Mikulcik and Secretary, Department of Social Services (Social services second review)

Mikulcik and Secretary, Department of Social Services (Social services second review) [2022] AATA 2646 (18 August 2022)
Division:GENERAL DIVISION
File Number: 2021/7184
Re:Monica Mikulcik
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:18 August 2022
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[SGD].............................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Austudy payment – payment start date – rate of payment – basic rate or long term income support student rate – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Amohanga and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 894
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60
Giza and Secretary, Department of Social Services [2018] AATA 38
Jolly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 620
Perla and Secretary, Department of Social Services [2014] AATA 724; (2014) 64 AAR 532
Ponnahennadige and Secretary, Department of Social Services [2018] AATA 2505
Shi v Migration Agents Registration Authority (2008) 248 ALR 390; (2008) 235 CLR 286
REASONS FOR DECISION
Member D Mitchell
18 August 2022
INTRODUCTION

Ms Monica Mikulcik (the Applicant) has sought review of the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated

18 August 2021.[1] The SSCSD affirmed the decision of the Respondent to grant the Applicant’s claim for Austudy payment from 1 March 2021 and not to pay her Austudy payment at the long term income support rate.[2]
[1] Exhibit 1, T Documents, T1, pages 1-26, Application for Review.
[2] Exhibit 1, T Documents, T2, pages 27-30, Decision of the SSCSD.
BACKGROUND
The Applicant commenced a Bachelor of Laws (Honours) at the Queensland University of Technology (QUT) in February 2016.[3] The Applicant has undertaken a combination of

full-time and part-time study during her degree.[4]
[3] Exhibit 1, T Documents, T8, page 59, Applicant communication attaching enrolment document.
[4] Exhibit 1, T Documents, T8, page 60, Applicant communication attaching enrolment document.
The Applicant was in receipt of Austudy payment at all times from the commencement of her degree, other than for a period between August 2017 and March 2018[5] and from

1 September 2020 when she was transferred to jobseeker payment because she was not a full-time student.[6]
[5] Exhibit 1, T Documents, T22, page 103, Customer Record extracts.
[6] Exhibit 1, T Documents, T22, page 103, Customer Records extracts.
On 5 January 2021, the Applicant advised the Respondent that she had decided to continue her studies at QUT in Semester 1 of 2021 and had recently enrolled into three subjects.[7]
[7] Exhibit 1, T Documents, T5, pages 43-45, Applicant communication attaching Semester 1 2021 study record.
On 15 January 2021, the Applicant submitted a claim for Austudy payment.[8] In her claim, the Applicant provided that study period 1 for the current/future year was “Full-time commencing on 26 February 2021”.[9]
[8] Exhibit 1, T Documents, T7, pages 48-56, Online Austudy claim.
[9] Exhibit 1, T Documents, T7, page 52, Online Austudy claim.
On 10 February 2021, the Applicant provided further information[10] to the Respondent, seeking to study part-time in Semester 1, 2021 due to “pain caused by [her] disabilities”.[11] The Applicant submitted a proof of enrolment letter from QUT dated 10 February 2021 outlining that Semester 1 of 2021 commenced on 1 March 2021 and concluded on

26 June 2021[12] and a medical certificate dated 1 February 2021 from Dr Mansi Dalsania.[13]
[10]    Exhibit 1, T Documents, T8, pages 57-60, Applicant communication attaching enrolment document and T9, pages 61-63, Applicant communication attaching medical certificate.
[11]    Exhibit 1, T Documents, T9, pages 61-62, Applicant communication attaching medical certificate.
[12]    Exhibit 1, T Documents, T8, pages 57-60, Applicant communication attaching enrolment document.
[13]    Exhibit 1, T Documents, T9, pages 61-63, Applicant communication attaching medical certificate.
As the Applicant was enrolled in three subjects, she was considered to be a full-time student.[14]
[14] A person is a full-time student in respect of a course if the person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period as per section 569C of the Act.
On 8 March 2021, the Respondent notified the Applicant that it had decided that she would be paid Austudy payment from 1 March 2021.[15]
[15] Exhibit 1, T Documents, T10, pages 64-66, Centrelink letter: Your Austudy.
The Applicant had been in receipt of jobseeker payments from 1 September 2020 to

