Wecker and Secretary, Department of Education, Science and Training
[2007] AATA 1155
•22 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1155
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/843
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL WECKER Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
DECISION
Tribunal Ms N Isenberg Date22 March 2007
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
..................[sgd]............................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – Austudy paid on basis of enrolment in bachelor degree – change of course enrolment to a Master degree – Centrelink not notified – debt raised – Austudy recipient must be undertaking qualifying study as stipulated in the Social Security Act 1991 – Master degree is not qualifying study – debt owed to the Commonwealth – no special circumstances to waive payment of the debt
LEGISLATION
Social Security Act 1991, sections 568, 568(a), 569, 569A, 569B, 569(2)(b), 569(2)(b)(i), 1223(1), 1236(1), 1236(1B), 1237A
Determination of Education Institutions and Courses under subsections 3(1) and 5D(1) of the Student Assistance Act 1973 (No.2002/1 dated 17 October 2002)
CASE LAW
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
22 March 2007 Ms N Isenberg, Member DECISION UNDER REVIEW
1. On 23 June 2006 the Social Security Appeals Tribunal (‘SSAT’) affirmed a decision made by a Centrelink Authorised Review Officer (‘ARO’) on 30 March 2006 to raise and recover an Austudy payment debt of $10,946.20 for the period 27 June 2004 to 22 July 2005 from the Applicant, Mr Wecker.
BACKGROUND
2. On 20 October 2003, Mr Wecker lodged a claim for Austudy payment on the basis that he was enrolled in a Graduate Entry Bachelor of Law degree at the Australian National University (‘ANU’). As a result he was paid Austudy from 13 December 2003 onwards.
3. On 26 June 2004 Mr Wecker ceased to be enrolled in that degree course and subsequently enrolled in a Master of Education in Adult Education at the University of Technology Sydney (‘UTS’) commencing second semester 2004.
4. Centrelink decided that as Mr Wecker was studying for a Master degree, he was not entitled to Austudy. Centrelink decided to raise and recover a debt of $10,946.20, being the total amount of Austudy payment paid between the period 27 June 2004 to 22 July 2005. That decision was affirmed on review by Centrelink and by the SSAT.
ISSUES BEFORE THIS TRIBUNAL
5. The issues before this tribunal are:
· Whether Mr Wecker qualified for Austudy payment during the period 27 June 2004 to 22 July 2005 and if not:
· Whether Mr Wecker owes a debt to the Commonwealth in the amount of $10,946.20 for the period 27 June 2004 to 22 July 2005 and if so:
· Whether there are any grounds not to recover all or part of the debt from Mr Wecker.
LEGISLATION
6. Section 568 of the Social Security Act 1991 (‘the Act’) sets out the general rule for qualification for Austudy payment. Specifically, section 568(a) requires that a person satisfy the activity test which is set out in section 569 of the Act. Section 569 specifies that a person satisfies the activity test if, throughout the period, the person is undertaking qualifying study as that term is defined in section 569A of the Act. For the purpose of section 569A, a person is undertaking qualifying study if, inter alia, the course is an approved course of education or study as defined in section 569B. Section 569B specifies that a course is an approved course of education or study if it is a secondary or tertiary course under the Determination of Education Institutions and Courses under subsections 3(1) and 5D(1) of the Student Assistance Act 1973 (No.2002/1 dated 17 October 2002 (‘the Determination’).
7. Secondary and tertiary courses are set out in Column 1 of Schedule 2 of the Determination and have been reproduced below in their original format. To the extent relevant the Determination provides:
Tertiary Courses
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.
7 (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 provides, so far as is relevant:
…
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.
…
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 course or related undergraduate and postgraduate 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).
CONSIDERATION OF THE EVIDENCE
8. I was greatly assisted by the detailed submissions provided by Mr Wecker.
9. The matter was adjourned on two occasions so Centrelink could provide more information. Mr Wecker provided additional information in response. Mr Wecker made submissions in relation to the determination and those are discussed below.
Did Mr Wecker qualify for Austudy payment during the period 27 June 2004 to 22 July 2005?
