## j2009-1

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---

### Case and procedural overview
- Administrative Tribunal met on March 16 and 17, 2009, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought by Mr. Shuang Ding against the International Monetary Fund.
- Applicant contests elements of the Fund’s policy governing eligibility for Education Allowances and seeks:
  - establishment of his child’s eligibility for Education Allowances for the 2008-2009 academic year; and
  - legal costs.
- Applicant also suggested revision of the Fund’s policy to provide eligibility for Education Allowances for a period of twenty academic years, beginning with the academic year following the child’s fourth birthday, irrespective of whether the child’s birthday falls within or outside of the academic year.
- The Tribunal decided not to hold oral proceedings.

### Procedural history and filings
- Application filed with the Administrative Tribunal on September 17, 2008, and transmitted to Respondent that day.
- Registrar circulated a notice within the Fund pursuant to Rule IV, para. (f).
- Respondent’s Answer filed November 3, 2008.
- Applicant’s Reply filed December 3, 2008.
- Fund’s Rejoinder filed January 5, 2009.
- Tribunal issued Requests for Information on February 2 and 19, and March 5, 2009, under Rule XVII, para. 3; the Fund’s responses were filed on February 6 and 26, and March 6, 2009, and transmitted to Applicant.

### Request for anonymity and Tribunal determination
- Applicant requested anonymity under Rule XXII of the Tribunal’s Rules of Procedure.
- Rule XXII provides that the Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual.
- The Fund opposed anonymity, asserting Applicant had not shown good cause because the case was “simply a challenge to a rule regarding eligibility for a benefit.”
- Applicant’s stated reason: as a “first-timer before the Tribunal,” uncertainty about “direct or indirect consequences” justified anonymity.
- The Tribunal held that Applicant had not shown good cause for anonymity and declined to protect his privacy by withholding his name.
- The Tribunal observed that adverse consequences do not arise and cannot be allowed to arise from a staff member’s recourse to the Tribunal.
- The Tribunal summarized prior IMFAT anonymity jurisprudence, noting five prior grants of anonymity where circumstances involved alleged misconduct, health, or family relations (cases cited include Ms. “AA”, Ms. “BB”, Ms. “CC”, Mr. “N”, and Mr. “DD”).

### Relevant facts
- Applicant, an economist, began employment with the Fund in 1997.
- Under GAO No. 21, Rev. 7 (June 12, 2000) (Education Allowances), as a national foreign to the United States holding G-4 visa status and serving at the Fund’s Washington, D.C. headquarters, Mr. Ding is eligible for Education Allowances in respect of dependent children.
- Applicant’s child was born on August 4, 2004.
- On June 9, 2008, Applicant informed Human Resources Department (“HRD”) that, by the terms of GAO No. 21, Rev. 7, Section 4.02, his child did not appear to meet the age eligibility requirement for the 2008-2009 school year.
- GAO No. 21, Rev. 7, Section 4.02 provides in pertinent part:
  - “4.02.1 Children With Birthdays Falling Within the Academic Year. A child whose birthday falls within the academic year shall qualify for education allowances beginning with the academic year during which the child’s fifth birthday occurs until the end of the academic year during which the child’s twenty-fourth birthday occurs.”
  - “4.02.2 Children With Birthdays Falling Outside the Academic Year. A child whose birthday falls outside the academic year shall qualify for education allowances beginning with the academic year that follows the child’s fifth birthday until the end of the academic year that precedes the child’s twenty-fourth birthday.”
- HRD confirmed on June 9, 2008, that Applicant’s child did not qualify for Education Allowances for the 2008-2009 academic year.

### Administrative review within the Fund
- July 22, 2008: Applicant sought administrative review by the Chief, Compensation and Benefits Policy Division, arguing the rule produced “unequal treatment of children depending on their birth dates” and requesting that a child “qualify for education allowance for 20 academic years beginning with the academic year that follows the child’s fourth birthday.”
- Division Chief denied Applicant’s request on August 5, 2008.
- August 12, 2008: Applicant requested review and revision of the Education Allowances policy by the Director of Human Resources.
- Director of Human Resources responded on August 28, 2008: based on the plain language of GAO No. 21, Section 4.02.2, Applicant’s child did not qualify for the coming school year and earlier decisions were confirmed.
- September 8, 2008: Fund advised Applicant he could proceed directly to the Tribunal because he challenged the regulation itself rather than its application to his case.
- September 17, 2008: Applicant filed his Application with the Administrative Tribunal.