28 February 2021.[16] Consequently, she had been in receipt of jobseeker payments for 181 days prior to when she commenced study.[17]
[16] Exhibit 1, T Documents, T22, page 103, Allowance/Benefit History.
[17] Exhibit 1, T Documents, T15, page 80, ARO decision and notes.
On 15 March 2021, the Applicant made a complaint to the Respondent regarding the decision made on 8 March 2021.[18] The Applicant submitted that the date on which her Austudy payment should start was 8 March 2021, being the day her application was approved. She said that means that she had been on jobseeker for 27 weeks and was entitled to the higher rate of Austudy payment.[19]
[18] Exhibit 1, T Documents, T11, pages 67-70, Applicant complaint.
[19] Exhibit 1, T Documents, T11, pages 68-69, Applicant complaint.
The Applicant submitted that she was meeting the jobseeker payment requirements up to 8 March 2021 and was applying for jobs. She said that she had to meet the jobseeker payment requirements otherwise her payments would be cut off. The Applicant submitted that:[20]
Being a Jobseeker has impacted on my learning and studies. It is illegal to under pay me when I did Jobseeker work, from the 2 March 2021 till the 7^th March 2021, inclusive. This is the week that you are under paying me. I feel discriminated against other Jobseekers. I was not doing nothing on this payment. It is not my fault that this assessment took this long and created this hardship for me. I did apply for Austudy in January 2021, as soon as I was allowed to by Centrelink. That is plenty of time needed for my case and this hardship should not and cannot be taken out on me. I did everything that I was asked to do. That is something that Centrelink needs to deal with. This is what happened to me. It is a fact. There is no right to punish me like this because of Centrelink’s mistake. This mess does not allow for the normal rules to be applied to me when my circumstances are not normal. Centrelink must be fair to all and I did meet my obligations.
[20] Exhibit 1, T Documents, T11, page 68, Applicant complaint.
The Respondent took the Applicant’s complaint to be a request for review of the decision and notified her by letter dated 20 March 2021 that the decision had been sent to an Authorised Review Officer (ARO) for review.[21]
[21] Exhibit 1, T Documents, T12, page 71, Centrelink letter: Information about a recent decision.
On 8 April 2021, an ARO affirmed the decision made on 8 March 2021.[22] The ARO made the following findings:[23]
[22]    Exhibit 1, T Documents, T15, pages 76-81, ARO decision and notes.
[23]    Exhibit 1, T Documents, T15, page 76, ARO decision and notes.
Your review outcome
After carefully considering all relevant information, I have not changed the decisions. This is because your claim was granted from your course start date, being 1 March 2021. As you as you had not been in receipt of one of the relevant income support payments for 26 of the preceding 39 weeks prior to the grant of your Austudy payment you were not entitled to the Long Term Income Support rate.
Key findings:
·     You were granted JobSeeker Payment on 1 September 2020.
·     You submitted a claim for Austudy on 15 January 2021.
·     Your claim for Austudy was granted from the start date of your course,
1 March 2021.
·     You were not eligible for the Long Term Income Support rate of Austudy from
1 March 2021 as you had not been in receipt of one of the relevant income support payments for 26 of the preceding 39 weeks.
On 3 July 2021, the Applicant sought review of the ARO’s decision by the SSCSD.[24] On

