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

[2015] AATA 951

DVVT and Secretary, Department of Social Services (Social services second review) [2015] AATA 951 (3 December 2015)

Division	General Division
File Number	2015/2280
Re	DVVT
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	3 December 2015
Date of written reasons	10 December 2015
Place	Perth

The applicant's request for an adjournment of the hearing listed for 3 December 2015 is refused.

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Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY - PRACTICE AND PROCEDURE – Application for adjournment – Late application – Where adjournment previously granted – Proportionality considered – Minor dispute - Narrow issue - Insufficient medical evidence to support inability to appear – Application for adjournment refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth) ss 620, 621

REASONS FOR DECISION

Senior Member A C Cotter

10 December 2015

1. The Applicant sought an adjournment of the hearing of this matter, which was listed for 3 December 2015. In view of the late notice of the application for adjournment, that application was listed to be heard at 9:00 am (AWST), that being the listed commencement time for the hearing. The Applicant did not appear. This was despite his having notice of both the hearing and the application for adjournment and his being granted leave to appear by telephone. The Tribunal telephoned his nominated phone number twice without success. The Respondent being present, the application for adjournment proceeded based on the correspondence sent by the Applicant to the Registry. A decision on this application was delivered orally together with reasons at the conclusion of the hearing of the adjournment application. The Respondent subsequently requested written reasons be supplied. These written reasons were distilled from the recording of the hearing.

2. Although the Applicant sought an adjournment on medical grounds for a “couple of weeks”, he suggested that, due to his other commitments, the hearing be adjourned to some time in the week of 11 January 2016.

3. The application for an adjournment was opposed by the Secretary.

4. Before I deal with the merits of the Applicant’s application, it is useful to provide some background to this matter.

5. The matter was originally listed for hearing on 4 November 2015. However, on 1 October 2015, the Applicant sought an additional period of four weeks to enable him to prepare for the hearing. The Respondent indicated at that time that it would only consent to a delay in the hearing on the production of a medical certificate to the effect that the Applicant was unfit to attend. The Applicant produced a doctor’s certificate which the Secretary accepted. In those circumstances, I agreed to the vacating of the original hearing date and re-listing the matter to 3 December 2015.

6. The central issue in this matter is of particularly narrow compass. The Applicant was injured at work. He received compensation and was subject to a compensation preclusion period from 27 May 2014 to 15 December 2014. On 12 December 2014, he lodged an online claim for Newstart Allowance, which was granted with effect from 19 December 2014. That start date was arrived at after applying the ordinary waiting period of seven days under s 621(1) of the Social Security Act 1991 (Cth). The Applicant challenges that decision on the basis that the start date should have been three days earlier, on 16 December (being the first day after the expiration of the preclusion period). As I understand it, his contentions are twofold. First, that the ordinary waiting period should not apply to him because he is in severe financial hardship and second, because he says the start date should be back dated to the date when he says that he first signalled his intention to make a claim, namely at Centrelink’s Northam office on 5 December 2014. The first ground relies essentially on an interpretation of s 620 of the Act and the definitions of “severe financial hardship” and “liquid assets”. The second involves the factual issue as to whether the Applicant attended the office when he said he did (of which there is no record in Centrelink’s material) and an interpretation of the relevant provisions of the Social Security (Administration) Act 1999 (Cth).

7. While I appreciate that the issue of the start date is an important matter for the Applicant, the dispute, viewed objectively, is relatively minor. The Applicant’s application for an adjournment needs to be viewed in that context.

8. On 17 November 2015, the Applicant sent an email to the Registry, which read in part:

   I requested a postponement, because I could not put my case together without further information from Centrelink…you granted the postponement, but it was just a waste of time has [sic] Centrelink has still not supplied the necessary information that I requested…….

   personally I think we are going to need another directions hearing before we are ready to go to the tribunal!...

   I have attached yet another Doctors [sic] note, and will need something better than just another postponement!

