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

[2011] AATA 274

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4836

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ohida Sleiman

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date21 April 2011

PlaceSydney

Decision The decision under review is affirmed.  

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

Ms N Bell, Senior Member  

CATCHWORDS – Youth Allowance – activity test – normal full-time study – course requirements – non-attendance - medical certificates – grades or results

Social Security Act 1991

Social Security Administration Act 1991

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      

Ohida Sleiman was first granted youth allowance in March 2007.

In November 2008, Ms Sleiman advised Centrelink that she would be studying

full-time at Wollongong College of TAFE the following semester. In 2009, she enrolled in two courses: Certificate II in Hospitality (Kitchen Operations) for 16 hours per week and Certificate III in Business Administration for 22 hours per week.

2.      

After Ms Sleiman failed to attend a scheduled interview at Centrelink, her youth allowance was suspended in March 2009. Ms Sleiman’s youth allowance was reinstated by Centrelink following her attendance at another scheduled interview and communications with Ms Sleiman’s father. Centrelink then obtained information from Wollongong TAFE about Ms Sleiman’s course of study, the course study load and her attendance records. On the basis of this information, and with the view that

Ms Sleiman was not satisfying the activity test for youth allowance, her youth allowance was suspended again on 30 March 2009. An authorised review officer decided to set aside that decision and instead cancel Ms Sleiman’s youth allowance. The authorised review officer’s decision was affirmed by the Social Security Appeals Tribunal.

3.      

The Secretary contends that Ms Sleiman’s rate of attendance at classes meant that she was undertaking, prior to 30 March 2009, considerably less than the required three-quarters of the normal amount of full-time study to satisfy the activity test for youth allowance. Ms Sleiman, through her father, submitted that illness had prevented her from attending as required, that the authorised review officer had no authority to change the original decision to suspend payment, that some documents were not made available to her as required by a summons to produce and that

Ms Sleiman should not have been recorded as having withdrawn from her courses.

4.      

The essential issue for me to consider is whether, in the period prior to

30 March 2009, Ms Sleiman undertook at least three-quarters of the normal amount of full-time study and, if not, whether she is exempt from the activity test for youth allowance.

does ms sleiman satisfy the activity test?

5.      

To qualify for youth allowance, a person must satisfy the activity test

(section 540 of the Social Security Act 1991). The activity test may be satisfied by undertaking full time study (section 541(1)(a)). Full time study is defined in

section 541B as:

Undertaking full-time study

General

(1)  For the purposes of this Act, a person is undertaking full-time 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 person:

(i) is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or

(ii)  intends to undertake in the next study period for which he or she intends to enrol for the course;

either:

(iii)  in a case to which subsection (1A) does not apply--at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or

(iv)  in a case to which subsection (1A) applies--at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and

(c)  the course in question is an approved course of education or study (see subsection (5)); and

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

When two-thirds study load applies

(1A)  This subsection applies for the purposes of subparagraph (1)(b)(iv) if the person cannot undertake the normal amount of full-time study in respect of the course for that period:

(a)  because of the usual requirements of the institution in question in respect of the course; or

(b)  because of a specific direction in writing to the student from the academic registrar, or an equivalent officer, of the institution in question; or

(c)  because the academic registrar, or an equivalent officer, of the institution in question recommends in writing that the person undertake the amount of study mentioned in subparagraph (1)(b)(iv) in respect of the course for specified academic or vocational reasons.

Paragraph (c) applies for no longer than half of the academic year.

Meaning of normal amount of full-time study

(2)  For the purposes of paragraph (1)(b), 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.

Alternative meaning of normal amount of full-time study

(3)  For the purposes of paragraph (1)(b), and without limiting subsection (2), 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.

Meaning of satisfactory progress

(3A) In forming an opinion about whether a person is making satisfactory progress for the purpose of paragraph (1)(d), the Secretary is to have regard to the guidelines.

(3B)The Minister, by legislative instrument:

(a)  is to set guidelines for the exercise of the Secretary's discretion under subsection (3A); and

(b)  may revoke or vary those guidelines.

First fortnight of classes

(4) For the purposes of paragraph (1)(b), a person is taken to be undertaking full-time study in respect of a course during the period (the relevant period):

(a)  starting on the first day of classes in a study period; and

(b)  ending on the Friday of the second week of classes in the study period;

if the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period.

Meaning of approved course of education or study

(5) For the purposes of paragraph (1)(c), the 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.

6.      The requirement that is relevant to Ms Sleiman’s qualification for youth allowance is provided by subsection 541B(1)(b)(iii) – that the person is undertaking, in the course for which he or she is enrolled, at least three quarters of the normal amount of full-time study in respect of the course for that period.

7.      Section 541B(2)(b) defines “normal amount of full-time study” as the amount of full-time study defined by the institution, in this case, TAFE. A letter from Wollongong TAFE attaching Ms Sleiman’s attendance records for the Certificate III in Business Administration course (T44, p. 163) states that she should be attending classes for 21 hours per week. I also note that the enrolment form for the course nominates 22 hours per week as the “total student hours per week”.

8.      I note that I must take into account section 541B(4) which provides that in the first fortnight of studies, if the person undertakes study on at least one day, then the person is taken to be undertaking full-time study in respect of that two week period.

9.      In the consequently limited period of 21 February 2009 (the day after the Friday of the second week of classes) to 30 March 2009, the attendance records from Wollongong TAFE show that Ms Sleiman attended 19 hours and 45 minutes of classes out of a total of 100 scheduled hours of classes for the Certificate III in Business Administration course. I note that the Respondent’s calculations yielded an attendance of approximately 18 hours of a scheduled 96 hours. On either set of figures, the attendance of Ms Sleiman is less than the required three-quarters of the normal amount of full-time study for a student undertaking this course. It follows that she did not satisfy the activity test in the period prior to 30 March 2009 in respect of that course.

