Smith and Secretary, Department of Social Services (Social services second review)
[2020] AATA 188
•18 February 2020
Smith and Secretary, Department of Social Services (Social services second review) [2020] AATA 188 (18 February 2020)
Division:GENERAL DIVISON
File Number: 2019/2518
Re:Jessica Smith
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 February 2020
Place:Sydney
The Tribunal:
1)sets aside the Reviewable Decision pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act (Cth) (‘AAT Act’); and
2)remits the matter to the respondent for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act, that:
a.the applicant was entitled to receive Austudy for the relevant period; and
b.the applicant was entitled to receive the Austudy Start-up Loan for the relevant period.
.............[sgd]...........................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
Austudy – Student Start-up Loan – Bachelor of Business Studies – Charles Sturt University – online – semesters – trimesters – equivalent full-time student load – qualifying study – Austudy activity test - 2018 CSU Handbook – normal course duration – pace – statement of enrolment – enrolment pattern – full-time student - three quarters of the normal amount of full-time study – Administration Guidelines – Social Security Guide – decision set aside – decision remitted for reconsideration with direction
LEGISLATION
Higher Education Support Act 2003 (Cth)
Social Security Act 1991 (Cth)SECONDARY MATERIALS
Administration Guidelines 2012 (Cth) made under the Higher Education Support Act 2003 (Cth)
Charles Sturt University 2018 Handbook
Social Security Guide released 2 January 2020REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
18 February 2020
BACKGROUND
In Australia, the cost of tuition for higher education students is subsidised by the Federal Government through the Commonwealth Grants Scheme established under the Higher Education Support Act 2003 (Cth) (‘HES Act’).[1] Students also contribute to the cost of their tuition fees, and are entitled to access a deferred loans scheme administered by the Commonwealth known as FEE-HELP.[2] During the course of studies, full-time students are eligible for financial assistance (known as Austudy) to defray living expenses,[3] along with various other benefits such as access to a student loans scheme, to cover the costs of books and study equipment.
[1] Higher Education Support 2003 (Cth) pt 2.2; >
The overall system is complex and depends upon strict accounting practices to keep track of student enrolments.[4] Tertiary institutions are required to determine census dates[5] and Equivalent full-time student load (EFTSL)[6] values for each unit of study, and to provide enrolment information to the Department of Education.[7] From early in their studies students are exposed to the importance of various census dates, allowing for the calculation of enrolment data for particular study periods.[8] This information is used to calculate the block funding grant received by the University, as well as the student contribution for tuition.
[4] Universities typically have a number of study periods, of varying duration and occasionally overlapping. For enrolment purposes, each unit of study (whether studied face to face or online) must be allocated to a particular study session with a particular census date.
[6] Higher Education Support Act 2003 (Cth) s 169-27.
[7] Ibid pt 5-2, ss 169-25, 169-30.
[8] Ibid ss 169-17, 169-25.
Enrolment information is also used to determine eligibility for Austudy, the subject of the present matter before the Administrative Appeals Tribunal (‘the Tribunal’).
The case before the Tribunal
In November 2017, the applicant enrolled for the degree of Bachelor of Business Studies (BBS) at Charles Sturt University (CSU), electing to study on-line.
A perusal of the 2018 CSU Handbook,[9] which is available online, shows that the BBS forms part of a set of qualifications described by the University as an ‘Articulated Set’, consisting of the three year Bachelor of Business Studies (24 subjects); a two year Associate Degree in Business Studies (16 subjects); and a one year Diploma of Business Studies (eight subjects).[10]
[9] Higher Education Support Act 2003 (Cth) ss 169-17,169-25.
The normal annual load for each of the three qualifications forming part of the Articulated Set is eight subjects.
EFTSL[11] is a unit measuring the proportion of the unit relative to the standard annual study load for the course.[12] Each subject of the BBS is worth 1/8 = 0.125 EFTSL. Each subject within the Articulated Set of qualifications is equally weighted and worth eight points. The BBS requires the completion of 192 points.
[11] Administration Guidelines 2012 (Cth) s 7.5.1: An EFTSL value for a unit of study represents the study load for that unit. A study load for a unit of study is expressed as a proportion of the standard study load for one full-time year of the course of study of which the unit forms part, as determined by a higher education provider.
