Ambrose and Secretary of Department of Social Services (Social services second review)

[2022] AATA 645

Ambrose and Secretary of Department of Social Services (Social services second review) [2022] AATA 645 (4 April 2022)

Division:                GENERAL DIVISION

File Number(s):     2021/9718

Re:BRENDAN AMBROSE

APPLICANT

AndSECRETARY OF DEPARTMENT OF SOCIAL SERVICES

RESPONDENT

DECISION

Tribunal:Senior Member Damien O’Donovan

Date:4 April 2022

Place:Canberra

The Tribunal dismisses the application under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

…………………[sgd]……………………………

Senior Member Damien O’Donovan

Catchwords

PRACTICE AND PROCEDURE – dismissal of application as frivolous – review sought in circumstances where the applicant could derive no practical benefit from a successful review –- application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 29, 42B(1)(a)
Social Security (Administration) Act 1999 s126

REASONS FOR DECISION

Senior Member Damien O’Donovan

4 April 2022

INTRODUCTION

1. The applicant has applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for what is known as Tier 2 review of a decision made by a member of the Tribunal’s Social Services & Child Support Division (the Tier 1 Decision). The Tribunal’s Tier 1 Decision involved review of a decision made by an authorised review officer (ARO) who had reviewed decisions made by an Employment Services Provider – Matchworks. Employees of Matchworks held delegated authority to take steps to suspend the applicant’s Newstart Allowance (NSA). The applicant’s NSA was suspended on a number of occasions when the applicant failed to comply with mutual obligation requirements imposed under the Social Security Act 1991 (SS Act). Only a small subset of the suspension decisions became the subject of review. The decisions which were the subject of review did not result in any loss of NSA for the applicant due to other decisions which were made. Despite this being the case the applicant has pursued review of some of the suspension decisions. After the applicant applied for review in the Tribunal’s General Division, the respondent applied to have the matter dismissed as frivolous on the basis that the applicant could not achieve a materially better outcome in relation to the payment of NSA even if he is successful. The respondent’s application has been successful. My reasons for decision are set out below.

   BACKGROUND

2. The applicant applied for Tier 2 review on 14 December 2021. The grounds set out in the application are unorthodox. Indeed, it is not clear that the applicant is seeking review of any decision which the Tribunal has jurisdiction to consider. The applicant states (speaking of himself in the third person):

   …Mr Ambrose did not seek a merit review of the original decision from the Tribunal…Mr Ambrose is seeking to have the Conduct of Centrelink reviewed for refusing to accept a request for review of a decision of an employment service provider.

3. This suggests that the remedy that the applicant is seeking is something akin to a writ of mandamus directed towards Centrelink. That is not a remedy the Tribunal can provide.

4. However, there is a decision of an ARO reviewing three decisions of an employment service provider in the T-Documents.

5. There is also a Tier 1 decision, which was communicated to the applicant on 17 November 2021 in which the Tribunal reviewed one of the decisions of the ARO. The applicant has validly sought review of that decision.[1] There is therefore a valid application before me which needs to be dealt with.

   [1] See T1 p3

6. The respondent has applied to have the application dismissed pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the ground that it is frivolous. The respondent contends that the application is frivolous because the Tribunal is unable to make any decision on review that would be of any practical benefit to the applicant. I accept that submission for the reasons which follow.

   Facts

7. The applicant was for a number of years a recipient of NSA.

8. Decisions were made to suspend his NSA on 2 May 2019, 24 May 2019 and 8 August 2019. Those decisions were made as a result of his employment services provider, Matchworks, pursuant to a delegation[2], determining that the applicant had committed a mutual obligation failure and that his participation payment was not payable for a period.

   [2] See T-Documents at T2 pages 24-28

9. The applicant requested an ARO review of the decision to suspend his Newstart payment on 9 August 2019. It appears that the applicant was told that his request was not accepted, but in any event, an Authorised Review Officer (ARO) reviewed the three decisions identified above on 26 November 2019.[3] Matchworks’ conduct in relation to the decisions of 24 May 2019 and 8 August 2019 in reporting the applicant’s failures was found by the ARO to be correct.

   [3] T2

10. The decision of the ARO was, it seems, irritating to the applicant because it expressed views on a range of matters which were not strictly speaking relevant to the review of the decisions to suspend the applicant’s NSA. The ARO’s decision did however make clear findings that Matchworks’ decisions of 24 May 2019 and 8 August 2019 were correct.

11. The applicant then sought review of the ARO’s decision concerning Matchworks decision of 8 August 2019 in the Tribunal. Member Schuster undertook a review of that decision and affirmed the decision.

12. This led to the current application before the Tribunal.

13. For the purposes of this application to dismiss the proceedings, the critical facts are outlined in the decision of Member Schuster published on 4 November 2021. No issue was ever taken with these facts by the applicant even though they were specifically relied upon by the respondent in its submissions filed in support of this application.

    26. The evidence provided by Centrelink establishes that a decision was made on 8 August 2019 by Matchworks[4] that Mr Ambrose had committed a mutual obligation failure. The power for it to do so was provided by subsection 42AF(1) of the Administration Act. Suspension of the payment then took automatic effect under subsection 42AL(1) of the Administration Act.

    27. Mr Ambrose’s payments were restored without interruption on 21 August 2019 based on a determination by the employment service provider, apparently made on 13 August 2019 under paragraph 42AL(3)(b) of the Administration Act, to end the suspension and not to apply a reconnection requirement under section 42AM of the Administration Act. While this may not be the same as setting aside the initial suspension decision, it has the same effect. That is, in terms of entitlement to Newstart allowance under the Act, even if the Tribunal were to set aside the decision of 8 August 2019 Mr Ambrose would not be in a better financial position. Mr Ambrose told the Tribunal he understood this.

    [4] An employment services provider whose employees held delegations to make relevant decisions under the Social Security (Administration) Act and the Social Security Act.

14. The respondent filed submissions on 15 March 2022 seeking dismissal of the application. Those submissions raised squarely the proposition that the NSA payments withheld from the applicant as a result of the suspension decisions were repaid to him in full, such that the practical effect of the suspension decisions were fully reversed. I am satisfied that the applicant cannot be placed by this review in any better financial position than he is currently in. 

15. The applicant filed submissions on 21 March 2022 and 30 March 2022. He did not address this proposition and did not contest the factual proposition that the suspension decisions made by Matchworks made no practical difference to the NSA amounts he was paid.

16. The Tribunal held a hearing by telephone in relation to the application on 29 March 2022. The hearing lasted less than 20 minutes. During the preliminary stages of the hearing the applicant became angry and focussed his attention on which Secretary of which Department was the proper respondent. During the discussion of that issue the applicant announced that he was at work and so had to go. He then hung up. Nothing was said to suggest that the applicant disagreed with the proposition that regardless of the review’s outcome it would make no difference to the applicant’s financial circumstances.

17. The applicant filed a further submission the day after the hearing.

    Consideration

18. The basis on which this application is pressed by the respondent is that regardless of the merits of the various decisions made by Matchworks, the ARO or the Tribunal at Tier 1, because the applicant’s NSA was paid in relation to the periods in which it was nominally suspended, no better practical outcome can be achieved by him pursuing these proceedings. The respondent contends that in those circumstances the application is frivolous.

19. The Secretary relies in particular on the findings of Deputy President Blow in Re Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [33] where he concluded:

    An application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant.

20. I agree that an application of that can yield no practical benefit does fall within the term frivolous.

21. I am satisfied that regardless of the outcome of the application, it cannot yield a decision which would make any practical difference to the payments which the applicant has received. I am satisfied that the application is frivolous and should be dismissed on that basis.

    Other issues

22. Two other issues arose during the exchanges of submissions which I should briefly address. The first is who is the proper respondent.

23. The application for AAT Tier 1 review was made in relation to the decision of an ARO made on 26 November 2019. Given the broad scope of the decision made by the ARO I am satisfied that the ARO’s decision was made pursuant to section 126 of the Social Security (Administration) Act 1999 (Administration Act). It would appear from the applicant’s application for Tier 1 review that he accepts this as a factual proposition.[5] He is however upset that his more narrow request for review was not dealt with under section 129. There is nothing I can do about that at this point in time.

    [5] T2 p 10

24. When a decision is made by an ARO under section 126, section 142 of the Administration Act authorises appeals to the Tribunal.

25. The AAT Act by s30(1)(b) makes ‘the person who made the decision’ a party to the proceedings. Section 142A of the Administration Act relevantly provides that a reference in the AAT Act to the person who made the decision is taken to be a reference to the Secretary (which is a reference to the Secretary of the Department of Social Services). The only exception to this is if the decision is made by the Chief Executive of Centrelink, a Departmental employee as a delegate of the Secretary of DSS or ‘the Employment Secretary’. As the decision was made by an ARO in their own right, the exceptions do not apply and the Secretary of the Department of Social Services is the appropriate respondent.

26. Section 180 of the Administration Act provides at Item 2 that the proper party in AAT Tier 2 review is the respondent to the AAT Tier 1 review. Accordingly, the applicant did properly identify the relevant parties and no change to the naming of the respondent is required.

27. Although the respondent sought the change, nothing turns on this because the respondent’s representative appearing before me had instructions to act for both the Secretary of the Department of Social Services and the Secretary, Department of Education, Skills and Employment.

28. The applicant raised a second issue after the hearing had concluded, in submissions filed on 30 March 2022. The issue was raised in the following terms:

    The first AAT review was required to review the ARO decision and it failed to do this, instead reviewing the ESP [employment service providers] decision.

29. This criticism is misconceived. In merits review, each layer of review stands in the shoes of the decision maker below. The ARO had authority to review the various statutory decisions of Matchworks. As it happens, only the Matchworks decision of 8 August 2019 was the focus of attention in the Tier 1 review. That decision was originally made by Matchworks, but found to be correct by the ARO. In re-examining the correctness of the decision, Member Schuster was reviewing the ARO’s decision.

    DECISION

30. As these proceedings cannot produce any practical benefit to the applicant I am satisfied that the proceedings are frivolous. The application should be dismissed.

31. The Tribunal dismisses the application under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

32.     I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

...........................[sgd].............................................

Associate

Dated: 4 April 2022

33.     Date(s) of hearing:	34.     29 March 2022
35.     Date final submissions received:	36.     30 March 2022
37.     Applicant’s representative:	38.     Self-Represented
39.     Solicitor for the Respondent:	40.     Katherine Evans