The Executor of the Estate of the Late DMLC and Military Rehabilitation and Compensation Commission (Compensation) - [2020] AATA 4588

The Executor of the Estate of the Late DMLC and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 4588 (9 November 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/7724
Re:The Executor of the Estate of the Late DMLC
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:9 November 2020
Place:Sydney

The reviewable decision, made by the Respondent on 28 November 2018, is set aside. The matter is remitted to the Respondent to determine the compensation payable to Ms A under section 17 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) in accordance with these reasons for decision.
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Deputy President J W Constance
CATCHWORDS
COMPENSATION – compensation for injuries resulting in death – prescribed child – meaning of receiving full-time education – significance of formal education status – where Ms A has a medical condition which prevents enrolment in a full-time course load – where Ms A enrolled in only subject in the relevant period – history of Ms A’s engagement in course work – where Ms A engaged in full-time education within the limitations of her medical condition – where Ms A engaged in no other activities than her education – decision set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) ss 4, 17
CASES
Harradine v Secretary, Department of Social Security (1989) 25 FCR 35
Secretary, Department of Social Security v Jordan (1998) 83 FCR 34
SECONDARY MATERIALS
Incapacity Policy Manual
REASONS FOR DECISION
Deputy President J W Constance
9 November 2020
INTRODUCTION

