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

[2008] AATA 257

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/5455

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		PAUL TIERNEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date2 April 2008

PlaceMelbourne

Decision The interests of the applicant are not affected by the decision under review and he is a person who was not entitled to initiate these proceedings.

(Sgd)  John Handley
Senior Member

  

SOCIAL SECURITY – application by parent of child who had left home and is being paid youth allowance at independent rate – applicant applied to review decision to make the payments – interest of applicant not affected by the decision to make payments – applicant was not permitted to initiate these proceedings

Administrative Appeals Tribunal Act 1975 (Cth) s 27 (1), s 30 (1A) and s 31 (1)

Re McHatten and Collector of Customs (1978) 18 ALR 154

REASONS FOR DECISION

2 April 2008   Mr John Handley, Senior Member

1.      The applicant asserts that his interests are affected by a decision made by Centrelink which the Social Security Appeals Tribunal (SSAT) affirmed.  The issue by this review is whether the applicant's interests are affected by the decision.

2.      The background to this application should be briefly summarised.

3.      Prior to 4 August 2006 the applicant received Family Tax Benefit (FTB) as the parent of his son Mark who was then aged 15 years.  FTB was cancelled because Mark had left home.  Centrelink had decided that there had been an extreme family breakdown, that it was unreasonable for Mark to live at home and by reason of him having left the home, Centrelink paid him – from 4 August 2006 – youth allowance (YA) at the independent rate.

4.      The SSAT affirmed the decision to cancel FTB payments by a decision of 27 March 2007.  The applicant sought review of that decision in this Tribunal by application 2007/1442.  He withdrew that application on 17 May 2007.

5.      On 22 October 2007, the SSAT made a decision affirming the decision previously made by an officer of Centrelink to pay YA to Mark from 4 August 2006.  The review before the SSAT was initiated by the applicant.  Mark was not a party to the proceedings and he did not appear.  It is not known whether he was aware of those proceedings.  The SSAT found the applicant to be a person affected by the decision of Centrelink to pay YA to Mark (refer SSAT Reasons at paragraph 8).

6.      The application currently before this Tribunal, and which is the subject of this decision, was initiated by the applicant seeking to review the decision of the SSAT made on 22 October 2007.  The respondent submits that the applicant cannot make this application because his interests are not affected by the decision to pay YA to Mark.

7. Section 27 (1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) permits an application to be made to the Tribunal for review of a decision by a person whose interests are affected by the decision.

8.      Section 30 (1A) provides that if an application has been made by a person to the Tribunal for review of a decision any other person whose interests are affected may apply to be made a party to the proceeding.

9. Section 31 (1) of the AAT Act provides that the Tribunal shall decide – if necessary – whether the interests of a person are affected by a decision and if it does the decision of the Tribunal is conclusive.

10. Section 30 (1A) and s 31 (1) of the AAT Act have operation where a person who asserts an interest in a decision applies to be joined to proceedings which have been initiated by another person (for example, where a benefit is payable in whole to one person or by proportion to two or more persons).

11.     The applicant said at a Directions Hearing on 27 February 2008 that any matter affecting Mark concerned him as the parent.  He said that payment of YA permits Mark to be independent of the family and live separately.  He said the payments should not ever have been made.  In a submission to the SSAT (T6, p28), the applicant contended that payment of YA was irresponsible, it created welfare dependency in a child and undermined the family unit.

12.     The respondent submitted that the interests of the applicant were not affected by a decision of Centrelink to pay YA at the independent rate to his son.

13.     Applications which expose disharmony within families are unfortunate and sad.  Having observed and listened to the applicant make his submissions it is clear that he is very disturbed by Mark having left home and a decision made by Centrelink which found that it was unreasonable for Mark to live at home.  Nonetheless the decision by Centrelink to make payments to Mark must be distinguished from the belief on the part of the applicant that payment should not have been made.

14. The language of s 27 (1) of the AAT Act is clear. The interests of a person who applies for review must be affected by the decision.  Only such an interest will permit review of the decision either as an applicant or as a joined party.

15.     In the present application the interests of the applicant as the parent is to have Mark return home, restore relationships and have his YA cancelled.  But the decision under review was made by Centrelink and it was to pay Mark YA at the independent rate.  That decision was made because Mark qualified for those payments. 

16.     The character of the decision, when examined, concerns the relationship between Mark and Centrelink having been initiated by a claim and continued by qualification and by payment of benefits.  The applicant has no interest affected by the Centrelink decision (as affirmed by the SSAT).  Additionally, the consequences of the decision (refer paragraph 11 earlier) as perceived by the applicant, which in large part motivated this application, are not reviewable.  As recorded above, only the interests affected by a decision can be reviewed and then only by a person or persons who have or who assert a qualifying entitlement.  The applicant does not have such an entitlement nor has there been an affect on his interests by a decision (refer Re McHatten and Collector of Customs (1978) 18 ALR 154).

17.     I am not satisfied that the applicant has interests affected by the decision to make payment to Mark and in those circumstances I am satisfied that he is a person who was not entitled to initiate these proceedings.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  27 February 2008
Date of Decision  2 April 2008
Solicitor for the Applicant          Self Represented
Departmental Advocate            Andrew Carson