Holmes and Department of Family and Community Services [2002] AATA 619 (26 July 2002)

Last Updated: 31 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1561

GENERAL ADMINISTRATIVE DIVISION )

Re ADAM HOLMES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date 26 July 2002

Place Sydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[SGD] Ms N Isenberg

Member

CATCHWORDS

SOCIAL SECURITY - pensioner education supplement -eligibility - course not undertaken through a 'registered training organisation'

LEGISLATION

Social Security Act 1991 - sections 1061PA, 1061PB, 1061PC

Student Assistance Act 1973 - sections 3(1), 5D(1)

Determination No 1999/2: Determination of Education Institutions and Courses under subsections 3(1) and 5D(1) of the Student Assistance Act 1973

REASONS FOR DECISION

26 July 2002 Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunals ("the Tribunal") is the decision of the Social Security Appeals Tribunal ("the SSAT") on 29 August 2001 (T2) which had affirmed the decision of the authorised review officer dated 23 July 2001 (T10). The authorised review officer had affirmed the decision of the Respondent, the Secretary, Department of Family and Community Services dated 15 June 2001 (T4) to cancel Mr Holmes' ("the Applicant's") pensioner education supplement.

BACKGROUND

2. The Applicant, who has an intellectual disability, left Newcastle Special School in 2000 and commenced a two-year 'ATLAS' Program, conducted by the Samaritans. The Applicant was initially paid pensioner education supplement but on 15 June 2001 it was cancelled on the basis that the Applicant was not undertaking qualifying study because the Samaritans is not a registered training organisation.

ISSUE BEFORE THE TRIBUNAL

3. The issue before the Tribunal was whether the decision to cancel the Applicant's pensioner education supplement was correct.

APPEARANCES

4. A hearing was held before the Tribunal on 5 April 2002 at which the Applicant was represented by telephone by his mother, Mrs Pye and the Respondent was represented by George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink.

5. On the day of the hearing after evidence and some submissions, the matter was adjourned part-heard, so that the advocate for the Respondent could obtain further evidence requested by the Tribunal. That material was then obtained and a copy provided, with additional submissions by the Respondent, to Mrs Pye. No further submission was made on behalf of the Applicant and, with the consent of the parties, the Tribunal proceeded to make its decision on the material before it.

LEGISLATION

6. The relevant legislation is the Social Security Act 1991, in particular sections 1061PA, 1061PB, 1061PC and the Student Assistance Act 1973, in particular sections 3(1) and 5D. Determination No 1999/2 made under section 3(1) and 5D of the Student Assistance Act is also relevant for the definition of a registered training organisation.

EVIDENCE: Documents

7. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence as Exhibit R1. Exhibit A1 is an information package dated August 2001 by the Department of Ageing, Disability & Home Care titled "Invitation for Expressions of Interest to become an eligible provider - Adult Training, Learning & Support (ATLAS)".

8. In addition, the following documents were tendered after the hearing by the Respondent: further submissions by the Respondent dated 18 April 2002, information about VETAB (Vocational Education and Training Accreditation Board) ("Document A") and information regarding National Training Information Service ("Document B").

EVIDENCE: the Applicant

9. Mrs Pye gave sworn evidence and the Respondent was provided with the opportunity to cross-examine her. Questions were also put to Mrs Pye by the Tribunal.

10. Mrs Pye told the Tribunal that, because of her son's intellectual disability his options for post-secondary training were severely limited. His only option was to attend a two-year adult lifestyle-training program run by the Samaritans - the ATLAS program. She said the course was selected because the Samaritans were able to tailor a training course which would assist her son in becoming self-sufficient in community living.

EVIDENCE: Pauline Margaret Wallace

11. Mrs Pye asked the Tribunal to speak with Ms Wallace, who is the Manager, Disability Services, Hunter Region, Enhanced Living Options, which is a division of the Samaritans.

12. Ms Wallace was aware that the Applicant is seeking re-instatement of his pensioner education supplement, which had been revoked on the basis that the Samaritans is not a registered training organisation.

13. Ms Wallace described the ATLAS program as one where young people with disabilities can gain life skills. To be eligible for the course a person must have come through a Special School, as was the case with the Applicant, and meet other eligibility criteria.

14. Ms Wallace was asked to outline the role of the Samaritans. She said it is the welfare arm of the Anglican Church and runs a large number of programs, of which ATLAS is but one. She was not with the Samaritans at the time when the government called for tenders to run the ATLAS program, but she understands the Samaritans tendered and the course they proposed was approved. As a manager, she has to administer the funds provided by the NSW Department of Ageing, Disability & Home Care, which provides some funding.

