Re Secretary To the Department of Social Security v Samantha Cooper [1990] FCA 38 (16 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: THE SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
And: SAMANTHA COOPER
No. WA G41 of 1989
FED No. 44
Social Security Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Social Security Act: sub.s 159(5) - whether a claim by a parent for a Handicapped Child's Allowance can be regarded as a claim by the child for an Invalid Pension - whether the reference to "a person" in paragraph (a) of sub.s 159(5) and the references to "the person" in paragraph (b) of the same sub-section are references to one and the same person - whether a Handicapped Child's Allowance is "similar in character" to an Invalid Pension.

HEARING

PERTH
16:2:1990

Counsel for the Appellant: Ms. Francas

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr. Christie

Solicitors for the Respondent: Michael Lees, Director of Legal Aid.

ORDER

That the Appeal be dismissed.

That the appellant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The Secretary to the Department of Social Security has applied to the Court by way of Appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal. That decision was given on 21 March 1989 by a Senior Member of the Tribunal upon an application made on behalf of Samantha Cooper, the respondent to the proceedings in this Court.

2. Samantha is a young girl who was born on 4 April 1971 and hence is now aged 18 years; she suffers from Downs Syndrome and it has been accepted that she has a significant intellectual impairment. Even so, she is able to attend a special school; she can sign her name and she can perform certain fundamental domestic tasks.

3. In May 1985, not long after her 14th birthday, Samantha's father applied to the Department of Social Security for a "Family Allowance" with respect to Samantha - she then being a child under 16 years of age. In the following month, Mr. Cooper was advised by letter from the Department that he had been granted a "family allowance for Samantha from 15 May 1985"; the letter went on to inform Mr. Cooper that Departmental records showed that Samantha had earlier been the subject of a Handicapped Child's Allowance: Mr. Cooper was invited to claim this allowance also. He accepted the invitation and signed and lodged the relevant claim on 5 June 1985 identifying "Downs Syndrome" in answer to the question "General Description of Handicap"; a Handicapped Child's Allowance was granted with respect to Samantha with effect, also, from 15 May 1985.

4. Thereafter the relationship between Mr. Cooper, Samantha and the Department continued without difficulty until 16 March 1987, some two weeks or so before Samantha's 16th birthday. On or about that day the Department forwarded to Mr. Cooper a document entitled "Review of Family Allowance for Student turning 16 or 18 years of age". ("T8"). The Tribunal found, as a fact, that the Department had a policy of notifying in writing a recipient of a Handicapped Child's Allowance that the child might be entitled to the receipt of an Invalid Pension on turning sixteen years of age. Such notice is given by a standard letter being sent out three months or so prior to the individual's sixteenth birthday.

5. The Tribunal found however that, if such an advice was sent, neither Mr. Cooper nor Samantha received it.

6. Mr. Cooper completed the document entitled "Review of Family Allowance for Student turning 16 or 18 years of age" (T8) and returned it to the Department. (I will henceforth call this document "the Review"). In it, he stated that, notwithstanding her attaining the age of 16 years, Samantha would be continuing as a student at her special school. The next document of relevance is an internal document of the Department entitled "Automatic Assessment, Review Transaction" (T9). It is clear from an endorsement on T9 that a decision was made within the Department to continue the Family Allowance and the Handicapped Child's Allowance with respect to Samantha.

7. From May 1987 until November 1987 Mr. Cooper continued to receive the Family Allowance and the Handicapped Child's Allowance with respect to Samantha. He said in his evidence before the Tribunal that sometime in November 1987 he was informed by one of Samantha's teachers that Samantha should have been receiving an Invalid Pension since her 16th birthday. He further said that he immediately went to an office of the Department and made a claim on behalf of Samantha for an Invalid Pension. It is conceded that the claim was accepted, virtually immediately by the Department, and that, pursuant to Samantha's authority the Department commenced paying to Mr. Cooper, on behalf of Samantha, an Invalid Pension with effect as from 12 November 1987.

