Editors --- "Pensioner education supplement: allowable study time, meaning of 'a failed year of study or failed part of the year of study'" [2007] SocSecRpr 25; (2007) 9(2) Social Security Reporter, Article 12

• MESSNER and SECRETARY TO THE DEWR
• Background
• The issue
• The law
• Discussion
• Formal decision

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Pensioner education supplement: allowable study time, meaning of 'a failed year of study or failed part of the year of study'

MESSNER and SECRETARY TO THE DEWR

(Federal Court of Australia)

Decided: 7th February 2007 by Finn J.

Background

Messner was a recipient of pensioner education supplement (PES) for the period 1998 to 2002, while studying for a Bachelor of Arts degree at theUniversity ofAdelaide. She then received PES during 2003 and 2004 while studying for a Graduate Diploma in Social Science (Counselling) (‘the Counselling Diploma’) at theUniversity ofSouth Australia. Later, she again applied for PES while enrolled in a Professional Certificate of Art History (‘Arts History Certificate’) at theUniversity ofAdelaide. Her claim was rejected on the basis that the Counselling Diploma studied was a Level A course and she could not be granted PES for the study of two Level A courses as she would then exceed the allowable study time for a course at that level.

At the time the matter came before the Court, Messner was 70 years of age. The Court noted that although Messner had not worked for 25 years since she was diagnosed with multiple sclerosis and had significant disabilities, including poor vision, she had nonetheless applied herself diligently to study which had given her life significant meaning and hope that she might find employment upon the conclusion of her current studies. Due to health difficulties, Messner had failed one subject in the Counselling Diploma and consequently had taken 2 years to complete a 1 year course.

It was common ground that the Counselling Diploma and the Arts History Certificate were levelA courses. The AAT’s findings that Messner had received PES for 2 years and in consequence had the maximum allowable study for a Level A course were also accepted.

The issue

The issue that arose in the appeal was whether Messner satisfied one of the grounds ofs.1061PI(7) of the Social Security Act1991 (the Act) under which part of a course could be disregarded when assessing allowable study at any given time.

The law

Section 1061PI(7) sets out the various grounds on which part of a course can be disregarded when assessing allowable study time at any given level. There are two possible provisions to consider, namely:

‘1061PI(7) In determining whether a person has exceeded the allowable study time (for a full time student or a concessional study-load student), disregard the following:

—

(b) a failed year of study, or a failed part of a year, if the failure is because of:

(i) the person’s illness; or

(ii) other circumstances beyond the person’s control;

.....

(d) time spent undertaking a course that has been completed but which, because of the person’s illness, the person cannot use in any of the trades or profession to which the course is appropriate;

.....’

Discussion

The Court found that the effect of Messner being obliged, because of ill health, to undertake a further semester of study to complete her Counselling Diploma was that even if one semester could have been disregarded, she would still have exhausted the one year of allowable time for Level A study.

Notwithstanding this finding, the Court considered it appropriate to express a view on the interpretation of the terms ‘a failed year of study or a failed part of the year of study’ in s.1061PI(7)(b).

In respect of the proper construction of the terms, the Court stated:

Having regard to the fact that the PES Scheme itself is concerned with defining, inter alia, the period of temporal duration of courses, i.e the allowable study time, and permits discounting or disregard of specified periods of time under subs (7), I am satisfied that the Tribunal in its ultimate conclusion was correct in identifying the concern of subs 7(b) as being with a complete failure of a semester or whole year due to ill health that results in a person having to prolong their study. It does not focus merely on the fact of a failure producing the consequence of a prolongation of a person’s study. This can be the consequence simply of the failure of one subject of a group of semester subjects. The type of failure that is specified is the failure of a whole or a part of a year.

Formal decision

The Court dismissed the application. The Court also noted its appreciation that the respondent Secretary had in the circumstances declined to seek an order for costs.

[G.B.]