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

[2023] AATA 87

GSRJ and Secretary, Department of Social Services (Social services second review) [2023] AATA 87 (20 January 2023)

Division:GENERAL DIVISION

File Number:          2022/10631

Re:GSRJ

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:20 January 2023

Date of written reasons:        6 February 2023

Place:Melbourne

The Tribunal is satisfied that the parties settled the proceedings which are the subject of this application for review by agreement in writing, which was given to the Tribunal and acknowledged on 20 October 2017. Therefore, the application for review is taken to have been dismissed under s 181 of the Social Security (Administration) Act 1999.

There being no error identified in the dismissal, the Tribunal does not have jurisdiction to reinstate the application.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SERVICES – benefits, entitlements and pensions – where applicant is recipient of DSP – where applicant incurred recoverable DSP debt – where debt affirmed by Social Services and Child Support Division of Tribunal – where applicant sought second tier review by General Division of Tribunal – where applicant and respondent came to terms and signed an agreement to settle proceedings under Social Security (Administration) Act – where that agreement was given to Tribunal – where in such a case application is taken to have been dismissed by operation of law – where applicant now seeks review of first tier decision – reinstatement power confined to case where dismissal was in error – error not found – Tribunal has no jurisdiction to reinstate matter in these circumstances – written reasons

PRACTICE AND PROCEDURE – where application before the Tribunal deemed to have been dismissed by operation of law – power to reinstate an application in such circumstances – power is only available if Tribunal satisfied dismissal was in error – reinstatement claiming dismissal in error must be sought within 28 days or such longer period as may be allowed by Tribunal – no error in this case so reinstatement power not enlivened

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35, 42A, 42C
Social Security Act 1991 (Cth), s 1237AAB

Social Security (Administration) Act 1999 (Cth), s 181

Cases

Mori and Secretary, Department of Social Services; Re: [2013] AATA 737

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

REASONS FOR DECISION

Senior Member D. J. Morris

6 February 2023

Preliminary

1. This matter is about whether an applicant can revisit a matter when he or she has signed a notice of agreement to settle proceedings under s 181 of the Social Security (Administration) Act 1999 (‘the Administration Act’) in relation to the matter and that agreement has then been given to the Tribunal.

2. On 20 January 2023, the Tribunal, being satisfied that there are grounds to prohibit the publication of the name of the Applicant in these proceedings, issued an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). She will be known by the anonym ‘GSRJ’.

   Interlocutory hearing

3. On 20 January 2023, the Tribunal held an interlocutory hearing by telephone, as it is able to do under s 33A of the AAT Act. GSRJ participated and made oral submissions. The Respondent was represented by Ms Raveendiran, Acting Senior Government Lawyer from the litigation branch of Services Australia, a constituent part of the Department of Social Services (‘the Department’).

4. The Tribunal had regard to GSRJ’s application for review dated 29 December 2022, together with an accompanying statement, and a volume of Respondent’s Submissions submitted on 19 January 2023 (which will be referred to as ‘A’ documents below).

5. At the conclusion of the interlocutory hearing, the Tribunal dismissed the matter for want of jurisdiction, and advised that it would provide written reasons to the parties.

   Written reasons for oral decision

6. The Tribunal provides these written reasons to the Applicant and the Respondent to explain in more detail why the matter was dismissed. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

7. In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 20 January 2023, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but I have included more detail of the provisions in the relevant legislation relating to when parties come to an agreement, and the matter is subsequently deemed to be dismissed. The purpose of these written reasons is to assist GSRJ.

   Background

8. GSRJ has been a recipient of a Disability Support Pension (‘DSP’) since 2002. Her entitlement to a DSP is not the subject of these reasons.

9. In March 2016, following a review where a ‘data match’ took place between the Department and the Australian Taxation Office, it was discovered that not all of GSRJ’s income from employment had been taken into account in calculating her rate of DSP. She had therefore been overpaid DSP, which overpayment had to be repaid to the Commonwealth.

