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

[2016] AATA 522

Douglas; Secretary, Department of Social Services and (Social services second review) [2016] AATA 522 (11 July 2016) 

Division	GENERAL DIVISION
File Number(s)	2016/2282
Re	Secretary, Department of Social Services
APPLICANT
And	Rachel Douglas
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	11 July 2016
Date of written reasons	22 July 2016
Place	Sydney

The Tribunal decides to grant the application to stay the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – stay application – application to cease DSP payments reinstated at first review – no evidence of financial hardship to the respondent – stay granted

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 41

Social Security Act 1991, s 94
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES

Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065

REASONS FOR DECISION

Dr L Bygrave, Member

22 July 2016

INTERLOCUTORY APPLICATION

1. On 1 April 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) set aside the decision of Centrelink to reject the claim of the respondent, Ms Douglas, for disability support pension (DSP).

2. The basis of the AAT1 decision was that Ms Douglas satisfied the criteria for DSP set out in s 94(1) of the Social Security Act 1991 (Cth) (the Act) at the date of her application on 7 April 2015.

3. On 3 May 2016, the Secretary Department of Social Services (Secretary) applied for a review of the decision (substantive matter).

4. These interlocutory proceedings concern an application by the Secretary for an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) staying the operation of the decision until final determination of the substantive matter before this Tribunal.

5. At the hearing of the application for a stay on 11 July 2016, the parties appeared before the Tribunal by telephone. Dr Stephen Thompson appeared for the applicant and the respondent was represented by her mother, Mrs Debra Douglas. I made an oral decision to grant the stay. These are my written reasons for doing so.

   POWER TO GRANT A STAY

6. Section 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. In other words, the decision under review has full effect until and unless the Tribunal makes an order staying the operation or implementation of the decision.

7. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to s 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’

8. In Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:

   [6] The decision whether to grant a Stay is entirely discretionary.  It follows that an applicant does not have an automatic right to a Stay.  Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise.  Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions.  In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement.

   [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications.  Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

   (a)The prospects of success or the merits of the applicant’s case on review.

   (b)Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

   (c)Whether it is in the public interest to grant a Stay.

   (d)That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

   PROSPECTS OF SUCCESS

9. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of the Secretary’s application for review.

10. In order to qualify for DSP, Ms Douglas must satisfy the requirements of s 94(1) of the Act as at the date of the claim or within 13 weeks of lodging the claim, that is between 7 April 2015 and 7 July 2015 (claim period), in accordance with the requirement of the Social Security (Administration) Act 1999 (Cth).

11. Section 94(1) of the Act provides that a person is qualified for DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work as defined by the Act.

12. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) requires that an impairment rating can only be assigned if the condition causing that impairment is fully diagnosed, treated and stabilised (Part 2, clause 6 of the Impairment Tables). The Introduction to each of the Impairment Tables requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.

13. Ms Douglas’ application for DSP on 7 April 2015 is based on one condition, chronic fatigue. Centrelink rejected Ms Douglas’ claim for DSP on 8 July 2015 on the basis that the condition was not fully diagnosed, treated and stabilised during the claim period.

14. On 1 April 2016, the AAT1 set aside this decision and substituted a decision that the condition was fully diagnosed, treated and stabilised, and assigned 20 points under Table 1 in the Impairment Tables.

15. In written submissions dated 8 July 2016, the Secretary contends that there is a paucity of medical evidence currently available. In a medical report dated 23 March 2015, Dr Penny Caldicott (Ms Douglas’ treating General Practitioner) recorded that the onset of chronic fatigue occurred in 2006 when Ms Douglas was 10 years old. There is no supporting documentary evidence from Dr Anthony Underwood (Pediatrician), who is named in the report as making the diagnosis in 2006.

16. A letter from Dr Caldicott dated 9 September 2015 reported that ‘Rachel Douglas was diagnosed with Chronic Disease Syndrome in 2008’ with treatment of ‘healthy eating, regular paced exercise, [and] nutritional supplementation’. Dr Caldicott noted that this is a long term illness and the condition is stable.

17. In submissions to the Tribunal, the Secretary has proposed to arrange for Ms Douglas to attend an appointment with a specialist in Sydney and to reassess the merits of the application for review once the specialist’s report has been received.

18. I consider that, without further medical evidence, the substantive matter has prospects of success and this weighs heavily in favour of the granting of a stay.

    PREJUDICE TO THE PARTIES AND THE PUBLIC INTEREST

19. It is not in the public interest to provide payments to a person who may not be entitled. If a stay is refused and the Secretary is successful in the substantive matter, Ms Douglas will owe a debt to the Commonwealth, which the Secretary would then have to recover at some expense to the taxpayer.

20. Consequently, the prejudice to the parties and the public interest considerations favour the grant of a stay in this case.

    FINANCIAL HARDSHIP

21. There is no evidence that Ms Douglas is currently in financial hardship.

22. At the hearing Mrs Douglas confirmed that Ms Douglas currently resides at her family home and receives Centrelink payments (youth allowance and a supplement), which mitigate any potential for her to suffer financial hardship pending final determination of the substantive matter.

    CONCLUSION

23. For the reasons given above, the application for a stay was granted at the hearing of the interlocutory application. This means the decision of the AAT1, that is to grant DSP, will not be implemented until this Tribunal makes a decision on the substantive review application.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

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

Associate

Dated   22 July 2016

Date(s) of hearing	11 July 2016
Solicitors for the Applicant	Dr S Thompson, Department of Human Services
Advocate for the Respondent	Mrs D Douglas