Upjohn and Secretary, Department of Social Services (Social services second review)

Upjohn and Secretary, Department of Social Services (Social services second review) [2019] AATA 2963 (29 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6048
Re:George Upjohn
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:29 August 2019
Place:Sydney

The decision under review is set aside, and in substitution, a decision is made that the Applicant qualified for Youth Allowance during the period 26 August 2015 to 13 May 2016, therefore there is no Youth Allowance and Scholarship debt owed by the Applicant arising under section 1223(1) of the Social Security Act 1991 (Cth).
..................[sgd]......................................................
Senior Member Linda Kirk
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – debt – student start-up scholarship – undertaking full time study – write off debt – waiver of debt arising from sole administrative error – waiver in special circumstances – decision under review is set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 540, 541, 541B, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 68, 80
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Social Security Guide (SSG)
REASONS FOR DECISION
Senior Member Linda Kirk
29 August 2019
APPLICATION FOR REVIEW

Mr George Upjohn (‘the Applicant’) was born in April 1992. He claimed youth allowance (‘YAL’) on 9 March 2015[1] based on his enrolment in a Batchelor of Arts (‘BA’) undergraduate degree at the University of Notre Dame in Sydney (‘University’) with a study end date of 30 December 2018.
[1] T4, 51.
The Applicant was granted YAL by the Department of Social Services (‘the Respondent’) with effect from 9 March 2015.[2] He was also granted a Student Start-Up Scholarship (‘Scholarship’) of $1,025.00 for the period 1 July 2015 to 31 December 2015 as an ancillary benefit to his YAL.[3] The Scholarship was paid to the Applicant on 26 July 2015.
[2] T11, 85.
[3] T11, 99.
On 18 April 2015, the Respondent sent the Applicant a notice,[4] informing him of the grant of YAL and the Scholarship and the bases of the grants. The notice also informed him that he must tell the Respondent within 14 days about events or changes in his circumstances. On 6 May 2015, a further notice was sent to the Applicant informing him that he must notify the Respondent of any events or changes in his circumstances.[5]
[4] T1, 138.
[5] T15, 141.
On 26 August 2015, the University informed the Respondent that the Applicant’s equivalent full-time study load (‘EFTSL’) was 0.3.[6] This was under the normal full-time study load of 0.375 per semester. The University advised the Respondent on twelve subsequent dates in 2015 that the Applicant’s EFTSL was 0.3.[7] On 30 March 2016, the University advised the Respondent that the Applicant’s EFTSL was 0.0, and informed it of the same on two further dates in April 2016.[8]
[6] T11, 86.
[7] T11, 86-93.
[8] T11, 94-95.
On 13 June 2016, the Applicant was formally advised by the Respondent in writing that his YAL was cancelled from 14 May 2016 because he had not reported his change in circumstances in accordance with his reporting obligation.[9]
[9] T15, 160.
On 2 July 2016, the Respondent wrote to the Applicant to inform him that he had a debt for the Scholarship totalling $1,025.00 for the payment made on 26 July 2015 (‘Scholarship debt’).[10] On 5 July 2016, the Respondent wrote to the Applicant to inform him that he had a YAL debt totalling $10,480.30 for the period 26 August 2015 to 13 May 2016 (‘YAL debt’).[11]
[10] T5, 56.
[11] T5, 58.
On 23 March 2017, an Authorised Review Officer (‘ARO’) affirmed the Respondent’s decisions and the Applicant was provided with a statement of reasons.[12]
[12] T8, 62.
On 7 August 2018, the Applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) for review of the ARO’s decision. On 10 October 2018, the AAT1 affirmed the decision under review (‘the Reviewable Decision’).[13]
[13] T2, 8.
On 19 October 2018, The Applicant lodged an application with the General Division of the Administrative Appeals Tribunal for review of the Reviewable Decision.[14] He provided the written reasons in support of his application.[15]
[14] T1, 1.
[15] T1, 4.
The matter was heard in Sydney on 14 May 2019. The Applicant attended the hearing by telephone and was self-represented.
The following documents were before the Tribunal:
(i)T- documents;
(ii)Respondent’s Statement of Facts, Issues and Contentions;
(iii)Applicant’s withdrawal form; and
(iv)Applicant’s submission.
LEGISLATION AND POLICY
The relevant law is contained in the Social Security Act 1991 (‘the Act’); and the Social Security (Administration) Act 1999 (‘the Administration Act’).
The policy contained in the Social Security Guide (‘the Guide’) is also relevant and should be applied by the Tribunal unless there are cogent reasons to depart from it: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Entitlement to Youth Allowance