9. Based on the Applicant’s concerns and wanting to ensure that the scheduled hearing proceeded efficiently, I convened a telephone directions hearing on 24 November 2015. The Applicant attended by telephone, as did Ms de Reus of the Australian Government Solicitor on behalf of the Secretary. The hearing lasted just over an hour. Apart from procedural matters about the hearing, the main issue concerned whether some six Centrelink officers whom the Applicant identified should be “named”, so that they could be called as witnesses. I expressed reservations about the relevance of some of the evidence that would presumably be led, as well as questioning the proportionality of calling those witnesses, given the confined nature of the central issue in the proceeding.  To provide some assistance to the Applicant, I asked Ms de Reus to make some inquiries of the staff at the Centrelink office at Northam, which she did.

10. The next day (25 November), the Applicant sent an email to the Registry addressed for my attention. It read in part:

    I have today taken the following action. I have started a claim for Disability support, and once approve [sic] I will seek to have it back dated to the 16^th of Nov 2014 as it was the most suitable benefit at the time.

    As you can appreciate, this would make any claim or counter claim moot.

    Although I do not wish to stop this appeals proses [sic], just in case my application is denied. I would suggest that progressing any further at this time could course [sic] unnecessary expense to all parties. The gentlemen at Centrelink, that I spoke to today, informed me that it could take up to four months to get a decision.

    If the member is not prepared to postpone it for this length of time, I will reluctantly agree to continue on the date set.

11. On the morning of 27 November, the Applicant sent another email, saying that in hindsight, he was thinking that he “would like to continue regardless so that I can have my CDDA claim restarted sooner rather than later”. He then went on to raise fresh points by way of argument.

12. On the morning of 1 December, another email was received from the Applicant, which read in part:

    This email was intended to be a [sic] application for ‘leave to appear by telephone’.

    However last week was more that [sic] I could handle, it was a rather big week for me with the hearing, talking to other people on the phone in relationship to changing to a Disability claim, emails, web research and trying to understand a law that does not interest me, some last minute interjections and being forced to have to relive the last 18 month to see what I had missed. Please appreciate that this has taken a toll on my health. Therefor [sic] I have to ask myself if I am up to being able to function well enough to argue my point at all. Therefore I would like to ask for a short adjournment on medical grounds for a couple of weeks to recover, and I am hoping that there will be no objection as I have already forwarded a Doctors [sic] note that covers this period.

    And although I have suggested a couple of weeks, please appreciate that I need to complete and return my Disability claim form with in [sic] the next two weeks, witch [sic] will certainly take it’s [sic] toll. Then it will be almost Christmas, and although I could not survive with out [sic] my support network, and however reluctant I am, my neighbours will undoubtedly insist that I participate at some level, in the festive activities that they have organised, witch [sic] will drain me even further. So I would suggest some time in the week starting the 11^th Jan.

13. An exchange of emails followed between the Tribunal’s Case Service Officer and the Applicant, with the former advising that the matter was proceeding. The Applicant replied in an email sent at 10:11am on 1 December to the effect that that email should be considered a request to seek leave to appear by telephone, but that I needed to appreciate that the Applicant’s participation would be limited to arguing his case for an adjournment on medical grounds. A response was sent, granting the Applicant leave to appear by phone, and asking for any other material on which he intended to rely in support of his application.

14. In response to that email, the Applicant wrote:

    I have already submitted a medical note for this period, through to the 26^th of Jan 2016, But I will re-attach it again here, and I find it hard to believe that the Member can deny me on these grounds.

    And could you please let the Member know, that by not granting me an adjournment at this time, and as long as he is aware that by continuing, all he is doing is causing me more stress and anxiety, and making my condition worse. And with respect I may not be capable of even answering the phone on the 3^rd, and would submit that my inability to successfully argue for this postponement, should be evidence in itself that I am unfit to argue my case at the hearing on Thursday.

    Are there any other steps available to me? To get this matter postponed before the 3^rd?

