Cartledge and Department of Education, Training and Youth Affairs [1999] AATA 92 (17 February 1999)

Last Updated: 18 February 1999

DECISION AND REASONS FOR DECISION {1999] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/810

GENERAL ADMINISTRATIVE DIVISION )

Re HENRY REGINALD CARTLEDGE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, TRAINING & YOUTH AFFAIRS

Respondent

DECISION

Tribunal Mr W.G. McLean, Member

Date 17 February 1999

Place Melbourne

Decision The decision under review is affirmed.

(Sgd.) W.G. McLean

Member

CATCHWORDS

AUSTUDY - workload : tertiary students - overpayment of student assistance entitlements - decision affirmed

AUSTUDY Regulations 34, 35

Beadle and Director-General of Social Security (1984) 6 ALD 1

Beadle v Director-General of Social Security (1985) 60 ALR 225

REASONS FOR DECISION

17 February 1999 Mr W.G. McLean, Member

1. The Tribunal considered an application from Mr Henry Reginald Cartledge for the review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 11 June 1998. The SSAT decided to set aside the decisions made by a delegate of the Secretary to the Department of Education, Training & Youth Affairs ("DETYA") on 30 January 1998 and an Authorised Review Officer ("ARO") on 9 March 1998 to raise and recover a debt of AUSTUDY payments of $4,081.58, being the amount paid to Mr Cartledge in 1997. The SSAT set aside the decisions and sent the matter back to DETYA for reconsideration in accordance with the direction that Mr Cartledge was eligible for AUSTUDY until 15 May 1997.

2. Mr Cartledge attended the hearing and gave sworn oral evidence. The respondent was represented by Mr R. Frazzetto of Counsel.

3. The Tribunal received into evidence the documents ("the T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

4. Mr Cartledge applied for AUSTUDY in November 1996 for the period 1 January 1997 to 15 May 1997 in respect of a Diploma of Applied Science (Counselling) course that he was undertaking with the Logan City Business Academy. Mr Cartledge subsequently applied for and was granted an extension of entitlement to receive AUSTUDY to 31 December 1997.

5. When Mr Cartledge subsequently applied for AUSTUDY for 1998, a decision was made that he had not been eligible for AUSTUDY during 1997 and a debt of $4,081.58 was raised in respect of AUSTUDY received by Mr Cartledge during 1997. The decision by the SSAT on 11 June 1998 that Mr Cartledge was entitled to receive AUSTUDY for the period from 1 January 1997 to 15 May 1997 only, but not for the period 16 May 1997 to 31 December 1997, reduced the recoverable student assistance overpayment debt due by Mr Cartledge from $4,081.58 to $2,571.95.

6. Mr Cartledge is not disputing the respondent's calculations that he received a total of AUSTUDY payments of $2,571.95 during the period from 16 May 1997 to 31 December 1997, or that he received a total of AUSTUDY payments amounting to $4,081.58 during the whole of 1997.

7. Mr Cartledge is satisfied with the correctness of SSAT's description of his case as recorded in paragraphs 10 to 15 inclusive of their Reasons for Decision and also the SSAT's Findings of Fact recorded in paragraph 28 of their Reasons for Decision.

8. In fact, the basis for Mr Cartledge's application for review is that he believes that he may have unintentionally misled the SSAT in respect of his evidence as recorded in the following paragraph 16 of the SSAT's Reasons for Decision:

"16 With regard to the modules for Level 5 that is the Diploma course, he had worked on all the modules from May 1997 to the end of the year, with the exception of the Practicum and the Independent Project. These two he was only able to tackle in 1998."

9. The Tribunal concurs with the SSAT that Mr Cartledge's evidence was given in a diffuse and, at times, incoherent manner. Initially, he appeared to assert that he had commenced the Independent Project module of his course in 1997 and that the SSAT were, therefore, incorrect in their understanding of his case when they recorded that he had worked on all of the modules from May 1997 to the end of the year with the exception of the Practicum and the Independent Project. Mr Cartledge agrees that he did not undertake work associated with the Counselling Field Practicum module during 1997.

10. As the respondent concurs with the finding of the SSAT that Mr Cartledge was entitled to receive AUSTUDY from 1 January 1997 until 15 May 1997, the issue to be determined by the Tribunal is whether or not Mr Cartledge had in fact undertaken the work requirements of the Independent Project module during the period from 16 May 1997 to 31 December 1997.

11. During cross-examination by the respondent, Mr Cartledge gave evidence that he first got the idea of the topic for his Independent Project around November/December 1997. From September 1997 he had been reading literature to assist him to subsequently reach a conclusion regarding the type and appropriateness of topics suitable for his Independent Project. Mr Cartledge said that he had to consult several books that showed him how to go about formulating an hypothesis about what he wanted to do in relation to his project. He said "the idea was there but, I mean, by the time it crystallised it took a while".

