Tralongo and Secretary, Department of Education, Science and Training

[2006] AATA 430

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 430

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/330

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIA-LUISA TRALONGO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date18 May 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Fares Allowance – approved tertiary course – combined Bachelor of Commerce/Law degree – second Fares Allowance application in study year – can combined degree be treated as two degrees for Fares Allowance purposes? – decision affirmed

Social Security Act 1991 ss 1061ZAAA, 1061AAC

Student Assistance Act 1973 s 5D

REASONS FOR DECISION

18 May 2006   Senior Member L Hastwell   

1.      Ms Maria-Luisa Tralongo (the applicant) resides in Mount Gambier in the south-east of South Australia.  She has been studying for a Bachelor of Commerce/Law degree as an external student at the University of Armidale in New South Wales since 2002.  From time to time she is required to travel to Armidale to undertake compulsory residential study as part of the course.

2.      On 21 September 2005 the applicant lodged a claim for Fares Allowance (FA) for her return travel by vehicle to the University to undertake a compulsory 6 day residential school and a compulsory exam.  Her application for FA was refused on the basis that she had already received one FA payment in that study year.  An Authorised Review Officer affirmed that decision on 21 October 2005.  The Social Security Appeals Tribunal (the SSAT), upon review, affirmed the decision on 30 November 2005.  The applicant seeks a review of the SSAT decision.

legislation

3.      The relevant legislation in this case in contained in the Social Security Act 1991 (the Act). 

4. Section 1061ZAAA of the Act provides as follows:

“(1)     A person is qualified for fares allowance for a journey by the person if:

(a)during a period (the relevant period) that is the whole or a part of a study year the person undertakes an approved tertiary course (the approved course) at an educational institution in Australia (the relevant educational institution); and

(b)during the relevant period the person is receiving one or more of the following forms of financial assistance:

(i)youth allowance because the person satisfies the activity test by undertaking full-time study;

(ii)youth allowance where the only term of the relevant Youth Allowance Activity Agreement is a term to the effect that the person has to undertake an approved course of education or study under subsection 541B(5);

(iii)      austudy payment;

(iv)      pensioner education supplement; and

(c)during the relevant period the person’s permanent home is in Australia; and

(d)      either:

(i)subsection (2) or (3) applies in respect of the person for the study year; or

(ii)subsection (4) or (5) applies in respect of the person in relation to the journey; and

(e)either section 1061ZAAB or 1061ZAAC applies in respect of the journey; and

(f)the journey has been made or, if it has not been made, the Secretary is satisfied that:

(i)        the person intends to make the journey; and

(ii)the person’s means of travel for the journey will be provided by a commercial operator.

Note:   A person is taken to be receiving a form of financial assistance referred to in paragraph (b) even though the person has traded in, or traded back, the assistance to obtain a financial supplement.

(2)This subsection applies in respect of the person for the study year if, during the relevant period, the person:

(a)has a partner, or a dependent child, living at the person’s permanent home; and

(b)is required to live away from his or her permanent home in order to undertake the approved course.

(3)This subsection applies in respect of the person for the study year if, during the relevant period, the person is enrolled as an external student for the approved course.

…

Note:   A person is not qualified for a fares allowance in respect of a journey made before the commencement of this section (see clause 126 of Schedule 1A).”

5.      Section 1061ZAAC of the Act provides:

“If the person is enrolled for the approved course as an external student, this section applies only in respect of one return journey by the person during the study year between the person’s permanent home and the relevant educational institution in order to attend the institution for a period under a requirement that is a compulsory component of the course.”

6. Fares Allowance is payable with respect to approved tertiary courses as determined under s 5D of the Student Assistance Act 1973 (the SA Act) and such courses are decided under determinations approved by the Minister of Education, Science and Training. Under ss 3(1) and 5D(1) of the SA Act, Determination No 2002/1 provides as follows:

“SCHEDULE 2 - TERTIARY COURSES

Column 1 - Course

Column 2 - Education institution

Pre -vocational course

Registered training organisation

ESL course

Registered training organisation

Higher education institution
Any other body approved by the relevant State or Territory authority to conduct the course

A vocational education and training programme that is not a secondary course specified in Schedule 1.

Higher education institution

Registered training organisation

Combined course – Vocational education and training, consisting of two or more separate vocational education and training programmes undertaken concurrently and each of which leads to the award of a qualification or statement of attainment

Higher education institution

Registered training organisation

Undergraduate or postgraduate accredited higher education course which is at the level of:

• associate degree;
• associate diploma;
• diploma;
• advanced diploma;
• Bachelor degree;
• graduate degree;
• graduate certificate;
• graduate diploma;
• NBCOTP funded course;
• Master’s qualifying course; or
• a combined course which leads to two of these awards,
• and is classified as such in the institution’s handbook and is not: a secondary course specified in Schedule 1; or
• a course at the level of a Masters or Doctoral degree unless otherwise specified in Schedule 2.”

Higher education institution

Registered training organisation

issues

7.      The issues for the Tribunal to determine are:

·whether the applicant can be paid FA in respect of her return travel to Armidale in September 2005; and

·whether the Bachelor of Commerce/Law degree can be considered to be two separate courses rather than one course of study.

the hearing

8.      The applicant spoke to the Tribunal by telephone.  She told the Tribunal that she had been previously paid FA on more than one occasion in a study year, and there was no logic in her mind as to why she was not paid FA on a second occasion in 2005.

9.      She agreed that she had received FA for a compulsory residential school in her Commerce/Law study for the period 30 March 2005 to 5 April 2005, and that her application for FA for the September course was an application for a second payment in that study year.

10.     She asked the Tribunal to consider whether she was undertaking two separate courses rather than one course, thereby allowing a second payment in that year. 

consideration

11.     The Tribunal considered the relevant legislation and notes that it is quite clear under s 1061ZAAC of the Act that a person can receive FA for an “approved course” in respect of “… one return journey by the person during the study year …”

12.     It is common ground that the applicant applied for a second FA in the study year of 2005 to undertake a residential school that involved both law and commerce subjects.

13.     The Tribunal considered the Ministerial Determination as to what constitutes approved tertiary courses.  An undergraduate or postgraduate accredited higher education course which is at the level of “a combined course which leads to two of these awards” is considered to be one course (paragraph 6).  The applicant’s Commerce/Law degree is classified under the schedule to the Determination as a combined single course which leads to two awards, ie two degrees.  In other words, it is approved as one course and not two.

14.     In this case because the applicant was paid FA for her residential study in March/April of 2005 she had already received payment for one return journey in the same study year and therefore by virtue of s 1061ZAAC of the Act she cannot receive a second payment with respect to the same course in that year. 

15.     Although the Tribunal has some sympathy with her position in that it is clearly difficult for her financially to pay for her attendance at the second course in a year, the legislation is clear and there is no discretion available to the Tribunal to depart from the rule that only one FA is payable per study year for a course.

16.     In the circumstances 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 Senior Member L Hastwell

Signed:         .............J Coulthard...........................................
  Associate

Date of Hearing  20 April 2006
Date of Decision  18 May 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr B Harvey
Solicitor for the Respondent     Centrelink Legal Services Branch