Montenegro and Secretary, Department of Social Services (Social services second review) - [2018] AATA 1252

Montenegro and Secretary, Department of Social Services (Social services second review) [2018] AATA 1252 (8 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/7073
Re:Cesar Montenegro
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:8 May 2018
Place:Sydney

The decision under review, which was made by the Social Services and Child Support Division of this Tribunal on 13 November 2017, is affirmed.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY - austudy payment - whether applicant qualified for 25% concessional study-load - interpretation of "undertaking qualifying studies" - requirements for full-time or concessional study - normal amount of full-time study – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 568, 569A, 569D, 569E, 569H
Social Security (Administration) Act 1999 (Cth), s 80
CASES
Fry and Secretary, Department of Social Security [1990] 20 ALD 709
Humphrey and Department of Family and Community Services [2001] AATA 679
Murphy and Secretary, Department of Social Services [2017] AATA 16
Rafty v Department of Families and Community Services [2002] AATA 1299
Reese v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 179
Scott and Anor v Secretary, Department of Social Security [2000] 65 ALD 79
Secretary, Department of Family and Community Services v Matheson [2004] FCAFC 53
REASONS FOR DECISION
Chris Puplick AM, Senior Member
XX May 2018
The matter in issue

On 14 April 2017 the Respondent cancelled the austudy payments of the Applicant because it believed that the Applicant was no longer enrolled in an approved course of education from that date.[1] The Applicant appealed this decision to the Social Services and Child Support Division of this Tribunal which, on 13 November 2017, affirmed the decision of the Secretary. It is in respect to that decision which the Applicant seeks further review by this Tribunal per his application dated 21 November 2017.
[1] Respondent’s Statement of Facts, Issues and Contentions at [12].
The Applicant contends that, at the relevant time, he was “enrolled” in and studying for a qualifying course and remained so until he withdrew for reasons of illness in June 2017.[2]
[2] Tribunal Documents at pp. 2-3, 48, 56.
The central thrust of the Respondent’s case is that while the Applicant may have been “enrolled” he was not “undertaking” qualifying studies.[3]
[3] Respondent’s Statement of Facts, Issues and Contentions at [26].
The Tribunal understands that there are several other matters pending between the Applicant and the Respondent. However, they are not before this Tribunal which is asked to determine matters related exclusively to the 14 April 2017 cancellation decision.
Given the sensitive nature of the medical information before the Tribunal, a confidentiality order was made covering certain medical evidence and restricting access to information to the relevant participating parties and staff of the Tribunal.
The legislative framework
The relevant legislation in terms of austudy eligibility and payment comprises the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999.
Section 568 of the Act sets out the general rules for austudy qualification:
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfies 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.
In relation to this application, the qualifications in subsections (b) and (c) are clearly met but the contention between the parties lies in relation to subsection (a).
The “activity test” identified in s 568(a) is defined in s 569A as follows:
For the purposes of this Part, 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 satisfies the progress rules (see sections 569G and 569H).
Note: Only one course of education can be considered in deciding if a person satisfies the undertaking qualifying study requirement: see section 569AA.
In the case of the Applicant, some payments were made at the rate provided for people studying full time and some for those studying only part time. These are referred to as “concessional study-load students” and their arrangements are managed under s 569D of the Act which provides relevantly for this application:
(1) For the purposes of this Subdivision, there are 2 classes of concessional study-load students, namely:
(a) 25% concessional study-load students; and
(b) 66% concessional study-load students.
(2) For the purposes of this Subdivision, a person is a 25% concessional study-load student in respect of a course if this subsection applies to the person and:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)--the person is undertaking at least one quarter, but less than three quarters, of the normal amount of full-time study in respect of the course for that period; or
(b) in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least one quarter, but less than three quarters, of the normal amount of full-time study in respect of the course for that period.
(3) For the purposes of this Subdivision, a person is a 66% concessional study-load student in respect of a course if this subsection applies to the person and:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)--the person is undertaking at least two thirds, but less than three quarters, of the normal amount of full-time study in respect of the course for that period; or
(b) in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least two thirds, but less than three quarters, of the normal amount of full-time study in respect of the course for that period.