4 July 2021, she provided submissions in support of her application for review.[25] Those submissions were consistent with those the Applicant provided in making a complaint with regards to the initial decision. However, they expanded on her interpretation of the Social Security Act 1991 (Cth) (the Act) and Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the requirements that were in place on her in relation to her jobseeker payment up until the date she was advised that she was being placed on Austudy payment.
[24] Exhibit 1, T Documents, T16, pages 82-87, Applicant for review by the SSCSD.
[25] Exhibit 1, T Documents, T17, pages 87-94, Applicant’s submissions.
On 18 August 2021, the SSCSD affirmed the ARO decision.[26]
[26] Exhibit 1, T Documents, T2, pages 27-30, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of the Tribunal by way of an application dated 27 September 2021.[27] The Applicant’s application outlined her reasons for considering that the reviewable decision was incorrect. The Applicant submitted that:[28]
·Her argument concerns being treated unfairly for the time period that she has proved that she suffered a disadvantage as compared to others.
·She had to perform many duties for Austudy and Centrelink such as studying the required amount of a higher education course and looking for work and talking to her job provider all while suffering from disabilities.
·The case law she outlined supports her argument as to why she should be paid Austudy payment from 8 March 2021 and therefore, she met the 26 week requirement.
·The case law she outlined demonstrates that the AAT can exercise discretion.
·Centrelink arguably breached section 8 of the Administration Act as it did not deal with her application in a fair, courteous, prompt and cost-efficient manner.
·If Centrelink had treated her fairly, they would have paid her on the 1^st of March 2021 and told her that she was now on Austudy payment and that she was released from her duties under jobseeker.
·Section 8 of the Administration Act is important and the Respondent did not comply with it.
·When studying law, the work and the stress really begins in week zero instead of week one. When Centrelink notified her about her Austudy payment, two weeks of her university study had gone by.
[27] Exhibit 1, T Documents, T1, pages 1-26, Application for Review of Decision.
[28] Exhibit 1, T Documents, T1, pages 1-26, Applicant for Review of Decision.
By consent of the parties, it was agreed that this matter could be adequately determined in their absence. The Tribunal agreed to review the reviewable decision in accordance with section 34J of the Administrative Appeals Tribunal Act1975 (Cth) and provided the parties with the opportunity to make final submissions. As such, a hearing was not conducted in this matter. The Tribunal’s decision has been reached “on the papers” having considered the documents filed by the parties.
The Tribunal considered the evidence provided by the parties and admitted the following into evidence:
·Exhibit 1, T Documents – Section 37 T-Documents.
·Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, including Attachment A, dated 17 February 2022.
·Exhibit 3, Applicant’s submission dated 16 March 2022.
·Exhibit 4, Applicant’s final written statement dated 25 June 2022.
The relevant law in relation to this matter is found in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act).
ISSUES
The issue for the Tribunal to determine is what is the correct rate of Austudy payment payable to the Applicant in relation to her return to study in Semester 1, 2021. In making such a determination, the Tribunal must consider the date from which Austudy payment became payable to the Applicant and at what rate.
RESPONDENT’S SUBMISSIONS
In the Respondent’s Statement of Issues, Facts and Contentions, the Respondent contended that Austudy payment was payable to the Applicant from 1 March 2021 and not from a later date.[29] The Respondent provided the following submissions in support of that contention:[30]
[29] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 2, 4.3.
[30] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 5, 4.13 to 4.15.
4.13 The Applicant enrolled in an approved course of full-time study at QUT on 1 March 2021 and therefore became qualified for austudy payment on this date. In support of this contention, the Secretary relies on:
(a)The QUT Proof of Enrolment letter dated 10 February 2021 at T8/59, which provided the following dates for Semester 1 of 2021: 01/03/2021 to 26/06/2021; and
(b)The QUT 2021 academic calendar at Attachment A, which confirms that teaching commenced on 1 March 2021.
(c)In the AAT1 hearing, the Applicant agreed 1 March 2021 was the relevant date (T2/30 at [20]).
(d)The Applicant states in her submissions dated 27 September 2021 (T1/3), ‘When studying law, the work and the stress really begins in week 0 not even week 1. When Centrelink told me on the 8th, two weeks of university had gone by. The semester really had begun.’
4.14 The Applicant made her claim for austudy payment on 15 January 2021, that is, before she became qualified for austudy payment on 1 March 2021. Clauses 3 and 4 of Schedule 2 of the Administration Act apply. The Applicant is taken to have made her claim for austudy payment on the first day on which she qualified for the payment and the start day in relation to the payment is the day on which the claim is made. Therefore, the Applicant’s start day for austudy payment is 1 March 2021.