[12] Administration Guidelines 2012 (Cth) s 7.5.5: ‘The aggregated EFTSL values for units of study undertaken by a full-time student doing a standard study load for one year of a course of study would normally add to 1.0.’
The ‘normal course duration’ (NCD) for the BBS is 3.0 years (6.0 sessions). The course duration is described in the 2018 CSU Handbook as the “effective period of time taken to complete the course when studied Full-time (Full-time Equivalent Duration).”[13]
[13] >
At the Hearing, there was some confusion as to whether the BBS offered by CSU is a two, three or four year degree. The solicitor for the respondent seemed to assume that the degree is a two year degree. He submitted that if a student enrolled in trimesters (three sessions a year), then a full-time load was 12 subjects per annum and the BBS is a two year degree.[14] For her part, the applicant appears to have assumed that the BBS is “normally” a four year degree, which she intended to do in three years.[15]
[14] Transcript, p 4.
[15] Transcript, p 13.
The applicant’s progress over 2017-2019 is set out in Table A of the Appendix. The applicant stated at the Hearing that she was on track to complete the degree by the end of 2020, which would be within the NCD of three years. The applicant has 10 subjects remaining, and is expecting to complete three subjects in 2019/3. At the time of the Hearing she was awaiting results. Satisfactory completion of these subjects will leave her with seven subjects to do over the remaining three sessions of 2020, a relatively light load.
On 12 October 2018, Centrelink decided to raise a debt against the applicant for overpayment of Austudy amounting to $4,662.43 for the period of 26 February 2018 to 15 June 2018.[16]
[16] In 2018, the first study session at CSU ran from 26 February 2018 to 15 June 2018 (16 weeks).
On 2 November 2018, Centrelink decided to also raise a debt in relation to Student Start-up Loan payments in the amount of $1,055 for the first semester and $1,055 for the second semester.
On 9 January 2019, an Authorised Review Officer (ARO) reduced the debt to $4,280.96 for Austudy received during the relevant period because the applicant had been undertaking full-time study up until 6 March 2018. The debt for the Student Start-up Loan in the first semester was affirmed, and the same debt in relation to the second semester was found to be incorrect.
On 9 January 2019, the applicant contacted Centrelink to discuss the situation. She says she was told that she was regarded as part-time in Session 1, 2018, because she had only completed 50% of a full-time load for that session.[17] She thought she only had to do six subjects a year to qualify for Austudy, and that her study load would be assessed on an annual basis, rather than a session by session basis.
[17] T11, 59.
It is not surprising that Centrelink assessed her as a part-time student and therefore ineligible to receive Austudy, as the Statement of Enrolment provided by CSU to the Department describes the applicant’s academic load in the first session of 2018 thus: Percentage of a Full-Time load for this session: 50%.[18]
[18] T5, 42.
On 3 April 2019, the Administrative Appeals Tribunal Social Services & Child Support Division (‘AAT1’) affirmed the decision made by the ARO. The present proceedings arise by way of review of the decision of the AAT1.
I turn to consider the Austudy rules set out in the Social Security Act 1991 (Cth) (‘the SSA’). All statutory references are to the SSA unless otherwise indicated.
LEGISLATIVE REQUIREMENTS
Part 2.11A governs the qualification for Austudy payments; Part 2AA.2 governs the amount[19] of the Student Start-up Loan and sets out the qualification requirements. One of the requirements for receiving a Start-up Loan is that, on a particular day, the person is qualified for Austudy payment.[20]
[19] Social Security Act 1991 (Cth) s 1061ZVBD: $1,025.
[20] Ibid s 1061ZVBB(2)(a)(i).
Australian residents[21] who are at least 25 years old,[22] are qualified for Austudy payments in respect of a period if, throughout the period, they satisfy the activity test.[23]
[21] Ibid s 568(c).
[22] Ibid s 570(1).
[23] Ibid s 568(a).
Section 569(1) states a person satisfies the Austudy activity test in respect of a period if, throughout the period, the person is undertaking qualifying study.