The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the Act) is an “Act relating to the rehabilitation and treatment of, and compensation for, members of the Defence Force, and related purposes”.[1]
[1] The heading of the Act.
One of the related purposes of the Act is the provision of financial assistance to a dependent child of a deceased Member of the Defence Force, who “is receiving full-time education at a … university …”.[2]
[2] Sections 4 and 17.
The Executor of the deceased Member applied on behalf of the daughter of the deceased, Ms A, for financial assistance under the Act. The Respondent agrees that Ms A meets the requirements for the assistance sought except that she was not receiving full-time education at a university during the relevant period.
The Applicant has applied to the Tribunal to review the decision of the Respondent to refuse the request for assistance. I shall refer to this decision as the reviewable decision.
The parties have agreed that the only period during which Ms A could be found to be eligible for the compensation in dispute is 20 April 2016 to 3 November 2016 inclusive. It is unnecessary that I record the reasons for this other than to say that this agreement is consistent with the evidence before me.
For the reasons which follow the reviewable decision will be set aside and remitted to the Respondent to determine the compensation payable in accordance with section 17 of the Act.
LEGISLATION
Section 17 of the Act relevantly provides:
(5)If:
(a) a prescribed child was, at the date of the injury or at the date of the employee’s death, wholly or mainly dependent on the employee;
…
the Commonwealth is liable to pay compensation at the rate of $110 a week and that compensation is payable to, or in accordance with the directions of, the MRCC for the benefit of that child from the date of the employee’s death …
(6) Compensation is not payable under subsection (5) in respect of:
(a)any period during which the child is not a prescribed child ……
Prescribed child is defined in section 4 of the Act:
prescribed child means:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25;
(ii) is receiving full-time education at a school, college, university or other educational institution; and
(iii) is not ordinarily in employment or engaged in work on his or her own account.
DEPARTMENT OF VETERANS’ AFFAIRS POLICY
In the Incapacity Policy Manual issued by the Department the following appears:
In deciding whether a young person is 'receiving full-time education' (for the purposes of the definition of 'prescribed child' in s4(1) of the SRCA), attention should be directed more to the nature of the activity undertaken by the student, rather than the formal status of the course in which they are enrolled.
If a student is recognised as a full-time student by the educational institution which they attend, this can usually be accepted as conclusive of the issue.
However, where the student's enrolment status is part-time, inquiries should be made about the actual work load undertaken by the student. If the total workload (including classes, direct tuition, and private study) exceeds 30 hours per week, it would generally be reasonable to determine that the student is 'receiving fulltime education'.
It is quite consistent for a student who is receiving full-time education to engage also in part-time work. Where, however, the student is in full-time paid employment, it is unlikely, in most cases, that they could also be 'receiving full-time education'.[3]
[3] Exhibit R2 at 31.
FACTS
The following facts are agreed between the parties[4] and I am satisfied that their agreement is in accordance with the evidence:
·Ms A’s father, who was an employee within the meaning of the Act, died on 20 April 2016;[5]
·on, and prior to, 20 April 2016 Ms A was enrolled in a course of study at an Australian university;[6]
·on 10 November 2017 Ms A lodged a Claim for Entitlements Following Death for Dependants of Deceased Members and Former Members of the Australian Defence Force;[7]
·the reviewable decision, affirming the rejection of Ms A’s claim for weekly compensation, was made on 28 November 2018.[8]
[4] Applicant’s Statement of Facts, Issues and Contentions dated 6 December 2019 at [5].
[5] Exhibit R1 at 49.
[6] Exhibit R2 at 18 – 22.
[7] Exhibit R1 at 37.
[8] Exhibit R1 at 11.
In addition, I am satisfied of the facts set out in paragraphs 12-21 inclusive which follow. Unless stated otherwise, the findings are based on the evidence of Ms A.
In June 2011 Ms A consulted a Medical Practitioner in respect of her history of anxiety and occasional panic attacks.
On 15 March 2013 the Practitioner reported, in part:
On review 18 October 2012, it appeared that her panic attacks had become much more frequent over the previous few weeks and she had developed significant depressive symptoms, including loss of concentration and insomnia. Her assessments: K10 Assessment: Score 38. and DASS 30 22 16 which were consistent with symptoms of depression and anxiety in the extremely severe range and stress in the mild range.
……
[Ms A’s] decline into depression appear to date from early September 2012, probably related to her father’s deteriorating health ….. . [9]
[9] Exhibit R1 at 109.
The Practitioner issued a medical certificate dated 15 March 2013 in which he stated that in his opinion Ms A was unfit for work/study from 15 March 2013 to 14 June 2013 inclusive.[10]
[10] Exhibit R1 at 110.
On 31 March 2015 an officer of the University sent an email to Ms A in the following terms:
Your doctor has confirmed part‐time study is necessary so I have updated your concession card status. This will last for one year from this date, if you are still studying part‐time after that we will need a similar confirmation. Please note it will take a few days for transport NSW to get this information.[11]
[11] Exhibit R1 at 100.
