Williams and Secretary, Department of Family and Community Servic Es
[2003] AATA 726
•1 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 726
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/202
GENERAL ADMINISTRATIVE DIVISION ) Re HANNAH WILLIAMS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date1 August 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) R G Kenny
Member
CATCHWORDS
YOUTH ALLOWANCE – hearing in the absence of the parties - commencement date of youth allowance – undertaking study in respect of a course
Administrative Appeals Tribunal Act 1975 ss 34B, 37
Social Security Act 1991 ss 540, 541, 541BREASONS FOR DECISION
1 August 2003 Mr R G Kenny, Member Application
1. Hannah Williams (the applicant) applied for youth allowance which is payable under the Social Security Act 1991 (the Act) in relation to a course of study in second semester 2002 at the University of Southern Queensland. On 20 June 2002, a delegate of Centrelink on behalf of the Secretary, Department of Family and Community Services (the respondent) granted the claim with payments to commence on 22 July 2002. The applicant disputed the commencement date but the decision was affirmed on 8 November 2002 by an authorised review officer and, in turn on 19 February 2003, by the Social Security Appeals Tribunal. On 4 March 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. The Administrative Appeals Tribunal Act 1975 (the AAT Act) makes provision for a hearing to be conducted in the absence of the parties. In that regard, section 34B of the AAT Act reads:
“34B If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.”
3. Both the applicant and the respondent consented in writing to the matter being determined without a hearing and, in accordance with the terms of section 34B of the AAT Act, I am satisfied that it is appropriate to proceed in that manner.
4. Materials before the Tribunal comprised the documents prepared in accordance with section 37 of the AAT Act (the T documents - T1 to T24) and a statements of facts and contentions from the respondent.
Issues and Legislation
5. As noted above, youth allowance is payable under the Act and the provisions relevant in this matter read:
“Qualification for youth allowance-general rule
540. Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:
(a) either of the following applies:
(i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
(ii) the person is a CDEP Scheme participant (see section 1188B) in respect of the period;
(b) throughout the period the person is of youth allowance age (see Subdivision D); and
(c) throughout the period the person satisfies any requirements relating to Youth Allowance Activity Agreements that apply to the person under Subdivision E; and
(d) throughout the period, the person:
(i) is an Australian resident; or
(ii) is exempt from the residence requirement within the meaning of subsection 7(7).
Activity test
General
541.(1) Subject to section 541A and subsection (3) of this section, 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); or
(b) the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or
(c) the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or
(d) the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).
…
Undertaking full-time study
General
541B.(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
(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 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) in a case to which subsection (1A) does not apply-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
(iv) in a case to which subsection (1A) applies-at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and
(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.”
6. The issue for the Tribunal is the determination of the appropriate date for the commencement of the applicant’s youth allowance.
Applicant’s Contentions
7. The applicant set out her contentions in her application for review in the following way:
“My argument is based on the definition of undertaking, the literal definition being a ‘pledge or promise' (Australian Oxford Dictionary). I consider the act of enrolling fits this definition. When I enrolled I formally agreed to perform the required course of study.
The section applicable, 541 B (1), provides for two categories of people: those who are enrolled in a course and those who are not. The SSAT members […] did not agree with my definition of the word, undertake, in their decision (19 February, 2003). They consider undertake to be fulfilled only upon commencement of studies and that sections (a)(i) (b)(i) of the Act are satisfied only through engaging in or performance of study.
The SSAT interpretation would raise the absurdity of fulltime student status being awarded to people who are not enrolled, this status and its entitlements then being lost upon enrolment, only to be reinstated with commencement of studies.
This situation can be illustrated in the Social Security Act. People who at one time satisfy sections (a)(ii) or (iii) and (b)(ii) when not enrolled, lose their entitlements upon enrolment, as these sections no longer apply. According to the SSAT interpretation, sections (a)(i) and (b)(i) only apply when the studies commence, generating a limbo in which people are not covered by any sections of the legislation.
This limbo creates a period of time in which people, no longer being supported, are required to apply for jobs they have no intention of keeping, should an employer take them on despite the knowledge that they will leave within weeks.
Another situation, which should arise under the SSAT's interpretation, should be where continuing students have their support cut during the holiday period between semesters. While they are enrolled to continue with the same course, they are not ‘undertaking’ their studies, as they have yet to recommence.
The SSAT's interpretation of the Act would allow those who have made no formal obligation to perform full-time studies to be supported, but the moment such an obligation is made, support is lost. I do not believe this was the intention of the legislators when constructing the law. The only explanation to account for this anomaly would be SSAT's employing the incorrect definition of the word ‘undertaking’.”
8. In that statement, the applicant did not nominate a date from which she believed her youth allowance should be payable but, in her evidence to the Social Security Appeals Tribunal and in earlier documentation to the respondent, she expressed the opinion that the relevant date should be 28 June 2002, the date when she enrolled in the courses in her program.
Respondent’s Contentions
9. The respondent set out its position in its statement of facts and contentions.
10. It was submitted that sections 540 and 541 of the Act require an applicant for youth allowance to satisfy the activity test and that this will be done when a student is enrolled in an approved course of study and undertaking study. Reference was made to section 541B of the Act and it was submitted that this section clearly differentiates between being enrolled to study and undertaking study and provides both for students continuing study and for students commencing study.
