om CATCHWORDS Administrative law - Administrative Appeals Tribunal - appeal to Federal Court - social security - family allowance - date trom 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 1t erred in law in finding no "special circumstances" Administrative Appeals Tribunal Act 1975 5s. 44 Social Security Act 1947 ss. 94, 95, 395A, 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 N2z908 Re Seccull and Sec. Dept. of Social Security (1985) 8 ALN N207 Re Michael and D-G of Social Security (1982) 4 ALN N288 MELEK OZCAGLI v SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY VG 5 OF 1986 MELBOURNE KEELY J 16 SEPTEMBER 1926 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VG 5 of 15986 wee ew GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION BETWEEN: MELEK OZCAGLI Applicant AND : SECRETARY TO THE DEPARTMENT OF SOCTAL SECURITY Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Keely d. DATE OF ORDER : 16 September, 1986 WHERE MADE : Melbourne THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal made on 16 December 1985 be affirmed. 2. There be no order as to costs. Note: Settlement and entry of orders 15 dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) NO. VG 5 of 19865 ) ) GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION BETWEEN: MELEK OZCAGLI Applicant AND : SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Respondent 16 SEPTEMBER, 19856 KEELY J PEASONS FOR JUDGMENT This 15 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. The first ground of the appeal was that the Tribunal erred in law in its interpretation of certain provisions of the Soe1al Security Act 1947 (the Act) and in particular of s. 103 of the Act. In referring ta the Act the Tribunal sald: - "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; ahaa '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; (£) 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 1s wholly or substantially dependent on another person or 15 an inmate of an institution - tu (a) has attained the age of 16 years but is under the age of 25 years; (b) ais 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) 15 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 ain the custody, care and control of that other person. eeene 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 anmates is qualified to receive a family allowance in respect of each such child in accordance with this section. aaa S5A. On or after 1 January 1979, a Family allowance shall not be granted in respect of achild 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 toa this Part, a family allowance 15 payable in respect of family allowance periods, being periods commencing 103(1). 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) af a claim ais lodged within 5 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 (Bb) ain any other case - from the commencement of the next family allowance period after the date on which the claim for family allowance 15 lodged. 103. (1) Subject to sections 6B and 104, a family allowance payable to aA 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 1s satisfied, before the expiration of 3 months after the child attains that age, that the child became a student child on attaining that age; It is convenient to set out the other paragraphs of s. As at the date of the delegate's decision on September 1984, they read as follows:- "(a) the person to whom the family allowance was grantad ceases to have (b) tc) (d) (e) (g) (h) (i) the custody, care and control of the child; the child, being a child in the custody, care and control of a person, becomes an inmate of an institution; the child, being a child who is an inmate of an institution, ceases to be an inmate of the institution; the person to whom the family allowance was granted ceases to have his usual place of residence an Australia, unless his absence from Australia 15 temporary only; the child ceases to be in Australia, unless his absence from Australia is temporary only; the child, being a student child - (i) attains the age of 25 years; (ii) ceases toa receive full-time aducation at a school, college or university; (iii) begins to be in employment or to be engaged in work, other than employment or work that 13 the subject of a direction under sub-section %34(1B) or (10); or (iv) continues to be in employment or to be engaged in work after a darection under sub-section 94(¢1B) or (1C) an relation to the employment or work has been revoked}; the child dies; or the child marries." 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 hefore 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 35. 34(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. 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 toa include payment for the whole period since the child became a Student child on attaining the age of 16 years. 7. 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 1ts own reasons for decision in Re S3eccull 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 N2ga. In my opinion the following submissions, advanced by Mr. Tracey, of counsel, on behalf of the respondent, are correct. First, the words ins. 103(1)(f) "unless the Director-General 15 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 1t was intended that a right to payment should be merely suspended, the Act specifically used the words "suspend" or 3. "suspension". Third, the ordinary meaning of the word "cease" includes stopping an activity or bringing it to an end - as dastinct from an indefinite suspension of that activity. Fourth, some of the provisions of s. 103(1) (e.g. paragraphs (d), (8) and (h)) refer explicitly to situations which are not "temporary only" and in réspect 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), (@) and (h) of s. 103(1), runs counter to the construction of 5. 103(1)(f) advocated by the applicant. 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 he 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 perscn an "entitlement" in express words, the Act referred to a person as being "qualified to receive" certain payments (s. 95). 3. In my opinion, the Act, in saying that the allowance "ceas fia} s to be payable" (s. 103(1)), was referring to persons who had been "qualified to receive" it (3s. 95(1)) and was expressing the auntention that they would cease to be "qualified to receive" it an the various sets of circumstances prescribed by the legislature in paragraphs (a)-(1) of s. 1LO3(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 5s. 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". For these reasons I accept Mr. Tracey's submission that s. 103(1), an using the words "ceases to be payable" intended that the person who had heen "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 aun its construction of s. 103(1) of the Act. 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 ain introducing, the Social Security and Repatriation Legislation Amendment Bill (No. 2) 1984. 10. The second ground of the appeal was that the Tribunal erred in law in 1ts construction of 5s. 102 of the Act, which error vitiated its decision that there were no "special circumstances" within the meaning of 5s. 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 1ts construction of the section. Nor do TI 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. 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". Pirst, 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 11. 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 cf appeal to his "lack of organizational ability and his reluctance to seek advice"; the application to the Tribunal 1s 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 50, 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 didnot say that the occurrence of such negligence necessarily gave rise to Special circumstances. 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. I certify this and the preceding ten (10) pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Keely. Associate : wv Y. Date : [kh Setter yah. EY 12. 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 Solacitor Hearing date: 18 August, 1986