Waddington and Department of Education, Training and Youth Affairs

[2000] AATA 157

DECISION AND REASONS FOR DECISION [2000] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N99/930

GENERAL ADMINISTRATIVE DIVISION          )          

Re      JANE WADDINGTON       

Applicant

And    DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS       

Respondent

DECISION

Tribunal       Dr JD Campbell, Member  

Date2 March 2000

PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant is entitled to payment of Austudy arrears for the period 1 January 1998 through to 4 May 1998 in accordance with entitlements at that time.       

..............................................
  JD Cambell
  Member
CATCHWORDS
AUSTUDY – Application made after 31 March – financial affairs of applicant undertaken by parent – mistaken belief by parent – application for ARREARS – reasonable steps taken by Applicant – circumstances beyond Applicant's control
Student and Youth Assistance Act 1973 – Section 7
Austudy Regulations 58(1) – (5)
Eve Hollole and Secretary to the Department of Employment, Education and Training (AAT 8184, 21 August 1992)
Re Gordon and Department of Employment, Education and Training (1996) 2 SSR 25
Re Baron and Department of Employment, Education and Training (1996) 43 ALD 339
Re Secretary, Department of Employment, Education, Training and Youth Affairs and Beehag (1997) ALD 340

REASONS FOR DECISION

Dr JD Campbell, Member              

1. Ms Jane Waddington ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 14 May 1999 which affirmed a decision dated 26 November 1998 made by a delegate of the Secretary of the Department of Education, Training and Youth Affairs ("the Respondent"). This decision affirmed an earlier decision to pay the Applicant an Austudy allowance from 5 May 1998 until 31 December 1998, without arrears of the allowance from 1 January 1998 until 4 May 1998.

2. A hearing was held on 2 December 1999, at which the Applicant was self represented, and the Respondent was represented by Mr Pearson, a solicitor for the Australian Government Solicitor.

3. The Tribunal had before it the following material:
   Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T11, p1-46
   Supplementary Section 37 documents T1-T4, p1-11
   Letter from Mr Waddington to Mr Pearson dated 23 August 1999     Exhibit A1     
   Austudy Information Book  Exhibit R1     
   Application and Guide Austudy 1997      Exhibit R2     
   Respondent's Statement of Facts and Contentions dated 8 October 1999   Exhibit R3     

1. The Tribunal heard oral evidence from the Applicant and Mr D J Waddington,  the Applicant's father.
   Issues

2. The relevant issues in deciding whether the Applicant was entitled to receive AUSTUDY from 1 January to 4 May 1998 are:

   a)Whether the Applicant's application for AUSTUDY for 1998 was first lodged in an office of the Department on 5 May 1998 (see reg 58 of the AUSTUDY Regulations).

   b)Whether the Applicant took 'reasonable steps' to ensure that her application would be lodged before 31 March 1998 (see regs 58(1) and 58(4) of the AUSTUDY Regulations).

   c)Whether the Applicant:

   (i)was prevented from lodging her application by circumstances beyond her control; and

   (ii)if so, whether the Applicant lodged her application as soon as practicable after she was no longer prevented from doing so by the circumstances beyond her control (see reg 58(5) of the AUSTUDY Regulations).

Legislation

1. The relevant law in this mater is the Austudy regulations 58(1), (2), (3), (4), (5) and (6), ("the Austudy Regulations") issued pursuant to subsection 7(1) of the Student and Youth Assistance Act 1973 ("the Act").
   Background

2. The Applicant completed an application for Austudy on 11 February 1997 with guardian details being completed by her father, nominating his Commonwealth Bank account number to which payments were to be made (T3). The Applicant was assessed as eligible for Austudy for 1997 and payments were made to the father's bank account for the period to 31 December 1997.

3. The Applicant next applied for Austudy on 5 May 1998, with entitlement to Austudy payments being approved from the date of application (5 May 1998) until 31 December 1998.
   Applicant's Evidence

4. The Applicant told the Tribunal that she was born on 13 March 1981, and was aged 16 when she completed the personal details section of the Austudy application, which was received at the Liverpool office of Centrelink on 18 March 1997. The Applicant further told the Tribunal that the Austudy payments were to be paid into her father's Commonwealth Bank account. Further, the Applicant informed the Tribunal that as she was inexperienced, her father lodged and oversaw the process of application, as he had had other dealings with Centrelink in relation to family payments and other allowances.

