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

[2018] AATA 1243

Muzikants and Secretary, Department of Social Services (Social services second review) [2018] AATA 1243 (4 May 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6401

Re:Tamara Muzikants

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:4 May 2018

Place:Sydney

For the reasons set out below, the Applicant’s appeal to set aside the decision of the Secretary is denied and the decision under review is affirmed.

....................................[SGD]....................................

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – Austudy – whether period of study in previous courses should not be taken into account due to applicant’s illness – whether the applicant cannot use her previous field of study in any trade or profession – allowable study time exceeded – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

CASES

Martinsen and Secretary Department Families and Community Services [2003] AATA 801

Priest and Secretary Department Families and Community Services [2002] AATA 1191

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Chris Puplick AM, Senior Member

4 May 2018

BACKGROUND

1. Austudy is a scheme of Australian government payments to students undertaking approved courses of study. One of its requirements is that the course must be completed with an “allowable study time”.

2. Ms Tamara Muzikants lodged a claim for Austudy on 2 March 2017[1] and it was rejected on the same day on the grounds that she had failed to complete her course of studies within the specified time.[2]

   [1] T-Documents, pp. 41-48.

   [2] T-Documents, pp. 49-50.

3. That decision was upheld by the departmental Authorised Review Officer (ARO) on 31 May 2017[3] and the Applicant lodged an appeal against the refusal decision with the Social Services and Child Support Division of this Tribunal (first tier review). That Tribunal heard the matter on 16 October 2017 with the benefit of Ms Muzikants’ presence and presentation of evidence, then proceeded to give an oral judgement that same day affirming the original decision.[4]

   [3] T-Documents, pp. 58-62.

   [4] T-Documents, pp. 3-7.

4. It is from that determination that Ms Muzikants appeals to this Tribunal for further review.

THE LEGISLATIVE FRAMEWORK

1. Austudy is administered under the provisions of the Social Security Act 1991 (Cth) (“the Act”).

2. The relevant sections of the Act are as follows:

3. Section 568 sets the general rules for eligibility and in particular requires the person to be subject to an “activity test”.

   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.

1. Section 569 defines the elements of that activity test by reference to the person undertaking the qualifying study.

   (1)Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).

2. Section 569A then sets out the criteria required to meet the qualifying study test:

   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).

1. Finally, various parts of section 569H make provision for setting the progress rules for tertiary students:

   Full-time students

   (1)  A person who is a full-time student in respect of a tertiary course satisfies the progress rules if:

   (a)in the case of a person who is enrolled in the course--on the day on which the person enrolled in the course; or

   (b)in the case of a person who is not yet enrolled in the course but intends to enrol in the course--on the day on which enrolments in the course are next accepted;

   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.

   ………………

   (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.

   ………………….

(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;

(c)time spent undertaking a course that has been permanently discontinued 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;

(e)time spent undertaking a TAFE course or a course provided by a VET provider if the normal length of the course for a full-time student is one year or less;

(f)time spent undertaking a course more than 10 years ago, unless the course has since been completed;

(g)time spent undertaking a course after 1973 if the course was not:

(i)   approved for the Tertiary Education Assistance Scheme; or

(ii)     approved for the AUSTUDY scheme; or

(iii)    an approved course for the purposes of paragraph 541B(1)(c), 569A(b) or 1061PB(1)(b) of this Act;

(h)time spent undertaking a course at a foreign institution;

(i)time spent undertaking a subject from which the student withdrew, if the educational institution in which the subject was undertaken did not record the withdrawal from the subject as a failure;

(j)any time spent undertaking a course during which the person was ineligible to receive:

(i)   AUSTUDY; or

(ii)     a benefit under the Tertiary Education Assistance Scheme; or

(iii)    youth allowance; or

(iv)   austudy payment;

because of the application of rules in respect of academic progress.

