Higher Education Support Act 2003 (Cth), ss 169-25, 169-27, 169-28

1. In 2001 Anna Williams was undertaking a Bachelor Degree course at the Charles Sturt University. She enrolled in five single-session subjects, three in the first session and two in the second session. She failed to complete one of the first session subjects as she was unable to sit the subject final examination. She was granted permission to sit the examination at the end of the second session, which she did. Centrelink decided that Ms Williams did not satisfy the activity test requirements in respect of full-time study in the second session and cancelled her Youth Allowance. This decision has been affirmed by an authorised review officer and by the Social Security Appeals Tribunal.
2. The background facts are not in dispute. In 2011, Ms Williams was enrolled in a Bachelor of Business (Business Management) degree course at the Charles Sturt University. The normal duration of this course is "Full-time on campus 3 years (6 sessions)"[1], requiring completion of 192 points, or 24 subjects, including core subjects, specialist subjects and electives.
3. In Session 2011 30 (Session 1), she enrolled in three subjects - Marketing Communications (MKT310), Service Operations and Management (MGT 310) and Financial Management (FIN211)[2]. On 24 February 2011, the University issued a Statement of Enrolment, confirming that Ms Williams' enrolment constituted a 75 percent full-time load for this session.
4. Ms Williams claimed[3] and was granted Youth Allowance[4].
5. Ms Williams did not complete the Financial Management subject in Session 1 for medical reasons and she was granted an 'SX' supplementary examination grade[5]. This meant that she would be permitted to sit the subject examination at the end of Session 2, whereupon a final grade for the subject would be awarded.
6. On 12 July 2011, the University issued an Enrolment Advice for Session 2 that Ms Williams was enrolled in Business Organisation Law (LAW220) and Business Strategy (MGT330) subjects[6].
7. On 18 July 2011, Sue Petzke, Course Manager in the Faculty of Business, certified that -

Anna is currently enrolled in 2 subjects and has an SX grade carried over from the first session. This effectively accounts to a 75% study load for this session.[7]

1. On 1 August 2011, Centrelink suspended Ms Williams' Youth Allowance[8]. This decision was affirmed by an authorised review officer on 15 September 2011[9] and by the Social Security Appeals Tribunal on 14 February 2012[10].
2. The issue for determination is whether Ms Williams qualified for Youth Allowance from 13 July 2011. For this purpose it is necessary to determine whether she satisfied the activity test for Youth Allowance by undertaking 'full-time study' in a particular study period for which she was enrolled in the Bachelor of Business degree course.
3. Ms Williams says that in Session 2 of 2011 she was effectively enrolled in three subjects: Business Organisation Law (LAW220), Business Strategy (MGT330) and, by SX extension, Financial Management (FIN221). This, in her submission, involved an equivalent study load to that she undertook in Session 1, albeit that the Financial Management subject was, in effect, repeated. She likened the 'SX' grading, in practice, to failing and repeating the subject, but without an 'FL' or fail grade being recorded on her transcript - the repeat study load in preparation for the final subject examination would be the same.
4. The Secretary says that Ms Williams did not qualify for Youth Allowance in Session 2 of 2011 as she was only enrolled in two subjects, being half the normal full-time study load in that period for the Bachelor of Business degree course. In the Secretary's submission the 'SX' course cannot count towards Ms Williams' study load.
5. The matter is to be decided by application of the relevant sections of the Social Security Act 1991 (Cth) (the Social Security Act). Under s 540, in order to qualify for Youth Allowance during a period, relevantly, a person must satisfy the Activity Test set out in s 541 during that period and may do so by undertaking 'full-time study'. The determinants of undertaking full-time study are set out in s 541B, including undertaking "in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course" "at least threequarters of the normal amount of fulltime study in respect of the course for that period". Further assistance is provided in respect of the meaning of 'the normal amount of full-time study'-

541B (2) For the purposes of paragraph (1)(b), the normal amount of fulltime study in respect of a course is:

(a) if:

(i) the course is a course of study within the meaning of the Higher Education Support Act 2003; and

(ii) there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;

the fulltime student load for the course;

...

