Richards and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 116

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/4263

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Kyle Richards

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal J W Constance, Deputy President

Date28 January 2011

PlaceMelbourne

Decision For the reasons given orally at the hearing the decision under review is set aside and remitted to the respondent for determination in accordance with the reasons for this decision.

......(sgd J W Constance)...............

Deputy President

SOCIAL SECURITY ACT 1991 (Cth) – Cancellation of youth allowance – satisfactory progress in tertiary studies – Youth Allowance (Satisfactory Study Progress) Guidelines Determination of 1998 – Social Security Appeals Tribunal decision set aside

Administrative Appeals Tribunal Act 1975 section 43(1)

Social Security Act 1991 (Cth) sections 540, 541, 541B, 541B(1)(a), 541B(1)(b) and 541B(1)(c)

Secretary, Department of Primary Industry and Energy v Collins (1992) 26 ALD 265

REASONS FOR DECISION

(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)

28 January 2011   J W Constance, Deputy President

1.      This is an application to review a decision of the Social Security Appeals Tribunal, made on 18 August 2010, affirming a decision of a Centrelink authorised review officer to cancel a payment of a youth allowance to Mr Richards.  For the reasons which follow, the decision under review will be set aside and remitted for further consideration, in accordance with these reasons. 

Facts

2.      I make the following findings of fact, based on the evidence of Mr Richards (who I find to be an honest and reliable witness), and on the evidence contained in the documents, which are Exhibit R1 in these proceedings.  I am satisfied of the facts found on the balance of probabilities.  I note that the facts were not in dispute in this matter. 

3.      Mr Richards was born in 1987.  In 2007 he commenced two courses of tertiary study:  the first was a Bachelor of Commerce at a full-time rate of three subjects per semester at Melbourne University, the second was a Bachelor of Theology at a part‑time rate of one subject per semester, at Tabor Victoria.  Both courses are recognised as eligible courses of study for the purposes of the grant of the youth allowance.  The Theology course is structured as an Arts degree, so that the combined courses of study being undertaken by Mr Richards were the equivalent of a four-year combined degree.

4.      Mr Richards completed his commerce degree at the end of the 2010 academic year.  He is now in full-time employment and is completing the final five subjects of his theology degree as a part‑time student.  Mr Richards has passed all subjects in both courses on his first attempt. 

5.      Throughout the period of study there was no combined course of study for commerce/theology available to Mr Richards. 

6.      On 20 June 2010, Mr Richards was advised that from 1 July 2010, payment of his youth allowance would be suspended, as he had not completed his course within the specified time.  This appears in Exhibit T1, page 30.

7.      This decision was affirmed by the authorised review officer on 15 July 2010 and by the Social Security Appeals Tribunal which is the decision, the subject of this review. 

Legislative Background

8.      Turning to the law, I acknowledge the detailed Statement of Facts and Contentions filed on behalf of the Secretary, and appreciate the assistance that document has provided to me in this matter. 

9. The qualification requirement of the youth allowance is provided in section 540 of the Social Security Act 1991 (the Act) which states, in part:

Subject to this subdivision, a person is qualified for youth allowance, in respect of a period, if, and in part, throughout the period, the person satisfied the activity test. 

In section 541, the activity test is defined to include:

A person satisfies the Secretary that throughout the period, the person is undertaking full-time study. 

10.     The undertaking of full-time study is defined in section 541B.  To summarise:  for the purpose of the Act, a person is undertaking full-time study if he or she is enrolled in a certain course of education, is undertaking a course in a particular study period, that it is an approved course, and:

(d) in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.

11.     There is no dispute in this matter that Mr Richards meets the requirements of subsection 541B(1)(a), (b) and (c). 

12. The Minister has made the Youth Allowance (Satisfactory Study Progress) Guidelines Determination of 1998 under section 541B. 1.3 of the Guidelines provides as follows:

Purpose:  the purpose of this Determination is to set out the guidelines for the exercise of the Secretary’s discretion under subsection 541B(3A) of the Act,  to form an opinion about whether a person is making satisfactory progress for paragraph 541B(1)(d) of the Act.