1. Subsection 569H (8) then defines five levels of tertiary courses, referred to as M, A, B, C and D.

2. For the purposes of this application, Bachelor degrees (other than postgraduate degrees) with or without honours are defined as Level B courses (s 569H (10)).

3. The purely legislative framework is supplemented by a set of guidelines to which decision-makers are required to have due regard, although they are not absolutely binding in all cases and circumstances.

4. The relevant section of the Guide to Social Security Law is section 3.3.4.70:

   Allowable Time

   Allowable time is measured against the minimum time to complete the tertiary course CURRENTLY being studied. Time already spent in study at the SAME LEVEL in the previous 10 years is then deducted from this limit to determine whether the recipient is still qualified for the payments. Whether a person was in receipt of student payments or not at the time they previously studied is irrelevant in the allowable time assessment, as all previous study attempted in the previous 10 years is counted. The 10 years is counted from the day on which the student enrols in their current course, not their current year of study.

   …………....

   Recipients can study a second course at the SAME level within the allowable study time rules. Recipients may commence or continue to receive Austudy for any study period/s that they enrol in, for a second course at the SAME level, when there is any additional allowable time available to them in respect of the study period/s. This is irrespective of whether a recipient had received Austudy for the first qualification.

5. It is against this framework that Ms. Muzikant’s application must be considered.

MS. MUZIKANT’S ACADEMIC RECORD

1. The Applicant has been a successful student, as demonstrated by the following achievements:

   ·    She was awarded a Bachelor of Fine Arts degree from the University of New South Wales, commencing her studies in semester 1 of 2010 and concluding in semester 2 of 2013.[5] In many of her units, she achieved high distinction marks.[6]

   ·    She was awarded a Master of Arts Therapy degree from the University of Western Sydney in 2015. In this instance, she commenced in semester 1 of 2014 and graduated in semester 2 of 2015, again often with high distinction marks.[7]

   ·    She had previously enrolled in the Autumn session of 2007 at the University of Technology, Sydney for a three year Bachelor of Arts in Communication (Public Communication) degree, but withdrew from this course in the Spring session of 2009.[8]

   ·    In semester 1 of 2017, she enrolled and commenced a three year Bachelor of Nursing degree at the University of Notre Dame.[9]

   [5] T-Documents, pp. 39-40.

   [6] Idem.

   [7] T-Documents, p. 37.

   [8] T-Documents, p. 38.

   [9] T-Documents, pp. 41-48.

THE AUSTUDY APPLICATION

1. Upon enrollment in the Bachelor of Nursing degree, the Applicant applied for Austudy on 2 March 2017. As noted above, this was rejected and various appeals against this rejection were not upheld.

2. The basis for this rejection is set out in detail in the Secretary’s Statement of Facts, Issues and Contentions.[10] It amounts to this:

   ·    The minimum time for completion of the course related to this application (Bachelor of Nursing) is three years and six months. This is because the course itself is a three year course and then s 569H(3)(c) adds a further six months to this to give the minimum time.

   · Section 569H(1) of the Act provides that the time spent studying in any course at the same level (in this case level B) counts towards the “allowable study time” in a cumulative fashion.[11]

   ·    Hence when all of Ms. Muzikant’s study periods are added together, they amount to a total of six years. This is made up of the Bachelor of Fine Arts (four years) plus two years from the incomplete Bachelor of Arts in Communication degree. The Master of Fine Arts degree is not counted here as it is an “M” level course and not a “B” level course.

   [10] Secretary’s Statement of Facts, Issues and Contentions, [22]-[26].

   [11] E.g. Priest and Secretary Department Families and Community Services [2002] AATA 1191. Also Martinsen and Secretary Department Families and Community Services [2003] AATA 801 regarding calculations of cumulative study periods for each new enrolment.

3. On this basis the Secretary contends that Ms. Muzikants has exceeded the three years and six months allowable study time and hence is not eligible for Austudy.

4. By contrast, the Applicant contends that these two previous periods of study should not be taken into account.[12]

   [12] Supplementary T-Documents, pp. 81-82.

