Bach and Department of Family and Community Services [2000] AATA 639 (2 August 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1827

GENERAL ADMINISTRATIVE DIVISION )

Re MARION BACH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date 2 August 2000

Place Sydney

Decision The decision under review is affirmed.

[Sgd] S M Bullock

Member

CATCHWORDS

Social Security - Family Allowance - Payment - Payday or pay period based payments - Legislative change - exgratia/act of grace payments

Social Security Act 1991 subsections 5(6), 6(1) 42(1), (2), (833)(1)(2), 863

Financial Management and Accountability Act 1997 section 33

Re Grillo and Secretary, Department of Social Security (1990) 21 ALD 377

Re Western and Secretary, Department of Social Security (1991) 61 SSR 845

Re Hamilton and Secretary, Department of Social Security (1993) 77 SSR 1124

Re Harris and Secretary, Department of Social Security (1993a) 29 ALD 599

REASONS FOR DECISION

MS S M Bullock, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Marion Bach, the Applicant, in relation to a decision made by the Social Security Appeals Tribunal ("SSAT") on 10 November 1999 (T2). The SSAT decided that Mrs Bach could not be paid family allowance for the period 3 June 1999 to 12 June 1999, an identifiable period of non-payment for her son Christopher Bach. This decision affirmed the decision of an Authorised Review Officer ("ARO") made on 14 September 1999 (T11). The ARO's decision had affirmed the original decision made by a delegate of the Secretary, Department of Family and Community Services ("the Department") made on 24 May 1999 that no family payment was payable for Christopher Bach after 3 June 1999 (T5). A hearing was held before the Tribunal in Sydney on 3 May 2000. Mrs Bach did not attend the hearing and advised the Tribunal by conference telephone that she did not want to provide evidence to the Tribunal but wished this to be done by her husband Mr Jeffrey John Bach, who would also represent her. The Respondent, the Department, was represented by Ms S Mantaring, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents", T1 - T12) and the following exhibits:

Exhibit Number Description Date

A1 Extract from the Payment Processing Legislation Amendment (Social Security and Veterans' Entitlements) Act 1988, No 132 1998 Assented to December 1998

R1 Respondent's Statement of Facts and Contentions 29 February 2000

issues

2. The issue in this matter is whether or not Mrs Bach was eligible to be paid Family Allowance for the period 3 June 1999 to 12 June 1999.

legislation

3. A determination in this matter requires consideration of the provisions of the Social Security Act 1991 ("the Act") relating to Family Allowance, relating to prior 1 July 1999.

4. It should be noted that effective from 1 July 1999, the Payment Processing Legislation Amendment (Social Security and Veterans' Entitlements) Act 1998 132 of 1999 changed Family Allowance payday-based payments to period-based payments effective from 1 July 1999.

5. Subsection 5(6) of the Act states that a 16 year old cannot be considered a dependent child if receiving a Social Security benefit, for example Youth Allowance.

6. Subsection 6(1) of the Act, relevant at the time, deals with Family Allowance paydays and states:

6(1) In this Act, unless the contrary intention appears:

approved care organisation means an organisation approved by the Secretary under subsection 35(1).

assumed notifiable event means an event referred to in a determination in force under point 1069-H5 of the Family Allowance Rate Calculator.

double orphan means a young person who is a double orphan in accordance with section 993 or 994.

FA child, in relation to a person, means a dependent child of the person who is an FA child of the person in accordance with sections 831 to 836.

family allowance payday means:

(a) the Thursday that fell on 11 July 1991; and

(b) each following alternate Thursday.

Family allowance period, in relation to a person who is receiving family allowance, means:

(a) in relation to the year in which the person first receives family allowance - the period that starts on the day on which the person starts to receive family allowance and ends on the next 31 December; or

(b) in relation to any other year - the period that starts on 1 January in that year and ends on 31 December in that year.

7. Section 42 of the Act deals with payday-based and period-based payments and as relevant, prior to 1 July 1999 stated:

42 (1) Some payments under this Act are payday-based and others are period-based.

