Phillips and Secretary, Department of Family and Community Servic Es
[2003] AATA 800
•14 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 800
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/272
GENERAL ADMINISTRATIVE DIVISION
)
Re CATHRYN PHILLIPS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr Murray Allen (Member) Date14 August 2003
PlacePerth
Decision The decision of the SSAT made on 25 July 2001 to affirm the decision of the delegate of the Secretary made on 3 April 2001 to reject Ms Phillips’ application for Youth Allowance (YA) is affirmed.
….....(sgd M Allen)………
Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – activity test - home studies – post-compulsory years of education - whether a full time student – whether enrolled in a course of education at an educational institution – whether an accredited secondary course – course of home study not accredited by Curriculum Council of Western Australia – whether other means of satisfying activity test should have been considered – whether Youth Allowance Activity Agreement should have been negotiated – whether Tribunal has power to exercise discretions available to, but not exercised by, original decision-maker – exercise of discretion retrospectively – possibility of claim for compensation for defective administration..
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security Administration Act 1991
Student Assistance Act 1973
Determination of Education Institutions and Courses – No 2/1999
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Jebb v Repatriation Commission (1988) 80 ALR 329
Re Okely and Secretary, Department of Education Training and Youth Affairs (1999) 29AAR 445
Australian Securities & Investments Commission v Donald [2002] FCA 1174
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32
Fletcher v Commissioner of Taxation (1998) 19 FCR 442
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99
REASONS FOR DECISION
14 August 2003 Mr M Allen, Member
1. This is an application by Ms Cathryn Phillips for a review of a decision made by the Social Security Appeals Tribunal (SSAT) on 25 July 2001 to affirm a decision made by a delegate of the Secretary on 3 April 2001 to reject Ms Phillips application for Youth Allowance (YA).
2. At the hearing of the matter Ms Phillips was represented by Ms Levy of the Sussex Street Community Law Service Inc and the Secretary was represented by Mr Ellis from Centrelink’s Advocacy and Administrative Law Team.
3. The Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) (T1 to T26) and also received into evidence documents A1 and R1 tendered by the applicant and respondent respectively.
4. No oral evidence was given at the hearing, there being no dispute about the facts in the matter. The following findings can be made from the documentary material available to the Tribunal.
5. Ms Phillips was born on 19 February 1986 and received home-based schooling from May 1998 until the end of 2001. Up until the end of the year 2000, when Ms Phillips completed year 10 studies, her home schooling programme had been supervised by the Cannington District Office of the Western Australian Department of Education. The home schooling programme moderated by the Department applies only to the compulsory years of schooling ie up to the end of year 10.
6. Ms Phillips continued her year 11 studies at home in 2001 and on 8 March 2001 submitted an application to Centrelink for YA. In section E of the application form Ms Phillips advised that she was undertaking full-time study (question 1) and answered yes to the question “are you enrolled in a school, training course or tertiary course (eg university, TAFE)?.” Written beside the question were the words “home school”.. The answers to questions 11 to 15 identified the education institution concerned as “home schooling”; the address given was the home address of the applicant; the stage of the course was identified as “year 11; the course was said to start on 1 February 2001 and finish on 15 December 2001; and Ms Phillips was said to be enrolled on a full-time basis.
7. On 3 April 2001 Centrelink wrote to Ms Phillips advising that her application for YA had been rejected because “you are not enrolled at a nominated education institution.” Ms Phillips requested reconsideration of the decision and on 18 April 2001 the original decision-maker confirmed the decision. On 26 April 2001 an authorised review officer affirmed the original decision on the basis that Ms Phillips’ course of study was not “an approved course of education at an approved education institution.” (T23).
8. When Ms Phillips’ application to the SSAT was heard the decision under review was attacked on two grounds. The first was that Ms Phillips was eligible for YA as she was undertaking full-time study within the meaning of the Social Security Act 1991 (“the Act”). Secondly, it was argued that Ms Phillips’ studies should have formed the basis of an approved activity in the context of the terms of a Youth Allowance Activity Agreement (“YAAA”) for the purposes of s541(1)(c) of the Act. In relation to the first argument the SSAT concluded that although Ms Phillips was enrolled in a course of education at an education institution the course in question was not “an accredited secondary course” as required by the Act and, hence, Ms Phillips could not be considered to be undertaking full-time study as required by the Act.
9. In relation to the second argument the SSAT concluded that, because Ms Phillips had not in fact entered into a YAAA, the SSAT could not conclude that Ms Phillips had satisfied s541(1)(c) of the Act. The SSAT therefore affirmed the original decision to refuse Ms Phillips’ application.