15. A further exchange of emails followed in response to a question by the Applicant about dropping his appeal and then re-appealing. In particular, he was informed about the risk of the application being dismissed if he failed to attend and the provisions relating to applications for reinstatement.

16. Having considered the Secretary’s position and the material provided by the Applicant, I am not prepared to grant an adjournment.  My reasons are as follows.

17. Although the Applicant provided a medical certificate by a doctor, Dr Alastair Johnston, it was dated 26 October 2015 and covered the period from then until 26 January 2016.  It certified that the Applicant was unfit for work/study for that period. 

18. Notwithstanding the contents of that certificate, the Applicant had no difficulty in participating in a directions hearing last week and indeed, until the last couple of days, was indicating his desire to proceed with the hearing, even to the point of providing new arguments in support of his case.

19. At my instruction, the case officer asked the Applicant whether there was more contemporaneous or recent medical evidence on which he intended to rely.  I was told that there was not, and that the round trip to the Applicant’s doctor was 300 kilometres.  In those circumstances, I raised the possibility of the Applicant arranging for his doctor to give evidence by telephone.  Regrettably, that suggestion was not taken up.

20. The difficulty with the medical certificate of 26 October 2015 is that it fails to address the specific matters presently affecting the Applicant and which are said to prevent him from proceeding with the hearing.  There is therefore a lack of any medical evidence to support the Applicant’s claim of his inability to appear on the application for an adjournment or to proceed with the hearing.  That is particularly so when one looks at what the Applicant has been capable of doing in recent days: 

    (a)he attended, and participated in, last week’s telephone conference without any apparent difficulty;

    (b)he proceeded to prepare new arguments in support of his case, sending me a letter with his further contentions;

    (c)over the last few days, he has been sufficiently alive to issues affecting his case to consider lodging a Disability Support Pension claim with the aim of then having it backdated to 16 December 2014, in order to avoid the ordinary waiting period applicable to the Newstart Allowance; 

    (d)he has considered pursuing a CDDA claim;

    (e)he has engaged in correspondence concerning the adjournment;

    (f)he has engaged in correspondence with the case officer concerning the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) relating to dismissal and reinstatement;

    (g)he has consulted a lawyer overnight in order to raise issues of discrimination.

21. Taken separately or together, those matters sit uncomfortably with the picture the Applicant seeks to portray, of someone who is completely unable to conduct their affairs, even to the extent of being unable to answer the telephone.

22. In the absence of corroborating medical evidence addressing his capacity (or lack of capacity) to perform the tasks that I have identified, I do not believe there is a compelling reason- at this late stage – to grant an adjournment.

23. I also have serious reservations as to the utility of adjourning the matter to the week of 11 January 2016, as the Applicant has requested.  The medical certificate on which the Applicant seeks to rely covers the period to 26 January 2016.  If an adjournment were to be granted as the Applicant has asked, there is no guarantee that the same issues which have arisen in recent days will not be ventilated again.

24. I am also conscious of the fact that the central issue in the Applicant’s case is narrowly confined. Having regard to the Tribunal’s objectives set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth), it seems to me that to adjourn this matter indefinitely, in order to allow the Applicant to make and then pursue a DSP claim and then seek backdating of it, would be contrary to the Tribunal’s objectives of conducting reviews in a manner that is fair, just, economical and quick. Given the confined nature of the central issue, it would also be completely disproportionate to continually list, and adjourn, this matter in order to effectively enable the Applicant to “hedge his bets”. In saying that I am conscious of the Applicant’s previous acknowledgement of the costs associated with bringing this matter back on for hearing.[1]

    [1] See email from the Applicant to the Tribunal dated 25 November 2015 reproduced at paragraph [10] of these reasons.

25. For those reasons, the Applicant’s application for an adjournment of the hearing is refused.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated 10 December 2015

Date of hearing	3 December 2015
Applicant	No appearance
Solicitors for the Respondent	Australian Government Solicitor