(4) Subsection (2) applies to a person if:
(a) an officer in the Commonwealth Rehabilitation Service or an appropriate medical practitioner who has a detailed knowledge of the person's physical condition has stated in writing that:
(i) the person has a substantial physical disability; and
(ii) the person cannot successfully undertake the normal amount of full-time study in respect of the course because of the disability;
Finally, s 80(1) of the Social Security (Administration) Act1999 deals with austudy cancelation or suspension as follows:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
The Applicant and his Austudy history
The Applicant is a successful student having completed four degrees. The matter at issue relates to his enrolment in his firth degree course. He was admitted to practice law in 2008 and did so for three to four years. In 2014 he passed the NSW Bar Examinations.[4]
[4] Applicant’s Statutory Declaration dated 12 February 2018.
Throughout his life he has suffered a severe and often debilitating medical condition as evidenced by both his general practitioner[5] and specialist physicians.[6] The degree of his illness has resulted, frequently, in his being unable to complete courses of study or professional employment.
[5] Tribunal Documents at pp. 33, 73.
[6] Tribunal Documents at pp. 49, 51.
The determination by the Centrelink Authorised Review Officer sets out the Applicant’s austudy history relevant to this application, which is as follows:
The Applicant was granted austudy from 3 January 2017 with advice provided in a letter of 15 January 2017 that this covered the Applicant as a full time student in a course scheduled to complete on 30 June 2017.
On 24 March 2017, the University of Sydney notified the Department that the Applicant was enrolled for part-time study as full time study had become precluded by the Applicant’s medical condition. A medical certificate advised that illness prevented study being undertaken from 3 February to 5 July 2017.[7]
[7] Tribunal Documents at p. 33.
As a result, a 25% concessional study load for payment of austudy was granted for the period 3 February to 13 April 2017 based on the Applicant undertaking a part-time study load of 0.125.
On 14 April 2017, the Department determined that the Applicant was no longer enrolled in an approved course of study and the austudy payment was cancelled from that date.[8]
[8] Tribunal Documents at p. 45.
The Applicant’s 2017 courses
In a Certificate of Current Enrolment dated 12 December 2016, the University Deputy Vice-Chancellor (Registrar) certified that the Applicant was “enrolled full time from 3 Jan 2017 to 30 June 2017” in 4 units of the Graduate Diploma in Law course, namely LAWS6903 (Interpreting Commercial Contracts), LAWS6321 (Fiduciary Duties and Conflicts of Interest), LAWS6252 (Legal Reasoning and the Common Law System) and LAWS6856 (Anti-Terrorism Law).[9]
[9] Supplementary Tribunal Document at p. 128.
However, on 7 September 2017 the University of Sydney HECS and Domestic Fees Office provided a statement detailing the courses for which the Applicant was enrolled in in the first semester of 2017. There were seven in all. They may be summarised as follows:[10]
[10] Table taken from Respondent’s Statement of Facts, Issues and Contentions at [29]. This is based upon original advice from the University of Sydney HECS and Domestic Fees Office found in the Tribunal Documents at p. 67.
This list adds three units to that specified in December 2016, namely a second enrollment in LAWS 6252, LAWS 6862 (Hate Crimes), and LAWS 6352 (Mergers and Acquisitions in Asia). It should be noted that the correct title of LAWS6252 is Legal Reasoning and the Common Law System. The error arises from correspondence from the University and this was pointed out by the Applicant in his submission to the Tribunal.
The discrepancy in the number of courses is the result from the Applicant withdrawing from certain courses and then enrolling in different courses over a period of time, which can be seen in the Table above.
Significantly, one of these changes involved withdrawing from one course (Anti-Terrorism Law) due to medical issues and enrolling in another course (Mergers and Acquisitions in Asia) on the very same day – 11 May 2017.
The Table demonstrates that the Applicant was enrolled in a qualifying course (per s 569A(a) of the Act) during the first semester of 2017 and remained enrolled until his final withdrawal from course LAWS6352 (Mergers and Acquisitions in Asia) on 1 June 2017.
There is also no dispute from the Respondent that the course itself was an approved course meeting all the requirements of the Act. Furthermore, the Respondent concedes that the Applicant “satisfied the progress rules relevant to his circumstances under s 569H of the Act.”[11]
[11] Respondent’s Statement of Facts, Issues and Contentions at [27].
This lead to a determination of whether, after a series of withdrawals from courses as outlined in the Table above, the Applicant had ceased to be a full time student and had become a part time or a “concessional study-load” student as from 24 March 2017. The Respondent clearly took this view as evidenced in the report of the ARO[12] and supported by departmental records of notification to this effect from the University.[13]
[12] Tribunal Documents at p. 45.
[13] Tribunal Documents at p. 88.
“Concessional study-load” students may be at the level of either a 66% or a 25% student depending on the proportion of the normal full time course (as defined in s 569E of the Act) that they are undertaking.
