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Administrative Appeals Tribunal of Australia |
Last Updated: 16 April 2007
CATCHWORDS – SOCIAL SECURITY – YOUTH
ALLOWANCE – whether undertaking full-time study – whether
undertaking in study period for which enrolled, or intended to be enrolled,
three-quarters
or more of the normal amount of full-time study in respect of
course for that period – meaning of ‘study period’
- failure
to notify of changed circumstance – whether debt raised – decision
affirmed.
Social Security Act 1991 ss. 23, 540, 541, 541A, 541B, 1222A and
1223
Social Security (Administration) Act 1999 s. 68
Higher Education Funding Act 1988 s. 39
Secretary, Department of
Family and Community Services and Matheson [2003] AATA 542
DECISION AND REASONS FOR DECISION [2003] AATA 748
ADMINISTRATIVE APPEALS
TRIBUNAL )
) S2002/326
GENERAL ADMINISTRATIVE
DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
And LAY-MINH UNG
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 4 August, 2003
Place: Adelaide
Decision: The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 12 August, 2002.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 12 September, 2002, the applicant, the Secretary of the Department of Family and Community Services (“Secretary”), applied for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 12 August, 2002. In that decision, the SSAT set aside a decision of a delegate of the Secretary to raise and recover a debt of $3,388.49 being youth allowance paid to the respondent, Mr Lay-Minh Ung, between 27 June, 2001 and 5 March, 2002. An Authorised Review Officer had affirmed the delegate’s decision on 14 June, 2002.
2. At the hearing, the Secretary was represented by his advocate, Ms Pugsley, and Mr Ung was represented by his advocate, Ms Riley. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence. Also admitted were a statement by Mr Ung dated 15 April, 2003, an enrolment form dated 25 October, 2000, amendments to his enrolment dated 16 and 24 July, 2001 and a statement of academic record for Mr Ung. Mr Ung gave oral evidence in support of his case.
THE ISSUE
3. The issue in this case is whether Mr Ung was overpaid youth allowance during the period 27 June, 2001 and 5 March, 2002. If he was not undertaking full-time study throughout the period, he was overpaid. Whether he was undertaking full-time study or not depends upon the amount of study that he was undertaking in the particular study period for which he was enrolled for his course, or intended to undertake in the next study period for which he intended to enrol for his course. Provided he undertook at least three-quarters of the normal amount of study in respect of the course for that period, he was regarded as a full-time student. Resolution of this issue requires a consideration of what is meant by a “study period”, in particular, s. 541B of the Social Security Act 1991 (“the Act”).
BACKGROUND
4. There was no dispute between the parties as to the facts forming the background to the issues that must be decided in this case. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.
5. Mr Ung was born on 5 June, 1980 and was granted a youth allowance from 1 July, 1998 on the basis that he was undertaking a course of full-time study. He commenced a Bachelor of Construction Management and Economics at the University of South Australia (“University”) in 1999 and continued receiving youth allowance in that year as well as in 2000. On 23 December, 2000, Centrelink sent a letter to Mr Ung advising him of the amount of payment of each youth allowance. The letter went on to set out information on a number of topics. One of those topics addressed what he had to do if there were events or changes in circumstances affecting his payment. If that happened, he had to advise Centrelink within 14 days of the events or changes of circumstances. The rate of payment of his youth allowance might need to be altered. Centrelink told Mr Ung that he had to notify it if any of the events and changes of circumstances listed in its letter were to occur. Among them was that he:
“stop being a full-time student;
...
apply for, or vary, your enrolment at school, college or university or other technical institution.” (T documents, page 23)
6. On 25 October, 2000, Mr Ung enrolled in Contract Administration 2, Development Economics N, Problems Based Learning and Research Methods and Professional Practice Project (“PPP”). Each of the first three subjects, or “courses” as they are described by University, was assigned 4.5 units and he enrolled for them in what he marked as “Semester 3” (Exhibit A). PPP was assigned 18 and he enrolled for it in Semester 1 of 2001. As part of PPP, Mr Ung was required to undertake a minimum of 130 days of practical experience. In 2002, this requirement was reduced to 80 days but at no time was there a maximum period of time. Some students completed only the minimum number of days required while others completed 240 days and yet others, including Mr Ung, completed 360 days. In addition to their practical experience, students were required to attend at associated workshops and presentations and to submit a ten thousand word report. All students were required to submit their reports by March, 2002. Mr Ung completed his practical experience with Build-Tec Services Pty Ltd (“Build-Tec”) in Semester 1 but continued to work for that company during the remainder of 2001. Like the other students, he submitted his report in March, 2002.