8. These proceedings are concerned with the application that was brought in the name of Samantha in which she claimed, in respect of the period 4 April 1987 (the date of her 16th birthday) to 12 November 1987 (the date of the first payment of an Invalid Pension) the shortfall between the Invalid Pension and the Handicapped Child's Allowance. The case for Samantha is and always has been that the Department well knew that she suffered from Downs Syndrome, that it knew she would thereby qualify for an Invalid Pension upon attaining the age of 16 years and that, having regard to the provisions of sub.s 159(5) of the Social Security Act ("the Act"), (which is quoted hereunder) the Department should have treated the Review as her claim for an Invalid Pension.

9. Ms. Francas, counsel for the Department (the appellant in these proceedings) appropriately avoided any discussion of the merits of the stand taken by the Department save to say that it administers public moneys and in that capacity, it is compelled to administer them strictly in accordance with the law.

10. The first of the arguments advanced by the appellant was that Samantha had not made a claim for a Invalid Pension until November 1987 and that, in particular, her father's completion and submission of the Review was not and could not be treated as a claim made by Samantha. This issue was not argued before the Tribunal but counsel for Samantha consented to it being accepted as a ground of appeal in these proceedings.

11. The second and third arguments for the appellant amounted to a rejection of any proposition that the provisions of sub.s 159(5) of the Social Security Act could be called in aid by Samantha. That sub-section is in the following terms:

"(5) Where -
(a) a claim is made for the payment to a person of a
pension, allowance, benefit or other payment under
this Act, under another Act or under a program
administered by the Commonwealth; and
(b) the Secretary considers it reasonable that the
claim should be treated as if it were a claim for
the payment to the person of some other pension,
allowance or benefit (being a pension, allowance or
benefit under this Act that is similar in character
to the pension, allowance, benefit or other payment
to which the claim relates and for which the
person, in the circumstances, might properly have
made a claim);
the Secretary may, if a claim is lodged for the payment
to the person of that other pension, allowance or
benefit, treat the first-mentioned claim as if it were a
claim for that other pension, allowance or benefit, and,
where the Secretary does so, the first-mentioned claim
shall be deemed to be a claim, made and lodged in
accordance with the requirments of this Act and
containing the particulars set out in the
second-mentioned claim, for the payment to the person of
that other pension, allowance or benefit."

12. The appellant's second argument was that the reference to "a person" in paragraph (a) of sub.s 159(5) and the references to "the person" in paragraph (b) of the same sub-section were references to one and the same person. Thus she would interpret the sub-section upon the premise that, if indeed a claim had been made in March 1987 it could have only been a claim for a payment to Mr. Cooper: Mr. Cooper therefore became the "person" referred to in paragraph (a) of sub.s 159(5): the Secretary could, according to this interpretation of the sub-section, use his discretionary powers to assess or evaluate Mr. Cooper's purported claim and if he (the Secretary) concluded that the claim should be treated as if it were a claim for the payment to "that person" (i.e. Mr. Cooper) of some other pension allowance or benefit, then subject to the fulfilment of certain other conditions, the Secretary could treat the first-mentioned claim as if it were a claim for the second-mentioned pension allowance or benefit. But such an interpretation, according to Ms. Francas' second argument does not afford any assistance to Samantha and to her claim for an Invalid Pension.

13. The third and final argument mounted by the appellant was to this effect: even if the Review may be regarded as a claim and even if that claim may be regarded as a claim that had been made by or on behalf of Samantha for an Invalid Pension then, even so, the discretionary power given to the Secretary under paragraph (b) of sub.s 159(5) cannot be used because an Invalid Pension is not "similar in character" to a Handicapped Child's Allowance.

14. I return to the first argument: could it be said that the Review comes within the meaning of the word "claim" wheresoever that word is used in s.159 of the Act? Although "claim" is defined in s.3 of the Act, the definition is of no assistance to a determination of this issue; it simply means:-

"A claim for a pension, allowance or benefit made, or
deemed to have been made, under this Act;"

15. Standing back and considering the consequences of the Review, I have concluded that it should properly be described as a "claim". Despite its title, "Review of Family Allowance for Students turning 16 or 18 years of age", there is no doubt that the effect of this document, both as a matter of fact and as a matter of law, is to supply the Department with information that will determine whether the payment of a Family Allowance and/or the payment of a Handicapped Child's Allowance will continue. It is trite to state that if the claim had not been completed and returned to the Department or if, having been completed and returned, it showed that Samantha was no longer attending the special school, Mr. Cooper was at risk of losing one or other or both the allowances that he had enjoyed for the preceeding two years. In fact however, his supply of the Review to the Department and his supply of the information that was contained in the Review showed that his entitlement to the allowances continued; in this context therefore I am satisfied that his completion and submission of the Review to the Department was, at the least, a claim for the continuation of the allowances. So far as I am aware, the view that I have expressed is neither new nor novel: I understand it to accord with the unreported decision of the Tribunal in Reid v Secretary, Department of Social Security (No.V86/674, 30 March 1987).