4.15 There is no provision in the legislation for the Applicant’s start day for austudy payment to be a date other than that prescribed by clauses 3 and 4. Although there are provisions that allow for backdating of a person’s start day in certain limited circumstances, for example ss 13 and 14 of the Act, as was noted by the Tribunal in Dellaportas and Department of Family and Community Services [2001] AATA 837 at [10]:
The Act does not allow a decision-maker to exercise unfettered discretion in relation to the start date of a social security benefit or pension.
The Respondent further contended that the Applicant was not a long term income support student as at 1 March 2021. In support of that contention, the Respondent sought to rely on:[31]
(a)the Applicant’s Allowance/Benefit History at T22/103, which shows that the Applicant started receiving jobseeker payment on 1 September 2020; and
(b)the calculation in the ARO decision at T15/80, which shows that the Applicant was receiving jobseeker payment for 181 days between
[31] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 7, paragraph 4.22.
1 September 2020 and 1 March 2021, or 25 weeks and 6 days, this being one day less than the required 26 weeks.
The Respondent contended that as the Applicant was not a long term income support student as at 1 March 2021, her rate of Austudy payment is calculated at the non-long term income support student maximum basis rate under the Austudy Payment Rate Calculator.[32]
[32] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 7, paragraph 4.23.
The Respondent submitted that, for a person to be a long term income support student, they must have, when commencing the qualifying study, been receiving jobseeker payment for at least 26 out of the preceding 39 weeks. It is a strict requirement and there is no discretion to waive that requirement.[33] The Respondent directed the Tribunal’s attention to the decision of Perla and Secretary, Department of Social Services [2014] AATA 724 (Perla) at [9] where Senior Member McCabe (as he then was) stated:
Mr Perla does not satisfy the criterion. There is no ambiguity or uncertainty on the point: in the 39 weeks that preceded the date on which he commenced study, he had been in receipt of Newstart for just under 17 weeks. That is not long enough. There is no discretion to waive the requirement. He is not entitled to receive the higher rate of payments, and the Secretary is not authorised to pay him even if the Secretary were to accept Mr Perla had been given bad advice.
[33] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 7, paragraphs 4.20-4.21.
In relation to whether the Tribunal has any discretion to vary the Applicant’s start day of payment or rate of payment, the Respondent contended:[34]
4.24 The Secretary acknowledges that, if the Applicant’s start day of austudy payment were to be one day later, that is 2 March 2021, she would be entitled to the higher rate of payment as a ‘long term income support student’.
4.25 However, there is no discretion in the legislation for the decision-maker, or this Tribunal standing in the shoes of the original decision-maker, to make this finding or to otherwise find that the Applicant is entitled to the higher rate of payment.
4.26 In her submissions dated 27 September 2021 (T1/1), the Applicant states, ‘The tribunal member did not have discretion to create precedent in this area of law therefore the member of the AAT was taking an irrelevant consideration into account in the exercise of a power as evident in the decision.’ This reference to a ground of judicial review is a misunderstanding of the role of the Tribunal, which is to conduct merits review.
4.27 The Applicant also states, ‘My argument concerns being treated unfairly etc. for that time period which I proved that I suffered as disadvantage compared to others.’ This is an equitable argument which the Tribunal is not able to consider.
4.28 The obligation of the Tribunal is to reach the correct or preferable decision; correct, when there is only one decision; preferable, when a range of decisions are available.[35]
4.29 Insofar as the Applicant relies on s 8 of the Administration Act in her submissions, this section sets out the principles of administration the Secretary is to have regard to in administering the social security law. It does not provide a discretion which overrides the operation of that legislation.
4.30 In this matter, there is only one possible decision open on the facts and applying the law, that decision has been correctly made for the reasons set out above. As the legislation does not provide for the exercise of a discretion, there is no room for this Tribunal to consider whether the decision is the preferable one.
[34]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 7-8, paragraph 4.24-4.30.
[35]    See e.g. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589; Shi v Migration Agents Registration Authority (2008) 248 ALR 390, 398-399, 412, 415 – 416, 419-422.
APPLICANT’S SUBMISSIONS
In addition to the submissions made by the Applicant throughout the review process, she provided a written submission dated 16 March 2022[36] in reply to the Respondent’s Statement of Issues, Facts and Contentions and a final written statement dated

