Priest and Secretary, Department of Family and Community Services
[2002] AATA 1191
•19 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1191
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/261
GENERAL ADMINISTRATIVE DIVISION )
Re AARON PRIEST
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr M Allen, Member
Date 19 November 2002
Place Perth
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 21 June 2002.
………...(sgd M Allen)...........................
Member
CATCHWORDS
SOCIAL SECURITY – Austudy payment – qualification for payment – undertaking qualifying study – progress rules – allowable study time – whether year-long subject or further progress in the course depending on passing a whole year's work must be in current year of enrolment
Social Security Act 1991 ss568, 569, 569A, 569H
REASONS FOR DECISION
19 November 2002 Mr M Allen, Member
This is an application made by Mr Aaron Priest for a review of a decision made by the Social Security Appeals Tribunal (SSAT) on 21 June 2002. On that day the SSAT decided to set aside a decision made on are about 5 March 2002 by a delegate of the Secretary that Mr Priest was not eligible for Austudy because he had already completed a four-year degree and was enrolled in a subsequent three year degree. The SSAT concluded that Mr Priest was eligible to receive six months Austudy - for the first semester of 2002. Mr Priest considered that he should be eligible for Austudy for a full year.
At the hearing of the application on 28 October 2002 Mr Priest represented himself and the Secretary was represented by Mr Jones from Centrelink's Advocacy and Administrative Law Team.
The evidenceThe Tribunal received into evidence the documents (the T documents) lodged by the Secretary in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Oral evidence was given by Mr Cooper and (by telephone) by Dr Rosalynn Morrow, a lecturer at Curtin University of Technology (Curtin). The Tribunal also received into evidence as Exhibit R1 additional documents (being extracts from a course outline for the Bachelor of Psychology degree at Curtin ) that should have been included in the original T documentation.
The principal facts of the case are not significantly in dispute. They can be summarised as follows and I make the following findings of fact.
(a)Mr Priest completed a four-year degree at the University of Tasmania in 1998. At the beginning of 2002 he enrolled as a full-time student for Semester 1 and Semester 2 at Curtin .
(b)On or about 30 January 202 Mr Priest lodged a claim for Austudy (document T6). In part 2 of section D of that claim document (which deals with the institution at which and the course in which the applicant is enrolled) he described the "exact course title" as "Bachelor of Psychology"; the "course code" as "167999"; and the "year/stage of course" as "1st year B.Sc Psych." The seeds of subsequent misunderstandings were thus sown.
(c)At the time, Curtin's course handbook as displayed on its website (document T9) described course "167999 (Bachelor of Science (Psychology))" as being a course of three years full-time study. Mr Priest was considered ineligible for Austudy by the Centrelink decision-maker because of the prior four-year degree because "a person must not have studied (at a given level) more than the length of their current course plus a semester (or year of (sic – if) they are enrolled in year-long subjects)." (T10)
(d)An authorised review officer affirmed the decision, relying on the handbook as evidence that the course in which Mr Priest was enrolled was a three-year, semester-based, degree rather than a four-year degree as Mr Priest had submitted.(T15)
(e)What was not known to Centrelink, was that Curtin had decided to change the composition of the various degrees in the psychology area and at the relevant time was gaining approval for those changes via the University's hierarchy. The handbook, as displayed on the University's website, was not correct. Course 167999 (Bachelor of Science (Psychology) was to be changed from a three-year degree (which was not sufficient to gain registration to practice as a psychologist – which would require a fourth year of study) to become a four-year course (which would be sufficient to gain registration) and was to be renamed Bachelor of Psychology (T16 and R1). Mr Priest's evidence was that he was well aware of this change and that at all times he knew he was embarking on a four-year degree. He described the discrepancies in his description of the course title and the year of course referred to in paragraph 4(b) above as a mistake on his part and a lack of attention to detail.
