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

This matter concerned an application for review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal. The applicant, Ms Monica Mikulcik, sought review of the Tribunal's affirmation of the Respondent's decision to grant her Austudy payment from 1 March 2021, but not at the long-term income support rate. Ms Mikulcik had been undertaking a Bachelor of Laws (Honours) degree since February 2016, with periods of both full-time and part-time study, and had generally been in receipt of Austudy payment. She had lodged a claim for Austudy payment on 15 January 2021, indicating she would study full-time from 26 February 2021, but later advised she would study part-time in Semester 1, 2021 due to pain from her disabilities.

The primary legal issues before the Tribunal were to determine the date from which Ms Mikulcik's Austudy payment became payable and whether she qualified for the long-term income support student rate. The applicant contended that the payment should not have commenced until she was notified of the grant of her claim, and that discretionary powers existed to alter payment dates and award the higher rate, arguing that Centrelink's actions were not supported by the Act.

The Tribunal considered the provisions of the *Social Security (Administration) Act 1999* (Cth) concerning when a social security payment becomes payable. It noted that section 41(1) states a payment becomes payable on the person's "start day," which is determined in accordance with Schedule 2. Clause 3 of Schedule 2 provides that if a person claims a payment and is qualified on the day of the claim, the start day is the day the claim is made. Clause 4 addresses early claims where a person is not qualified on the claim day but will become qualified within 13 weeks. The Tribunal found that Ms Mikulcik was eligible for Austudy payment from 1 March 2021, the commencement date of her enrolment, and that the Act did not grant the Tribunal discretion to alter this date or to award the long-term income support rate when she did not meet the statutory requirements under section 1067K of the Act.

Consequently, the Tribunal affirmed the decision under review, finding that Austudy payment became payable to the applicant on 1 March 2021, and that she was not entitled to the long-term income support student rate. The Tribunal also concluded it lacked discretion to direct payment of both jobseeker and Austudy for the period between 1 March and 8 March 2021. The applicant's rate of Austudy payment from 1 March 2021 was therefore calculated at the maximum basic rate for a person who was not a long-term income support student.