Messner and Secretary, Department of Employment and Workplace Relations

[2006] AATA 437

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/306

GENERAL ADMINISTRATIVE DIVISION		)
Re		HELENE MESSNER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date19 May 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Pensioner Education Supplement – allowable study time for a course – the progress rules – failed subject not sufficient to satisfy requirement of failed year or part year of study – disability, age and time out of work force rather than illness preventing return to workforce – decision affirmed

Social Security Act 1991 s 1061PI

REASONS FOR DECISION

19 May 2006   Senior Member L Hastwell   

1.      Ms Helene Messner (the applicant) was a recipient of Pensioner Education Supplement (PES) for the period 1998 to 2002 while studying for a Bachelor of Arts degree at the University of Adelaide.  

2.      She then received PES during 2003 and 2004 while studying for a Graduate Diploma in Social Science (Counselling). 

3.      In 2005 she applied for PES once more while enrolled in a Professional Certificate in Art History at the University of Adelaide.  Her claim was rejected on 13 April 2005 on the basis that the previous course studied was a Level A course and she could not be granted PES for the study of two Level A courses as she would then exceed the allowable study time for a course at that level.

4.      An Authorised Review Officer further affirmed the decision on 29 June 2005.   The Social Security Appeals Tribunal (the SSAT) affirmed the decision on 2 November 2005.  The applicant seeks review of the decision of the SSAT.

legislation

5.      The relevant legislation is contained in the Social Security Act 1991 (the Act).  There are certain qualifications to receive PES.  The contentious issue in this case relates to whether the applicant has exceeded the allowable study time for a Level A course.  She has completed a Level B course and one previous Level A course.

6.      To be eligible for PES a student must satisfy the progress rules which require that only a certain amount of time can be spent studying at each level.

7. Sections 1061PI(1) and 1061PI(2) of the Act provide that there is an allowable study time for a course at each level during which PES is payable. Section 1061PI(3) of the Act applies to both full-time students and 66 percent concessional study load students and provides as follows:

“(3)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.”

8. Section 1061PI(9) of the Act sets out what qualifies as a Level A course as follows:

“(9)     The following are Level A courses:

(a)      a postgraduate bachelor degree course, with or without honours;

(b)      a graduate or postgraduate diploma course;

(c)      a course of practical legal training at a higher education institution;

(d)a course of advanced education regarded by an accrediting authority as being at PG1 level;

(e)      a graduate certificate course.”

9. Section 1061PI(7) of the Act sets out circumstances in which previous study can be disregarded when considering if a person has exceeded their allowable study time. Section 1061PI(7) relevantly provides as follows:

“(7)In determining whether a person has exceeded the allowable study time (for a full-time student or a concessional study-load student), disregard the following:

(a)if the person has completed a course (a pre-requisite course), the completion of which is the normal requirement for admission to the course in which the person is enrolled, or intends to enrol—time spent undertaking the pre-requisite course;

(b)a failed year of study, or a failed part of a year of study, if the failure is because of:

(i)        the person’s illness; or

(ii)       other circumstances beyond the person’s control;

…”

issues

10.     The issue for the Tribunal to determine is whether the applicant has satisfied the progress rules such that she remains qualified for PES.  In particular in determining that the Tribunal must decide:

·whether the applicant has exceeded the allowable study time for a course; and if so

·whether the Tribunal can disregard all or part of a year of study in determining whether she has exceeded the allowable study time.

the hearing

11.     The applicant represented herself at the hearing.  The Department was represented by Mr Goldsworthy.  The T documents were received into evidence.

12.     It was common ground that the Graduate Diploma in Social Science (Counselling) and the Professional Certificate in Art History are both Level A courses.

13.     The applicant suffers from multiple sclerosis and has for many years and she has substantial disabilities.  

14.     She completed a Bachelor of Arts at the University of Adelaide between 1998 and 2002 and she undertook a Graduate Diploma in Social Sciences (Counselling) at the University of South Australia in 2003-2004.  She was conferred her Bachelor of Arts degree in December 2002 and her Graduate Diploma in Social Science (Counselling) in September 2004. 

15.     She had hoped to go on to study for a Masters degree in Social Science and she enrolled in that program in January 2005.  She was then advised by the Department that she could not be paid PES for that program.  She deferred and then cancelled her enrolment in that course.  She then applied to study the Professional Certificate in Art History at the University of Adelaide, but was surprised to once more find that PES was rejected.  She had been told by a person that she spoke to at Centrelink that she should be paid PES for this course rather than for the Masters course that she had enrolled in previously.

16.     She agreed that she had been paid PES for both of her prior qualifications but she had little success in finding a position in the workforce, hence she had hoped that she may be able to find employment in an art gallery upon the conclusion of her current studies.

17.     After she completed her counselling qualification in 2004 she had applied for numerous counselling jobs, but with no success.  She was not offered an interview. 

18.     One of her many disabilities is that she is vision impaired and she was assisted with job applications by the Low Vision Centre.  After not being successful in gaining employment, she then applied for her Masters degree in the hope that particular qualification may improve her chances of obtaining employment. 

19.     The applicant acknowledged that she was currently 70 years of age and had not worked for 25 years since being diagnosed with multiple sclerosis. 

20.     She told the Tribunal that she is in financial hardship and at times she is reliant on charities to assist her with funding to enable her to carry on as a student.   She travels into town to study.  She cannot walk unaided.  She has poor vision and she cannot see to use a computer.  These impairments add to the cost of her study because special aids are necessary to enable her to study.

