Reese and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
[2013] AATA 179
•28 March 2013
[2013] AATA 179
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3784
Re
CASSANDRA REESE
APPLICANT
And
SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
RESPONDENT
DECISION
Tribunal Dr K S Levy, RFD, Senior Member
Date 28 March 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr K S Levy, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and entitlements – Austudy – whether applicant qualified for 25% concessional study-load – whether applicant undertaking at least one quarter but less than three quarters of the normal study-load for the particular course – early completion of course – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 568, 569, 569A, 569D, 569E
CASES
Secretary, Department of Family & Community Services v Matheson (2004) 78 ALD 509
REASONS FOR DECISION
Dr K S Levy, RFD, Senior Member
28 March 2013
INTRODUCTION
The applicant, Cassandra Reese has a medical condition and has previously been granted Austudy for various tertiary studies she has undertaken at TAFE Queensland (“TAFE”). Between 8 September 2011 and 9 July 2012, Centrelink advised the applicant that her Austudy payments would be cancelled with effect from 10 July 2012 (advice from Centrelink dated 16 June 2012).
On 20 June 2012, the applicant advised she intended to study a further subject at TAFE entitled “Develop and use complex spreadsheets” and was enrolled for the period 2 June 2012 to 1 December 2012. Further, she sought review of the decision dated 16 June 2012 to cease her Austudy payments.
On 25 June 2012, Centrelink advised her that she did not qualify as a student with a concessional study-load. She sought review of that decision from Centrelink. That review was unsuccessful. A further review by an authorised review officer (ARO), dated 4 July 2012, also concluded that her application was unsuccessful. She then appealed to the Social Security Appeals Tribunal (SSAT), which heard evidence on 13 August 2012. The SSAT affirmed the original decision on 23 August 2012. She now applies to this Tribunal for further review.
ISSUE
The issue in this case is whether on and from 10 July 2012, Ms Reese had a 25% concessional study-load in terms of sub 569D(2) of the Social Security Act 1991 (Cth)(“the Act”).
THE EVIDENCE
Ms Reese commenced a Certificate 4 in Business on 8 September 2011. She was approved as a 25% concessional study-load student for the remainder of that year. In 2012, she enrolled in various subjects in the period 9 January 2012 to 9 July 2012 and was confirmed as having a 25% concessional study-load. On 12 June 2012, Centrelink wrote and advised her that her then current approval would end on 9 July 2012. Subsequently, on 16 June 2012, Centrelink again wrote to the applicant and advised her that her Austudy payments would be cancelled with effect from 10 July 2012 as she was not then studying full-time. This is the original decision which has instigated the current appeal.
That decision acknowledged that there was medical evidence to establish that Ms Reese had a workplace injury in 2006 which resulted in back pain and prevented her from studying as a full-time student. In support of the original concessional study-load approval there were medical reports from Dr Gregory Day (10 May 2007), Dr Scott Campbell (27 June 2007) and a report from Dr Prasad Satyasiv (12 March 2008).
Following the letter from Centrelink dated 16 June 2012 wherein her future Austudy payments were to be cancelled with effect from 10 July 2012, Ms Reese provided an academic history to Centrelink on 20 June 2012 and also advised that she intended to study a TAFE course dealing with spreadsheets during the period 2 June 2012 to 1 December 2012. Her request for review of the earlier cancellation of Austudy resulted in a further advice from Centrelink dated 25 June 2012 whereupon she was informed of the determination to affirm the earlier decision as the previous concessional study grant had an expiry date and her proposed study did not satisfy the legislative requirements to be a 25% concessional study-load student.
CONSIDERATION
In dealing with the legal issue in this case, I firstly make findings of fact as follows:
(1)Ms Reese has a medical condition which prevents her studying full-time.
(2)She enrolled in the subject “Develop and use complex spreadsheets” for the period 2 June 2012 to 1 December 2012.
