Vu; Department of Family and Community Services

[2001] AATA 706

DECISION AND REASONS FOR DECISION [2001] AATA 706

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/454

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      Secretary, Department of Family and Community Services        
  Applicant
           And    Hieu Tran Vu         
  Respondent

DECISION

Tribunal       Justice D O'Connor, President Ms N Bell, Member Dr T Sourdin, Member 

Date10 August 2001

PlaceSydney

Decision      The decision of the Social Security Appeals Tribunal is set aside and the appropriate rate of payment of special benefit to be made to the Respondent is the rate of Newstart allowance for a single person, 21 years or over, with children or for a person who is single, aged 60 or over, after nine months.  

[sgd}President
CATCHWORDS
Social security – Special benefit – child under 5 – parents' separated due to domestic violence – whether rate of payment at Youth Allowance 'single with child' rate – short term accommodation in refuge – mother non- citizen without permission to work – father thought to be unemployed – confusion as to current policy – whether a recommended change to policy can be applied by The Tribunal – Scope and purpose of section 746 – recognition of particular circumstances – need for carer.

Social Security Act 1991, s 746

Re Secretary, Department of Social Security and David (1990) 20 ALD 262
Secretary, Department of Social Security and Underwood (1991) 25 ALD 343
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325

REASONS FOR DECISION

BACKGROUND

1. Hieu Tran Vu ("the Respondent") was born on 25 July 2001 in Australia and by virtue of his father's residency status is an Australian citizen.  On 16 October 2000 his parents, Mr Tran and Ms Vu, separated due to domestic violence.  On 22 December 2000, a claim for special benefit was lodged on the Respondent's behalf with Centrelink.  On 22 December 2000 Centrelink decided to pay special benefit to the Respondent, equivalent to the rate of youth allowance paid to a person living at home.  This rate was equivalent to $158.80 per fortnight.

2. On 22 January 2001 a review was sought by the Respondent and on 24 January 2001 Centrelink's decision was affirmed by an authorised review officer.

3. On 31 January 2001 the Respondent lodged an appeal with the Social Security Appeals Tribunal.  On 28 December 2001 the Social Security Appeals Tribunal set aside Centrelink's decision and remitted the matter to Centrelink for reconsideration in accordance with directions that the Respondent be paid Youth Allowance at the 'single with child' rate.

4. On 6 April 2001, the Department of Family and Community Services ("the Applicant") lodged an application for review of the decision of the Social Security Appeals Tribunal.

5. The following facts are not in dispute.  Since 22 December 2000, the Respondent has been staying with his mother at 'Jean's Place', a women's refuge, or at accommodation provided by the refuge.  His mother is required to pay 23 per cent of her income for utilities at this accommodation and she must also pay for her own telephone account and food and all other personal items for herself and the Respondent.  The Respondent's mother also pays fares for travel to take him on access visits and for medical expenses. She still does not have permission to work in Australia.  It is her understanding that the Respondent's father is not working at present.  The domestic violence that preceded the breakdown of the relationship between the Respondent's parents restricts the possibility of the recovery of child support.
   Issue

6. The issue to be considered in this appeal is the correct or preferable rate of special benefit to be paid to the Respondent.  There is no issue as to the Respondent's entitlement to special benefit.
   Legislation

7. The relevant legislation in this application for review is section 746 of the Social Security Act 1991 ('the Act'). Section 746 provides:

   "746(1) The rate of a person's special benefit is the fortnightly rate determined by the Secretary in his or her discretion.

   746(2) Subject to Part 2.24 (major disaster), the rate of a person's special benefit is not to exceed the rate at which youth allowance, Austudy payment or Newstart allowance would be payable to the person if:
   (a) the person were qualified for youth allowance, Austudy payment or Newstart allowance; and
   (b) Youth allowance, Austudy payment or Newstart allowance were payable to the person."

1. Ms Smith, for the Applicant, submitted that the Applicant's current policy is that infants of non-resident parents should be paid at the maximum "independent" rate of youth allowance.  This is has changed from the policy applied in the original decision by Centrelink.  That policy was that such infants should be paid special benefit at the youth allowance "at home" rate.  Ms Smith stated that the new policy had developed as a result of a number of decisions of the Social Security Appeals Tribunal on similar appeals.  However, at the hearing Ms Smith was unable to provide the Tribunal with any documentation of the new policy now sought to be applied by the Applicant and undertook to forward any, if available, to the Tribunal following the hearing.  The material subsequently forwarded to the Tribunal by includes an extract from a document called "Special Benefit Review" which deals with the issue of "Establishing an Appropriate Rate of Special Benefit to Pay an Australian Citizen Child in the Care of a Non Resident Parent".