In Semester 1 of 2016, which commenced on 29 February 2016 and concluded in June 2016,[12] Ms A was enrolled in one course with a course load of 0.125. The course had a rating of six units of credit.[13]
[12] Exhibit R2 at 15; the examination period for Semester 1 ended on 27 June 2016.
[13] Exhibit R2 at 23.
There is no evidence of Ms A engaging in a course at the University in Semester 2 of 2016.[14] Her Academic Statement,[15] issued by the University, confirms that she was not enrolled in a course in Semester 2.
[14] Exhibit R1 at 122-123.
[15] Exhibit R2 at 19.
The 2016 University Handbook includes the following in its Glossary:
EFTSL – Equivalent Full-time Student Load
Equivalent full-time student load (EFTSL) is a measure of a student's study load. An EFTSL of 1.0 is the standard annual study load of a student undertaking a program on a full-time basis.
At [name of University redacted] a normal full-time enrolment for one year is defined as 48 units of credit (24 per semester). …… Most courses …… have a value of 6 units of credit (6UOC).[16]
Part-Time
Enrolled for less than 75% (or 0.375 EFTSL [equivalent full-time student load]) of a standard full-time workload for that semester of the program.[17]
[16] Exhibit R2 at 39.
[17] Exhibit R2 at 40.
The requirements of the course Ms A undertook during the relevant period were two one-hour lectures and one one-hour tutorial per week.[18]
[18] Exhibit R2 at 23.
Tutorials were held in weeks 2-10 inclusive and week 12 of Semester 1. Ms A is recorded as having attended a tutorial in weeks 2, 3, 5 and 6.[19] The record is unclear but it may be that Ms A attended two additional tutorials, making a total of six out of the ten offered as part of the course.
[19] Exhibit R2 at 24.
In an Academic Advising Record of Interview[20] dated 1 March 2016,[21] the University Advisor notes that Ms A was experiencing problems not connected with her university study and suggests a study programme of “6-12” units of credit for the next semester. In the Glossary, a unit of credit is defined to mean “the value attached to each academic course.”
[20] Exhibit R2 at 26.
[21] The document refers to the “current year” as 2015, but considering the date of the document and its reference to the “next semester” I am satisfied the author was referring to the 2016 academic year.
Statement of Ms A made 23 July 2019
Ms A provided this statement for the purposes of this application. She did not give oral evidence at the hearing and was not required for cross-examination.
In 2011 Ms A transferred to the University referred to earlier in these reasons from a University at which she had been studying full-time. In the first semester of 2011 she enrolled in four subjects. She travelled by public transport to and from University which took her about six hours per day.
For personal reasons Ms A withdrew from each of the first semester subjects in which she was enrolled. She registered with the University’s Disability Support Unit and was advised to study part-time. The University accepted her part-time workload as the equivalent of a full-time student load.
In 2012 Ms A was issued with a concession card for travel on public transport. This was issued after the University confirmed that she was studying on a basis equivalent to a full-time student. She continued to hold the concession card at the time she made the statement.
Ms A describes her attendance at University as follows:
I travelled to the [University] up to 3 times each week for each subject. Most subjects had 2 lectures, a tutorial and a 2 hour laboratory each week. I would stay at university all day.
Tutorials would usually run for two hours, although occasionally some were one hour. During these tutorials I was unable to take notes and listen at the same time so I would do the tutorial again online.
I would also listen to the online lectures, either in the library or at home. I would have to repeatedly pause the recorded lecture and go back over the lecture material. This meant that a one-hour lecture could take me up to 3 or 4 hours to listen, pause and take notes.
Due to the course content, after every tutorial I had homework to do in addition to assignments and readings.
I would also have to do a lot of reading at home. I also tried to read on the train and between classes at the [University].
In 2015 I was hospitalised several times. I was doing university work in the hospital. The Disability Support person helped me to talk to my professors and continue with the course work even though I could not attend.
In 2016 I was hospitalised multiple times. I was taken out of the hospital I was in to visit my dad in another hospital before he passed away.
I accept Ms A’s evidence.
Ms A’s Academic Statement[22]
[22] Exhibit R2 at 18.
Ms A’s Academic Statement shows the following results:
·Semester 1 2011 – transfer credit of five subjects;
·Semester 2 2011 – two subjects attempted, two passed;
·Semester 1 2012 – three subjects attempted, three passed;
·Semester 1 2013 – no record of subjects attempted;
·Semester 2 2013 – one subject attempted, one passed;
·Semester 1 2014 – three subjects attempted, two failed and one not completed;
·Section 2 2014 – two subjects attempted, two absent failed;
·Semester 1 2015 – one subject attempted, one failed;
·Semester 1 2016 – one subject attempted, one failed;
·Semester 1 2017 – two subjects attempted, two passed;
·Semester 1 2018 – one subject attempted, one absent failed.
THE RESPONDENT’S ARGUMENT
It was argued on behalf of the Respondent that:
… the available evidence demonstrates that [Ms A] was not “receiving full-time education” for the purpose of s 4 of the DRCA. [Ms A’s] formal educational status and the evidence regarding her associated workload does not support that she was in full-time education at the relevant time.
… Further, the Respondent contends that there is no exception or discretion in the legislation to relax and/or alter the requirements of ss 17(5) and 4 of the DRCA in view of any individual impediment to meeting the specified requirements including to engage in full-time education.[23]