### Parties’ principal contentions — Admissibility
- Applicant’s admissibility contentions:
  - The Tribunal has jurisdiction over challenges to GAO No. 21, Rev. 7 (effective June 12, 2000).
  - The Executive Board decision of July 30, 1979 did not explicitly address eligibility of children whose birthdays fall outside the academic year.
  - GAO No. 21, Rev. 7 substantively changed the provision on eligibility criteria; Revision 7 introduced a new element not part of the 1979 Board decision or earlier versions.
- Respondent’s admissibility contentions:
  - The policy challenged was introduced in 1979, before establishment of the Tribunal, so the Tribunal lacks jurisdiction ratione temporis under Article XX of the Statute.
  - The current version (GAO No. 21, Rev. 7 (June 12, 2000)) “clarified but did not substantively change” the pre-existing provision; the earlier rule’s meaning was clear and consistently applied such that a child’s fifth birthday had to occur before the end of the school year to be eligible for that year.
  - Continuation of the policy adopted in 1979 cannot give the Tribunal jurisdiction over Applicant’s challenge to the original policy.

### Parties’ principal contentions — Merits
- Applicant’s merits contentions:
  - GAO No. 21, Rev. 7, Section 4.02 treats children in a discriminatory manner depending on their dates of birth.
  - Under Section 4.02, a child whose birthday falls outside the academic year would receive one less year of Education Allowances compared with a child whose birthday falls within the academic year, during the entire eligibility period.
  - The age eligibility criteria do not reflect a proper exercise of the Fund’s discretion but rather represent discrimination among Fund staff because of differing birth dates.
  - The policy should ensure children in the same circumstances receive the same number of years of allowance.
  - Applicant requests establishment of his child’s eligibility for the 2008-2009 academic year and legal costs; he additionally suggests revising the policy to provide eligibility for twenty academic years beginning with the academic year that follows the child’s fourth birthday.
- Respondent’s merits contentions:
  - The age-based eligibility policy is not discriminatory and was a proper exercise of the Fund’s discretion.
  - Eligibility requirements are intended to limit the provision of the benefit to circumstances that support the policy’s purpose; it is appropriate that eligibility relate to the age of the child and the type of schooling, irrespective of the total amount any staff member may receive.
  - The age criterion adopted by the Executive Board — the school year in which the child turns five — is appropriate and rationally related to the policy’s purpose, reflecting a widespread practice to begin formal academic instruction for children at age five.

### Purpose and scope of Education Allowances (GAO No. 21)
- GAO No. 21, Rev. 7 (June 12, 2000): Education Allowances are granted to assist expatriate staff “... in educating their children, either in their home countries or elsewhere, in a manner intended to facilitate their children’s eventual return to their home countries.” (Section 1.01.)
- Education Allowances defray, up to specified limits, costs of attendance at a qualified educational institution, boarding and travel for attendance outside the duty station country, and certain types of tutoring. (Section 1.01.)
- Section 7.01 (at issue in the case): “For each academic year, a staff member whose child is enrolled full-time in a qualified educational institution is entitled to receive three-fourths of the tuition and cost of attendance ... up to the overall maximum allowance (‘ceiling’) ....”
- Ceilings for tuition and cost of attendance are annually adjusted for each country. (Section 7.04.)