10.     

In respect of the Certificate II in Hospitality (Kitchen Operations) course, I note that the enrolment form for the course nominates 16 hours per week as the

“total student hours per week”. The attendance records from Wollongong TAFE show that Ms Sleiman attended classes in the relevant period of 22 February 2009 to 30 March 2009 for a total of 14 hours of a scheduled 72 hours of classes. I note that the Respondent’s calculations yielded an attendance of approximately 31 hours of a scheduled 105 hours of class. Again, on either set of figures, Ms Sleiman’s attendance is less than the required three-quarters of the normal full-time study for a student undertaking this course. It follows that she did not satisfy the activity test in the period prior to 30 March 2009 in respect of the Certificate II in Hospitality (Kitchen Operations) course.  

should ms sleiman be exempt from the activity test?

11.     Section 542A of the Act provides for temporary incapacity exemptions from the activity test for youth allowance:

Temporary incapacity exemption

General

(1)  Subject to subsection (2) of this section and sections 542B and 542C, a person has a temporary incapacity exemption if:

(a)  throughout the period the person:

(i)  if the person is undertaking full-time study--does not have the capacity to undertake the course of education in respect of which he or she is undertaking full-time study; or

(ia)  if the person is an early school leaver and a Youth Allowance Employment Pathway Plan is in force in relation to the person--does not have the capacity to undertake the required activities; or

(ii)  in any other case--is incapacitated for work;

because of sickness or an accident; and

(b)  the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c)  the incapacity is, or is likely to be, of a temporary nature; and

(d) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i)  the medical practitioner's diagnosis; and

(ii)  the medical practitioner's prognosis; and

(iii)  that the person is incapacitated for study, the required activities or work (as the case requires); and

(iv) the period for which the person is incapacitated for study, the required activities or work (as the case requires); and

(e)  the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

(1A)  The Secretary must comply with the guidelines (if any) determined and in force under subsection (1B) in deciding the following:

(a)  whether subparagraph (1)(a)(ii) or paragraph (1)(b) or (c) applies to a person in respect of a period;

(b)  whether, for the purposes of paragraph (b) of the definition of work in subsection (3), work is of a kind that a person is reasonably capable of performing.

(1B) The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (1A).

Claimants for disability support pension

(2) This section does not apply to a person who is qualified for a youth allowance under section 540A.

Definitions

(3)  In this section:

"required activities" , in relation to an early school leaver in relation to whom a Youth Allowance Employment Plan is in force, means the activities required to be undertaken by the plan.

"work" , in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

(a)  if the person was employed at the time the sickness or accident in question occurred--the person has contracted to perform under a contract of employment that:

(i)  the person had immediately before the person becomes incapacitated; and

(ii)  continues after the person becomes incapacitated; and

(b)  if the person was not employed at that time--the person is reasonably capable of performing;

being work that is for at least 8 hours per week on wages that are at or above the relevant minimum wage.

12.     Ms Sleiman has claimed that illness prevented her from attending her classes. The nature of her illness has not been specified. I note Ms Sleiman declined to give either oral or written statement evidence to the Tribunal. Ms Sleiman provided to the Tribunal medical certificates from her general practitioner, Dr Sajid Azam. However those medical certificates do not satisfy section 542A(1)(d) of the Act because they do not advise of diagnosis, prognosis, that Ms Sleiman is incapacitated for study and the period for which she will be incapacitated for study. I also note that of the certificates provided to the Tribunal, all were backdated. Some of the certificates cover days on which Ms Sleiman is recorded as having attended classes. A discharge summary from Wollongong Hospital notes that Ms Sleiman was admitted from 29 March 2009 to 2 April 2009. TAFE records show that she did not have scheduled classes on 29 or 30 March 2009. 1 and 2 April 2009 are after the relevant period.

13.     The medical certificates generally do not meet the requirements of section 542A(1)(d) and consequently do not give rise to a temporary incapacity exemption from the activity test for youth allowance.

14.     As to the other matters raised by Ms Sleiman, the authority of the authorised review officer to set aside the original decision to suspend Ms Sleiman’s youth allowance and instead decide to cancel it is clearly established by sections 80 and  135 of the Social Security Administration Act 1991: the power to cancel or suspend a payment and the power to set aside and substitute a new decision after review.

15.     

The question of the grade awarded to Ms Sleiman by Wollongong TAFE is a matter between Ms Sleiman and that institution. It is not a matter for inquiry or determination by this Tribunal. According to Ms Sleiman’s father, she was given a “withdraw without fail” grade by Wollongong TAFE for her courses. Mr Sleiman submitted that his daughter never withdrew from any course. This is a matter for

Ms Sleiman to take up with TAFE. The decision that has attracted the jurisdiction of this Tribunal is the decision to cancel youth allowance. That decision was made by reference to the activity test provided for by the Social Security Act 1991. According to the provisions of the Act, it is determined by reference to the amount of study undertaken by Ms Sleiman in the relevant period. The grade or result awarded by TAFE has no relevance to that issue. The documents alleged by her to have not been made available to her appear to have been relevant to this issue of grade. In any event, production was not pressed by Ms Sleiman.

decision

16.     The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ..................[sgd]............................................................              Associate

Dates of Hearing  27 October 2011 & 17 March 2011
Date of Decision  21 April 2011
Representative for the Applicant     Mr Michael Sleiman

Solicitor for the Respondent            Mr Anthony Carter, Sparke Helmore Lawyers