Section 540(a)(i) of the Act relevantly states that a person is qualified for YAL in respect of a period if the person satisfies the ‘activity test’.[16] Section 541(1)(a) of the Act[17] relevantly provides that a person satisfies the activity test in respect of a period if:
(a)the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B);
[16] T3, 18.
[17] T3, 19.
Section 541B of the Act relevantly provides:[18]
[18] T3, 23.
541B 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
…
(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)… 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
(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.
Note: Only one course of education can be considered in deciding if a person satisfies the undertaking full-time study requirement: see section 541C.
…
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.
Cancellation of Youth Allowance
Section 80 of the Administration Act provides for the cancellation or suspension of YAL:
80       Cancellation or suspension determination
(1)If the Secretary is satisfied that a social security payment is being, or has   been, paid to a person:
(a)     who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable; the Secretary is to     determine that the payment is to be cancelled or suspended
Debt in relation to social security payment
A debt in relation to a social security payment arises by operation of section 1223(1) of the Act, which relevantly states (now and during the relevant period):
1223    Debts arising from lack of qualification, overpayment etc.
(1)       Subject to this section, if:
(a)       a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a)the payment was made to the person by mistake as a result of a     computer error or an administrative error;
(b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c)the payment was not payable;
(d)the payment was made as a result of a contravention of the social   security law, a false statement or a misrepresentation;
Subsection 1223(1AB) of the Act is a non-exhaustive list of circumstances in which a person is taken not to have been entitled to obtain the benefit of a payment. A person who obtains a benefit in any of the prescribed circumstances has a debt that arises when he or she obtains that benefit.
A debt that is due to the Commonwealth is normally recoverable from the debtor (subsection 1223(1) of the Act).
Write off of debts
Section 1236 of the Act provides that a debt may be written off in the following circumstances:
1236 Secretary may write off debt
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
Waiver for sole administrative error
Section 1237A of the Act states:
Administrative error
(1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
(1A) Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
Waiver in special circumstances
Section 1237AAD of the Act states:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are whether:
a)the Applicant qualified for YAL between 26 August 2015 and 13 May 2016 on the basis he was enrolled in full-time study? and
b)the Applicant qualified for the Scholarship during the period 1 July 2015 to 31 December 2015?
If not, and both the YAL and Scholarship debts were correctly raised:
c)are the YAL and Scholarship debts recoverable from the Applicant pursuant to section 1223(1) of the Act?
d)should all or part of the YAL and Scholarship debts be written off pursuant to section 1236 of the Act?; or
e)should all or part of the YAL and Scholarship debts be waived due to administrative error pursuant to section 1237A of the Act?; or
f)do “special circumstances” exist such that the YAL and Scholarship debts should be waived pursuant to section 1237AAD of the Act?
EVIDENCE BEFORE THE TRIBUNAL
Enrolment at the University
In his application form dated 9 March 2015,[19] the Applicant claimed YAL on the bases that:
a)he was enrolled in a BA at the University;
b)the official course stated date was 9 March 2015;
c)his study start date was also 9 March 2015;
d)he was enrolled full-time for Semester 1 and Semester 2;
e)the official course end date was 30 December 2018; and
f)his study end date was 30 December 2018.
[19] T4, 53-54.
The Applicant told the Tribunal that when he enrolled in his BA degree in March 2015 it was always his intention to transfer to a Law degree as soon as he was able to do so. The University would not permit him to enrol in a Law degree initially as it was unsure whether he could cope with the academic workload after a long period of no study. It was suggested to him that he undertake six months of a BA degree and, if he had the marks, he would be able to transfer to Law.[20]
[20] Transcript p 14.
For a student studying on an EFTSL basis, the University works out the student’s study load using EFTSL:

Total EFTSL

Course length

Full time study load

75% study load

1.0 per year or

0.5 per semester

1 year

8 units worth 0.125

EFTSL = 1.0 per year

4 units worth 0.125

EFTSL = 0.5 per semester

6 units worth 0.125

EFTSL = 0.75 per year

3 units worth 0.125

EFTSL = 0.375 per semester

The Applicant’s EFTSL for full-time study was 0.375 per semester.
The University provided the following EFTSL information to the Respondent in relation to the Applicant in a data match process on the following dates:
·26 August 2015 – Course EFTSL Workload 0.3
·2 September 2015 – Course EFTSL Workload 0.3
·9 September 2015 – Course EFTSL Workload 0.3
·16 September 2015 – Course EFTSL Workload 0.3
·23 September 2015 – Course EFTSL Workload 0.3
·30 September 2015 – Course EFTSL Workload 0.3
·7 October 2015 – Course EFTSL Workload 0.3
·14 October 2015 – Course EFTSL Workload 0.3
·21 October 2015 – Course EFTSL Workload 0.3
·28 October 2015 – Course EFTSL Workload 0.3
·4 November 2015 – Course EFTSL Workload 0.3
·11 November 2015 – Course EFTSL Workload 0.3
·30 March 2016 – Course EFTSL Workload 0.0
·6 April 2016 – Course EFTSL Workload 0.0
·13 April 2016 – Course EFTSL Workload 0.0
In June/July 2015 the Applicant was hospitalised for a total period of five weeks when he underwent emergency surgery for a punctured lung caused by broken ribs. This condition was related to an injury the Applicant sustained in 2013 as a member of the British Army when he jumped from a plane and the parachute did not fully deploy and he hit the ground at 235 kilometres per hour breaking 26 bones on impact.[21]
[21] Transcript p 17-18.
He told the Tribunal that until June 2015 he had been attending all classes and had completed his assessments, assignments and additional work to a very high standard.[22] His marks were sufficient for him to transfer to a Law degree (High Distinctions) without sitting the exams.[23] However his hospitalisation coincided with the exam period and he was unable to sit the Semester 1 exams. He applied for a medical exemption for these exams but this was not granted by the University.[24]
[22] Transcript p 9.
[23] Transcript p 8.
[24] Transcript p10.
The Applicant appealed against the University’s decision not to permit him to re-sit the Semester 1 exams.[25] He had been granted deferred examinations (DE) for the Semester 1 exams to be done in the Semester 2 exam block. He did not want to wait six months to re-sit the exams without having studied the material.[26] He also did not want to have to ‘choose’ between completing the Semester 1 or Semester 2 exams in the Semester 2 exam block. Either way he would lose an entire semester of work and he would not get the transfer to Law because he would not have satisfied the pre-requisites.[27]
[25] Transcript p 10.
[26] Transcript p 11.
[27] Transcript p 12.
In his appeal, the Applicant sought to be awarded ‘average marks’ for his four Semester 1, 2015 units in lieu of sitting the exams. By letter dated 22 September 2015 the University dismissed this appeal.[28]
[28] T10, 74.
The Applicant continued with his study in Semester 2, 2015. He was enrolled in two Law and two Arts units. At this point his transfer to Law had not been approved, but he was told that if he successfully completed the Law units in which he was enrolled and the transfer went through, they would be counted towards his Law degree.[29] He sat the Semester 2 exams and successfully passed them.
[29] Transcript p 10.
The evidence before the Tribunal includes details of the Applicant’s enrolment in Arts and Law units for his BA degree in Semester 1 and Semester 2, 2015 and includes a notation that he was awarded a deferred exam (DE) for four units in Semester 1:[30]
Student Units
Course 3009 Bachelor of Arts
[30] T10, 68.

Period

Unit

College

Full year

Grade

15S2

15S2

15S2

15S2

15S1

15S1

15S1

15S2

LW100 Legal Research and Writing

LW1010 Legal Process and Statutory Interpretation

PT101 Logos I

PT102 Logos II

CO203 Language of Film

EL102 The Western Literary Tradition

JS5100 Introduction to Social Justice

SO100 Self and Society

SOAS

SOAS

SOAS

SOAS

SOAS

SOAS

SOAS

SOAS

    N

    N

    N

    N

    N

    N

    N

    N

     DE

     DE

     DE

     DE

On 28 October 2015, the University granted a change in the Applicant’s enrolment by approving his retroactive withdrawal from four units in which he was enrolled for Semester 2, 2015.[31] These subjects were Legal Research and Writing (LW100), Legal Process and Statutory Interpretation (LW1010), Logos I (PT101) and Logos II (PT101). All of these were designated full-time (FULL) units.
[31] T10, 72.
From 3 December 2015 to 27 December 2015 the Applicant was in the United Kingdom to undergo treatment for his Army related injuries. On 3 December 2015, he was advised by the Department in writing that his YAL was suspended from that date because he was not in Australia.[32]
[32] T15, 144.
The Applicant lodged a second appeal just before the end of Semester 2, 2015. By letter dated 29 February 2016, the University acknowledged receipt of this further appeal.[33] It states that ‘you are allowed to continue your enrolment in units for semester 1, 2016 whilst your appeal is processed.’
[33] T10, 71.

