Semester 1, 2006. In Semester 1, 2006 Mr McKaskill enrolled at Bond University and took two subjects (one law subject, and one non-law subject) that semester.

3.      On 12 April 2006 he was granted austudy to support him in his studies in Semester 1, 2006. The relevant period in which payments were made is 16 February 2006 to 22 April 2006. On 16 June 2006, the respondent made a decision that Mr McKaskill was not entitled to austudy for his studies in Semester 1, 2006 as he was only undertaking study in two subjects. The respondent determined that the study of two subjects was not a full-time student load. A debt of $1,577.87 was raised. On 9 August 2006 an authorised review officer with Centrelink affirmed that decision.

4.      On 16 February 2007 the Social Security Appeals Tribunal affirmed the decision of the authorised review officer.

5.      On 2 April 2007 Mr McKaskill made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal.

Eligibility Criteria

6. The entitlement to austudy payments is conferred by s 568 of the Social Security Act1991 (“the Act”). I have to determine whether Mr McKaskill satisfies the activity test: s 568(a). There are other provisions in s 568 that he clearly satisfies as he is of austudy age (s 568(b)) and is an Australian resident (s 568(c)).

7. The activity test is satisfied if a person is undertaking qualifying study under s 569A of the Act. What is in issue in this application is whether Mr McKaskill is a full-time student: s 569A(c). For Mr McKaskill to be considered a full-time student it is necessary when he lodged a claim for austudy that he intended to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period: s 559C(b).

8. At the hearing there was considerable argument as to what would constitute a full-time study load. Mr McKaskill had pointed out that the reasons of the Social Security Appeals Tribunal had made reference to a letter from Bond University which purported to state that “30 CP is regarded as a full-time workload” [T2, fol 7]. This portion of the letter squarely raised for consideration the issue whether Mr McKaskill, in undertaking a 20CP workload was undertaking 66% of a 30CP workload, should be regarded as a 66% concessional study-load student under s 596D of the Act.

9.      I decided that Mr McKaskill should be given an adjournment in order to produce that letter (which was not in the T Documents) to this Tribunal. In those circumstances I decided that it would only be fair to allow the advocate for the Secretary to obtain further evidence from Bond University as to the enrolment status of Mr McKaskill.

10.     I also allowed Mr McKaskill an adjournment to make further submissions as he was not in possession of the T Documents. A copy of those documents was provided to him by the advocate for the Secretary.

11.     The letter from Bond University which was referred to in the reasons of the Social Security Appeals Tribunal was written by the Administration Manager of the Faculty of Law. In that letter, dated 5 July 2006, there is the following statement: “A standard 10 credit point subject at Bond University requires approximately 10 hours of work per week, including all classes, preparation, assessment and private study. 30 CP is regarded as a full-time workload”. After that letter was produced to the Tribunal, Centrelink obtained further information from Bond University.

12.     On 8 August 2007 the Administration Manager of the Faculty of Law wrote to Centrelink to advise: “A normal full-time workload is 40 CP, so a minimum of 30 CP is required to be considered a full-time student”. The Administration Manager also provided clarification of the enrolment status of Mr McKaskill for the January semester of 2006.  In his letter he remarked: “He was enrolled on a part-time basis during January semester 2006 (ie January to April 2006)”.

Findings of Tribunal

13.     In determining this application I have considered the circumstances when Mr McKaskill lodged his austudy claim.

14. Having regard to the letter of 8 August 2007 from the Administration Manager of the Faculty of Law, I am satisfied that for the January 2006 semester Mr McKaskill could not be regarded as having the “full-time student load for the course” within the meaning of s 569E(1) of the Act. He was clearly regarded by Bond University as being a part-time student.

15. I consider that Mr McKaskill in undertaking a 20CP workload was undertaking 50% of the full-time student load for his course. He was undertaking less than three quarters of the normal amount of full-time study in respect of the Bachelor of Laws course for the January semester and so could not be regarded as a full-time student by virtue of s 559C of the Act. He could also not be regarded as a 66% concessional study-load student under s 596D of the Act.

16. I mention by way of completeness that the subjects that Mr McKaskill was enrolled to study at Bond University in Semester 1, 2006 were different to the subjects which were outlined in the letter of offer. That has the consequence that his studies could not be regarded as being undertaken in conformity to a “direction” under s 596D(5) of the Act.

17. I am satisfied that Mr McKaskill was overpaid austudy in the sum of $1,577.87 for the period from 16 February 2006 to 22 April 2006. This amount is a debt due to the Commonwealth under s 1223(1) of the Act.

18. Mr McKaskill did not give evidence at the hearing. He made a statement in support of his submission. In the circumstances there is no evidence before me to exercise the discretion to waive or write-off the debt. There is also no basis for the exercise of jurisdiction under s 1237A of the Act as the payment of austudy was not made as a result of administrative error on the part of the Commonwealth. The payment was made because when Mr McKaskill made a claim for austudy, he advised Centrelink that he was a full-time student.

19.     I wish to acknowledge the assistance which was provided by the advocate for the Secretary to Mr McKaskill at the hearing.

20.     I wish to also mention that in his submissions, Mr McKaskill has raised his concern about a Centrelink decision which was not reviewed by the Social Security Appeals Tribunal. I do not have jurisdiction to review that decision.

Decision

21.     I affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McDermott, RFD.

Signed:         .....................................................................................
           S. O’Grady, Associate

Date of Hearing  6 July 2007

Date of Written Submissions    10 August 2007, 7 September 2007,

14 September 2007

Date of Decision  3 October 2007
For the applicant  Self-represented
For the respondent                   Mr Keim, a departmental advocate