Section 569D(2)(a) of the Act provides that a student is a 25% concessional study-load student if they are undertaking “at least one quarter, but less than three quarters” of the normal amount of full time study for the designated course. There is no dispute that the Applicant could not reach the 66% threshold (at least two thirds but less than three quarters).
As of 13 April 2017, one day before the austudy cancellation, the Applicant appears to have been in continuing enrolment in two of the original four courses:
·LAWS 6903 (Interpreting Commercial Contracts)
·LAWS 6856 (Anti-Terrorism Law)
It was the Applicant’s withdrawal from the first of these courses (LAWS 6903) on 13 April 2017, leaving him enrolled in only one, which caused the Department to review his position and cancel his austudy payment effective from the following day, 14 April 2017. The Department accepted that until that date the Applicant was qualified as a 25% concessional study-load student.[14]
[14] Respondent’s Statement of Facts, Issues and Contentions at [34].
In respect of these courses, the Applicant states:
LAWS 6903 ICC – I completed the 20% assessment task before the intensive classes began which means I completed all the readings and sought special consideration for exemption from the classes so I could complete the final assessment task as I was unable to attend the classes due to my medical condition. The application was rejected several times until I withdrew the final application because too much time had passed and I did not have enough time to complete the final task and the uncertainty of it not being accepted played a part.
LAWS6856 – Anti-Terrorism Law – I downloaded all materials and was fully prepared for class but was forced to withdraw yet again as previously explained. I was severely ill in between but managed to get all my work done. I could not attend the 4 day intensive so was forced to withdraw before the census date.
LAWS6352 – M and A in Asia – Same as previous units I was unable to attend class due to illness.[15]
[15] Applicant’s Statutory Declaration dated 12 February 2018 at pp. 1-2.
The Applicant further states in relation to his situation at the time:
At some point earlier I was granted a 25% concessional study due to illness as my full-time load became part-time load and then kept attempting to complete a single subject but failed to be well enough for ANY classes. However I did study really hard throughout the semester instead of just quitting.[16]
[16] Ibid.
The Secretary takes a different view of the Applicant’s position after 13 April 2017 and asserts that in relation to the two continuing classes (LAWS 6856 and LAWS 6352), “neither of these units should be taken to constitute the Applicant undertaking at least one quarter of the normal amount of full-time study in respect of his course for that period.”[17]
[17] Respondent’s Statement of Issues, Facts and Contentions at [37].
It should be noted that the University assigns a “weight and credit point value” to each unit, and in respect to each of these, that weight is 0.125000000 and the credit points 6.[18]
[18] Tribunal Documents at pp. 64, 67.
The Respondent contends that:[19]
LAWS6856 – Anti-Terrorism law unit, the Applicant was enrolled in this unit for the Intensive May study period, which ran from the period 24 April 2017 to 4 June 2017. The Applicant enrolled in the unit on 8 December 2016 and withdrew from the unit on 11 May 2017. He was therefore only enrolled in the unit during the intensive study period for approximately 2 ½ weeks of the total unit duration of 6 weeks (ie from the commencement of the unit on 24 April 2017 until his withdrawal on 11 May 2017). He attended none of the classes for this unit.
LAWS6352 – Mergers and Acquisitions in Asia unit, the University advised that the Applicant was enrolled in this unit for the Intensive June study period, which ran from 29 May 2017 to 9 July 2017. The Applicant enrolled in the unit on 11 May 2017 and withdrew from the unit on 1 June 2017. He was therefore only enrolled in the unit during the intensive study period for a total of 4 days inclusive of the start and end days (ie from the commencement of the unit on 29 may 2017 until his withdrawal on 1 June 2017). He attended none of the classes for this unit.
[19] Respondent’s Statement of Issues, Facts and Contentions at [37].
Thus, the Respondent asserts that the Applicant should not be found to have been undertaking at least one quarter of the normal amount of full-time study prescribed. It asserts that his failure to attend classes and his withdrawal from each of the two units before the census date supports this contention.
The Applicant, on the other hand, challenges the calculations made by the Respondent in terms of his participation in the LAWS6352 unit. Whereas the Respondent states that the Applicant was enrolled only for four days, the Applicant himself asserts that this should be calculated as “three weeks”. He asserts this on the basis that he claims his enrollment was from 11 May 2017 to 1 June 2017 and that after the release of the study material for the unit, approximately one month before its commencement, he was allowed to study from that time until his formal withdrawal from the course.[20]
[20] Applicant’s Response to the Respondent’s Statement of Facts (dated 15 April 2018) at p. 7.