1. Thus, applying this framework, the first matter to determine is the particular study period for which Ms Williams was enrolled for the Bachelor of Business degree course. This factual question is no easy matter to determine on the materials provided by the University. Doing the best with the available materials, it is probable that Ms Williams enrolled for five subjects spread over two sessions during the 2011 academic year. Her "Unofficial Student Transcript" dated 24 February 2011 indicates that she was enrolled in three subjects in Session 2011 30 (Session 1) and two subjects in Session 2011 60 (Session 2).
2. The University's outline for the Bachelor of Business course indicates that 192 points from 24 subjects spread over six sessions would constitute the minimum requirements for completion on a full-time basis, that is with four subjects being completed and 32 points being credited per session. On this basis, the particular period of study for which the student is enrolled might be a single session for the purposes of s 541B.
3. It appears that students may enrol, year by year, albeit on a sessional basis with the possibility of making subject changes, session by session. This is what Ms Williams did in February 2011.
4. The University's policy concerning the award of an 'SX' supplementary examination grade where a student is prevented from sitting a final examination in a subject must be considered in this context. Even though the Charles Sturt University Enrolment Regulations are not in evidence, it appears that the policy governing the conduct of supplementary examinations, at least in the School of Business, provides for deferral by some 17 weeks to the examination period at the end of the following Session. On the evidence of Gaye Livermore, Course Administrative Officer -

Essentially an SX is an extension to complete a subject. As a consequence, the student will remain enrolled in the subject until a substantive grade has been awarded. The academic progress of a student will be delayed until the subject graded SX are [sic] converted to a substantive grade (Charles Sturt University Academic Progress Regulations paragraph 4.1).

1. This approach to policy is confirmed by Dr Calvin Wang, Faculty of Business Course Director, in an undated document that was filed on 12 October 2012, which I will label Exhibit 1. Dr Wang said -

"SX examinations are held during the next examination period which is at the end of Session 2. As the SX is held a number of months on from when they were actually studying the subject, the student is expected to continue to study and review this subject in order to have a good chance of passing the subject at the end of Session 2."

1. In an email dated 3 December 2012 (Exhibit 2), Miriam Dayhew, University Ombudsman, confirmed the policy and said -

- An SX grade is an invitation to undertake a further examination in a subject and indicates further time to complete a subject...

- The SX grade will allow a student to retain access to University facilities until the examination has been marked and the subject grade finalised. The student is not undertaking formal course-work, nor submitting progressive assessment items for that subject during this period.

- ...

- The enrolment is open only allowing the student another opportunity to demonstrate competence in the subject.

- The SX is not active enrolment in a subject and does not incur any further financial liability such as fee or HECS-HELP, although it will hold open enrolment in a course is the student is carrying no other active subject.

- ...