7. On 24 July, 2001, Mr Ung submitted a Course Amendment to Enrolment form to the University. In this context, the University used the word “Course” for “Subject” and “Program” for “Course”. The amendment was for Semester 2 in 2001. The amendment that he wanted to make was to add an additional course, Project Management N. On 29 July, 2001, Mr Ung submitted a second Course Amendment to Enrolment form to the University adding another course, Construction and Fire Engineering 2N, to his enrolment for Semester 2. Each of the two additional courses was assigned 4.5 points.
8. In all, I find, Mr Ung completed courses totalling 40.5 points during the period from the Summer School held in the period 2000/2001 to the end of 2001. On the basis of Mr Ung’s evidence, I am satisfied that he arranged his study in this way so that he could work for Build-Tec for the whole year. He did so because he had been advised by the staff at the University that it was advisable to undertake a longer period of work experience if he could. His brother, who had earlier completed the course, had given him the same advice. The manner in which he arranged his subjects across the three semesters was recommended by the University.
9. I find that the University regarded Mr Ung as a full-time student throughout the whole of 2001. He was enrolled as a full-time student, paid student fees on that basis and was given a full-time student card. Towards the end of 2001, Mr Ung enrolled in the subjects for his fourth year. He completed the work for his PPP report over the summer break.
10. Mr Ung notified Centrelink that he was working and of the money that he earned while he did so. He did not mention any of the changes that he had made in his enrolment and did not feel that he needed to as he had not stopped being a full-time student.
THE LEGISLATIVE BACKGROUND
11. Part 2.11 of the Act provides for youth allowance. The basic qualifications are set out in Subdivision A of Division 1. In so far as they are relevant, those basic qualifications are:
“Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:
12. Sections 541 and 541A are concerned with the activity test. In general terms, a person satisfies the activity test in respect of a period if he or she satisfies the Secretary that, throughout the period, he or she is undertaking full-time study, actively seeking and willing to undertake paid work in Australia, taking reasonable steps to comply with the terms of a Youth Allowance Activity Agreement or taking reasonable steps to comply with a requirement of the Secretary notified to him or her under s. 541(2) (s. 541(1)). A person cannot be taken to satisfy the activity test in the circumstances set out in ss. 541(3) and 541A of the Act.
13. What is meant by “undertaking full-time study” is dealt with in s. 541B(1) of the Act:
“For the purposes of this Act, a person is undertaking full-time study if:
(i) is enrolled in a course of education at an educational institution; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(i) is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
(ii) intends to undertake in the next study period for which he or she intends to enrol for the course;
either
(iii) in a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) or (4)); or
(iv) in a case to which subsection (1A) applies – at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and
14. The expression “normal amount of full-time study in respect of the course” as used in s. 541B(1)(b) is defined to mean:
“(a) if the course is a designated course of study within the meaning of Chapter 4 of the Higher Education Funding Act 1988 – the standard student load determined in respect of the course by the institution in question under subsection 39(2) of that Act; or
15. Section 541B(3) is also concerned with the meaning of the expression, “normal amount of full-time study in respect of a course” and it provides:
“For the purposes of paragraph (1)(b), and without limiting subsection (2), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.”
Again for the purposes of s. 541B(1)(b), s. 541B(4) provides that:
“... a person is taken to be undertaking full-time study in respect of a course during the period (the relevant period):
if the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period.”