The hearings in this matter concluded on 17 April 2018 but on 1 May 2018 the Applicant forwarded additional material to the Tribunal being an extract from the Department’s website related to part-time study and allowable concessions.[21] In an accompanying email the Applicant stated:
The argument is even if i fell below the 25% I would still be eligible given I demonstrated a clear intention to continue studying and did in fact study at a full study-load (not concessional) in Semester 2 2107 and was enrolled in those units during semester 1.
[21] Department of Social Security, Austudy & Students with Disabilities viewed 1 May 2018.
The Tribunal indicated, in response, that this further submission would be taken into account and notified the Respondent of its receipt. It offered the Respondent until 4 May to submit any response or further submission on this point, but none was received.
The Applicant’s line of argument here does not serve to persuade the Tribunal as to the degree of his “undertaking” of the required degree of study. The matter of enrollment is one thing, meaningful participation, which is what “undertaking” is all about, is entirely another.
For the reasons outlined I do not accept that mere enrollment is sufficient, nor do I accept that the Applicant’s claim of his off-campus studies can be given sufficient weight to meet the necessary requirements.
However, even if the Applicant was enrolled in one of the four courses, the evidence above suggests that he was not actively “undertaking” the required degree of study. The unit which he was still enrolled in on 14 April 2017 was the Anti-Terrorism unit (LAWS 6856) which had as its core element an “intensive study unit” lasting from 24 April 2017 to 4 June 2017. The relevant Unit of Study Outline specifies that lectures for that unit were to take place on 18, 19, 25 and 26 May 2017.[22] The Applicant withdrew from enrollment in that unit on 11 May 2017.[23]
[22] Exhibit A2.
[23] Tribunal Document at p. 67.

It is thus impossible to credit him with active participation in the one unit for which he was enrolled in on 14 April 2017. He thus fell well below the threshold of any activity test requiring a 25% level of study.
The Respondent rightly points out that the activity test requires both enrollment and the undertaking of study activities (s 569D(2)(a) of the Act).
MEDICAL EVIDENCE
A confidentiality order was made in relation to the publication of any specific details or documents relating to the Applicant’s medical condition(s).
The Applicant’s principal attending physician has issued a number of Professional Practitioner Certificates[24] in relation to the Applicant’s ability to continue to study or to attend classes. I have examined these and taken them into account. In summary, for a number of specified periods, they report that to varying degrees the Applicant was unfit or unable to continue with his studies or to attend classes.
[24] Professional Practitioner Certificates (PPC) are documents issued by the University of Sydney which registered medical/health practitioners complete to certify that enrolled students are unable to undertake certain activities due to medical conditions. They are counter-signed by the student in question.
Thus, on the one hand, while the Applicant claims that he was studying, albeit not attending classes or submitting assessments, on the other hand he has lodged a series of medical certificates, or Professional Practitioner Certificates (counter-signed by himself) which assert that it is impossible for him to study due to medical reasons.
The Applicant puts to the Tribunal that he studied “sometimes up to 12 hour days”[25] and that “I did such a voluminous amount of work as I could not do anything else but study I could not work or maintain a job this is all I had due to my medical condition.”[26]
[25] Applicant’s Response to the Respondent’s Statement of Facts of 6 April 2017 (dated 15 April 2018) at p. 7.
[26] Ibid at p. 5.
When pressed by the Tribunal as to how such a volume of work could be undertaken and with such a degree of consistency while claiming that a medical condition prevented his attendance at class or the completion of courses, the Applicant asserted that this was due to the nature of his condition being only intermittent and capable of being relieved by treatment.
He also asserted that more recent medical evidence “explained” this apparent discrepancy. However, that more recent evidence in fact tends to confirm the fact that the Applicant was not able to attend classes or complete assessments.[27]
[27] Exhibits A3 and A4.
In the absence of any corroborative evidence that the Applicant studied for such prolonged periods of time with such a degree of intensity, I cannot safely, in the light of the medical evidence, accept that he did. Even if I were to be satisfied that there was a degree of such study, I cannot find that it was of sufficient quantity as to accept that the Applicant met the requirements of undertaking 25% of the required studies based on this factor alone.
This would have to be the case for the Applicant to succeed because the uncontested evidence is that he attended none of the prescribed lectures and there is only one record of him ever having submitted any form of written assignment.[28]
[28] Tribunal Documents at p. 70.