‘Undertaking qualifying study’ is defined in s 569A. A person undertaking qualifying study must be a full-time student, or a concessional study-load student.[24] Each of those categories is defined in the SSA.[25]
[24] Ibid s 569A(c).
[25] Ibid ss 569C, 569D.
Full-time student is defined in 569C:
Full-time students
For the purposes of this Subdivision, a person is a full-time 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 three quarters of the normal amount of full-time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period.
‘Normal amount of full-time study’ is defined in s 569E:
Normal amount of full-time study
1For the purposes of this Subdivision, 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.
2Without limiting subsection (1), 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.
I also note the Administration Guidelines 2012 (‘Guidelines’) under the HES Act. Section 7.5.15 provides:
Standard study load
Where the higher education provider specifies a standard study load
A standard study load for one year of a course of study is a sequence of units of study, determined by the higher education provider, which a student would be required to undertake in a full year of a particular course to:
(a)undertake study for that year in the course on a full-time basis; and
(b)complete units of study at a pace which would enable such a student to complete the course in the standard number of years on a full-time basis as determined by the higher education provider, taking into account the requirements of these guidelines.
The BBS is a ‘course of study’ within the meaning of the HES Act, and there are Commonwealth supported students enrolled in the course. Therefore, the normal amount of full-time study in respect of the BBS is the full-time student load for the course.[26]
[26] Ibid s 569E(1)(a).
I turn to consider the Social Security Guide.
Social Security Guide
3.2.7.70 YA Study-load – Full-time Tertiary Students
Extent of study required
Full-time study (1.1.F.230) for tertiary students includes students who start late in their course, but who are enrolled in, and undertake study in respect of the course on at least one day up to, and including, the Friday in the second week of classes. Students who start later than this would only be treated as full-time students from the date they start undertaking full-time study in their course.
Generally the length of the study units undertaken determine a particular study period, i.e. semester or year-long units.
Assessment of the normal amount of full-time study in a particular period will depend upon the circumstances of each case and will depend on matters such as how the course is structured and how enrolments are accepted. However, a student undertaking study on a trimester or semester basis may be considered to be a full-time student when:
·the university's normal period of enrolment is a year or equivalent period (whether the units being undertaken are trimester or semester base or annual) and the student maintains an aggregate equivalent full-time study-load (EFTSL) of 75% of a normal amount full-time study for their course over the year, or
·the student is enrolled on a trimester or semester basis rather than a full year enrolment and the student maintains an aggregate EFTSL of at least 75% of a normal amount of full-time study for their course over the trimester or semester.
Measuring the normal amount of full-time study
A student intending to enrol in, or undertake at least 75% of the normal amount of full-time study for a course for any given period is deemed as a full-time tertiary student.
For a course of study offered by a higher education provider under the Higher Education Support Act 2003, the normal amount of full-time study for that period is determined by the higher education provider under the Administration Guidelines under that Act.
If the course is not such a course, the normal amount of full-time study is the amount the institution defines as the amount of full-time study that a full-time student should typically undertake in respect of the course in the period. If the institution does not define such an amount, the amount of full-time study is an amount equivalent to the average amount of full-time study that a person would have to undertake in the period for the duration of the course in order to complete the course in the minimum amount of time needed to complete it. Otherwise, the normal amount of full-time study is on average a minimum of 20 hours per week…
Act reference: SSAct section 541B Undertaking full-time study
Policy reference: SS Guide 3.2.7.30 YA Full-time Students, 1.1.F.230 Full-time study (YA, Austudy, PES)
[Table dealing with various flexible study options omitted]
…
Last reviewed: 16 May
_________
3.3.4.60 Assessing Tertiary Study-load for Austudy – Full-time Students
Summary
This topic describes the following issues that relate to assessment of tertiary study-load for Austudy:
·what makes a full-time study-load (1.1.F.230),
·study-load when the person is enrolled in more than one course,
·study-load when the person is enrolled at more than one institution, and
·study-load for flexible study.
Full-time study-load
For tertiary students to be in full-time study they must be enrolled in and undertaking, or intending to enrol in at least 75% of the normal amount of full-time study.
