Wood and Secretary, Department of Education, Science and Training

[2006] AATA 133

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 133

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/987

GENERAL ADMINISTRATIVE DIVISION

Re:PENELOPE SUSAN ANGELA

(PENNY) WOOD

Applicant

And: SECRETARY,
  DEPARTMENT OF EDUCATION,

SCIENCE AND TRAINING

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:17 February 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

Sgd: Regina Perton, Member

SOCIAL SECURITY  AUSTUDY – overseas study as part of University of Melbourne accredited course – claim lodged while applicant overseas – ineligible due to requirement to be in Australia when lodging claim –  decision affirmed

Social Security (Administration) Act 1991   ss 11,16, 29

REASONS FOR DECISION

17 February 2006  Regina Perton, Member

1.      Penny Wood is studying for a combined Arts/Science degree at the University of Melbourne.  The University of Melbourne, through its Melbourne Abroad Exchange Program allows students enrolled in its courses to undertake some subjects at an overseas university.  Miss Wood has chosen to study some subjects at Birmingham University with the agreement of the University of Melbourne.    As a result of the differing academic years in the United Kingdom and Australia, and because Birmingham University’s courses are organised on a yearly rather than on the basis of  semesters. Miss Wood had a break of several months in her studies.  After completing the 2003 Australian academic year, she went to the United Kingdom where she worked for a few months to help support her future studies.  She was not eligible for Austudy during the first nine months of 2004 prior to commencing at Birmingham University. 

2.      After enrolling for full-time studies at Birmingham University, commencing on 27 September 2004, Miss Wood lodged a claim for Austudy payments with Centrelink on 8 November 2004.  Her father, Harvey Wood, lodged the claim on his daughter’s behalf as she was in the United Kingdom undertaking her studies.  Centrelink administers Austudy on behalf of the Department of Education, Science and Training.  Centrelink records indicate that Mr Wood lodged a duplicate claim on 14 December 2004, stating, original has been lost.   Accompanying the claim were documents showing that Miss Wood’s Birmingham University subjects were being undertaken as part of her University of Melbourne course. 

3.      On 31 January 2005, Mr Wood was advised that his daughter’s claim had been rejected because she was not in Australia when the claim was lodged.  Centrelink sent a letter to Miss Wood confirming the rejection of the claim on 15 February 2005.

4.      On 31 January 2005(T19), Miss Wood lodged an application for review of the decision by an authorised review officer (ARO) of Centrelink.    In an accompanying statement, she submitted that as an Australian citizen gaining a tertiary qualification through a legitimate overseas study exchange program, she should be eligible for Austudy payments.  She stated that she only became aware of the regulation requiring her to be in Australia at the time of lodging the claim after she had departed.  She requested that the regulation be reinterpreted or waived.  Mr Wood has also sought the assistance of his  Member of Parliament, Mr Chris Pearce MHR, in trying to find a solution for his daughter.   On 23 March 2005, the ARO affirmed the decision to refuse Austudy payments on the basis that Miss Wood was not in Australia when the claim was lodged.

5.      On 12 August 2005, Miss Wood lodged an application for review with the Social Security Appeals Tribunal (SSAT).   On 27 September 2005, the SSAT affirmed the decision under review.  On 2 November 2005, Miss Wood lodged an application for review with the Tribunal.  On 6 February 2006 a hearing took place at which Mr Wood represented his daughter. 

6.      The Tribunal notes that Miss Wood returned to Australia in July 2005 and lodged a fresh claim for Austudy.  She has been refused Austudy for second time, on the basis of the length of time for which a student studying for a combined Arts/Science degree is eligible for Austudy payments, if the student has undertaken other tertiary studies in the previous ten years.  However, that claim is not presently before the Tribunal. 

7.      There is no dispute that Miss Wood was overseas when the claim for Austudy payments was lodged in late 2004.  The issue before the Tribunal is whether Miss Wood could be granted Austudy payments in relation to the claim lodged while she was overseas.

CONSIDERATION OF THE ISSUES

8.      The Social Security (Administration) Act 1999 (the Administration Act) governs lodgement of claims for all social security benefits, including Austudy payments. Section 11(1) of the Administration Act provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim. These include the requirement that a written claim be lodged in accordance with a form approved by the Secretary.

9. Section 29 of the Administration Act sets out the residence and location requirements for a claim to be valid.

29 (1)  Subject to sections 30, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

(a) is an Australian resident; and

(b) is in Australia.

(2)   Subject to sections 30, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

10. Sections 30, 31, 31A and 32 allow exemptions in relation to residence and/or temporary absence from Australia in limited circumstances, for claimants of special benefits, parenting payments and sickness allowance. There are no exemptions from s 29 for persons claiming Austudy payments or most other social security benefits.

11.     Mr Wood expressed the view that his daughter should be eligible for Austudy as an Australian citizen studying for part of her Australian degree at an overseas university.  The Tribunal notes that universities encourage overseas studies to broaden a student’s experiences and that there are now many exchange programs between Australian and overseas universities.  The legislative requirement that the student must be physically present in Australia when lodging an Austudy claim does not seem to be in harmony with educational trends. 

12. Notwithstanding that it does not appear to be in harmony with educational trends, Section 29 (1) of the Administration Act is very clear. Given that Miss Wood was not in Australia when the claim for Austudy payments under consideration was lodged, the Tribunal has no option but to decide that she was ineligible for the payments. The Tribunal does not have discretion to reinterpret or waive legislative requirements to benefit the applicant. 

DECISION

13.     The Tribunal affirms the decision under review.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

sgd: Angela Dennis, clerk      

Date of hearing:  6 February 2006
Date of decision:  17 February 2005
Representative of applicant:        Mr Harvey Wood, applicant’s father
Advocate for respondent:            Mr D Perdon, Centrelink