10. Mr Wecker’s contention was that the UTS Master of Education in Adult Education (‘the UTS Masters’) fell into one of the categories set out in the Determination at Schedule 2 (quoted above). He addressed each of the entries in the Determination in relation to Masters courses.
Master’s qualifying course
11. Mr Wecker submitted that the UTS Masters course was clearly a ‘Master’s qualifying course’ because it led to a Masters degree.
12. Centrelink submitted, and I agree, that the UTS Masters course is not a ‘Masters’ qualifying course’ as it does not meet the definition of that term contained in section 4 of the Determination which reads as follows:
A bridging course which gives participants the qualifications necessary for entry into a Masters degree course, but does not include any course which forms part of a Masters degree course.
A course at the level of a Masters or Doctoral degree unless otherwise specified in Schedule 2
13. Mr Wecker submitted that a course at the level of Masters was specifically provided for by this dot point in Schedule 2.
14. At the initial hearing the advocate for Centrelink, for reasons which are unclear, was not in a position to address this submission and sought an adjournment. Written submissions and Mr Wecker’s response were provided and further oral submissions were made at the resumed hearing.
15. At that hearing, a comparison was made between the relevant parts of the 1999 Determination which reads as follows:
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.
Column 1 – Course
…Undergraduate or postgraduate accredited higher education course that is an associate degree, associate diploma, diploma, advanced diploma, Bachelor degree, graduate degree, graduate certificate, graduate diploma, a NBCOTP funded course, a 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 Masters or Doctoral degree unless otherwise specified in Schedule 2.
16. In light of the comparison, it is apparent that the 2002 version contains a drafting error. Indeed this was acknowledged in a letter from Murray Kimber, Branch Manager of the Income Support for Students Branch of the Department of Education, Science and Training tendered at the hearing:
It has been a long standing policy of Australian Governments for study undertaken at the level of a Masters or Doctoral degree to not be eligible for income support payments. While the Department considers that the error in the determination is not substantive, because of potential concern over ambiguity, we are nevertheless in the process of drafting a revised Determination which aims inter alia at rectifying this aspect of the formatting.
17. Ms Schuster for the Respondent invited my attention to the explanatory statement:
This determination does not change the coverage of education institutions or courses provided by Determination 1999/2. Some wording has been amended to clarify this coverage and to address changes in terminology in the education sectors since the last review in 1999 (Determination 1999/2).
18. While I agree with Mr Wecker that the 1999 version has been ‘superseded’ by the 2002 version, I accept there to have been a drafting oversight in the more recent version. In its present form it makes no sense, whereas the format in the 1999 version is clear. The explanatory statement confirms the intention as to ‘coverage’ and this greatly assists in confirming that the intention of the 2002 version is the same as the earlier version. Even if this comparison were not available, the present version appears nonsensical. That lack of precision cannot be said to bestow an Austudy entitlement on all Masters students.
19. Mr Wecker agreed that the legislative intention must prevail. The legislation provides that only those accredited Masters and Doctoral courses specifically mentioned in Schedule 2 can be ‘tertiary courses’ for the purpose of the Act, that is, those courses which qualify attending students for financial assistance from the Commonwealth. Schedule 2 does not expressly include the type of Masters degree undertaken by Mr Wecker.
Integrated undergraduate / postgraduate course leading to a Masters degree…
20. Mr Wecker contended that the UTS Masters he undertook is an integrated course because all courses ultimately lead to a Masters degree and that advanced study in Education is not available to those, unlike him, who do not have the prerequisite subjects.
21. The term ‘integrated’ does not have the meaning which Mr Wecker seeks to be attribute to it in his submissions. I agree with Centrelink’s submission that the legislation intends the Masters component of an integrated course to be excluded from the definition of a tertiary course, such that Austudy payment is not payable for that portion. There is no ‘inconsistency of logic’ or ‘legislative inconsistency’ within this definition as Mr Wecker contends.
22. Mr Wecker’s program of study at UTS was not a combined Bachelor/Masters course as there was no exit point from this course that would confer on the applicant the equivalent of a Bachelor qualification.