10. Ms Phillips did in fact study at home on a full-time basis for the whole of the 2001 school year. It was not in dispute that she undertook the same work as other year 11 students with assistance from her parents if required, and that she also undertook certain lessons outside the home for language, music, art, drama and dancing.
11. Information available to the SSAT and to this Tribunal (R1) was to the effect that the Curriculum Council of Western Australia does not recognise home schooling for years 11 and 12 for the purpose of the Western Australian Certificate of Education and that the Curriculum Council has no responsibility for the development and accreditation of home-schooling courses in the post compulsory years (ie years 11 and 12). Although Ms Phillips’ mother was registered under the School Education Act of Western Australia as a home educator, that registration only applies to the compulsory years of schooling.
Legislative Framework
12. Section 540(a)(i) of the Act provides that a person is qualified for YA in respect of a period if throughout that period the person satisfies the activity test.
13. Section 541(1) provides, so far as is relevant in this case, that a person satisfies the activity test in respect of a period if:
“(a)the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see s541B); or
(b)the person satisfies the Secretary that, throughout the period, the person is actively seeking and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or
(c)the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or
(d)the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection 2.”
14. So far as is relevant, subsections 541(2) and (2A) are in the following terms:
Notices of Particular Requirements
“(2) If the Secretary is of the opinion that, throughout the period, the person should do one or more of the following:
(a)…
(b)…
participate in one or more of the following:
a course of vocational training;
…
…
another course;
…
approved by the Secretary that is likely, in the Secretary’s opinion, to improve the person’s prospects of obtaining suitable paid work, or to help the person in seeking suitable paid work;
(d) …
the Secretary may, …. by notice in writing given to the person, inform the person that the person is required to act in accordance with the Secretary’s opinion.
(2A) A notice under subsection (2) must inform the person to whom it is given of the effect of failure by the person to comply with the requirement set out in the notice.”
15. Section 541B(1) provides (so far as is relevant) that a person is undertaking full-time study if the person is enrolled in a course of education at an educational institution (s541B(1)(a)(i)) and the course in question is an approved course of education or study (s541B(1)(c)). Subsection 541(B)(5) provides that a course is an approved course of education or study if it is a course that the Employment Minister has determined, under s5D of the Student Assistance Act 1973 “the Assistance Act”) to be a “secondary course” for the purposes of that Act.
16. Section 5D of the Assistance Act provides that the Minister may determine in writing that a course of study or instruction (or part thereof) is a secondary course (or a part thereof) for the purposes of that Act. The Minister has made such a Determination – No. 2 of 1999, entitled Determination of Education Institutions and Courses (“the Determination”) – for the purposes of s5D. Clause 4 of the Determination defines an “accredited secondary course” as meaning a course accredited as a secondary course by the Authority responsible for the accreditation of secondary courses in the State or Territory in which the course is conducted.
17. Clause 6 of the Determination provides that for the purposes of the Assistance Act a course specified in Column 1 of Schedule 1 of the Determination and conducted by an educational institution specified for that course in Column 2 of Schedule 1 is a secondary course. In Schedule 1 of the Determination the relevant part contains in Column 1 a course description “accredited secondary course” and in Column 2 the educational institutions that are specified for that course are nominated as “secondary school, registered training organisation, higher education institution, special school.”
Consideration of the issues
18. It can be seen from the above that for Ms Phillips to satisfy the activity test as a full-time student she would need to be, at the relevant time, “enrolled” in a “course of education” at an “educational institution” and the course in question must be “an approved course of education or study.”
19. Reference was made in the SSAT and in argument before me as to what meaning should be given to the expressions “enrolled” and “educational institution” and reference was made to a decision of this Tribunal in Re Okely and Secretary, Department of Education Training and Youth Affairs (1999) 29 AAR 445. It was on the basis of the comments of the Tribunal made in Okeley that the SSAT concluded that Ms Phillips’ home could be considered an educational institution and that she could be considered to be enrolled in a course of education.
20. Mr Ellis on behalf of the Secretary contended that Okeley had been wrongly decided on these points and that the SSAT and I should not follow that decision. In my opinion it is unnecessary for me to reach any conclusion about what meanings should be given to “enrolled” or an “educational institution” because there is a more fundamental obstacle for Ms Phillips to overcome – namely, whether the course in question was an accredited secondary course. It is clear from R1 and the material before the SSAT that the Curriculum Council of Western Australia is the authority responsible for the accreditation of secondary courses in this State and that it does not accredit or moderate programmes for home educators and home students in the post compulsory years of education. That being the case, the course being undertaken by Ms Phillips was not a course accredited by the relevant authority and was not, therefore, an accredited secondary course. It is, therefore, unnecessary for me to arrive at any view about whether Ms Phillips was enrolled and whether her home could be considered an educational institution.