5. The Applicant stated that in 1998 she continued year 12 at Hurlstone Agricultural High School, and gave up a small amount of casual employment to concentrate on her studies. The Applicant further stated that she did not receive an application form from the Department in order to complete it and apply to receive Austudy payments in 1998. The Applicant informed the Tribunal that in early May 1998, her father told her that Austudy payments had not been paid for 1998 and that he had noticed a diminution in the totality of payments from Centrelink into his account, but that this must, in his opinion, be as a result of government cutbacks.

6. The Applicant stated that her father contacted Centrelink and after being informed as to the cause of the diminishing government payments, obtained a renewal form and lodged an Application for Austudy Payment for 1998 for his daughter. The Applicant stated that she believed that her father, a sole parent and essentially shy man, was embarrassed at reliance upon government funds for his family's existence. Finally the Applicant stated that her father, in assessing his bank account, only had a concern for the balance as opposed to the source of the funds, as this permitted some preservation of his dignity. In a final comment, the Applicant informed the Tribunal that she had limited awareness of the Austudy Guide and that she had successfully completed her year 12 studies, gaining entry to a Social Work/Law program at university.
   Mr Waddington

7. Mr Waddington told the Tribunal that he was almost 65 years of age, a sole parent since 1993, who had attained an intermediate certificate. He had undertaken a variety of employments, having been employed as a company representative until retrenched. Mr Waddington stated that he was interested in gardening, having had earlier experiences in market gardens. Mr Waddington said that he oversaw the completion of the Austudy application form by his daughter when she applied in 1997. As a custodial parent, he accepted full responsibility for the activities surrounding oversight of completion and delivery of forms, with payment of Austudy being made to his account. Mr Waddington stated that he was familiar with the overall family account, balancing a budget and would give money to his daughter as needed.

8. Mr Waddington related to the Tribunal that from 31 December 1997 to the end of January 1998, he noticed "things were getting tight" and "his bank balance was getting lower", but that his daughter never saw his bank account. In early May 1998, Mr Waddington made a phone call to Centrelink and discussed what he perceived as "receiving a less amount of money". Mr Waddington stated that on further inquiry it was established that Austudy payments were not being made and renewal forms were to be sent. Mr Waddington also asked why renewal forms had not been previously sent and in response he was told "you are not the only one". Mr Waddington told the Tribunal that he informed his daughter of his discussions with Centrelink that afternoon and the appropriate renewal form was completed and delivered, with payments of Austudy commencing from 5 May 1998.

9. In cross examination Mr Waddington stated that he did not know what the abbreviation 'DEET' means, that he has never seen Austudy information and that his relationship and communication with his daughter is good.

10. In cross examination, the Applicant indicated that she had completed most of the items in the student details part of the application in 1997, with the possible exception of item 25. She further stated that her father handles all the household finances, and that she knew her father to be a shy man.
    Submissions

11. The Applicant submitted that the following matters be considered:

    (a)that she was inexperienced in making claims for Austudy and that she only used the guide to ensure that she completed the application form correctly in 1997. Further, the Applicant stated that she was unaware of the need to seek renewal of Austudy payments in 1998, otherwise she would have done so. Further, it was the Applicant's contention that Centrelink should have forwarded such a renewal application as a matter of course, for in the earlier application she had indicated an intention to continue her school studies; and

    (b)that as a student completing her year 12 studies, she had a lot on her mind and that her concentration was focused on her studies. In such circumstances it was not inappropriate to delegate to her father total responsibility for handling the financial issues surrounding the application for, and the receipt and handling of Austudy payments. Further, that while stating that there was communication with her father over tightened financial circumstances in late January 1998, she left the sorting out of the "family financial affairs" to her father; and

    (c)that the circumstances continued because of her father's character (shyness and concerns about relying on government payments), his presumption that shortage of funds was due to government cutbacks and his reliance on the balance of funds as opposed to source of funds when assessing his financial situation; and

    (d)that, once the Applicant was made aware of the absence of payment of Austudy allowances for 1998, a renewal form was completed and delivered to Centrelink at the earliest possible time; and

    (e)that there are a number of earlier cases in the AAT jurisdiction which assist the Applicant's claim for arrears of Austudy payments, namely:

    (i)In this case a student who left all financial matters to a parent was seen to have taken all reasonable steps in the circumstances to ensure her application would be lodged in time by leaving the lodging of the application with her mother. Re Hollole and Secretary to the Department of Employment, Education and Training (AAT 8184, 21 August 1992); and

    (ii)Gordon and Department of Employment, Education and Training (1996) 2 SSR 25, where a student delegating responsibility to her father for lodgement was seen to have taken reasonable steps that the application would be lodged in time; and

    (iii)Re Baron and Department of Employment, Education and Training (1996) 43 ALD 339. In this case a student delegated a parent to post the application which was not received by the Department. However the student was seen to have taken reasonable steps to ensure that the application would be lodged in time; and

    (iv)Secretary, Department of Employment, Education, Training and Youth Affairs and Beehag (1997) 45 ALD 340, where a student, who held an erroneous belief about Austudy entitlements was found to have drawn reasonable conclusions from the reading of the Guide, and such circumstances were found to be beyond his control.