The normal amount of full-time study for a course is:
·if the course is a course of study within the meaning of the Higher Education Support Act 2003 and there are Commonwealth supported students (within the meaning of that Act) enrolled in the course, the amount of full-time study for the course, or
·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 in the period – the amount so defined, or
·if neither of the above applies, an amount equivalent to the average amount of full-time study that a person would have to undertake in the period for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
In some cases it may also be appropriate to regard the normal amount of full-time study as an average of 20 hours per week taken over the duration of the period for which the person is enrolled in the course…
[Omitted]
Assessment of the normal amount of full-time study in a particular study period will depend upon the circumstances of each case and will depend on matters such as how the course is structured and how enrolments are accepted. The length of a study period may differ from case to case, but it is not necessarily limited to a single semester/trimester. A student undertaking study on a trimester or semester basis may be considered to be a full-time student when:
·the university's normal period of enrolment is a year or equivalent period (whether the units being undertaken are trimester or semester based or annual) and the student maintains an aggregate equivalent full-time study load (EFTSL) of 75% of a normal amount of full-time study for their course over the year, or
·the student is enrolled on a trimester or semester basis rather than a full year enrolment and the student maintains an aggregate EFTSL of at least 75% of a normal amount of full-time study for their course over the trimester or semester.
Act reference: SSAct section 569C Full-time students, section 569E Normal amount of full-time study
Policy reference: SS Guide 3.3.4.20 Austudy & full-time tertiary students.
I note the reference to measuring the normal amount of full-time study, as required by s 569E of the SSA. Section 3.2.7.70 invokes the Guidelines. Under the Guidelines, a ‘standard load for one year’ involves full-time studies so as to complete units of study at a pace which would enable such a student to complete the course in the standard number of years on a full-time basis as determined by the higher education provider...
The Full-time Student Load for the Bachelor of Business Studies (BBS)
The issue for determination is therefore whether, during the relevant period in 2018, the applicant was undertaking at least three quarters of the full-time student load for the BBS.
I am therefore required to determine a full-time study load for the BBS. This requires consideration of the course requirements, as set out in the 2018 CSU Handbook.
As noted above, according to the 2018 CSU Handbook, the normal course duration for the Articulated Set is the effective period of time taken to complete a course when studied Full-time (Full-time Equivalent Duration). Students are advised to consult the enrolment pattern for the actual length of study.
Although students are advised to ‘consult the enrolment pattern’ for advice as to how to progress through the degree, the same entry says, disarmingly, that ‘there is no prescribed enrolment pattern’. The 2018 CSU Handbook states:
Enrolment Pattern
Because of the flexibility of the course requirements, there is no prescribed enrolment pattern. Students may choose the order in which they undertake subjects, depending upon the availability of subjects and the meeting of any pre-requisites. It is recommended, however, that students complete level one subjects before completing level two subjects and level two subjects before completing level three subjects.
The normal course duration for each qualification within the Articulated Set is stated as follows:
Diploma of Business Studies [Exit Point Only]
Full-time 1.0 years (2.0 sessions)
Part-time 2.0 years (4.0 sessions)
Bachelor of Business Studies
Full-time 3.0 years (6.0 sessions)
Part-time 6.0 years (12.0 sessions)
Associate Degree in Business Studies [Exit Point Only]
Full-time 2.0 years (4.0 sessions)
Part-time 4.0 years (8.0 sessions)
The course structure for the BBS follows a fairly standard pattern with an emphasis on flexibility and student choice. With regard to the BBS, the 2018 CSU Handbook states:
In order to be awarded the Bachelor of Business Studies from CSU, students are required to complete:
·24 standard subjects or their equivalent (where a standard subject is equal to one quarter of a full-time equivalent load);
·no more than 12 level one subjects. The level of a subject is designated by the first digit in the subject code eg. ACC100 is a level one subject.
·at least two thirds of the 24 standard subjects in business-based or business related discipline areas approved by the Course Director, including at least four subjects at level two (or its equivalent) and four subjects at level three (or its equivalent);
·at least one third of the 24 standard subjects, by taking subjects taught by CSU or subjects designated as CSU subjects (i.e. those subjects offered under affiliation agreements between CSU and external organisations).
·at least one Indigenous subject, eg. IKC101 Indigenous Culture, Histories & Contemporary Realities or MGT230 Ethics, Sustainability & Culture.