### Historical evolution of age eligibility requirements (chronological highlights)
- GAO No. 21 (November 1, 1950) initial age limits:
  - Upper age cut-off: dependent child “be not more than 18 years of age if in attendance at a school below the university level or not more than 22 years of age if in attendance at a university.” (Section 2.03.)
- GAO No. 21, Rev. 2 (July 9, 1962):
  - Introduced a start point based on grade and an end point based on chronological age: “No education allowance shall be paid for a child in attendance at a kindergarten or nursery school, or beyond completion of the scholastic year in which a child attains his twenty-second birthday.” (Section 2.03.)
- GAO No. 21, Rev. 4 (May 1, 1975):
  - Reiterated no benefits beyond the scholastic year during which a child reaches his twenty-second birthday and excluded kindergarten or nursery school as qualifying institutions. (Sections 2.02 and 3.013.)
- 1976 Executive Board decision (EBAP/76/77 – April 9, 1976; Board meeting April 21, 1976):
  - Upper age limit revised from age 22 to age 24 to “bring the Fund in line with the Bank.”
  - Staff Bulletin No. 76/4 (April 26, 1976): “Education allowance for future scholastic years will be paid through the scholastic year during which the child reaches age 24, instead of age 22.”
  - Amendment incorporated by Supplement 1 (May 1, 1976) into GAO No. 21, Rev. 4.
- 1979 Executive Board decision (EBM/79/130 – July 30, 1979; EBAP/79/227 – July 20, 1979):
  - Lower limit changed from grade-based to age-based: “Education allowances will be paid from the beginning of the academic year in which the child reaches the fifth birthday.”
  - Rationale: an age qualification is “generally more equitable to administer” and fifth birthday aligns with compulsory schooling in many member countries.
  - Staff Bulletin No. 79/13 (August 15, 1979): communicated the shift from “First Grade” to the academic year in which a child reaches the fifth birthday.
- Staff guidance on pre-primary implementation:
  - Staff Bulletin No. 80/11 (August 22, 1980): noted denials where child reached age 5 after the last day of classes or was not in full-time schooling (minimum of 3 hours per day, 5 days a week).
  - Staff Benefits “Pre-Primary Education: General Guidelines,” November 6, 1984: a child must reach the age of five on or before the last day of the classes in the child’s school to qualify.
- GAO No. 21, Rev. 5 (June 1, 1983):
  - Consolidated limits: “No education allowance benefits shall be paid before the beginning of the scholastic year in which a child reaches his fifth birthday or beyond the completion of the academic year during which a child reaches his twenty-fourth birthday.” (Section 3.02.)
  - Defined “qualifying educational institutions” to include “licensed kindergarten[s].” (Section 4.01.)
- GAO No. 21, Rev. 6 (January 28, 1985):
  - Added exception for interruption by compulsory military service: if education interrupted by compulsory military service of at least six months, eligible for one academic year beyond the age limits (extension to twenty-fifth birthday academic year).
  - Revised text: included subsections 3.02.1 for the military service exception.
- GAO No. 21, Rev. 7 (June 12, 2000):
  - Continues to govern age eligibility requirements in the Ding case.
  - Section 4 (Qualification of Children) in full governs eligibility:
    - 4.01: eligibility requires child eligible for child allowances under GAO No. 28; enrolled full-time in a qualified school or educational institution; and five years of age or older, but less than twenty-four years of age, except as provided in subsection 4.02.
    - 4.02.1: Children with birthdays falling within the academic year qualify beginning with the academic year during which the child’s fifth birthday occurs until the end of the academic year during which the child’s twenty-fourth birthday occurs.
    - 4.02.2: Children with birthdays falling outside the academic year qualify beginning with the academic year that follows the child’s fifth birthday until the end of the academic year that precedes the child’s twenty-fourth birthday.
    - 4.02.3: Extension for military service: upon submission of satisfactory evidence of compulsory military service of at least six months, qualification extended by one academic year.
    - 4.03: Full-time attendance requirement.
  - Section 5.03 provides qualifying types of institutions (licensed kindergarten, nursery school or day care center; accredited grammar or primary school; accredited high school or secondary school; accredited college or university or other post-secondary school located outside duty station country; vocational training institutions with conditions).
  - Staff Bulletin No. 00/8 (June 22, 2000) stated the revised GAO “incorporates a number of changes in administrative policy and procedures ... Neither the basic structure of education benefits nor the mechanics of applying for the annual allowances have changed.” It summarized: “Age limits for children. The rules with respect to the ages of children for whom education allowances may be paid, generally from age five through the child’s 24th birthday, are now found in Section 4.”

### Admissibility and ratione temporis considerations
- Article XX, Section 1 of the Tribunal’s Statute bars challenges to administrative acts taken before October 15, 1992: “The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date.”
- Article VI, Section 2 permits challenge to a regulatory decision either within three months of announcement/effective date or at any time as part of a challenge to an admissible individual decision taken pursuant to such regulatory decision; but this is subject to Article XX.
- Fund’s position: the age limit eligibility criterion at issue was introduced in 1979 and has been applied without change since then; thus the challenged regulatory decision predates October 15, 1992.
- Applicant’s position: Revision 7 of GAO No. 21 (2000) “substantively changed” the provision on age eligibility.
- Fund’s counter: Revision 7 “clarified but did not substantively change that provision”; it “simply spelled out the intention and meaning of the existing framework as it had consistently been interpreted and applied, without any change to either the substance or the administration of the rule.”

