Kankkunen and Department of Family and Community Services - [2002] AATA 595

DECISION AND REASONS FOR DECISION [2002] AATA 595

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/24

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TIANA KANKKUNEN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date19 July 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)......................
Mr B J McCabe
Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – monies paid to child's father – whether applicant can recover monies paid to her father from the Department – liability of Department

PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction to provide relief where administrative error identifiable

Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Financial Management and Accountability Act 1997

Commonwealth Policy for Handling Monetary Claims
Compensation for Detriment Caused by Defective Administration Scheme

REASONS FOR DECISION

19 July 2002 Mr B J McCabe, Member

Introduction

Tiana Kankkunen has appealed against a decision of the Social Security Appeals Tribunal (the SSAT). The SSAT affirmed a decision of the respondent not to pay the applicant an amount in respect of Youth Allowance that had already been paid by the respondent to the applicant's father.
The Facts
There was no dispute as to the facts. Ms Kankkunen and her mother, Sue Harvey, both gave evidence before the Tribunal. The Tribunal also had the material before the SSAT contained in the s 37 documents.
The applicant applied for Youth Allowance on 23 June 2000. The application form asked for details of the account into which the allowance was to be paid. Section 45(1) of the Social Security (Administration) Act 1999 provides for the payment to be made into the bank account of a nominated parent, although the Secretary has the discretion under s 45(2) to pay the youth or some other person in accordance with a written request. Ms Kankkunen inserted her own bank account details, and the form was signed by her mother and lodged with Centrelink on 23 June 2000. But Centrelink failed to process the form. In any event, the details (including the bank account details) were not recorded on Centrelink's system.
The applicant's parents were divorced. The relationship between her parents was poor. The applicant said her father approached her with a second Youth Allowance application form and instructed her to complete it. She did so, inserting her own bank account details in the relevant section. Her father crossed out her details when she handed him the form and inserted his own in their place. He signed and lodged the form on 5 July 2000.
The applicant says she assumed Centrelink would ignore the second form, or contact her to ask what it wished her to do in light of the contradictory instructions. She said she only completed the form at her father's request in order to keep the peace. She was in a difficult position. But she did not contact Centrelink to clarify her wishes or alert the respondent to her difficulty.
Centrelink processed the second form and commenced payment of youth allowance to Mr Kankkunen's account as directed.
The applicant did not become aware that she was not receiving the payments until examining her quarterly bank statements in November 2000. Her mother immediately contacted Centrelink and they were referred to Cliff, a Centrelink officer, at Woodridge. Cliff was advised on 3 November that future payments should be made to the applicant. Ms Harvey said in her evidence she clearly remembered hearing Cliff say that the instruction to change the payee had been processed.
The instruction was not acted on immediately. Mr Kankkunen continued to receive Youth Allowance payments until 24 November 2000.
It seems the applicant has never seen any of the money paid to Mr Kankkunen. She asked the respondent to pay her the amount her father received between 23 June and 24 November 2000. The respondent refused to do so.
The Arguments
At the hearing before the Tribunal, the applicant accepted the SSAT's conclusion that there was no liability to pay her in respect of the instalments paid to her father prior to 3 November. She acknowledged she should not have filled out the second form and left it in Centrelink's hands – although the problem might have been avoided if Centrelink had processed the first form. It is therefore unnecessary for me to reconsider whether the respondent had discharged its responsibilities under the Act by paying the money to the applicant's father.
The applicant has persisted with her complaint about the payments made after she informed Centrelink, on 3 November, that the payments should thereafter be made into her account. The respondent says it is not obliged to simply act on the applicant's direction: the wording of s 45(2) provides the Secretary with a discretion to pay someone other than the nominated parent, and that discretion is not (and should not be) automatically exercised.
I accept that s 45 contemplates the Secretary or his delegate considering whether to accede to a request to pay someone other than the nominated parent. That process of contemplation might not permit an immediate decision. But a decision should not have taken three weeks. Centrelink must receive requests of this nature on a routine basis, and it presumably has a process in place to deal with the requests quickly. It is unclear whether Centrelink staff regarded this as a contentious or unusual case that merited special care. It appears from the evidence that Cliff from the Woodridge office did not approach the request on this basis. If there was concern, one would have thought that Centrelink would have suspended payment of the benefits until the issues were resolved.
The applicant did all that could be expected of her when she informed Centrelink of the new account details. She was let down by Centrelink's internal decision-making processes. At best, the decision to act on the request to make payments into the applicant's account was made too slowly.
Mr Letch for the respondent properly conceded that Centrelink made errors in its handling of this case. But he went on to submit that the Tribunal has no jurisdiction to provide relief in this case even if it identifies an administrative error. He pointed out that while s 151(1) of the Social Security (Administration) Act 1999 empowered the SSAT to exercise on review all of the powers of the Secretary, s 151(2)(b) puts decisions connected with the manner of payment of benefits beyond the jurisdiction of the SSAT. Since the Tribunal's jurisdiction extends to decisions of the SSAT, the Tribunal is also prevented from reviewing decisions connected with the manner of payment of benefits: s 25 of the Administrative Appeals Tribunal Act 1975.
It follows that the Tribunal cannot require the Secretary to make any of the payments sought by the applicant, notwithstanding the evidence.
An Alternative Remedy for Administrative Error
Mr Letch explained the Secretary had established several ex gratia compensation schemes that were intended to provide relief to persons affected by administrative error. One of the schemes provides for payments designed to compensate for negligence. The scheme operates in accordance with the Commonwealth Policy for Handling Monetary Claims. The authority for making the payments is contained in regulation 9 of the Financial Management and Accountability Act 1997. Another scheme is known as the Compensation for Detriment Caused by Defective Administration Scheme (CDDA). The CDDA scheme is designed to provide relief from the consequences of administrative failures where there are no other remedies available under statute or contract. That would appear to be the situation in the applicant's case: whatever remedies may theoretically be available against her father, she appears not to have any redress against the Commonwealth in respect of the failure to promptly amend the bank account details after 3 November 2000.
The applicant ought to be eligible for relief under one of these schemes. But Mr Letch informed me he had been advised Miss Kankkunnen's claim for relief was unsuccessful. That is unfathomable. It is also bad policy. The public can accept that administrative errors will occasionally be made in a vast and complex system like that administered by Centrelink. But where errors are made and the respondent does not move to fix them and provide relief for those affected, public confidence is undermined. The evidence before the Tribunal suggests this is a relatively clear-cut case of a mistake that ought to be remedied. The Tribunal is prevented from providing that remedy; in those circumstances, the responsibility for doing the right thing falls to the Secretary.
Conclusion
The decision under review is affirmed, however the Tribunal recommends that the Secretary favourably consider the applicant's claim for an ex gratia payment under one of the schemes intended to provide relief for administrative error.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  20 June 2002
Date of Decision  19 July 2002
The Applicant Appeared in Person
Solicitor for the Respondent    Mr Letch, Departmental Advocate