42 (2) If a payday-based payment is payable to a person, the person will be paid a full instalment of the payment on each payday during the period during which the payment is payable to the person and will be paid nothing on a payday outside that period.

Note 1: The payday-based payments are the social security pensions, family allowance and parenting payment.

Note 2: The general rule in subsection (2) is subject to exceptions if a person is transferring between pension PP (single) and PP (partnered). See section 504E in Part 2.10.

8. A note to section 42 states that Family Allowance is a payday-based payment.

9. Section 833 of the Act indicates that a person who has turned 16 can not be a Family Allowance child except in certain circumstances and as relevant states:

833(1) Subject to subsection (2), a person who has turned 16 cannot be an FA child.

833 (2) A person who has turned 16 and is undertaking secondary studies may be an FA child until:

(a) the end of the calendar year in which the person turns 18; or

(b) the person ceases secondary studies;

whichever happens first.

10. Section 863 of the Act deals with payability of Family Allowance and as relevant states:

863 (1) Subject to section 864, a full instalment of family allowance is payable to a recipient on each family allowance payday on which:

(a) the recipient is qualified for family allowance; and

(b) family allowance is payable to the recipient.

(2) If the amount of an instalment of family allowance would not be up to a multiple of 5 cents, the amount is to be rounded up to the nearest multiple of 5 cents.

background

11. The information contained here is provided by way of background and the facts contained herein are not in dispute.

* On 17 June 1983, Mrs Bach claimed Family Allowance for her son, Christopher Bach, whose date of birth is 13 June 1983.

* 3 June 1999 was the date of the receipt of the last Family Allowance payment for Christopher Bach. Mrs Bach received payment of $128.80, the maximum rate of Family Allowance for a child between 13 and 15 years of age.

* From 3 June 1999, no further Family Allowance was paid to Christopher, but Family Allowance continued for Mr and Mrs Bach's two younger children, Nicholas, who was aged 15 years at the time of the hearing and Jeffrey, aged 23 months at the time of hearing (T7).

* Prior to 3 June 1999, an application was made in respect of a Youth Allowance for Christopher.

* On 21 June 1999, Christopher Bach's Youth Allowance for the period 13 June 1999 to 18 June 1999 was credited to J & M Bach's bank account in the amount of $73.20 (T8).

* On 22 June 1999, Mrs Bach wrote to the Department seeking a review of the decision not to pay Family Allowance for Christopher (T9). Mrs Bach wrote:

"I have been reliably informed by the Welfare Rights Centre, that I am entitled to receive a pro rata payment of family allowance for Christopher Bach (203 - 373- 914B), for the period 3/6/99 to 12/6/99...Advice from the reception desk at Camden Centrelink is that no pro rata payments will be made, when Christopher became 16 years old on the 13/6/99. This decision causes me to lose 10 days of family allowance which equals $92.00. Please review this decision." (T9)

* On 22 June 1999, a departmental delegate affirmed the decision noting, "No guidelines to pay pro-rata payment of Family Allowance" (T10).

* Mrs Bach sought a review by an ARO who on 14 January 1999 decided to affirm the decision under review (T11). The ARO noted:

"Decision is affirmed. There was no allowance under the Act to pro-rata fpa until 1/7/99, thus, with child having turned before 17/6/99, no fpa could be paid for him on that day." (T11, p18)

In his letter to Mrs Bach, the ARO further noted:

"My decision was based on the following findings:

* Your Family Payment Paydays in the period in question were 3/6/99 and 17/6/99

* Christopher turned 16 on 13 /6/99

* You were not qualified for any FPA for Christopher on 17/6/99."

(T12, p23).

* On 28 September 1999, an application for review was lodged with the SSAT, which on 10 November decided to affirm the ARO's decision (T2).

* On 8 December 1999, Mrs Bach lodged an Application for Review to the Tribunal, noting that the SSAT's decision was wrong because:

"* Other persons have received pro-rata family allowance payments.