13.     Guidelines 2.1 is as follows:

Satisfactory progress in a long course is completion of the course within a period of time comprising:  (a) the standard minimum length of the course; and (b) an additional period for completion on of one uncompleted subject or unit that is part of the course. 

Paragraph 2 of 2.1 reads:

However, a person who, under subsection (1), is not making satisfactory progress, may, in the opinion of the Secretary, be making satisfactory progress if the person is, or has been, affected by circumstances beyond his or her control. 

You then need to turn to 1.6 of the Guidelines, which reads as follows, in part:

Special circumstances beyond a person’s control:   in considering whether a person is affected by circumstances beyond his or her control, the Secretary may have regard to the following kinds of circumstance –

and omitting part of that provision, subparagraph (f) reads:

Any other exceptional circumstance interferes with a person’s ability to complete a course of education or study within the standard minimum length of time.

14.     I note that it has not been argued – and I am satisfied that this is correct – that Mr Richards does not come within subparagraphs (a) to (e), inclusive of 1.6.  

Issue For Determination

15.     The issue is whether Mr Richards is affected by circumstances beyond his control. 

Reasoning

16.     It is not in issue that when the Secretary suspended Mr Richards youth allowance he had been allowed the time for the standard minimum length of his commerce course, and one uncompleted subject or unit. 

17.     The Guidelines are contained in a legislative instrument, and are therefore part of the law which I am bound to apply – I refer to the Secretary, Department of Primary Industry and Energy v Collins[1].  The Secretary’s argument is that the only reason put forward – that is that Mr Richards was unable to complete the course, or his courses within three years and one semester, was the need to undertake the course at two different institutions, and that this was not a circumstance beyond his control. 

[1] (1992) 26 ALD 265

18.     In normal parlance the understanding that a person undertakes a full‑time course of study without failing a subject, would normally be regarded as satisfactory progress.  However, as I have said, I am bound by the Guidelines, and I must look to the provisions of paragraph 2.1 of those Guidelines.  2.1, subparagraph (2), as I have already quoted, in effect says that the Secretary can be satisfied that a person is making satisfactory progress if:

The Secretary is satisfied the person is, or has been affected by circumstances beyond his or her control. 

19.     The Guidelines then go further, and as I have already quoted, set out special circumstances beyond a person’s control.  The first point is that those Guidelines, 1.6, say that the Secretary:

…may have regard to the following kinds of circumstances.

20.     I interpret this to mean that the decision maker may have regard, but is not required to have regard, only to those special circumstances set forth in 1.6.  So if I am correct in saying that those special circumstances are not prescriptive, and generally one can look at the requirement in 2.1(2), namely:

Is the person affected by circumstances beyond his or her control.

21.     I am satisfied that the requirement to structure, in effect, a combined degree at two different institutions are, in fact, circumstances beyond Mr Richards’ control.  And I would therefore be satisfied in applying 2.1(2), that he was making satisfactory progress, and that would end the matter.  However, if I am wrong in that interpretation, and it is necessary to look only at 1.6 and the special circumstances set out there, I am satisfied that Mr Richards does come within the provisions of 1.6(f), namely that:

Any other exceptional circumstances interferes with a person’s ability to complete a course of education or study, within the standard minimum length of time.

22.     And again, for the same reason, I am satisfied that Mr Richards does meet that requirement, by reason of the need to undertake a course at two different institutions, and not to have the benefit of a combined degree.  I am therefore satisfied that during the relevant period, Mr Richard was making satisfactory progress towards the completion of the degree of Bachelor of Commerce at Melbourne University.

23. The decision of the Tribunal is that pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside, and the matter is remitted to the Secretary for reconsideration, in accordance with these reasons for the decision. 

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of

J W Constance, Deputy President

Signed:         ..(sgd D De Andrade)..................
  Personal Assistant

Dates of Hearing  21 December 2010 and 28 January 2011
Date of Oral Decision                28 January 2011
For the Applicant  self represented
For the Respondent                  Ms A Bramley, departmental advocate