Editors --- "Austudy: whether full-time student; distance learning; satisfactory progres" [2009] SocSecRpr 8; (2009) 11(1) Social Security Reporter, Article 8

• WILLMER and SECRETARY TO THE DEEWR
• Background
• Issues
• Legislation
• Evidence and submissions
• Face-to-Face v Distance Learning
• Satisfactory Progress?
• The debt
• Formal decision

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Austudy: whether full-time student; distance learning; satisfactory progress

WILLMER and SECRETARY TO THE DEEWR

(2009/22)

Decided: 15th January 2009 by S. E. Frost

Background

Willmer was granted austudy in February 2006 because she was studying by ‘distance learning’ with the Open Training and Education Network (‘OTEN’). Centrelink decided that Willmer had not been a full-time student for the period February 2006 to February 2007 and decided to raise and recover a debt in the amount of $10,524.97.

Issues

The issue was whether Willmer was qualified for austudy payment during the relevant period or, if she was not qualified, could the resulting debt be written off or waived?

Legislation

Section 565 of the Social Security Act 1991(the Act) provides the general rule for qualification for austudy, s.569 sets out the activity test, s.569A explains the meaning of undertaking qualifying study, s.569C defines the full-time student, s.569E explains the normal amount of full-time study and s.569G concerns the rules of satisfactory progress.

To qualify for austudy Ms Wilmer had to be a full-time student, undertaking at least three quarters of the normal amount of full-time study and, in the opinion of the Secretary, be making satisfactory progress towards completing the course.

Evidence and submissions

Willmer claimed that, until July or August of 2006,she studied at home for 5 to 6 hours per day, seven days a week. To the SSAT her evidence was that she studied ‘for around 20 to 25 hours a week’. The Tribunal found that she studied for no less than 4 hours a day, 5 days a week, for the period February to August 2006, thereby meeting the ‘three quarters of the normal amount of full-time study’. However, she did not complete all her assignments.

Willmer had enrolled in the OTEN course HSC Studies and also Children’s Services. Centrelink had assumed that she ceased the HSC course when she enrolled in Children’s Services but, in fact, she was enrolled in both courses for part of the academic year. Willmer was enrolled in five ‘preliminary’ subjects, in the HSC course: each allocated 120 hours by OTEN with a total of 600 module /unit hours and 35assignments. The Children’s Services subjects had 105 module/unit hours allocated with nine assignments required for the four subjects.

The Secretary argued that Willmer did not complete 120 hours for any subject and if she was credited for the proportion she did complete, as a fraction of the total number of assignments set, she had done less than the required 75% of full-time study.

Face-to-Face v Distance Learning

The AAT noted that with face-to-face learning the amount of study is usually the number of hours per week in face-to-face classes and the progress is generally the analysis of the examination results. The student is treated as full-time if they maintain the full-time enrolment status. In distance-learning there is no class to attend, no attendance roll to mark. The student can submit assignments regularly, or none for a while, and then all in a rush. In order to pass the year the student will be expected to submit a certain number of satisfactorily completed assignments. The AAT stated that, for distance-learning, satisfactory progress is a major factor in determining whether or not the student is full-time.

Satisfactory Progress?

The AAT noted that in TAFE New South Wales full-time study is 16 hours so it follows that 75% of the full time study-load is 12hours. To convert the flexible learning approach of distance-learning, like OTEN, study could be the number of hours a student spends reading and preparing to attempt assignments; or it could be the time spent actually attempting the assignments; or it could be the sum of the two. The difficulty for Centrelink purposes is that there is no way to verify the activity.

The Tribunal decided that there was a measurable level of study activity in Willmer’s case. The Tribunal examined the assignment history and decided that between February and March 2006 Willmer had undertaken 160hours over five weeks or 32 hours per week. At that rate the full year course would have been completed in 19 weeks. The last assignment from that early study was submitted 17March 2006. Willmer said she continued to study but did not submit the assignments because she was having trouble with some of the subjects. The Tribunal allowed four weeks further for satisfactory progress towards completing the subject even though she did not submit assignments. Two more assignments were submitted by 2 August 2006. The Tribunal allowed a notional study load and allowed two weeks to prepare for and then attempt the assignments. After 2August 2006 Willmer reduced her study load.

The debt

Willmer was sent notices advising that she should notify Centrelink if her study load changed. Section94 (1) of the Social Security (Administration) Act 1991 provides for the cancellation of the social security payment from the time of the change in circumstances. The Tribunal stated that, because OTEN was a course designed to allow students to move at their own pace, although Willmer’s progress was patchy, it was still understandable that she viewed herself as full-time student and that s.94(1) did not apply in this case. However, apart from the identified periods, Willmer was not a full-time student making satisfactory progress and therefore not qualified for austudy payment. Hence a debt arose.

The debt could not be written off under s1236 because Willmer had the capacity to pay and her whereabouts were known.

Under s.1237A(1)of the Act any portion of the debt attributable solely to administrative can be waived. Willmer said she rang Centrelink to change her study-load on 18 August 2006 and that Centrelink paid her in error thereafter. There was a record of a conversation on that date but the record showed ‘cus [tomer] queried when to advise finishing study, advised when she signs outs of school/course.’ Willmer maintained that the record was incomplete and Centrelink had agreed to alter the record to the effect that ‘customer rang to change her study load’. The AAT concluded that, even if Willmer did ring to change her study load and the debt was deemed to arise solely from administrative error, it could only be waived if Willmer received those payments in good faith. Because the rate of payment did not alter Willmer could not be said to have received the payments in good faith.

Willmer claimed that she placed her studies on hold for a time because she was comforting a friend whose fiancée committed suicide and that the debt could be waived under special circumstances under s.1237AAD of the Act. The Tribunal accepted that was a major fact in Willmer’s failure to submit assignments, but that the question of special circumstances does not pertain to why the study did not progress but rather whether there were special circumstances that made it desirable to waive the debt. The Tribunal found no reason to waive the debt.

Formal decision

The decision under review was set aside. The Tribunal decided instead that Willmer was qualified for austudy payments from 11 February to 14 April 2006,and then again from 20 July to 2 August 2006, but not for any other part of the relevant period. The matter was remitted to the Secretary to assess the amount of overpayment, and with a direction that the resultant debt was to be recovered.

[M.R.]