21.     She is continuing with her current studies despite lack of additional assistance from Government.  Her studies are very important to her and have given significant meaning to her very difficult life.

22.     She said that she had dropped one subject in her Graduate Diploma of Counselling in 2003 because of health issues.  She carried on with a smaller study load resulted in her studying in the second semester of 2004.  She hoped to actually finish that course in the first half of 2004, but finished it in the second half.  She was paid PES throughout 2004.

23.     She provided the Tribunal with a letter of support from her doctor, which confirmed her very significant disabilities.

finding of fact

24.     The Tribunal made the following findings of fact:

·The applicant successfully completed a Bachelor of Arts degree at the University of Adelaide in 2002.  She was paid PES for that course which is a Level B Course.

·For the years 2003 and 2004 the applicant was paid PES for her study of a Graduate Diploma in Social Science (Counselling) at the University of South Australia.  This is a Level A course.  She was awarded that diploma in September 2004.

·The Graduate Diploma in Social Science (Counselling) is a course that can be studied either on a full-time basis for one year or on a part-time basis for two years.  The applicant’s progress was slowed by her disabilities in that she had hoped to finish the course at least a semester earlier than she did, but she experienced health difficulties in the latter part of the first year of the course.  She was paid PES for two years in relation to that course.

·The applicant is now enrolled in a Professional Certificate in Art History that is a one year full-time or two year part-time Level A course.  She is likely to complete that course as a concessional study load student.

consideration and application of the law

25.     Whether a person qualifies for PES depends (inter alia) on whether they satisfy the progress rules set out under the Act. These rules are set out in ss 1061PI(1) and(2) of the Act. A person satisfies the progress rules if “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. The allowable study time for a course is set out in s 1061PI(3) of the Act .In particular paragraph (b) sets out the allowable time for a concessional load student. The allowable study time is:

“1061PI(3)The allowable study time for a course undertaken by a full-time student or a 66% concessional study-load student is:

…

(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

…”

27.     The Tribunal understood from the evidence that the minimum amount of time needed to complete the Graduate Diploma Social Science (Counselling) was one year and so the allowable study time for that Level A course was one year, however one further year of PES was paid to the applicant and she received PES for the maximum allowable time.  

28. The Graduate Diploma is a Level A course as set out in s 1061PI(9)(b) of the Act and that the Graduate Certificate in Art History is also a Level A course as set out in s 1061PI(9)(e).

29.     The applicant has therefore had the maximum allowable time for study for a course at Level A and no longer satisfies the progress rules in that she has reached the allowable time for Level A study.  PES is therefore not payable for her current course unless the Tribunal is able to disregard some of the time she has already spent studying at Level A.

30. Section 1061PI(7) sets out the various grounds on which part of a course can be disregarded when assessing allowable study time at any given level. There are two possible provisions to consider, namely:

“1061PI(7)In determining whether a person has exceeded the allowable study time (for a full-time student or a concessional study-load student), disregard the following:

…

(b)a failed year of study, or a failed part of a year of study, if the failure is because of:

(i)        the person’s illness; or

(ii)        other circumstances beyond the person’s control;

…

(d)time spent undertaking a course that has been completed but which, because of the person’s illness, the person cannot use in any of the trades or profession to which the course is appropriate;

…”

31.     The applicant asserts that she dropped one subject and failed one subject in the second semester of 2003 because she was hospitalised due to deterioration in her health.  Her academic transcript from the University of South Australia confirms that she failed one subject in the latter half of 2003 and successfully completed the others.  It does not indicate any withdrawals from a subject in that semester.  The subject that she failed was worth 4.5 points.

32.     At the conclusion of the 2003 academic year the applicant had 9 units of her course to complete which were successfully completed in the second year of the course.  She was paid PES throughout that second year.

33.     The applicant did not fail a year or a part of a year of study.  She failed one subject that had little impact on her progress as she continued to study in the next year as was her plan in any event.  The Tribunal is satisfied that It is not the legislative intention to allow a failed single subject to result in part of a year being disregarded.  The section appears to be aimed at a complete failure of a semester or whole year due to ill health that results in a person having to prolong their study.

34. Can s 1061PI(7)(d) of the Act apply? In this case, the applicant submitted that after completing her Diploma in Social Science she tried to obtain work, but was unsuccessful in obtaining that work hence the need to keep studying. The applicant suffers from disabilities that are very significant. It is not a specific illness as such that prevents her returning to the workforce. She is also 70 years of age and has been out of the work force for 25 years. Counselling is something that the applicant should be capable of doing. She is intelligent and has had a lot of experience of life both in her former profession as a nurse and mid wife and then as a significantly disabled person for many years.

35.     The Tribunal is satisfied that a combination of factors that include, but also go beyond her disability, have prevented her from returning to the workforce.  A significant factor being her age and her lack of work force experience for many years.  She is of retirement age and on her own admission she was not interviewed for any positions so her disability was not known to any prospective employer to whom she made an application.

36. In the circumstances the Tribunal is satisfied that there is no basis upon which any of the provisions of s 1061PI of the Act can apply.

37.     The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard.........................................
  Associate

Date of Hearing  11 April 2006
Date of Decision  19 May 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr C Goldsworthy
Solicitor for the Respondent     Centrelink Legal Services Branch