(3)She subsequently completed that course on 12 September 2012 (although the academic history submitted to the Tribunal was not on an official letterhead of TAFE Queensland and therefore is not an official document). Despite it being less than the standard of evidence one would expect for admissibility and while I didn’t formally admit the document before the Tribunal, there seems to be no dispute as to her having completed that academic course.
(4)No medical evidence had been produced at the time of her application to Centrelink. No current medical evidence had still been produced for the period of that course at the time of the hearing before the SSAT and neither was it produced within an allowed period of time provided by the SSAT.
(5)There are also medical reports of Dr Prasad Satyasiv, GP of 12 March 2008, Dr Campbell of 27 June 2007, and Dr Gregory Day of 10 May 2007.
(6)There was a medical certificate by Dr Abel Stoltz dated 20 January 2013 which was produced by Mr Lovell. It should have been produced well prior to the hearing in this Tribunal. That certificate was certified by the applicant’s general practitioner at Browns Plains and certifies that she cannot study full-time. I refused to admit that evidence formally but it has previously been accepted that she has a medical condition consistent with that letter.
The legal requirements, relevantly, are as follows:
(1)Section 568 of the Act provides a person is qualified for an Austudy payment if, throughout the period:
(a) the applicant satisfies the activity test in s 569;
(b) the applicant is of Austudy age (that is at least 25 years of age) as per s 570 of the Act; and
(c) the person is an Australian resident.
There is no dispute that the applicant satisfies subs 568(b) and (c) above. The only issue is whether she satisfies the activity test, which is amplified in other provisions.
(2)The activity test is provided for in sub 569(1) of the Act, which provides that the person must satisfy the Secretary that he or she is “undertaking qualifying study”. That term is defined in s 569A of the Act.
(3)Section 569A of the Act has four subsections. Subsections 569A(a), (b) and (d) are not in dispute. The only part of that section which is in contention is sub 569A(c) which provides that a person is “undertaking qualifying study” if “the person is a full-time student or a concessional study-load student in respect of that course (see sections 569C and 569D)”. For the purposes of the present application, and sub 569A(c), only the requirements of s 569D relating to concessional study-load students is relevant.
(4)Subsection 569D(2) of the Act provides that “a person is a 25% concessional study‑load student in respect of a course if:
(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…
…
(5)Subsection 569D(4) of the Act provides that sub 569D(2) outlined above applies to a person who has a medical condition and cannot undertake the normal amount of full-time study.
Of importance in determining this application is whether, for the purposes of sub 569D(2)(a) of the Act, Ms Reese 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”. Subsection 569E(1)(b) of the Act relevantly defines “normal amount of full-time study” where the course is one where “… the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course – [as] the amount so defined”.
Evidence was provided by TAFE Open Learning that:
·Each unit must be completed within 6 months of enrolment (Folio 40, Exhibit 1)
·The duration of study per unit is 6 months (Folio 41, Exhibit 1)
·A state based definition of full-time study of Queensland TAFE courses is 11.5 normal hours per week for a full-time student ( Folio 23, Exhibit 1)
In addition, the particular course undertaken by the applicant concerned with complex spreadsheets is said to carry a study load of 50 hours for the particular study period of 26 weeks.
In considering how Ms Reese satisfies sub 569D(4) of the Act, the respondent argues that none of that medical evidence adequately explains why she cannot undertake a full-time study load.
The difficulty for Ms Reese in this regard is that, as the SSAT reported on the evidence there, she produced a medical report on 29 September 2012 and then regarded “Centrelink’s requirement to produce a new certificate to be unreasonable”. She finally produced a certificate by Dr Stoltz at the hearing on 30 January 2013, notwithstanding that Dr Stoltz had provided the certificate on 20 January 2013. The report by Dr Stoltz is by her GP. The evidence of the specialists is now a little aged, with Dr Campbell’s report on 27 June 2007 and Dr Day’s report dated 10 May 2007. Dr Campbell noted the condition was likely to be permanent and that she would require an empathetic employer so that she could have a “sedentary job” and have “frequent position changes”. Dr Stoltz’s report probably reflects what the applicant told him. Furthermore, up to date expert reports should have been provided or one of the specialists called to give oral evidence and be cross-examined. Neither of those avenues for current evidence was pursued.
