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

Pratt and Secretary, Department of Social Services (Social services second review) [2020] AATA 1245 (7 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/5918
Re:Harrison Pratt
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:7 May 2020
Place:Perth

The decision of the Authorised Review Officer dated 14 May 2019 to cancel the Applicant’s Pensioner Education Supplement is affirmed.
................................[sgd]...................................
Deputy President Boyle
CATCHWORDS
SOCIAL SECURITY – pensioner education supplement – full-time study – concessional student – qualifying study – normal amount of full-time study - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 1061PA, 1061PA(a), 1061PB, 1061PB(1)(a), 1061PB(1)(b), 1061PB(1)(c), 1061PC, 1061PD, 1061PE, 1061PF, 1061PF(1), 1061PF(1)(a), 1061PF(1)(b), 1061PF(1)(c), 1061PF(2), 1061PF(2)(a), Part 2.24A
Social Security (Administration) Act 1999 (Cth) – s 179(2)
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide, version 1.266 – Instruction 1.1F230, Full-time study (YA, Austudy, PES)
REASONS FOR DECISION
Deputy President Boyle
7 May 2020
THE APPLICATION

The Applicant seeks the review of the decision of an Authorised Review Officer (ARO) dated 14 May 2019 (T21) to cancel the Applicant's Pensioner Education Supplement (PES) on 6 February 2019 affirmed by the Administrative Appeals Tribunal, Social Services & Child Support Division (AAT1) by decision dated 4 September 2019 (T2).
THE ISSUE
The issue for determination is whether as at 6 February 2019 the Applicant met the qualification criteria for the PES contained in subsection 1061PA of the Social Security Act 1991 (the Act). This requires the determination of whether the Applicant was undertaking ‘qualifying study’ within the meaning of subsection 1061PA(a) of the Act, in particular, whether the Applicant was a full-time student or a concessional study-load student in respect of his course pursuant to subsection 1061PB(1)(c) of the Act.
BACKGROUND
The AAT 1 decision (T2/10) described the Applicant as being a 20 year old with an undiagnosed condition somewhere between cerebral palsy and autism who is percutaneous endoscopic gastronomy (PEG) fed and wheelchair bound. He has poor average health and is completely non-verbal. In recent years, as a result of his ASDAN education programs, he has been able to respond non-verbally to questions with yes or no answers.
The Applicant was paid PES in respect of his study at Castlereagh School until
31 December 2017.
The Applicant transferred from Castlereagh School to Rocky Bay Inc., a registered training organisation. The Applicant enrolled in a course of study called Award Scheme Development Accreditation Network (ASDAN course).
On 23 June 2018, the Department of Human Services (the Department) cancelled the Applicant's PES because the ASDAN course was not an approved course. That decision was affirmed by an ARO on 21 August 2018. On 24 August 2018 the Applicant sought review of the ARO decision by the Administrative Appeals Tribunal.
On 13 November 2018 the Administrative Appeals Tribunal set aside the ARO’s decision of 21 August 2018 and determined that the course was an approved course for the purposes of the Act. It sent the matter back to the Chief Executive Centrelink for reconsideration in accordance with the direction that the Applicant’s ongoing eligibility for a PES was to be assessed on the basis that he is undertaking an accredited course.
On 6 February 2019 Centrelink made a decision to cancel the Applicant’s PES because he was not undertaking 25% of a full-time study load in an approved course.
The Applicant sought a review of that decision by an ARO who, on 14 May 2019, found that the decision was correct (see [1] above) (T21). Relevantly the ARO determined that:
To qualify for a Pensioner Education Supplement as a concessional study load student, a person must be undertaking 25% of a full time study load in an approved course of education…
In [the Applicant’s] case, [he was] receiving Pensioner Education Supplement for study in Award Scheme Development Accreditation Network (ASDAN) at Rocky Bay Inc.
Enrolments in the ASDAN program are assessed based on the Western Australian Certificate of Education (WACE) duration and study load requirements. To achieve the WACE, a student needs to complete 20 modules over 2 years. The full time study load is therefore 10 modules per year. This means to meet the minimum study load requirements for Pensioner Education Supplement, a person needs to be enrolled in and undertaking at least 3 modules per year (30% study load).
The ARO held that because the Applicant was enrolled in one unit, equating to 10%,