In Semester 1, 2016 the Applicant continued to study full time.[34] He was enrolled in Logos I (PT101), Advertising and Society (CO351), Digital Cultures (CO204) and Introduction to Screen Printing (CO121). His plan was to ‘start again’ and complete Semester 1 BA units and then transfer to Law.[35]
[34] Transcript p 16.
[35] Transcript p 14.
The Applicant told the Tribunal that at no point did his full-time study load change. He was enrolled in four units of a BA degree per Semester throughout the entire period. His study load was not affected by the fact he was unable to sit his Semester 1, 2015 exams for medical reasons.[36]
[36] Transcript p 15.
He explained that the 0.3 Course EFTSL Workload figure is an automatically generated number for the purposes of billing a student. His ‘billed workload’ of 0.3 related to his enrolment in BA units. However, he was also allowed by the University to enrol in Law units in Semester 2, 2015 which meant that his ‘actual workload’ was higher than the ‘billed workload’. He was not at the time enrolled in a Law/Arts degree because he was waiting the outcome of his appeal, and this is why he was not billed for the additional Law units. It was the University’s error that they allowed him to enrol in these additional units but this was not reflected in his EFTSL and this ‘triggered the lower study load warning for Centrelink.’[37] Although he was taking six units in Semester 2, 2015 and four units in Semester 1, 2016, the University counted him as only studying two units regardless of his attendance and the assessment he was submitting. The fact that he withdrew from four units in October 2015 and four units in May 2016 indicates that he was enrolled in these units in Semester 2, 2015 and Semester 1, 2016, and this is contrary to the Course EFTSL Workload information the University provided to Centrelink.[38]
[37] Transcript p 34.
[38] Transcript p 36 and 43.
The Applicant’s second appeal was dismissed in late April 2016. The effect of the dismissal of the appeal was that he was unable to complete the exams for Semester 1, 2015 because he had not sat them in the second exam block because he was doing Semester 2, 2015 exams at that time. This meant the entire year (2015) was not able to be counted and even if he were able to transfer to a Law degree, the Law units would not count. Two days later he withdrew from the University.[39]
[39] Transcript p 16.
The evidence before the Tribunal includes a form signed by the Applicant to withdraw from the four units in which he was enrolled in Semester 1, 2016 namely, Logos I (PT101), Advertising and Society (CO351), Digital Cultures (CO204) and Introduction to Screen Printing (CO121).
The Applicant contacted Centrelink and notified it of his change of circumstances on 8 May 2016.[40]
[40] T11, 96.
Although Centrelink was advised by the University by way of 12 data matching reports commencing on 26 August 2015 that the Applicant’s Course EFTSL Workload was 0.3 and therefore below the 0.375 full-time EFTSL, and also advised by the University in three data matching reports commencing on 30 March 2016 that the Applicant’s Course EFTSL Workload was 0.0, Centrelink did not make contact with the Applicant about the potential overpayment of his YAL until 2 July 2016.
Current employment and financial situation
The Applicant is now employed on a contract basis as a commercial pilot. He has been offered full-time work at the end of the year, but he is currently building experience and cost sharing to obtain the requisite flight hours.[41]
[41] Transcript p 18.
He has outstanding HECS debts and also $150,000 of VET FEE-HELP for his pilot training.[42] He is currently in receipt of Austudy.[43] He also has medical debts of approximately $4,000.[44]
[42] Ibid.
[43] Transcript p 20.
[44] Transcript p 22.
The Applicant told the Tribunal that he recently passed the medical examination for a commercial pilot’s licence.[45] He is due for another shoulder operation at the beginning of next year and will have to travel to the UK for this surgery.[46] He is currently in a ‘recovery period’ and any small slip could result in another puncture to a lung, and a tear of a tendon in his left thigh would require extensive surgery and treatment and he could not work. His doctors have told him he is about 60 per cent of how he was before the accident.[47]
CONTENTIONS
[45] Transcript p 19.
[46] Transcript p 22-23.
[47] Transcript p 35.
Applicant
The Applicant was studying full-time for the period 26 August 2015 until his withdrawal from the University in May 2016. The University allowed him to enrol in Law units in addition to Arts units from Semester 2, 2015 and in Semester 1, 2016 while his appeal was being considered, but he was only billed for the Arts units. His ‘billed workload’ was therefore less than his ‘actual workload’ which was a full-time study load. It was this that incorrectly triggered the lower study warning (EFTSL 0.3) by the University to Centrelink.