15. Mrs Pye asked Ms Wallace if the Samaritans was a "registered training organisation" and Ms Wallace said that it was not. She said that the Samaritan's post-school options, including ATLAS, were not registered with VETAB, which is the NSW Vocational Education and Training Accreditation Board. While the Samaritans receives some federal funding, it does not receive funding for the ATLAS program.

SUBMISSION: Applicant

16. It was, essentially Mrs Pye's contention on behalf of the Applicant that it was unfair that the program undertaken by her son was not one approved by the government for the purpose of eligibility for the pensioner education supplement.

SUBMISSION: Respondent

17. The advocate for the Respondent submitted that the decision to cancel the Applicant's pensioner education supplement was correct as the Applicant was not undertaking qualifying study, as the Samaritans is not a registered training organisation within the meaning of Determination No 1999/2 - Determination of Education Institution and Courses under subsections 3(1) and 5D(1) of the Student Assistance Act 1973.

Paragraph 5(2)(a) of Determination No 1999/2 provides:

"a 'registered training organisation', being an organisation that is registered by the relevant State or Territory training recognition authority in accordance with the Australian Recognition Framework to provide one or more vocational education and training programmes."

18. It was submitted on behalf of the Respondent that the relevant training recognition authority in New South Wales in the Vocational Education and Training Accreditation Board ("VETAB"), established under the Vocational Education and Training Accreditation Act 1990 (NSW). The advocate referred the Tribunal to Document A. All training organisations that issue Australian Qualifications Framework qualifications and statements of attainment in New South Wales must be registered with VETAB.

19. Further, the advocate for the Respondent referred the Tribunal to Document B which lists all VETAB registered training organisations. The Samaritans is not included.

20. The advocate for the Respondent also submitted that even if the Samaritans were registered with VETAB, the organisation would still need to formally apply to Centrelink to ensure that it complied with all Centrelink requirements.

FINDINGS

21. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions and relevant legislation.

22. It had initially been the Respondent's position that because the Samaritans was not "registered with Centrelink" as a training organisation, it was not a registered training organisation for the purposes of the Determination.

23. In the course of the hearing the Tribunal discussed with the advocate for the Respondent the following legislative framework:

Pursuant to section 1061PA of the Social Security Act a person

"is qualified for a pensioner education supplement if the person:

(a) is undertaking qualifying study

..."

"Undertaking qualifying study" is defined in section 1061PB(1)(a)(i) of the Social Security Act as being "enrolled in a course of education at an educational institution". The course of education referred to in section 1061PB(1)(a)(i) has to be an "approved course of education or study" pursuant to section 1061PB(1)(b).

An approved course of education or study for the purpose of section 1061PB(1)(b) of the Social Security Act is defined in section 1061 PC of the Social Security Act as "...a course is an approved course of education or study if it is a course that the Employment Minister has determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or tertiary course for the purposes of that Act"

24. Under section 5D of the Student Assistance Act, the Minister may determine in writing secondary and tertiary courses. Determination No. 1999/2 made under sections 3(1) and 5D of the Student Assistance Act, defines in paragraph 5(2) (a), " a 'registered training organisation', being an organisation that is registered by the relevant State or Territory training recognition authority in accordance with the Australian Recognition Framework to provide one or more vocational education and training programmes." Thus, to satisfy the requirement of being an education institution in section 1061PB(1) of the Social Security Act the institution in this case (Samaritans) will have to be a registered training organisation under the Student Assistance Act for the ATLAS course in question to be "qualifying study" pursuant to section 1061PA(a) of the Social Security Act.

25. Therefore the relevant question for the Tribunal was not whether the Samaritans were "registered with Centrelink", but whether that organisation was a registered training organisation under the Determination. The Tribunal accepted that VETAB is the relevant training recognition authority in NSW and the evidence (Document B) is that the Samaritans is not a registered training organisation for the purposes of the Vocational Education and Training and Accreditation Act. This was conceded by Mrs Pye, and also Ms Wallace of the Samaritans.

26. The Tribunal must therefore find that the course undertaken by the Applicant is not one to which attracts the pensioner education supplement under section 1061PA of the Social Security Act. t is not for the Tribunal to speculate whether, had the Samaritans applied for registration with VETAB, whether it may have become a registered training organisation. If this had occurred, or if indeed it occurs at some later time, the Applicant's entitlement to the pensioner education supplement may be affected.

27. As to the submission on behalf of the Respondent that, even if the Samaritans were registered with VETAB, the organisation would still need to be approved by Centrelink; the advocate for the Respondent did not provide any legislative support for his submission. In respect of which the Tribunal makes no finding.

DECISION

28. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: H. Sim .....................................................................................

Associate

Date of Hearing 5 April 2002

Date of Decision 26 July 2002

Representative for the Applicant Mrs Pye

Advocate for the Respondent Mr G Lozynsky