Editors --- "Youth allowance debt: full time stud" [2005] SocSecRpr 17; (2005) 7 Social Security Reporter, Article 17

• KAMENJAS and SECRETARY TO THE DFaCS
• Background
• Issues
• The legislation
• Formal decision

---

Youth allowance debt: full time stud

KAMENJAS and SECRETARY TO THE DFaCS

(2005/273)

Decided: 31st March 2005 by I. Way

Background

In February 2002, Kamenjas enrolled in a TAFE course for a full year and in May 2002 he was granted Youth Allowance (YAL) on the basis of full time study and as an independent person. He was required by letter to contact Centrelink within 14 days, if he ceased studying or his study load changed. In September 2002 a data matching report showed Kamenjas was studying part-time from 11 February 2002. Centrelink sent Kamenjas a letter requesting information about his study load. As Kamenjas did not respond, his YAL was suspended in November 2002. A debt, in the amount of$2,651.20 for the period March 2002 to July 2002, was raised. The decision was reviewed and the decision varied with the debt starting in May 2002 and a new outstanding balance of $1,728.01.

Issues

The issue was whether or not Kamenjas was undertaking at least three quarters of the normal amount of full-time study in his course, at the relevant time, such that he satisfied the activity test for payment of YAL.

The legislation

To be qualified for YAL, a person must usually satisfy the activity test, which pursuant to s.541, can be satisfied if the person “is undertaking full-time study”. Section541B(1) sets out the requirements for undertaking fulltime study:

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; ... 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; ...

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 ...

The evidence and submissions

Kamenjas advised the Tribunal that when he commenced TAFE he was having some difficulties with his parents and he went to live with his Uncle. During the relevant period he was undertaking study in 11 of the 13 units that comprised his course. He attended the college in May, June and July 2002, and had undertaken all of the remaining 11 subjects that were listed in the Student Record.

The Tribunal noted that the TAFE college informed Centrelink that Kamenjas was undertaking 12 subjects in Semester 1 and one subject in Semester 2; that a normal full-time load was 30 hours per week; that Kamenjas was a full-time student in Semester 1, 2002; and that he completed six subjects in Semester 1.

In a further communication to Centrelink the TAFE College provided a copy of Kamenjas’ Roll Card which recorded his attendance. During the 72 recorded periods he was shown as only attending 32 periods, being absent for 33 periods and not recorded for 7 periods. Kamenjas explained there were so many absences marked in the attendance roll, because different teachers varied the way they marked the roll and if a student arrived late or left early some teachers would record this as an absence, while others would not. Due to his problems at home and his attitude at the time, he was often late or left early and this could explain the discrepancy.

In relation to not responding to Centrelink letters, Kamenjas explained he did not read the back of the letters as he thought they were just to let him know what was happening. He knew he should inform Centrelink of any changes in his enrolment but he never did this, as he thought he was still enrolled as a full-time student.

Kamenjas submitted he had done everything right in respect of his TAFE course and that he had tried as hard ashes could to complete the required course work. He was enrolled in and was undertaking coursework in 11 of the 13 subjects in which he was enrolled.

Centrelink argued that, based on the TAFE records, Kamenjas was enrolled in and undertaking less than three quarters of the normal full-time load, he was not a full-time student and was therefore not qualified for YAL throughout the period 3 May 2002 to 14 July2002. It was argued that the student record obtained from Miller TAFE indicated that Kamenjas was enrolled in and undertaking only 6 out of 13 subjects.

Undertaking full time study

The AAT found that the evidence from Miller College showed Kamenjas was enrolled in12 subjects in Semester 1, one subject in Semester 2, that the normal full-time load of the course was 30 hours per week, that the Applicant was a full-time student in Semester 1, 2002 and that he completed 6 subjects. In relation to whether Kamenjas was undertaking at least three quarters of the normal amount of full-time study in his course at the relevant time, the Tribunal considered it was not relevant whether the subjects undertaken were completed in Semester1:

Under the relevant provisions of the Act, the important requirement is that the required course work be undertaken, not whether a student successfully completes a subject or fails a subject. (Reasons para. 25)

On the basis of enrolment details, the Tribunal considered that Kamenjas met the activity test. In relation to the attendance roll, the Tribunal accepted Kamenjas’ evidence that during May, June and July 2002 he was in attendance for 11 of his enrolled courses.

Formal decision

The decision under review was set aside and in substitution therefore the Tribunal determined that Kamenjas did not have a YAL debt of $1,728.01 due to the Commonwealth.

[M.A.N.]