Dudzinski and Secretary, Department of Employment and Workplace Relations and Anor

[2006] AATA 553

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 553

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/650

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANNA DUDZINSKI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

ORDER

Tribunal Ms MJ Carstairs, Member

Date27 June 2006

PlaceBrisbane

Decision The Tribunal declines to vary the order made on 9 November 2005 under s41(2) of the Administrative Appeals Tribunal Act 1975. 

.................  [Sgd]............................

Member

CATCHWORDS

REASONS FOR REFUSING VARIATION OF ORDER

Ms MJ Carstairs, Member

1.      Mrs Anna Dudzinski applied to the Administrative Appeals Tribunal on 18 October 2005 for review of part of a decision made by the Social Security Appeals Tribunal on 19 September 2005, cancelling her newstart allowance, with effect from 17 January 2005.

2.      On 9 November 2005 I made an order partially staying the decision under review, the effect of which to date has been to continue Mrs Dudzinski’s newstart allowance from the date of the order.  However, at the same time I refused the request to pay to Mrs Dudzkinski the “arrears” component reflected by the period from Centrelink’s cancellation decision on 17 January 2005 to the date of my order, a period of some ten months.

3.      Mr Dudzinski, who represents Mrs Dudzinski, on this application, now seeks a variation of the order on two grounds:

1)    That they have been issued a notice to quit their current rental unit;

2)    That there will be changes to the law on 1 July 2006.

4. I have, in previous reasons set out that the purpose of s41(2) of the Administrative Appeals Tribunal Act 1975 is to affect the operation of a decision that would otherwise take effect in the ordinary course:  s41(1).  In Mrs Dudzinski’s matter, the decision that her newstart allowance should be cancelled has been affirmed by two levels of review so far.  In its reasons for decision the Social Security Appeals Tribunal affirmed the cancellation on a basis different from Centrelink’s.  The effective outcome, however, was the same.

5.      In the ordinary course that decision would have taken effect, despite Mrs Dudzinski seeking to have the matter reviewed by this Tribunal.

6.      In the first application for stay of the decision cancelling Mrs Dudzinski’s newstart allowance I decided that the circumstances, particularly the Dudzinski’s financial circumstances, were such that the effectiveness of the hearing and determination of the matter would be put in jeopardy if Mrs Dudzinski were without any income support pending the hearing.

7.      However, I also made plain my view in the written reasons for granting a partial stay only, that the arrears of newstart allowance – that is, the ten months referred to above – should not be paid.  I said that to do so would be quite unjustified, taking into account the respondent’s interests in the review and applying the principles set out in a number of Tribunal decisions, including Re Repatriation Commission and Delkou (1985) 8 ALD 454.

8.      Mr Dudzinski on behalf of Mrs Dudzinski has now applied for a variation of the stay order, one ground being their current position of hardship having been served with notice to quit their residence on 14 July 2006.  The notice from the real estate agent was dated 11 May 2006, but referred to an earlier defective notice at the end of April 2006.

9.      An additional ground for the current application to vary the stay order was proposed changes to the legislation, said to come into effect from 1 July 2006, which may affect Mrs Dudzinski’s application for review with this Tribunal.

10.     Whether any proposed changes to the legislation will have any effect on the matter under review is far from clear.  This is a matter for submissions at the hearing.  It is not a matter that is relevant to the question of a stay of proceedings, particularly when it is borne in mind that the decision under review before the Tribunal dates from 2005.

11.     Mr and Mrs Dudzinski are concerned that after 1 July 2006 the newstart payments now being made to her under the stay order will be terminated.  I have no reason to believe they will.  The respondents would have to apply for a variation of the stay order for that to occur, and they have not done so.

12.     This leaves the question of Mrs Dudzinski’s current hardship based upon facing increased costs associated with moving house.

13.     I took into account that a relevant question on the matter of a stay of the decision, as it relates to the ten months arrears period, is the prospects for the respondents’ recovering moneys if the arrears were paid as a lump sum to Mrs Dudzinski now.  Those prospects are not good.  Furthermore, the effectiveness of the hearing and determination of the matter would be adversely affected for the respondent if the lump sum were paid.  Mrs Dudzinski has been unsuccessful in seeking review of the decision to cancel her newstart allowance and there is no justification for paying the amount as if she had been completely successful on internal review and before the Social Security Appeals Tribunal.

14.     Mrs Dudzinski has been receiving newstart allowance as well as a component of rent allowance of some $90 per fortnight since the date of my earlier order in November 2005.  I accept that there will be additional expenses that they did not anticipate fully now that they must move house.  Nevertheless, these are not matters that are addressed under the provisions for a stay of the proceedings.  Mrs Dudzinski is receiving the same rates of Centrelink payments as apply to others in her circumstances.  She must manage her money just as do others on these payments.  She has been on notice since the end of April that they must vacate the premises.

15.     However difficult her current circumstances are, I am satisfied that any current hardship is addressed by my earlier order that Mrs Dudzinski’s newstart allowance be paid pending the review and determination of the matter.  Her difficulties in finding new housing and paying removalists are not matters that affect my views, as expressed in the decision granting a partial stay, that, weighing up the interests of all those affected by her current application for review, the arrears should not be paid.

16. For these reasons I decline to vary my earlier order under s41(2) of the Administrative Appeals Tribunal Act 1975.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         .....................................................................................
           Administrative Assistant

Date/s of Hearing  22 June 2006
Date of Decision  27 June 2006
Mr Dudzinski appeared on behalf of Applicant      
Counsel for the Respondent     Mr S McLeod
Solicitor for the Respondent     Australian Government Solicitor