White; Secretary, Department of Education, Science and Training and
[2007] AATA 1315
•11 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/284
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EDUCATION SCIENCE AND TRAINING Applicant
And
BRADLEY WHITE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date11 May 2007
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - austudy - activity test - qualifying study - progress rules - allowable study time applies on enrolment - decision affirmed
Administrative Appeals Tribunal Act 1975 s 34J
Social Security Act 1991 ss 568, 569, 569A, 569H
Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 s.3
Re Priest and Secretary, Department of Family and Community Services [2002] AATA 1191
Re Martinsen and Secretary, Department of Family and Community Services [2003] AATA 801
REASONS FOR DECISION
11 May 2007 Mr S. Webb, Member 1. Bradley White completed a Bachelor of Social Science (Recreation and Human Movement) degree in 1999. He commenced a Bachelor of Health Science (Podiatry) degree in 2005. He claimed and was granted Austudy payments. In June 2006 Centrelink decided to suspend Mr White’s Austudy payments because he had not completed the Bachelor degree course within the allowable study time. Subsequently the Social Security Appeals Tribunal considered the matter and decided to set aside the decision, deciding instead that Mr White was entitled to Austudy payments. The Applicant Secretary contests that decision and has placed the matter before the Tribunal for review.
2. The issue for determination is whether Mr White was entitled to Austudy payments on 22 June 2006 and whether the decision to cancel his Austudy payments was the correct or preferable decision.
3. With the agreement of the parties, and it being appropriate to do so, the matter is determined on the papers, without a hearing, pursuant to s.34J of the Administrative Appeals Tribunal Act 1975.
4. The essential facts are not in dispute. I find as follows. Mr White was born on 14 May 1979. In 1997 Mr White unsuccessfully applied to enrol in a Bachelor of Social Science (Recreation and Human Movement) Degree course at the Charles Sturt University. Instead he enrolled in an Open Learning course at the University. In 1998 Mr White successfully applied for enrolment in the 2nd year of the Bachelor degree course, and received credits for the subjects undertaken by Open Learning[1]. He subsequently completed the Bachelor of Social Science (Recreation and Human Movement) Degree in 1999[2].
[1] T5 folio 20
[2] T9 folio 38 refers
5. In February 2005 Mr White enrolled in a four-year Bachelor of Health Science (Podiatry) Degree course at the Charles Sturt University[3]. On 24 February 2005 he lodged a claim for Austudy[4], in which he indicated that he would be undertaking semesters 1 and 2 on a full time basis[5]. Austudy was granted and Mr White was paid Austudy until 22 June 2006, when his payments were suspended[6]. The reason stated was that the course was not completed within the “specified time”. That decision was affirmed on reconsideration[7]. On 26 July 2006 Mr White completed a Study Details form in which he stated that he was undertaking the second year of the four-year Bachelor of Health Science course on a full time basis[8]. On Mr White’s account to the Social Security Appeals Tribunal, the University required him to enrol in all the subjects he intended undertaking during semesters 1 and 2 in 2006 by 31 October 2005, and he did so[9]. I accept that evidence and so find. It is not in dispute and is agreed that Mr White was not enrolled in any year-long subjects in 2006 and there were no year-long subjects in the course.
[3] T7 and T8 refer
[4] T9
[5] T9 folio 39
[6] T10 folio 49
[7] T11, T15 and T17 refer
[8] T12 folio 56
[9] T2 folios 3-4 refer
6. In the Applicant Secretary’s submission the decision to cancel Mr White’s Austudy payments on 22 June 2006 was correct because Mr White did not satisfy the activity test at that time. The Secretary asserts that Mr White’s allowable study time for the Bachelor of Health Science (Podiatry) Degree course is four and a half academic years. The Secretary says that as Mr White previously completed a 3-year Bachelor Degree course in 1999 he had one and a half academic years of allowable study time when he enrolled in his present 4-year Bachelor Degree course, and thus his allowable study time was exhausted on completion of the first semester of the second year of the Bachelor Degree course. The Secretary submits that the allowable study time test applied to Mr White’s enrolment for the second semester of that academic year, at which time he had exhausted his allowable study time. Thus, when the decision to cancel Mr White’s Austudy payments was made, the Secretary asserts that he did not satisfy the progress rules and was not undertaking qualifying study. It follows, in the Secretary’s submission, Mr White was not qualified for or entitled to be paid Austudy from the end of the first semester of the second year of the Bachelor Degree course in which he was enrolled at that time.
7. As will appear I do not agree.
8. Under the Social Security Act 1991 in order for a person to qualify for Austudy he or she must satisfy the activity test[10]. The activity test may be satisfied if the person is undertaking qualifying study[11] . In order to be ‘undertaking qualifying study’ the person must be enrolled in an approved course of education or study on a full-time or concessional study-load basis, and must satisfy the progress rules[12]. The progress rules for a full-time tertiary student are set out at s.569H, relevantly:
[10] s.568
[11] s.569
[12] s.569A
“569H(1) A person who is a full‑time student in respect of a tertiary course satisfies the progress rules if:
(a) in the case of a person who is enrolled in the course—on the day on which the person enrolled in the course; or
(b) in the case of a person who is not yet enrolled in the course but intends to enrol in the course—on the day on which enrolments in the course are next accepted;
the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course.”