5. In relation to the Bachelor of Arts in Communications, she relies upon s 569H (7)(c)(i) of the Act which provides:

   (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:

   ….

   (c)  time spent undertaking a course that has been permanently discontinued because of:

   (i)     the person's illness

   (ii)    other circumstances beyond the person's control.

6. In relation to the Bachelor of Fine Arts degree she relies on section 569H(7)(d) of the Act which provides:

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

   ….

   (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.

MS. MUZIKANT’S ILLNESS AND ITS CONSEQUENCES

1. Ms Muzikants has provided medical evidence that she suffers from mental health problems and associated eating disorders.

2. Dr Geoff Buckett FRANZCP (a consultant psychiatrist) indicated in his written evidence that the Applicant has been treated for severe eating and mood disorders since 2010 and, as at the time of writing (6 March 2017), was not fit to undertake full time work.[13] On 16 October 2017, he indicated that despite the Applicant having completed a degree in Art Therapy, “a career in this area proved incompatible with her psychiatric illness” and that she needed to “abandon this (career path) in favour of a more structured vocation.”[14] On 15 November 2017, he advised again that the Applicant “remains unfit for any career or employment related to her Fine Arts degree because of her mental health problems.”[15]

   [13] T-Documents, p. 51.

   [14] T-Documents, p. 70.

   [15] Supplementary T-Documents, p. 83.

3. Dr Buckett was able to give evidence to the hearing. Orally, he confirmed his comments quoted above and went on to say that the Applicant was making progress with her mental health condition under the regime of study for the nursing degree, but that she was not able to undertake full-time study together with any degree of employment at the same time.

4. Dr Buckett characterised a nursing career as one which, potentially for the Applicant, “avoids her problems of self-doubt fluctuating mental health and self-organisation.”[16]

   [16] T-Documents, p. 70.

5. When asked about the Applicant’s withdrawal from the Bachelor of Arts (Communications) degree late in 2009 and her enrolment in the Bachelor of Fine Arts degree in early 2010, he indicated that (although he said he had come late into the period as a treating practitioner) he could not be sure that the Applicant, if well enough to enrol in the new course, would have been well enough to re-enrol in the previous course. However he did mention that the Applicant had told him that she was finding the former course difficult in terms of content, the major in Advertising was “incompatible” with her values and that she was “struggling” to complete the course work.

6. He was clear that working directly in areas of arts therapy would be deleterious to the Applicant’s mental health, but he was unable to give a considered professional opinion about other areas of activity (such as working in a museum or gallery) which might draw upon the Applicant’s degree in fine arts.

7. He remarked that, especially in the case of people who have suffered eating disorders, they exhibit signs of “perfectionism, doubt and anxiety” but that they were able to function normally in environments which were structured, orderly, predictable and rules-based.

8. Dr Sharon Levy (who I take to be a general practitioner) provides support for this diagnosis which she reports as “depression and eating disorder.”[17] She later states that the Applicant’s Fine Arts degree is “ill-suited to her current needs” and that she is “unable to work” using this degree.[18]

   [17] T-Documents, p. 52.

   [18] Supplementary T-Documents, p. 84.

9. Finally, there is a statement from Dr Adrian Courtenay (a dental surgeon) to the effect that the Applicant’s physical and psychological issues are causing her to suffer dental problems which need to be ameliorated by a reduction in her levels of stress and anxiety.[19]

   [19] T-Documents, p. 53.