23. Mr Wecker drew my attention to the following description of integrated courses in Schedule 2 of the Determination:
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 course or related undergraduate and postgraduate 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).
Mr Wecker submitted that the qualifying statement of this description of integrated courses is inconsistent with the remainder of the definition. This assertion cannot be maintained. The sentence merely reinforces and clarifies the definition which precedes it. The phrase ‘leading to’ should be interpreted within the context of the term in which it appears, being ‘integrated undergraduate/postgraduate course leading to a Masters degree’ (emphasis added). ‘Leading to’ cannot be separated from its antecedent, such that it could be argued, as the applicant does, that potentially all courses might lead to a Masters degree.
24. Moreover, the Guide to the Act clearly states that part of certain courses can be approved courses for Austudy payment purposes, including:
·combined Bachelor/Masters degree courses EXCLUDING the year(s) exceeding the normal full-time length of the related bachelor degree course.
25. Again, it is clear that the Guide clearly reflects the principle espoused in the Determination that a Masters course is not a tertiary course unless the conditions specified in Schedule 2 are satisfied - that is, unless it is an integrated course - and that even in those circumstances, the component relating to study at the Masters level is excluded.
26. The UTS Master of Education in Adult Education is not an integrated course and is therefore not a tertiary course for the purpose of section 569B of the Act.
Inconsistency
27. Mr Wecker also contended that because section 569(2)(b) of the Act excludes persons who already have a Masters degree from Austudy, by inference, persons who do not have a Masters degree are not excluded. That section provides as follows:
Persons who do not satisfy the activity test
569(2) A person cannot be taken to satisfy the activity test if the person:
…
(b) has completed a course for:(i) a degree of Master or Doctor at an educational institution
…
Centrelink contended that Mr Wecker had misinterpreted section 569(2)(b)(i) of the Act.
28. It was discussed at the hearing that section 569(2)(b)(i) of the Act has no direct relevance to Mr Wecker’s circumstances given that at the relevant time, he had not completed a Master’s degree.
29. Section 569(2)(b)(i) of the Act provides an exclusion to the activity test, that is, those who already have a Masters degree cannot obtain Austudy to undertake further degrees, even if the courses were approved courses.
30. Therefore I do not agree with Mr Wecker’s interpretation.
31. For completeness and so as to understand the scope of the Austudy provisions I note that Austudy is also available only for a limited number of undergraduate degrees depending on duration.
32. I have come to the view that Mr Wecker’s circumstances do not come within any of the provisions of Schedule 2 of the determination. As such he was not entitled to Austudy after he ceased studying the Bachelor of Laws on 26 June 2004.
Does Mr Wecker owe a debt to the Commonwealth in the amount of $10,946.20 for the period 27 June 2004 to 22 July 2005?
33. Having come to the view that Mr Wecker was not entitled to Austudy payment during the relevant period, pursuant to section 1223(1) of the Act the amount of Austudy paid to him is a debt to the Commonwealth.
Are there are any grounds not to recover all or part of the debt?
34. The Act allows a debt to be written off or waived in limited circumstances. Writing off a debt is possible under section 1236(1) of the Act but none of the conditions set out in section 1236(1B) of the Act apply.
35. Pursuant to section 1237A of the Act, the proportion of a debt that is due solely to administrative error by the Commonwealth must be waived by the Secretary if the payments giving rise to that debt were received in good faith.
36. Mr Wecker was recorded by the SSAT as being unable to recall if he had notified Centrelink of his change of course, although he thought he may have sent a letter after he re-enrolled at UTS. Mr Wecker told me, however, that he had phoned Centrelink to advise of his change in course. At the resumed hearing on 9 February 2007 he recalled instead that he had gone to ANU to collect a cheque payable as a result of the sale of his textbooks and decided to go the Centrelink at Braddon while he was there to advise of his change of course.
37. In support of his final position Mr Wecker provided a copy of a Centrelink ‘screen’, effectively a computer file note, showing an entry on 26 August 2004 which said, amongst other things, ‘no debt’.
