Khoury and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 174

Administrative Appeals Tribunal

WRITTEN REASONS - ORAL DECISION [2011] AATA 174

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3832

GENERAL ADMINISTRATIVE DIVISION		)
Re		Michael Khoury

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member A K Britton

Date7 February 2011

PlaceSydney

Decision The decision under review is affirmed.

......................[sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – allowances – youth allowance – withdrawal of claim for youth allowance on basis of Centrelink advice – whether discretionary power to backdate claim in circumstances

Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth) Sch 2, pt 1, cl 3 and Sch 2 pt 3

WRITTEN REASONS

(REVISED FROM THE TRANSCRIPT)

7 February 2011 Senior Member A K Britton           

1.      As I’ve said, I’m now going to give some brief reasons for my decision. Consistent with my preliminary view I am of the opinion that I am unable to do what Mr Khoury has asked me to do today, that is, backdate payments of Youth Allowance to the date of his original claim.  

2.      Before I go to the substantive issue, I would like to address a preliminary point raised by Mr Khoury which was his concern that information available in these proceedings might become publicly available.  He touched on an issue to do with his parents which I don’t need to elaborate further, but suffice to say, I decided not to exercise my power to make a confidentiality order in this matter. I should add that the matters that Mr Khoury is concerned about are not relevant to the issues I need to determine and I won’t be addressing them in these reasons for decision.  So I hope he takes some comfort in that.

3.      So if I could just now turn to the substantive issue. Mr Khoury seeks review of a decision that was made by the Social Security Appeals Tribunal affirming an earlier decision which had been made by an authorised review officer of the Department of Education Employment and Workplace Relations not to pay him Youth Allowance earlier than 15 March 2010.  I will briefly restate the facts. Mr Khoury applied for a Youth Allowance on two separate occasions on 16 July 2008 — I will refer to these as the “2008 applications” — but withdrew both on the same day.  His claim, to which I will return, is that he did so due to advice provided by Centrelink — which he now believes to be incorrect — that he was ineligible for the payment.

4.      Subsequently, Mr Khoury made a further application for Youth Allowance and this was granted payable from 15 March 2010. Mr Khoury argues that that payment ought be backdated to the date of the original 2008 applications, as they were withdrawn on the basis of incorrect advice provided by Centrelink.  The Secretary opposes that course and contends that the correct decision was to pay Mr Khoury Youth Allowance from 15 March 2010.  Mr Khoury told the SSAT that he withdrew the 2008 applications after receiving advice from a Centrelink officer that the claims would not be granted based on information that related to his parents.

5.      In these proceedings, Mr Khoury clarified that he was just turning 16 at the time of his 2008 dealings with Centrelink.  He said he acted on the advice received.  He thought he had no option to do otherwise as Centrelink advice was something akin to the status of law, and if he did not accept that advice, he might find himself in a compromised legal position.  For the purpose of determining this claim, I will make no findings on the dealings between Mr Khoury and Centrelink, however for present purposes I will accept his claim as true that he, in effect, felt that his hand was forced and withdrew on the basis of advice given by Centrelink.

6.      The rules relating to the start date for social security payments are set out in the Social Security Administration Act 1999. Schedule 2, part 1, clause 3 of that Act sets out the general rule which is to the effect that if a person makes a claim for a social security payment and is qualified for the payment on the day it was made, the person’s start date in relation to the payment is the day on which the claim is made. Section 33 is also relevant in that it provides that if a claim is withdrawn, the claim is taken not to have been made.

7.      As I discussed in these proceedings, the Tribunal’s power to make decisions is circumscribed by its enabling legislation, in this case the Social Security Act1991 and the Social Security Administration Act. The Tribunal has power to backdate the start date of payments in certain circumstances. These are set out in schedule 2, part 3 of the Social Security Administration Act.  These include where an illness or incapacity was the principal cause of a person’s failure to make the claim, claims made shortly after the birth of the claimant’s child and claims made following the death of the claimant’s partner.

8.      Having reviewed those provisions, I have concluded that none give the tribunal a discretionary power to backdate the start date of payments in circumstances such as these where, as Mr Khoury claims, as a result of advice and his age, he accepted Centrelink’s advice that he was unable to make a claim in July, 2008.  For that reason, I am unable to backdate the claim beyond 15 March, 2010.  I have also, in the interests of completeness, considered whether or not the tribunal might have power to review the decision to withdraw the claim.  That is a decision as made by Mr Khoury. Even if accepted that it was made on the basis of advice given by Centrelink officers I do not have power to review that decision.

9.      Again, returning to first principles, the tribunal’s powers are circumscribed by its enabling legislation.  None of the statutes that give the tribunal power in the social security area allow it to backdate Mr Khoury’s allowance to 2008, even if, as in this case, Mr Khoury’s account of his dealing with Centrelink is accepted. As explained, this tribunal has no residual jurisdiction to correct “wrongs” —sometimes called “equitable powers” — unless the enabling legislation gives it the power to do so.  For that reason I must affirm the decision made by the authorised review officer not to backdate Mr Khoury’s Youth Allowance before 15 March, 2010.

10.     As advised by Ms Salaji, the Secretary’s representative in these proceedings, an option available to Mr Khoury is to make a claim on the fund for the Scheme for Defective Administration.  Applications made to that fund do not fall within the review powers of the tribunal. I am thankful for Ms Salaji volunteering to provide Mr Khoury with a claim form, and no doubt to provide him with some advice as to how he might go about completing it.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:  .....................[sgd]..................................................
  Associate to Senior Member Britton

Date of Hearing:  7 February 2011
Date of Decision:  7 February 2011
Date of Written Reasons:         7 February 2011
The Applicant was self-represented.
Solicitor for the Respondent     Centrelink Advocacy Branch