16. Section 541B(1A) sets out the circumstances in which s. 541B(1)(b)(iv) has application. They are circumstances in which
“... the person cannot undertake the normal amount of full-time study in respect of the course for that period:
CONSIDERATION
17. In essence, the submissions made by Ms Pugsley and Ms Riley were the same as those in Secretary, Department of Family and Community Services and Matheson [2003] AATA 542, which I decided on 10 June, 2003. Having considered the matter again, I have come to the same conclusion. While I appreciate that an appeal has been lodged against my decision in Matheson, I have decided to proceed with my decision in this case because the circumstances in the two cases are different. While the law remains the same, the difference enables the matter to be considered against a different factual background. The submissions and the decision in Secretary, Department of Family and Community Services and Matheson were:
“17. In essence, Ms Pugsley submitted that the words “particular study period (such as, for example, a semester) for which he or she is enrolled in the course”, as they are used in s. 541B(1)(b)(i), should be interpreted to refer to a period representing a semester and not to the whole of the academic year. She submitted that the reference to “a semester” in s. 541B(1)(b)(i) is a strong indicator that the “particular study period” to which reference is made is a semester. A more prescriptive approach precludes enrolment options outside the traditional university structure. Enrolment, Ms Pugsley submitted, is a matter of administrative convenience. Enrolling students for an entire year’s progamme is a cost effective approach to administration and allows both the academic institution and students to plan their year’s work. What she described as the “aggregate style of enrolment” does not remove the distinction between distinct periods for which subjects are scheduled. Students may modify their enrolment without penalty provided they do so within set periods.
18. Particular reference needs to be made to the fact that the provision requires that the person “is enrolled”, Ms Pugsley submitted. That means that regard must be had to his or her enrolment at the point of time being considered. If the study period were the whole of the academic year, the person would be unable to demonstrate enrolment in Semester 1 subjects when he or she was studying in Semester 2. Defining a “study period” as the academic year precludes a person from applying for youth allowance were he or she to enrol for full-time study in only Semester 1 but undertake no study at all in Semester 2. It is only appropriate to define a “study period” as an academic year if the subjects he or she is studying occupy the whole of the academic year.
19. Ms Pugsley supported her submission by reference to the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 (“Study Progress Guidelines”), the Explanatory Memoranda to the Social Security Legislation Amendment (Youth Allowance) Act 1998 (“1998 Amendment Act”) and the Youth Allowance Consolidation Act 2000 (“Consolidation Act”). With regard to the Study Progress Guidelines, Ms Pugsley noted that satisfactory progress in a long course (i.e. a course longer than one year; clause 1.4) is completion of the course within the standard minimum length of the course plus an additional period for completion of one uncompleted subject or unit that is part of the course (clause 2.1). To define the “study period” in s. 541B(1)(b)(i) as an academic year would render this provision redundant, Ms Pugsley submitted.
20. Relying on the Second Reading Speech to the Youth Allowance Bill 1997, Ms Riley submitted that the object of the provisions relating to youth allowance were to “... encourage young people to complete or further their education by removing undesirable incentives to leave education early ...” and “... to make income support arrangements simpler and more flexible”. She also submitted that an uneven study load should be assigned a yearly value. That was the situation in Ms Matheson’s case. She was viewed by the University as a full-time student and paid fees and was issued a student card accordingly.
21. Both Ms Pugsley and Ms Riley referred to authorities, which they acknowledged were in conflict. Ms Pugsley preferred the approach of the Tribunal in Re Coleman and Secretary, Department of Family and Community Services [2002] AATA 772, (2002) 71 ALD 105 (Senior Member Kiosoglous). In Coleman, Senior Member Kiosoglous concluded:
“39. In considering this matter the Tribunal agrees with the Department that it needs to consider the need for flexible learning options by the various universities in providing their courses. The Tribunal is satisfied that the Department's semester focus is not exclusionary but a rather consistent approach to students in similar circumstances. In making submissions Mr Underwood referred to the extrinsic evidence and the legislation. The Tribunal is satisfied that the legislation supported by the extrinsic evidence means that a student has to do a certain amount of points per semester and on the facts presented to this Tribunal the applicant unfortunately falls short.
