WXSV and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 1056
•25 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1454
GENERAL ADMINISTRATIVE DIVISION ) Re WXSV Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date25 November 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – activity test – undertaking full-time study – approved course of education or study – course not expressly specified in Schedule 2 of Determination 2002/1 – Masters postgraduate level program – decision affirmed
Social Security Act 1991 ss 540, 541(1), 541B(1) and (5)
Student Assistance Act 1973 s 5D
Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088
Re Cordaro and Secretary, Department of Family and Community Services [2004] AATA 1410
REASONS FOR DECISION
25 November 2008 Senior Member R W Dunne 1. In this matter, the applicant had been receiving Youth Allowance since 29 December 2000. Pursuant to a confidentiality order made under s 35(2) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), she is referred to in these reasons as “WXSV”. Between 2003 and 2005, she completed a Bachelor of Psychology with the University of South Australia (“University”) and in 2006, a Bachelor of Psychology (Honours). She received Youth Allowance while studying for both degrees. In 2007, she gained entry and enrolled as a full-time student in the Master of Psychology (Clinical) at the University. The respondent (“Centrelink”) decided to cancel the applicant’s Youth Allowance on the basis that the Master of Psychology (Clinical) was not an approved course for Youth Allowance purposes. She requested a review of the decision, which was affirmed by an Authorised Review Officer. She appealed to the Social Security Appeals Tribunal (“SSAT”), but the decision to cancel was affirmed. WXSV has applied to this Tribunal for a review of the decision of the SSAT.
2. At the hearing, WXSV represented herself and Ms Laura Giaretto (from Centrelink Legal Services Branch) appeared for the respondent. The Tribunal received into evidence the T documents (Exhibit R1) lodged pursuant to s 37 of the AAT Act, together with the following documents:
·Policy Document 3.3.4.80 (“Austudy & Impact of Previous Study”) issued by the respondent (Exhibit A1);
·Policy Document 3.2.11.40 (“Approved Courses of Study for YA”) issued by the respondent (Exhibit A2); and
·2007/2008 Budget Paper (“Realising Our Potential – Higher Education Endowment Fund”) (Exhibit R2).
issues for the tribunal
3. The following are the issues for the Tribunal:
(a)During the relevant period, did the applicant satisfy the activity test for the purposes of Youth Allowance?
(b)Was the applicant’s course of study (Master of Psychology (Clinical)) an approved course of study?
(c)Was the applicant entitled to Youth Allowance during the relevant period?
legislation
4. The legislation that is presently relevant is contained in the Social Security Act 1991 (“Act”) and the Student Assistance Act 1973 (“Student Assistance Act”). Sections 540, 541 and 541B of the Act deal with the requirements for and the entitlement to Youth Allowance. The qualification and activity test requirements are set out in ss 540 and 541. The relevant parts of those sections read:
“540 Qualification for youth allowance—general rule
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).
…
541 Activity test
General
(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)subject to subsection (4), 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)throughout the period, the person complies with the terms of a Youth Allowance Activity Agreement applying to the person.
…”
5. Sub-section 541B(1) defines when a person is undertaking full-time study. It reads:
“541B Undertaking full-time study
General
(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. Sub-section 541B(1)(c) refers to an approved course of education or study. Sub-section 541B(5) requires that an approved course of education or study be “determined” by the Minister pursuant to s 5D of the Student Assistance Act. Sub-section 541B(5) and s 5D provide:
“Meaning of approved course of education or study
(5)For the purposes of paragraph (1)(c), the course is 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.”
“5D Minister may determine secondary and tertiary courses etc.
(1)The Minister may, for the purposes of this Act, determine in writing that:
(a)a course of study or instruction is a secondary course, or a tertiary course; or
(b)a part of a course of study or instruction is a part of a secondary course, or a part of a tertiary course.
(2) For the purposes of this section, a determination that:
(a)was made under paragraph 7(1)(c) as in force before the day on which this section commences; and
(b) was in force immediately before that day;
is taken to be a determination under subsection (1) of this section and may be amended or repealed accordingly.
(3)A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”
background and evidence
7. WXSV grew up in country South Australia and moved to Adelaide in 2003 to study to work as a psychologist. When qualified, it was her plan to return to the country to work in that capacity. Her parents are farmers who have been experiencing difficulties and have been unable to support her in her studies in Adelaide. As a result, she has relied on Youth Allowance and part-time work to enable her to continue her studies.
8. The factual background to this case is not in dispute and may be taken largely from the reasons for decision of the SSAT. WXSV was receiving Youth Allowance at the independent rate whilst undertaking full-time studies with the University. She completed a 3 year Bachelor of Psychology degree from 2003 to 2005, and in 2006 she completed a Bachelor of Psychology (Honours) degree. In 2007, she commenced the Master of Psychology (Clinical), a 2 year full-time course with the University. Successful completion of this course was necessary for her to achieve accreditation and registration as a clinical psychologist with the South Australian Psychological Board, allowing her to be employed and to practice as a psychologist.