·at least one strategic subject – ACC311 Strategic & Sustainable Accounting, BUS384 Global Business Project Management, MGT330 Business Strategy, MGT382 Strategy & Corporate Governance or MKT340 Strategic Marketing Management.
Students may either complete the 24 subjects (192 points) from the above selection or if admitted with credit on the basis of a credit package, would need to consult the Course Director on the number and levels of the subjects to meet the requirements of the course...
The 2018 CSU Handbook contains a long list of subjects that may be taken as part of the BBS. The subjects are offered within the designated prescribed sessions. Some subjects are offered once a year; [27] but most are offered either twice [28] or three times[29] a year.
[27] For example, FIN350 Strategic Financial management (Session 2); HRM330 Strategic Human Resource Management (session 2); MKT340 Strategic Marketing Management (Session 2).
[28] For example, MGT330 Business Strategy (Sessions 2 and 3); ACC240 Financial Management of Small Business (Sessions 2 and 3); BUS370 Workplace Learning 3 (Sessions 1 and 2).
[29] For example, LAW110 Business Law; ACC100 Accounting 1; MKT110 Marketing and Society; IKC101 Indigenous Cultures, Histories and Contemporary Realities.
At the risk of repetition, these extracts confirm that the normal course duration for the Bachelor degree is 3.0 years (or 6.0 sessions). This is the effective period of time taken to complete the course when studying full-time. A student wishing to complete a 24 subject degree in the NCD of three years will need to do eight subjects per year. If there are only two available study sessions per year, this program requires four subjects per study session. This might be called the standard rate of progression. Put simply, a student completing eight subjects a year would be regarded by CSU as a full-time student. The 75% Austudy rule dictates that on such a program, three subjects per semester (six subjects per annum) will satisfy the Austudy requirement.[30]
[30] An additional complication is that students may adopt an uneven course load, say, 2 subjects in one semester and 6 in the other, so as to make up the 8 subjects. Overloading in one semester usually requires approval from the delegated academic adviser and can be regarded as a special case.
The Guidelines refer to the pace of study as one of the factors that determines a standard study load of one year. A standard annual study load of eight subjects would enable a student to complete the BBS on a full-time basis in the NCD.
Students are permitted to study part time, undertake an overload (of more than the standard full time load), or receive advanced standing or credit for prior learning.[31] These factors will in a practical sense determine the rate of progress through the degree. Moreover, the University does not stipulate in what study session particular subjects should be studied. Students are invited to select from the subject list based upon subject availability.
[31] implications of a trimester program
At CSU, the 2018 academic calendar contained two 16 week terms and a 14 week Summer study period. The study periods are asymmetric and do not constitute a pure trimester system, where three terms of equal duration are completed within one year.
The relevant CSU 2018 dates were as follows:[32]
[32] T7, 47.
Session 1 2018 26 February 2018 – 15 June 2018 (16 weeks) Session 2 2018 9 July 2018 – 26 October 2018 (16 weeks) Session 3 2018 12 November 2018 – 15 February 2019 (14 weeks) Like many degrees, the qualifications within the Articulated Set are divided into an even number of subjects: 8, 16, and 24. This sits comfortably with the common practice of having two study periods per year (semesters), usually spanning 13 teaching weeks, and with standard reporting arrangements requiring universities to provide enrolment information to the Department of Education on a half yearly basis.[33] However, where the academic year is split into three study sessions, complications arise.[34] It is no longer arithmetically possible to divide the eight subjects of the standard annual load equally over the three study sessions; the result is a rational number – 2.66 recurring.[35]
[33] Higher Education Support Act 2003 (Cth) s 169-25; Administration Guidelines 2012 (Cth) s 6.5.5.
[34] It may be that particular circumstances (such as the timing of subject offerings, or personal factors) might dictate a non-uniform enrolment pattern. For example, a student completing a program of four subjects in the first session, three in the second and only one in the third, would have completed a full-time load of eight subjects in the year.
[35] In mathematics, a rational number is a number that can be expressed as a fraction (p/q) where p and q are both integers. In this case the numbers are 8 and 3.