[23] Respondent’s Statement of Facts, Issues and Contentions dated 22 November 2019 at [32]-[33].
The period in respect of which a determination must be made is the period immediately following the death of Ms A’s father and ending on 3 November 2016. Having regard to the provisions of paragraph 17(6)(a) of the Act, the Tribunal should only be concerned with what happened in that period.
The evidence points to the following:
(i)the email of 31 March 2015 from the University Officer referred to the necessity of Ms A engaging in part-time study and her concession card status was updated for 12 months until 31 March 2016;
(ii)in 2011 Ms A enrolled in a full-time three-year degree course;
(iii)Ms A’s course load in Semester 1 2016 was 0.125 and she did not undertake any course load in Semester 2 of that year;
(iv)a course load of below 0.375 is regarded by the University as part-time;
(v)in 2016 the normal full-time enrolment for one year was 48 units of credit (24 per semester) whereas Ms A was enrolled in one subject of only 6 units of credit.
The Act should not be interpreted in such a way as to find that Ms A was receiving full-time education based on her impairment. The reasons advanced by the Respondent are:
(i)there is no exception in the Act making provision for a student having an impairment;
(ii)the Act is expressly excluded from the operation of the Disability Discrimination Act 1992 (Cth);[24]
(iii)it would not have been intended by Parliament that “you could be receiving fulltime education if you are enrolled in a single subject that the university thinks you’re doing part-time, you fail that subject with a score of zero which suggests that none of the work required for the course was completed or at least completed to the degree that it could be assessed, that they were happy for it to be assessed, and not enrol in any subject whatsoever in the second semester”;[25]
(iv)there was no education for Ms A to receive in Semester 2 of 2016 as she was not enrolled in a subject at the University;
(v)there is no evidence as to the extent of Ms A’s impairment during Semester 1 and 2 of 2016.
[24] See section 51 of the Disability Discrimination Act 1992 (Cth).
[25] Transcript, 22 June 2020 at 30-31.
CONSIDERATION
During argument Counsel referred me to judgements of the Federal Court in which the Court considered the words “engaged in a course of education on a full-time basis” and “enrolled in a full-time course of education” in the Social Security Act 1991 (Cth). Obviously, these phrases are not the same as that under consideration. In my view, whether Ms A was “receiving a full-time education” in the relevant period of 2016 is a question of fact to be determined on the evidence. The words under consideration are to be given their ordinary meaning in the context of the Act. To attempt to interpret these words would simply be to replace them with other words – this is not the role of the Tribunal.
The cases referred to do provide guidance in relation to the relevance of the classification of a course of education by the University. In Secretary, Department of Social Security v Jordan[26] Hill J said:
…… the question must be resolved by the Tribunal looking at all the facts and that the classification by the institution of the course is merely one of the factors to consider.
[26] (1998) 83 FCR 34 at 41F.
In Harradine v Secretary, Department of Social Security,[27] French J decided that the facts found by the Tribunal “admitted of no conclusion other than that the appellant was not engaged full-time in his course even though it was designated as full-time by the University.”
[27] (1989) 25 FCR 35 at 42.
There can be no doubt that the Respondent is correct in the submission that at no time during 2016 was Ms A receiving full-time education in accordance with the definitions applied by the University. In Semester 1 the course undertaken by Ms A was allocated six units of credit whereas the expectation of the University was that a full-time student would undertake 24 units of credit per semester. Ms A was not enrolled at all in Semester 2. Similarly, Ms A’s course load was far below that expected of a student classified as full-time by the University.
It is important to note that the requirement is that a person be “receiving” a full-time education rather than engaging in what the institution determines to be a full-time student workload. Had Parliament intended that a beneficiary under the Act meet the more stringent requirements of the latter test it could easily have said so.
The use of the words “is receiving” indicates that the focus is on the individual, rather than the classification of the subject or subjects by the University. For this reason, I cannot accept the Respondent’s contention that only the events of 2016 are relevant. While I agree that the stated period in 2016 is the period in which the eligibility of Ms A is to be determined, the history of her engagement with the course in which she enrolled in 2011 is relevant to the designation of the nature of the education she was receiving in 2016. In considering the evidence I accept the Respondent’s argument that much of Ms A's statement relates to courses undertaken prior to 2016.
Considering the facts of this matter, I agree with the proposition put by Counsel for the Applicant in relation to Ms A, that “the real measure of ‘receiving fulltime education’ is that at the time of death of the deceased parent, the education being received is the most significant factor occupying time in the child’s activities of life, and that the child is not ordinarily engaged in employment.”[28] This proposition should not be taken to be a re-statement of the requirements of the Act, rather it is a statement of Ms A’s position at the relevant time.
[28] Applicant’s Outline of Submissions dated 22 June 2020 at [5.7].