9. In the 2007/2008 Commonwealth Budget, the Government announced an increase in Commonwealth Grants Scheme funding to certain disciplines, including clinical psychology. As a result of the Budget measure, WXSV was re-granted Youth Allowance from 1 January 2008.
consideration
10. As is outlined above, the qualification for Youth Allowance is contained in s 540 of the Act. Section 540(a) requires that a person seeking Youth Allowance must satisfy the activity test set out in s 541. To satisfy the activity test, the person must, throughout the relevant period, be undertaking full-time study (s 541(1)(a)). Section 541B sets out, in general terms, when the person is undertaking full-time study. The SSAT found (and I agree) that WXSV satisfied the requirements of paragraphs (a) and (b) of s 541B(1). She was enrolled in a course of education at an educational institution and was undertaking at least three-quarters of the normal full-time workload. For completeness, I am also satisfied that she was making satisfactory progress towards completing the course of education. The main issue is whether the requirements in s 541B(1)(c) are met, namely, was the course in question an approved course of education or study.
11. Section 541B(5) provides that a course is an approved course of education or study if it is determined, under s 5D of the Student Assistance Act, to be a secondary course or a tertiary course for the purposes of that legislation. Under s 5D(1), the Minister may determine in writing that a course of study or instruction is a secondary course or a tertiary course. Pursuant to that section, the Minister’s current determination (Determination No 2002/1 (see Exhibit R1, T5)) came into operation on 1 January 2003. Clause 7(2) of the Determination provides that:
“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.”
12. Upon review, I have considered the findings of the SSAT, when analysing the requirements of Determination No 2002/1 as they apply to WXSV’s case. I agree with those findings (paragraphs 24 and 25) and repeat them:
“
24. Schedule 2, in respect of a Masters course, caters for funding for students in integrated undergraduate/postgraduate courses leading to a Masters degree, but only for the portion of the undergraduate part of the course and not the Masters level portion of the course. Otherwise Masters courses are not qualifying courses under Schedule 2.
25. [WXSV] has argued that the Master of Psychology (Clinical) course is effectively a six year integrated or combined course, and that the four years she has completed (the Bachelor of Psychology and the Bachelor of Psychology (Honours)) are essentially the first four years of the six year program. [WXSV] has also argued that the Master of Psychology (Clinical) is a requirement for registration as a psychologist, and that the four years of study she has already completed are a requirement for entry into the master’s program.
…”
13. I am unable to accept WXSV’s contention that the first four years of study for her psychology degrees were a requirement for entry into the Masters program with the University. In Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088, the Full Federal Court held that it was not for the decision-maker (and hence this Tribunal) to determine what type of course a student was participating in. It was a question for the educational institution involved. The University determined that the Master of Psychology (Clinical) program was at the postgraduate level and determined the entry requirements (Exhibit R1, T13). It was not, therefore, study at the tertiary level. I am also unable to accept WXSV’s contention that the Master of Psychology (Clinical) course was effectively a six year integrated or combined course under Schedule 2 of Determination No 2002/1. The University’s Program Information for 2007 (Exhibit R1, T13 at page 85) makes no mention of the course being integrated/combined with a Bachelor of Psychology (Honours) course or with any other course of study. The program is structured as a single two year Masters course at the postgraduate level. It cannot be considered an integrated or combined course for Youth Allowance purposes.
14. For the reasons set out above, I am unable to find that WXSV’s Masters or Psychology (Clinical) course was an approved course of education or study. She was not, therefore, undertaking full-time study. She was unable to satisfy the activity test in respect of the relevant period and was not qualified for Youth Allowance for that period.
15. In Re Cordaro and Secretary, Department of Family and Community Services [2004] AATA 1410, Mr Cordaro argued that his Youth Allowance should not be cancelled because the course he was studying, a Master of Law and Legal Practice, provided the same outcome for him as a graduate in the Bachelor of Law degree. Although the Tribunal (Senior Member P J Lindsay) found that the Master of Law and Legal Practice was an integrated course that contained both undergraduate and postgraduate subjects, Mr Cordaro was only entitled to Youth Allowance while studying the undergraduate components of the course. Senior Member Lindsay followed Lander in finding that the educational institution was the appropriate authority to determine the level and classification of the courses offered for study.
16. During the course of the hearing, WXSV asked the Tribunal to provide “written support” for her submission for an Act of Grace payment addressing the decision under review. The Tribunal is unaware of the grounds or basis for the applicant’s submission. However, it is assumed that it is based upon the change in the Commonwealth Grants Scheme that resulted in the re-grant of Youth Allowance to her from 1 January 2008. The Tribunal emphasises that the final authority to grant an Act of Grace payment rests with the Minister. However, the Tribunal raises the possibility of such a payment being appropriate in the circumstances of WXSV’s case.
decision
17. The Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard...........................................
AssociateDate of Hearing 20 August 2008
Date of Decision 25 November 2008
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms L Giaretto
Centrelink Legal Services Branch
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