Yervantian and Secretary, Department of Family and Community Services

[2002] AATA 270

DECISION AND REASONS FOR DECISION [2002] AATA 270

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/1042

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      TIMOTHY YERVANTIAN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date18 March 2002 

PlaceBrisbane

Decision      The Decision under review is affirmed.  This means Mr Yervantian's application for review is unsuccessful.     
  ..................(Sgnd)..................
  Dr EK Christie
  Member
CATCHWORDS
SOCIAL SECURITY ACT – Youth Allowance – date youth allowance becomes payable – Scheme for Compensation for detriment caused by defective administration

Social Security Act 1991 s 11, s 554
Social Security (Administration) Act 1999 s 3, s 41, s 42; Schedule 2, Part 3 "Backdated Start Day"

Caswell v Powell Duffryn Collieries (1939) 3 ALL ER 722

WRITTEN REASONS FOR DECISION

Dr EK Christie, Member                

1. This is application for review by Timothy Yervantian of a decision by the Social Security Appeals Tribunal ("the SSAT") made on 29 October 2001 that decided Youth allowance was not payable to him for the period 8 February 2000 (the date he turned 16) to 23 May 2001.

2. The reason for this decision was that a claim for Youth allowance was not lodged until 24 May 2001.

3. The reasons for Mr Yervantian's application for review is as follows:

   "I feel that underpayment by social security should be paid back, as when overpayment is demanded to be paid back.  We should not be made to pay for the fact that the application went missing (TI folio 2)"

1. At the hearing Mr Hariah Yervantian represented his son, the Applicant and presented his case.  Mr Z McEwan, a Departmental Advocate represented the Department of Family and Community Services ("the Department").

2. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 – The "T" Documents (Exhibit 1).
   FACTS

3. Based on the evidence before it the SSAT made the following findings of fact:-

   "(I)      Mr Yerantian turned 16 on 8 February 2000 and payment of family allowance for him was cancelled.

   (ii)       He made contact with Centrelink to claim youth allowance on 24 May 2001.

   (iii)      He lodged a claim for youth allowance on 24 May 2001 and was paid youth allowance from 24 May 2001 (T2 Folio 5)"

4. Mr Yervantian acknowledged these findings of fact.
   ISSUES FOR THE TRIBUNAL TO DECIDE

5. The only issue for the Tribunal to decide was at what date should youth allowance payments to Timothy Yervantian commence.

6. It was common ground that Timothy Yervantian was entitled to receive youth allowance from the date he turned 16 (8 February 2000).  When Timothy Yervantian turned 16, family allowance paid to his mother in respect of him ceased; his mother's rate of payment was so reduced for around $90 per fortnight to $39.60 per fortnight.
   CONTENTIONS AND SUBMISSIONS OF THE PARTIES

7. Mr Yervantian stated that his wife had completed a "Review of Family Allowance and Family Tax Payment for a child turning 16" on 13 December 1999 (T5) at the Woodridge office.  Mr Yervantian acknowledged that his wife had ticked 'yes' to question (Question 4) which asked "Will your child claim Youth Allowance when he turns 16"

8. Mr Yervantian said that he only had a "hazy recollection" and could not say with "absolute honesty" that he had filled in and then lodged a claim for youth allowance for Timothy at this time.

9. Mr Yervantian stated that with four children (including a handicapped child), together with his wife who did not work, the entire family had received a wide range of Social Security entitlements over a 15 year period.  During this time they had always completed and sent in forms sent to them by Centrelink regarding all Social Security matters for their four children.  This was the first time that a form claimed to be sent to them by Centrelink with the Review of Family Allowance Form (see para 10) may not have been lodged.  Mr Yervantian contended that as far as he was aware he could have lodged such a form or that it could have been misplaced or lost by themselves or Centrelink.

10. Mr Yervantian further contended that it was "very strange" that the youth allowance form had not been lodged given that they had stated their intention to lodge a claim (see para 10).  Consequently, Mr Yervantian submitted why should they have to bear full responsibility for the claim form going missing when it was uncertain how the form came to be mislaid?

