Ozcagli, M. v Department of Social Security

[1986] FCA 408

Re: MELEK OZCAGLI
And: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
No. VG 5 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - appeal to Federal Court - social security - family allowance - date from which payable where Director-General not "satisfied" within 3 months that child a student - whether Tribunal erred in law in construction of provisions of Social Security Act - whether it erred in law in finding no "special circumstances"

Administrative Appeals Tribunal Act 1975 s.44

Social Security Act 1947 ss. 94, 95, 95A, 98, 101, 102, 103

Beadle v D-G of Social Security (1985) 60 ALR 225

Re Ellis and Sec to the Dept. of Social Security (1985) 7 ALN N208

Re Seccull and Sec. Dept. of Social Security (1985) 8 ALN N207

Re Michael and D-G of Social Security (1982) 4 ALN N288

HEARING

MELBOURNE

#DATE 16:9:1986

Counsel for the applicant: Mr. A. Cavanough

Solicitors for the applicant: Kiernan and Forrest

Counsel for the respondent: Mr. R. Tracey

Solicitors for the respondent: Australian Government Solicitor

ORDER

The decision of the Administrative Appeals Tribunal made on 16 December 1985 be affirmed.

There be no order as to costs.

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

JUDGE1

This is an appeal from the decision of the Administrative Appeals Tribunal (the Tribunal) given on 16 December 1985, which affirmed the decision of a delegate of the Director-General of Social Security made on 21 September 1984 as to the commencement date of payment of family allowance in respect of two of the applicant's children; the office then known as Director-General has since become that of Secretary to the Department of Social Security. I have followed the Tribunal's example in using the expression "family allowance" instead of the words "child endowment", which were used in the statute until June 1982.

1. The first ground of the appeal was that the Tribunal erred in law in its interpretation of certain provisions of the Social Security Act 1947 (the Act) and in particular of s. 103 of the Act. In referring to the Act the Tribunal said:-
   
   

"The relevant provisions at the relevant time read as follows:-

94. (1) In this Part, unless the contrary intention appears -

'child' means a person under the age of 16 years;

.....

'prescribed educational scheme' means any of the following schemes:

(a) the scheme known as the Tertiary Education Assistance Scheme;

(b) the scheme known as the Adult Secondary Education Assistance Scheme;

(c) the scheme known as the Pre-School Teacher Education Assistance Scheme;

(d) the scheme known as the Aboriginal Study Grants Scheme;

(e) the scheme known as the Commonwealth Teaching Service Scholarship Scheme;

(f) the scheme known as the Post-Graduate Awards Scheme;

'student child' means a person to whom sub-section (2A) applies;

.....

(2A) Where a person who is wholly or substantially dependent on another person or is an inmate of an institution -

(a) has attained the age of 16 years but is under the age of 25 years;

(b) is receiving full-time education at a school, college or university;

(c) is not in employment or engaged in work on his own account; and

(d) is not in receipt of an invalid pension under Part III,

the provisions of this Part (including the provisions of sub-section (2)) apply in relation to that person as if that person were a child in the custody, care and control of that other person.

.....

95. (1) Subject to this Part, a person who has the custody, care and control of a child (not being a child who is an inmate of an institution) or an institution of which children are inmates is qualified to receive a family allowance in respect of each such child in accordance with this section.

.....

95A. On or after 1 January 1979, a family allowance shall not be granted in respect of a child if the child is in receipt of payments under a prescribed educational scheme.

.....

98. A claim for a family allowance -

(a) shall be made in writing in accordance with a form approved by the Director-General;

(b) shall be supported by such declaration as is approved by the Director-General; and

(c) shall be lodged with a Director.

.....

101. Subject to this Part, a family allowance is payable in respect of family allowance periods, being periods commencing on the fifteenth day of each month of the year and ending on the fourteenth day of the next succeeding month.

102. (1) Subject to sub-section (2), a family allowance granted to a person (other than an institution) shall be payable -

(a) if a claim is lodged within 6 months after the date on which the claimant became eligible to claim the family allowance, or, in special circumstances, within such longer period as the Director-General allows - from the commencement of the next family allowance period after that date; or

(b) in any other case - from the commencement of the next family allowance period after the date on which the claim for family allowance is lodged.

