Nair-Marshall and Secretary, Department of Family and Community Services

[2004] AATA 1258

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1258

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/509

GENERAL ADMINISTRATIVE DIVISION		)
Re		OWEN NAIR-MARSHALL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member McCabe

Date29 November 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]......................

Senior Member McCabe

CATCHWORDS

SOCIAL SECURITY LAW – benefits – applicant applied for pensioner education supplement – whether applicant satisfies criteria in Social Security Act 1991 – applicant is not undertaking qualifying study – decision affirmed.

Social Security Act 1991

Disability Discrimination Act 1992

REASONS FOR DECISION

29 November 2004                  Senior Member McCabe

introduction

1.      Mr Owen Nair-Marshall says he is eligible to receive a pensioner education supplement (PES). The Secretary says the applicant is not entitled to the payment because he is, in effect, overqualified. The Social Security Appeals Tribunal (the SSAT) affirmed the Secretary’s decision and Mr Nair-Marshall has come to this Tribunal for relief.

2.      The outcome of the review turns on the interpretation of s 1061PB of the Social Security Act 1991 (the Act). The applicant says the Disability Discrimination Act 1992 is also relevant.

3.      The review was conducted on the papers. That means my decision has been made on the basis of the file, which includes the documents required under s 37 of the Administrative Appeals Tribunal Act 1975, and on the basis of the written submissions of the parties.

4.      For reasons I will explain, I am satisfied Mr Nair-Marshall is not eligible to receive PES.

the facts

5.      The facts are not in dispute. Mr Nair-Marshall is a retired teacher. He suffers from health problems that prevent him from returning to work on a full-time basis in the secondary education system. He is 60 years of age. He is a well-educated man: he holds a bachelor of arts, a graduate diploma of education and a master of arts postgraduate degree.

6.      The applicant wishes to return to some sort of remunerative work. He wants to teach English as a second language in private colleges on a part-time basis. He needs to complete a course of study before he is qualified to the job, and he has asked for PES in relation to that course. Assuming he is successful in his studies, he would be awarded a graduate certificate.

7.      It seems the applicant is well-suited to the work notwithstanding his health problems, and the course would provide him with the opportunity to re-enter the workforce.

the legislation

8. Section 1061PA of the Act says a person is qualified for a PES if the person is “undertaking qualifying study…”. (There are other criteria included in s 1061PA, but they are not relevant for present purposes.) Section 1061PB addresses what is meant by “undertaking qualifying study”. In particular, s 1061PB(2)b)(i) says a person is not undertaking qualifying study if the person has completed a course for “a degree of Master or Doctor at an educational institution.”

9.      The applicant has a masters’ degree from the University of Western Sydney. He sought to make a distinction between being awarded a degree and completing a degree, but I think that is a semantic discussion. His academic transcript says he graduated and the degree was conferred on 8 October 1998. There is no room for a generous interpretation of the legislation favouring the applicant, no matter how much sympathy the decision-maker might feel for the applicant’s objectives. The legislation says what it says. The SSAT was right to conclude the applicant was not undertaking qualifying study within the meaning of the Act.

10.     Mr Nair-Marshall says the provisions of the Disability Discrimination Act 1992 must be taken into account. He notes s 3 of that Act refers to the objective of eliminating discrimination in Commonwealth laws and in the administration of Commonwealth laws and programs. He says he has a disability and the Secretary is discriminating against him.

11.     The applicant is wrong. The Secretary is not discriminating against him. The Secretary has no discretion in the matter. The Act determines the outcome of this case. I do not think the Act can be read down in light of the provisions and objectives of the Disability Discrimination Act 1992 without depriving the Act of its clearly intended meaning. The Social Security Act 1991 says what it says. If parliament intended to change what the Act says, the legislators would have done so in clear words. The aspirational statements contained in the Disability Discrimination Act 1992 do not have the effect the applicant says they have.

conclusion

12.     The decision under review must therefore be affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member  McCabe.

Signed:         [Sgd]
  Associate:  Thomas Ritchie

This matter was heard on the papers.       
Date of Decision: 29 November 2004.      
The applicant represented himself.
The respondent was represented by Mr Howard, a departmental advocate.