he did not meet the 25% minimum study load requirement. It is of that decision that the Applicant seeks review. AAT 1 affirmed the decision. By operation of s 179(2) of the Social Security (Administration) Act 1999 (Cth) the decision for review by the Tribunal is the ARO decision of 14 May 2019 as affirmed by AAT1.
LEGISLATION
Section 1061PA of the Act provides:
Qualification for pensioner education supplement
A person is qualified for a pensioner education supplement if the person:
(a)   is undertaking qualifying study (see Subdivision B); and
(b)   is receiving a payment attracting pensioner education supplement (see Subdivision C); and
(c)   is of pensioner education supplement age (see Subdivision D); and
(d)   meets the residency requirements under Subdivision E.
Section 1061PB of the Act relevantly provides:
Undertaking qualifying study
General
(1)For the purposes of this Part, a person is undertaking qualifying study if the Secretary is satisfied that:
(a) the person:
(i)    is enrolled in a course of education at an educational institution; or
(ii) …; or
(iii) …; and
(b)   the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 1061PC); and
(c)   the person is a full-time student or a concessional study-load student in respect of that course (see sections 1061PD and 1061PE); and
(d)   the person satisfies the progress rules (see sections 1061PH and 1061PI).
Section 1061PC of the Act provides:
Approved course of education or study
For the purposes of paragraph 1061PB(1)(b), a course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.
The Respondent accepts that the Applicant satisfied subsection 1061PB(1)(a) and (b) of the Act in that he was enrolled in an approved course of education. That was, in any event, the finding of the AAT in application 2018/P126014 (see [7] above).
Section 1061PE relevantly provides:
Concessional study-load students
(1)For the purposes of this Subdivision, there are 2 classes of concessional study-load students, namely:
(a) 25% concessional study-load students; and
(b) 66% concessional study-load students.
(2)For the purposes of this Subdivision, a person is a 25% concessional study-load student in respect of a course if this subsection applies to the person and:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)–the person is undertaking at least one quarter, but less than three quarters, of the normal amount of full-time study in respect of the course for that period;
Section 1061PF of the Act provides:
Normal amount of full-time study
(1) For the purposes of this Subdivision, the normal amount of full-time study in respect of a course is:
(a)   if:
(i)    the course is a course of study within the meaning of the Higher Education Support Act 2003 ; and
(ii)   there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;
the full-time student load for the course; or
(b)   if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course–the amount so defined; or
(c)   otherwise–an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
(2)Without limiting subsection (1), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.
Relevant policies are contained in the Social Security Guide (the Guide). The relevant policy is set out in Instruction 1.1.F.230, Full-time study (YA, Austudy, PES).

That instruction is, however, largely repetitive of s 1061PF of the Act and provides little assistance in interpreting the relevant provisions of the Act.
THE HEARING
The application was heard on 27 March 2020. Mr Geoff Pratt, the Applicant’s father, represented the Applicant. The Respondent was represented by Ms S Ryan.
Both parties had provided extensive submissions. The Applicant also provided an Education Department of Western Australia document titled Documented Plans, Supporting Education for All, Guidelines for Implementation of Documented Plans in Public Schools and a Castlereagh School Documented Plan, Semester 2, 2017 for the Applicant. The Respondent included with her submissions the decision of the Tribunal of 13 November 2018 (see [7] above) a letter from Castlereagh School dated