Ms A’s history of engagement, set out in part at paragraph 26 of these reasons, demonstrates that Ms A has consistently applied herself to her university studies within the limitations of her medical condition and to the exclusion of other pursuits. That Ms A received a zero-zero mark for her Semester 1 2016 course is not inconsistent with a finding that she was receiving full-time education to the best of her capability at the time, in light of her performance over the preceding five years.
Based on the evidence of Ms A, and the medical report, I am satisfied that Ms A suffers from a worsening medical condition which prevented her in engaging in a full-time course load from 2011 onwards. Although there is limited evidence available to me, I am satisfied on the balance of probabilities that Ms A was not engaged in any activities such as employment or other studies which prevented her from engaging in a full-time course load. In this regard I have taken into account that in some semesters she successfully completed more than one subject. Further, a Psychological Assessment Report dated 31 March 2016 recorded that Ms A “has only had one job which she held for a period of three months…”, which supports the conclusion that Ms A was not engaged in any other activities than her education.
In reaching this conclusion I have accepted the argument put on behalf of the Applicant that the Act is beneficial legislation, designed to replace the contribution a deceased Member was making to the education of a dependent child. The proposition is consistent with the ordinary meaning of the words “receiving full-time education” in the circumstances of a person who is suffering an impairment which prevents him or her engaging in, and who is not undertaking any other activity or activities which would otherwise prevent the person engaging in, a full-time work load as determined by the institution concerned.
I am satisfied that, at the relevant time, Ms A was not engaged in any form of employment. Had she been so engaged it would have been necessary to consider the nature of that employment and whether it was consistent with a person receiving full-time education.
Further, the limitation on the payment of the benefit is based on age and not on any particular workload or the student’s success or otherwise in the course chosen. This age restriction allows a person to complete his or her tertiary education over a number of years, without permitting the benefit to be claimed indefinitely.
I have reached a different conclusion in regard to the time between the end of Semester 1 (on 27 June 2016) and 3 November 2016. In that time Ms A was not receiving an education, either full or part-time, as she was not enrolled in any course. In these circumstances I accept the argument put by the Respondent.
I do not have sufficient evidence as to Ms A’s circumstances to be able to find that her failing to undertake any university study during Semester 2 of 2016 was attributable to her medical condition.
The conclusion I have reached is consistent with the Departmental Policy which directs attention to the circumstances of the student. I do not read the Policy as stating that a student engaged in study for less than 30 hours per week is necessarily to be determined as receiving less than a full-time education.
CONCLUSION
The reviewable decision, made by the Respondent on 28 November 2018, will be set aside.
The matter will be remitted to the Respondent to determine the compensation payable to Ms A under section 17 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) in accordance with these reasons for decision.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 9 November 2020

Date(s) of hearing: 22 June 2020

Counsel for the Applicant: L Grey

Solicitors for the Applicant: KCI Lawyers

Counsel for the Respondent: K Slack

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	22 June 2020
Counsel for the Applicant:	L Grey
Solicitors for the Applicant:	KCI Lawyers
Counsel for the Respondent:	K Slack
Solicitors for the Respondent:	Australian Government Solicitor