Editors --- "Austudy: allowable study time; whether subjects failed because of circumstances beyond student's control" [2012] SocSecRpr 6; (2012) 14(1) Social Security Reporter, Article 6

• NIKJOO and SECRETARY TO THE DEEWR
• Background
• Discussion
• Formal decision

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Austudy: allowable study time; whether subjects failed because of circumstances beyond student’s control

NIKJOO and SECRETARY TO THE DEEWR

(2012/72)

Decided: 9th December 2012 by N. Bell

Background

Nikjoo enrolled in a Bachelor of Arts/ Bachelor of Laws degree at the University of Western Sydney in 2006. The duration of the degree, comprised of semester long subjects, was five years and under the progress rules contained in s.569H of theSocial Security Act 1991 (the Act), the allowable study time for this course was 5.5 years. That period ended in mid-2011 and Centrelink cancelled Nikjoo’s Austudy.

Nikjoo had failed two subjects in one semester of 2006 and failed another subject in one semester of 2011.

The issue before the AAT was whether Nikjoo failed a year of study or part of a year of study because of illness or other circumstances beyond his control as provided for by s.569H of the Act.

Discussion

Nikjoo had told Centrelink and the Social Security Appeals Tribunal that he had failed two subjects in 2006 for reasons of illness and told the AAT that he had failed the two subjects because he was distracted by developments in a rekindled connection with his ex-wife who had by then remarried. He said he was unable to concentrate on his studies and consequently failed to prepare for or sit for his exams. He contended that this constituted circumstances beyond his control and that the semester should be disregarded.

Nikjoo referred to the High Court’s judgment in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, which he submitted was authority for the proposition that his inability to study for his exams amounted to an ‘infirmity of mind’ and was therefore a matter beyond his control. The AAT noted that Amadio concerned relief against a contract claimed to be unconscionable and it had no application to the present circumstances.

The AAT did not consider that Nikjoo’s description of the circumstances that were said to be responsible for his failure to sit his exams in 2006 were either an illness or beyond his control. The AAT noted that his ex-wife had once meant a great deal to him and that her contact with him alleviated an otherwise lonely existence, but she was residing overseas, remarried, and their contact was restricted to the internet. He described himself as ‘lost in time whenever talking to her; totally overwhelmed’. He described it as an emotional reason for being unable to concentrate on his studies. He presented no evidence of a psychiatric condition or of any assistance sought from a counsellor or medical practitioner. There was no evidence that he had an ‘infirmity of mind’. The AAT noted that many students are afflicted by lapses of concentration, preoccupation with others, and the sometimes obsessive aspects of personal relationships, therefore the distraction as described by Nikjoo was not uncommon. To find that it was a circumstance beyond his control and that his allowable study time should, in effect, be extended by one whole semester, would open the door to that benefit being afforded to anyone who experienced intense preoccupation with another person short of a diagnosable obsessional disorder.

The AAT concluded that Nikjoo’s failures in 2006 were not due to circumstances beyond his control and his semester in 2006 should not be disregarded in the calculation of his allowable study time.

On 15 April 2011, Nikjoo suffered an accident that resulted in elbow fractures. According to his general practitioner, his arms were in slings until approximately 10 June 2011.

In the Autumn semester 2011 Nikjoo undertook Equity, Trusts and Remedies; Occupational Health and Safety; Professional Responsibility and Legal Ethics and a practical placement. He failed Equity, Trusts and Remedies. Nikjoo said his Equity, Trusts and Remedies exam was worth 55% of the total mark. Correspondence from the University of Western Sydney and the Autumn 2011 calendar showed that the exam session commenced on 14 June 2011 and he sat the Equity, Trusts and Remedies exam on 15 June 2011. His evidence was that he had obtained a mark of 18/35 for the one assignment for the subject and so his exam marks were very important. The learning guide for that unit of study showed that his assignment was due on 27 April 2011, just eight days after his injury. He said he did poorly in that assignment because of his arms. On the basis of the medical certificate Nikjoo would have just finished with the slings at the commencement of the Autumn semester exam period. Nikjoo said he got 24/55 for the exam and said the pain in his arms when writing meant that he could not complete all of the questions. He said his Occupational Health and Safety subject had no exam and was comparatively ‘easy’. His Professional Responsibility and Legal Ethics subject had an exam but did not constitute the majority of the marks and there were a lot of class presentations on which he was assessed.

Nikjoo said he never inquired about assistance in the exam and never requested special consideration in respect of his mark in the Equity, Trusts and Remedies exam. He gave no explanation for not asking for assistance, but in relation to special consideration he said he knew how poorly he had done in his assignment and that a few extra marks would not assist.

He had initially claimed that he failed two subjects because of his elbows, but at the hearing said he had withdrawn from the second subject prior to the census date of 31 March 2011 and, because his accident was on 15 April 2011, his withdrawal from the subject could have had nothing to do with his elbow injuries.

The Secretary contended that Nikjoo appeared not to have had problems completing his other three subjects and suggested that he had failed Equity, Trusts and Remedies simply because he had found it hard. The AAT was persuaded by Nikjoo’s evidence as to why he had been able to succeed in his other subjects but not in Equity, Trusts and Remedies and accepted that he had difficulty writing in the exam and regarded the injury to his elbows as both an illness and as circumstances beyond his control. On this basis, the AAT considered that the Autumn semester of 2011 should be disregarded in the calculation of his allowable study time.

Nikjoo also submitted that he had undertaken a subject that he had enrolled in and completed in 2006 that did not count towards his degree. He contended that he undertook this subject in error and the time it took to complete it should be disregarded. The AAT said that s.569H(7) does not provide for the disregarding of a period of study where the subject was undertaken in error.

Formal decision

The Tribunal set aside the decision under review and instead decided that in determining whether Nikjoo exceeded the allowable study time for the purposes of payment of Austudy, the Autumn semester of 2011 should be disregarded.

[S.P.]