12. The Respondent submitted that:

    (a)there was no dispute about the applicable law and as a consequence there was no continuing entitlement to Austudy. Accordingly, an applicant must apply each year for Austudy allowances and there was no statutory obligations on the Respondent to automatically send renewal application forms; and

    (b)that the Austudy Information Book for 1997 is specific in advising applicants as to pay dates for 1997 (Exhibit R1, p7). The book also addressed  the issue of a continuing application form being sent, and states that if one is not received by late December, an applicant can collect one from either an Austudy or CES office (Exhibit R1, p11). It is essential to apply before the relevant closing date and the eligibility is for the period 1 January 1997 to 31 December 1997 (Exhibit R2, p6-7). These are all matters which the Applicant ought to have been aware of; and

    (c)that in the factual circumstances of this matter the Applicant did not take any steps to ensure that her Austudy application was lodged prior to 31 March 1998; and

    (d)that the Applicant could have at any time made an enquiry as to why her Austudy payments had ceased.

Consideration and Findings

1. The Tribunal considers that the factual issues in this matter are not in dispute and accordingly finds the following:

a)that the Applicant and her father are creditable witnesses; and

b)that the Applicant did make an application for and receive Austudy payments for the calendar year 1997; and

c)that the Applicant did receive and use the Austudy guide (Exhibit R2) to assist in the completion of her application form of 1997. Further, an Austudy Information Book was received by the Applicant; and

d)that the Applicant did determine that any Austudy payments would be paid to her father's Commonwealth Bank account; and

e)that such payments were made to that account, until they ceased on 17 December 1997 (Exhibit A1); and

f)that examination of Exhibit A1 does show a diminishing residual balance at the end of calendar months of January, February, March and April when compared with December 1997; and

g)that the Applicant did delegate to her father, as an integral part of his management of the financial affairs of the family, the financial and overall managerial arrangements of her Austudy application and payments; and

h)that a continuing application form for Austudy payments in 1998 was neither sent to nor received by the Applicant, or sought by the Applicant prior to 31 March 1998; and

1. that the Applicant's father did make an enquiry of Centrelink in early May 1998 with regard to payments being received, and as a consequence it was established that Austudy payments had not been paid for calendar year 1998; and

j)that the Applicant's father had for the following reasons failed to ascertain that such payments were no longer being paid:

(i)his examination of his Commonwealth passbook was only concerned with end of month balance of funds as opposed to an examination of the source of funds as well as balance of funds; and

(ii)a conclusion that his diminishing monthly balance was due to Government cutbacks; and

(iii)his lack of understanding as to what the word 'DEET' in his passbook meant; and

(iv)the general nature of his character and his manner of dealing with adversity; and

k)that the Applicant was informed of her father's telephone conversations with Centrelink and immediate steps were taken to complete and forward a continuing application form, with payment of Austudy Allowance commencing from 5 May 1998; and

l)that the Applicant, apart from some discussion relating to a diminishing balance of available funds in her father's account, had no knowledge of cessation of Austudy payments until informed by her father after his discussions with Centrelink in early May 1998; and

m)that the Applicant had delegated the responsibility for the oversight in preparation of, the lodgement and the management of the financial payments to her father in her Austudy application of 1997; and

n)that the Applicant had left the continuing management of the Austudy application and management process to her father, and had at no stage made an enquiry of him or Centrelink as to its continuance prior to her father's advice to her in early May 1998.

1. The Tribunal, in giving consideration to these findings of fact, details the relevant Austudy Regulations made pursuant to subsection 7(1) of the Act.

   "58. (1) Unless subregulation (3), (4) or (5) applies, an application relating to a type of course listed in the following table must be lodged by the closing date in the year in which application is made listed opposite that type of course in the table:
   Type of course (1)  Closing date
   full year course beginning
   - before 1 July  31 March
   - after 30 June  31 July
   short course  28 days after the course starts
   late starting course  28 days after the course starts

   (2)If an application is lodged after the appropriate closing date, AUSTUDY is only payable for the period after it has been lodged.