12. Mr Cartledge incorporated his selected Independent Project methodology and topic hypothesis considerations into a written approval request which he submitted to the Logan City Business Academy in May 1998. Mr Cartledge said that the delay in submitting his written approval request was attributable to his ill-health in February, March and April 1998, during which he was hospitalised for the treatment of haemorrhoids. Mr Cartledge said that his initial approval request was rejected because it was too wordy. Approval was granted following the re-submission of his project in June 1998 and he was then able to commence the practical counselling aspects of the Independent Project.

13. The Logan City Business Academy have AUSTUDY course approval for the following modules in respect of Level 5 of its Diploma of Applied Science (Counselling) course for the study period under review:

Code Diploma of Applied Science (Counselling) Pre-requisite Hrs

COU010 Working with groups COU006 20

COU011 Professional Practice and Management - 40

COU012 Independent Project COU009 80

COU013 Counselling Field Practicum 3 COU009 60

Plus Electives 80

Total hours = 280

14. The following relevant legislation is provided by the AUSTUDY Regulations which are in force under the Student and Youth Assistance Act 1973:

"34 Workload: tertiary students

34(1) A tertiary student must study full-time.

(2) To be a full-time student, a student must be enrolled in and undertake at least three-quarters of the normal amount of full-time work for a period as set out in regulation 35.

(3) A student is not full-time in a period if the amount of work of the course that he or she is undertaking in, or is enrolled in for, that period is less than three-quarters of the normal amount of full-time work for that period.

(4) However, a student is full-time in the period from the first day of classes to the Friday in the second week of classes in a term or semester if the student enrols in and undertakes at least three-quarters of the normal amount of full-time work on at least 1 day in that period.

35 Workload: normal amount of full-time work

35.(1) If a course is a designated course for the Higher Education Contribution Scheme (called HECS) under subsection 34(1) of the Higher Education Funding Act 1988:

(a) the normal amount of full-time work for a year of the course is the standard student load determined by the institution for the purposes of HECS; and

(b) the normal amount of full-time work for a semester of the course is 0.5 of the standard student load.

(2) If the course is not a designated course for HECS, the normal amount of full-time work for a year of the course is:

(a) if the institution specifies an amount that a full-time student should typically undertake - the amount specified; or

(b) in any case - the amount calculated using the following formula:

total work of course

total length of course

where:

"total work of course" is the minimum number of years needed to complete the course.

(3) If the course is not a designated course for HECS, the normal amount of full-time work for a semester of a course is:

(a) if the institution specifies an amount that a full-time student should typically undertake - the amount specified; or

(b) in any other case - half the normal amount of full-time work for a year of the course."

15. The Tribunal finds that as Mr Cartledge did not decide upon the topic he would adopt for his Independent Project module until November-December 1997. Accordingly, he could not be said to have been undertaking this module of his course prior to that date, notwithstanding the general information review that he asserts had been undertaken by him from around September 1997.

16. Based upon the evidence the Tribunal is of the view that it was most unlikely that Mr Cartledge actually embarked upon the completion of his written initial request to Logan City Business Academy for approval of his Independent Project submission until 1998.

17. Accordingly, the Tribunal concurs with the SSAT finding that Mr Cartledge did not undertake the Independent Project and Counselling Field Practicum modules of his course during 1997. As the applicant was enrolled and undertaking only 50% of the normal full-time workload for Level 5 of his course during 1997, he does not meet the three-quarters of the normal amount of full-time work requirement between the period from 16 May 1997 to 31 December 1997.

18. Although Mr Cartledge did not request the Tribunal to consider waiver of his $2,571.95 student assistance overpayment debt due to special circumstances, the matter was considered by the SSAT and the respondent resultantly raised the issue during the hearing.

19. In Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal said:

"An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."

20. The matter of Beadle v Director-General of Social Security (1985) 60 ALR 225 was subsequently heard by the Full Federal Court and it was held that:

"It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss."

21. On the evidence presented in this case, the Tribunal is satisfied that there are no circumstances that are unusual, uncommon or exceptional that could be regarded as special.

22. The decision under review is affirmed.

I certify that this and the seven (7) preceding pages are a true copy of the decision and reasons for decision herein of Mr W.G. McLean, Member

Signed: .....................................................................................

Associate

Date of Hearing 21 January 1999

Date of Decision 17 February 1999

Applicant Self-represented

Counsel for the Respondent Mr R. Frazzetto

Solicitor for the Respondent Australian Government Solicitor