Editors --- "AUSTUDY: whether 'full-time student' undertaking qualifying study" [2010] SocSecRpr 43; (2010) 12(3) Social Security Reporter, Article 9

• TOFT and SECRETARY TO THE DEEWR
• Background
• The law
• Discussion
• Formal decision

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AUSTUDY: whether ‘full-time student’ undertaking qualifying study

TOFT and SECRETARY TO THE DEEWR

(2010/650)

Decided: 30th October 2010 by R.W. Dunne

AUSTUDY: whether ‘full-time student’ undertaking qualifying study

Background

Toft commenced a Bachelor of Ecotourism degree at Flinders University in 2007. In Semester 1 of the 2009 academic year, she was enrolled in four subjects. All but one subject which involved Practicum (supervised practical application of a previously or concurrently studied theory) was counted towards her study load for Austudy purposes.

On 31 March 2009, Toft withdrew from one subject and as a result, based on the values given to those subjects it appeared that she dropped below the threshold for ‘full time study’. Centrelink then raised an overpayment of $2266.53 for the period from 1 April 2009 to 8 June 2009, when her Austudy was cancelled.

The law

The question of qualification for an Austudy payment turns on various provisions in the Social Security Act 1991 (the Act). The relevant provisions in the Act are s.568 (the general rule for qualification), s.569 (which sets out the activity test), s.569A (which explains the meaning of the expression ‘undertaking qualifying study’), s.569C (which explains when a person is a ‘full time student’), s.569E (which explains what is ‘the normal amount of full time study’) and s.569G&H (which explains when a person satisfies the progress rules).

Discussion

Toft claimed that she was unaware that she had fallen below the full-time study threshold or why the Practicum subject did not appear in her unofficial transcript. Toft explained that she was enrolled for the Practicum course in Semester 1 of 2009 and was required to attend lectures and go to the Practicum as part of the course.

She also tendered as evidence a letter from the Associate Professor of the University which clearly stated that the Practicum subject was compulsory and that it involved lectures every Wednesday with 80% attendance requirement.

The Tribunal accepted Toft’s evidence that she was enrolled and had attended the Practicum course in Semester 1 of 2009, thus it counted towards her study load.

The Tribunal then considered Rafty and Secretary to the DFCS [2002] AATA 1299 which said that the normal amount of full-time study must be calculated in respect of each Semester and it cannot be averaged over the length of the whole course of study. However, with all three undertaken subjects accounted for, Toft’s study load in that Semester still fell slightly short of the standard load of a ‘full-time student’.

It was not disputed that Toft’s course required her to participate in subjects which were Semester-based. However, the Tribunal noted that irrespective of the length of time required to complete a subject, Toft’s results were annual and re-enrolment was for the academic year.

The Tribunal then examined the information which appeared on the University’s website, headed ‘What is full time study or EFTSL?’ which clearly said: ‘A normal year’s work by a full-time student is 36 units of study... [which] represents a standard full-time load. An Equivalent Full-time Student Load (EFTSL) is also used as a measure of the study load... 1EFTSL is equivalent to 36 units.’

The Tribunal pointed out that there is nothing which necessarily equated the calculation of the standard student load with Semester periods in this case. It referred to the case of Secretary to the DFCS and Machan [2001] AATA 434, which examined the definition of ‘full-time student’, and in that section, the words ‘for a particular study period (such as, for example, a semester)’ and noted that a Semester-based calculation is an example, and not a definitive measure.

The Tribunal then turned to the design of the Act and its inherent beneficial nature and referred to DSS v Knight [1996] FCA 1177; (1996) 72 FCR 115, which emphasised [at 122] that ‘...if ambiguity existed...it could be construed to the fullest relief which the fair meaning of its language will allow.’ On this note, the Tribunal decided to take the approach in Machan and to recalculate Toft’s EFTSL value in the 2009 academic year to derive an aggregate value, as opposed to using a Semester-based value.

The next question was whether Toft’s workload for the 2009 academic year was at least three-quarters of the normal amount of full-time study, or 0.75 of EFTSL. In a mathematical exercise looking at all subjects undertaken for that particular academic year, the Tribunal found that Toft exceeded the workload requirements, and therefore satisfied the definition of a ‘full-time student’ for the purposes of the Act.

Formal decision

The Tribunal found that there had been no overpayment and that Toft was entitled to the Austudy payments she received during the relevant period. The Tribunal set aside the decision under review and remitted the matter to DEEWR for reconsideration in accordance with its findings.

[C.W.]