2. The extract refers to a number of matters including recent Social Security Appeals Tribunal decisions, the International Convention on the Rights of the Child, the result of discussion and feedback and a file survey of Australian citizen children and a number of findings made from that survey.  The extract canvasses a range of options for determining the rate of special benefit to be paid to Australian citizen children of non-resident parents and ends with a recommendation that:

   "the maximum amount of special benefit payable to an Australian Citizen child in the care of a non resident parent is increased to the 'away from home' rate of youth allowance where that child is the only, or the oldest child in the family, receiving special benefit".

3. The material forwarded to the Tribunal by Ms Smith also included a copy of an electronic mail message to Ms Smith from one Kerry Draper, Assistant Director, Parenting and Employment Program branch, dated 12 July 2001:  The message indicates that the Applicant has recommended a change to the Policy Guidelines and does not expect any difficulties with having the change endorsed, but that endorsement has not yet taken place.

4. It appears, therefore, that there may be some confusion as to the Applicant's current policy.  It is clear that a considered recommendation has been made and that recommendation is for a departure from the policy applied in the original decision,. Notwithstanding that the departure or recommended new policy, has not yet been finally adopted.

5. It will usually be desirable for the Tribunal to apply the Applicant's policy "unless the policy is unlawful" or unless its application "tends to produce an unjust decision in the circumstances of the particular case" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634).
   We consider there must be "cogent reasons" for the policy not to be applied by the Tribunal. In this case the Applicant has urged the Tribunal to apply the new recommended policy. This however presents the Tribunal with some difficulty. The Applicant's "Guide to the Act" has not yet been amended to alter the policy applied by the original decision-maker or by the authorised review officer. The new policy sought to be applied by the Applicant is, on the basis of the material provided to the Tribunal, a policy that has not yet been endorsed. We are therefore faced with a situation where firm Ministerial guidance is not available for us to interpret and apply the discretion available under S746.
   Submissions

6. The Applicant submitted that the correct interpretation of the provisions of section 746 of the Act is one where subsection (2) delineates the discretion conferred by subsection (1), thus requiring the decision maker to choose between the three payment types listed in subsection (2) by finding the payment type that most closely "fits" the circumstances of the claimant.

7. The Applicant submitted that the factor of age is a common thread through  the three types of payments listed in subsection (2) and so it is by reference to the age of the claimant that the choice as to the most appropriate payment type should be made.  It is then, according to the Applicant, that the particular circumstances of the claimant are considered to determine the appropriate rate of that payment to be set.

8. The Applicant submitted further that this method of exercising the discretion allows for a smooth transition from the rate of special benefit determined to be paid, to the rate of the type of payment the claimant will eventually become qualified to receive. Ms Smith gave the example of a 14 year old in receipt of a rate of special benefit calculated by reference to youth allowance, who will shortly become qualified to receive youth allowance on turning 15. If that 14 year old had been granted special benefit at a rate referable to newstart allowance they would experience a drop in income on becoming qualified, by turning 15, to receive youth allowance. The Applicant submitted that the Applicant's policy had been developed over years to promote consistency in the administration of the system of payments and benefits established under the Act, arguing that this promoted a fair system between claimants.

9. Ms Koller, for the Respondent, submitted to the Tribunal that they should apply section 746 of the Act with a broad interpretation of the discretion conferred by subsection (1), and some qualifications imposed by subsection (2). The Respondent submitted that it is possible to interpret section 746 so that if a person does not easily "fit" into the three payment types set out in subsection (2), then the decision maker can go back to the broad discretion in subsection (1) unfettered by the qualifications contained in subsection (2). On this basis, the Respondent submitted that it was open to the Tribunal to assess the rate of special benefit for the Respondent at the parenting payment "single" rate together with a payment of family tax benefit. This package of payments, it was suggested, properly recognises the particular difficulties faced by the Respondent as an infant, including his need for an adequately supported carer.

10. In the alternative, the Respondent submitted that if the Tribunal considered itself bound to consider one of the three payments mentioned in subsection (2), then the rate of special benefit to be paid to the Respondent should be greater than the maximum rate of any of the three payments listed in subsection (2).

11. Both representatives submitted that the concept of a "benchmark group" referred to by the Tribunal in its decision in Secretary, Department of Social Security and Underwood (1991) 25 ALD 343 has application in this case. However, whereas the Applicant submitted that the appropriate benchmark group is one based on an age discriminator, the Respondent submitted that the appropriate benchmark group is one based on position in society or on need rather than a qualification criteria in the Act. On this basis, the Respondent submitted that the appropriate benchmark group is that of children under five years who require access to a person who has the capacity to provide care for them by way of that person's own income security. Ms Koller argued that this benchmark group would usually consist of children with at least one carer in receipt of parenting payment and family tax benefit payment.
    Application of Law and Policy

12. The Respondent set out for the Tribunal the legislative history of section 746 of the Act as follows.

13. Section 130(1) of the Social Security Act 1947 provided as at June 1991:

    '130 (1)         [Rate of Benefit]        The rate of a special benefit payable to any person shall be such rate as the Secretary, in his discretion, from time to time determines, but, subject to subsection (2), shall not exceed the rate of the unemployment benefit or the sickness benefit which could be paid to that person if he were qualified to receive it.''