29 October 2018 and a letter from the School Curriculum and Standards Authority dated 25 October 2018 both addressed to the Tribunal in that matter.
THE RESPONDENT’S CASE
The AAT 1 decision, correctly in the Tribunal’s view, identified the issue for determination as being whether the Applicant was undertaking a sufficient study load to qualify for the PES at the relevant time in 2019 (T2/10).
In that regard the Respondent’s case, as set out in the statement of facts and contentions, is:
21.…the Applicant was not a full-time or concessional study-load student and so does not satisfy subsection 1061PB(1)(c) of the Act.
22.… the Applicant was not a full-time student within the meaning of subsection 1061PD of the Act,… The definition of normal amount of full-time study is contained in section 1061PF…
23.Subsection 1061PF is reinforced by the guidance provided at Instruction 1.1.F.230 of the Guide which states:
Full-time study (YAL, Austudy, PES)
Definition
For the purposes of YAL, Austudy, and PES, undertaking full-time study is defined as at least 75% of the normal amount of full-time study for tertiary students.
The normal amount of full-time study for a course is:
·if the course is a course of study within the meaning of the Higher Education Support Act 2003 - the equivalent for the period of the full-time study-load for that period as determined by the institution in accordance with the Administration Guidelines under that Act,
·if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course in the period - the amount so defined, or
·if the institution does not define an amount of full-time study that a full-time student should typically undertake in respect of the course - an amount equivalent to the average amount of full-time study that a person would have to undertake in the period for the duration of the course in order to complete the course in the minimum amount of time needed to complete it, or
·if none of the above situations apply, a minimum of 20 contact hours per week.
24.The Applicant's course of study is not within the meaning of the

Higher Education Support Act 2003
and therefore subsection 1061PF(1)(a) of the Act does not apply.
26.Rocky Bay has not formally defined what constitutes full-time study for the purposes of the ASDAN course (e.g. in a course guide). However, Rocky Bay verbally agreed with the information contained in the Department's internal National Course Approvals guide (NCA)…
26.The Department maintains a NCA which contains all the relevant information for assessing a person's qualification for various payments that involve training or study. In relation to ASDAN, the NCA provides that:
ASDAN…is an approved secondary program. The WA School Curriculum and Standards Authority have endorsed a list of ASDAN modules that can be attributed to the WACE - Western Australian Certificate of Education.