21. In the circumstances I find that Ms Phillips was at the time of her application not a person who was or would be undertaking full-time study (for the purposes of the Act) because the course in question was not an approved course of education or study.. Ms Phillips could not, therefore, satisfy the activity test pursuant to s541(1)(a) of the Act.
22. The second argument made to me on behalf of Ms Phillips was that Ms Phillips should also be taken to satisfy the activity test by virtue of paragraphs 541(1)(c) or (d). As I understand the contentions made by Ms Levy the argument is as follows:
(a) When Ms Phillips’ application for YA was considered by Centrelink it was only examined in terms of whether Ms Phillips could satisfy the activity test as a full-time student under s541(1)(a).
(b) Centrelink had a positive duty to consider Ms Phillips’ eligibility under all relevant sections of the Act and should have considered, but did not, whether Ms Phillips could satisfy the activity test pursuant to s541(1)(c) or (d). In other words, Centrelink should have considered whether Ms Phillips should have been required to enter into a YAAA or whether she should have been required to comply with certain requirements notified to her by the Secretary. By virtue of ss7 and 8 of the Social Security Administration Act 1991 (“the Administration Act”), it was not open to the Secretary to place the onus of assessing her eligibility for YA by entering into a YAAA on Ms Phillips. The Secretary had a positive duty to advise Ms Phillips of “…her qualification to YA by entering a YAAA if it was felt Ms Phillips did not meet the qualifications by undertaking home studies.”
Sections 7 and 8 of the Administration Act are, so far as is relevant, as follows:
General administration of social security law
7. The Secretary is, subject to any direction of the Minister, to have the general administration of the social security law.
Principles of administration
8. In administering the social security law, the Secretary is to have regard to:
(a) the desirability of achieving the following results:
(i) the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
(ii) the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
(iii) the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;
(iv) …;
(v) …; and
(b)the special needs of disadvantaged groups in the community; and
(c) …; and
(d) …; and
(e) …; and
(f) …
(c)In relation to s541(1)(c) and s541(1)(d), the terms of the YAAA or the terms of the requirement of Ms Phillips could, and should, have been that she undertake full-time study at home (in the way that she in fact did) for the whole of the 2001 school year. Because she could (and would) have satisfied such requirements - and thereby qualified to receive YA - Centrelink should have dealt with her application under those paragraphs.
(d)The Act is beneficial legislation and regard should be had to its beneficial purposes to provide maintenance and relief to those facing financial hardship unless to do so would be contrary to the specific provisions of the Act. Any interpretation favouring the individual should be applied.
(e)Accordingly, it is now open to this Tribunal to, retrospectively, exercise the power available to the Secretary to make requirements of Ms Phillips under paragraph 541(1)(d) or arrange for Ms Phillips to enter into a YAAA under paragraph 541(1)(c) with effect from March 2001, in both cases specifying the terms thereof. Further, the Tribunal can, and should, now conclude that Ms Phillips would have, in fact, satisfied such requirements during 2001 and that she can now be said to have qualified for receipt of YA from the time of her application in 2001.
23. In relation to these issues it was contended on behalf of the Secretary that:
(a) Section 43 of the AAT Act only permits the Tribunal to exercise those powers and discretions that were exercised by the decisionmaker in the decision under review. The section does not permit the making of an “original” decision which may, or does, initiate a new chain of review rights - but it does include those ancillary powers, which may or may not have been exercised in the decision under review, that are necessary for the effective carrying out of the review.
(b) In this matter, for the Tribunal to decide that Ms Phillips has satisfied the activity test under s541(1)(c), it would need to look to the YAAA that she was to comply with and the specific terms with which she was to take “reasonable steps” to comply; and then look at what steps she took and decide whether the decision maker was correct in his decision relating to those steps.
(c) As no YAAA exists, the Tribunal would need to decide, first, if one was needed, its terms and the level of compliance required. The Tribunal would then need to decide that there had been a level of retrospective compliance required and determine whether that level was met or not. Only when this was done could the Tribunal then decide whether s541(1)(c) had been satisfied. In doing this the Tribunal would be bringing into being “facts” upon which the question before it would be decided.