38. In response a statement was provided by Ms Sally-Ann Martin of Centrelink, the current manager of student services at Braddon Centrelink. She identified the author of the entry as her predecessor, Ms Lewis.
39. The text of the document giving rise to the entry was as follows:
Txt: Customer Service Officer actioned record on 26 August 2004 regarding General Enquiry for Austudy. Information was obtained via Counter Statement using Internal Channels. Document created by YGZ on 26 AUG 2004.
LISTING REC FROM NSO RE MANUAL RATE ON RCO. IS ENTITLED TO HIGHER BB RATE, BUT SYSTEM IS PAYING AUTO. DON’T NEED RCO CODED. HAVE ENDED FROM DPT+1
40. Ms Schuster explained that the first paragraph arises from the clerk making the record being obliged to enter some codes so as to be able to create an entry. Some or all of these codes (similar to autotext) are entered somewhat haphazardly, then automatically generate a narrative.
41. As to the second paragraph Ms Martin’s statement explained that there was an internal review of the rate at which Mr Wecker – and many others - was being paid. This, it seems, was standard procedure with manually entered rates of payment – Rate Component Override Screen (‘RCO’) and undertaken at the request of the National Support Office. Hence the phrase ‘listing rec from NSO re manual rate on RCO.’
42. The balance of the entry is to the effect that Mr Wecker was being paid correctly. That is, of course, on the basis of the information Centrelink had available to it.
43. Ms Martin stated that there was no likelihood that the entry was generated in respect of information supplied by Mr Wecker about his change in course.
44. On my reading, the first paragraph is equally consistent with Mr Wecker’s account of attending the Centrelink office at Braddon, as it is with Ms Schuster’s explanation of poor entry-making. However, the relevance of the first paragraph falls away when read together with the second paragraph. Mr Wecker’s submission did not attempt to explain the second paragraph, but focused on the first paragraph and the notation: ‘no debt’.
45. I accept Centrelink’s explanation in relation to the first paragraph when read with the second paragraph, as explained by Ms Martin in her written statement. I do not have confidence in Mr Wecker’s account of notifying Centrelink given that his evidence has varied on at least three occasions. His position from the outset of the hearing was that his entitlement to Austudy was consistent from the beginning of his studies, in which case there was no need to contact Centrelink.
46. In any event Mr Wecker was obliged to notify Centrelink within 14 days of his change of course. Notification should have occurred well before 26 August 2004.
47. I can find no administrative error on the part of Centrelink. The debt was incurred when Mr Wecker did not inform Centrelink that he had enrolled in the Masters course at UTS.
Special circumstances
48. A debt may also be waived if there are special circumstances other than financial hardship alone.
49. The term ‘special circumstances’ is not defined in the legislation. However, the term has been examined in a number of cases, most notably in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where Justice Toohey noted:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
50. Mr Wecker told me that his health is generally good other than some problems with his back and groin. He is debt free, with $10,000 in savings. He pays $160 per week in rent. He sees little of his family and has no partner. He told me that his Bachelor degree qualifies him to teach and that he thought a Masters would get him back to the job market faster. He has previously worked in the construction industry as a ‘skilled labourer’, has been a psychiatric nurse and a clerk in the public service. He describes himself as a ‘20 year tax payer’.
51. He gave some evidence about perceived oppression while at university and believed he was subject to a sexual assault and medical negligence while under aesthetic. He is pursing these complaints with the Health Care Complaints Commission. He believed he was the subject of an attempted murder (by poisoning) while at ANU. He was concerned that Centrelink’s approach verged on being treasonous.
52. I do not find Mr Wecker’s circumstances to be unusual, uncommon or exceptional such as to justify making an exception to the general principle of raising and recovering debt as set out in the Act.
DECISION
53. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed:..........[K. Portus ]....................................................
AssociateDate of hearing 8 November 2006, 15 January 2007,
9 February 2007
Date of Decision 22 March 2007
Appearance for Applicant Self-represented
Appearances for Respondent Ms S Mantaring and Ms H Schuster, Centrelink Legal Services Branch
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