Ball and Department of Family and Community Services [1999] AATA 479 (18 June 1999)

Last Updated: 14 July 1999

DECISION AND REASONS FOR DECISION [1999] AATA 479

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/225

GENERAL ADMINISTRATIVE DIVISION )

Re MARGARET BALL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 18 June 1999

Place Brisbane

Decision The Tribunal affirms the decisions under review.

(Sgd) EK CHRISTIE

MEMBER

CATCHWORDS

SOCIAL SECURITY - family allowance - Austudy entitlement - payday based payments - period payments - eligibility for entitlement when a payday based payment coincides with a period payment

.

Social Security Act 1991 ss 5, 42, 832, 863

Acts Interpretation Act 1901 s 25E

REASONS FOR DECISION

18 June 1999 Dr EK Christie, Member

1. This is an application for Margaret Ball for a review of a decision of the Social Security Appeals Tribunal [the SSAT] dated 7 January 1999 that she was not entitled to any form of income support payments viz. family allowance [FA] and Austudy, for the period 13 March to 26 March 1998. The SSAT decision affirmed earlier decisions made by an Authorised Review Officer on 8 October 1998 and Centrelink on 12 October 1998. The income support payments related to Mrs Ball's son, Peter.

2. The issue before the Tribunal was whether or not Mrs Ball was entitled to either FA or Austudy payments for her son Peter for the period 13 March to 26 March 1998.

Facts

3. The general facts were not in dispute and may be stated briefly:

(a) Mrs Ball was in receipt of family allowance in respect of her son Peter until payday 12 March 1998.

(b) Peter turned 16 on 26 March 1998 which was the next family allowance payday after 12 March 1998.

(c) However, Peter was granted Austudy commencing on 26 March 1998.

4. The SSAT accepted that the delay in payments of Austudy to Peter - the first payment not being made until 17 April 1998, as well as the failure to receive any income support payments over the period 13 to 26 March 1998, has caused Mrs Ball and her family financial difficulties (Document T2 Folio 5 paragraph 15).

Mrs Ball's case

5. Mrs Ball told the Tribunal that before Peter turned 16 on 26 March 1998, she received a letter from Centrelink saying that as from 26 March 1998 she would no longer get FA for Peter as he would get Austudy from that day. She said that she was advised that Austudy would take over where FA left off.

6. Mrs Ball felt the law was wrong and unfair and that other people in the same situation should not have to face similar financial problems as they had faced. Regardless of the Tribunal decision she hoped commonsense might be applied so that something worthwhile might come out of her application for review of the Centrelink and SSAT decisions.

Centrelink's case

7. Centrelink's position can be summarised as follows:

* FA is a "payday based payment". The day Peter turned 16, 26 March 1998, was a FA payday. As he turned 16 on that day he was not entitled to FA - that is, his FA ended on the previous payday 12 March 1998.

* Peter was granted Austudy on 26 March 1998. Austudy is a period payment. It is paid fortnightly in arrears i.e. it is not a "payday based payment".

* Accordingly, there was no provision in the Social Security Act 1991 which allowed payment of FA to Mrs Ball after 12 March 1998.

Consideration of the Issues

8. The Tribunal has considered the relevant parts of the Social Security Act in relation to the facts of this application and makes the following conclusions:

* That on 26 March 1998, Peter was no longer a FA child of Mrs Ball because on that day he turned 16. However, he was qualified for Austudy on and from that day [Social Security Act ss 5, 832 and Acts Interpretation Act 1901 s 25E];

* That in order to receive FA in respect of Peter for the period 13 March to 26 March 1998, Mrs Ball had to be qualified to receive the payment on 26 March 1998. However, as Peter was not a FA child on that day, Mrs Ball was not qualified to receive FA; and

* That because FA payments are payday payments, Mrs Ball was only entitled to receive FA for Peter on the previous payday i.e. 12 March 1998. This payment was received.

* The effect of these conclusions is that Mrs Ball cannot receive any FA payment from 13 March to 26 March 1998 [Social Security Act ss 42, 853].

* Peter was granted Austudy on 26 March 1998. Austudy is a period payment and was paid to Mrs Ball fortnightly in arrears from 26 March 1998.

* Unfortunately, there is no discretion in the Social Security Act which allows the Tribunal any discretion to enable Mrs Ball to be paid some form of income support payment - FA or Austudy, over the period 13 to 26 March 1998. It is also unfortunate that there is no discretion under the statute to allow payment to Mrs Ball as the loss of money over this period has meant financial hardship for herself and her family.

9. These findings mean that Mrs Ball's application for review of the SSAT decision is unsuccessful. Mrs Ball is not entitled to receive FA or Austudy payments over the period 13 March to 26 March 1998. This situation has arisen because Peter was "trapped" in the circumstances of turning 16 on a date when he became qualified for Austudy. This meant he was no longer a FA child of Mrs Ball on that day.

10. This decision may seem unfair or harsh and even inconsistent with the beneficial nature of the Social Security Act. However, it is Mrs Ball's unselfishness, persistence and concern for the public interest which has brought this matter to the attention of the Tribunal. The Tribunal commends Mrs Ball for appearing before a forum as wide as the Tribunal to share her concerns on these issues. The Departmental Advocate advised the Tribunal that as from July 1999, all family payments will be periodic payments and so consistent with the method for Austudy payments. Hopefully, the problems Mrs Ball has encountered will not occur in the future for other members of the community.

11. A copy of this decision will be sent to the Department's Community FoCuS, a scheme the Department has for policy suggestions to ensure this outcome might be the case.

12. The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed: Bob Loftus

Associate

Date/s of Hearing 18.6.99

Date of Decision 18.6.99

Counsel for the Applicant

Solicitor for Applicant Applicant appeared in person

Counsel for the Respondent

Solicitor for the Respondent Mr S Letch, Departmental Advocate