16. Having identified that a claim for a Family Allowance and a Handicapped Child's Allowance had been made by Mr. Cooper in March 1987 I turn then to consider the appellant's second argument. It has, I concede, an immediate attraction; there is no doubt that a Family Allowance and a Handicapped Child's Allowance are paid to the parent or guardian of a child; it is the parent or the guardian who makes the claim for these allowances. Furthermore, it is a fact that an Invalid Pension is payable to the specified person whose physical or mental infirmity justifies the grant of the pension. Expressed another way, it is quite clear that it is the person in Samantha's position who is the only person entitled, as a matter of law, to make a claim for an Invalid Pension.

17. Thus it could be said that the facts of this case disclose two "persons" - Mr. Cooper and Samantha, whereas a strict reading of paragraphs (a) & (b) of sub.s 159(5) point to the existence of only one "person".

18. In Re Dixon and Director-General of Social Security (1984) 5 ALN No. N537 the facts were very similar to those under consideration in this present appeal. However Dixon's case involved a consideration of the former s.145 of the Act which was in the following terms:-

"145. Where a person makes a claim to an officer,
authority or Department of the Commonwealth for a
pension, allowance, benefit or other payment under
an Act other than this Act, or under a particular
provision of this Act, and the circumstances are
such that the claim might properly have been made
under this Act, or under some other provision of
this Act, as the case may be, the Director-General
may, if he considers it reasonable to do so, and
subject to the lodgment of a claim in accordance
with the appropriate form, treat the first-mentioned
claim, for the purpose of determining
the date from which a pension, allowance or
benefit is payable to that person under this Act,
as a claim for whichever pension, allowance or
benefit under this Act is appropriate in the
circumstances and as having been lodged in
accordance with this Act."

19. There are many differences between the former s.145 and the present sub.s 159(5) even though both provisions address the same subject matter. Some of those differences can be regarded as cosmetic, but the incorporation into sub.s 159(5) of the concept that the two pensions etc are to be "similar in character" is of great significance when the time comes to consider the appellant's third argument.

20. For the moment, I return to the facts in Dixon's case. Mrs. Dixon's two sons both suffered congenital defects that entitled her, with respect to each child, to a Handicapped Child's Allowance. Shortly prior to the 16th birthday of the elder son, Mrs. Dixon, at the behest of the Department, completed and submitted a claim form for Family Allowance for students aged 16 to 24 years and the Department determined that the Handicapped Child's Allowance for the elder child should continue. Twelve months or so later when the younger child had attained 16 years of age, an officer of the Department advised Mrs. Dixon that both children were eligible for Invalid Pensions; however the Department declined to back date any payment to the elder son's 16th birthday.

21. In determining that the elder son should be granted an Invalid Pension from his 16th birthday the Tribunal said:

"In my view, s.145 was intended to have a wider
application than this. It was intended to enable the
backdating of payment of a claim in circumstances
where, either the original application has been for a
payment to which the applicant was not entitled or, as
in this case, while the original application was for a
payment to which the applicant was entitled, there is a
more substantial payment available to the applicant
which was overlooked, whether by the applicant or by
the Department, at the time of lodging of the claim.
In either such case, the power to backdate becomes
desirable in order to enable the claimant to receive
something to which he would have been entitled had he
claimed it originally.

22. The passage just quoted calls, immediately, for two observations. First, it is untrammelled by the presence of the words "similar in character"; secondly, it makes no attempt to differentiate between Mrs. Dixon and her elder son as claimants or applicants for a Handicapped Child's Allowance and an Invalid Pension.