25 June 2022.[37]
[36] Exhibit 3, Applicant’s submission.
[37] Exhibit 4, Applicant’s final written statement.

In her written submissions dated 16 March 2022, the Applicant contended:[38]
·It was incorrect to say that her Austudy payment was granted on 1 March 2021. It should have been granted on that date but Centrelink granted it on 8 March 2021, which was one week later and backdated it.
·As she had two workloads from 1 to 9 March, she should be paid twice as an Austudy participant and as a jobseeker participant.
·“Centrelink messed it up for me so it falls within the discretion of the tribunal, as seen in the cases that I have supplied.”
·It is not in dispute that she qualifies for Austudy payment.
·In her situation you cannot back pay when there have been consequences.
·The cases she raised demonstrate that there is discretion when the law has not been applied appropriately.
·“Regarding 4.20, I have been long term as Centelink made the change to Austudy on the 9th of March, not the 1^st, therefore meet the long-term requirement. Nothing occurred on the 1^st. So what you’re saying is if they never changed it till 2 months later, I still wouldn’t get Jobseeker payments even though I was looking for work this whole time it doesn’t matter because they can backdate it? That is not what the law is used for. The law represents how you treat people and abide by it. The law does not support this treatment in reality. Regarding 4.21, there is a discretion when you have met it, the law, as I have done on the facts. Centrelink messed up not me. That case is irrelevant on the facts and circumstances of my case. I was not given bad advice. It was more than that of Centrelink mistreating me and should not be an accepted practice. Regarding 4.22, it is not about being one day late. Centrelink was a whole week late and made me work as Jobseeker and Austudy from the 1^st of March till 8 of March and I now ask to be paid also twice for that week on top of the amounts of what I am already asking in my submissions.”
·There are plenty of cases where the Tribunal and courts have had discretion to change the outcome and following those cases, there is a clear discretion to change the behaviour of Centrelink which is not authorised by law or practice and would likely be so on appeal.
[38] Exhibit 3, Applicant’s submission.
In her final written statement dated 25 June 2022, the Applicant submitted:[39]
I wanted to make it clear that this challenge is not about missing out of the Centrelink higher Austudy payment by one day. That is not the correct way to understanding the issue as it does not take into account my circumstances and what I had to go through, which impacted me with disabilities as well. That logic is clearly ignoring these important factors. The issue is that I was treated as a job seeker as well till the 9^th of September 2020 by Centrelink and not as an Austudy student only. I had to do two workloads, job seeker duties and Austudy duties, which is not required or allowed by law to be performed to receive payment. I only received payment for one not both, job seeker and austudy. Centrelink was making sure not to pay me twice so they were on top of the money. They didn’t care to tell me that I was no longer on job seeker. That is clearly where Centrelink’s priorities lye. Centrelink stuffed up and I should be paid both payments for this period of the 1^st of March 2021 till the 9^th of March 2021, plus the rest of the remedy that I am seeking in my grounds previously mentioned. The government did not treat me properly and legally and this tribunal has the discretion to fix this error by Centrelink, as seen in my grounds, in statute and cases. If a precedent were to be created from this, it should not be a consideration. It is simply that Centrelink stuffed up and it should be rectified which Centrelink will not correct. No one else should have to be treated in this manner. Because I did both workloads, physically and mentally, means also that I reached the time period of 39 days for a higher payment required by law, etc. Please see my grounds. This is my understanding and I argue that it is correct as it takes into account the physicality of things, which is what happened to me, and it would be fair for anyone to complain about.
[39] Exhibit 4, Applicant’s final written statement.
The Applicant further submitted that she disagreed that the cases identified by the Respondent were applicable in this matter and contended that:[40]
There is allowance for backdating payments under the Act therefore changing the date is possible thus a discretionary power exists. This power is not unfettered as it is fixing the wrong that has occurred and Centrelink’s mistreatment and actions is not supported by the Act or cases.
CONSIDERATION
[40] Exhibit 4, Applicant’s final written statement.
When did Austudy payment become payable to the Applicant?
Based on the evidence before the Tribunal, it is clear that there is no dispute that the Applicant was entitled to Austudy payment in relation to the claim she made on