The evidence that supports the Applicant’s claim is the withdrawal forms dated 28 October 2015 and May 2016 which show that he was enrolled in four units (a full-time study load) in both Semester 2, 2015 and Semester 1, 2016.
Accordingly, the YAL and Scholarship debts were incorrectly raised and the Reviewable Decision should be set aside.
Respondent
The debts were correctly raised because the Applicant was not studying full-time for the period 26 August 2015 to 13 May 2016.
The information provided by the University to the Respondent indicates that by 26 August 2015 the Applicant was not studying full-time.
The Applicant did not, in accordance with his reporting obligations, report changes in his circumstances to the Respondent following the dismissal of the appeals by the University and his withdrawal from course units.
Subparagraphs 1223(1AB)(b) and 1223(1AB)(d) of the Act apply in the Applicant’s case because he was receiving a payment to which he was not entitled as he was not studying full-time, and he had contravened social security law by not informing the Department that he had ceased studying full time within 14 days of the event occurring.
There are no grounds for a write off of the debt. The discretion in section 1236(1) ought not to be exercised in the Applicant’s case because none of the criteria in section 1236(1A) are satisfied.
There are no grounds for waiver arising from error as there is no sole administrative error on the Respondent’s part. The debt arose because the Applicant was being paid YAL on the basis that he was a full-time student when he was not, and he failed to inform the Department of this in accordance with his reporting obligations.
In the Applicant’s case, he can be taken to have known that he ought reasonably to have reported to the Respondent before 26 August 2015 that he had ceased studying full-time. There has been no operative administrative error and consequently no part of the debt can be waived under subsection 1237A(1) of the Act. Further, the Applicant did not receive the YAL payment in “good faith” within the meaning of subsection 1237A(1) of the Act.
There are no special circumstances for a waiver of the debt under section 1237AAD. The three elements that must be satisfied before the discretion can be exercised are not met. The first element is not satisfied as the Applicant did not knowingly fail or omit to comply with his obligation under subsection 68(2) of the Administration Act. The second element of ‘special circumstances’ also is not met as the Applicant did not claim these exist and there is no evidence to indicate otherwise. As the first and second elements are not satisfied the third element is not applicable.
The Reviewable Decision should be affirmed.
CONSIDERATION AND REASONS
Was the Applicant qualified for YAL between 26 August 2015 and 13 May 2016?
The Applicant does not dispute the calculations of the amounts of the YAL and Scholarship debts, only that they should not have been raised.
For the Applicant to qualify for YAL during the relevant period he must have satisfied the “activity” test in s 540(a)(i) of the Act which requires him to satisfy the Respondent that throughout the period he was ‘undertaking full-time study’.
In order for him to have been ‘undertaking full-time study’ the Applicant must have been:
·enrolled in a course of education at an educational institution – s 541B(1)(a)(i);
·‘undertaking at least three-quarters of the normal amount of full-time study in respect of the course for that period’ – s 541B(1)(b)(iii);
·the course is an approved course of education or study – s 541B(1)(c); and
·be making satisfactory progress towards completing the course – s 541B(1)(d).
The Respondent does not dispute that the Applicant satisfies ss 541B(1)(a)(i), (c) and (d).
Was the Applicant ‘undertaking at least three quarters of the normal amount of full-time study’?
Section 541B(2)(c) provides that the normal amount of full-time study for the BA course in which the Applicant was enrolled at the University is the amount of full-time study equivalent to the average amount of full-time study a person would have to undertake for the duration of the course in order for them to complete it in the minimum amount of time.
As outlined above in paragraph 27, the University calculates the EFTSL for a three-quarter study load as three units per semester or 0.375 EFTSL.
Therefore, in order for the Applicant to have been ‘undertaking full-time study’ during the relevant period he must have been enrolled in at least three units per semester in Semester 2, 2015 and Semester 1, 2016.
The Respondent relies on the information contained in the data match information provided by the University that indicates that from 26 August 2015 to 11 November 2015 the Applicant’s Course EFTSL Workload was 0.3, and from 30 March 2016 to 13 April 2016 his Course EFTSL Workload was 0.0 and therefore he was not ‘undertaking full-time study’ during this period. The AAT1 was satisfied that it was more likely than not that this information was drawn from relevant academic records of the University and is correct and reliable.