10. An initial debt was calculated of $4,719.45 for the period from 6 July 2010 to 19 May 2014 and the debt was raised on 17 March 2016. GSRJ asked for the debt to be recalculated by the Department, and provided her payslips. The debt was recalculated and, as a result, raised to $8,913.32 for the period from 25 May 2010 to 30 November 2015.

11. GSRJ thought the debt was too high, and she asked that it be reviewed by an authorised review officer (‘ARO’), who is an officer of the Department not involved in the original decision.

12. On 9 May 2017, the ARO decided to affirm the decision. The ARO decided that GSRJ did report her income but that her payslips and information from the Australian Taxation Office (‘ATO’) showed she had earned more than she declared. The ARO found no reason to waive the debt.

13. On 25 May 2017, GSRJ applied to the Social Services and Child Support Division of this Tribunal for review of the ARO’s decision (‘AAT1’). The matter was heard by Member Dr Breheny on 22 August 2017 by telephone, and GSRJ made submissions and gave evidence. At the end of the hearing, the Member deferred making a decision to allow GSRJ to provide further information, which she did.

14. On 4 September 2017 AAT1 affirmed the decision.

15. Dissatisfied with the AAT1 decision, on 5 October 2017, GSRJ exercised her right to seek a second review by the General Division of the Tribunal.

16. In October 2017, GSRJ and the Respondent signed a notice of agreement to settle proceedings. The notice of agreement stated that the Secretary of the Department had agreed to reduce GSRJ’s debt to $4,913.32 by waiving an amount of $4,000 under s 1237AAB(2) of the Social Security Act 1991 (‘the Social Security Act’).

17. The notice of agreement relevantly said:

    NOTICE OF AGREEMENT TO SETTLE PROCEEDINGS

    1The parties have reached an agreement (other than in the course of mediation) as to the terms of a decision of the Tribunal that would be acceptable to the parties.

    2The parties have agreed to settle the matter in the following terms:

    (a)On 4 September 2017 the Administrative Appeals Tribunal (Social Services and Child Support Division) affirmed a decision made by an authorised review officer of the Department of Human Services on 9 May 2017 that [GSRJ] had a legally recoverable disability support pension debt totalling $8,913.32 for the period 25 May 2010 to 30 November 2015 (“the debt”).

    (b)         the debt is the subject of this application.

    (c)the Secretary has agreed to reduce the debt to $4,913.32 by waiving an amount of $4,000.00 under subsection 1237AAB(2) of the Social Security Act 1991.

    3.[GSRJ] has accepted this offer and will withdraw her application to the Administrative Appeals Tribunal (General Division).

    4.The application for review of the decision that is the subject of these proceedings is taken to have been dismissed pursuant to section 182 [sic] of the Social Security (Administration) Act 1999.

18. GSRJ signed the notice on 17 October 2017 and a representative of the Respondent signed it on 19 October 2017 (A, p 29). It was then submitted to the Tribunal.

19. On 20 October 2017, an officer of the Tribunal wrote to the parties advising that, as a consequence of it having been received, the application had been dismissed by the Tribunal (A, p 30).

20. A legal officer of the Department wrote to GSRJ on 19 October 2017, confirming that the Secretary had implemented the agreement to waive $4,000 of the recoverable debt and that the Department’s computer payments record system had been adjusted accordingly. The officer provided computer printouts to verify to the Applicant that this debt waiver had been given effect in the Department’s payments and entitlements system.

    Applicant’s submissions

21. In a submission to the Tribunal dated 20 December 2022 (and received on 29 December 2022) GSRJ relevantly said:

    At the end of the hearing, the Member stated it was impossible to work out (5 different employers, different payrates, & penalty rates). One of my employer noted the payroll system had changed in the period I required. Approximately 30 mins after the AAT hearing, I received a phone call from CL, lawyer. To say something like – he/they can make an offer. The lawyer was short & quick, just wanted to get this case out of the way, ticked off, and finished with. It was an offer to close down, because the member had said impossible. Felt I had to agree to this offer, a Lawyer called – had no choice, only pleasing Lawyer & CL, put on the spot.