### Tribunal’s analysis and findings on substance, effect, and jurisdiction
- Two dispositive questions framed by the Tribunal:
  - (1) Did the Fund take a “regulatory” decision pre-dating the period of the Tribunal’s competence to limit eligibility for Education Allowances to children who have already reached the fifth birthday before the conclusion of the academic year?
  - (2) Did the Fund take a “regulatory” decision pre-dating the period of the Tribunal’s competence to differentiate between children with birthdays falling within the academic year and those with birthdays falling outside the academic year in allocating the total number of years of eligibility for Education Allowances?
- Comparison of Revision 6 (January 28, 1985) and Revision 7 (June 12, 2000):
  - Revision 6 provided: “no education allowance benefits shall be paid before the beginning of the academic year (first day of child’s classes) in which a child reaches his fifth birthday or beyond the completion of the academic year (last day of child’s classes) during which a child reaches his twenty-fourth birthday.”
  - Revision 7 provided the split subsections 4.02.1 and 4.02.2 distinguishing birthdays within and outside the academic year (text quoted above).
- The Tribunal found that, in substance and in effect, Section 3.02 of Revision 6 (January 28, 1985) and Section 4.02 of Revision 7 (June 12, 2000) are the same:
  - Both only permit payment of Education Allowance benefits to a child who reaches his or her 5th birthday during the academic year.
  - Both cut off payment of the Education Allowance at the end of the academic year in which the 24th birthday is reached.
- Conclusion on jurisdiction:
  - Since, in substance, the provisions are the same, Mr. Ding’s Application is tantamount to a challenge to a rule of the Fund that pre-dates the entry into force of the Tribunal’s Statute.
  - Hence, by reason of the terms of Article XX, paragraph 1, of the Tribunal’s Statute, the Tribunal is without jurisdiction to pass upon the merits of the Application.

### Observations on clarity and unequal effects
- The Tribunal observed that the wording of the provisions is not clear on their face regarding the number of years of Education Allowance entitlement:
  - The provisions do not expressly state that children born outside the academic year will be entitled to 19 years of the Education Allowance while those born within will be entitled to 20.
  - Staff must calculate and draw the resulting conclusion themselves.
- The Fund’s pleadings confirm that the provisions result, or can result, in a child of a long-serving staff member receiving either 19 or 20 years of Education Allowance benefits depending on whether the child is born during or outside of the academic year.
- The Tribunal noted that the resultant inequality—whether intended or not—invites the reconsideration of the Fund.

### Decision
- The Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Application of Mr. Ding is denied.

*Administrative Tribunal of the International Monetary Fund, Washington, D.C., March 17, 2009.*

### Introduction

### Introduction

### Case and procedural overview
- The Administrative Tribunal of the International Monetary Fund met on March 16 and 17, 2009, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought by Mr. Shuang Ding against the International Monetary Fund.
- Applicant contests elements of the Fund’s policy governing eligibility for Education Allowances and seeks:
  - establishment of his child’s eligibility for Education Allowances for the 2008-2009 academic year; and
  - legal costs.
- Applicant also suggests revision of the Fund’s policy to provide eligibility for Education Allowances for a period of twenty academic years, beginning with the academic year following the child’s fourth birthday, irrespective of whether the child’s birthday falls within or outside of the academic year.

### Procedural history and filings
- Application filed with the Administrative Tribunal on September 17, 2008, and transmitted to Respondent that day.
- Registrar circulated a notice within the Fund pursuant to Rule IV, para. (f).
- Respondent’s Answer filed November 3, 2008.
- Applicant’s Reply filed December 3, 2008.
- Fund’s Rejoinder filed January 5, 2009.
- Tribunal issued Requests for Information on February 2 and 19, and March 5, 2009, under Rule XVII, para. 3; the Fund’s responses were filed on February 6 and 26, and March 6, 2009, and transmitted to Applicant.
- The Tribunal decided not to hold oral proceedings.