.....

103. (1) Subject to sections 6B and 104, a family allowance payable to a person or institution to whom family allowance was granted in respect of a child ceases to be payable if -

.....

(f) the child attains the age of 16 years, unless the Director-General is satisfied, before the expiration of 3 months after the child attains that age, that the child became a student child on attaining that age;

....."

1. It is convenient to set out the other paragraphs of s. 103(1). As at the date of the delegate's decision on 21 September 1984, they read as follows:-
   
   

"(a) the person to whom the family allowance was granted ceases to have the custody, care and control of the child;

(b) the child, being a child in the custody, care and control of a person, becomes an inmate of an institution;

(c) the child, being a child who is an inmate of an institution, ceases to be an inmate of the institution;

(d) the person to whom the family allowance was granted ceases to have his usual place of residence in Australia, unless his absence from Australia is temporary only;

(e) the child ceases to be in Australia, unless his absence from Australia is temporary only;

...

(g) the child, being a student child -

(i) attains the age of 25 years;

(ii) ceases to receive full-time education at a school, college or university;

(iii) begins to be in employment or to be engaged in work, other than employment or work that is the subject of a direction under sub-section 94(1B) or

(1C); or

(iv) continues to be in employment or to be engaged in work after a direction under sub-section 94(1B) or (1C) in relation to the employment or work has been revoked;

(h) the child dies; or

(i) the child marries."

1. The applicant received "family allowance in respect of Halil until he attained the age of 16 years in 1980". More than two years later (on 13 February 1983) the applicant successfully applied for family allowance in respect of Halil as a student child. However, during the intervening period, the applicant had not placed any material before the Director-General directed towards enabling him to be "satisfied, before the expiration of 3 months after the child attains that age (16 years) that the child became a student child on attaining that age" (see s. 103(1)(f)). It was common ground that Halil, from his 16th birthday until 13 February 1983, was in fact a student child as defined in s. 94(2A) of the Act. The case was argued and considered on the basis of the child becoming a student child at 16 years and continuing his studies uninterrupted.

2. The applicant contended that, where the Director-General was not "satisfied, before the expiration of 3 months ..." of the fact that the child became a student child on attaining the age of 16 years, s. 103(1)(f) of the Act, on its true construction, only intended that the payment of the allowance should "cease" in the sense of being suspended, and that such payment should resume once the Director-General became satisfied; further, that, upon the Director-General being satisfied of that fact, the payment of the allowance should be made retrospectively, so as to include payment for the whole period since the child became a student child on attaining the age of 16 years.

3. Notwithstanding the carefully prepared submissions advanced on behalf of the applicant by Mr. Cavanough, of counsel, and the reasons for decision of the Administrative Appeals Tribunal (differently constituted) in Re Ellis and Secretary to the Department of Social Security (1985) 7 ALN N208, I have reached the conclusion that the Tribunal in the present case was correct in following its own reasons for decision in Re Seccull and Secretary, Department of Social Security (1985) 8 ALN N207, as to the construction of the Act. Seccull's decision had followed a decision by the Tribunal (constituted by Mr. R.K. Todd) in Re Michael and Director-General of Social Security (1982) 4 ALN N288.

4. In my opinion the following submissions, advanced by Mr. Tracey, of counsel, on behalf of the respondent, are correct. First, the words in s. 103(1)(f) "unless the Director-General is satisfied, before the expiration of 3 months after the child attains that age, ..." should not be treated as being superfluous. The provision did not say that the allowance ceases to be payable "until the Director-General is satisfied ...". Instead it used the word "unless" and prescribed a time within which the Director-General was to be satisfied; otherwise the allowance ceased to be payable. Second there were at the relevant time a number of indications in the Act that, where it was intended that a right to payment should be merely suspended, the Act specifically used the words "suspend" or "suspension". Third, the ordinary meaning of the word "cease" includes stopping an activity or bringing it to an end - as distinct from an indefinite suspension of that activity. Fourth, some of the provisions of s. 103(1) (e.g. paragraphs (d), (e) and (h)) refer explicitly to situations which are not "temporary only" and in respect of each of those 3 paragraphs s. 103(1) means that the allowance "ceases to be payable" in the sense of being stopped or brought to an end and not a temporary suspension of the payments. That construction of the words "ceases to be payable", when applying to paragraphs (d), (e) and (h) of s. 103(1), runs counter to the construction of s. 103(1)(f) advocated by the applicant.