    (Section 130 (2) relates to persons released from detention.)

1. The Tribunal notes that the above provision makes no reference to job search allowance which was, pursuant to section 117(A)(1) of the Social Security Act 1947, available to a person who, among other things, had attained the age of 16 years but had not yet attained the age of 18 years.

2. Section 746 of the Act, at the time of its commencement, provided;

   "746 (1) The rate of a person's special benefit is the fortnightly rate determined by the Secretary in his or her discretion.

   (2) Subject to sections 747 (major disaster) and 1161 (release from goal), the rate of a person's special benefit is not to exceed the rate at which unemployment benefit or job search allowance would be payable to the person if;

   (a)       the person were qualified for unemployment benefit or job-search allowance; and

   (b)       unemployment benefit or job search allowance were payable to the person."

3. The part of the Explanatory Memorandum relevant to clause 746 of the Social Security Bill 1990, which later became section 746 of the Act, reads:

   Clause 746 (1) would make it clear that special benefit is to be paid at a fortnightly rate determined at the discretion of the Secretary
   Clause 746 (2) would limit the rate of special benefit to the rate at which unemployment benefit or job search allowance would be payable to the person if he or she were so qualified and if it were payable.  This rule would be subject to the provisions dealing with double benefit payment in the event of major disaster or release from goal.

4. Ms Koller then took the Tribunal through various amendments to section 746 of the Act, which have substituted for the payments named "unemployment benefits or job search allowance" variously, "job search allowance or newstart allowance", "youth payment allowance", and "youth allowance and Austudy payment".

5. The Tribunal noted that while the intention to place a limitation on the rate of special benefit to be paid was clear, no mention was made in the Explanatory Memorandum of the factor of age and there was no apparent intention to adjust the underlying policy of the provision.

6. As to the relevant policy, if any, to be considered by the Tribunal, the rather confusing status of current and recommended policy has been outlined above. The Applicant submitted that its policy has been developed over years to promote consistency in the administration of the system of payments and benefits established under the Act. The issue of consistency was considered by Deane J (as he then was) in the decision of the Federal Court in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325:

   "There are many reasons for the desirability of consistency in the making of decisions affecting rights, opportunities and obligations under the law.  Paramount among them is the fact that inconsistency in the treatment of those amenable to the law involves an element of injustice.  Particularly where there is competition or correlativity between rights, advantages, obligations and disadvantages, equality of treatment under the law is an ingredient of modern concepts of justice and the rule of law.  It is important that those who constitute the Tribunal should, in their search for the correct or preferable decision in particular case, be entitled to pay regard both to decisions of the Tribunal in other matters and to policies enunciated and developed by those entrusted with the primary administration of the relevant law.

   On the other hand, while consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it.  As Smithers J pointed out in Re Gungor and Minister for Immigration and Ethnic Affairs (Administrative Appeals Tribunal: 30 May 1980), consistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable.  Decision makers may be consistently wrong and consistently unjust.  The Tribunal is not bound by either its own previous decisions or by the content of government policy.  There have been and will be cases in which the Tribunal concludes that it should refuse to follow a previous decision of the Tribunal or reject or disregard the dictates of a relevant policy of the government.  The existence of such cases serves to emphasise the fact that each applicant to the Tribunal is entitled to have his or her application for review decided on its own particular merits.  The desire for consistency should not be permitted to submerge the ideal of justice in the individual case."

7. As far as the Tribunal can discern, the policy now sought to be applied by the Applicant is that the appropriate rate of special benefit to be paid to an Australian citizen child of a non-resident parent is the independent rate of youth allowance.  The material provided to the Tribunal by Ms Smith following the hearing of this application for review indicates that in developing the recommendation to change the Applicant's policy, regard was had to a series of decisions by the Social Security Appeals Tribunal which take into account the particular needs of infant children, including their need for care and nurture from an adequately supported adult.  To this extent, the recommended policy appears to recognise the particular difficulties faced by infant children.