(f)This new information was available to the SSAT when it made its decision in June 2002. It concluded that the fourth year of Mr Priest's course was a single unit for a full year – and on the SSAT's interpretation of s569H(3) of the Social Security Act (1991) (the Act) and the relevant parts of Centrelink's Guide to Social Security Law the "allowable study time" for Mr Priest's course was 4.5 years. After deducting the four years of Mr Priest's earlier degree this meant that Mr Priest was eligible for Austudy for a period of half an academic year.(T2)
(g)Centrelink has implemented the SSAT decision, paying Austudy to Mr Priest for the first semester of 2002. Mr Priest seeks to have that extended for the full academic year.
Further evidence given by Mr Priest and Dr Morrow is referred to below.
The issues
The issue for determination is whether Mr Priest is eligible to receive Austudy for the whole of 2002, rather than for the first semester only. This requires an assessment of what is the allowable study time for Mr Priest's current course.
The legislation
8.The following provisions of the Act are relevant to this proceeding:
568 Qualification for austudy payment--general rule
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.
569 Activity test
569(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).
569A Undertaking qualifying study 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).
569H Progress rules--tertiary students
Full-time students
569H(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.
Allowable study time—full-time students and 66% concessional study-load students
569H(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.
Levels of tertiary courses
569H(8) There are 4 levels of tertiary courses, levels A, B, C and D.
Level B courses
569H(10) The following are Level B courses:
(a) a bachelor degree course (other than a postgraduate course), with or without honours;
Consideration of the issues
There is no dispute that Mr Priest is an Australian resident and of Austudy age as required by s568 (b) and (c). He will therefore qualify for Austudy if he satisfies the activity test throughout the relevant period: s568(a). He will satisfy the activity test if he is undertaking qualifying study (s569(1), the requirements of which are found in s569A. Likewise, there is no dispute that he is enrolled as a full time student in an approved course at an educational institution:s569A(a)(i), (b) and (c). The remaining requirement of s569A is that he satisfy the progress rules – the requirements for which are found in s 569H for tertiary students.
As a full-time student Mr Priest would have satisfied the progress rules if, on the day he enrolled at Curtin (ie in January 2002) the time already spent on the Curtin course (ie nil) or on one or more other tertiary courses at the same level as that course (ie the four years spent on the degree at the University of Tasmania – there being no dispute that the two degrees were at the same level) did not exceed the "allowable study time" for the Curtin course: s 569H(1)(a).
The rules about what is the allowable study time for a course where the student is full-time are set out in s569H(3) of the Act. It is clear that s569H(3)(a) is not applicable to Mr Priest's case as his Curtin course obviously extends beyond one year. The crucial question in this case is whether Mr Priest's situation, on the day he enrolled, fell within s569H(3) (b) or (c). There being no dispute that the minimum amount of time needed to complete Mr Priest's Curtin course was four years, the allowable study time would be five years under s569H(3) (b) or 4.5 years under s569H(3)(c).
The SSAT concluded its decision as follows:
18. "The Guide to Social Security Law, section 3.3.4.70 "Austudy &Progress Rules for Tertiary Study" provides a guide to the allowable time. The section states that if the minimum time to complete the course is more than one year and at least one subject in the current year is year based, then the customer is a full-time student for the minimum time of the course plus one year. On the other hand, if the minimum time to complete the course is more than one year and the subjects are all semester based then the customer is a full-time student for the minimum time of the course plus half a year [emphasis in original].
19. "Mr Priest is a full-time student and is enrolled in an undergraduate degree course of 4 years full-time duration. The first 3 years of the course, including the year in which he is currently enrolled, are semester –based. The fourth year of the course entails full-time study of a single unit for a full-year. Applying section 569H(3) of the Act, and noting the policy set out in section 3.3.4.70 of Centrelink's Guide to Social Security Law, it is evident that the allowable study time in Mr Priest's case is 4.5 years (the minimum amount of time needed to complete the course as a full-time student plus half an academic year) less 4 years (the time Mr Priest spent completing an undergraduate degree at the University of Tasmania). He therefore has not exceeded his allowable study time and is eligible for Austudy for a period of 6 months.