    Claim the decision was wrong

    Not asked if I wanted to have time to make decision to take the offer. It was short & rushed, I did try to ask question, the Lawyer was short, direct to the point, this is the offer, a hurry for me to agree to his offer I felt, and in his words the amount will be reduce to half – thereabouts. I didn’t think I had a choice or a say. I said from the beginning CL didn’t get this right, that was impossible that I owed what they claimed. I have been paying off the amount since then and still owe an amount. I didn’t agree, in a way I given no choice, and a demand to agree, the solution to close my case.

    Respondent’s submissions

22. The Respondent submitted that in order for the General Division of the Tribunal to have jurisdiction to review the AAT1 decision, GSRJ will need to apply for reinstatement of the dismissal or lodge an extension of time application to seek review of the AAT1 decision.  The Respondent submitted that it would be open for the Tribunal to accept her application for review received on 29 December 2022 as an application for reinstatement.

23. The Respondent submitted that if the matter is treated as an application for reinstatement, it should be refused. The Respondent further submitted that in order to reinstate the application, the Tribunal must be satisfied that the application was dismissed in error; and if there was no error, the application cannot be reinstated under s 42A(10) of the AAT Act. The Respondent further noted that reinstatement in a case where an error is found in the dismissal must be applied for by a party within 28 days (s 42A(11)(a)), or such longer period as the Tribunal may in special circumstances allow (s 42A(11)(b)).

24. The Respondent further submitted that it noted that the agreement signed by GSRJ and the Department’s representative in 2017 incorrectly stated that the application was dismissed under ‘section 182’ of the Administration Act, rather than s 181. The Respondent submitted that the intent and substance of the settlement was true, and the agreement or meeting of minds between the parties was unaffected by the typographical error. In support of that submission, the Respondent noted that the agreement correctly stated that the debt would be reduced under s 1237AAB of the Social Security Act, which gives the Secretary the power to settle proceedings before the Tribunal relating to the recovery of a debt.

25. In addition, the Respondent agreed that the debt was, in fact, reduced by $4,000 in accordance with the agreement, and that GSRJ had further indicated her acceptance of the agreement by continuing to repay her debt by having made 73 repayments since she signed the agreement.

    THE LAW

26. Section 181 of the Administration Act states:

    Settlement of proceedings before the AAT

    (1)       The Secretary may agree, in writing, with other parties to settle proceedings before the AAT that relate to the recovery of a debt.

    (2)       If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to be dismissed.

27. Section 1237AAB(2) of the Social Security Act states:

    Settlement of proceedings before the AAT

    (2)       If the Secretary has agreed to settle proceedings before the AAT relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

28. Section 42A(10) and (11) of the AAT Act provide:

    (10)     If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the  circumstances.

    (11)     For the purposes of subsection….(10), the period is:

    (a)         28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or

    (b)         If the party requests an extension – such longer period as the Tribunal, in special circumstances, allows.

    CONSIDERATION

29. I am satisfied, on the basis of the notice of agreement before the Tribunal, and confirmation by the Applicant that she signed the notice on 17 October 2017, that the application to the General Division lodged by GSRJ on 5 October 2017 was dismissed by operation of law.

30. It is clear on the evidence that an offer was made by the Respondent to waive half of the debt which had been calculated was owed by GSRJ because, essentially, of overpayment to her of DSP as account was not taken of all her other earnings.

31. GSRJ signed the agreement, and it was lodged with the Tribunal. That lodgement, which was acknowledged by the Tribunal on 20 October 2017, fulfils the requirements of s 181(2) of the Administration Act. The lodgement brings the application to a close because, by that action, the application relating to the debt is taken to be dismissed.