   (3)If a student becomes qualified to get AUSTUDY during a year, then:

   (a)an application must be lodged within 4 weeks afterwards (unless the appropriate closing date is later); and

   (b)if the application is lodged after then, AUSTUDY is only payable for the period after it has been lodged. (2)

   (4)However, an application can be considered if the student has taken reasonable steps to ensure that it would be lodged in time.

   (5)Further, an application can be considered if the student lodges it as soon as practicable after he or she is no longer prevented from doing so by circumstances beyond his or her control.

   (6)However, an application cannot be considered if it is lodged after 31 December in the year for which the application was made."

1. The Tribunal notes that subregulations 58(3) and 58(6) do not apply in this matter, and that subregulation (1) requires an application to have been made for a full year course by 31 March 1998. Further, payment has been made in accordance with subregulation 58(2).

2. In relation to subregulation 58(4), the Tribunal has already found that the Applicant had delegated to her father the responsibility for oversight of completion of the application form, and the lodgement together with the management of payments made in the overall financial affairs of the family. The Tribunal further concludes that on the evidence of the Applicant and that of her father, this state of affairs continued through until May 1998. At this time her father made the enquiry to Centrelink that established that Austudy payments were not being paid. He then arranged for the dispatch, completion and lodgement of the continuing application form. The Tribunal acknowledges that the Applicant made no enquiry of her father or Centrelink in respect of the continuing Austudy payment for 1998, nor was she aware that such payment was not being made. Further, the reason that she did not enquire was essentially because the management of the matter was totally her father's responsibility.

3. The Tribunal notes that the subregulation 58(4) is concerned with a student taking reasonable steps to ensure lodgement of application in time. In the Tribunal's consideration, the essential issue remains as to whether the Applicant's delegation to her father in the circumstances of this matter constituted reasonable steps. In the case of Hollole (supra) before the Tribunal, it was found that leaving all financial matters to a parent in particular circumstances was seen to be taking all reasonable steps to ensure lodgement.

4. In this matter the Tribunal, in observing that the test of reasonable steps relates to actions taken by the Applicant and not to actions taken by her father, concludes that in the circumstances of the matter, it is reasonable for the Applicant to have delegated the responsibilities to her father.  That is to say, the delegation, as opposed to the consequences of the delegation, was a reasonable step for the Applicant to have undertaken. In the absence of any evidence in this matter that the Applicant was aware of relevant information that she should have passed to her father during the relevant period, the Tribunal concludes that upon the facts of this matter the Applicant has taken reasonable steps to ensure that lodgement would occur in time. In so finding, the Tribunal concludes that the father's shortcomings in his management of the affair should not be visited on the Applicant, for it is clear to the Tribunal that the father should have been aware of the non-payment of Austudy to the Applicant by at least early February. At this time he should have either initiated inquiry as to the reason for cessation or sought counsel with the Applicant as to the issue. In short, the Tribunal is of a view that the Applicant's father, having sole responsibility for financial affairs of the family had a duty to carry through his responsibilities, where he knew or should have known of such matters, to the Applicant – a duty that he did not undertake until early May 1998.

1. In relation to subregulation 58(5) the Tribunal again notes that the subregulation deals with consideration of an Application if lodged as soon as practicable after the circumstances beyond the Applicant's control no longer prevented her from lodging her application. It is clear to the Tribunal that the financial affairs of the Applicant and her family were managed by her father. Through a variety of circumstances which the Tribunal has found to exist, the Applicant's father created a situation which was beyond the control of the Applicant, whether by misappreciation, inattention to detail or lack of knowledge. If at any stage during the period up to his advice to his daughter in early May 1998, the Applicant's father had made known to the Applicant facts which were later established and acknowledged, then the Applicant could then be said to be in a position to exercise control. Further, it is evidence to the Tribunal that once the facts concerning Austudy payments were established, the Applicant, again with her father managing the process, lodged a continuing application for Austudy resulting in payment from 5 May 1998. It is the Tribunal's finding that once the circumstance beyond the Applicant's control ceased to operate, the Applicant lodged an application at the earliest opportunity.

2. The Tribunal, in acknowledging the beneficial notice of the legislation under which this matter is considered, and the somewhat unusual circumstances as to how the issues in this matter arose, concludes that the Applicant should be paid Austudy entitlements for the period 1 January 1998 to 4 May 1998.
   Determinations

3. The Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant is entitled to payment of Austudy arrears for the period 1 January 1998 through to 4 May 1998 in accordance with entitlements at that time.

   I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John D Campbell, Member

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  2 December 1999
   Date of Decision  2 March 2000
   Representative for the Applicant  Self-represented

   Solicitor for the Respondent        Andrew Pearson,

   Australian Government Solicitor