Editors --- "Austudy: concessional study load rules" [2013] SocSecRpr 11; (2013) 15(2) Social Security Reporter, Article 4

• REESE and SECRETARY to DIISCRTE
• Background
• The issue
• Consideration
• Formal decision

---

Austudy: concessional study load rules

REESE and SECRETARY to DIISCRTE

(2012/0179)

Decided: 28th March 2013 by K.S. Levy

Background

Reese had previously been granted Austudy and approved as a 25% concessional study-load student for various tertiary studies she had undertaken at TAFE between September 2011 and July 2012. On 16 June 2012, Centrelink advised Reese that her Austudy payments would be cancelled with effect from 10 July 2012. On 20 June 2012, Reece advised Centrelink that she intended to study a further subject at TAFE and sought review of the decision to cease her Austudy payments. Centrelink subsequently advised her that she did not qualify as a student with a concessional study-load. Reese sought review of this decision.

The issue

The issue in this case was whether on and from 10 July 2012, Ms Reese had a 25% concessional study-load in terms of sub 569D(2) of the Social Security Act 1991 (the Act).

Consideration

Relevantly ss.569D(2) of the Act provides that a person is a 25% concessional study- load student in respect of a course if:

(a) In the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester) –

the person is undertaking at least one quarter, but less than three quarters, of the normal amount of full-time study in respect of the course for that period...

......

Subsection 569D(4) of the Act provides that ss.569D(2) outlined above applies to a person who has a medical condition and cannot undertake the normal amount of full-time study.

The question therefore arose as to whether, for the purposes of ss.569D(2) (a) of the Act, Reese was undertaking at least one-quarter, but less than three- quarters, of ‘the normal amount of full- time study in respect of the course for that period.’

Subsection 569E(1)(b) of the Act relevantly defines ‘normal amount of full-time study’ where the course is one where ‘.... the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course – [as] the amount so defined.’

Reese contended that the issue as to whether she was undertaking a 25% concessional study-load should be determined by considering the actual time she spent in undertaking that course; that is the period from when she started to when she completed the course and as she completed the course in less than six months, the formula that should be used is one that shows that she spent 3.8 hours per week (approximately) undertaking the course.

The Department contended that the calculation of 25% concessional study load is to be 25% of the standard hours per week as specified by the TAFE and referred to the decision of Secretary, Department of Family &Community Services v Matheson [2004] FCAFC 53; (2004) 78 ALD 509 (Matheson) where the term ‘particular study period’ was held to be a question of fact in each case. The Tribunal noted that the Social Security Appeals Tribunal at paragraph 14 of that decision had found that ‘anything other than the length prescribed by the academic institution would render the provision all but unenforceable.’

The Tribunal went on to find that as the term ‘normal amount of full- time study’ was a key variable in the formula to determine whether a person satisfied 25% of the full-time load, it was necessary to look at how ‘the institution defines an amount of full-time study that a student should typically undertake in respect of the course – the amount so defined.’ In the Tribunal’s view, ‘typically’ referred to the standard to be applied, not an idiosyncratic variable based on each individual student. Therefore the standard to be applied was to be determined by reference to the course that Reese undertook.

The Tribunal went on to find that Reece’s course load did not meet 25% of the normal full-time student load as her course load only required 1.92 hours per week as a standard and not the 2.875 standard hours required by the legislation for a person with a 25% concessional study load. Therefore she was precluded from being entitled to Austudy for that ‘study period.’

Formal decision

The AAT affirmed the decision under review. [G.B.]