* Christopher Bach was a full time student on his birthday of 13/6/99 when he turned 16 years old (he still continues to be a full time student) therefore Family Allowance should have been extended to pay day 17/6/99 & then Youth Allowance commenced.

* the decision not pay pro-rata Family Allowance or to extend FAMILY

ALLOWANCE has placed his family in FINANCIAL HARDSHIP." (T1)

evidence and submissions of mr jeffrey bach

12. Mr Bach told the Tribunal that Mrs Bach had gone to Camden Centrelink office and made arrangements to sign an application form for Youth Allowance for Christopher. This process took place over the counter at the office reception. Mrs Bach attended the office a "couple of months" before Christopher's 16^th birthday, which was to occur on 13 June 1999. Mr Bach told the Tribunal that Mrs Bach did not want to have any problems or "hitches".

13. Mr Bach informed the Tribunal that it was explained to Mrs Bach by the Centrelink officer that Christopher should start on Youth Allowance on his 16^th birthday and that he would be paid on that date. This situation would be the most financially advantageous, Mrs Bach was informed. Mrs Bach noted that there was no mention at that time that as a result of claiming Youth Allowance, Mrs Bach would forfeit ten days of Family Allowance payment. When in fact it was ascertained by Mrs Bach that there would be no payment on 3 June 1999, this was totally unexpected, Mr Bach informed the Tribunal. Mrs Bach was not instructed or given the opportunity to make any other arrangements, if such arrangements could have been made, to prevent the forfeiture of the ten days Family Allowance, which amounted to approximately $92, Mr Bach stated. Mr Bach reiterated that there was no discussion with Mrs Bach by the Centrelink officer of the implication for Family Allowance of claiming Youth Allowance, nor indeed about the method of payment of Family Allowance.

14. Mr Bach wished the Tribunal to understand that Mrs Bach merely asked what was the best thing that she could do for her son given that he was about to turn 16. She understood that Christopher would have to apply for Youth Allowance to continue receiving money. At the time of claiming Youth Allowance, Christopher was in fact a full time student and would remain a full time student after his 16^th birthday at Camden High School. As it happened, Youth Allowance was paid at a higher rate than the Family Allowance which had been paid for Christopher to Mrs Bach up until 3 June 1999.

15. Mr Bach had two alternate contentions in relation to the matter before the Tribunal. Firstly, Mr Bach considered section 42 of the Act prior to 1 July 1999 and argued that that part of the Act was flawed in law because the word "period" as used in subsections 42(1), (2) and (3) was ambiguous, having multiple meanings. Although noting that Centrelink has interpreted the Act in a certain way, Mr Bach contended that the letter of the law could be applied in another way so that Christopher's Family Allowance could be paid fully. While the Act mentioned the term "period" several times in subsections 42 (1), (2) and (3) and at various other parts of the Act, Mr Bach contended that the term was not clearly described. In this regard, Mr Bach contended that "period" could mean a 14 day period as a pay-period or it could also mean a period of a certain length of time, where a person is qualified for a number of days. Mr Bach noted that there was insufficient distinction as to what was meant by "period" in the Act and, because of the lack of definition of the word, it was difficult to distinguish between whether the period was for 14 days or for a period of a certain number of days where a person would be qualified for an allowance or payment. If the Tribunal accepted this submission, then Mr Bach argued that this would allow Christopher to receive a pro-rata payment of Family Allowance of $128.80 from the 4 June 1999 to his birthday.

16. Specifically turning to consider subsection 42(1) of the Act, Mr Bach reiterated that there is not yet at that point any explanation of what is meant by the term "period". Further, in subsection 42(2) of the Act, Mr Bach submitted that this subsection states that a payday-based payment is payable to a person and the person will be paid a full instalment of the payment on each payday during the period. Once again, Mr Bach asked what is meant by the term period.