1. Considering this evidence, it appears to me that the SX policy, in effect, extends the student's enrolment in the particular subject, pending completion of the examination and with the expectation that "... the student must continue studying this subject until the grade has been resolved"[11]. To my mind the policy allows for enrolment in a single-session subject over a two-session period, even though the formal course-work may have been completed in the first session. Thus, the extenuating circumstances of a particular case may result in enrolment in a single session subject being extended to the extent that the particular study period for which the student is enrolled in the course is two sessions, not one.
2. Even if this is correct, and the particular study period in which Ms Williams was enrolled in 2011 covers two sessions, it does not assist her. Enrolment in a subject or in a course, alone, is not sufficient - the study load requirements of s 541B must be satisfied in order for her to satisfy the Activity Test under s 541 and to qualify for Youth Allowance.
3. No issue relating to a concessional study load was raised or agitated by the parties, and this has not been considered.
4. It appears that the full-time student load for the Bachelor of Business degree course in which Ms Williams was enrolled in 2011 is four eight-point standard subjects per session, with two sessions each year - in total, eight eight-point subjects in that year.
5. If one assesses her enrolment on a session by session basis, she was enrolled in three eight-point subjects in Session 1, constituting 75 percent of the normal amount of full -time study for the course in this period; and she was enrolled in two eight-point subjects in Session 2 with a continuing enrolment in the Session 1 subject that had not been completed. To my mind, her study load in Session 2 of 2011 was less than 75 percent of the full-time study load of the course for this period. There was no requirement on Ms Williams to undertake formal course-work in respect of the uncompleted Session 1 subject in Session 2, indicating that her study load in this subject in Session 2 was less than that applying in Session 1. Even though it may have been expected that she would continue to study the subject in order to sit the final subject examination, I am not persuaded that this is equivalent to the full-time student load for this subject in a single session.
6. Even though Ms Livermore and Ms Petzke provided evidence that Ms Williams was completing 75 percent of an equivalent full-time study load in Session 2011 60, how they arrived at this conclusion is not clear to me. Despite opportunity, neither witness was called to give evidence, so this point could not be clarified. It appears to me that the University's policy position on this matter is very far from clear. The further materials provided by Dr Wang and Ms Dayhew are not consistent with the assessments made by Ms Livermore and Ms Petzke. Furthermore, as a matter of simple logic, I fail to understand how the study load of two students undertaking the same subject, with identical course-work and assessment items, could be the same where the study load of one student is to be assessed in one session and the study load of the other student is to be assessed over two sessions, albeit with a 17-week delay between the formal course-work and the final examination.
7. Ms Williams' Declarations dated 13 June 2012 and 20 August 2012, which for convenience I will label Exhibits 3 and 4 respectively, set out matters relating to her studies during Session 2 of 2011, including studying 12 hours per week and obtaining study guidance from an Honours student and a knowledgeable relative. These Declarations were not challenged. Nevertheless, Ms Williams' assertion that "All of the Financial Management studies I undertook on a private basis during Session 2, 2011, were carried out in exactly the same way as they were carried out during Session 1, 2011..." may be correct insofar as her attitude or effort is concerned, but it is not correct in respect of formal course-work and progressive assessment items. To my mind, removal of the study requirements in relation to formal course-work and progressive assessment items diminishes Ms Williams' study load for this subject in Session 2 of 2011.
8. The proposition pressed by Ms Williams that an 'SX' grade should be likened to an 'FL' or fail grade has little merit. If a student fails a subject and then re-enrols in order to repeat it, he or she would be subject to the full study load of that subject, including requirements relating to formal course-work and progressive assessment items. A student with an 'SX' grade is not subject to those requirements. On any assessment or construction, this difference must be taken into account. Ms Williams' submissions on this point are not persuasive. The present evidence is not sufficient to establish that she undertook a full-time student load, or 75 percent of the normal amount of full time study in the course in which she was enrolled in Session 2 of 2011, particularly in respect of the Financial Management subject. I am reasonably satisfied that she did not. The full-time student load of a course cannot be determined simply on the basis of the commitment or efforts, however diligent, of the particular student, but must be determined on the basis of objective factors such as formal course-work, progressive assessment items, contact hours and so forth for each of the subjects or units of study in which the student is enrolled in a particular period. This may be understood by reference to the determination of equivalent full-time student load values for a unit in a course of study under s 169-25, s 169-27 and s 169-28 of the Higher Education Support Act 2003 (Cth).
9. The present materials do not establish, to the reasonable satisfaction standard, that Ms Williams undertook 75 percent of the normal amount of full-time study for the course in which she was enrolled in Session 2 of 2011. On balance, on a session by session assessment, it is probable that she undertook less than 75 percent of the normal amount of full-time study for the course during that period. I so find. It follows that she does not satisfy the 'full-time study' requirement of the Activity Test under s 541 and s 541B during this period.
10. No different result is obtained if one adopts a two-session, or full year, assessment of Ms Williams' study load for the course in which she was enrolled in 2011. It is quite plain that she was enrolled in a total of five subjects spread over the two sessions in that year. The full-time study load for the Bachelor of Business course for two sessions or for one year is eight subjects. It follows that Ms Williams did not undertake 75 percent of the normal amount of full-time study for the course in that period.
11. This means that Ms Williams did not qualify for Youth Allowance from 13 July 2011 and the decision under review must be affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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