5. Mr. Cavanough's submission on behalf of the applicant was founded partly upon the basis that the applicant "had a continuing entitlement" - see paragraph 35 of Ellis' case. Reliance was placed upon the fact that s. 103(1)(f) did not say explicitly that any "entitlement" had been taken away and only said that the allowance "ceases to be payable". However, it was common ground that none of the material provisions of the Act expressly referred to a person's "entitlement". Instead of conferring upon a person an "entitlement" in express words, the Act referred to a person as being "qualified to receive" certain payments (s. 95).

6. In my opinion, the Act, in saying that the allowance "ceases to be payable" (s. 103(1)), was referring to persons who had been "qualified to receive" it (s. 95(1)) and was expressing the intention that they would cease to be "qualified to receive" it in the various sets of circumstances prescribed by the legislature in paragraphs (a)-(i) of s. 103(1). As the Act had not in express words referred to an "entitlement", it did not refer to an "entitlement" in providing that, in the circumstances dealt with in s. 103(1), the persons would cease to be qualified to receive the payments; instead it provided that in those circumstances the allowance "ceases to be payable".

7. For these reasons I accept Mr. Tracey's submission that s. 103(1), in using the words "ceases to be payable" intended that the person who had been "qualified to receive a family allowance" should cease to be so qualified; it did not intend that the payment should merely be suspended. Accordingly, in my opinion, the Tribunal did not err in law in its construction of s. 103(1) of the Act.

8. I should add that, in reaching that conclusion, I have not acceded to Mr. Tracey's submission that I should take into account the explanatory memorandum relating to, and the second reading speech of the Minister in introducing, the Social Security and Repatriation Legislation Amendment Bill (No. 2) 1984.

9. The second ground of the appeal was that the Tribunal erred in law in its construction of s. 102 of the Act, which error vitiated its decision that there were no "special circumstances" within the meaning of s. 102(1)(a) of the Act (the terms of which have been set out earlier). In my opinion the Tribunal did not err in law in its construction of the section. Nor do I consider that any error of law occurred in its approach to the question of whether, on the material before it, there were "special circumstances" in relation to either the claim for the child Halil or the claim for the child Melike. On my reading of the Tribunal's reasons for decision, I am unable to accept Mr. Cavanough's submission that the Tribunal failed to have regard to a relevant consideration, namely, the different period of delay in making the claim in respect of Melike.

10. In my opinion the Tribunal's decision is not in any way inconsistent with the reasons for judgment of the Full Court in Beadle v Director-General of Social Security (1985) 60 ALR 225. There are many difficulties in the way of the attempt to rely upon the "negligence" of the applicant's husband cf. the reference in the Full Court's judgment (at 228) to "the negligence of a third party". First, the matters referred to were not put to the Tribunal as constituting negligence by the husband and, as a result, there is no finding by the Tribunal that any or all of that conduct constituted negligence; nor did the notice of appeal itself refer to or rely upon any alleged negligence by the husband (cf. the reference in the notice of appeal to his "lack of organizational ability and his reluctance to seek advice"; the application to the Tribunal is set out in identical terms in paragraph 15 of its decision). Second, there is nothing in the material, in so far as it has been examined in the present hearing, which would establish negligence by the husband. Third, a question could arise as to whether the Full Court, in referring to the negligence of a third party, intended to include the "negligence" of the spouse of an applicant and, if so, as to what would constitute negligence. Fourth, the Full Court said that, where it was found that the delay was due to the negligence of a third party "it might be thought ... that special circumstances had been shown" and did not say that the occurrence of such negligence necessarily gave rise to special circumstances.

11. As neither ground of appeal has been upheld, the appeal must be dismissed. During the hearing counsel for both parties stated that they were not seeking an order for costs. Accordingly there will be no order as to costs.