15 January 2021.
It is further not disputed that at the time of making the claim for Austudy payment, the Applicant was of the required age, an Australian resident, and was enrolled in a Bachelor of Laws (Honours) at QUT (being an approved course) with a full-time equivalent study-load.
Consequently, based on the evidence before it, the Tribunal is satisfied that the Applicant was eligible for Austudy payment.
The issue for determination by the Tribunal is from what date did the Applicant’s Austudy payment become payable.
The Respondent contends that the Applicant’s Austudy payment became payable from

1 March 2021, being the date on which her enrolment commenced.
The Applicant agrees that 1 March 2021 is the date at which Austudy payment should have commenced, however argues that it could not commence in her case until 8 March 2021, being the date on which she was notified that her claim for Austudy had been granted.
The Administration Act sets out when a social security payment becomes payable. Specifically, section 41(1) of the Administration Act provides that unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.
Relevantly, section 42 of the Administration Act provides that for the purposes of the social security law, a person’s start day in relation to a social security payment is worked out in accordance with Schedule 2 of the Administration Act.
Section 23 of the Act defines social security payment to include a social security benefit. It further defines social security benefit to include Austudy and jobseeker payments.
Schedule 2 of the Administration Act sets out the rules for working out the start day of a social security payment. Clauses 3 and 4 of Schedule 2 of the Administration Act relevantly provide:

3 Start day--general rule
(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
……….
4 Start day--early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.
…….
When a person becomes qualified for Austudy payment is set out in section 568 of the Act, which provides:
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfied the activity test (see Subdivision B); and
(b) the person is of austudy age (see Subdivision C); and
(c) the person is an Australian resident.
Section 569 of the Act provides that a person satisfies the activity test in respect of a period if they satisfy the Secretary that, throughout the period, they are undertaking qualifying study.
Section 569A of the Act provides that a person is undertaking qualifying 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
(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c)   the person is a full-time student or a concessional study-load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfied the progress rules (see section 569G and 569H).
The Applicant made her claim for Austudy payment on 15 January 2021. The claim was an early claim pursuant to clause 4 of Schedule 2 of the Administration Act as on that date, her enrolment had not yet commenced. Therefore, she did not meet the eligibility requirements of section 568 of the Act at the date of claim.
The application of clause 4 of Schedule 2 of the Administration Act has the effect that the Applicant became qualified for Austudy payment on the day she met the requirements of section 568 of the Act, being 1 March 2021 and as that date is within 13 weeks of the date of claim, the claim is taken to have been made on 1 March 2021.
Consequently, the Tribunal finds that for the purposes of section 41(2) of the Administration Act, the Applicant’s start day for Austudy payment is 1 March 2021.
There are no provisions that enable the start day for an early claim for Austudy payment to be deemed to be a later date within the 13 weeks from the date of claim than the day on which the claimant became eligible to receive the payment.
What rate of Austudy payment was payable to the Applicant from 1 March 2021?
As the Tribunal has found that the Applicant’s Austudy payment was payable from