(d) For the Tribunal to do all this it would need to stand in the shoes of an original decision maker and exercise powers not remitted to it by the terms of s43 of the AAT Act. The review powers of the Tribunal, however wide one perceives them to be, do not extend to the point where the reviewer can bring into being retrospective factual circumstances upon which the review depends.
(e) The same considerations apply to the issues raised in s541(1)(d). The Tribunal would not only need to decide what requirements were to be notified by the Secretary to the applicant under s541(2) but also when the notice was to be taken to have been given to the applicant and whether or not Ms Phillips did comply with the requirements.
24. When this Tribunal embarks on the review of a decision in respect of which an application for review has been made under s25 of the AAT Act that review is governed by s 43 of the AAT Act, which relevantly provides:
"(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
...
(6) A decision of a person as varied by the Tribunal or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect."
25. In Australian Securities & Investments Commission v Donald [2002] FCA 1174 Merkel J reviewed a number of authorities regarding the application of s43. His Honour made the following observations in his judgement:
“12 It is now well established that, when reviewing an administrative decision of ASIC under s 43(1) the AAT stands in its place, is empowered to exercise all of the relevant powers and discretions of ASIC for the purpose of reviewing the decision under review and hears the matter de novo in the light of the evidence and material placed before it: see Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 at 106.
13 As was said by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589:
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination for the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."
…
18 …In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 Davies J observed that s 43(1) confers upon the AAT
"...an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision."
19 In Fletcher v Commissioner of Taxation (1998) 19 FCR 442 ("Fletcher") at 452 the Full Court stated:
"As a matter of principle, it must be correct, as submitted on behalf of applicants, that the powers and discretions referred to by s 43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose."
20 The Full Court also observed (at 453) that the AAT's powers are not confined to those that were in fact exercised by the primary decision-maker but rather, the AAT is entitled to exercise any power and discretion which the decision-maker was entitled to exercise in relation to the decision under review.
21 In Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39-40 Hill J observed:
"The language of s 43 is quite clear and unambiguous. It empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is not necessary or permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review.
Of course there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal's review. The test is one of relevance rather than dependence. Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion."
…
26 There is no reason for taking a narrow view of the powers conferred on the AAT under s 43(1) of the AAT Act. ASIC was not able to point to any public interest or statutory purpose that might be served by reading into s 43(1) a limitation that the AAT's powers on review exclude the exercise of any power of the original decision maker which cannot be reviewed by the AAT. I cannot conceive of any reason why the same range of powers and discretions available to ASIC should not be available to the AAT on a review, on the material before it, of a banning order made by ASIC, provided that the exercise of those powers and discretions was for the purpose of reviewing the decision to make the banning order. It is not to the point that ASIC may have elected not to exercise one or more of these powers: see Fletcher at 453. “
26. When the Secretary’s delegate considered Ms Phillips’ YA application it was open to (and the duty of) the delegate to consider and make decisions about whether and how Ms Phillips would or could satisfy the s541 activity test. When any YA application is processed the decision maker is able to and, in my opinion, should consider the four activity test possibilities contemplated by s541(1) and whether action should be taken to require a person to enter into a YAAA or to comply with requirements made under s541(2) so that the person can establish an entitlement to YA.
27. In Donald the Tribunal’s decision (the appeal from which by ASIC was dismissed by Merkel J) was to set aside the banning order made by ASIC and to substitute therefor a different banning order and a decision that ASIC accept a written undertaking on certain terms from Mr Donald. I note that Merkel J’s decision in Donald is under appeal to the Full Federal Court and a decision in the appeal is awaited. Until that decision is available I consider the decision of Merkel J to be binding on me.
28. In line with the reasoning of Merkel J above, it can, in general terms, be said that the same range of powers and discretions should be available to this Tribunal as was available to the Secretary, on the material before the Tribunal when reviewing a decision of the delegate to refuse an application for YA – and it is not to the point that the delegate elected not to exercise some of those powers and discretions or failed to consider the applicability of some of them. In that way the Tribunal will be better able to “adequately exercise its function of reviewing on the merits the subject decision” (to use the words of Davies J in Re Control Investments) and to decide what is the correct or preferable decision, on the material before it, in relation to Ms Phillips’ application for YA.
29. In this context it must be recalled that the decision under review was one to refuse an original application for a benefit – as opposed to a decision to cancel an existing benefit. Accordingly, it is necessary to consider the applicant’s entitlement from the date of application (or other proper commencement date) until the date of decision of the Tribunal in the light of the continuing facts: Jebb v Repatriation Commission (1988) 80 ALR 329 per Davies J at 333, Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 674.
