Cram and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1212

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1212

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2005/532

GENERAL ADMINISTRATIVE DIVISION		)
Re		MR IAN CRAM

Applicant

And

SECRETARY, DEPARTMENT OF

EMPLOYMENT AND WORKPLACE

RELATIONS

Respondent

DECISION

Tribunal   Professor I. A. Shearer, Senior Member

Date  8 December 2005

Place  Sydney

Decision   The decision under review is affirmed.

……………………………….

Professor I. A. Shearer, Senior Member  

CATCHWORDS

SOCIAL SECURITY – review of decision relating to the conduct of a review into continued eligibility for exemption from requirement to submit an activity statement – decision under review affirmed.

Social Security (Administration) Act 1999 – section 64, 179.

Social Security Act 1991 – section 603C.

REASONS FOR DECISION

8 December 2005   Professor I. A. Shearer Shearer, Senior Member

1.      This is an application by Mr Ian Cram for the review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 12 April 2005, in so far as that decision related to a decision of an Authorised Review Officer (“ARO”), dated 8 February 2005, affirming a decision concerning Mr Cram’s capacity to work made on 18 October 2004.

2. The jurisdiction of the Tribunal in the present case derives from section 179 of the Social Security (Administration) Act 1999 (“the Act”).

BACKGROUND

3.      It is unnecessary to set out at length the background to the present proceedings since the issue before the Tribunal on this occasion is confined to one aspect of Mr Cram’s dispute with the Department.

4.      In brief, Mr Cram suffered an injury at work in or about August 2002. He ceased work about one year later on account of persistent pain in his arm and shoulder. He lodged claims for (a) a disability support pension, and (b) in the alternative, a Newstart allowance (including a pharmaceutical allowance). The claim for a disability support pension was rejected in September 2003, and this rejection was affirmed by the ARO and on appeal to the SSAT in a decision dated 3 May 2004. The Newstart allowance was, however, granted. A decision by the ARO to cease Mr Cram’s exemption from the activity statement requirement of that allowance was, however, set aside by the SSAT in the same proceedings, and reinstated, with the direction that Mr Cram be not reviewed until 6 months after the date of the decision of the SSAT (ie, 3 November 2004).

5.      Notwithstanding this direction, a review of Mr Cram’s exemption from the requirement of submitting a regular activity statement was conducted on 18 October 2004, some 16 days before the period of exemption directed by the SSAT expired.

6.      Although the review of 18 October 2004 resulted in a decision favourable to Mr Cram, in that his medical exemption from the activity statement requirement was affirmed, he sought review of this decision on the ground that it had been conducted earlier than the date specified by the SSAT. On review, the ARO affirmed the decision of 18 October 2004 on 8 February 2005. He appealed against this decision to the SSAT which, on 12 April 2005, affirmed the decision.

ISSUES BEFORE THE TRIBUNAL

7.      Mr Cram has appealed in the present proceedings against the decision of the SSAT to affirm the original decision of 18 October 2004 to conduct a review of his continued eligibility for exemption from the requirement to submit an activity statement.

8.      Mr Cram appeared in person. The Secretary to the Department was represented by Mr A Duri.

9.      Mr Cram argued that the failure by the officers of the Department to carry out the decision of the SSAT to continue his exemption from the requirement of submitting an activity statement in connection with his Newstart allowance until 3 November 2004 by conducting a review at an earlier date constituted a “decision” not to implement the decision of the SSAT. He said that the evidence pointed to an intention to deceive on the part of the officers concerned with his case. Indeed, he argued that their conduct was criminal in nature. He tendered three documents from the Department’s internal files which referred to the SSAT’s decision. Two of these documents discuss the possibility of an appeal by the Department against the decision of the SSAT of 3 May 2004 and the consequent need to defer implementation of that decision until the appeal period had expired. The third document, under the hand of John J Kenny, Advocate, Service Recovery Team, Centrelink, dated 14 May 2004, recommended acceptance and implementation of the decision of the SSAT and directed a review of the exemption after 14 November 2004.

10.     I can see nothing in the documents tendered by Mr Cram, nor in the other documents already before the Tribunal, that would justify a finding of impropriety, still less criminal conduct, on the part of the officers concerned.

11. On the other hand, as conceded by Mr Duri, the fact that a review of Mr Cram’s continued eligibility for exemption from the requirement of submitting an activity statement was carried out prematurely, and contrary to the decision of the SSAT, constituted a clear error and was the result of maladministration within the Department. I so find. Mr Duri also submitted that the Secretary is legally entitled to require a person in receipt of allowances to undergo an examination under section 64 of the Act at any time, notwithstanding any directions or understandings regarding an exemption from the activity test recognised under section 603C of the Social Security Act 1991. I think this argument is correct. The decision was not unlawful, but it was irregular.

12.     The question therefore is whether the prematurely executed review resulted in substantial disadvantage to Mr Cram. In fact the decision was favourable to him despite its irregularity. No doubt Mr Cram was disconcerted and inconvenienced by the premature review, but his position has not been adversely affected so far as his receipt of allowances and his continued exemptions are concerned.

13.     Mr Cram clearly considers that he is the victim of an injustice. But perhaps this conviction goes more to the original decision to deny him a disability support pension (which was stated to be the subject of separate proceedings) than to irregularities, or even improprieties, that he complains of in the present proceedings. On this point I agree, with respect, with what was said in the present case by the SSAT in its Reasons for Decision of 12 April 2005:

“The job of this tribunal is to review decisions made under the Social Security law. The Tribunal is not a general complaints body. The matters raised by Mr Cram at this particular hearing do not involve any adverse substantive decisions. The issues he raised are concerned with administrative processes only, and not final outcomes. These complaints of perceived maladministration may or may not be valid. The tribunal is unfortunately not in a position to provide Mr Cram with any redress about matters concerning poor customer service, nor matters concerning the manner in which his entitlements are reviewed. The appropriate forums for these types of complaints are: Centrelink’s Customer Relations Unit; and the Commonwealth Ombudsman’s Office.”

DECISION

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Professor I. A. Shearer, Senior Member:

Signed:         Associate

Date of Hearing            31 August 2005
Date of Decision  8 December 2005
Representative for the Applicant               Self-Represented
Advocate for the Respondent                   Mr A Duri