11. For continuing students, it was submitted that the test is intention to enrol and to actually continue study whereas for new students the test is enrolment and actual commencement of study. It was submitted that the applicant was a new student and needed to be both enrolled and undertaking study to qualify for youth allowance.
12. Reference was made to the Macquarie Dictionary, 1st edition, Macquarie University Press 1981 and the definition of "undertaking" as:
“Undertaking -v. t. 1. To take on oneself (some task, performance, etc.); to take in hand; essay; attempt.”
13. It was submitted that "undertaking", in the sense in which it is used in the Act, is clearly a verb, and not a noun and that, as such, in order to be eligible to receive youth allowance, the applicant must be both enrolled in a course, and studying in that course. It was submitted that it was not sufficient to simply be enrolled and to intend to study in that course following the commencement of the semester; that she was not actually undertaking study until the teaching semester commenced on 22 July 2002; and that, therefore, she could not qualify for youth allowance until that date.
Consideration
14. Section 540 of the Act requires that, in order to qualify for youth allowance, the applicant must satisfy the activity test which, in accordance with section 541 of the Act, will be satisfied if she was undertaking full-time study as provided for in section 541B of the Act. That section sets out four requirements in paragraphs (a) - the need to enrol, (b) - the need to be undertaking full-time study, (c) - the need for the course to be approved and (d) - the need for satisfactory progress. Paragraphs (c) and (d) are not in issue in this matter.
15. The enrolment requirement in paragraph 541B(1)(a) of the Act varies according to whether a student is continuing with a course of education or one who is commencing study. Sub-paragraphs 541B(1)(a)(ii) and (iii) of the Act relate to students continuing with study, either in the same course or in another course but, in either case, without taking a break from study apart, of course, for the interim between periods of study. For these continuing students, the enrolment requirement is that of having an intention to enrol when enrolments in the course are next accepted. In that way, they meet the requirement of paragraph (a) without actually being enrolled and this allows them, provided the other requirements of the provision are met, to continue to receive youth allowance between periods of study such as during mid-year or end-of-year vacation periods.
16. Sub-paragraph 541B(1)(a)(i) of the Act relates to students other than those who are continuing and, therefore, to those commencing a course of study. For these students, the enrolment requirement is not based on an intention to enrol but, rather, actual enrolment.
17. In her claim for youth allowance lodged in June 2002, the applicant declared that she was receiving income from an employer (see T4/20) and gave a history of continuing employment from 10 September 2001 after she had completed a period of full-time study (see T4/21). Also in evidence was an Employment Separation Certificate completed by her last employer in which it was stated that the applicant last worked on 21 June 2002 (see T8/28). On that evidence, I am satisfied that, when she lodged her claim for youth allowance, the applicant was not a continuing student for the purposes of paragraph 541B(1)(a) of the Act and that she was, therefore, required to be enrolled in order to qualify for youth allowance. In evidence was an Enrolment Notice, issued on 28 June 2002, from the University of Southern Queensland which shows that the applicant was enrolled in three courses in the Associate Diploma of Business and, on that evidence, I am satisfied that the enrolment requirement is met.
18. The need to be undertaking full-time study is provided for in sub-paragraphs 541B(1)(b)(i) and (ii) of the Act, with the second of those provisions referring to students intending to enrol and that relates to continuing students. The first of those provisions relates to students like the applicant who are commencing study and, to qualify for youth allowance, the applicant must have been undertaking the amount of study described in sub-paragraphs 541B(1)(b)(iii) and (iv) of the Act. The amount of study is not in dispute in this matter. The issue is when the applicant began to undertake that amount of study.
19. Classes in the applicant’s various courses commenced on 22 July 2002 and the respondent has determined that to be the date on which she commenced to undertake those courses. This was on the basis that the term “undertaking” in the Act means to take on some task, to take in hand or to attempt and the respondent was of the opinion that this did not occur until classes commenced on 22 July 2002. The applicant has contended that she was undertaking the course from the date of her enrolment and has relied on the meaning of “undertaking” as being a pledge or a promise and submitted that her act of enrolling met that description.
20. Dictionary support can be found for each of the interpretations given above. For example, the Concise Oxford Dictionary (7th Edition) refers to “undertake” as being used in a verbal sense as meaning:
“to bind oneself to perform; to make oneself responsible for; to engage in; to enter upon; to accept an obligation; to promise.”
21. It also refers to ”undertaking” as being used as a noun to mean:
“work undertaken; pledge; promise.”
22. Whilst it may be the case that the applicant, by enrolling, was, in a sense, pledging or promising to work on the courses in which she enrolled, I am satisfied that this is not the meaning intended for the term as it is used in section 541B of the Act. The section makes a clear distinction between enrolling and undertaking study and I am satisfied that the term “undertaking” is used to describe the process of engaging in or entering upon the course of study. To hold otherwise would be to equate the process of enrolling in a course with that of undertaking that course. Also, the purpose of section 541B is to define the activity test required by section 541 of the Act. The activity of undertaking full-time study does not commence merely on completing the enrolment procedure. It starts when the course of study actually begins and I am satisfied that, in this matter, this was when the applicant commenced her study on 22 July 2002.
23. I do not accept the applicant’s contention that this interpretation would recognise a “limbo period” for continuing students. Contrary to her submission, the provisions do not operate so as to disqualify a recipient of youth allowance from that allowance on re-enrolling in a course of study.
Decision
24. The decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
Associate
This Matter was Heard on the Papers
Date of Decision 1 August 2003
2
0
0