Four levels of tertiary courses are specified[13]. I note in passing that there is scant evidence before me concerning the level of the Open Learning tertiary course Mr White undertook in 1997. The allowable study time is to be calculated pursuant to subs 569H(3). Matters that are to be disregarded in determining whether a person has exceeded the allowable study time are set out at subs 569H(7).
[13] subs 569H(8)-(12)
9. Thus, it can be seen that the allowable study time test must be applied on the day of enrolment in the particular course[14]. If on that day a full-time student in a tertiary course has not exceeded the allowable study time for that course then he or she has satisfied the progress rules and the test will only arise again for determination on a subsequent enrolment[15]. As it appears to me it is necessary and appropriate to adopt a progressive approach to the issue of enrolment in a course – a person may be required to enrol more than once, periodically or incrementally or in response to changed circumstances, at an educational institution in order to complete a course. The construction of the Austudy provisions, see subparagraph 569H(1)(b) for example, permits an interpretation to address that prospect. I am satisfied that that approach is consistent with the intention of the Legislature. The Austudy provisions were introduced by the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998[16]. Consideration of the Explanatory Memoranda concerning these measures in the Bill prior to enactment confirms that a periodic or incremental approach to enrolment was intended. The following remarks concerning qualifying study are to the point:
“The intention to re-enrol element reflects the problem that, in practice, a person can be required to enrol at an educational institution several times (characteristically each year in the case of tertiary studies) during the course of the one course of study. If actual enrolment were the only relevant factor in determining whether a person is a qualifying student, there would be periods when a person who intends to continue in full-time studies, or who is part way through a course of study, would no longer fall within the definition. It would mean that qualifying students would not be able to satisfy the activity test during these periods (for example, vacation times) despite their intention to remain in education ...”
[14] subp 569H(1)(a)
[15] See Re Priest and Secretary, Department of Family and Community Services [2002] AATA 1191; Re Martinsen and Secretary, Department of Family and Community Services [2003] AATA 801
[16] s.3, Schedule 1, Item 6
10. Thus, for present purposes, it is necessary to determine when Mr White enrolled in the Bachelor degree course he was undertaking. The progress rules, and the allowable study time test, will apply in relation to each such enrolment.
11. The evidence is that Mr White enrolled in the Bachelor degree course in February 2005 and thereafter he was required to re-enrol, progressively, on an annual basis. Thus, on 31 October 2005 he was required to enrol in the second year of his Bachelor degree course in 2006 and to nominate the particular subjects he intended undertaking during each semester in that year. There is no evidence that Mr White was required to re-enrol again in order to undertake the second semester of study in his course each academic year. Nevertheless, in the event that Mr White decided to change the course or subjects in which he was enrolled, or if units of the course in which he was enrolled were no longer available, it is likely enough that he would be required to re-enrol in a different course or in different units. However, there is no evidence of any such change in his enrolment or re-enrolment during the 2006 academic year.
12. Even though Mr White was enrolled in semester-based subjects, his enrolment on 31 October 2005 was in effect for the second year of his Bachelor degree course during both semesters of the 2006 academic year. It is not disputed that Mr White satisfied the activity test on 31 October 2005, when he enrolled in the second year of the Bachelor degree course. In the absence of any evidence that Mr White was required re-enrol on a semester by semester or unit by unit basis, or that there was any change in his enrolment during the 2006 academic year, I am reasonably satisfied that Mr White did not re-enrol in a course on or about 22 June 2006. I so find. It appears likely that he was subsequently required to re-enrol on 31 October 2006 for the third year of the Bachelor degree course. Thus, the progress rules and the allowable study time test would be enlivened and applied at that point of re-enrolment.
13. It follows therefore that Mr White did not fail to satisfy the progress rules on 22 June 2006. There is no evidence that he re-enrolled in a course prior to the commencement of the second semester of the 2006 academic year. Thus the allowable study time test was not applicable and it cannot be said that he failed to satisfy the progress rules at that time. I so find.
14. In conclusion, Mr White was entitled to Austudy payments on 22 June 2006 and was not disentitled by the allowable study time test at that time. It follows that the decision under review is affirmed.
15. Finally, it is not for me to determine when Mr White’s allowable study time for his bachelor degree course expired. That calculation requires detailed information concerning Mr White’s progress in the course and any previous courses at the same level, and careful consideration of the matters to be disregarded pursuant to subs 569H(7). What can be said is that the allowable study time for the Bachelor of Health Sciences (Podiatry) Degree course, being a four-year course with no year-long subjects, is four and a half academic years. In the Applicant Secretary’s submission the three-year Bachelor degree course Mr White completed in 1999 counts against that total. However, on the evidence before me that is not clear. Mr White asserts, and it was not disputed, that he was not accepted into the Bachelor degree course of his choice in 1997 and he enrolled in an Open Learning course. It is not clear that the Open Learning course is a course at the same level as a Bachelor degree course for the purposes of subs 569H(8)[17]. If the Open Learning course is not at the same level then the time Mr White spent on that course may not count against the allowable study time for his present Bachelor degree course for the purposes of subs 569H(1). That is a matter for the consideration of others, in relation to further evidence, when the allowable study time test is applied consequent upon Mr White’s re-enrolment, presumably on or about 31 October 2006.
[17] subs 569H(9)-(12) refer
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
AssociateDate of Review 5 April 2007
Date of Decision 11 May 2007
Representative for the Applicant Self-represented
Solicitor for the Respondent Andrew Klein
Centrelink Legal Services Branch
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