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

[2016] AATA 801

Noble and Secretary, Department of Social Services (Social services second review) [2016] AATA 801 (12 October 2016)

Division	GENERAL DIVISION
File Number	2015/6736
Re	Sarah-Jane NOBLE
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	12 October 2016
Place	Perth

The decision of 6 November 2015 of the Social Services and Child Support Division of this Tribunal is affirmed.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Austudy – whether allowable study time exceeded – whether austudy payment correctly cancelled – whether studying prerequisite course – initial administrative errors by Department – SSCD decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) - s 568 – s 569H

CASES
Locke and Secretary, Department of Social Services [2014] AATA 904

REASONS FOR DECISION

D. J. Morris, Member

12 October 2016

BACKGROUND DATES AND EVENTS

1. Miss Sarah-Jane Noble commenced a four year Bachelor of Forensics/Molecular Biology/Biomedical Science degree course at Murdoch University in Semester 1, 2008 and completed this course in Semester 1, 2012.

2. On 4 March 2013, the Applicant commenced a four year Bachelor of Pharmacy course at Curtin University.

3. On 27 February 2013, Miss Noble lodged a claim with the Department of Social Services (the Department) for Austudy payment on the basis of a four year degree of Bachelor of Pharmacy at Curtin University.

4. On 26 March 2013 the Department wrote to the Applicant and told her she would be paid Austudy payment for two years of study on the basis that one year of her previous degree was considered a pre-requisite for the Bachelor of Pharmacy course.  The Applicant was informed that her entitlement to Austudy would cease on 29 November 2014.

5. On 11 February 2014, the Department decided to cancel Miss Noble’s Austudy on the basis that she had exceeded her “allowable study time” on 29 November 2013.  It was found at that time that the Applicant had a debt of $3,004.84 as a result of overpayment of Austudy for the period 30 November 2013 to 4 February 2014.

6. On 20 February 2014, the Applicant sought a review by an Authorised Review Officer (ARO), an independent officer employed in the Department.

7. On 21 March 2014 the ARO varied the original decision.  The ARO reinstated the Applicant’s Austudy payment and decided that the Applicant would exceed her “allowable study time” on 29 November 2014.  The ARO also found that there was no Austudy debt for the period 30 November 2013 to 4 February 2014.

8. On 1 December 2014 the Department suspended Miss Noble’s Austudy payment on the grounds that she had not completed her course within the “allowable study time.”

9. On 19 February 2015, the Applicant sought review of this decision.

10. On 4 August 2015, an ARO affirmed the decision under review to cancel Miss Noble’s Austudy payment and found that the Applicant exceeded her “allowable study time” at the end of Semester 2, 2013.

11. The Applicant sought a review in the Social Services and Child Support Division of this Tribunal (AAT1). 

12. On 6 November 2015, AAT1 affirmed the decision to cancel Miss Noble’s Austudy payment and found that she had exceeded her “allowable study time” at the end of Semester 1, 2013 and there was no discretion to extend that timeframe.

13. On 21 December 2015, the Applicant sought a review of AAT1’s decision by the General Division of this Tribunal.  That is this hearing.

    HEARING

14. The hearing took place on 12 September 2016 with the Applicant participating by telephone.  The Applicant gave affirmed evidence and was cross-examined by counsel for the Respondent, Ms Sharon Sangha.

15. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).

    QUESTION BEFORE THE TRIBUNAL

    Was the Applicant eligible for Austudy payment on the date it was cancelled, 1 December 2014?

    THE LAW – What is “allowable study time”?

16. The provisions relating to Austudy payment are set out in Division 1, Part 2.11A of the Social Security Act 1991 (the Act).

17. Section 568 of the Act provides that a person qualifies for Austudy payment if the person satisfies the “activity test” which is in turn set out in Subdivision B.

18. Section 569H of the Act sets out the progress rules for tertiary students.  Relevantly in the case of this matter, section 569H(1) provides that in respect of a student who is a full-time student of a tertiary course, the time spent by the student on the course, or one or more other tertiary courses at the same level as that course, must not exceed the “allowable study time”.

19. Section 569H(3) of the Act sets out, relevantly in  the case of the courses studied by Miss Noble, that “allowable study time” for a course that is longer than one year, at section 569H(3)(c), is the minimum amount of time needed to complete the course as a full-time student plus half an academic year.

20. In simple terms, therefore, if a person is enrolled in a course which the institution stipulates is a four year course for a full-time student, the “allowable study time” for such a person in terms of Austudy would be four and a half years.