40. Notwithstanding this and the intention of the legislation it is not made clear to students as to the proper interpretation of the legislation so as to enable students to know how to spread out their subjects during the year. The Tribunal is satisfied and finds that the youth allowance is not a study allowance but rather an activity allowance which allows, inter alia, the right to study. The proper meaning should be made quite clear to students to assist them in planning their study program not only for a full academic year but also for the amount of subjects it is necessary for them to undertake each semester in order to reach the 75% minimum required in section 541B(1)(b)(i) of the Act. This is unfortunate for the applicant who has shown himself to be a very keen and conscientious student.” (pages 112-113)
22. Ms Riley relied on the general approach of the Federal Court in Secretary, Department of Family and Community Services v Gray [1999] FCA 1150, (1999) 57 ALD 67 and the particular approach of the Tribunal in Re Secretary, Department of Family and Community Services and Machan [2001] AATA 434 (Senior Member Allen). She submitted that the words “study period” should be interpreted as referring to the whole of the year in the circumstances of this case. In Machan, Senior Member Allen found that Ms Machan was enrolled in the fourth year of an engineering degree. She structured her study so that she completed all of her compulsory and elective subjects in the first semester and concentrated only upon a thesis in the second semester. Senior Member Allen found that the University of Sydney considered that Ms Machan was enrolled on a yearly basis rather than, as might occur in some other faculties, on a semester basis.
23. Since these two cases were decided, Deputy President Handley has delivered a decision in Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433 in relation to similar provisions relating to Austudy payments. Mr Zhang initially enrolled in five subjects in each of two semesters in a Bachelor of Information and Communication Technology degree at the University of Wollongong. He subsequently withdrew from two in the autumn session and later withdrew from three in the spring semester. He also enrolled in two subjects in the summer session. Consequently, he completed five in the first two sessions of the year but completed a further two subjects in the summer session. The University of Wollongong had determined that the standard student load was 48 credit points per year and that a student would ordinarily undertake eight subjects each worth six credit points. In the three sessions during the year, Mr Zhang completed seven subjects worth 42 credit points. He completed more than three-quarters of the full-time study load for the year.
24. Deputy President Handley’s concluded that Mr Zhang was not a full-time student for the following reasons:
“36. The issue that has arisen in this case is as a result of Mr Zhang’s spreading the normal full-time student load undertaken in spring session over the spring and summer sessions. He did this in order to undertake what he perceived to be two particularly difficult subjects in spring session 2001 in the aftermath of the theft and torching of his car. Neither the legislation nor the departmental policy makes any express reference to a situation where a student spreads their load over three sessions. In the Tribunal’s view, clarification is required.
37. The Tribunal considers that the decision in Re Machan (supra) should be distinguished from this case because the student in that case was at all times regarded by the University of Sydney as a full-time student and because of the particular character of the thesis subject she undertook which was recognised as requiring a very significant commitment of time. Moreover, the Tribunal found that results were annual and the emphasis was on yearly enrolment.
38. The facts of Re Coleman (supra) are closer to those in Mr Zhang’s case. In Re Coleman, a less than three quarter load in one semester was dictated because of the subjects on offer. The student completed more than a three quarter load if his enrolments in both semesters were taken into account.
39. While in many tertiary institutions, the standard student load is determined on an annual basis, because subjects are often semester based or sessional, a student may be permitted to study full-time in one semester and part-time in another. The dictates of work and family not uncommonly require this. In the Tribunal’s view, the bachelor degree in which Mr Zhang was enrolled at the University of Wollongong was, at least in the first year of the program, organised around semester based or sessional subjects. The particular study period was one semester or session. The fact that students enrolled for both autumn and spring sessions at the beginning of the academic year was a matter of administrative convenience and it was open to students to vary their enrolment for spring session at a later time.
40. In Mr Zhang’s case, he undertook and completed only two subjects in spring session 2001, representing one half of a standard student load for one session. The Tribunal notes that the advice he received from a University administrative officer did not identify this as a problem in relation to his Austudy payments. Mr Zhang had an obligation to notify Centrelink of the variation in his enrolment for spring session 2001 – and he attempted to do so. That attempt, however, failed. Had it succeeded, Mr Zhang might not be in his present predicament. Nevertheless, there were mitigating circumstances which the Tribunal discusses below.