11. Mr Yervantian was informed during the hearing that legislative changes introduced by the Department in 1999 resulted in a requirement for a youth allowance claim to be lodged in order to receive payment.  This changed the previous situation where a person, already on a social security entitlement, would automatically receive youth allowance when they turned 16.

12. Mr Yervantian responded that he believed that Timothy would be automatically transferred to youth allowance when he turned 16 on 8 February 2000 as this was the exact situation that occurred for their oldest son.  It was only when he made an inquiry with Centrelink in May 2001 that he first became aware that Timothy was not being paid youth allowance. Moreover, Timothy was not even on the Centrelink computer.

13. Mr Yervantian said that this situation where his family received many different entitlements, all coded with separate acronyms when paid into their bank accounts, made it very difficult for him to understand which children received a specific entitlement.

14. Mr Yervantian concluded by submitting that the Department had an obligation to advise social security recipients of the significant change introduced in 1999 for transfer to youth allowance payments.  His circumstances were that he believed that Timothy will automatically receive youth allowance when he turned 16 as this was the case for his older brother.  Moreover, they had never been advised by Centrelink that the requirements had been changed.  As a result they had been deprived of entitlements for about 17 months because of the Department's failure to notify them.

15. Mr McEwan submitted that under the statutory framework, Timothy Yervantian could only be paid from the date a youth allowance claim was made.  Accordingly, this date was 24 May 2001, the date the claim was lodged with Centrelink.

16. Mr McEwan referred to Departmental File Notes (T17 folio 41) that indicated that there was no record of a claim being lodged prior to 30 May 2001.  The only record Centrelink had was an intention to claim (T5 folio 15).

17. Mr McEwan submitted that the normal practice of Centrelink was to send a youth allowance claim form with the Review of Family Allowance Form (see para 10).

18. In the absence of any recollection by Mr Yervantian or his family concerning the lodgement of the claim form, and in the absence of any record of receipt of a claim by Centrelink, Mr McEwan submitted that on the balance of probabilities, a claim was not lodged prior to May 2001.

19. Mr McEwan further submitted that a claim for Youth Allowance could not have been lodged on 13 December 1999 as, Timothy Yervantian had not turned 16 at that date.  A consequence of the operation of the Social Security Act, in such a situation, would be that a claim would be deemed to have not been made and the application for Youth Allowance would necessarily fail.

20. Finally, Mr McEwan submitted that there were no circumstances, as specified in Schedule 2 of the Social Security Administration Act 1999 that would justify backdating the claim for Youth Allowance back to Timothy Yervantian's sixteenth birthday.
    CONSIDERATION OF THE ISSUES

21. The objective of the Tribunal is to review administrative decisions not only on their merits but in accordance with the law at all times

22. The first issue for the Tribunal to consider is the evidence of Mr Hariah Yervantian.  The Tribunal finds Hariah Yervantian to be a witness of truth and to have acted honestly with the Department in all his dealings.

23. The next issue for the Tribunal to decide is whether the Department provided Mr Yervantian with a Youth Allowance application form and also whether Mr Yervantian lodged the application form.  There is no direct objective factual evidence on this point, for either party.  Both parties are relying on an inference to establish this point in their favour.

24. The Tribunal finds the following observations of LJ Wright in Caswell v Powell Duffryn Associated Collieries (1939) 3 All ER 722 at 733 to be particularly relevant in relation to the question of the evidentiary requirements for establishing an inference which can be relied upon as part of the decision-making process by the Tribunal:

    "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish….But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."

25. Given that neither party can identify any positive, objective facts to establish that a claim form was either lodged by Mr Yeravantian, or provided to Mr Yervantian by the Department, the method of inference fails.  Each party can only speculate whether a claim form was sent or whether a claim form was lodged.  The Tribunal cannot act on speculation.