### Request for anonymity and Tribunal determination
- Applicant requested anonymity under Rule XXII of the Tribunal’s Rules of Procedure.
- Rule XXII provides that the Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual.
- The Fund opposed anonymity, asserting Applicant had not shown good cause because the case was “simply a challenge to a rule regarding eligibility for a benefit.”
- Applicant’s stated reason: as a “first-timer before the Tribunal,” uncertainty about “direct or indirect consequences” justified anonymity.
- The Tribunal held that Applicant had not shown good cause for anonymity and declined to protect his privacy by withholding his name.
- The Tribunal observed that adverse consequences do not arise and cannot be allowed to arise from a staff member’s recourse to the Tribunal.
- The Tribunal summarized prior IMFAT anonymity jurisprudence, noting five prior grants of anonymity where circumstances involved alleged misconduct, health, or family relations (cases cited include Ms. “AA”, Ms. “BB”, Ms. “CC”, Mr. “N”, and Mr. “DD”).

### Relevant facts
- Applicant, an economist, began employment with the Fund in 1997.
- Under GAO No. 21, Rev. 7 (June 12, 2000) (Education Allowances), as a national foreign to the United States holding G-4 visa status and serving at the Fund’s Washington, D.C. headquarters, Mr. Ding is eligible for Education Allowances in respect of dependent children.
- Applicant’s child was born on August 4, 2004.
- On June 9, 2008, Applicant informed Human Resources Department (“HRD”) that, by the terms of GAO No. 21, Rev. 7, Section 4.02, his child did not appear to meet the age eligibility requirement for the 2008-2009 school year.
- GAO No. 21, Rev. 7, Section 4.02 provides in pertinent part:
  - “4.02.1 Children With Birthdays Falling Within the Academic Year. A child whose birthday falls within the academic year shall qualify for education allowances beginning with the academic year during which the child’s fifth birthday occurs until the end of the academic year during which the child’s twenty-fourth birthday occurs.”
  - “4.02.2 Children With Birthdays Falling Outside the Academic Year. A child whose birthday falls outside the academic year shall qualify for education allowances beginning with the academic year that follows the child’s fifth birthday until the end of the academic year that precedes the child’s twenty-fourth birthday.”
- HRD confirmed on June 9, 2008, that Applicant’s child did not qualify for Education Allowances for the 2008-2009 academic year.

### Administrative review within the Fund
- July 22, 2008: Applicant sought administrative review by the Chief, Compensation and Benefits Policy Division, arguing the rule produced “unequal treatment of children depending on their birth dates” and requesting that a child “qualify for education allowance for 20 academic years beginning with the academic year that follows the child’s fourth birthday.”
- Division Chief denied Applicant’s request on August 5, 2008.
- August 12, 2008: Applicant requested review and revision of the Education Allowances policy by the Director of Human Resources.
- Director of Human Resources responded on August 28, 2008: based on the plain language of GAO No. 21, Section 4.02.2, Applicant’s child did not qualify for the coming school year and earlier decisions were confirmed.
- September 8, 2008: Fund advised Applicant he could proceed directly to the Tribunal because he challenged the regulation itself rather than its application to his case.
- September 17, 2008: Applicant filed his Application with the Administrative Tribunal.

### Parties’ principal contentions — Admissibility
- Applicant’s admissibility contentions:
  - The Tribunal has jurisdiction over challenges to GAO No. 21, Rev. 7 (effective June 12, 2000).
  - The Executive Board decision of July 30, 1979 did not explicitly address eligibility of children whose birthdays fall outside the academic year.
  - GAO No. 21, Rev. 7 substantively changed the provision on eligibility criteria; Revision 7 introduced a new element not part of the 1979 Board decision or earlier versions.
- Respondent’s admissibility contentions:
  - The policy challenged was introduced in 1979, before establishment of the Tribunal, so the Tribunal lacks jurisdiction ratione temporis under Article XX of the Statute.
  - The current version (GAO No. 21, Rev. 7 (June 12, 2000)) “clarified but did not substantively change” the pre-existing provision; the earlier rule’s meaning was clear and consistently applied such that a child’s fifth birthday had to occur before the end of the school year to be eligible for that year.
  - Continuation of the policy adopted in 1979 cannot give the Tribunal jurisdiction over Applicant’s challenge to the original policy.