But the real question in dispute is whether she satisfies sub 569D(2); that is whether there is a 25% concessional study-load as a student. Mr Lovell, for the applicant, argued this should be determined by considering the actual time she spent in undertaking that course; that is the period from when she started to when she completed the course. He argued that as she completed the course in less than 6 months, the formula that should be used is one which shows that she spent 3.8 hours per week (approximately) undertaking the course.
It is clear that Dr Campbell regarded the applicant as having some physical limitations consistent with the applicant’s claim, but that report implies that his opinion was in some respects, a prognostic view. The onus of proof is on the applicant in this regard. I do not regard that as being satisfied.
The calculation of 25% concessional study-load is submitted by the respondent to be 25% of the standard 11.5 hours per week as specified by TAFE Queensland, or 2.87 hours per week. Mr Lovell says that based on Ms Reese’s completion rate, which, based on the formula he proposes, is in excess of that claimed by the respondent, then she has exceeded the 25% concessional study-load. The respondent says that the correct calculation would be 1.92 hours per week based on a course of 50 hours to be conducted over 26 weeks.
Whether the interpretation of the requirements of sub 569D(2) of the Act is to be based on the applicant’s or the respondent’s calculations depends on what the legislation actually requires. It is acknowledged that Ms Reese clearly completed the course in less than the standard 26 weeks. The Respondent referred me to Secretary, Department of Family & Community Services v Matheson (2004) 78 ALD 509 (Matheson) where the term “particular study period” was held to be a question of fact in each case. The SSAT found that “anything other than the length prescribed by the academic institution ... would render the provision all but unenforceable”.[1]
[1] See paragraph 14 of the SSAT decision.
I think the term “normal amount of full-time study”, a key variable in the formula to determine whether a person satisfies 25% of the full-time load, shows that in the present case, one should look to how “the institution defines an amount of full-time study that a student should typically undertake in respect of the course – the amount so defined”. (sub 569E(1)(b); my emphasis added). “Typically”, in my view, refers to the standard to be applied, not an idiosyncratic variable based on each individual. Therefore, that is the standard which is to be applied in calculating the entitlement not a variable based on each individual.
In Matheson’s case, there was an enquiry as to whether someone was undertaking the required amount of full-time study in an academic year, even though they did so with “varying intensity from semester to semester”. Here, the factual circumstances are different to that case but the statutory provisions in ss 568 – 569H of the Act, as far as they apply to Ms Reese, reveal an intention to define how to measure full-time or proportional work-load when different forms of educational institutions and different types of duration of course are concerned.
While I realize Ms Reese, despite her medical conditions, was very diligent in undertaking her TAFE course earlier than the standard specified by TAFE, there would be others that would not be able to make the same rate of progress. However, the proper interpretation of the provision is that despite the actual rate of progress (subject to the “progress rules” in s 569H), the defined requirements of the entitlement to Austudy are defined by sub 569D(2) and the course which she undertook.
I must then address the question of whether the applicant’s course meets 25% of the normal full-time student load. I have found that her course only requires 1.92 hours per week as a standard, and not the 2.875 standard hours required by the legislation for a person with a 25% concessional study-load. The fact that as her course in that “study period” did not meet the legislative standard she is precluded from being entitled to Austudy for that “study period”.
I note she also undertook additional subjects in that “study period”. Even though neither party argued it, a question arises as to whether the additional subjects might be taken into account. Even on that basis, she cannot succeed as the activity test requires that a person satisfies the test “throughout the period” (s 568). At least for the period for the subject under review, Ms Reese did not satisfy the activity test. Therefore, she cannot satisfy the test “throughout the period”.
DECISION
The applicant’s claim therefore cannot succeed. The decision under review must be affirmed.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member. ...............................[Sgd]..................................
Associate
Dated 28 March 2013
Date of hearing
Advocate for the Applicant
30 January 2013
Mr Lovell
Advocate for the Respondent Mr Rick McQuinlan
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