32. In addition, I am satisfied that the parties to the agreement have acted consistently with its terms. For the Secretary’s part, he initiated action by his officers to reduce the debt by $4,000 and confirmed to GSRJ that had been done by letter dated 19 October 2017.

33. For the Applicant’s part, she has been paying off the remainder of the debt by periodic payments, as she confirmed at the interlocutory hearing.

34. Therefore, to use a contract analogy, there was (a) an offer; (b) acceptance; (c) consideration; and (d) performance. The offer was made by the Secretary to halve the debt. That offer was accepted by the Applicant. The consideration was the waiver of $4,000 of the calculated debt. The performance – or action taken – by the Secretary was that the record of the debt on the Department’s payments system was reduced to $4,913.32. The action taken by the Applicant is that she has been paying off the debt by regular instalments for the last approximately five years. It was agreed at the hearing the remaining amount of the debt is $1,816.34.

    Was the dismissal in error?

35. While s 42A(10) of the AAT Act allows reinstatement of an application where the Tribunal is satisfied that the application was dismissed in error, that subsection is limited by s 42A(11), which provides that a party must apply to the Tribunal within 28 days of the dismissal, or such other longer time as the Tribunal in special circumstances may allow.

36. I find that GSRJ’s 2017 application was taken to have been dismissed on 20 October 2017, which is the date an officer of the Tribunal wrote to the parties advising that the notice of agreement had been received and that Tribunal now records GSRJ’s application as dismissed. Neither party sought reinstatement until GSRJ lodged her fresh application to the General Division on 29 December 2022. Plainly that is well beyond the 28-day period allowable. It was not necessary for me to consider general principles relating to whether to extend time in this case because, on the evidence before me, I am satisfied that the application was not dismissed in error.

37. Although the provisions in s 42A of the AAT Act presuppose that it is a Tribunal Member who has dismissed a matter, I am satisfied that ss 42A(10) and (11) may be applicable to a case where there has been a deemed dismissal by operation of another enactment, which in this case is s 181 of the Administration Act.

38. If there is an argument that the notice of agreement signed by GSRJ and the Respondent in October 2017 is defective because it cited the wrong section of the Administration Act, it is not an argument that has any merit. I accept the Secretary’s submissions that there was a meeting of minds and that GSRJ voluntarily signed the agreement, and then it was signed by the Secretary’s representative. The Applicant herself did not say that she signed it under a misapprehension. The typographical error in the citation of the relevant section does not undermine these facts, nor the fact that each party subsequently fulfilled their obligations under the agreement.

39. I do observe that the form of the notice of agreement to settle proceedings signed by the parties in October 2017 is deficient in other respects. It suggests at item 1 that the parties have reached an agreement ‘as to the terms of a decision of the Tribunal’. This is the wording commonly used for a consent agreement under s 42C of the AAT Act. A dismissal under s 181 of the Administration Act does not involve any decision of the Tribunal, it comes about because of an agreement between parties notified to the Tribunal.

40. Item 3 of the agreement states that GSRJ ‘will withdraw her application to the Administrative Appeals Tribunal (General Division)’. That clause may be for the benefit of an applicant, so he or she is clear as to the result if they sign such an agreement, but in fact, there is no action that needs to be taken by an applicant in terms of his or her application to the Tribunal. It is the lodgement of the notice of agreement with the Tribunal that triggers the deemed dismissal under s 181(2) of the Administration Act.

41. GSRJ’s written submissions, in part reproduced above, and the flavour of which was reiterated by her at the interlocutory hearing, were that she felt ‘rushed’ to accept the agreement proffered to her by the Department’s lawyer. She wrote that she felt ‘put on the spot’, that she had ‘no choice’ and that it was a ‘demand’ that she agree to the offer.

