Bennington and Secretary, Department of Social Services
[2013] AATA 792
•6 September 2013
[2013] AATA 792
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4058
Re
Stephen Bennington
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 6 September 2013 Date of written reasons 8 November 2013 Place Melbourne The Tribunal dismisses the application in accordance with s 42B(1) of the Administrative Appeals Tribunal Act 1975.
................................[sgd]........................................
G. D. Friedman, Senior Member
SOCIAL SECURITY –8 Week Unemployment Non Payment Period – Social Security Appeals Tribunal Substituted Decision – Applicant Cannot Achieve More Favourable Outcome – Application Frivolous – Dismissed under s 42B(1)
Administrative Appeals Tribunal Act 1975 s 42B(1)
Social Security Administration Act 1999 s 152(4)Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950
REASONS FOR DECISION
G. D. Friedman, Senior Member
8 November 2013
On 26 November 2012 Mr Bennington’s employment with Mermaid Cleaning Services was terminated for ‘recent behaviour, performance and unwillingness to attend a performance meeting to overcome these issues’. On 19 December 2012 Mr Bennington contacted Centrelink to discuss his recent termination. On 4 January 2013 Centrelink made a decision to grant Mr Bennington newstart allowance from 19 December 2012, however his newstart allowance payments would not commence until 30 January 2013 after a non-payment period of eight weeks had expired. The decision stated that the non-payment period was applicable as he did not have a reasonable excuse for his actions leading to termination of his employment.
Mr Bennington sought review of that decision and on 28 February 2013 a Centrelink authorised review officer (ARO) affirmed the decision. On 20 May 2013 Mr Bennington lodged an application for review of the decision with the Social Security Appeals Tribunal (SSAT). On 25 July 2013 the SSAT set aside the reviewable decision of the ARO finding:
[t]he decision under review is set aside and the matter is sent back to the Chief Excecutive of Centrelink for reconsideration in accordance with the direction that Mr Bennington’s newstart allowance is not subject to an 8 week non payment period due to his unemployment from 26 November 2012.
As Mr Bennington’s application to the SSAT for review was made more than 13 weeks after receiving the ARO’s decision, the SSAT decision to not impose an 8 week non payment period on Mr Bennington’s newstart allowance has no practical effect.
Section 152(4) of the Social Security Administration Act 1999 (Administration Act) states:
(4) If:
(a) a person is given written notice of a decision under the social security law; and
(b) the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c) the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d) the effect of the decision of the SSAT is:
(i) to grant the person's claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person's social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
Subsequently the date of effect of the SSAT decision is 20 May 2013, the day Mr Bennington lodged his application for review with the SSAT, several months after the non-payment period expired.
On 16 August 2013 Mr Bennington applied to this Tribunal for review of the SSAT decision. On 22 August 2013 the respondent requested that a directions hearing be held for the purpose of deciding whether the matter should be dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 (the Act).
ISSUE
The issue before the Tribunal is whether it is appropriate to dismiss Mr Bennington’s application under section 42B(1) of the Act.
RELEVANT LEGISLATION AND PRINCIPLES
Section 42B of the Act states:
42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application;
…
In Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950 the Tribunal discussed the relevant principles:
14.The concept of a frivolous and vexatious application has been considered on many occasions. The Tribunal refers to Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 in which Roden J stated as follows:
“it seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
…
2.They are vexatious is they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
….
CONSIDERATION
Mr Bennington listed several reasons relating to the conduct of Centrelink in his application for review to this Tribunal. The SSAT held that Mr Bennington’s newstart allowance is not subject to an 8 week non-payment period resulting from circumstances surrounding his employment termination on 26 November 2012. This decision set aside the earlier decision of the ARO to impose an 8 week non-payment period. However, the operation of s 152(4) of the Administration Act means the decision has no practical effect on the 8 week non-payment period Mr Bennington’s newstart allowance was subject to.
Mr Bennington believes the decision of the SSAT did not go far enough in correcting Centrelink’s assertions that his dismissal resulted from misconduct. It is not for the Tribunal to comment on Centrelink’s conduct because Government administration is a matter over which the Tribunal has no jurisdiction. A body such as the Commonwealth Ombudsman is a more appropriate agency to consider complaints about Government administration.
Mr Bennington’s application to this Tribunal is for collateral purposes, as he cannot receive a more favourable outcome than the one he received from the SSAT.
CONCLUSION
The Tribunal dismisses the application in accordance with s 42B(1) of the Act.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. .........................[sgd]...............................................
Associate
Dated 8 November 2013
Date of hearing
6 September 2013
Applicant
In person
Advocate for the Respondent
Mr M Hester
Solicitors for the Respondent
Program Litigation and Review Branch, Department of Human Services
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