30. In my opinion, however, it does not follow that it possible or appropriate for me to now exercise discretions that were available to the Secretary at the time of the original decision that would retrospectively create a new factual basis for an entitlement to YA. It is one thing to exercise a discretion that was available to (but not exercised by) an original decision maker where the effect of that exercise is to operate prospectively. Examples include the exercise of the discretion available to ASIC to accept an undertaking (as was done in Donald) or the exercise of the discretion available to the Secretary to waive a debt otherwise due to the Commonwealth because of the special circumstances of a particular case (as is done regularly by the Tribunal). Likewise, it is possible for the Tribunal to exercise powers that could have been exercised in the past and which involve determining eligibility for a benefit – such as determining whether a specific event had already occurred (eg. whether an application had in fact been made at a particular time) or whether a certain state of affairs had existed during a particular period (eg. whether a person had in fact complied with certain requirements over a period).
31. However, in my opinion, a decision that involves determining that a particular discretion should have been exercised in the past in a way that involved making certain specified requirements – and then to determine whether there would have been compliance had the requirements in fact been imposed at that earlier time – is something quite different. I do not understand the decisions to which Merkel J referred in Donald in the passage set out in para 25 above as going that far. For this Tribunal to exercise discretions in such a retrospective way and to then decide that certain requirements would have been complied with had they been imposed would, in my view, introduce an element of unreality and speculation to the review process. In the circumstances I consider that it is not open to me to now make decisions of that type. It follows that I cannot accept the second argument made on behalf of Ms Phillips that I have outlined in para 22 above.
32. It might be said that one consequence of the conclusion I have reached in the preceding paragraph is that a person in Ms Phillips’ position – ie. who made an application for a benefit only to have it refused because a decision-maker refused or failed to consider all the possible grounds of entitlement and failed to exercise discretions that were reasonably open to be exercised and which may have enabled a basis for entitlement to the benefit to be established – will be deprived of an effective avenue of review and possible redress. That is true so far as review by this Tribunal is concerned. However, as Ms Phillips’ representative noted in submissions, other possible avenues may include a complaint to the Ombudsman in respect of possible maladministration or an application for an ex gratia payment under one of the Commonwealth schemes that permits compensation in certain circumstances. An example of such a scheme is the “Scheme for Compensation for Detriment caused by Defective Administration” administered by the Commonwealth.
33. In order to demonstrate that satisfaction of the activity test via the s 54(1)(c) or (d) requirements was a real possibility for a person in Ms Phillips’ position, Ms Levy referred me to : -
(a)the Minister’s Second Reading speech on the Social Security Legislation (Youth Allowance) Bill 1997 by which YA was introduced (Hansard, House of Representatives, 2 October 1997, p9121); and
(b)various parts of the Secretary’s Guide to the Social Security Law (which is intended to assist the Secretary’s staff understand the requirements of social security legislation and how it should be administered), including ss 1.1.A.210A, 3.2.10.10, 3.2.10.20 and 3.2.10.40.
34. The Second Reading speech places emphasis on flexibility and encouragement of continuing education, including by non-traditional pathways. Equally, the extracts from the Guide cited above indicate that students can satisfy the activity test by undertaking a course (including unrelated subjects and whilst studying at institutions awaiting accreditation) that is “approved” and included in an activity agreement even though the course is not approved under the Determination. Such a student will not be taken to be a full time student but the course may be included in an activity agreement.
35. Those considerations suggest that an approach by the Secretary, when confronted with a YA application, which focused only on whether the person can be said to be a full time student by virtue of undertaking a course approved under the Determination, may not be an approach that properly reflects the policy that could be said to underpin YA.
36. Notwithstanding that, I do not consider that I should express any opinion about that issue or whether any application by Ms Phillips for compensation should or should not be successful.
37. For the reasons set out above my decision is that the decision of the SSAT made on 25 July 2001 to affirm the decision of the delegate of the Secretary made on 3 April 2001 to reject Ms Phillips’ application for YA is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen (Member)
Signed: ........(sgd V Wong).....................................
AssociateDate/s of Hearing 26 February 2003
Date of Decision 14 August 2003
Counsel for the Applicant Ms L Levy
Solicitor for the Applicant Sussex Street Community Law Service
Counsel for the Respondent Mr S EllisSolicitor for the Respondent Advocacy & Administrative Law Team, Centrelink
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