Chen and Secretary, Department of Social Services (Social services second review)

[2015] AATA 780

Chen and Secretary, Department of Social Services (Social services second review) [2015] AATA 780 (8 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1467
Re	Dazhong Chen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	8 October 2015
Place	Sydney

The application for review of the decision of the Social Security Appeals Tribunal dated 20 February 2015 dismissed on 17 July 2015 is reinstated and that decision is affirmed.

....................................................................

Senior Member J F Toohey

CATCHWORDS – PRACTICE AND PROCEDURE – reinstatement of application – application reinstated – social security – special benefit – payment cancelled when application received substantial lump sum compensation payment – applicant accepted cancellation correct – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 42A(2), 42A(8A)

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Dazhong Chen is 67.  Ordinarily, when he turned 65 he would have qualified for the age pension, but he did not satisfy the residency requirement, having been a resident for less than 10 years.  As he was in severe financial hardship and was unable to support himself, he was granted special benefit.

2. In 2014, Mr Chen received a lump sum payment in compensation for injuries sustained while a passenger on a bus.  After deductions for expenses, $184,177.09 was deposited into his St George bank account on 6 August 2014.  For reasons which are not clear, but which do not matter for present purposes, Mr Chen says that money is all but gone.

3. On 23 August 2014, Centrelink cancelled Mr Chen’s special benefit on the basis that he no longer met the financial hardship criterion for payment.  The decision was affirmed by an Authorised Review Officer at Centrelink and, on 20 February 2015, by the Social Security Appeals Tribunal (SSAT).

4. Mr Chen sought review of the SSAT’s decision in this Tribunal.  On 22 June 2015, he attended a preliminary conference at which he said he did not dispute the decision to cancel his special benefit but he wanted it affirmed by this tribunal that he was not entitled to special benefits as he proposed to take action against his former solicitor over advice concerning his eligibility for Centrelink benefits.  It was agreed at the conference that Mr Chen’s application would be finalised by way of a decision “on the documents”. 

5. For reasons which are not clear but which do not matter, Mr Chen later changed his mind and advised the Tribunal that he did not want a decision “on the documents”.  His application was listed for a directions hearing on 17 July 2015.

   Amalgamation of the tribunals

6. On 1 July 2015 the SSAT amalgamated with the Administrative Appeals Tribunal (AAT) and became the Social Services and Child Support Division of the AAT.  Under the transitional provisions in the Tribunals Amalgamation Act 2015, Mr Chen’s application to the SSAT is taken to be an application for “AAT first review” and an application for review of that decision one for “AAT second review”.

   Reinstatement of Mr Chen’s application

7. Mr Chen did not appear at the directions hearing on 17 July 2015. The Tribunal, differently constituted, was satisfied that he had been given appropriate notice of the directions hearing and dismissed his application under s 42A(2) of the Administrative Appeals Tribunal Act 1975.

8. On 14 August 2015, the Tribunal received a letter from Mr Chen to say that he did not appear at the directions hearing because he was in a mental health hospital at the time.  He asked for a “special application” which the Tribunal took to be a request that his application be reinstated.

9. The Tribunal may reinstate an application that has been dismissed for failure to appear if it considers it appropriate to do so: s 42A(8A) of the Administrative Appeals Tribunal Act 1975.

10. Centrelink does not oppose the reinstatement and I am satisfied that it is appropriate in the circumstances to reinstate it.

    Cancellation of Mr Chen’s special benefit

11. Mr Chen’s application having been reinstated, I discussed with him how he wished to proceed.  I said it appeared clear that Centrelink’s decision to cancel his special benefit was correct because of the lump sum compensation payment he had received.

12. Mr Chen acknowledged several times that he does not dispute the decision to cancel his payment.  However, he said, his former solicitor advised him that receipt of the compensation payment would have no effect on his Centrelink payment.  I understand from Mr Chen that he is in the process of taking action against his former solicitor in connection with that advice.

13. If that is the advice given to Mr Chen, then it would not be correct for two reasons: firstly because special benefit is only payable in cases of severe financial hardship and, given the amount of the lump sum payment, there could be little doubt that it would preclude special benefit.  Secondly, a lump sum payment generally results in a compensation preclusion period during which Centrelink payments are not payable.  Whether that was in fact the advice Mr Chen was given is a matter between him and his former solicitor.

    Conclusion

14. Mr Chen does not dispute, and I am satisfied, that Centrelink was correct in cancelling his special benefit on 23 August 2014.  I affirm that decision.

15.     I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

.......................................
Associate

Dated 8 October 2015

Date(s) of hearing		24 September 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Ms Rebecca Kougellis, Government Lawyer