21. The Act does provide for certain specific things to be disregarded when deciding whether a recipient of Austudy has exceeded the “allowable study time”.

22. Two of the matters which are to be disregarded under section 569H(7) of the Act are:

    (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.

    What are the facts here?

23. Miss Noble claimed payment for Austudy on the basis of her enrolment in a Bachelor of Pharmacy degree course at Curtin University in Semester 1, 2013.  This is a four year course.  In this course she enrolled on a full-time basis in Semester 1, 2013 and Semester 1, 2014.  In Semester 2, 2013 she had a 50 per cent study load and in Semester 2, 2014, she had a 62.5 per cent study load.

24. She had previously successfully completed a four year double degree course at Murdoch University, namely a Bachelor of Forensics/Molecular Biology/Biomedical Science course.

25. There has been a previous decision that the Applicant’s study time in Semester 1, 2014, should be disregarded under section 569H(7) of the Act on the basis that she failed subjects owing to circumstances beyond her control (relating to illness).  The Tribunal agrees with the ARO’s finding that Semester 1, 2014, should be disregarded when calculating her “allowable study time”.

26. Accordingly, noting that the Bachelor of Pharmacy course is a course at the same level as the earlier bachelor degree course Miss Noble had completed, the Respondent Secretary contended that the “allowable study time” period was exceeded at the end of her first Semester in her Bachelor of Pharmacy course, i.e. at the end of Semester 1, 2013.  Applying sections 569H(1) and 569H(7) of the Act means that the Applicant exceeded her “allowable study time” at the end of Semester 1, 2013.

27. At the hearing, Miss Noble contended that her previous Murdoch University course allowed her to obtain the entrance score she needed to be admitted to the Pharmacy course and therefore should be treated as a ‘prerequisite.’

28. In her evidence, the Applicant told the Tribunal that she enrolled in the Pharmacy degree course using the fact that she was already a graduate, which gave her an automatic Australian Tertiary Admission Rank (ATAR) of 80 points and thus qualification for entry.  Miss Noble said she did not otherwise meet that ATAR score. 

29. She gave evidence to the Tribunal that she was offered four exemptions from certain subjects that she had studied in her Murdoch University course, but decided to take up three because she felt her Chemistry was a bit “rusty” so she should re-take this subject.  Miss Noble received exemptions from Curtin University from three subjects in the Pharmacy course on the basis of recognition of prior learning: Evidence Informed Health Practice 130, Human Structure and Function 100, and Introduction to Pathophysiology 100.

30. The Respondent submitted that the Murdoch University course that the Applicant had undertaken was not in fact a prerequisite course for the Bachelor of Pharmacy at Curtin University and that the Authorised Review Officer was wrong to have decided that it was.

31. Miss Noble gave evidence during the hearing that she did feel that her earlier degree was a prerequisite on the basis that she otherwise would not have been able to enrol in the Curtin University course as she did not otherwise have the ATAR score necessary to enrol in her Pharmacy course.

    What is a ‘prerequisite course’ in the context of the Act?

32. A prerequisite course, in this context, is a course that is a mandatory requirement for enrolment in another course.  In this case, the Applicant’s earlier degree course, while it may have touched on some similar subjects, plainly does not fit into that category.

33. The Tribunal made its own investigation of the Curtin University course requirements for the Bachelor of Pharmacy course and finds that the course undertaken by Miss Noble was factually not a prerequisite course.  The Curtin University website does not stipulate it, or indeed any other degree course, as a condition precedent for enrolling in the Bachelor of Pharmacy degree.  It does stipulate an ATAR score and certain required subjects.

34. If a person has an ATAR of 80 and WACE subject requirements of Chemistry 3A/3B, Mathematics 3A/3B and at least English 2A/2B, Literature 2A/2B or English as an Additional Language/Dialect 2A/2B, that person can enrol in the Bachelor of Pharmacy course at Curtin University.  Another path of entry is successful completion of one year of another undergraduate degree, which is the path Miss Noble was able to take.

35. If a person has the ATAR rank and requisite subjects, he or she can enrol without having completed a year of another degree.  Equally a person who has successfully completed one year of a different degree from the one Miss Noble had done at Murdoch University may be eligible to enrol in the Bachelor of Pharmacy course.

