Cremona and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 349

[2013] AATA 349

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1875
Re	David Cremona
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

ORDER

Tribunal	Mr Conrad Ermert, Member
Date of order	22 May 2013
Date of written reasons	28 May 2013
Place	Melbourne

Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses to stay the operation of the decision under review.

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

Mr Conrad Ermert, Member

REASONS FOR ORDER

Mr Conrad Ermert, Member

28 May 2013

INTRODUCTION

1. Mr Cremona had been receiving Carer Allowance for his daughter from Centrelink, the agency which provides services for the Department of Families, Housing, Community Services and Indigenous Affairs. . On 26 October 2012, Centrelink made a decision to cancel Mr Cremona’s Carer Allowance. On 11 January 2013, an Authorised Review Officer from Centrelink affirmed that decision.  On 5 April 2013 the Social Security Appeals Tribunal (SSAT) affirmed the decision of the Authorised Review Officer.

2. Mr Cremona has applied to this Tribunal for a review of the SSAT decision.  He also applied for an order to stay the implementation of the SSAT decision until the review is finalised.  I heard Mr Cremona’s stay application on 22 May 2013.

3. At the hearing on 22 May 2013, I refused Mr Cremona’s application to stay the operation of the SSAT decision. Mr Cremona requested written reasons for the Tribunal’s decision.

   THE HEARING

4. Mr Cremona appeared in person and gave evidence under affirmation.  Ms A Bramley, an advocate from the Department of Human Services, appeared for the respondent. 

5. I had before me the documents submitted in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act).  I also had the respondent’s written submission dated 9 May 2013, opposing Mr Cremona’s application for a stay order.

   LEGISLATION

6. The relevant legislation is contained in section 41(2) of the Act which states:

   The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal … if the Tribunal is of the opinion that it is desirable to do so after 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 … for the purpose of securing the effectiveness of the hearing and determination of the application for review.

   EVIDENCE

7. In his evidence Mr Cremona said that the cases cited by the respondent in its submission were not relevant to his situation.  He thought that the respondent assumed that his case had no prospects of success.  He believed his application will be successful, and that the SSAT decision was not correct.  Mr Cremona said he was obtaining a second doctor’s opinion of his daughter’s condition.

8. In regard to the recovery of any possible debt, Mr Cremona said that he considered that would not be a problem for the Government. Mr Cremona said that if the stay were to be approved he would put the money aside until his application was finalised. 

9. Ms Bramley submitted that the decision of the SSAT was based on Mr Cremona’s responses to a care questionnaire.  She said the respondent accepted the report of Dr Ng and the condition of Mr Cremona’s daughter was not in contention. 

10. Ms Bramley said the respondent had no particular submissions in regard to the issues of prejudice to the parties, public interest, conditions or undertakings which might ameliorate the consequences of the stay, or whether the review application would be rendered nugatory if the stay was granted. 

11. In regard to the issues of financial hardship and debt recovery, Ms Bramley said the respondent’s only concern was that the repayment of an accrued debt might cause financial stress to the applicant. 

12. In regard to the prospects of success of the review application, Ms Bramley said that a second medical opinion would not affect the outcome as the respondent already accepted the daughter’s condition.  She said the report of Dr Ng fulfilled the requirement of the Act.  Ms Bramley said that the SSAT decision was determined by Mr Cremona’s own statements. 

    CONSIDERATION

13. In considering whether it is desirable to make an order to stay the SSAT decision I took into account the following issues:

    (a)the prospects of success or the merits of the appeal application;

    (b)prejudice to parties affected by the review;

    (c)whether it is in the public interest to grant a stay;

    (d)hardship or loss which may be suffered by Mr Cremona;

    (e)likelihood of recovery of any debt owed to the Commonwealth;

    (f)conditions or undertakings which may ameliorate the consequences of the stay; and

    (g)whether the application, if successful, would be rendered nugatory if the stay were not granted.

14. Neither party made substantive submissions in regard to issues (b), (c), (f) and (g).  There is no evidence in regard to these issues and I find that they are not relevant in this case.

15. In regard to the hardship and recovery of debt issues, I note Mr Cremona’s evidence that in the event of a stay being granted he would set aside the carer payments until his application is finalised.  This indicates that Mr Cremona can continue to meet his living expenses without the carer payment until the Tribunal finalises his application.  Accordingly, I am satisfied that Mr Cremona would not suffer financial hardship if the stay were refused.  I am also satisfied that there would be no difficulty in the recovery of any debt owed to the Commonwealth. 

16. In regard to the prospects of success of the substantive application, I note Mr Cremona’s belief that the appeal will be successful.  In support of that belief he said he was in the process of obtaining another medical opinion about his daughter’s condition.  However, in its reasons for decision, the SSAT clearly accepted that the medical report of Dr Ng was sufficient to satisfy the provisions of the Act.  It was the assessment of Mr Cremona’s carer requirements that fell short of the requirements for Carer Allowance.  Mr Cremona offered no evidence in relation to his carer functions.  Without evidence on that issue there is no reason to consider that the substantive application has much prospect of success. 

17. After taking into account all the evidence and considering the issues above, I am of the opinion that there is no positive reason to order a stay of the implementation of the SSAT decision to secure the effectiveness of the hearing and determination of the application for review.

    ORDER

18. The Tribunal refuses to order a stay of the implementation of the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the order herein of Mr Conrad Ermert, Member.

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K. Randall, Associate

Dated 28 May 2013

Date of hearing	22 May 2013
Applicant	In person
Advocate for the Respondent	Ailsa Bramley, Department of Human Services