23. Despite the fact that the Tribunal did not address this latter issue, I am of the opinion that Dixon was correctly decided. The immediate attraction of the argument advanced by the appellant becomes highly suspect when one leaves the particular facts of this case and applies a literalist's approach to other common place situations. Consider for example, the common law doctrine as it applies to capacity to act in the case of the insane or the mental defective. Such people should undoubtedly qualify for an Invalid Pension - but their lack of capacity would mean, as a matter of law, that they could not appoint an agent to act on their behalf and their medical infirmities could well mean that they were physically incapable of completing the requisite written form: and the Full Court has held that the requirement in sub.s 159(1) of the Act that a claim shall be made in writing is mandatory: (Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687). To contemplate that such persons would thereby be rendered ineligible for an Invalid Pension would be preposterous. Obviously the legislation must be construed so as to enable a claim for an Invalid Pension to be made for or on behalf of such a person even though that person lacks the legal capacity to make the claim or to authorise his or her parent or guardian to act as an agent for the purpose of making the claim.

24. Furthermore, the Social Security Act is beneficial legislation and "... it should be construed so as to give the fullest relief which the fair meaning of its language will allow": (Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 per Isaacs J. @ 384). I appreciate that "the Court is always hesitant to read words into a Statute" (Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 per Northrop & Pincus JJ. @ 475 citing with approval the remarks of Wynn-Parry J. in Re Meux; Gilmour v Gilmour (1958) 1 Ch 154 @ 161); but if, despite this stricture, the opening words of sub.s 159(5) are extended to read:-

"Where -
(a) a claim is made for the payment to or for the
benefit of a person or a pension..."

then the claim that I have identified as having been made by the lodgment of the Review in March 1987 becomes a claim for the benefit of Samantha. It is true that the Handicapped Child's Allowance is paid to the parent or guardian of the relevant child; this is to be expected because tender years would make it wholly inappropriate to pay it direct to the child. Nevertheless the payment is made for the benefit of the child and as a consequence of the child's handicap even though it also compensates the parent or the guardian for the increase work load and the constraints that are imposed on him or her as a result of the child's condition.

25. The decision of the Tribunal in Formosa v Secretary, Department of Social Security (unreported: No. N87/507 A.A.T. No.4086) which was relied on by counsel for the appellant can be distinguished on its facts. Mrs. Formosa, the appellant, failed to apply in February for an age pension when she attained 60 years of age; in November of the same year she applied and received the pension but the Department refused to back date it to the preceding February, notwithstanding the fact that her husband had, prior to February applied for assistance in his own behalf but naming the appellant as his spouse. The question for determination was whether Mrs. Formosa, as a matter of law, was to be treated as having made an earlier application with the result that the age pension was payable to her from her 60th birthday. Mrs. Formosa was unsuccessful before the Tribunal and appealed to the Full Court: [1988] FCA 291; (1988) 81 ALR 687). The appeal was dismissed, the majority taking the view that it was fatal to Mrs. Formosa's claim that she had not personally made a written claim for an old age pension. Of the issue debated before the Tribunal Davies and Gummow JJ. said at p 690:-

"It was suggested in argument that the form was signed
by Mr Formosa for himself and as agent for his wife.
However, the tribunal made no such finding, saying that
the form was signed by Mr Formosa and was a claim for
payment to himself. Accordingly, there was no
foundation for an argument that there was a claim by
Mrs Formosa to a sickness benefit which might by
favourable exercise of the Secretary's decision under
s.159(5) of the Social Security Act be treated as a
claim for an age pension."

26. I turn next to the question whether a Handicapped Child's Allowance is similar in character to an Invalid Pension? The answer to this question must be found by considering the contents of the legislation but in considering the legislation it is not irrelevant to bear in mind that the same person, Samantha, was benefitting from the Handicapped Child's Allowance in the weeks before her 16th birthday and from the Invalid Pension in the weeks thereafter - and her physical or mental disabilities were undoubtedly the same within that short time frame.

27. The present allowance is now a Child Disability Allowance but at the relevant time, a Handicapped Child's Allowance was the subject of s.102 of the Act which stated:-

"102. Subject to this Part, where a person who has a
dependent child who is a severely handicapped child
provides, in a private home that is the residence of
that person and of that child, constant care and
attention in respect of that child, that person is
qualified to receive a handicapped child's allowance in
respect of that child"

28. Sub-section 101(1) defined a 'severely handicapped child' as being one who -

"(a) has a physical or mental disability;
(b) by reason of that disability, needs constant care
and attention; and
(c) is likely to need such care and attention
permanently or for an extended period."

