Editors --- "Austudy: portability; whether a student receiving Austudy has to remain in Australia for a minimum of 13 weeks between each absence" [2010] SocSecRpr 38; (2010) 12(3) Social Security Reporter, Article 4

• DORRESTEYN and SECRETARY TO THE DEEWR
• Background
• Legislation
• Issue
• Discussion
• Formal decision

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Austudy: portability; whether a student receiving Austudy has to remain in Australia for a minimum of 13 weeks between each absence

DORRESTEYN and SECRETARY TO THE DEEWR

(2010/435)

Decided: 11th June 2010 by M. Donovan

Background

Dorresteyn was in receipt of Austudy on 23 November 2008 when she left Australia to visit her family in New Zealand. On 23 February 2009, Centrelink cancelled her payment because she had been outside of Australia for more than the 13 weeks portability period.

On 26 February 2009, Dorresteyn returned to Australia and her payment was restored. She left Australia again on 2 March 2009, the day of her father’s death, and remained in New Zealand until 24 May 2009.

On 17 June 2009, the original decision-maker (ODM) decided not to pay Dorresteyn Austudy during the period 2 March 2009 until 24 May 2009. The reasoning appeared to be that Dorresteyn left Australia within 13 weeks of having returned to Australia and thus she was deemed to have taken a continued absence. The decision was affirmed by the authorised review officer (ARO) and the Social Security Appeals Tribunal (SSAT).

Dorresteyn sought review of the SSAT decision arguing that Centrelink had given her wrong information and that the circumstances of her father’s death and mother’s illness were grounds for the portability period to be extended.

Legislation

The construction and meaning of s.1218 of the Social Security Act 1991 (the Act) was at issue.

Issue

The issue was whether Dorresteyn could be paid Austudy for the period 2 March 2009 to 24 May 2009. The AAT’s first consideration was whether, on proper construction of the Act, s.1218 requires social security recipients identified in

s.1218(1) to remain in Australia for a minimum of 13 weeks between each absence.

Discussion

The AAT turned first to the construction of s.1218. Parts and Divisions are part of the Act pursuant to s.13 of the Acts Interpretation Act 1901. Section 1218 is part of Division 2 of the Act and deals with an exemption to the basic portability provisions. It creates an exemption for students who are studying outside of Australia which extends their portability period.

Even if Dorresteyn had been outside of Australia for the purpose of an Australian course (which she wasn’t), the AAT reasoned that Centrelink’s interpretation of s.1218 would create an ‘absurd and unreasonable situation’ (Reasons, para.18).Centrelink’s interpretation would mean that a person on any of the benefits listed in s.1218(1)(b) would not have to remain in Australia for 13 weeks between each absence but the same person on the same benefits engaged in full-time study would have to do so.

The Act was amended in 2000 to remove the requirement that an Austudy recipient must be ‘in Australia’ while the requirement that a person was an Australian resident was retained which was consistent with other payments under the Act. In 2009 amendments were made to s.1218 to allow recipients of other named payments to use the exception (or exemption) that was previously only allowed to youth allowance and Austudy recipients. The AAT stated that if Centrelink’s interpretation of s.1218 were correct, it would be counter to the purpose of the amendments to the Act as outlined.

The AAT said that s.1218 creates an exemption for students who are studying outside of Australia by granting a period longer than the maximum portability to which they would otherwise be entitled under s.1217 of the Act. In that context

s.1218(3) allows such a student to return for less than 13 weeks without affecting their extended portability in relation to overseas study. Dorresteyn left Australia on 23 November 2008 for a family visit. She was not outside of Australia for an Australian course. Section 1218 therefore, did not apply to Dorresteyn’s circumstances.

The AAT concluded that Centrelink had inappropriately applied s.1218 in this case. Dorresteyn did not cease to qualify for Austudy simply because she departed Australia on 2 March 2009. The AAT had insufficient evidence to determine whether Dorresteyn met the requirements of Part 2.11A of the Act to qualify for Austudy during the relevant period.

Having made these findings, the AAT did not need to consider Dorresteyn’s arguments for review.

Formal decision

The matter was remitted to the DEEWR for the purpose of determining whether Dorresteyn qualified for Austudy payment from 2 March 2009 to 24 May 2009.

[M.O’H.]