Ramy Mikhael and Secretary, Department of Education, Employment and Workplace Relations

[2013] AATA 355

[2013] AATA 355

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4348
Re	Ramy Mikhael
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	Mr D Letcher, QC, Senior Member
Date	30 May 2013
Place	Sydney

The decision under review is affirmed.

................[sgd]..........................................

Mr D Letcher, QC, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensioner education supplement – undertaking qualifying study – approved tertiary courses at Masters level – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 1061PA, 1061PB, 1061PC

Student Assistance Act 1973 s 5D

SECONDARY MATERIALS

Student Assistance (Education Institutions and Courses) Amendment Determination 2011 (No. 2)

REASONS FOR DECISION

Mr D Letcher, QC, Senior Member

30 May 2013

1. The Applicant receives a disability support pension and in 2012 he enrolled in a University of Wollongong course of Master of Science (Gerontology and Rehabilitation Studies). He then lodged a claim with Centrelink for the “pensioner education supplement”. His claim was rejected.

   LEGISLATIVE BACKGROUND

2. The Social Security Act 1991 s 1061PA provides that (providing other conditions are met):

   A person is qualified for a pensioner education supplement if the person:

   (a)       is undertaking qualifying study …

3. Section 1061PB defines “undertaking qualifying study” as being enrolled in an “approved course of education or study”.

4. Section 1061PC provides that it 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”.

5. Section 5D of the Student Assistance Act 1973 gives the relevant Minister the power to make such a determination as to what is a secondary or tertiary course.

6. The Student Assistance (Education Institutions and Courses) Amendment Determination 2011 (No. 2) made 21 December 2011 commenced on 5 January 2012 (the day after “registration”). The Determination commences:

   I, GREG COMBET, Minister for Industry and Innovation and Minister for Climate Change and Energy Efficiency for CHRIS EVANS Minister for Tertiary Education, Skills, Science and Research … make this Determination.

7. If it be wondered how one minister can act for another, the answer is that on 14 December 2011 Quentin Bryce Governor-General ordered that a new combined Department of Industry, Innovation, Science, Research and Tertiary Education and its Minister had control of the legislation and the matters in two extensive Schedules which included the Student Assistance Act 1973, “higher education, skills and vocational education and programs” and “income support policies and programs for students and apprentices”. The Minister in question now with control of the subject matter was Mr Combet.

   EFFECT OF THE MINISTER’S DETERMINATION

8. The Determination repealed Schedule 2 of the Student Assistance (Education Institutions and Courses) Determination 2009 (No. 2) and replaced it with a different “Schedule 2 Tertiary courses” which specifies that a “tertiary course” means inter alia a “… postgraduate accredited higher education course which is at the level of:

   …

   (k) a course that:

   …

   (iv)is not a course accredited at Masters or Doctorate level (other than a course specified in Schedule 3).

9. Schedule 3 does not include the University of Wollongong’s Master of Science (Gerontology and Rehabilitation Studies). It includes numerous courses such as Master of Public Relations, Master of Art Therapy, Master of Tourism and Master of Networking and even University of Wollongong’s Master of Science (Nutrition and Dietetics), but not the particular course undertaken by the Applicant. In fact, in 21 single-spaced pages listing approved tertiary courses at Masters level there is not a single course dealing with study and care of the ageing.

10. The Applicant is concerned that students studying a course calculated to improve the present “impoverished models” of aged care do not receive payment of the education supplement which is provided to students of courses with less socially important purposes such as Viticulture or Tourism. He points out that better approaches to geriatric care would reduce stress and turnover in staff, improve their status and education, reduce reliance on expensive hospital places and improve the experience of the aged people.

11. He makes the very valid point that aged care is a complex area with the ageing process complicated by cognitive decline along with numerous medical and psychological conditions. His view is that there is a social and professional need for continuing education at an advanced level for those involved with the increasing proportion of the world population who are entering old age.

    AMBIT OF TRIBUNAL’S POWER

12. However, this Tribunal’s role is to review the prior decision of the Social Security Appeals Tribunal and to arrive at the correct or preferable administrative decision. Where the law is clear there is only one correct decision and no other determination could be said to be preferable because it would be contrary to law. The Tribunal is bound by the Acts passed by parliament and by the ministerial determinations made by those persons given the power to declare them.

13. In this case there is no scope for discretionary decision-making by the Tribunal. It stands in the shoes of the original decision-maker and it has no wider powers. It is bound by the same statutory provisions and delegated legislation. If those provisions do not allow further discretionary latitude then there is no option for the Tribunal to do anything else but follow the law.

    FINDINGS

14. In this instance, s 5D of the Student Assistance Act 1973 gives the Minister the power to make a Determination of what is a “tertiary course” for the purposes of that Act. In a convoluted way, the Amended Determination stipulates that only those Masters level courses listed in Schedule 3 are such “tertiary courses”. The Applicant’s course is not listed. Thus it is not a “tertiary course” within the meaning of the Act and he is not “undertaking qualifying study”.

15. The Applicant had hoped that this review would deal with the application by University of Wollongong for inclusion of his course as an “approved tertiary course” and deal with the merits of reasons of the Department for non-inclusion. The Tribunal disappointed those expectations, but endeavoured to explain the limited jurisdiction it had in reviewing the decision. The Applicant may have other recourse to the Freedom of Information Act or other approaches at a political level but the lawful decision of the Social Security Appeals Tribunal remains the foundation for the decision under review.

    CONCLUSION

16. The decision under review is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member

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Associate

Dated 30 May 2013

Date of hearing	24 April 2013
Date final submissions received	26 April 2013
Applicant	In person
Advocate for the Respondent	Ms P Sharma, Department of Human Services