Over recent years many Universities, like CSU, have offered a third study session, for a variety of educational, administrative and competition reasons. One advantage for students is greater flexibility in subject selection. A second advantage is the potential for students to complete the degree in a shorter period, simply by taking more subjects per year. This is a very attractive option for students wishing to get into or back into the workforce. The acceleration of the program does not change the academic weight (or volume of learning)[36] of the degree. In terms of academic weight, a three year Bachelor degree completed in two years is still a three year degree.
[36] See Department of Education and Training, Credit Pathways in VET and Higher Education, Research Project, October 2018.The existence of a third study session makes it possible to complete 12 subjects a year, but that is still a 50% increase over a normal annual study load. Of course, students are under no compulsion to pursue an accelerated program. Taking 12 subjects over three trimesters constitutes a very significant overload.
In terms of Austudy eligibility for a particular period, s 569C(a) refers to a student ‘undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period’. But what is the normal amount of full-time study for a study session for a student at CSU wishing to progress at the standard rate of eight subjects a year? Does it depend, or should it depend, on whether the student enrols in two or three study sessions per year?
There appear to be two answers to this question:
(a)One answer is to assume that students will do eight subjects per year, taking four subjects in each of the two semesters (and not taking advantage of the third session). That appears to be the assumption made by CSU in the Statement of Enrolment sheets. (For example, the applicant’s enrolled load of three subjects in Session 1, 2018 is calculated at 75%.) Three quarters of the standard amount suggests three subjects per study period. On this footing, a student doing less than three subjects per study period would be ineligible for Austudy.
(b)The second answer recognises that students are permitted, or indeed, encouraged, to enrol over three study sessions per year. As noted above, for a student wanting to do a ‘standard’ load of eight subjects per year at an even pace over three trimesters, this produces the troublesome quantity per session of 2.66 recurring, being the student load per ‘trimester’. For Austudy purposes, three quarters of that quantity is two.[37] A student doing less than two subjects per study period would be ineligible for Austudy.
[37] It is perhaps easier to think in terms of fractions. Three quarters of the desired trimester load (8/3) is two: [¾ * 8/3] = 2. Putting it another way, three quarters of the annual load of eight subjects is six subjects. Dividing those six subjects over three trimesters gives a result of two subjects per trimester.
The issue is not whether the second pathway is the normal or most common mode of progression, but whether within the specific context of the BBS at CSU, two subjects per trimester may be regarded as three quarters of the normal amount of full-time study. Given the clear intention on the part of CSU, as reflected by the 2018 CSU Handbook, to provide flexible pathways for students, a study plan involving two subjects over three consecutive study sessions should be no less compliant than a study pattern involving three subjects over two sessions. After all, students taking two subjects over three sessions will progress at the same pace (on an annual basis) as those taking three subjects over two sessions.
As Table B shows, a similar question arises concerning each of the qualifications within the Articulated Set: the Diploma of Business, the Associate Degree of Business, and the BBS. It would also apply to a four year 32 subject degree offered in trimesters. This is purely a function of the number of subjects comprising an annual load divided by the number of available study sessions.
The case for the respondent, at its highest, is as follows.
(a)The notation on the various Statements of Enrolment indicated that the University regarded one subject as 25% of a full-time load per session. Therefore, a student needed to complete not less than three subjects (75% of a full-time load) each session to satisfy Austudy requirements.
(b)This applies whether or not the student enrols in consecutive sessions.
(c)When studied in consecutive sessions, the BBS is in effect a ‘two year degree’ - because it can be completed over six consecutive sessions by doing four subjects per session.
(d)The applicant was motivated to complete the degree in the shortest possible time, so that she could return to full-time employment as soon as possible. She therefore enrolled in consecutive sessions. In order to qualify for Austudy, she was required to do not less than three quarters of that load: three subjects per session.
(e)It is irrelevant that this load exceeds the ‘standard’ annual study load for the course of eight subjects.
This argument flows from its premise. But the premise is flawed.
The description of subject load provided by CSU in relation to the applicant’s enrolment is misleading. As noted above, a two subject load was described as follows: Percentage of a Full-Time load for this session: 50%.[38] A three subject load is described as 75%,[39] a four subject load as 100%.
[38] T5, 42.
[39] T5, 43 and 44.