41. The Tribunal concludes that because Mr Zhang only completed one half of a standard student load in spring session 2001, he was not qualified for Austudy payments in that session and an overpayment of Austudy, constituting a debt to the Commonwealth, was correctly raised against him.”
25. In Gray, Hill J was concerned with whether Mr Gray was a full-time student within the meaning of the provisions of the Austudy Regulations made under the Student and Youth Assistance Act 1973 (“the SYA Act”) but his approach is relevant in this case. It was to dissect the requirements of the Austudy Regulations and then to apply the facts to those requirements. That is the approach that I intend to apply in this case. When I do that and disregarding some of the requirements that are not in dispute in this case, the requirements are that, throughout the period under consideration:
26. Having set out the requirements in this way, it seems to me on their face that the emphasis of the requirements set out in s. 541B is upon enrolment. It is upon enrolment in the course. It then moves to the study period for which the person is enrolled and then to the normal amount of full-time study for the period for which he or she is enrolled for that study period. The study period for which a person is enrolled then becomes a question to be ascertained on the facts of the case. Reference is made to a semester in s. 541B(1)(b)(i) but it is given as an example and not as the only possible period of study for which a person may be enrolled. I note that this interpretation is consistent with s. 15AD(a) of the Acts Interpretation Act 1901, which provides that “Where an Act includes an example of the operation of a provision ... the example shall not be taken to be exhaustive”.
27. Reference was also made to the Study Progress Guidelines. They are a disallowable instrument made by the Minister under s. 541B(3B) of the Act and so have the character of delegated legislation. As a general rule, regard is not had to delegated legislation in interpreting the provisions of the Act. There are, however, exceptions to that general rule. Of relevance in the circumstances of this case are two exceptions. One occurs when regard must be had to both an Act and the delegated legislation made under it in order to ascertain the nature of a scheme. The other is perhaps a variation on the theme of the first. That occurs where an Act and the delegated legislation is prepared contemporaneously and establish an interdependent regime (Pearce and Geddes, Statutory Interpretation in Australia, 5th edition, 2001, paragraph 3.37 and cases referred to therein).
28. In this case, it is not the case that regard must be had to both the Act and the Study Progress Guidelines to ascertain the nature of the scheme. The nature is clear from the Act. Rather, it is the case that the Study Progress Guidelines supplement one of the details of the scheme provided for in the Act. Whether their supplementary nature goes so far as to mean that the two establish an interdependent regime is not something that I need decide. Even if they do, I do not consider that the Study Progress Guidelines assist in the interpretation of the period to which reference is made in s. 541B. They specify what amounts to satisfactory progress in relation to a long course, short course, honours course, masters qualifying course, combined course option and competency-based training and self-paced study together with study following failure of a previous course or withdrawal from a previous course. A “long course” is a “... course of education the standard minimum length of which is a period longer than 1 year” (cl. 1.4). In relation to such a course:
“satisfactory progress ... is completion of the course within a period of time comprising:
(a) the standard minimum length of the course; and
Examples
...” (cl. 2.1(1))
29. This provision in relation to the satisfactory completion of a long course does not shed any different light, or any light indeed, on the manner in which s. 541B(1)(b)(i) should be interpreted. It assumes that subjects will be either a semester or a year in length and sets the time for successful completion accordingly. In order to have effect, it does not necessarily require that the study period for which a person is enrolled for a course extends only for one semester if the subjects or units comprising the course are each completed in a semester. The two operate quite independently. A person may be undertaking full-time study in the particular study period for which he or she is involved and, regardless of the length of that study period, may not be regarded as making satisfactory progress towards completing it by reference to the time within which the person completes the course.
30. In summary, it seems to me that no assistance is to be gained from either the Study Progress Guidelines or the Explanatory Memoranda. What is the study period for which a person is enrolled remains a question of fact to be decided in each case. This is not an easy question to answer in this case because there is very little information available to me from the University.”