17. In subsection 42(3) of the Act, Mr Bach noted that if a period-based payment is payable to a person, the person will be paid only for the particular period, which may be less than a fortnight. Here was an indication, Mr Bach submitted, where the "period" in subsection 42 (3) might be "x - days" which might be less than a fortnight but there was no such qualification in subsections 42(1) or (2) of the Act.

18. Referring to the Payment Processing Legislation Amendment (Social Security and Veterans' Entitlements Act) 1998, and specifically note 3 in Schedule 1 to the amending Act, Mr Bach noted that the term "payday-based payment" is to be omitted from section 3 (Exhibit A1). The Act was changed post July 1999, Mr Bach contended, because the old Act was "sloppy to the point where it was flawed in law" (page 10 of the Transcript).

19. Mr Bach referred the Tribunal to precedents where in law in the past, there have been flaws in various Acts which caused them to be altered, amended, or "scrapped". In this regard Mr Bach noted that some decades ago one could see signs on country roads indicating that radar would be "used" to check a car's speed. Those signs continued to be present for some time until they were challenged in the courts. Mr Bach submitted that the point in his example was that once upon a time radar was used to check speed but there was an issue of whether the word in the sign "used" meant that radar was used to check speed or radar was used at a particular point when a driver went past the sign to check the speed. The interpretation of the language could be for the motorist that he or she did not need to worry because there was no longer any check being undertaken on the speed, because "used" could mean in the past. Alternatively, the term could be interpreted to signify the fact that radar was going to be activated in relation to checking a motorist's speed. Mr Bach put to the Tribunal that the interpretation that the Department of Motor Transport or the police put on the sign had to be very careful and very precise in order to convey its intended meaning, so as to cause motorists to check their speed and slow down. The result of the misinterpretation of the signs meant that all had to be removed and new signs erected with different wording on them because of the ambiguity/double meaning of the word "used".

20. Mr Bach informed the Tribunal that he had advice from the Welfare Rights Centre, Sydney, that section 42 of the pre July 1999 legislation in its use of the word "period" was unworkable and when challenged it would break down and it would be necessary to omit payday-based payments in a new or modified Act.

21. Mr Bach continued that if there were no lawful reason to accept his argument, then there certainly was no moral reason why Christopher could not receive a pro-rata payment for the period in which he was qualified to receive Family Allowance of $128.80 from the payday 3 June 1999 up to his birthday of 13 June 1999 because he was qualified for a period of "x-days", that is 10 days (page 11 of the transcript). Mr Bach conceded that Christopher was not qualified for a full 14 day pay period but the legislation was not fine enough at that time to distinguish between the two to preclude a 10 pro-rata being paid to Christopher, even though Centrelink had interpreted the Act in a different manner.

22. In the alternative, if the Tribunal did not accept Mr Bach's argument in relation to section 42 and the ambiguous meaning of the word "period", then his alternate submission related to subsection 863(1) of the pre July 1990 Act. In this regard, Mr Bach submitted that Christopher could have remained on Family Allowance from 3 June 1999 to 17 June 1999 because he was a full-time student. Mr Bach submitted that Mrs Bach was provided with incomplete and detrimental departmental advice when she attended the Camden Centrelink office inquiring about the application of Youth Allowance to Christopher's situation. Never was Mrs Bach advised of the possibility of forfeiting Family Allowance payment as a result of Christopher transferring to Youth Allowance from his 16^th birthday. There was never any discussion with Mrs Bach of the options nor of the fact that if Christopher did not apply for Youth Allowance, because of the operation of section 863 he could have continued to receive Family Allowance because he was a full-time student. Mrs Bach took the Department's advice however, and arranged for Christopher to apply for Youth Allowance which he was subsequently granted, to her detriment. There was thus error or omission on the part of the Department which caused detriment to Mrs Bach. It was a misrepresentation to provide her with this misleading and incomplete information and not to inform her of the pertinent facts which included her options.