26. The Tribunal next considers the statutory framework relevant in Mr Yervantian's fact situation?

27. Section 11(1) of the Social Security Act requires a claim for Youth Allowance to be made before it will be paid:

    ·         General rule

    11.(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted"
    (a) a social security payment; or
    (b) a concession card;

1. Section 41(1) of the Social Security (Administration) Act specifies the day ie the "Start Day" Social Security payments commence:-

   ·         Commencement

   41.(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment (Tribunal emphasis).

1. The Start Day in relation to a Social Security payment is worked out in accordance with Schedule 2 of the Social Security (Administrative) Act. Payment is made on the day on which the claim is made: Section 3(1); Section 42.

2. Schedule 2 of the Social Security (Administrative) Act specifies circumstances in which a person's start day in relation to a Social Security payment may be backdated: Part 3, Division 2.  The Tribunal has carefully considered the exceptions  [claim by transferee; childbirth; incapacity; death of a partner; disaster relief payment;  transfer of qualifying interests] and concludes  that there are no exceptions, prescribed by statute, that would enable Mr Yervantian's claim to be backdated.

3. Finally, the Tribunal acknowledges the submission of Mr McEwan (para 23) and concludes that the operation of Section 554(2) of the Social Security Act is such that Timothy Yervantian could not have lodged a claim for Youth Allowance on 13 December 1999 as he was not 16 and so not entitled to payment:

   ·         "554.(2) For the purposes of subsection (1), if:

   (a)      a claim for youth allowance is made by or on behalf of a person;

   and

   (b)at the time the claim is made, the claim cannot be granted because the person is not qualified for youth allowance";

   the claim is taken not to have been made.

1. Given the Tribunal's findings that there is no real or direct evidence that a claim was lodged before 24 May 2001 by Mr Yervantian, or that the Department had provided Mr Yervantian with a claim form (para 28), together with the operation of the Social Security Act and the Social Security (Administrative) Act, the Tribunal can make no other conclusion than Timothy Yervantian start day for commencement of Youth Allowance payment was 24 May 2001.

2. The conclusion may seem harsh as Mr and Mrs Yervantian's family has had to forego approximately $1700 for which they were entitled, if they had been advised by the Department of the changes introduced in 1999 for the requirements for making a claim for Youth Allowance. Without such advice they proceeded on the basis that Timothy Yervantian's entitlement to a family allowance payment would change automatically to a Youth Allowance payment when he turned 16. This, in fact, was the legislative process under the Social Security Act prior to 1999 and one which the Yervantian family were aware, as it had been applied to Timothy's elder brother. Without advice of the change by the Department, the Yervantian family have incurred a significant impact on their financial well-being.

3. Accordingly, the Tribunal concludes that the outcome of this application for review is unfortunate as the legislation provides the Tribunal with no option other than to make the conclusions it has made.

4. However, the Tribunal makes the observation that Mr Yervantian's belief that Timothy would automatically change from a family allowance to Youth Allowance payment when he turned 16 may have been a 'reasonable expectation' given (a) that this had been the situation they were familiar with older son and (b) Mr Yervantian's honest belief that they didn't receive any advice on the change when he had been provided with a claim form.

5. The Tribunal considers that some of these issues could be pursued as the possible basis for obtaining compensation by Mr Yervantian as they fall outside the statutory provisions and may represent circumstances where Mr Yervantian feels he could have been "unfairly disadvantaged" by the Commonwealth – but the he has no legal claim against it.  In this regard, the Tribunal draws the parties attention to Regulation 9 of the Financial Management and Accountability Regulations ("Act of Grace Payments") – as well as the Compensation for Detriment Caused by Defective Administration Scheme policy, respectively.  These avenues could be pursued by Mr Yervantian.

6. For all of the above reasons the Tribunal concludes that the commencement date for Youth Allowance payments to Timothy Yervantian was 23 May 2001.

7. Accordingly, the Tribunal decides to affirm the decision under review.

   I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

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

   Date/s of Hearing  18 March 2002
   Date of Decision  18 March 2002  
   Date of Written Reasons         19 April 2002
   Applicant  Mr Hariah Yervantian
   Respondent  Mr Z McEwan, Departmental Advocate