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

[2019] AATA 750

Gedeon and Secretary, Department of Social Services (Social services second review) [2019] AATA 750 (23 April 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1754

Re:Joël Gédéon

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:23 April 2019

Date of written reasons:        24 April 2019

Place:Sydney

The operation of the Respondent’s decision of 21 December 2018 to cancel the Applicant’s Disability Support Pension is stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal.

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

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – cancellation of disability support pension – application for a stay of decision – principles governing a stay – prospects of success – prejudice to the respondent – recovery of overpayments – financial hardship – public interest – whether the appeal might be rendered nugatory – stay granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991

CASES

Dekanic v Tax Agent’s Board of New South Wales (1982) 6 ALD 240

Jo Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62

Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146

Re Commonwealth of Australia and Quirke [1986] AATA 57

Re Repatriation Commission and Delkou (1985) 8 ALD 454

Scott v Australian Securities and Investments Commission [2009] AATA 798

Yolbir v Administrative Appeals Tribunal [1994] 33 ALD 8

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Chris Puplick AM, Senior Member

24 April 2019

APPLICATION FOR STAY

1. The matter before the Tribunal is an application, made by Mr Joël Gédéon (the Applicant) for a stay of a decision made by the Secretary (via her delegate) on 21 December 2018 to cancel the Applicant’s Disability Support Pension (DSP).

2. The decision of 21 December 2018 had been affirmed by an Authorised Review Officer (ARO) of the Department on 22 February 2019 and by the Social Services and Child Support division (AAT1) of this Tribunal on 21 March 2019. However it is the original decision and not that of either the ARO or the AAT1 which is the subject of this Tribunal’s decision.[1]

   [1] Yolbir v Administrative Appeals Tribunal [1994] 33 ALD 8.

3. The Tribunal has power to grant stays of such administrative decisions under section 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) which is in the following terms:

   (2)  The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking 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 to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

4. There are a number of grounds upon which the Tribunal may make a decision to grant a stay, although as a previous President of this Tribunal has stated:

   In applying s 41, the principles which are adopted in other places for other purposes have no direct relevance. Moreover, the jurisdiction of the Tribunal is wide and diverse and it is not practicable to lay down a principle or a set of specific principles applicable to every type of case in respect of which there may be an application for a stay.[2]

   [2] Dekanic v Tax Agent’s Board of New South Wales (1982) 6 ALD 240 at [240] per Davies J.

5. Generally, the Tribunal adopts an approach in which “the power conferred by s 41(2) needs to be construed broadly”[3] and where the interests of all parties are given full consideration.[4]

   [3] Re Repatriation Commission and Delkou (1985) 8 ALD 454 at [10] per DP Hall.

   [4] Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146 at [34] per DP Forgie.

6. Reasons may include (but are not limited to) such matters as

   ·the prospects of success of the application at final hearing[5]

   ·the prejudice to any party if the stay is not granted[6]

   ·the public interest[7]

   ·the possibility of the merits hearing being rendered nugatory in the absence of a stay[8]

   ·the difficulties which may be faced by the Commonwealth in recovering potential over-payments[9]

   ·the hardship to any of the parties of a decision for or against a stay.[10]

   [5] Scott v Australian Securities and Investments Commission [2009] AATA 798.

   [6] Idem.

   [7] Idem.

   [8] Idem.

   [9] Re Commonwealth of Australia and Quirke [1986] AATA 57.

   [10] Idem.

   MATERIAL FACTS IN RELATION TO THE APPLICANT’S DSP

7. It has been difficult to establish exact details of the DSP payments made to the Applicant because the details given in the decision by AAT1 are insufficient (and to a certain extent, misleading as a result) as are the details in the Respondent’s Outline of Submissions Opposing Application for a Stay (dated 15 April 2019).

8. The Applicant had a serious motor vehicle accident in December 1998 and at some time, possibly around May 1999, was first granted the DSP. In neither the decision of the AAT1, nor the Secretary’s Statement is this initial payment mentioned although it has been averted to at all stages by the Applicant. In the oral hearing on 23 April 2019 the Respondent confirmed the 1999 date.

9. At some stage (again the exact date is not clear in any evidence before the Tribunal) in 2001 the DSP was cancelled because the Applicant had received a compensation payment resulting from the accident. This payment resulted in his being subject to a preclusion period under s 1170 of the Social Security Act 1991 (the Act) which lasted until August 2008. At that stage his DSP was restored.

10. In 2005 it appears that the Applicant was successful in an application before the Industrial Relations Commission (IRC) of NSW in being declared to have a total and permanent disability as a result of the accident.[11]

    [11] Jo Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62.