18. In applying these principles to Mr Ung’s case, I am satisfied that he was enrolled in a course of education as required by s. 541B(1)(a) and that the course was an approved course of education or study as required by s. 541B(1)(c). I am also satisfied that Mr Ung was making satisfactory progress towards completing the course as required by s. 541B(1)(d). The only question was whether he was undertaking the required amount of full-time study in the study period for which he was enrolled in accordance with s. 541B(1)(b). In the circumstances of this case, the amount of full-time study required was a minimum of three-quarters of the normal amount of full-time study in respect of the course for that period (s. 541B(1)(b)(iii)). “That period” must refer back to the particular study period for which Mr Ung was enrolled.
19. In considering the particular study period for which he was enrolled, I have looked first to the enrolment form that he completed on 25 October, 2000. That form was headed “Enrolment – 2001”. That heading suggests that the enrolment was for the whole of the year. In relation to each course, or subject, for which Mr Ung enrolled, he was required to enter its code, unit value, title, semester, mode and band. He wrote “3” as the semester in which he was studying Contract Administration 2, Development Economics N, Problems Based Learning and Research Methods and “2” as the semester in relation to which he was studying PPP. The course amendment to enrolment form does not refer to any particular period although it asks the student to identify the semester in relation to which the withdrawal or addition is to occur (Exhibit A). If a person is a full fee paying overseas student, he or she is reminded that he or she must obtain approval from the Program Director if he or she is to “reduce ...[his or her] study load for the year” (Exhibit A).
20. An extract shows the subjects that must be studied in each of the four years of the degree (T documents, page 55). It shows Contract Administration 2, Development Economics N, Problems Based Learning and Research Methods and Broadening Elective 2 as the subjects to be studied in Semester 1 of third year and PPP in Semester 2. It also shows that Construction and Fire Engineering 2N is a Semester 2 subject in the fourth year of the degree. Notes at the conclusion of the page state that students must complete the courses in each year before continuing to the following year. On the basis of the extract, I find that courses equating with 36 units had to be studied each year.
21. Mr Stefan Hornlund, who is the Program Director of the Bachelor of Construction Management and Economics at the School of Geoinformatics, Planning and Building at the University, wrote an e-mail to Ms Riley regarding PPP and the way in which it is incorporated in the course or program. He wrote:
“The Professional Practice Project (PPP) makes up all of Semester 2 of Year 3 in the Bachelor of Construction Management & Economics program. We run a few sessions in how to write a resume, how to behave in a job interview session etc but the main part of the course is industrial experience.
Students typically find themselves a job with a building contractor or a OS firm and they need to get a minimum of 80 days of appropriate experience. That means that they basically should be involved in everything that for example a contractor does. This typically involves time in the office dealing with estimating etc and time on site dealing with various aspects of site management.
Students are required to maintain a logbook and have that verified by their employer(s). they are also required to produce a report and make presentation on their experience. This is all assessed.
The PPP is officially a Semester 2 course but the 80 days required can be taken at other times. Semester 1 of Year 3 (Semester 5) runs both March June and as a Summer Semester, November – January. This allows students to for example complete Year 2, do the Summer Semester and then take a whole year to work and fulfil the PPP requirements before entering Year 4.
Another alternative could be to study half-time (two courses) in both the Summer Semester and in the normal Semester 5, whilst working part-time. If they have completed the PPP requirements that way they could actually commence Year 4 In July.
I hope that explains the PPP and some of the options available.” (Exhibit A)
22. Having regard to his evidence and to his enrolment form, I find that Mr Ung took advantage of the flexibility inherent in Mr Hornlund’s e-mail and undertook three of the courses marked for completion in Semester 1 in the Summer Semester running from November, 2000 to January, 2001. Even though he undertook practical work for the whole of 2001, I find that he completed his PPP in Semester 1. I make that finding on the basis of the Statement of Academic Record. He undertook the fourth course in Semester 2 of 2001 as well as a course marked for Semester 2 in his fourth year.
23. Although the extract of the program for the degree suggests that particular subjects have to be studied in particular semesters, I am satisfied on the basis of Mr Hornlund’s email that this is not so. Flexibility is permitted and this is consistent with the fact that Mr Ung’s amendment to his enrolment was approved to enable him to study a fourth year subject in Semester 2 of what would otherwise have been his third year.