1 March 2021, it must determine the rate at which it was payable.
Section 581 of the Act provides that the rate of a person’s Austudy payment is to be worked out in accordance with the Austudy Payment Rate Calculator in section 1067L of the Act.
The calculation used to determine a person’s maximum basic rate of Austudy payment depends on whether or not the person is a long term income support student.[41] A long term income support student receives a higher rate of payment.[42]
[41] See section 1067L-B1 of the Act.
[42] See sections 1067-B2 and 1067-B3 of the Act.
Section 1067K of the Act determines whether a person is a long term income support student and requires the person to show that they have been in receipt of one of the specified payments for at least 26 weeks in the 39 weeks immediately prior to commencing studies. Section 1067K of the Act relevantly provides:
1067K Long term income support student
(1) A person is a long term income support student if the person:
(b) does not have a dependent child; and
(c) is either:
(i) undertaking study (whether as a full-time student or as a concessional study-load student) in respect of a course of education that the person has commenced after turning 21; or
(ii) a new apprentice and became a new apprentice after turning 21; and
(d) has, for at least 26 weeks in the period of 39 weeks that ended when the person commenced to undertake the study or became a new apprentice, been receiving one or more of the following:
(i) jobseeker payment;
…
In order for the Applicant to meet the long term income support student requirements, she would have needed to have been in receipt of jobseeker payment for 26 weeks of the 39 week period ending on 1 March 2021. Based on the evidence before the Tribunal, the Applicant commenced receiving jobseeker payment on 1 September 2020, immediately prior to that date she was in receipt of Austudy payment.
A 26 week period equates to 182 days. The period between 1 September 2020 and 1 March 2021 is 181 days. As such, albeit by one day, the Applicant was not in receipt of jobseeker payment or any other relevant payments for a period of at least 26 weeks prior to the day on which she commenced to undertake study.
The Applicant does not appear to be refuting that her study recommenced on 1 March 2021. Rather, she contends that due to her particular circumstances where she was not notified until 8 March 2021 that her claim for Austudy payment was granted, it should be that date on which her Austudy payment should be taken to be granted or she should actually be paid both Austudy and jobseeker payments for the period between 1 March and 8 March 2021.
The calculation of the rate of Austudy payment and the requirements to be considered a long term income support student are clear. There is no discretion to change the date on which a person commenced study. The Tribunal agrees with the principle set out in Perla at [9] in that there is no discretion to waive the 26 week requirement in section 1067K of the Act and as such, neither the Tribunal nor the Respondent is authorised to determine that a person is eligible to be paid at the higher rate regardless of the person’s circumstances.
In fact, in this instance, the Tribunal notes that the Applicant makes reference to her studies commencing in week zero and as such, she had completed two weeks of study ahead of 8 March 2021. Should it be accepted that the Applicant actually commenced study at the beginning of orientation week, then she would have been on jobseeker payment for 24 weeks and 6 days rather than for 25 weeks and 6 days ahead of when she commenced to undertake study, making it abundantly clear that she did not meet the long term income support student requirements.
Consequently, the Tribunal finds that the Applicant did not meet the requirements of section 1067K of the Act to be considered a long term income support student on the date that her Austudy payment became payable. As such, the Tribunal finds that as at 1 March 2021, the Applicant was eligible to receive Austudy payment at the rate calculated in accordance with section 1067L-B2 of the Act, being the maximum basic rate for a person who is not a long term income support student.
Does the Tribunal have discretion to decide that a different date should apply to the Applicant’s start day for Austudy payment or the rate of that payment?
The Tribunal recognises the effort the Applicant has put into her submissions to support her contention that a discretion exists that would allow the Tribunal to determine that she should be paid Austudy payment at the higher rate appliable to a long term income support student. The Applicant does not contend that the Act and the Administration Act do not apply, rather the Tribunal understands that she is contending that given her circumstances, the Tribunal should exercise a discretion to ensure that in her view, she is treated fairly and is not, as she sees it, penalised because the Respondent had not made a decision on her claim on or before the date that her study commenced.
Unfortunately, the Applicant’s application of both the legislation and her referenced case law are misguided. Section 8 of the Administration Act sets out the principles of administration that the Respondent is to have regard to in administering the social security law. This section outlines the matters that the Respondent must take into consideration, it does not of itself provide an avenue of review for a person who is dissatisfied with a decision or the conduct of an officer of the Respondent.
The Tribunal has reviewed the Applicant’s submissions and the evidence before it as a whole. In doing so the Tribunal notes that the cases referenced by the Applicant and the principles that she seeks to extract from those cases to support her contentions do not apply in the manner she puts forward. Largely, the Applicant sought to reference previous Tribunal cases and to a lesser degree, Federal Court decisions of which she opined go to a discretion arising due to some unfairness, how justice can be done or to how precedents can be set. A number of the referenced cases relate to considerations of special circumstances in recovery of debt, not rate of payments. The Tribunal considers that the Applicant’s contentions and submissions in relation to the operation of the law surrounding the payment of social security benefits and in particular, Austudy and jobseeker payments, are incorrect.
There is no general discretion in the Act or the Administration Act that would allow the Tribunal to make a different decision in relation to the date on which the Applicant’s Austudy payment became payable or the rate at which she was entitled to be paid.
There are, on the other hand, a number of Tribunal decisions that whilst not necessarily factually consistent with the Applicant’s circumstances, do consider whether a discretionary power exists to determine the start date of a payment to be something other than that which accords with the Act and the Administration Act. Those cases, with which this Tribunal agrees, confirmed that there is an absence of any such discretion.[43]
[43] For example see: Giza and Secretary, Department of Social Services [2018] AATA 38 at [55]; Amohanga and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 894 at [17]; Ponnahennadige and Secretary, Department of Social Services [2018] AATA 2505 at [32]; Jolly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 620 at [8].
As set out above, the Tribunal agrees with the decision in Perla that there is no ambiguity or uncertainty on the way in which the rate of Austudy payment is calculated and there is no discretion to waive the requirements in relation to whether a person is a long term income support student.
The Tribunal notes that the Applicant seeks to be paid both Austudy and jobseeker payments at the same time for the period from 1 March to 8 March 2021.
Section 90 of the Administration Act relevantly provides that if a person is receiving a social security benefit (the old payment) and either a different kind of social security pension or benefit becomes payable to them (the new payment), the old payment is cancelled immediately before the day on which the new pension or benefit becomes payable to the person.
Consequently, the Applicant’s entitlement to jobseeker payment was cancelled immediately before 1 March 2021, being the day on which her Austudy payment became payable.
There is no discretion for the Tribunal to determine that the Applicant should be paid both Austudy and jobseeker payment at the same time. Further, to do so would fly in the face of the intention and purpose of social security law as the Applicant would effectively be double dipping for the relevant period.
While the Applicant’s frustration and dissatisfaction with the time it took for her claim for Austudy payment to be processed and her feelings of having been treated unfairly are clear, there is no specific or general discretion available for the Tribunal to make any findings other than those outlined above.
CONCLUSION