The RTO-Rocky Bay Inc. is delivering some of these endorsed ASDAN modules. Therefore enrolments in the ASDAN program can be assessed based on the WACE duration and studyload requirements. To achieve the WACE, a student needs to complete 20 modules over 2 years. Therefore the full-time study load is 10 modules per year. To meet the minimum study load requirement for PES, a student would need to be enrolled in and undertaking at least 3 modules per year (30% study load). Please request proof of enrolment before granting PES. The proof of enrolment needs to confirm the list of ASDAN modules the Customer is enrolled in and undertaking, including the module name and number, and confirm the period of enrolment (dates)…
27.Therefore, pursuant to 1061PF(c) of the Act, the Secretary contends that full-time study for the purposes of the ASDAN course is 10 modules per year.
…
30.Given the Applicant was enrolled in one ASDAN module, he cannot be found to have been enrolled full-time, as this is only 10% of the typical full-time load.
…
32.…if the Applicant was enrolled in three modules he would be above the 25% threshold and meet 1061PB(1)(c).
33.Accordingly, the Secretary contends that the Applicant was not a full-time or concessional study-load student and so does not satisfy subsection 1061PB(1)(c) of the Act and he therefore does not meet the qualification criteria for PES as at the date of cancellation on 6 February 2019.
THE APPLICANT’S CASE
The Applicant’s written submissions, received 30 January 2020, responded to specific paragraphs of the Respondent’s statement of facts and contentions as follows:
#21Under the Act, Subsection 1061PF 1(b), an institution may define the amount of full time study typically undertaken, with respect for a course.
The Education Department of WA is not covered under the Higher Education Support Act 2003, nor is the ASDAN SEND course.
Rocky Bay, as a Registered Training Organisation, is not covered under the Higher Education Support Act 2003.
The Education Department of WA, through its Documented Plans policy, specifically under an Individual Education Plan; has given authority for the Headmaster and teachers of a Special Needs school to define the amount of full time study a Special Needs student may undertake.
With regard to Harrison, this was determined to be 2 hours per week, this decision being confirmed by Ms Jacqueline Burns, Headmaster of Castlereagh School.
…
#24… subsection 1061PF 1 (b) of the Act is applicable in these circumstances, as the ASDAN SEND course is a Secondary School course. The Education Department of WA is not covered under the Higher Education Support Act 2003. Rocky Bay, as an RTO, is also not covered by the act.
#25Under the Documented Plans policy from the Education Department of WA, page 13.
“Documented plans and the students school file will accompany the student to other schools or programs as required.” Thus it may be seen that whilst working towards completion of the WACE certification, the Individual Education Plan for Harrison is transportable to Rocky Bay, and the Leisure, Learning Lifestyle program run there, given his continuation with the ASDAN SEND course.
#26The Education Department of WA specifies that the WACE may be achieved over a lifetime.
Given that an Individual Education Plan is in place for Harrison, and that Plan has been endorsed for his study of the ASDAN SEND module at the rate of 2 hours per week, this must be assumed to be the minimum amount of time he will require to spend to achieve completion of the relevant module.
The Education Department of WA places no limit on the amount of time needed to complete the WACE.
#27The statement disregards the fact that Harrison has an Individual Education Plan in place, authorised by the Education Department of WA, and that his assessed ability is to complete 1 module of the ASDAN SEND program per year.
This is under subsection 1061PF 1 (b) of the Act, allowing the institution to determine the amount of full time study required, in conjunction with the Individual Education Plan in place for Harrison.
#30The statement ignores the authority given to an institution to define the amount of full time study as granted under subsection 1061PF 1 (b) of the Act. The institution is the Education Department of WA, and under their Documented Plans policy, an Individual Education Plan has been established.
#31The matter of what constitutes full time study, or normal hours of study supercedes the question of whether the provisions of Part Time study of the Act are applicable.
The Education Department of WA, through an Individual Education Plan, has decided that Harrison is capable of 2 hours study per week. This is his full time study capability, as determined by the Education Department.
CONSIDERATION
At the hearing Mr G Pratt, having identified various sections of the Act, outlined the Applicant’s case as follows:[1]
…The Education Department of Western Australia has in place under a policy of documented plans, individual education plans for students attending special needs or schools such as Castlereagh School. These plans which I believe you have a copy of are – set out the parameters and the time of the study loads for a student doing an ASDAN course.
Ms Jacqueline Burns principle of Castlereagh School has stated that Harrison is capable of doing two hours of study per week in his ASDAN course. That is the full time study amount that he is capable of achieving which is in accordance with the Institution defining an amount of full time study that a full time student would typically undertake in respect of the course. I should point out that the ASDAN SEND program is strictly limited to students with disabilities. It is not available to the normal group of students. They must have significant disabilities to actually do that course.
I would also like to bring to the tribunal’s attention statements made by the respondents regarding the amount of study that they consider Harrison should do. They have said that it should be 10 modules per year and that each module according to them is 120 hours. That gives a total study amount of 1200 hours per year.
According to the website a standard school day is five hours and 10 minutes. Therefore a standard school week, Monday to Friday, totals 25 hours and 50 minutes. If you would just round that up to make things easier to 26 hours, that means that that 1200 hours divided by 26 hours per week gives a total of over 46 weeks per year. A standard school year is only 40 weeks. Therefore what the department is suggesting is physically not possible to do. The entire basis of their argument is incorrect.
[1] Transcript at 2-3.
In response to that argument, Ms Ryan for the Respondent, said:[2]
The department is of the view that their concessional provision under section 1061P of the Act would be the provision that applies to an objective criteria for the work [indistinct] that a student must undertake to qualify for the supplement.
[2] Transcript at 3.
When asked by the Tribunal to respond to the argument put forward by the Applicant based on the number of hours study that needs to be undertaken, that is the argument set out in [23] above, Ms Ryan said:[3]
…the department isn’t relying on the amount of hours as such that a student undertakes to study, the department’s position is based on the enrolment in the module and the undertaking of the module. So the full-time study load however that’s spread across the week is ten modules per year. So a concessional student under the relevant section of the Act would need to be undertaking at least three modules and how many hours that took the student…
[3] Transcript at 4.