Although not stated, it seems that the SSAT must have considered the matter as falling within s569H(3)(c) - which permits an additional half academic year – rather than s569H(3) (b), which permits an additional year, despite the reference to the final year of Mr Priest's course involving a single unit for a full year. The SSAT must have adopted the view expressed in Centrelink's Guide that the "year-based" subject must be "in the current year" rather than in a future year for s569H(3)(b) to apply.
That brings us to examine the content of the course in which Mr Priest is enrolled. The revised course description in the handbook (Exhibit R1) describes the course in terms of the specific individual compulsory or elective units that are to be undertaken in each semester. There was at the hearing no dispute that for the first three years of the course all units were semester based. However, it was in respect of the fourth year that differences arose. Depending on the grades achieved in the first three years, students enter the fourth year in either the "fourth year psychology stream" or the "honours psychology stream". The differences between the two streams and the structure of the final year appear from the following extracts from Exhibit R1:
"Fourth Year Psychology Stream
Course Structure
Year 4 Semester 1 Credit
Psychology Dissertation Preparation 491 25
Psychology 421 – Applied Psychology 25Psychology Counselling 421 – Introduction to Counselling 25
Psychology Research Methods 441 25
Year 4 Semester 2
Psychology Dissertation 492 25
Psychology 423 – Psychological Assessment 25
Psychology Contemporary Issues 442 25
Select elective units to the value of 25"
"Honours Psychology Stream
Course Structure
Year 4 Semester 1 Credit
Psychology Honours Dissertation 491 50
Psychology 421 – Applied Psychology 25
Psychology Honours Research Methods 441 25
Year 4 Semester 2
Psychology Honours Dissertation 492 50
Psychology 423 – Psychological Assessment 25
Psychology Contemporary Issues 442 25"
Mr Priest's evidence was that he considers the dissertation component of the final year of his course to be a full year unit – particularly in the Honours stream but also in the other stream. It involves a full years work, with semester one taken up with writing a proposal, conducting a literature review, obtaining ethics committee approval for the research and preparation for and commencement of the research. Semester two consists of completing the research and writing up the dissertation. In that sense, he submitted, the dissertation should be seen as a full-year unit, even though there are two separate units specified for the two semesters as making up the dissertation component of the final year.
Mr Priest was asked what would happen if a student in either stream in fourth year failed to make satisfactory progress in relation to the dissertation in semester one – such as by failing to complete the literature review or to gain ethical approval. He conceded as "a fair assumption" that such a student would not be permitted to proceed to complete a dissertation in semester two of that year.
Dr Morrow's evidence, which I accept, was helpful in this regard. She confirmed Mr Priest's evidence that in semester one a student would prepare for the dissertation under direct supervision of a supervisor, by planning the research, writing a proposal, conducting a literature review (or a draft thereof), obtaining ethical approvals and commencing the gathering of the data. At the end of semester one the student's work in that semester is assessed and given a pass/fail grade for the semester one dissertation unit. This grade results from the supervisor marking the papers prepared by the student during the semester for the proposal, the ethics approvals and the literature review. In semester two the student would finalise the data collection and write up the dissertation. A grade would be awarded for the second semester dissertation unit at the end of semester two and would reflect the quality of the whole years work to some extent – for example the draft literature review prepared in semester one would become (in a final form) part of the final dissertation and would contribute to the final mark.
Dr Morrow said that it is not common for a student to get a fail grade for the dissertation unit in semester one because of the close supervision of the student. Nevertheless, it is possible and in such a case a student would either be given the opportunity to redo the semester or perhaps a supplementary examination of some kind before being permitted to proceed to the second semester of the dissertation program.
Dr Morrow also said that it as possible for a student to break the dissertation after one semester, deferring the second semester for up to one year. An application to do that would not be automatically granted, but it was possible.
Finally, Dr Morrow said that all the other units (apart from the dissertation units) taken in the final year are graded individually in semesters one and two and that a student may elect not to undertake the fourth year at all, instead seeking to graduate with an intermediate degree if all the requirements for the intermediate degree had been completed in the first three years.
As noted above, Mr Priest submitted that the two dissertation units in the fourth year should be treated as a whole year unit. Alternatively, the student's further progress in the course (ie to complete the degree) should be considered to depend upon passing a whole year's work in the course. He submitted that the SSAT's apparent acceptance of the need for the full-year unit to be in the current year of enrolment, as specified in Centrelink's Guide, was a requirement that went beyond the provisions of the Act and was not correct.