23. Mr Bach contended that the Department could not have it "both ways". In this regard, he contended that if section 42 of the Act did not allow for pro-rata payment for Family Allowance and that it could only be paid in "chunks" of 14 day periods, then on that scenario, Mr Bach submitted that the Family Allowance should not have dropped to $23.70 up to the pay period of 17 June 1999 if Christopher had remained on Family Allowance post 17 June 1999. While acknowledging that the Family Allowance payment could have dropped for the full period, Mr Bach contended that Christopher was less than 16 years old for 10 out of the 14 day period between pay days and therefore the rate of $128.80 should have continued because it could not have been split up based on the application of section 42 that there could be no pro-rata payment. Thus, if the Department argues that the Family Allowance could not be broken up into periods of less than 14 days, then it could not, on its own reasoning, later on split up the payment. Mr Bach contended therefore that subsection 863(1) of the Act permitted Christopher to stay on the rate of Family Allowance of $120.80 until 17 June 1999, four days past his birthday, and then Christopher could have transferred to Youth Allowance.

24. Mr Bach concluded that it is the responsibility of the Department to provide for families and their welfare. Staff should have been properly briefed as to the implications of Family Allowance pay periods and the impact of a transfer to another allowance, in Christopher's case, to Youth Allowance.

25. Mr Bach asked the Tribunal to consider that while the loss of Family Allowance from 3 June 1999 to 12 June 1999 might not represent much money to Bill Gates, to Mrs Bach and her family the loss of this amount of Family Allowance was a "savage blow". Mr Bach is on a Disability Support Pension and the only other income for the family at that time was the Family Allowance payments.

26. Accordingly, Mr Bach submitted that Mrs Bach should receive Family Allowance in the amount of either approximately $92 or $70, depending which submission the Tribunal accepted.

respondent's submissions

27. Ms Mantaring referred the Tribunal to subsection 42(1) of the Act, which states that some payments under the Act are payday-based and other payments or allowances are period-based. Prior to 1 July 1999, Family Allowance was a payday-based payment. However, effective from 1 July 1999 the Payment Processing Legislation Amendment (Social Security and Veterans' Entitlements) Act 1998, Act No 123 1998 changed the payday-based payments to period-based payments from 1 July 1999. Ms Mantaring submitted that the change of law could not be applied retrospectively to Mrs Bach's situation. Ms Mantaring referred the Tribunal to subsection 6 (1) of the Act, which states that a Family Allowance payday means that day on a Thursday which fell after 1 July 1991 and following each succeeding alternate Thursday up to and including 1 July 1999. Hence, in Mrs Bach's situation, she was paid Family Allowance for Christopher on Thursday, 3 June 1999 with the next pay day if eligibility was present, being 17 June 1999.

28. Ms Mantaring referred the Tribunal to section 863 of the Act, which states that a full instalment of Family Allowance is payable on each Family Allowance payday on which the recipient is qualified for the payment. For Family Allowance to be paid to Mrs Bach for Christopher on 17 June 1999, as is contended by Mr Bach on Mrs Bach behalf, then Christopher would have to be a Family Allowance child on that date. Because of the operation of subsection 833 (1), which states that a child cannot be a Family Allowance child once he or she turns 16 years of age, final payment of Family Allowance is paid up until the Family Allowance pay day prior to the child's 16^th birthday. Mrs Bach's case, Ms Mantaring contended that this was on 3 June 1999.

29. There are circumstances in which a child over 16 can receive Family Allowance if they are a full-time secondary student. Subsection 833(2) is relevant, however in Christopher's case, in June 1999, Family Allowance could be paid to customers for a 16 or 17 year old full-time student only at the minimum rate at $23.70 per fortnight, as discussed in attachment A to Exhibit R1. If Mrs Bach had been eligible on 17 June 1999 for Family Allowance for Christopher, she would have received $23.70 and not $128.80, the rate she was previously receiving, which was the maximum rate of Family Allowance at that time.

30. Ms Mantaring contended, however, that Mrs Bach was not eligible to receive Family Allowance for Christopher for the Family Allowance payday on 17 June 1999 because Christopher could not be considered a dependent under subsection 5 (6) of the Act, which states that a 16 year old cannot be a dependent child if he or she is receiving a Social Security benefit, of which, the Youth Allowance being received by Christopher, is one such benefit.