The submissions by the parties set out in [23]-[25] above encapsulate the difference between the parties. The Applicant relies on s 1061PF(1)(b) and the provision that the institution can define an amount of full time study ‘that a student should typically undertake in respect of the course’. The Applicant argues that Castlereagh School,

being in this case the relevant ‘institution’ according to the Applicant, has determined that two hours per week is full time study because that is what Ms Burns of Castlereagh School has determined the Applicant is capable of doing. That is then reflected the Applicant’s Individual Education Plan. The Applicant’s argument is that as long as he does the two hours a week, he is fulfilling the requirement for full-time study because

‘the Education Department of WA, through an Individual Education Plan, has decided that Harrison is capable of 2 hours study per week’ (see [22#31] above).
The Applicant’s argument equates what the Applicant’s Individual Education Plan prepared by Castlereagh School determined the Applicant to be capable of undertaking with full-time study for the purposes of s 1061PF of the Act. That is not the scheme or intent of Part 2.24A of the Act. Section 1061PD of the Act relevantly defines a full-time student as being a person who is enrolled in a course for a study period who is undertaking at least three quarters of ‘the normal amount of full-time study in respect of the course for that period’. The meaning of ‘normal amount of full-time study’ is defined in s 1061PF. It is common ground between the parties that the course in question does not come within the operation of subsection (a) of s 1061PF(1). It therefore comes under either subsection (b) or (c).
The Applicant argues that it comes under subsection (b) and that the institution has defined, through the Individual Education Plan, that two hours per week is full-time for the Applicant. That plan, however, as the name indicates, is a plan specifically assessing and addressing the Applicant’s individual capabilities and requirements. It is not, as the Applicant argues, a determination by an institution of the ‘amount of full-time study that a full-time student should typically undertake in respect of the course’ (s 1061PF(1)(b)). It is doing no more than indicating what, in Ms Burns’ assessment, the Applicant is capable of undertaking. As the Applicant put it in his submissions, two hours ‘is his full time study capability, as determined by the Education Department’ (see [22#31] above).
Subsection 1061PF(1)(b) should also be read in light of subsection (c) which also deals with the concept of full-time study. That subsection considers the concept of full-time study in the context of what a person ‘would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it’. Subsection (c) is defining full-time in the context of what a full-time student would need to do in order to complete the course in the minimum time. As the Respondent noted the course:[4]
…is an approved secondary program. The WA School Curriculum and Standards Authority have endorsed a list of ASDAN modules that can be attributed to the WACE - Western Australian Certificate of Education. The RTO-Rocky Bay Inc. is delivering some of these endorsed ASDAN modules. Therefore enrolments in the ASDAN program can be assessed based on the WACE duration and study load requirements. To achieve the WACE, a student needs to complete 20 modules over 2 years. Therefore the full-time study load is 10 modules per year.
[4] Respondent’s statement of facts and contentions paragraph 26.
Subsection 1061PF(2) provides a further alternative definition of normal amount of

full-time study as an average over the duration of the course of 20 contact hours a week. All of the subsections 1061PF(1)(b) and (c) and 1061PF(2) are defining ‘normal amount of full-time study’, as you would expect, by reference to an objective standard of what a

full-time student would typically undertake, not what an individual student is capable of doing.
While the Applicant seems to argue solely that he is undertaking full-time studies and does not rely on his undertaking a concessional study load to comply with

s 1061PB(1)(c), namely at least 25% of the normal amount of full-time study

(s 1061PE(2)(a)), the Tribunal agrees with the Respondent’s submissions as set out in [21] above. The Applicant is undertaking only one module which is one tenth of what a full-time student would be expected to undertake in a year to complete a course requiring 20 modules over the minimum period needed to complete the course, namely two years.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant is not a full-time student or a concessional student for the purposes of s 1061PB(1)(c) of the Act.

He therefore does not meet the qualification criteria for the PES contained in subsection 1061PA of the Social Security Act 1991 (Cth) as at 6 February 2019.
DECISION
The decision of the Authorised Review Officer dated 14 May 2019 to cancel the Applicant’s Pensioner Education Supplement is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................................[sgd]....................................
Associate
Dated: 7 May 2020

Date(s) of hearing: 27 March 2020

Advocate for the Applicant: Mr G Pratt

Counsel for the Respondent: Ms S Ryan

Solicitors for the Respondent: Services Australia

[2020] AATA 1245

7 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date(s) of hearing:	27 March 2020
Advocate for the Applicant:	Mr G Pratt
Counsel for the Respondent:	Ms S Ryan
Solicitors for the Respondent:	Services Australia