With great respect for the University’s administrators, this cannot be right. The EFTSL for each subject is 0.125. The annual load is 1.0. If four subjects per session constitute 100%, and a student studies over three consecutive sessions, an annual full-time load would be 12 subjects. The combined EFTSL of 12 subjects would be 1.5, that is, by definition, 50% more than an annual load of 1.0. The Enrolment Sheets may have been valid when the University offered only two sessions a year. They fail to take account of a three session model.
It is misleading to calculate the percentage of a full-time sessional load represented by a single subject without taking account of the NCD and the standard load for one year.
The standard load for one year is defined in the Guidelines as that load which enables completion of subjects at a pace which would enable a student to complete the course in the standard number of years on a full-time basis as determined by the higher education provider.
The standard number of years for the BBS, as defined by CSU, is three, regardless of the pattern of enrolment.
In order to complete the 24 subject course load in the NCD of three years, a student taking two sessions a year will do an even four subjects per session. By contrast, a student enrolling in three consecutive sessions per year, and wishing to progress at the same standard rate of eight subjects a year, must of necessity take an uneven course load, such as 3+3+2 or 4+2+2.
The fact that an eight subject load cannot be spread evenly over three sessions should not exclude study patterns such as 3+3+2 from the reach of Austudy. If a subject load of two subjects per trimester falls below the required threshold for Austudy, even if the student’s annual load is at least eight subjects, then logically students will have to do nine subjects per year to retain Austudy. This exceeds the standard load, namely, eight subjects per year. Perhaps more worryingly, a CSU first year student who completed 8 subjects over the first two study sessions (and thus a full time annual load), and who intended to continue on as a full time student in the second year, would be entitled to continue receiving Austudy over the summer, unless he or she enrolled for one of two subjects over the summer study session, in which case, on the Respondent’s argument, they would lose their Austudy entitlement for that period. It would be odd, if not perverse, to interpret the Austudy law and policies in such a manner.
It is common ground between the parties that the applicant completed two subjects in the relevant study period in the first session of 2018.
I find that, for the purposes of s 569C(a) of the SSA, in relation to the first session of 2018, the applicant was undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period.
Therefore, the correct or preferable decision requires that the decision of AAT1 be set aside. The applicant was entitled to receive Austudy for the relevant period. Consequently, she was also entitled to receive the Austudy Student Start-up Loan.
Finally, I note that the Department of Human Services provides information on the internet to assist students to calculate the Study Load. However, the relevant page does not make specific mention of trimesters.[40] There is an urgent need to clarify the issues raised by the wider use of trimesters in the calculation of Austudy entitlements, and for this to be reflected in information provided to prospective and existing students.
[40] >
I also note, with respect, the dearth of information provided by CSU to students about Austudy entitlements. On the CSU website, students are simply told to ‘jump online’ to the Government website to determine their eligibility for Austudy.[41] If there is a possibility that a particular study pattern might fall below Austudy requirements, this is a matter of vital importance for any student depending on Austudy.
[41] >
The Tribunal:
1)sets aside the Reviewable Decision pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act (Cth) (‘AAT Act’); and
2)remits the matter to the respondent for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act, that:
a.the applicant was entitled to receive Austudy for the relevant period; and
b.the applicant was entitled to receive the Austudy Start-up Loan for the relevant period.
APPENDIX
Table A – Applicant’s subject enrolments (2017-2019)
Study session Subjects completed 2017/1 1 2018/1 2 2018/2 3 2018/3 1 2019/1 4 2019/2 3 Total 14/24 Table B – Austudy: Subject minimum requirements for Articulated Set studied over trimesters
Qualification Subjects Sessions Standard progression 75% FTE BBS 24 9 24/9 2 Associate degree 16 6 16/6 2 Diploma of Business 8 3 8/3 2 I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.........[sgd]...............................................................
Associate
Dated: 18 February 2020
Date of hearing: 25 November 2019 Date final submissions received: 12 December 2019 Advocate for the Applicant: Mr Peter Smith Solicitors for the Respondent: Dr Steve Thompson
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Administrative Law
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CitationsSmith and Secretary, Department of Social Services (Social services second review) [2020] AATA 188
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