The evidence before this Tribunal, as detailed in paragraph 34 above and confirmed by the Applicant in his oral evidence, is that he was enrolled in four units in Semester 2, 2015 towards his BA degree, being two Arts units and two Law units. This supports a finding that in Semester 2, 2015, until he retroactively withdrew from these four units on 28 October 2015, the Applicant’s Course EFTSL Workload was 0.5, which exceeded the 0.375 EFTSL to satisfy the requirement of ‘full-time study’. This is not consistent with the data match information provided by the University to Centrelink, detailed in paragraph 29 above, which indicates that from 26 August 2015 to 11 November 2015 the Applicant’s Course EFTSL Workload was 0.3, or the equivalent of two units. The recorded Course EFTSL Workload figure provided by the University to Centrelink did not change throughout this period, including after 28 October 2015, despite the fact the Applicant was approved for retroactive withdrawal for four units on this date.
The evidence before the Tribunal, as detailed in paragraph 41 above and confirmed by the Applicant in his oral evidence, is that in Semester 1, 2016 the Applicant was enrolled in four Arts units towards his BA degree. This supports a finding that, until he withdrew from these units in May 2016, the Applicant’s EFTSL in Semester 1, 2016 was 0.5 which exceeded the 0.375 EFTSL to satisfy the requirement of ‘full-time study’. This is not consistent with the information provided by the University to Centrelink which indicates that from 30 March 2016 to 13 April 2016 the Applicant’s Course EFTSL Workload was 0.
The evidence relied on by the Respondent from the data match information provided by the University was disputed by the Applicant as an inaccurate record of his ‘actual workload’. The Respondent did not seek to provide clarification of how the ‘Course Workload EFTSL’ figure is calculated by the University, nor did it attempt to reconcile the figures provided by the University with the unit enrolment and withdrawal information in relation to the Applicant detailed above in paragraphs 29, 34, 35 and 36, which the Respondent did not contest.
Based on the evidence before it, the Tribunal accepts the account of the Applicant, as supported by the documentary information, in relation to his enrolment and study in units for his BA degree in Semester 2, 2015 and Semester 1, 2016. It prefers this evidence over that of the data match information provided by the University to the Respondent, for reason that it does not accurately reflect changes in the Applicant’s enrolment effected by his retroactive withdrawal from four units on 28 October 2015, and therefore its accuracy and reliability is cast into doubt. Accordingly, the Tribunal finds that during the period 26 August 2015 to 13 May 2016 the Applicant’s Course EFTSL Workload was 0.5, and he was therefore ‘undertaking full-time study’.
The Tribunal is satisfied that the Applicant met the requirements of s 541B(1)(b)(iii) of the Act during the relevant period. As the Applicant also satisfied the other requirements of s 541B(1) of the Act at this time, the Tribunal finds that he met the ‘activity test’ in s 541(1)(a) of the Act. Accordingly, the Applicant was qualified for YAL during the period 26 August 2015 to 13 May 2016 - section 540(a)(i) of the Act.
The Tribunal therefore finds that as the Applicant was qualified for YAL during the period 26 August 2015 to 13 May 2016, there is no YAL debt owed by the Applicant arising by the operation of section 1223(1) of the Act.
Was the Applicant qualified for the Scholarship between 1 July 2015 and 31 December 2015?
As the Tribunal is satisfied that the Applicant qualified for YAL during the period 26 August 2015 to 13 May 2016, it finds that the Applicant also qualified for the Scholarship he was paid for the period 1 July 2015 to 31 December 2015.
The Tribunal therefore finds that there is no Scholarship debt owed by the Applicant arising by the operation of section 1223(1) of the Act.
DECISION
The decision under review is set aside, and in substitution, a decision is made that the Applicant qualified for Youth Allowance during the period 26 August 2015 to 13 May 2016, therefore there is no Youth Allowance and Scholarship debt owed by the Applicant arising under section 1223(1) of the Social Security Act 1991 (Cth).

I certify that the preceding 77 (seventy- seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

.......................[sgd].................................................
Associate
Dated: 29 August 2019

Date(s) of hearing: 14 May 2019

Applicant: In person

Solicitors for the Respondent: Mr S Thompson - Department of Human Services

[2019] AATA 2963

29 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date(s) of hearing:	14 May 2019
Applicant:	In person
Solicitors for the Respondent:	Mr S Thompson - Department of Human Services