Van Wirdum and Secretary, Department of Family and Community Services

[2004] AATA 239

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 239

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1401

General Administrative Division		)
Re		Richard Van Wirdum

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Mr M A Griffin, Member

Date9 March 2004

PlaceSydney

Decision The decision under review is affirmed

[Sgd]  Mr M A Griffin
  Member

CATCHWORDS

Social Security - Pension Education Supplement - undertaking qualifying study - approved course of education or study - Master’s degree - decision affirmed

Social Security Act 1991 sections 1061PA, 1061PB and 1061PC

Student Assistance Act 1973 section 5D

Ministerial Determination of Education Institutions and Courses Under Subsection 3(1) and 5D(1) of the Student Assistance Act 1973, Determination No. 2002/1

REASONS FOR DECISION

9 March 2004        Mr M A Griffin

1.      This is an application by Richard Van Wirdum (“Mr Van Wirdum”) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 6 August 2003. The SSAT affirmed the decision of a delegate of the Secretary dated 5 June 2003 that the Applicant was not eligible for Pension Education Supplement (“PES”) under the Social Security Act 1991 (“the Act”).

2. At the hearing on 13 February 2004 Mr Van Wirdum represented himself and Mr James Larcombe an advocate with Centrelink represented the Respondent. The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T9), a Statement from Mr Van Wirdum undated, marked A1, an extract from the Guide to Social Security Law, marked A2 and the Respondent’s Statement of Facts and Contentions marked R1.

Background

3. Mr Van Wirdum commenced a Graduate Certificate in Community management at the University of Technology, Sydney, in January 2002, which he completed by the end of 2002. He then commenced a Diploma in Community Management in January 2003, which he completed in June 2003. During this period Mr Van Wirdum was in receipt of the PES under the Act. At the end of June 2003, prior to him commencing the Masters of Management in Community Management component of this series of courses (“the Masters course”), the PES was cancelled by the Respondent. Mr Van Wirdum’s claim for PES in respect of the Masters component of his studies was denied on the basis that the Masters course was not an “approved course of education or study” under Section 1061PB(1)(b), and therefore, Mr Van Wirdum did not qualify for PES.

Issue

4.      The issue is whether or not the Master’s course is “qualifying study” for the purposes of section 1061PA of the Act.

Legislation

5. Section 1061PA of the Act provides that a person is qualified for Pension Education Supplement where subsections (a)-(d) are satisfied. Section 1061PA, subsections (b)-(d) are not disputed in this case. The requirement under Section 1061PA(1)(a) is that the person must be “undertaking qualifying study (see Subdivision B)”.  Subdivision B, section 1061PB(1) defines “undertaking qualifying study” as follows:

“1061PB(1) For the purposes of this Part, a person is undertaking qualifying study if the Secretary is satisfied that:

(a)       the person:

(i) is enrolled in a course of education at an educational institution; or

(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or

(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and

(b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 1061PC); and

(c)the person is a full-time student or a concessional study-load student in respect of that course (see sections 1061PD and 1061PE); and

(d)       the person satisfies the progress rules (see sections 1061PH and 1061PI).”

6.        Section 1061PB(1), subsections (a), (c) and (d) are not disputed in this case.  The interpretation of section 1061PB(1)(b) relies on section 1061PC.

7.        Section 1061PC defines an “approved course of education or study” as follows:

“for the purposes of Paragraph 1061PB(1)(b) a person is undertaking an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.”

8.        Section 5D of the Student Assistance Act 1973 allows for the Minister to determine in writing that for the purposes of the Student Assistance Act 1973 (“the SAA”) “a course of study is a secondary course, or a tertiary course”.

9.        The Determination of Education Institutions and Courses, Determination No. 2002/1 (“the Determination”) states, at clause 7:

"7(1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.

(2) For the purposes of the Act, no course accredited at Masters or doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2."

SCHEDULE 2 – TERTIARY COURSES

Column 1 – Course

Column 2 – Educational 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

Open Learning – a programme of assessment based study provided through the Open Learning Agency, Melbourne

Higher education institution participating in the Open Learning programme

Registered training organisation participating in the Open Learning programme

Combined course – Higher education and vocational education and training, consisting of concurrent study in an accredited higher education course and a vocational education and training programme leading to the award of a separate qualification at each institution and that is classified in each institution’s handbook as a combined course

Higher education institution

Registered training organisation

Integrated undergraduate/postgraduate course leading to a Masters degree, excluding that year or years of the integrated course in excess of the normal full-time duration of the related undergraduate accredited higher education courses that are not at the Masters Level. (That is, excluding the year or years relating to study at the Masters level).

Higher education institution.

10.      Section 1061PB(2) provides that:

“A person is not undertaking qualifying study if the person:

(a) is employed on a full-time basis as an apprentice or trainee under an industrial instrument and has a training agreement (however described) with a training authority (by whatever name called) of a State or Territory; or

(b)        has completed a course for:

(i)        a degree of Master or Doctor at an educational institution; or

(ii) a qualification at a foreign institution that is, in the Secretary's opinion, of the same standing as a degree of Master or Doctor at an educational institution.”