29. Qualifification for an Invalid Pension is provided for by Section 28 of the Act which states -

"28. Subject to this Act, a person above the age of 16
years who is not receiving an age pension and -
(a) is permanently incapacitated for work or is
permanently blind; and
(b) is residing in, and is physically present in,
Australia on the date on which he lodges his claim
for an invalid pension,
shall be qualified to receive an invalid pension."

30. Counsel for the appellant referred to Favara v Secretary, Department of Social Security (1986) 16 ALD 64 in which it was held that a claim for a Family Income Supplement could not be used as a base, subsequently, to back date a claim for an Invalid Pension. The Tribunal distinguished a Family Income Supplement from a Handicapped Child's Allowance, holding that they were not similar in character. The Tribunal pointed out that an Invalid Pension is designed to be a complete income replacement whereas the Family Income Supplement is designed as a "top up" measure paid in cases of unacceptably low family incomes. This means that the Invalid Pension's relationship to income comes from the claimant's state of health whilst health has nothing to do with the Family Income Supplement. By comparison, a child's state of health is the criteria which determines entitlement to a Handicapped Child's Allowance just as the same person's stated health will determine an entitlement to an Invalid Pension.

31. The Tribunal in Favara's case noted that, when comparing two pensions, allowances, benefits or (to use a neutral term) payments, for the purposes of assessing whether they are, or are not, similar in character, there is a need to consider the use to which it is intended that the payment should be put and the criteria of eligibility. I agree and add that the undoubted use to which both the Handicapped Child's Allowance and the Invalid Pension will (or should) be put is the benefit of Samantha and it is Samantha's state of health that is the dominant criteria in determining eligibility: first for the Handicapped Child's Allowance when she was under 16: then for the Invalid Pension once she attained 16. The Tribunal also added in Favara's case that there was a need to consider the "administrative classifications of the Department, such as the distinction drawn between pensions, benefits and child related allowances" (p64). I do not immediately see the assistance that could be derived from this source but as it is not material to this decision I need not further consider it.

32. It may not be possible to assert that every recipient of a Handicapped Child's Allowance would upon attaining the age of 16, be entitled to an Invalid Pension, but undoubtedly the greater number would be. Even though it is apt to regard an Invalid Pension as "a complete income replacement" nevertheless the need to receive such a pension is brought about by the claimant's state of health which in turn relates back to the entitlement, for the same reason, to an Handicapped Child's Allowance. A person under 16 years of age cannot be a member of the conventional work force; therefore it is not to the point to argue that the Handicapped Child's Allowance is not related to income and is therefore dissimilar to the Invalid Pension. In short, I am satisfied that an Invalid Pension is similar in character to an Handicapped Child's Allowance. They both derive from the same unfortunate base - some serious health problem. Initially, and as I have already said, appropriately, the recipient of the payments is the parent or guardian; later, upon the relevant person attaining the age of 16, being the age where he or she would normally be eligible to enter the work force, the nature of the payment changes to have regard to that change in circumstances. But the substantive reason for the payment, the mental or physical infirmity of the relevant person remains constant.

33. In my opinion the Tribunal resolved this question of similarity correctly when it concluded its reasoning by saying:-

"Samantha was the beneficiary of an allowance as a
child under 16 years because she was severely
handicapped by an intellectual impairment. Once over
16 years she qualified for the Invalid Pension which is
paid only to persons who have attained 16 years of age.
Hence the Handicapped Child's Allowance is a payment
for disabled children under 16 years and the Invalid
Pension is a payment for disabled persons over 16
years. The differences between the two payments are
firstly, that Handicapped Child's Allowance is paid to
the parent or guardian of the child for the child's
support whereas the Invalid Pension is paid to the
pensioner himself or herself. Secondly, the
Handicapped Child's Allowance is a lesser payment than
the Invalid Pension. In the view of this Tribunal
these differences are not of such significance as to
take it out of the ambit of sub.s 159(5) of the Act."

34. For the reasons that I have set out, I am of the opinion that this appeal should be dismissed and that the appellant should pay the respondents costs.