Editors --- "Austudy: activity test; qualifying study; progress rules" [2009] SocSecRpr 7; (2009) 11(1) Social Security Reporter, Article 7

• SECRETARY TO THE DEST and WHITE
• Background
• Legislation
• Findings
• Decision

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Austudy: activity test; qualifying study; progress rules

SECRETARY TO THE DEST and WHITE

(2007/1315)

Decided: 11th May 2007 by S. Webb (Editor’s note – a number of 2007 decision have only recently been published)

Background

White completed a Bachelor of Social Science (Recreation and Human Movement) degree in 1999. He commenced a Bachelor of Health Science(Podiatry) degree in 2005. He claimed and was granted. In June2006Centrelink suspended White’s because he had not completed the Bachelor degree course within the allowable study time. The SSAT set aside the decision and decided that White was entitled to. The Secretary appealed.

The Secretary argued the decision to cancel White’s Austudy payments on 22 June 2006was correct because he did not satisfy the activity test at that time. The Secretary contended that White’s allowable study time for the Bachelor of Health Science (Podiatry) Degree (the second degree) was four and a half academic years. The Secretary said that since White previously completed a 3-year Bachelor Degree course in 1999 he had one and a half academic years of allowable study time when he enrolled in his 4 year Bachelor Degree course, and thus his allowable study time was exhausted on completion of the first semester of the second year of that course. The Secretary contended that the allowable study time test applied to White’s enrolment for the second semester of that academic year, and by then he had exhausted his allowable study time. He no longer satisfied the progress rules and was not undertaking qualifying study.

Legislation

Under the Social Security Act 1991 (the Act) in order to qualify for Austudy the activity test must be satisfied (s.568). The activity test may be satisfied if the person is undertaking qualifying study (s.569). In order to be ‘undertaking qualifying study’ the person must be enrolled in an approved course of education or study on a full-time or concessional study-load basis, and must satisfy the progress rules(s.569A). The progress rules for a full-time tertiary student are set out at s.569H.:

“569H(1) A person who is a fulltime student in respect of a tertiary course satisfies the progress rules if:

(a) in the case of a person who is enrolled in the course—on the day on which the person enrolled in the course; or

(b) in the case of a person who is not yet enrolled in the course but intends to enrol in the course—on the day on which enrolments in the course are next accepted;

the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course.”

The allowable study time test must be applied on the day of enrolment in the particular course. If on that day a full-time student in a tertiary course has not exceeded the allowable study time for that course then he or she has satisfied the progress rules and the test will only arise again for determination on a subsequent enrolment. The Tribunal needed to determine when White enrolled in the Bachelor degree course he was undertaking. The progress rules, and the allowable study time test, applied in relation to each such enrolment.

Findings

The Tribunal found White enrolled in the Bachelor degree course in February 2005. Thereafter he was required to re-enrol, progressively, on an annual basis. On 31October 2005 he was required to enrol in the second year of his Bachelor degree course for 2006 and to nominate subjects he intended to study during each semester in that year. There was no evidence that White was required to re-enrol again in order to undertake the second semester of study in his course each academic year. The Tribunal observed that if White decided to change the course or subjects in which he enrolled, or if units in which he was enrolled were no longer available, it seemed likely that he would be required to re-enrol in a different course or in different units but there was no evidence of any such change in his enrolment during the 2006academic year. Despite the fact White was enrolled in semester-based subjects, his enrolment on 31 October 2005 was in effect for the second year of his Bachelor degree course during both semesters of the 2006 academic year. He satisfied the activity test on 31 October2005, when he enrolled in the second year of the Bachelor degree course. In the absence of any evidence that White was required re-enrol on a semester by semester or unit by unit basis, or that there was any change in his enrolment during the 2006 academic year, the Tribunal was satisfied that White did not re-enrol in a course on or about 22June 2006. It seemed likely that he was subsequently required to re-enrol on 31 October 2006 for the third year of the Bachelor degree course and the progress rules and the allowable study time test would be enlivened and applied at that point of re-enrolment.

Decision

White was entitled to Austudy payments on 22 June 2006 and was not disentitled by the allowable study time test at that time. The SSAT decision was affirmed.

The Tribunal did not determine when White’s allowable study time for his bachelor degree course expired and observed that calculation required further information concerning White’s progress in the course and any previous courses at the same level, and consideration of the matters to be disregarded pursuant to s.569H(7).

[I.T.]