What does “undertaking qualifying studies” mean?
That the studies in question were “qualifying” is not in doubt – they were properly recognised and accredited courses. So the question is whether they were being “undertaken”?
It is important to note an admission on the part of the Applicant who, in his Statement of Response to the Respondent’s Statement of Facts writes: “I agree it is not sufficient to be merely enrolled in the units.”[29]
[29] Applicant’s Response to the Respondent’s Statement of Facts of 6 April 2017 (dated 15 April 2018) at p. 3.
The Macquarie Dictionary defines the verb to “undertake” as having the qualities of “lay oneself under obligation to perform or execute” while the Oxford English Dictionary adds “to take charge; to accept the duty of attending to or looking after” or “to enter upon, to commit oneself to, an enterprise”.
I take from these and from the common meaning and understanding of the term, with some limited commentary from this Tribunal thereon,[30] that to “undertake” qualifying studies requires a genuine degree of participation in the activities of studying to complete a unit of studies such as is required in this course (Graduate Diploma in Law).
[30] See, eg, Murphy and Secretary, Department of Social Services [2017] AATA 16.See also Humphrey and Department of Family and Community Services [2001] AATA 679.
The Applicant asserts that neither attendance at any lectures, nor the submission of assignments, nor participation in workshops or other activities associated with the completing of intensive study periods is required in order to be counted as “undertaking” this course of study.[31]
[31] Applicant’s Response to the Respondent’s Statement of Facts of 6 April 2017 (dated 15 April 2018) at p. 6.
I do not accept that proposition.
Nor does the University of Sydney. The email from Sue Ng addressed to the Applicant in response to his request for exemption (which was not granted) makes this clear when it states: “The School has a minimum class attendance requirement of 70%.”[32]
[32] Tribunal Documents at p. 69.
The general qualification for austudy set out in s 568(a) of the Act requires that a person “satisfies the activity test” (emphasis added). In my view, “activity” implies a degree of participation. It does not mean remaining at home and reading.
In order to qualify for a 25% concessional study-load status, the Applicant must demonstrate that he has undertaken at least one-quarter of the study required by reference to the “normal amount of full-time study” as defined by s 569E of the Act.
In relation to this matter, the “normal” requirement amounts to enrolment in four units.[33] It is also clear that the assessment of participation levels relates to each period of study – namely a semester – and not across the entire course.[34]
[33] Tribunal Documents at p. 64.
[34] See, Rafty v Department of Families and Community Services [2002] AATA 1299 at [10]. See also Secretary, Department of Family and Community Services v Matheson [2004] FCAFC 53 at [19].
The Applicant disputes this assessment by reference to authority in Reese[35] in which it was decided that the course requirement in that case was less than the standard hours specified for the course. I do not accept that the reasoning of the Applicant from that case applies in the current matter because the University of Sydney has specified the normal/standard hours required for participation in this course and there is no basis upon which to mount an argument for their variation in this instance.
[35] Reese v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 179 at [22].
As I have outlined above, I am persuaded that at the time of the cancellation decision the Applicant was enrolled in only one course but that he was not fully “undertaking” the activities associated with and required by it. He was not fulfilling the 25% requirement to obtain concessional-load status.
The role of Centrelink
The Applicant made several assertions, both in written submissions and orally at the hearing, that his course of action was guided by advice from Centrelink and that this advice was somehow erroneous.[36] I can find no evidence to support this claim and in any event there is no statutory duty of care upon which the Applicant could rely for this matter to have any bearing on the outcome of this case.[37]
[36] Applicant’s Response to the Respondent’s Statement of Facts of 6 April 2017 (dated 15 April 2018) at p. 9.
[37] See, eg, Fry and Secretary, Department of Social Security [1990] 20 ALD 709 at [11]. See also Scott and Anor v Secretary, Department of Social Security [2000] 65 ALD 79 at [20]-[23].
Conclusion
The evidence before me is persuasive of the fact that when the Secretary cancelled the Applicant’s austudy payment on 14 April 2017, the Applicant was enrolled in only one unit of the prescribed course but was not undertaking the degree of participation and involvement in that unit to meet the requirements of either the University or the Act. As such he was not eligible to receive Austudy at the 25% concessional rate.
The decision under review is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd].........................................
Associate
Dated: 8 May 2018

Date(s) of hearing: 17 April 2018

Advocate for the Applicant: In person

Solicitors for the Respondent: Dr S Thompson

Date(s) of hearing:	17 April 2018
Advocate for the Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson