Ashard and Secretary, Department of Social Services (Social services second review)
[2016] AATA 193
•31 March 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2015/6011 and 6012
General Division )
Re: Wanda Ashard
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Deputy President Dr C Kendall
DATE: 8 June 2016
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by replacing the words “s 42(2) of the Administrative Appeals Tribunal Act 1975 (Cth)” where they appear with the words “s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth)”.
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Deputy President
Ashard and Secretary, Department of Social Services (Social services second review) [2016] AATA 193 (31 March 2016)
Division
GENERAL DIVISION
File Numbers
2015/6011 and 2015/6012
Re
Wanda Ashard
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Deputy President Dr Christopher Kendall
Date 31 March 2016 Place Perth The applicant’s request for an order under s 42(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
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Deputy President Dr Christopher Kendall
CATCHWORDS
PRACTICE AND PROCEDURE – request for order staying substantive applications in relation to extended portability period and eligibility for disability support pension – relevant factors – applicant has arguable case – evidence of financial hardship not sufficient to weigh in favour of granting a stay – respondent unlikely to recover monies paid to applicant if stay order granted and substantive applications ultimately fail – stay order not appropriate for purpose of securing effectiveness of hearing and determination of substantive applications – Tribunal not of the opinion that desirable to make stay order – applicant’s request for stay order refused
LEGISLATION
Administrative Appeals Act 1975 – section 41(2)
CASES
Re Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065
Said and Secretary, Department of Social Services [2014] AATA 439
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
31 March 2016
introduction
On 18 November 2015, Mrs Wanda Ashard lodged applications (the “Substantive Applications”) for review of two decisions of the Administrative Appeals Tribunal (Social Services and Child Support Division) (the “SSCSD”) dated 13 October 2015.
The Substantive Applications seek review of two related decisions by the SSCSD affirming decisions by the Department of Social Services (the “Department”) that:
a)Mrs Ashard’s portability period for her Disability Support Pension (“DSP”) could not be extended because she did not meet the criteria for either extended portability or unlimited portability; and
b)Mrs Ashard no longer qualified for DSP.
Mrs Ashard’s portability period ended 13 April 2015.
Mrs Ashard’s DSP was cancelled as of 25 June 2015.
On 18 November 2015, Mrs Ashard made a request to this Tribunal for an order under section 41(2) of the Administrative Appeals Act 1975 (Cth) (the “AAT Act”) that the SSCSD decisions be stayed.
Mrs Ashard’s grounds for requesting a stay were:
… it is my contention that the cancellation of my DSP on 13th April 2015 ... thereafter was directly caused by a human error at Mandurah Centrelink office on 10th March 2015 by not telling me that the portability rules had changed. After all, I visited on that day to specifically tell them of my overseas trip in accordance with the rules. I further contend that had I been informed at that time of the change which reduced the maximum absence to 28 days, I would have returned to Australia within that time period. The singular reason for this statement is that I could not afford, physically, mentally or financially, to be without my DSP...thus the cancellation of my DSP was INVALID as the Secretary (the Department) had failed in its duty of care and responsibility to inform me, a Customer, of the reduced portability period when it had the perfect opportunity to do so on 10th March 2015...
The outcome I seek from a second hearing is this: (1) the invalid cancellation of my DSP with effect from 13 April should be “stayed”...and the consequent unfair decision taken on 25th June 2015 that I was “no longer qualified for DSP” be also “stayed”...a new Medical Review handled by appropriately qualified medical experts (on both sides) who will have examined me specifically for this review, will, I am sure, recommend a DSP at 20 points. This reflects the original decision and my overall condition now is at best the same but, I fear, has worsened due to the additional stress the Secretary’s actions and decisions have caused me. (emphasis as appears in original application).
This Tribunal is asked to determine whether Mrs Ashard should be granted a stay order in relation to the two SSCSD decisions under review.
relevant legislation and principles
The Tribunal can stay decisions of the SSCSD as a result of the powers vested in it by section 41 of the AAT Act, which provides as follows:
41 Operation and implementation of a decision that is subject to review
(1)Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2)The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
As outlined by Deputy President Hotop in Said and Secretary, Department of Social Services [2014] AATA 439 (“Said”), section 41(1) of the AAT Act provides that the making of an application to the Tribunal for review of a decision does not affect the operation or implementation of that decision. Subsection 41(2), however, confers on the Tribunal a broad discretionary power to make an order staying the operation or implementation of the decision under review “as the Tribunal consider appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”, if the Tribunal “is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review”.
In Said, Deputy President Hotop explained the Tribunal’s approach to stay orders in matters akin to this one as follows:
In considering whether to make an under s 41(2) of the AAT Act in cases like the present, where the decision under review involves the cessation of payments of money to the person who has applied to the Tribunal for review of that decision and who has requested the Tribunal to make an order staying that decision, the Tribunal has customarily had particular regard to three main factors, namely:
the degree of hardship (if any) which may be suffered by that person as a result of the refusal to make a stay order;
in the event that the person’s application for review is unsuccessful, the likelihood of recovery (by the payer) of moneys paid to that person as a result of the making of a stay order; and
the prospects of success of the person’s application for review.
See, for example, Re Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 132 ALD 584; Re Cremona and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 349.
In addition to Deputy President Hotop’s summary in Said, which he based on the relevant jurisprudence and which this Tribunal accepts, the Tribunal also notes the Tribunal’s findings in Re Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065, wherein the Tribunal noted that in any stay application, the Tribunal should also determine whether:
·it is in the public interest to grant a Stay.
·the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.
the Sscsd dECISIONS
2015/PO84760 – Portability
This review related to whether Mrs Ashard’s maximum portability period for disability support should be unlimited or extended.
In relation to this issue, the SSCSD outlined the following facts before it:
2.Mrs Ashard left Australia and arrived in New Zealand on 16 March 2015. On 13 April 2015 Mrs Ashard’s disability support pension was suspended, as she had been absent from Australia for 28 days.
3.Mrs Ashard contacted the Department of Human Services – Centrelink (the Department) on 20 April 2015 and requested that the portability be extended.
4.On 24 June 2015 an officer of the Department decided that Mrs Ashard’s portability period could not be extended (the original decision). The basis of the decision was that Mrs Ashard did not meet the criteria for either extended portability or unlimited portability.
5.Mrs Ashard asked the Department to review the decision. An authorised review officer affirmed the decision on 16 July 2015.
6.Mrs Ashard lodged an application for review of the affirmed decision with this tribunal on 30 July 2015.
The SSCSD then proceeded to find as follows:
CONSIDERATION
Issue 1 – can Mrs Ashard’s portability period be an unlimited period?
11.Section 1217 of the Act provides that the maximum portability period for disability support pension is 28 days in a 12 month period, or 4 weeks if the person is absent to either to seek eligible medical treatment; or to attend to an acute family crisis; or for a humanitarian purpose. “Acute family crisis” is defined in section 1212A of the Act as follows:
For the purposes of this Part, a person's absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a)for the purpose of visiting a family member who is critically ill; or
(b)for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c)for a purpose relating to the death of a family member; or
(d)for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.
12.It is common ground that Mrs Ashard went to New Zealand to visit her mother, who was recovering from a stroke. However, the tribunal is satisfied that at the time Mrs Ashard’s mother was neither critically ill nor hospitalised with a serious illness. The tribunal therefore finds Mrs Ashard’s portability period for disability support pension is 28 days within a 12-month period under section 1217 of the Act. As she was absent from Australia from 16 March 2015 her portability period ended on 12 April 2015.
13.However, section 1218AAA of the Act provides that the Secretary (the Department) may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following qualifying circumstances exist:
·the person is receiving disability support pension;
·the person's impairment is a severe impairment (within the meaning of subsection 94(3B) of the Act);
·the person will have that severe impairment for at least the next 5 years;
·if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
14.A determination that a person has unlimited portability cannot be made whilst the person is outside Australia unless the person is unable to return to Australia because of either of the following events:
·a serious accident involving the person;
·the hospitalisation of the person; and
·the person’s portability period for the disability support pension had not ended at the time the event occurred (subsection 1218AAA(2)).
15.Mrs Ashard told the tribunal that she attended the Mandurah Centrelink office on 10 March 2015 and advised that she intended to go overseas for three months to visit her seriously ill mother. She also asked for access to MyGov whilst she was overseas. None of the staff to whom she spoke that day advised her that the portability period had been reduced to 28 days and that she would need to apply for extended portability.
16.It is not in contention, and the tribunal finds, that no determination had been made to grant unlimited portability in respect of Mrs Ashard’s disability support pension before she left Australia.
17.The tribunal must therefore establish whether during the 28-day portability period commencing from when Mrs Ashard left Australia, she was unable to return to Australia because of either a serious accident or hospitalisation.
18.Mrs Ashard told the tribunal that the purpose of her visit to New Zealand was to see her mother, who had recently had a stroke. Her mother was released from hospital prior to her arriving in New Zealand but was and is still unwell. Mrs Ashard said she had not seen her mother for about six years and it is unlikely that she will see her again.
19.The tribunal finds that Mrs Ashard was not prevented from returning to Australia during the portability period because of either a serious accident or hospitalisation involving herself. This means that a determination cannot be made under section 1218AAA that Mrs Ashard’s maximum portability period for disability support pension is an unlimited period.
Issue 2 – Can Mrs Ashard's portability period be extended?
20.A person’s portability period can be extended if the person is unable to return to Australia because of any of the following events:
(a)a serious accident involving the person or a family member of the person;
(b)a serious illness of the person or a family member of the person;
(c)the hospitalisation of the person or a family member of the person;
(d)the death of a family member of the person;
(e)the person's involvement in custody proceedings in the country in which the person is located;
(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)a natural disaster in the country in which the person is located;
(i)political or social unrest in the country in which the person is located;
(j)industrial action in the country in which the person is located;
(k)a war in the country in which the person is located.
However, portability cannot be extended unless the event occurred or began during the period of absence (section 1218C of the Act).
21.The tribunal finds that none of the above factors are applicable in this case. Whilst Mrs Ashard’s mother was ill, her illness occurred before Mrs Ashard left for New Zealand (and was the reason Mrs Ashard went to New Zealand).
22.The tribunal therefore determines that Mrs Ashard’s maximum portability period for disability support pension cannot be extended in accordance with section 1218C of the Act.
23.Mrs Ashard said that she believes that her disability support pension should have remained payable to her whilst she was in New Zealand due to the International Agreement between Australia and New Zealand. However the tribunal finds that Mrs Ashard’s disability support pension is not paid by virtue of the agreement with New Zealand under the Social Security (International Agreements) Act 1999 and the relevant portability provisions are therefore those contained in the Act.
2015/PO84756 – Eligibility for DSP
This review related to whether Mrs Ashard qualified for DSP. In relation to this issue, the SSCSD outlined the following facts:
1.This review considered whether Mrs Wanda Ashard met the requirements for payment of disability support pension (DSP).
2.On 8 January 2004 Mrs Ashard was granted DSP by the Department for Human Services (Centrelink).
3.On 25 June 2015, following medical review, a Centrelink officer found Mrs Ashard was no longer qualified for DSP (the original decision).
4.Mrs Ashard requested Centrelink review the decision.
5.On 15 July 2015 an authorised review officer affirmed the original decision.
6.On 30 July 2015 Mrs Ashard requested a review of the decision by the Administrative Appeals Tribunal (AAT).
After reviewing the relevant provisions of the Social Security Act 1991 in relation to eligibility for DSP and the medical evidence before it, the SSCSD found as follows:
Medical conditions present on the date of cancellation of DSP
32The tribunal found there was verifying medical evidence Mrs Ashard suffered from a chronic regional pain syndrome that affected her left upper limb on the date of cancellation of DSP. This evidence was contained in the MR by Dr Nuttall dated 11 May 2015 and letter from orthopaedic surgeon Dr Hales dated 8 October 2015.
33The tribunal found there was no mental health condition present on the date of cancellation of DSP. Although clinical psychologist Georgina Timms stated Mrs Ashard might have had PTSD since November 2011, Mrs Ashard stated in her evidence at the hearing that she had not required treatment or counselling for many years, and only became overwhelmed with symptoms after DSP was cancelled. This advice was consistent with the evidence in the HPAU report dated 29 May 2015. The HPAU assessor stated treating general practitioner Dr Nuttall advised Mrs Ashard did not have a separate psychiatric condition that required treatment at that time.
34The tribunal further noted that even if it were to find that the symptoms of a mental health condition were present on the date of cancellation of DSP, there was no evidence such a condition was “fully diagnosed” on that date. The tribunal found Mrs Ashard was not “fully diagnosed” until 13 August 2015, when she completed rating scales under the supervision of the clinical psychologist. This was after the date of cancellation of DSP.
35Finally, the tribunal noted there was also no evidence such a condition was “fully treated and stabilised” on the date of cancellation of DSP. Counselling commenced after the date of cancellation. Further, even on the hearing date, only six counselling sessions had been undertaken, and no other therapeutic modalities such as medication or specialist review had been trialled.
36For these reasons, the tribunal did not consider the mental health condition further.
Chronic regional pain syndrome
37The tribunal noted a letter from Chronic Pain Fellow Dr Kwok dated 24 January 2013, an imaging report of the left wrist dated 6 November 2014 and a MR by Dr Nuttall dated 11 May 2015 confirmed the diagnosis of CRPS affecting the left arm.
38The tribunal accepted this consistent evidence and found the condition of CRPS impacting upon the left upper arm was “fully diagnosed” on the date of cancellation of DSP.
39The tribunal noted the operation record dated 15 December 2011, letter from Chronic Pain Fellow Dr Kwok dated 24 January 2013, MR by Dr Nuttall dated 11 May 2015 and verbal evidence from Mrs Ashard at the hearing reported treatment with specialist pain clinic review, medication, injections of lignocaine and steroids and prolonged hand therapy.
40The tribunal accepted this consistent evidence and found the condition of CRPS impacting upon the left upper arm was “fully treated and stabilised” on the date of cancellation of DSP.
41As a result of these findings, the functional impairment attributable to the condition could be rated under the Impairment Tables.
Functional impairment
42The tribunal noted the MR by Dr Nuttall dated 11 May 2015 stated there was a functional impact on the ability to manipulate objects, pick up a 1 or 2 litre object, handle small objects or do up buttons, reach out to pick up objects, use a computer keyboard, or unscrew the lid off a jar. Mrs Ashard confirmed this advice in her evidence at the hearing.
43Dr Nuttall also specifically stated Mrs Ashard could use a pen, did not have an amputation or loss of coordination involving both upper limbs. She did not require prosthesis. There was no difficulty handling or moving most objects and Mrs Ashard was able to turn the pages of a book without difficulty. She had capacity in the hands and arms. This advice was also confirmed by Mrs Ashard at the hearing.
44The tribunal accepted the consistent evidence and found there was an impact on the ability to manipulate objects, pick up a 1 or 2 litre object, handle small objects or do up buttons, reach out to pick up objects, use a computer keyboard, or unscrew the lid off a jar.
45In applying Table 2 this generated 10 points for moderate impairment.
46Table 2 stated:
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
47The tribunal also noted Dr Nuttall had stated in the MR dated 11 May 2015 that pain and medication also impacted upon thought processes. In her evidence at the hearing, Mrs Ashard agreed with this statement.
48However, the tribunal noted that in her evidence, Mrs Ashard had stated she was able to plan and think ahead in order to manage daily activities. By example, she could plan ahead and put items into a single bag that she could pull with her good hand if she travelled. She could plan so she did not need to swap hands. She was able to travel by herself and had independently flown to New Zealand. She was able to visit the elderly and volunteered to read to them.
49On balance the tribunal accepted the evidence from the treating doctor and Mrs Ashard and found Mrs Ashard was able to manage most day to day activities from a cognitive viewpoint. She had been able to travel overseas and provide care to her mother and read to other elderly people she knew. Whilst medication side effects and pain impacted upon some thought processes, the impact was mild.
50In applying Table 7 this generated five points.
51Table 7 stated:
There is a mild functional impact resulting from a neurological or cognitive condition.
(1)The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a)memory;
Example:The person occasionally forgets to complete a regular task or sometimes misplaces important items.
(b)attention and concentration;
Example 1:The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2:The person has some difficulty focusing on a task if there are other activities occurring nearby.
(c)problem solving;
Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2:The person shows a lack of awareness of problems in some situations.
(d)planning;
Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).
(e) decision making;
Example:The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
(f) comprehension.
Example: The person has some difficulty in understanding complex instructions involving multiple steps.
Summary
52The tribunal has found that Mrs Ashard has 15 impairment points. Therefore she does not satisfy paragraph 94(1)(b) of the Act.
Issue 3 – Does Mrs Ashard have a continuing inability to work?
53As the tribunal has found that Mrs Ashard does not satisfy paragraph 94(1)(b) of the Act, it was not required to consider her continuing inability to work.
DECISION
The decision under review is affirmed.
Evidence BEFore THIS TRIBUNAL
A hearing in relation to this matter was conducted on 24 February 2016. Mrs Ashard appeared in person and was very ably represented by Mr Marchant. Mr Marchant is not a lawyer but greatly assisted Mrs Ashard and the Tribunal in relation to this matter. The Secretary was represented by Ms Das, who appeared via telephone.
In addition to the materials that were before the SSCSD and the further evidence summarised below, the Tribunal had before it the following materials:
·Submissions from the Secretary dated 11 December 2015.
·A Written Statement from Mrs Ashard dated 5 January 2016, attaching a Statutory Declaration and a copy of documents entitled “Centrelink Service Documents”.
·A Further Written Statement from Mrs Ashard dated 3 February 2016 with a detailed chronology of “key dates and events”.
·A copy of a Centrelink data base screen entitled “Customer Record Access Monitor Report”, dated 15 January 2016.
·Correspondence dated 10 March 2015 from Centrelink to Mrs Ashard with the heading “Information about your registration”.
·At the hearing, the Tribunal, not being entirely satisfied with the oral and written submissions made on behalf of the Secretary and, more importantly, not being satisfied that Mrs Ashard had an opportunity to outline her current financial situation, directed that:
(a)the Secretary provide further written submissions in relation to issues raised at the hearing and
(b)Mrs Ashard provide any evidence in relation to her current financial situation.
In relation to paragraph 18(a) above, the Secretary provided further written submissions dated 9 March 2016. Mrs Ashard responded in writing on 16 March 2016.
In relation to paragraph 18(b) above, Mrs Ashard provided financial information to the Tribunal, as follows:
· A letter from Mandurah Estate Agency dated 29 February 2016 advising that Mrs Ashard was at that date currently $800.00 in arrears for rent on her rental property;
· A tax invoice dated 14 January 2016 from NL Pintabona Auto Repair showing that Mrs Ashard owes $584.00 for car repairs;
· An electricity account tax invoice showing that Mrs Ashard owes $211.40 as of 17 Match 2016;
· A notice of Termination from Mandurah Estate Agency advising that Mrs Ashard’s lease will be terminated from 14 October 2016 because her rent has not been paid; and
· A Westpac bank account summary that appears to show that Mrs Ashard currently had negative $44.66 in her bank account on 1 March 2016.
Mrs Ashard’s written statement dated 5 January 2016 (A1)
The Tribunal received the following written statement from Mrs Ashard on 5 January 2016:
The following is my response to the direction stated in point 2 of your letter dated 2nd. December 2015.
A copy has also been forwarded to the Respondent, Mills Oakley via email to … and to Alison Pidgeon, the Lawyer assigned to this case by the Legal Aid Service, via email to …
It is still my contention that the cancellation of my DSP on 13th. April 2015 and the instigation of a Medical Review (in my absence) thereafter was directly caused by human error at Mandurah Centrelink office on 10th, March 2015 by not telling me that the portability rules had changed. After all, I visited on that day to specifically tell them of my overseas trip in accordance with the rules. I further contend that had I been informed at that time of the change which reduced the maximum absence to 28 days, it would have returned to Australia within that time period.
To be specific, although it appears that the Secretary (the Department of Human Services) is not legally obligated to inform customers of changes to law and rules, J contend that what seemingly occurred at Mandurah Centrelink on 10th. March 2015 constitutes a flagrant breach of its Service Commitments (see copy of document attached) at least with respect to the following points
Under "Respect", listen to you
Under "Quality Information", provide accurate payments and services
Under "Honesty and Integrity”, make information available that is simple and easy to understand so you can make informed decisions
Under "Efficiency'", allow you to manage your own business
Under "Help Us", you can help us if you »* provide complete, accurate and timely information about yourself and your individual circumstances (which I did, on 10th. March 2015)
A Commonwealth Statutory Declaration is attached containing my version, sworn under affirmation, of conversations with Mandurah Centrelink Customer Service Officers on 10th. March 2015 when I visited them to specifically inform them of my impending departure from Australia to visit my stroke-affected mother in New Zealand. I left that visit still under the clear impression that I could be absent from Australia for up to 3 months which was the extant condition for Portability when I last visited my mother in 2009.
Accordingly. I hereby make request for a copy of the Centrelink system "Event Report” which should have been recorded on that same day.
This, I contend, is the nub of the entire matter. Other matters contained in the
from Mills Oakley lawyers (MO) dated 14th. December 2015 are superfluous (particularly those about Portability). I also hereby state that the comment on page 150 under the heading “Background”, viz “Cus left Australia without advising the Department", is UNTRUE. Furthermore, Mandurah Centrelink on 10th. March 2015, I had not booked a return flight date because I did not know the exact physical condition of my mother nor what care and support she would need, nor for how long.
I hereby declare that I will defend my stated position at the hearing scheduled 1 2016.
Mrs Ashard’s Statutory Declaration dated 5 January 2016 (A1)
The above written statement was accompanied by a Statutory Declaration dated 5 January 2016 that reads as follows:
I attended Mandurah Centrelink office, in Tuckey Street, on 10 March, 2015, to inform them of my intended travel to New Zealand to visit my very ill mother.
I explained to the first person I spoke with of my reason for being there. She directed me to another lady, to whom I also told of my intention to travel to NZ. This person asked me, while looking down at her keyboard and typing, how long I was going to be away. I said "well, I only have three months, don’t I, so I will be back within that time." there was not much response before I was asked how I could be helped. I said I needed help to make sure I would have access to mygov account while I was in New Zealand.
I was then directed to another lady who helped me at the computer. There were a lot of problems accessing my account. Another lady came to help me as the previous person was going off on her break.
When this person came back from her break, the two ladies were speaking with each other. One of them had misplaced her wallet and was worried it had been stolen.
I explained to each of the ladies that helped me, my reason for needing to go to NZ and that I would be back within three months. Not one of the people I spoke with pulled me up when I spoke of being away for up to three months, "as that's all I’m allowed, isn’t it," I said.
Letter from Mrs Ashard to the Tribunal dated 3 February 2016 (A2)
This letter to the Tribunal reads as follows:
I am at my wits end due to trying to deal with my current financial predicament and being told by Centrelink that they "can do nothing about my DSP; try the AAT because only they can over-rule us". Then I am told by the AAT that they "can do nothing about Centrelink because they have no power to over-rule their decisions". Why is it so difficult to get a straight answer to my queries? I am a 62 year old widow struggling with serious disabilities (including cancer), possibly about to lose my rented home (and my sanity!) for non-payment of rent and being given the "runaround" by Government organisations that should be trying to help me! Furthermore, because my pension card has been cancelled, I am unable to afford to pay the standard rate for my essential medication, including a new prescription for antibiotics.
Yesterday, I spent virtually the entire afternoon at Mandurah Centrelink, initially to try and talk to a Social Worker about my plight (which turned out to be a fruitless exercise) and then to talk to a Centrelink officer about an income support benefit whilst I await the outcome of forthcoming hearings. 1 finally spoke to the Centrelink Manager who "offered further assistance if 1 needed if". He looked at my file while I was there but would not look into anything else unless I went in again.
I would really appreciate your comments on the attached document prepared by my good friend and supporter, Tony Marchant. It clearly shows that my DSP has been cancelled three times commencing on 13th. April 2Q15 (whilst I was absent in NZ) and reinstated twice. To me, it presents an illogical sequence of events, one surely not supported by either the Social Security Act 1951 nor the AAT Act. I have been told by two separate legal identities that there is a current Government drive to reduce the number of Centrelink customers receiving DSP". Have I been caught up in this initiative by inadvertently "overstaying" the 28 day (new but not communicated to me) Portability Period which invoked a Medical Review and a Job Capability Assessment, both conducted in my absence? At this juncture, it seems ominously likely!
Time line provided by the Applicant (undated) (A2)
The Tribunal also received a timeline from Mrs Ashard which provided as follows:
STAY REQUESTS 2015/6011 & 6012
1.10th. March 2015 - WKA visited Mandurah Centrelink with the singular purpose of informing them of her impending visit to NZ to care for her mother who had just suffered a fourth stroke (see Stat Dec dated 5th. January 2016).
2.13th. April 2015 - Centrelink suspended her DSP because she had "overstayed" the 28 day portability period. On the above visit, she was NOT told of the reduction in portability to 28 days. Her previous visit to NZ was in 2009 when the portability period was 3 months. Consequently, she underwent the 2015 visit on the assumption that nothing had changed (see Stat Dec dated 5th. January 2016).
3.7th. June 2015 - her DSP was automatically reinstated on her arrival back in Australia (Perth).
4.25th. June 2015 - her DSP was cancelled following a Medical Review initiated in her absence in NZ, triggered by point 2 above (see points 12 and 13 below).
5.9th. July 2015 - sometime after point 4 above her DSP was reinstated. On the key date, her Rent Assistance was cancelled due to her not having completed a form confirming she was still paying rent. She duly complied; see point 6 below.
6.16th. July 2015 - her Rent Assistance was reinstated and she was still receiving DSP.
7.17th. July 2015 - her DSP was cancelled again!
8.3rd. August 2015 - she was informed that her DSP would be started again from 6th. August 2015.
9.20th. November 2015 - she was informed that her DSP was cancelled again from 17th. November 2015.
10.27th November 2015 - she was informed that her DSP would start again on 20th. November 2015.
11.15th January 2016 - she was informed that her DSP was cancelled AGAIN from 12th. January 2016.
12.29th May 2015 - in her absence in NZ, Centrelink initiated an HPAU opinion part of which is documented at point 29 of the Social Services & Child Support Division's report of Review 2015/P084756.
13.17th June 2015 - In her absence in NZ, Centrelink initiated a Job Capability Assessment (JCA) part of which is documented at point 30 of Review 2015/P084756.
Consideration
The prospects of success of Mrs Ashard’s Application for Review
In relation to this issue, the Secretary contended before this Tribunal (at paragraph 23 of its Submissions) as follows:
The Secretary submits that, prima facie, the Applicant’s substantive applications lack merit and this would tend against the grant of a stay. The Secretary submits that the grant of a stay will prejudice the Secretary as the AAT decisions assessed the material facts against the relevant statutory provisions in a balanced manner, and made findings of fact that were reasonably open to the AAT to make.
The Tribunal does not agree with this assessment. It is clear from the material before it that the ultimate determination of Mrs Ashard’s Substantive Applications will depend to a considerable degree on her verbal evidence to the Tribunal and an analysis of the medical evidence before the Tribunal. Having listened to what Mrs Ashard has had to say about what happened and the medical evidence relevant to her application, the Tribunal accepts that she has an arguable case in relation to that proceeding.
Given that there is an arguable case, it is not necessary for the Tribunal to comment further in relation to the prospects of success in relation to Mrs Ashard’s case.
Accordingly, this factor does not weigh against a stay order.
Hardship
In relation to this issue, the Secretary contended in its Submissions dated 11 December 2015 as follows:
24.The Applicant is currently not in receipt of DSP or any other social security or family assistance payment.
25.However, the Applicant has not produced evidence to support her submission that she will experience financial hardship as a consequence of the implementation of the AAT decisions.
26.Further, the AAT has on more than one occasion, declined to grant a stay despite an applicant advancing an application for a stay largely on the basis of financial hardship:
a.In Warnock and Comcare [2009] AATA 20, Senior Member McCabe commented at [12] in relation to s 41(2) of the AAT Act, ‘that provision does not contemplate a stay order being made purely to relieve hardship or distress’. Despite the Tribunal being satisfied that the applicant’s case was not a ‘hopeless case’, it nevertheless declined to grant the stay.
b.Similarly, in Clement and Comcare [2006] AATA 705, Member Webb commented that at [18] ‘on balance, weighing the interests of the parties and notwithstanding the difficulties Ms Clement may face as a result of her financial circumstances, I am satisfied that it is not desirable to order a stay of the operation of implementation of the decisions under review’.
27.The Secretary notes that in any event, the Applicant is able to apply for Newstart Allowance and obtain an exemption from particular requirements if medical evidence indicates that the Applicant is unable to work. Alternatively, if the Applicant’s condition has worsened since the review of her DSP, as she submits, it would be open to her to submit a new claim with further medical evidence to have her eligibility re-assessed. The Secretary submits that these are more appropriate ways to alleviate the Applicant’s financial hardship.
In relation to this issue, Mrs Ashard did submit relevant financial information on 2 March 2016 which she says shows the extent to which she has suffered, and will continue to suffer, financially due to the decision to cancel her DSP and if she is not granted a stay order. That financial material is outlined at paragraph 20 above and has been reviewed by the Tribunal.
In relation to this evidence, the Secretary contended in its Further Written Submissions dated 9 March 2016 as follows:
32.The Secretary refers to the financial information provided by the Applicant on 2 March 2016. The Secretary submits that the evidence provided is insufficient to support a finding that the Applicant is in financial hardship.
33.The Secretary also refers to paragraphs [24]-[29] of the submissions filed on 9 December 2015, in particular the Applicant’s ability to apply for Newstart allowance as a more appropriate way to alleviate any financial hardship. The Secretary also relies upon the disadvantage to the Applicant if the stay is granted and the Applicant is ultimately unsuccessful on appeal.
On 16 March 2016, Mrs Ashard, in response, wrote relevantly, as follows:
Paragraphs 32-33
How can the Respondent support their assertion that Mrs. Ashard is NOT suffering acute financial hardship? What constitutes Financial Hardship? Surely it must be assessed on a case by case basis because Individual circumstances differ widely, Would not the imminent eviction from her modest home due to non-payment of rent, in turn due to having NO income support from Centrelink (i.e. the Secretary), in turn due to the failure of Mandurah Centrelink staff to inform Mrs. Ashard of a change in the portability rules In March 2015, be considered to be a sound and valid reason for her financial hardship?
The Tribunal has reviewed the financial evidence submitted by Mrs Ashard. While the Tribunal accepts that Mrs Ashard is in a difficult situation financially, and while the Tribunal is sympathetic, the Tribunal notes that Mrs Ashard has not provided any evidence as to why she has not sought other social assistance, such as Newstart. Had Mrs Ashard sought this social assistance, it is quite possible that she would not now be experiencing financial difficulty. Because she has not sought available assistance, the Tribunal cannot find that a stay is the only solution to her current financial difficulties. Mrs Ashard has not done all that she can do to alleviate her financial stresses pending the outcome of her Substantive Applications. Ultimately, her failure to do so weakens any argument she might have about financial hardship. This, in turn, weighs against the making of a stay order in this case.
The likelihood of recovery by the Secretary of monies paid to Mrs Ashard as a result of making the stay order
In relation to this issue, the Secretary contended as follows in its Submissions dated 11 December 2015:
28.The Secretary submits that the granting of the requested stay will disadvantage the Applicant if she is ultimately unsuccessful on appeal, it will result in a very large debt. If the Applicant is granted orders enabling her to be paid DSP, her current gross rate of payment will be approximately $996.40 per fortnight. If the Applicant were then unsuccessful with the substantive applications, the full amount of all DSP payments made following the stay would become a debt due to the Commonwealth.
29.If the Secretary ultimately succeeded on the substantive issues for consideration by the AAT, recovery would be by way of withholdings from payments over a lengthy period of time, occasioning loss and administrative inconvenience to the Commonwealth. The better approach is that payment not be made to the Applicant pending the outcome of the substantive applications.
Mrs Ashard did not respond to this contention.
The Tribunal finds that in light of the financial information provided by Mrs Ashard (which shows a lack of financial resources on her part and a reluctance thus far to seek other sources of available government financial assistance), in the event that a stay is granted and Mrs Ashard ultimately fails in relation to her Substantive Applications, there is a considerable risk that Mrs Ashard would then find herself in a position where she would have to pay back a significant debt. This would undoubtedly prove quite stressful for her. Further, taking into account the public interest involved in recouping monies owing due to overpayments, the Tribunal is not prepared to put her or the public more broadly in a position where money owing cannot be recouped.
This weighs heavily against the making of a stay order in these proceedings.
Is a Stay Required to Secure the Effectiveness of the Hearing and Determination of Mrs Ashard’s Substantive Applications?
The Tribunal must consider whether, for the purposes of section 41(2) of the AAT Act, making a stay order is “appropriate for the purpose of securing the effectiveness of the hearing and determination of the applicant’s application for review”.
In relation to this issue, the Secretary contended that a stay was not desirable or appropriate in these circumstances.
The Tribunal notes that Mrs Ashard made no submissions directly on this point. To use the example offered by Deputy President in Said in relation to the facts in that case (at paragraph 11), Mrs Ashard did not, for example, contend that she needed her DSP payments so that she might prepare the necessary documentation in support of her case in a timely manner.
The Tribunal infers that her main argument in relation to this issue is that she requires her DSP so that she can pay her increasing debts.
The Tribunal is not satisfied that this is a sufficient reason in relation to any stay order as it does not relate to “the effectiveness of the hearing and determination of the application for review.”
Nor does the Tribunal find, based on what Mrs Ashard has argued in relation to her request for a stay, that a substantive determination in her favour will be made nugatory or that the hearing and determination of her Substantive Applications will otherwise be adversely affected if a stay order is not granted. There is simply nothing before the Tribunal to support any argument of this sort.
These findings weigh against the making of a stay order.
Conclusion
The Tribunal is not “of the opinion that it is desirable” to make an order “staying or otherwise affecting the operation or implementation (within the meaning of section 41(2) of the AAT Act) of the two SSCSD decisions under review, both dated 13 October 2015.
Much of Mrs Ashard’s evidence before this Tribunal focussed on what she claims was misleading information from Centrelink in relation her rights and obligations in relation to her portability period. Mrs Ashard has signed a Statutory Declaration in relation to what she claims occurred and what she claims was said to her and she presented to this Tribunal as deeply frustrated. To quote her own written evidence before the Tribunal, she is “at her wits end”.
At a minimum, Mrs Ashard believes that someone at Centrelink should be accountable for the situation she finds herself in. Unfortunately, the Tribunal cannot assist her in this regard. The Tribunal does not have jurisdiction to resolve complaints about the conduct of Centrelink employees. However, there are other areas of redress for people in situations akin to Mrs Ashard’s, including raising this issue (as Mrs Ashard has now done) with the Commonwealth Ombudsman’s office or senior Centrelink officials.
The Tribunal is not unsympathetic to the situation Mrs Ashard now finds herself in. She requires her Substantive Applications to be resolved quickly. In that regard, the Tribunal has asked that, to the extent that Tribunal resources permit, this matter be expedited and heard as soon as possible. All steps will be taken to ensure that this occurs.
order
For the reasons outlined above, Mrs Ashard’s request for an order pursuant to section 41(2) of the AAT Act is refused.
I certify that the preceding 49 (forty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President, Dr Christopher Kendall. …………[sgd D Brodie].………….
Administrative Assistant
Dated 31 March 2016
Date of hearing 24 February 2016 Representative of the Applicant Self and Mr Tony Marchant Representative of the Respondent
Ms I Das
Department of Human Services
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