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

This matter concerned an appeal by an applicant against a decision by the Secretary of the Department of Social Services to cancel his Austudy payment. The applicant sought to qualify for a 25% concessional study-load rate. The dispute centred on whether the applicant was genuinely "undertaking qualifying studies" as required by the relevant legislation, particularly in light of conflicting evidence regarding his study activities and medical condition. The decision was made by Chris Puplick AM, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was the interpretation of "undertaking qualifying studies" in the context of the applicant's eligibility for Austudy at a concessional rate. This required the Tribunal to determine whether the applicant's claimed study activities, despite his medical condition, met the threshold for participation and involvement in his enrolled unit of study, as stipulated by both the University and the Social Security Act. The Tribunal also considered the applicant's assertions that he had received erroneous advice from Centrelink.

The Tribunal reasoned that the activity test for Austudy requires both enrollment and the undertaking of study activities. While the applicant claimed to have studied extensively, this was contradicted by a series of Professional Practitioner Certificates issued by his attending physician, which indicated he was unfit or unable to continue his studies or attend classes for specified periods. The Tribunal found no corroborative evidence to support the applicant's claims of undertaking a voluminous amount of study, especially given the medical evidence. Furthermore, the Tribunal noted that the applicant had attended none of the prescribed lectures and had only one record of submitting an assignment. The Tribunal also found no evidence to support the applicant's claim of receiving erroneous advice from Centrelink, and noted that there was no statutory duty of care that would allow such a claim to impact the outcome.

The Tribunal concluded that the evidence was persuasive that, at the time his Austudy payment was cancelled, the applicant was enrolled in only one unit of his prescribed course but was not participating to a degree that met the requirements of either the University or the Act. Consequently, he was not eligible for Austudy at the 25% concessional rate. The decision under review was affirmed.