11. In 2013 the Applicant was involved in yet another motor vehicle accident which resulted in further aggravation to his injuries. There was another financial compensation payment made resulting, again, in a preclusion period. However, it appears that instead of not being paid his DSP, the Applicant’s insurer remitted to the Department a payment of some $51,000 in lieu thereof.

12. The Tribunal expresses its concern that the matters of the 1999 DSP; the 2005 IRC ruling and the 2013 preclusion payback were not matters brought to its attention by the Respondent in any submission, nor do they appear in any reasons advanced by the AAT1 in its determination.

13. Nevertheless, on 21 December 2018 a Job Capacity Assessor reviewed the Applicant and decided that he no longer qualified for the DSP. Furthermore in both Departmental and AAT1 calculations the Applicant was found not to meet the 20 point threshold specified under s 94 of the Act.

    CONSIDERATIONS

14. The Tribunal takes into account the following:

    1.The Applicant was assessed and received the DSP in 1999: he obviously satisfied the Department that he met the statutory requirements at the time;

    2.The Applicant’s DSP was cancelled as a result of his receiving a compensation payment with an attached preclusion period;

    3.The Applicant’s DSP was restored in 2008 after the expiry of the preclusion period and presumably on the basis that he was again/still qualified to receive payment;

    4.A decision was made by the Respondent following the 2013-related compensation payment to recover monies from the insurer rather than enforce a further preclusion period on the Applicant;

    5.At some time in 2012 or 2013 (as claimed by the Applicant and not refuted by the Respondent) the Applicant was paid a Carer’s Allowance and a Mobility Allowance, both of which require assessment under the Impairment Tables, a new version of which commenced in 2011;

    6.A Job Capacity Assessor, in 2018, found that, after the Applicant had been qualified for the DSP from 1991 to 2001 and from 2008 onwards, with assessments for other allowances having been satisfied, the Applicant was no longer qualified for the DSP;

    7.The Secretary now calls into question whether certain impairments suffered by the Applicant are truly “permanent” because they may not meet the requirements of ss 26, 27 and 94 of the Act and the definitions of being “fully diagnosed”, “fully treated” and “fully stabilised” under s 6 of the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

    8.The Applicant claims that his impairments are sufficient to meet the 20 point threshold and were so in December 2018. He now claims to be bedridden.[12] Nevertheless, from April to June 2018 he was well enough to travel to the Republic of Korea and from 22 November 2018 to 22 January 2019 he travelled to Canada.[13]

    [12] Applicant’s Submission to the Tribunal dated 11 April 2019.

    [13] Section 37 Tribunal Documents at [296].

15. The Tribunal is aware of the considerable amount of medical evidence placed before it in the section 37 Tribunal documents and that the Applicant contests certain reported conclusions.

16. There are sufficient areas of contested claims, untested claims and unclear documentary evidence for it to be obvious that there is no way that this matter can be determined with any finality other than by a full merits hearing.

17. Adopting the position taken by the Tribunal in Delkou: “I do not consider it appropriate that, in the context of a stay application, I should endeavour to resolve these questions.”[14]

    [14] Re Repatriation Commission and Delkou (1985) 8 ALD 454 at [462].

18. The Tribunal expects that both parties will assist the Tribunal in reaching a decision by providing a clear chronology and documentary evidence in support of their position prior to the substantive hearing, especially in relation to the Applicant’s history of receiving the DSP and other allowances and determinations made by other Courts or Commissions.

19. It is true that were the final determination to be unfavourable to the Applicant he would be facing a possible debt to the Commonwealth under s 1223B of the Act.

20. It is also unclear as to the Applicant’s current state of “hardship” given his claims on the one hand and his current qualification for and receipt of Newstart Allowance on the other.

21. On balance, the Tribunal believes that the evidence, such as it is, before the Tribunal compels a decision to maintain the status quo ante as far as the continued payments of DSP to the Applicant are concerned. Prima facie the Applicant must have some prospect of success in his application given his long history in receipt of DSP payments and his claims to have undergone more recent assessments using the current Impairment Tables.

22. The objectives of s 41(2) of the AAT Act in securing the effectiveness of the hearing and determination of the application for review will best be served by the granting of a stay.

    DECISION

23. The operation of the Respondent’s decision of 21 December 2018 to cancel the Applicant’s Disability Support Pension is stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 24 April 2019

Date(s) of hearing:	23 April 2019
Applicant:	By phone
Solicitors for the Respondent:	Ms S Pringle, Department of Human Services (by phone)