Mr Jones submitted that for the purposes of paragraph 569H(3)(b) the question of the progress rules must be examined at the point of enrolment – whether the student was enrolled in a year-long subject or whether the further progress was progress beyond the current enrolment period. Consequently, even if the SSAT was correct in its assessment that Mr Priest's fourth year involved a year-long subject (which Mr Jones did not accept) then the SSAT decision was still correct because that year-long course was not in the current year. Mr Jones submitted that on the evidence of Mr Priest and Dr Morrow and the documentary evidence the dissertation units in the two semesters of the fourth year were clearly separate, semester-based units.
The concept of an allowable study time, when combined with the concept of levels of courses, is obviously designed to provide limits to the period for which a person can receive Austudy payments – but also to recognise that there may be good reasons why a student will not be able finish a course in the minimum amount of time. I mention that s569H(7) specifies a number of situations in which time taken by the student can be disregarded, although none of them are relevant to this case. In effect, s569H(3)(b) acknowledges that some courses involve year-long subjects or assessments of progress on a yearly basis. In such cases a student will gain the benefit of one "failure" before losing an entitlement to Austudy – by adding one year to the minimum time. In other cases, which necessarily will be semester-based, the permitted failure will require only a semester addition to the minimum time requirement. That situation is catered for by s569H(3)(c).
Section 569H(1) makes it clear that it is the enrolment day on which the allowable study time test must be applied. A student enrolling for a particular course at the beginning of an academic year may be asked to nominate subjects to be undertaken in subsequent semesters, but that will not always be the case and will always be open to amendment in the future. It may not even be possible because the availability of particular subjects in future semesters may not be known at the enrolment time; and, as noted above, a student may choose to shorten the course and elect to graduate with an intermediate degree. I consider that the proper interpretation of s569H(3) is that the year-based subject or the years work progress tests in s569H(3)(b) must refer to the current enrolment period – not some future period of study.
Section 569H(3)(b) has two limbs. The first is that the student "is enrolled, or intends to enrol, in a year-long subject." The reference to "intends to enrol" is a reference to the situation dealt with in s569H(1)(b) – where the person has not yet enrolled in the course, but intends to do so, and is not relevant to Mr Priest's situation. On his enrolment day in January 2002 Mr Priest was not enrolled in a year long subject, and so s569H(3)(b)(i) is not applicable.
As regards the second limb of s569H(3)(b), I consider that the "further progress" referred to is progress beyond the current enrolment period. Mr Priest's current enrolment is for semester-based subjects only and so his further progress in the course does not depend on passing a whole year's work in the course.
It follows, in my opinion, that neither limb of s569H(3)(b) is applicable to Mr Priest's situation. However, in case I am wrong in that view and that regard must be had to subjects to be studied in subsequent years, I should consider the question of whether, in any event, the fourth year dissertation units would satisfy the requirements of s569H(3)(b). In my opinion they do not for the following reasons:
(a)For both the Honours stream and the other stream there are two discrete units identified in the course outline to be undertaken in different semesters, each making their own contribution to the credit points that a student must gain to complete the course.
(b)Within a stream, the two units are assessed separately on a semester basis, even though some of the work carried out in semester one may influence the final grade earned for the dissertation in semester two.
(c)A student would not be permitted to proceed to the second dissertation semester without making satisfactory progress in the first, even though this may be unlikely to occur very often.
(d)A student can take a "break" between the two semesters, thus breaking the connection between the two subjects – at least in a temporal sense.
Accordingly, I consider that Mr Priest's situation falls within s569H(3)(c) - which extends the minimum time for his course by half an academic year. I therefore affirm the decision of the SSAT to that effect.
I certify that the 26 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 28 October 2002
Date of Decision 19 November 2002
Counsel for the Applicant In person
Counsel for the Respondent Mr Alan Jones
Solicitor for the Respondent Advocacy & Admin Law Team, Centrelink
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