31. In relation to Mr Bach's contention that the law was flawed in its failure to properly and unambiguously define the word "period" there is no evidence of this. The law is quite clear the Family Allowance prior to 1 July 1999 was a payday-based payment.

32. Further, in response to Mr Bach's contention that Mr Bach should have been paid Family Allowance until 17 June 1999 and Christopher's Youth Allowance should have started from 18 June 1999, Ms Mantaring submitted that had that been the case, the combined amount that Mrs Bach and Christopher would have received would have been less. In this regard, Mrs Mantaring noted that Mrs Bach would have received $23.30 for the payday 17 June 1999 and Christopher would have received $14.64 for 18 June 1999, totalling a combined Social Security payment of $38.34, as compared to Christopher's Youth Allowance of $73.20. Alternatively, on Mr Bach's submission, if an amount of $128.80, the maximum rate of Family Allowance less the rate of Youth Allowance for a ten day period of $58.56, had been paid, this would have produced an allowance of $70.24, which again is less than that received, Ms Mantaring submitted.

33. Ms Mantaring referred the Tribunal to the calculations utilised in working out Christopher's rate of Youth Allowance, namely subsection 559B(1) and subsection 1067G-B2. As such, subsection 559B(1) states that for Youth Allowance instalments for periods of less than a fortnight, the amount is worked out using the formula of week days in the period divided by ten multiplied by the Youth Allowance rate. Further, subsection 1067 (G - B2) lists in Table A that a person such as Christopher who was living at home and was not yet 18 years old has a Youth Allowance rate of $146.00.

34. In conclusion, referring to Mr Bach's contention that the legislation was flawed, there is no evidence to support this. Ms Mantaring referred to the possibility of Mrs Bach obtaining some assistance from the Financial Management and Accountability Act 1997, which could deal with the situation where there may be some detriment to Mrs Bach but for which there was no remedy under the Act.

findings

35. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, Mr Bach's submissions and by applying the legislation.

36. It is clear that the legislation prior to 1 July 1999 was that Family Allowance payment was a payment which was payday-based. Mrs Bach was paid Family Allowance for Christopher on 3 June 1999. The next payday was 17 June 1999. Before this later payday was reached however, Christopher turned 16 years of age.

37. Mr Bach has contended on Mrs Bach's behalf that the law as it stood prior to 1 July 1999 when the Family Allowance payment was payday-based, was unclear in its definition of the term "period". Further, Mr Bach contended that there is no definition of the term "payday-based" period. Referring specifically to the manner in which the term "period" is dealt with in subsections 42(1), (2) and (3) of the Act, Mr Bach submitted that the law was ambiguous and prone to misinterpretation. Why else was the legislation changed from 1 July 1999 to allow Family payment to become a period-based payment, he asked the Tribunal. In such circumstances, Mr Bach's submission is that Mrs Bach should have been provided with a pro-rata payment of Family Allowance up until Christopher's 16th birthday on 13 June 1999.

38. Applying section 863 of the Act, a full payment of Family Allowance is payable on each Family payday in which the recipient is qualified. On 3 June 1999, a Family Allowance payment for Christopher Bach was paid to Mrs Bach because she was eligible and payable. On the next Family Allowance pay day of 17 June 1999, the Tribunal finds that Christopher Bach was not eligible for Family Allowance as he had turned 16 on 13 June 1999 and had also applied for and become eligible for a payment of a Youth Allowance. As such, the Tribunal determines that Christopher Bach was no longer a Family Allowance child. Accordingly, on the Tribunal's interpretation of the law as it stood at the time, it finds that Mrs Bach could not be paid Family Allowance for Christopher as he was not a Family Allowance child beyond 13 June 1999. Because of the application of section 42 of the Act, that is, that Family Allowance is a payday-based payment, the last day which Mrs Bach could receive Family Allowance for Christopher was 3 June 1999 which is in fact what occurred.