10. Ms. Muzikants herself sets out her reasons for not being able to work in any occupation which relates to the arts/arts therapy. She asserts that:

    ·    “The fine arts/arts sphere and any related or associated jobs and roles (including art therapist), albeit encompassing and varied, has personal associations that are traumatic (provoking past negative emotions, memories and ill experiences) predisposing me to increased anxiety and depressive episodes alongside an increase of damaging eating disorder behaviours. The expressive nature, ethos, personality types within and characteristics of any type of arts and creative arts based jobs in and of themselves are at odds with my personality and my ongoing mental illness…”[20]

    ·    “I require a profession, such as nursing that is task-oriented and objective, grounded in practice that is highly regulated and predictable for my psychological wellbeing.”[21]

    ·    “…my current ongoing psychological disorder inhibits me from obtaining work in my areas of qualification (past studies; Bachelor of Fine Arts & Master of Art Therapy) …My current qualification and subsequent career as an arts therapist/artist is prevented by my psychiatric condition. This type of career and type of work/working roles is sporadic, often sub-contractor based, freelance based or self-employed…My tendency for disrupted emotional, mental and subsequent physical symptomatic patterns, negatively affects my daily life where structure, routine and set distinct tasks and defined established roles are lacking. My condition is best suited to working where roles are clear, tasks are set, expectations are evident and guidelines and policies are in place…working as an artist or in an artist-based role provokes my illness by the stirring up of emotions and memories in artmaking processes, causing detachment, insulation of self and self-damaging eating disorder behaviours due to no solid deadlines, dates, deadlines (sic), commitments or authorities/solid best-practice specified roles to work under.”[22]

    ·    “I require a working environment and career that is practical, structured, predicable, denies and devoid of uncertainty and the pressures of great responsibility for others emotional welling (such as being an art therapist) when my own is compromised and requiring help.”[23]

    [20] T-Documents, p. 2.

    [21] Idem.

    [22] Supplementary T-Documents, p. 80.

    [23] Supplementary T-Documents, p. 81.

11. Further, in relation to her reference to “illness” in s 569H(7), she states:

    “I had a critical illness caused by my psychiatric illness. Major depression and my bulimia nervosa eating disorder caused severe rare neurological damage. Both my legs were affected with peripheral neuropathy that required intensive long-term physiotherapy sessions to learn to walk again, leg splints nerve conduction therapy.”[24]

    [24] Supplementary T-Documents, p. 82.

12. Ms Muzikants contrasts this with a career in nursing. She asserts that:

    “A nursing career will provide me with routine, solidarity and work that is governed by a code of professional practice, standards of nursing care and employment that is structured, accountable and predictable in terms of nursing practice processes for specific contexts and patient needs. I acknowledge a nursing career also has elements of emotion tied to it, however strong professional boundaries, rules of conduct and referral of patients to counselling services is available. In generalised nursing, the physical wellbeing of a person is what is primarily aimed for and set best-practice bind one to specific tasks to help reach physical health goals. Ambiguity, counselling and in-depth patient therapeutic care is referred to other allied roles.”[25]

    [25] Supplementary T-Documents, p. 81.

1. Without commenting on the Applicant’s characterisation of the nursing profession (above), she at least acknowledges that this profession has “elements of emotion” attached to it. I did not find Ms Muzikants’ description of the profession and the working conditions for a nurse in her oral evidence (although she said clearly she would not work as a mental health nurse) to be insightful, although I acknowledge that Dr Buckett in his oral evidence said that he believed she would be able to cope in the profession.

THE SECRETARY’S RESPONSE

1. The Secretary addressed the first of the Applicant’s claims, regarding the way in which she wanted the time studying for the Bachelor of Arts (Communication) degree to be discounted, by saying that the medical evidence that she withdrew on the basis of illness was insufficient. The Secretary relies upon the fact that although the Applicant certainly had some medical issues at the time, she was well enough to enrol in another degree within a short period of time after the initial withdrawal.

2. The Secretary contends, and this position was consistent with the evidence of both the Applicant and Dr Buckett, that a major reason for withdrawal was that the Applicant was finding the course difficult to complete, that she had some “values issues” with what was being taught and that she had come to the conclusion that the course was not a satisfactory one from her point of view.

3. I believe, on the basis of the material before the Tribunal, that this is a conclusion which the Secretary is entitled to reach and the Tribunal does not accept the Applicant’s contention that time calculated for this degree should be disregarded under s 569H(7)(d) of the Act.