Evidence

11.      Mr Van Wirdum gave oral evidence in the proceedings.  The oral evidence closely followed Mr Van Wirdum’s written statement at A1.  The facts contained therein are not in dispute. The series of courses undertaken by Mr Van Wirdum were separate courses and it was only after successful completion of the Graduate Certificate that he was able to undertake the Diploma and then on successful completion of the Diploma that he could undertake the Master’s course. Mr Van Wirdum said he successfully completed the Master’s and is now undertaking another Master’s degree.

Mr Van Wirdum’s Submissions

12.      Mr Van Wirdum raised various arguments in relation to why the Masters course, which he has now completed, should be found to be included in the Determination.  He argued that the Determination of the Minister whose portfolio governs administration of the SAA should be regarded as a document only and not as enacted legislation.  As a consequence Mr Van Wirdum argued that the Tribunal should have the authority to “determine the validity of such instrument and order any changes the Tribunal feels is needed” (A1). 

13.      The Applicant’s second submission was that “the Minister’s determination in what constitutes a ‘qualifying course’ is discriminatory”.

14. The third argument that Mr Van Wirdum raised was that section 5D of the SAA is in conflict with section 1061PB(2)(b) of the Act. Section 1061PB(2) outlines where PES will not be granted. One of the situations as set out in subsection 1061PB(2)(b) is where a person has “completed a course for (i) a degree of Master or Doctor at an educational institution”. Here, Mr Van Wirdum contends that since he had not completed the Masters course from July 2003 to December 2003, he should be entitled to PES under section 1061PB(2)(b) of the Act.

The Secretary’s Submissions

15. The Secretary submitted that the Masters Course completed by Mr Van Wirdum does not fall within Schedule 2 of the Minister’s Determination and therefore, he is not entitled to PES. The Secretary also argued that Section 1061PB(2) is only relevant once s1061PA is satisfied. Here, since Mr Van Wirdum does not satisfy s1061PA, the subsequent section does not come into consideration.

Consideration of the Issues

16.      This Tribunal’s role is to arrive at the correct and preferable decision.  In doing so, it stands in the shoes of the original decision-maker and is bound by the same statutory provisions and delegated legislation as is the original decision-maker. Section 5D of the SAA authorises the Minister to determine in writing that a course is secondary or tertiary. Consequently any such Ministerial Determination has the force of the law of the Commonwealth and is binding on the Tribunal. On the evidence, the Masters of Community Management undertaken by Mr Van Wirdum is not a Combined course, or an Integrated undergraduate/postgraduate course, or any of the other Masters level courses expressly specified in Schedule 2 as required by paragraph 7 of the Determination.

17. Furthermore, Mr Van Wirdum has not identified and the Tribunal is not aware of, any legislation concerning unlawful discrimination, which could apply in the particular circumstances of this case to override the provisions of the SAA and the Act.

18. Mr Van Wirdum articulated an apparent contradiction between the authorising provision under section 5D of the SAA, and section 1061PB(2) of the Act. The Guide to Social Security Law (A2) only reiterates section 1061PB(2) in the context of generally defining “qualifying study”.  On the face of it, applying both provisions to Mr Van Wirdum’s case could produce contradicting results.  The former indicates that the Masters course that Mr Van Wirdum has undertaken does not qualify him for PES, as it is not included in the Determination.  The latter provision, by excluding those that have already completed a Masters course from receiving PES, may suggest that it is including those that have not yet completed a Masters course.

19.      However, on the proper construction of Section 1061PB(2), I agree with the SSAT decision, dated 6 August 2003, which states that “Section 1061PB(2) does not state, expressly or by implication, what does amount to qualifying study.  The section creates no entitlement: it merely qualifies what could otherwise amount to qualifying study under section 1061PB(1).”  Thus, Section 1061PB(2) will only be applied where section 1061PB(1) is satisfied and in this case section 1061PB(1) is not satisfied.  

20. Mr Van Wirdum was an impressive witness. He presented his arguments clearly and had plainly thought them through very carefully. The Tribunal has considerable sympathy with his position. Indeed, Mr Larcombe for the Respondent conceded that there appears to be some discrepancy between section 5 of the SAA and section 1061PB of the Act, as they affect post-graduate students in Mr Van Wirdum’s position. However, I find that the legislation as currently drafted does not allow the course of study, which Mr Van Wirdum undertook at the Master’s level to be eligible for the PES. Since he has not satisfied the provisions of the SAA, PES cannot be granted to Mr Van Wirdum.

DECISION

21.      The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Griffin

Signed:         Neil Glaser
  Associate

Date of Hearing  13 February 2004
Date of Decision    9 March 2004
Representative for the Applicant    Mr Richard Van Wirdum (Self Represented)
Advocate for the Respondent         Mr James Larcombe