8. However, according to Ms Smith, one of the basic tenets of the policy sought to be applied by the Applicant is that the factor of age should determine which of the three types of payments listed in sub-section 746(2) is to be used for setting the rate of payment of special benefit. The Tribunal rejects this rationale for the policy and finds no basis for it either in the provisions of the legislation, or in logic. To apply the discriminator of age to the circumstances of a claimant who, because of his age, is ineligible to receive any payment but special benefit, is inapt. Further, the Tribunal does not agree with the Applicant's submission that the policy promotes a smooth transition to future or eventual payments under the Act. That submission relies on assumptions about future events that cannot be supported in the facts of this case.

9. The Tribunal considers that the consistency promoted by the policy, either in its original or recommended new form, does not save its inherent inaptness. The policy concentrates on a factor (age) which, under the scheme of the Act, yields a generally lower amount of payment (youth allowance). At the same time the policy disregards the ramifications of that factor for the conditions of existence of the claimant. This, in the Tribunal's view, produces an unnecessary injustice.

10. The Tribunal agrees with the submission of the Respondent that the discretion contained in sub-ection 746(1) is very broad, but qualified by sub-section 746 (2). The Tribunal also agrees that it is possible to interpret the provision to the effect that if it is applied to a person who does not "fit" completely into one of the three payment types listed in sub-section 746 (2), then the decision maker can return to the broad discretion. In such cases the limitation in sub-section 746 (2) has no work to do.

11. The Tribunal considered in coming to its conclusion the decision of Deputy President M Forrest in Re Secretary, Department of Social Security and David (1990) 20 ALD 262, in which the nature of the discretion to grant a special benefit was considered. The Deputy President said:
      "The limit of discretion is not embodied in legislation; to do so would be impractical given the myriad of circumstances that may arise from time to time. But the discretion conferred by statute is to be exercised "… according to the rules of reason and justice…" (see R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189), and by looking at the scope and purpose of the provision and at what is its real object: see; Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473. Not only must the circumstances of an applicant for special benefit be taken into account, but the essential nature of the benefit considered within the framework and object of the social security legislation. An officer of the department exercising discretionary power shall have regard to government policy: s 17 of the Act. In those circumstances, it is appropriate that guidelines for the assistance of departmental officers responsible for the day-to-day exercise of discretion be formulated from time to time to accord with policy. The guidelines have no legislative force. They are not "set in stone", but provide an administrative guide and a basis for the decision-maker to exercise his or her discretion. They are no more than that. As the Tribunal said in; Re MT, KM, NT and JT and Secretary, Department of Social Security (1986) 9 ALD 146: "The Tribunal itself must, however, adopt a guarded approach to such guidelines."   

1. In circumstances where, by virtue of age, a person, such as the Respondent, cannot qualify for any of the payments listed in sub-section 746 (2) and for that reason sub-section 746 (2) has no application in respect of that person, the Tribunal must still consider "the scope and purpose of the provision and … its real object" (David, supra) While sub-section 746 (2) may have no direct application in these circumstances, it does provide the Tribunal with evidence of an intention to impose a ceiling on the rate of payment of special benefit.

2. The circumstances of the Respondent are that he is an infant and is consequently dependent upon his mother for his survival.  It is common ground that his mother has no means of support and is prevented, by virtue of her non-resident status, from working.  It is also common ground that no financial support can be derived from the Respondent's father.  The Respondent and his mother remain in accommodation organised by the refuge.  That accommodation is short term; it cannot be provided indefinitely.

3. The Tribunal considers, therefore, that the Respondent's particular circumstances require that he be provided with a level of income support that recognises his need for a carer and provides for a sufficient livelihood taking that need into account.

4. It should not be taken that in other circumstances, for example, in relation to a person aged over 65, that such a person would necessarily be entitled to receive income to support a carer.  The circumstances of an infant Australian citizen child of a non-resident parent are particular and distinct.

5. Taking into account the indication, contained in s 746 (2) of the Act, of an intention to impose a ceiling on the rate of special benefit to be paid and the particular circumstances and needs of the Respondent, the Tribunal considers that the appropriate rate of special benefit to be paid to the Respondent is the maximum amount that can be paid up to the ceiling indicated by sub-section 746 (2). That amount is currently a fortnightly payment of $386.90, being the rate of newstart allowance payable to either a person who is single, 21 or over and with children or to a person who is single, aged 60 or over, after nine months.

6. The decision of the Social Security Appeals Tribunal is therefore set aside and the appropriate rate of payment of special benefit to be made to the Respondent is the rate of Newstart allowance for a single person, 21 years or over, with children or for a person who is single, aged 60 or over, after nine months.  That rate is, we understand, currently $386.90 per fortnight.

   I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Her Honour Justice D F O'Connor, President
   Signed: R. Quinn     .....................................................................................
     Associate

   Date/s of Hearing               11 July 2001
   Date of Decision               10 August 2001
   Advocate for the Applicant   Angela Smith
   Solicitor for the Respondent                    Sandra Koller