    Incorrect advice given by Department

36. In a letter dated 26 March 2013, an officer of the Department wrote to Miss Noble and said in part:

    I’m writing to advise that we can only pay you Austudy for 2 years of your 4 year Bachelor of Pharmacy.  The reason for this is that although you’ve done a previous degree, Curtin University have confirmed that they’ve only considered 1 year of this degree as a pre-requisite for the Bachelor of Pharmacy.  This means that I can only disregard 1 year of your previous degree rather than the whole degree. [Emphasis added]

37. There was no evidence before the Tribunal that Curtin University had provided this information to the Department as stated. 

38. On 21 March 2014 an ARO wrote to the Applicant saying, in part:

    I have otherwise found that one year of your previous course will be disregarded under paragraph 569H(7) of the Act, because it was a pre-requisite for entry into your current course.  In effect, then, only three years of your previous course count toward the allowable time assessment for your current course.

39. Also in the section 37 documents before the Tribunal were the working notes used by the ARO in preparing this 21 March 2014 letter. The working notes state, in part:

    The decision maker disregarded a year of previous study on the basis that it met the ‘pre-requisite’ provisions in SS Act S569H(7)(a).  They’d first checked with Curtin Uni that this was a ‘normal pre-requisite’ situation – where the course entry was based on a year of study in a previous degree. [Emphasis added]

40. Again, there was no other evidence before me of what specific contact had in fact occurred between the Department and Curtin University which led to this error occurring, and being perpetuated. 

41. I can speculate that there was a misunderstanding in the Departmental officer’s inquiries that some subjects the Applicant had undertaken in her Murdoch University degree were credited in place of similar mandatory subjects required for the Pharmacy degree course at Curtin.  But this is mere speculation – I do not know who in Curtin University told the Department officers what.

42. I have sympathy for the Applicant.  She was told something on two occasions in writing by the Department that was incorrect, which gave her an expectation, and which affected her entitlements.

43. Unfortunately for the Applicant, I must look at whether the original decision was correct in terms of the relevant statute.  As Senior Member Walsh said in Locke and Secretary, Department of Social Services at [45]:

    The Tribunal’s inability to exercise powers other than those available to the decision-maker can lead to injustice in some cases.  For example, where a strict application of the law results in unfairness to an applicant.

44. Miss Noble’s case may fall into that category, because of the incorrect advice apparently given by Curtin University to the Department, or at least misunderstood by the Department, and then conveyed to her in correspondence – and later discovered to be wrong.

45. In any event, the provisions in the Act are clear.  There is no discretion for me to change what is the “allowable study time.”  The Parliament did not include a discretionary power in section 569H of the Act.  I cannot create a fictional discretion that was not available to the original decision-maker, and then exercise it.

    Possible recourse for the Applicant

46. The Department has previously advised the Applicant, and I again pointed out to her during the hearing, that she should be aware of the Scheme for Compensation of Detriment caused by Defective Administration (the CDDA Scheme) administered by the Department of Finance.  One of the definitions in the CDDA scheme of “defective administration” is:

    Giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.

47. As I said at the hearing, applications under the CDDA Scheme are discretionary and claims under that Scheme are assessed on their individual merits.  I could not say whether or not Miss Noble might be successful if she lodged a request.  On the one hand, she may be successful because the original decision maker and the ARO were wrong in the advice given to her and therefore she had a certain expectation of income support. 

48. On the other hand, in her own knowledge, it is at least arguable that the Applicant knew that the Murdoch University course was not strictly a prerequisite for the Curtin University course, but it enabled her to enrol on the basis that certain prerequisite subjects were ‘forgiven’ by the University authorities as she had done similar subjects in her first degree.

49. In sum, I understand the Applicant’s frustration that the Department had made an error in telling her, initially, that she would receive additional Austudy payments because the Department had erroneously decided that the Murdoch University course was a prerequisite to the Curtin University course.

    CONCLUSION

50. Notwithstanding that I consider there has been an initial administrative failure in this case, I am bound by the provisions of section 569H of the Act.  There is no discretion in calculating “allowable study time” apart from the statutory stipulations that are to be disregarded under section 569H(7) and, regrettably for the Applicant, administrative error is not one of those factors.

51. The Applicant was not eligible for Austudy payment on 1 December 2014.

    DECISION

    The decision of 6 November 2015 by the Social Services and Child Support Division of this Tribunal is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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Administrative Assistant - Legal

Dated 12 October 2016

Date of hearing	12 September 2016
Applicant	In person
Counsel for the Respondent	Ms S Sangha
Solicitors for the Respondent	Mills Oakley Lawyers