24. Having regard to this evidence, I am satisfied that the study period for which Mr Ung was enrolled was 2001. That is so even though he nominated courses, or subjects, only for the Summer Semester and Semester 2. It is so even though it appears that the University has regarded him as having completed PPP in Semester 1 rather than Semester 2. The fact that Mr Ung later enrolled for two further subjects in Semester 2 adds weight to my conclusion. Had Mr Ung’s enrolment only been for study periods comprising the Summer Semester and Semester 1, there would not have been any need to have submitted an amendment to his course enrolment. Rather, he would have been enrolling. As it was, he had to submit an amendment as his enrolment had been for the whole of 2001 together with the Summer Semester rather than an enrolment for one or two semesters.
25. Having regard to these aspects and to the evidence in the case generally, I have concluded that the particular study period for which Mr Ung was enrolled for the course (or Program to use the word adopted by the University) was the academic year 2001 together with the Summer Semester in 2000/2001.
26. The next issue is to determine what amounts to the normal amount of full-time study in respect of the course for that period. While I accept that Mr Ung held a full-time student card and was regarded by the University as a full-time student for the whole of the period, s. 541B has its own way of deciding whether or not he was undertaking full-time study. It is based on how much of the normal amount of full-time study in respect of the course that he “is undertaking” or “intends to undertake” in the study period. I do not have any evidence that the University has determined a standard student load pursuant to s. 39 of the Higher Education Funding Act 1988 or that it has defined the amount of full-time study that a student should typically undertake. That means that I must look to s. 541B(2)(c) and look to the average amount of full-time study that he would have to undertake for the duration of the course in order to complete it in the minimum time. On the basis of the extract in the T documents, I have concluded that the average amount of study in the study period would be 36 units.
27. In the study period for which I have found Mr Ung to have been enrolled, I have already found that he undertook 40.5 units. This is over and above the required 36 points and so I have concluded that he was undertaking full-time study in the period.
28. As the recipient of a youth allowance, Mr Ung was a recipient of a social security benefit and so of a social security payment (s. 23(1)). Consequently, he was a person to whom s. 68(2) of the Social Security (Administration) Act 1999 (“Administration Act”) applied. Therefore, the Secretary could give him a notice requiring him to inform Centrelink if a specified event or change of circumstances occurred (Administration Act, s. 68(2)(a)(i)). Such a letter was sent to Mr Ung on 23 December, 2000 and it required him to notify Centrelink if he varied his enrolment at University. He did vary his enrolment when he submitted Course Amendment to Enrolment forms on 24 and 29 July, 2001 but he did not notify Centrelink. In not notifying Centrelink, he was in breach of his obligation to do so.
29. What is the consequence of his failure to do so? As a social security payment and in the circumstances of this case, the amount paid only becomes a debt that he owes to the Commonwealth and so must repay to the Commonwealth if:
“(a) a provision of this Act, the 1947 Act, the Social Security (Fares Allowance) Rules 1998 or the Data-matching Program (Assistance and Tax) Act 1990 expressly provided that it was or expressly provides that it is, as the case may be; ...” (s. 1222A)
“the payment was made as a result of a contravention of the social security law, a false statement or a misinterpretation;” (s. 1223(1AB)(d))
31. Although I am satisfied that Mr Ung has omitted to comply with an obligation arising as a result of s. 68(2) of the Administration Act and the letter of 23 December, 2000, I am not satisfied that the amount of youth allowance paid to him was paid as a result of that omission. On the view I have taken of his continuing to undertake full-time study in the period after he amended his enrolment, I am satisfied that Mr Ung was paid youth allowance because he was entitled to it.
32. For these reasons, I affirm the decision of the Social Security Appeals Tribunal dated 12 August, 2002.
I certify that the thirty-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ...(sgd. . P. Paczkowski).........................
P. Paczkowski Associate
Date/s of Hearing 29 April, 2003
Date of Decision 4 August, 2003
For the Applicant Ms A. Pugsley,
Service Recovery Team, Centrelink
For the Respondent Ms M. Riley,
Welfare Rights Centre (SA) Inc
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