### Parties’ principal contentions — Merits
- Applicant’s merits contentions:
  - GAO No. 21, Rev. 7, Section 4.02 treats children in a discriminatory manner depending on their dates of birth.
  - Under Section 4.02, a child whose birthday falls outside the academic year would receive one less year of Education Allowances compared with a child whose birthday falls within the academic year, during the entire eligibility period.
  - The age eligibility criteria do not reflect a proper exercise of the Fund’s discretion but rather represent discrimination among Fund staff because of differing birth dates.
  - The policy should ensure children in the same circumstances receive the same number of years of allowance.
  - Applicant requests establishment of his child’s eligibility for the 2008-2009 academic year and legal costs; he additionally suggests revising the policy to provide eligibility for twenty academic years beginning with the academic year that follows the child’s fourth birthday.
- Respondent’s merits contentions:
  - The age-based eligibility policy is not discriminatory and was a proper exercise of the Fund’s discretion.
  - Eligibility requirements are intended to limit the provision of the benefit to circumstances that support the policy’s purpose; it is appropriate that eligibility relate to the age of the child and the type of schooling, irrespective of the total amount any staff member may receive.
  - The age criterion adopted by the Executive Board — the school year in which the child turns five — is appropriate and rationally related to the policy’s purpose, reflecting a widespread practice to begin formal academic instruction for children at age five.

*Administrative Tribunal of the International Monetary Fund — Introduction (case material summarized).*

### 4. Applicant’s argument that the Fund should provide staff members with the

### 4. Applicant’s argument that the Fund should provide staff members with the same total years of entitlement to Education Allowances during their careers

### Applicant’s core legal contentions and tribunal response
- Applicant’s argument that the Fund should provide staff members with the same total years of entitlement to Education Allowances during their careers is characterized as based on a misunderstanding of the nature of the benefit.
- If Applicant prevails in whole or in part on his Application, his claim for costs should be rejected because he is not an attorney and did not incur any opportunity cost in preparing his own case.

### Purpose and scope of Education Allowances (GAO No. 21)
- GAO No. 21, Rev. 7 (June 12, 2000): Education Allowances are granted to assist expatriate staff “... in educating their children, either in their home countries or elsewhere, in a manner intended to facilitate their children’s eventual return to their home countries.” (Section 1.01.)
- Education Allowances defray, up to specified limits, costs of attendance at a qualified educational institution, boarding and travel for attendance outside the duty station country, and certain types of tutoring. (Section 1.01.)
- Section 7.01 (at issue in the case): “For each academic year, a staff member whose child is enrolled full-time in a qualified educational institution is entitled to receive three-fourths of the tuition and cost of attendance ... up to the overall maximum allowance (‘ceiling’) ....”
- Ceilings for tuition and cost of attendance are annually adjusted for each country. (Section 7.04.)

### Historical evolution of age eligibility requirements (chronological highlights)
- GAO No. 21 (November 1, 1950) initial age limits:
  - Upper age cut-off: dependent child “be not more than 18 years of age if in attendance at a school below the university level or not more than 22 years of age if in attendance at a university.” (Section 2.03.)
- GAO No. 21, Rev. 2 (July 9, 1962):
  - Introduced a start point based on grade and an end point based on chronological age: “No education allowance shall be paid for a child in attendance at a kindergarten or nursery school, or beyond completion of the scholastic year in which a child attains his twenty-second birthday.” (Section 2.03.)
- GAO No. 21, Rev. 4 (May 1, 1975):
  - Reiterated no benefits beyond the scholastic year during which a child reaches his twenty-second birthday and excluded kindergarten or nursery school as qualifying institutions. (Sections 2.02 and 3.013.)
- 1976 Executive Board decision (EBAP/76/77 – April 9, 1976; Board meeting April 21, 1976):
  - Upper age limit revised from age 22 to age 24 to “bring the Fund in line with the Bank.”
  - Staff Bulletin No. 76/4 (April 26, 1976): “Education allowance for future scholastic years will be paid through the scholastic year during which the child reaches age 24, instead of age 22.”
  - Amendment incorporated by Supplement 1 (May 1, 1976) into GAO No. 21, Rev. 4.
- 1979 Executive Board decision (EBM/79/130 – July 30, 1979; EBAP/79/227 – July 20, 1979):
  - Lower limit changed from grade-based to age-based: “Education allowances will be paid from the beginning of the academic year in which the child reaches the fifth birthday.”
  - Rationale: an age qualification is “generally more equitable to administer” and fifth birthday aligns with compulsory schooling in many member countries.
  - Staff Bulletin No. 79/13 (August 15, 1979): communicated the shift from “First Grade” to the academic year in which a child reaches the fifth birthday.
- Staff guidance on pre-primary implementation:
  - Staff Bulletin No. 80/11 (August 22, 1980): noted denials where child reached age 5 after the last day of classes or was not in full-time schooling (minimum of 3 hours per day, 5 days a week).
  - Staff Benefits “Pre-Primary Education: General Guidelines,” November 6, 1984: a child must reach the age of five on or before the last day of the classes in the child’s school to qualify.
- GAO No. 21, Rev. 5 (June 1, 1983):
  - Consolidated limits: “No education allowance benefits shall be paid before the beginning of the scholastic year in which a child reaches his fifth birthday or beyond the completion of the academic year during which a child reaches his twenty-fourth birthday.” (Section 3.02.)
  - Defined “qualifying educational institutions” to include “licensed kindergarten[s].” (Section 4.01.)
- GAO No. 21, Rev. 6 (January 28, 1985):
  - Added exception for interruption by compulsory military service: if education interrupted by compulsory military service of at least six months, eligible for one academic year beyond the age limits (extension to twenty-fifth birthday academic year).
  - Revised text: included subsections 3.02.1 for the military service exception.
- GAO No. 21, Rev. 7 (June 12, 2000):
  - Continues to govern age eligibility requirements in the Ding case.
  - Section 4 (Qualification of Children) in full governs eligibility:
    - 4.01: eligibility requires child eligible for child allowances under GAO No. 28; enrolled full-time in a qualified school or educational institution; and five years of age or older, but less than twenty-four years of age, except as provided in subsection 4.02.
    - 4.02.1: Children with birthdays falling within the academic year qualify beginning with the academic year during which the child’s fifth birthday occurs until the end of the academic year during which the child’s twenty-fourth birthday occurs.
    - 4.02.2: Children with birthdays falling outside the academic year qualify beginning with the academic year that follows the child’s fifth birthday until the end of the academic year that precedes the child’s twenty-fourth birthday.
    - 4.02.3: Extension for military service: upon submission of satisfactory evidence of compulsory military service of at least six months, qualification extended by one academic year.
    - 4.03: Full-time attendance requirement.
  - Section 5.03 provides qualifying types of institutions (licensed kindergarten, nursery school or day care center; accredited grammar or primary school; accredited high school or secondary school; accredited college or university or other post-secondary school located outside duty station country; vocational training institutions with conditions).
  - Staff Bulletin No. 00/8 (June 22, 2000) stated the revised GAO “incorporates a number of changes in administrative policy and procedures ... Neither the basic structure of education benefits nor the mechanics of applying for the annual allowances have changed.” It summarized: “Age limits for children. The rules with respect to the ages of children for whom education allowances may be paid, generally from age five through the child’s 24th birthday, are now found in Section 4.”

### Admissibility and ratione temporis considerations
- Article XX, Section 1 of the Tribunal’s Statute bars challenges to administrative acts taken before October 15, 1992: “The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date.”
- Article VI, Section 2 permits challenge to a regulatory decision either within three months of announcement/effective date or at any time as part of a challenge to an admissible individual decision taken pursuant to such regulatory decision; but this is subject to Article XX.
- Fund’s position: the age limit eligibility criterion at issue was introduced in 1979 and has been applied without change since then; thus the challenged regulatory decision predates October 15, 1992.
- Applicant’s position: Revision 7 of GAO No. 21 (2000) “substantively changed” the provision on age eligibility.
- Fund’s counter: Revision 7 “clarified but did not substantively change that provision”; it “simply spelled out the intention and meaning of the existing framework as it had consistently been interpreted and applied, without any change to either the substance or the administration of the rule.”

*International Monetary Fund*

### 39.      In assessing the arguments of the parties, it may be noted at the outset that

### j2009-1 - 39.      In assessing the arguments of the parties, it may be noted at the outset that

### Parties’ positions and scope of the challenge
- Respondent’s pleadings focus principally on Applicant’s contention that he is entitled to education benefits for the current academic year and thus principally engage the element of the challenged “regulatory” decision that governs the starting point for eligibility for Education Allowances.
- Applicant seeks principally to impugn the disadvantage that affects staff members who, by reason of their child’s date of birth in relation to the academic year, are entitled to receive one less year of education benefits:
  - “What I am challenging is the age limits for education allowance set out in Section 4.02 of GAO No. 21, Rev. 7 that provide a child whose birthday falls outside the academic year with one year less of allowance during the entire period when he/she is eligible for the allowance, not simply the regulatory decision that sets the beginning of the eligibility period for education allowance ... or the age cut-off per se ....”

### Legal questions considered by the Tribunal
- The Tribunal framed two dispositive questions concerning the challenged “regulatory” decision embodied in Section 4 of GAO No. 21, Rev. 7:
  - (1) Did the Fund take a “regulatory” decision pre-dating the period of the Tribunal’s competence to limit eligibility for Education Allowances to children who have already reached the fifth birthday before the conclusion of the academic year?
  - (2) Did the Fund take a “regulatory” decision pre-dating the period of the Tribunal’s competence to differentiate between children with birthdays falling within the academic year and those with birthdays falling outside the academic year in allocating the total number of years of eligibility for Education Allowances?

### Precedent on jurisdiction ratione temporis
- The Tribunal reiterated that complaints about rules that came into force before October 15, 1992 do not alone give rise to jurisdiction if they merely challenge the illegality of pre-existing rules or seek exceptions or changes to them.
  - Cited principle: a current complaint about a pre-October 15, 1992 rule is not sufficient to give rise to jurisdiction which otherwise is absent (Ms. “S”, para. 21; Ms. “G”, para. 68).
- Reconsideration, reaffirmation, or refinement by the Fund’s Executive Board of a pre-existing decision within the Tribunal’s jurisdictional period may constitute an “administrative act” and confer jurisdiction (as in Ms. “G”).
  - In Ms. “G”, the Executive Board’s reaffirmation in 1994 and the 2002 amendment were held to represent re-consideration and refinement falling within the Tribunal’s jurisdiction ratione temporis.

### Comparison of the pre-existing rule and the current rule
- Revision 6 (January 28, 1985) of GAO No. 21 provided in pertinent part:
  - “3.02 Age Limits. . . . no education allowance benefits shall be paid before the beginning of the academic year (first day of child’s classes) in which a child reaches his fifth birthday or beyond the completion of the academic year (last day of child’s classes) during which a child reaches his twenty-fourth birthday.”
- Revision 7 (June 12, 2000) of GAO No. 21 provided in pertinent part:
  - “4.02.1 Children With Birthdays Falling Within the Academic Year. A child whose birthday falls within the academic year shall qualify for education allowances beginning with the academic year during which the child’s fifth birthday occurs until the end of the academic year during which the child’s twenty-fourth birthday occurs.
  - 4.02.2 Children With Birthdays Falling Outside the Academic Year. A child whose birthday falls outside the academic year shall qualify for education allowances beginning with the academic year that follows the child’s fifth birthday until the end of the academic year that precedes the child’s twenty-fourth birthday.”

### Tribunal’s findings on substance, effect, and jurisdiction
- The Tribunal found that, in substance and in effect, Section 3.02 of Revision 6 (January 28, 1985) and Section 4.02 of Revision 7 (June 12, 2000) are the same:
  - Both only permit payment of Education Allowance benefits to a child who reaches his or her 5th birthday during the academic year.
  - Both cut off payment of the Education Allowance at the end of the academic year in which the 24th birthday is reached.
- Conclusion on jurisdiction:
  - Since, in substance, the provisions are the same, Mr. Ding’s Application is tantamount to a challenge to a rule of the Fund that pre-dates the entry into force of the Tribunal’s Statute.
  - Hence, by reason of the terms of Article XX, paragraph 1, of the Tribunal’s Statute, the Tribunal is without jurisdiction to pass upon the merits of the Application.

### Observations on clarity and unequal effects
- The Tribunal observed that the wording of the provisions is not clear on their face regarding the number of years of Education Allowance entitlement:
  - The provisions do not expressly state that children born outside the academic year will be entitled to 19 years of the Education Allowance while those born within will be entitled to 20.
  - Staff must calculate and draw the resulting conclusion themselves.
- The Fund’s pleadings confirm that the provisions result, or can result, in a child of a long-serving staff member receiving either 19 or 20 years of Education Allowance benefits depending on whether the child is born during or outside of the academic year.
- The Tribunal noted that the resultant inequality—whether intended or not—invites the reconsideration of the Fund.

### Decision
- The Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Application of Mr. Ding is denied.

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_Source: https://www.imf.org/-/media/files/imfat/j2009-1.pdf_