4. The Secretary responds to the claims regarding the Applicant’s inability to work in arts/art therapy related roles by noting that there is “limited detail provided in the medical evidence” to support such claims.[26] The Tribunal agrees.

   [26] Secretary’s Statement of Facts, Issues and Contentions, [43].

5. The Secretary’s representative took the Applicant to details in the Tribunal Documents where the Applicant reported to the ARO after the completion of her Master of Arts Therapy degree, that she had actively sought employment in the field but had been unable to find a position because employers were seeking people with additional skills such as social work or psychology. She also advised the ARO that she had applied unsuccessfully for volunteer work in the field.[27] The Applicant confirmed that this was the case.

   [27] T-Documents, p. 56.

6. The Secretary draws attention to the determination of the Social Security and Child Support Division of this Tribunal which put to the Applicant, a number of career options which might be open to her and which drew upon her previous degrees in fine arts and arts therapy. These included art teaching, university lecturing, establishing a business, providing policy advice or working/curating in an art gallery or museum. These options were all “declined” by Ms Muzikants.[28]

   [28] T-Documents, p. 7.

7. To the above list, the Secretary adds options in media, marketing, public relations or government.[29]

   [29] Secretary’s Statement of Facts, Issues and Contentions, [42].

8. In the hearing, the Tribunal itself suggested further options including working for government arts funding bodies or in an arts-specialist library.

9. All of these were declined by the Applicant as unsuitable given her mental health condition. What the Applicant asserted was that:

   ·    Anything to do with the arts or arts-based activity, or anything “in the arts realm”  was potentially adverse to her mental health condition;

   ·    This applied to working with “anybody interested in the arts”;

   ·    Teaching in particular was an unacceptable option because it exposed people to “criticism from children” and other social pressures;

   ·    Her prior experiences of placements associated with her arts therapy course had been “initially ok but affected by the nature of the people I was working with – which I found exasperating.”

10. The Tribunal notes that the Applicant’s current course of study in nursing is progressing well and that this course appears to be helping her address her mental health and psychological issues in a positive fashion. It wishes her well in these studies and hopes that they will lead to positive outcomes for her.

11. However, satisfaction with her current study arrangements and her preference for this future area of employment is not the issue before the Tribunal.

12. The issue is whether there are any reasonable (my emphasis) jobs which are related to Ms Muzikants’ previous fields of successful study in the area of fine arts which meet her own stated requirements of being “practical, structured, predictable, defined and devoid of uncertainty” and devoid of “the pressures of great responsibility for others emotional wellbeing” (to quote her submission directly[30])?

    [30] Supplementary T-Documents, p. 81.

13. The Tribunal does not accept that the entire range of art/arts-based occupations or employment opportunities is unavailable to Ms Muzikants on the basis of her mental health or psychological conditions. There are far too many possibilities in this field to have them all dismissed as unsuitable.

14. In any event, the Tribunal finds that the medical evidence before it is far too insubstantial to support a blanket assertion that all such occupations are unsuitable for the Applicant whereas a nursing career is not.

15. As a result, the Tribunal does not accept the Applicant’s submission that s 569H (7)(c)(i) of the Act should be enlivened in order to have the study times for the previous fine arts degree discounted when making an assessment of the “allowable study time” and finds that the Secretary’s calculations in this respect are correct and in accordance with the provisions of the Act.

CONCLUSION

1. On the basis that the Tribunal rejects the Applicant’s contentions that time calculated to establish the “allowable study time” in relation to both the Bachelor of Arts (Communications) and Bachelor of Fine Arts should be discounted, the application to set aside the Secretary’s decision to withhold Austudy payments is dismissed and the reviewable decision of the Secretary is confirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

......................................[SGD]..................................

Associate

Dated: 4 May 2018

Date of hearing:	18 April 2018
Applicant:	In person
Solicitors for the Respondent:	Elizabeth Ulrick, Department of Human Services