For the reasons outlined above, the Tribunal finds that:
(a)Austudy payment became payable to the Applicant on 1 March 2021;
(b)the Applicant did not meet the requirements of section 1067K of the Act and as such, she was not a long term income support student for the purposes of the Austudy Payment Rate Calculator;
(c)the Tribunal does not have discretion to change the date on which the Applicant’s Austudy payment became payable;
(d)the Tribunal does not have discretion to find that the Applicant is entitled to receive Austudy payment at the long term income support student rate despite not meeting the requirements; and
(e)the Tribunal does not have discretion to direct that the Applicant be paid both jobseeker payment and Austudy payment for the period 1 March to 8 March 2021.
Consequently, the Tribunal finds that the Applicant’s rate of Austudy payment from

1 March 2021 is that calculated at the maximum basic rate for a person who was not a long term income support student.
Accordingly, the decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............................[SGD]...............................
Associate
Dated: 18 August 2022

Date of hearing: Heard on the papers, 27 July 2022

Applicant: Ms Monica Mikulcik

Solicitor for the Respondent: Ms Gillian Gehrke
Sparke Helmore

[2022] AATA 2646

18 August 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	Heard on the papers, 27 July 2022
Applicant:	Ms Monica Mikulcik
Solicitor for the Respondent:	Ms Gillian Gehrke Sparke Helmore