39. Mr Bach's alternative submission is that when Mrs Bach sought advice about Christopher's eligibility for Youth Allowance once he turned 16, she received advice prior to June 1999 that Christopher would be eligible for Youth Allowance from his 16^th birthday. Mr Bach's contention is however is that no advice was given to Mrs Bach as to the financial detriment she would experience as a result of the payday-based Family Allowance payment ceasing on 3 June 1999 once Christopher had turned 16 and was in receipt of a Youth Allowance. This failure by the Department to discuss the options available to Mrs Bach in relation to Christopher's turning 16 and the implication for Youth Allowance was, by omission, a fault and administrative error by the Department. Mr Bach contended that Mrs Bach was deprived of her entitlement because of the poor advice and lack of discussion of the issues with her. This simply was not good enough, Mr Bach contended, because the Department is charged with the responsibility of the welfare of families such as his. Had Mrs Bach been properly advised and her options discussed, it may have been open for Christopher not to have applied for Youth Allowance from his 16^th birthday but to have continued on Family Allowance, as he was past his 16^th birthday and a full-time student. Once he reached the Family Allowance payday of 17 June 1999, Christopher could then have been paid Youth Allowance on an application from that date. Mr Bach further contended that the Department could not argue both that Mrs Bach could not receive a pro-rata family payment and then argue that Christopher could not have stayed on Family Allowance beyond his 16^th birthday, applying for Youth Allowance at a later date.

40. The Tribunal does not have any evidence as to the precise advice provided or not provided to Mrs Bach. Mr Bach's contention is that the failure of the Department to advise her of options is an error or omission. The Tribunal notes that attachment A to Exhibit R1, which is Centrelink's publication, "Information for families with children turning 16", provides information and advice and includes the possibility of receiving a Family Allowance beyond the age of 16 years and the implications of Youth Allowance. It is not clear on the evidence to the Tribunal whether or not Mrs Bach followed up the points raised by this publication in terms of the implications for Family Allowance and Youth Allowance and the timing in relation to the Family Allowance payday-based payment. On all of the evidence available to the Tribunal, it cannot find that there was any administrative error in this matter. Even if there were some administrative error, poor advice or lack of advice, there is no provision for the legislation for such a circumstance to allow the change of payment date, which for Family Allowance as at the period under review, was a payday-based payment.

41. Accordingly, for all the reasons set out above and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

42. In conclusion, the Tribunal is concerned that while it must under the law affirm the decision under review, it could be argued that the legislation, as it was correctly applied, was unfair or produced in its application a result which produced unattended anomalous or an otherwise unacceptable result in Mrs Bach's circumstances. The Tribunal is aware that under section 33 of the Financial Management and Accountability Act 1997, the Minister for Finance and Administration has the discretion to make Act of Grace Payments. The Tribunal notes that it has no jurisdiction to make a determination in relation to this matter nor to review a decision not to make an Act of Grace Payment. The Tribunal does not, on the available evidence, know whether or not such a possibility has ever been considered by the Department. The Tribunal has gained some guidance on such matters by reference to a number of Tribunal decisions namely Re Grillo and Secretary, Department of Social Security (1990) 21 ALD 377; Re Western and Secretary, Department of Social Security (1991) 61 SSR 845; Re Hamilton and Secretary, Department of Social Security (1993) 77 SSR 1124; and Re Harris and Secretary, Department of Social Security (1993a) 29 ALD 599.

43. In such circumstances, the Tribunal makes a strong recommendation that consideration be given to Mrs Bach's circumstances and the possibility of the Department assessing whether or not there are grounds for recommending to the Minister for Finance and Administrations, the exercise of the discretion to authorise an Act of Grace Payment to Mrs Bach.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of MS S M Bullock, Member

Signed: .....................................................................................

Associate

Date of Hearing 3 May 2000

Date of Decision 2 August 2000

Representative for the Applicant Mr G J Bach

Representative for the Respondent Ms M Mantaring, Departmental Advocate