1. While the Applicant may genuinely make them, I cannot accept those submissions. By her own written submissions, GSRJ said she received a telephone call from the Department’s lawyer. It is reasonable to deduce that she indicated her agreement to sign a notice on the basis that half the debt would be waived. She was subsequently provided with the notice in written form, which she signed. She could have changed her mind at any stage between her oral agreement on the telephone and when she signed the notice. She was free to reject the Secretary’s offer and to avail herself of her right to have a substantive second-tier hearing.

2. I note that Member Breheny said in the AAT1 decision record (at [12]):

   I have carefully examined the payslips and the way the income has been apportioned to the Centrelink pay periods, but I could not detect errors. [GSRJ] at times over-reported her income and at other times she under-reported. I appreciate that she encountered many difficulties in trying to report her earnings correctly.

   (Emphasis added)

3. Member Breheny then went on to list some examples of both under- and over-reporting by the Applicant. It is evident to me that Member Breheny went to painstaking efforts to consider the submissions of GSRJ that she felt the debt was too high by compiling a representative table showing different employers the Applicant had had, what the ATO said she had been paid, and what she had declared to the Department on different dates – which was sometimes more, sometimes less than the ATO recorded.

4. I referred to this at the interlocutory hearing and made clear to GSRJ that it was not a conclusion of AAT1 that she had deliberately underreported her income. However, the facts remain that the data matching with the ATO revealed that more employment income had been earned over the relevant period than had been reported. That meant a consequential effect on the rate of DSP payable to her, which should have been reduced over the period to take account of the other income.

5. By accepting the terms of the agreement that she signed in October 2017 and accepting the periodic repayments of the debt up until December 2022, GSRJ has been in agreement with, if perhaps not completely content with, the repayment. I accept that she feels she could never have accumulated such a debt, but this is not something that she can now agitate before the Tribunal.

6. In 2013, Member Webb considered a matter where an applicant requested reinstatement after she had signed terms of agreement for a debt that led to dismissal under the Administration Act – Re: Mori and Secretary, Department of Social Services [2013] AATA 737 (‘Mori’). In refusing reinstatement, the Tribunal set out various submissions of Ms Mori about why she signed the agreement, and then said:

   10. At this point it is important to observe that under s 182(2)[*] of the Social Security (Administration) Act 1999 (the Social Security Administration Act), in the event that the Secretary and a claimant agree to settle on terms in respect of the recovery of a debt, the proceedings in the Tribunal are taken to be dismissed. Thus, once signed terms of agreement were lodged in the Tribunal, the application was taken to be dismissed by operation of s 182(2) of the Social Security Administration Act. There is no error in the manner in which Ms Mori’s application was taken to have been dismissed.

   …

   15. Finally, I accept that Ms Mori now regrets the decision she made to sign the terms proposed to her by the Secretary, and that she wishes that she had not done so. Unfortunately for her, regret at having done something, or wishing it was not done or could be undone, having had a change of heart, does not constitute an error for the purposes of s 42A(10).

   16. In the absence of error, the Tribunal’s discretion to reinstate an application under s 42A(10) is not enlivened and the application cannot be reinstated…

   (Emphasis added)

   *At the time of this decision in 2013, s 182 of the Administration Act was the relevant provision. It was amended in 2015.

7. The Tribunal agrees with the general conclusions Member Webb came to in Mori, noting that GSRJ is not making similar submissions to those Ms Mori made, save that she felt ‘rushed’ and ‘put on the spot’.

8. What is common in both Mori and this case is that GSRJ now regrets signing the notice of agreement and wishes she had not done so.

9. We all sometimes have a change of heart and wish we had not done something. However, in this case, the thing that GSRJ now regrets doing – signing the notice of agreement – was significantly beneficial to her because the agreement forgave half of the debt.

10. The provisions of s 42A(10) of the AAT Act allow discretion for reinstatement of an application if the Tribunal is satisfied it was dismissed in error. They could hypothetically be relevant where it could be established that, for instance, the Secretary did not reduce the debt, or where the Tribunal might be satisfied that the Applicant did not sign the notice of agreement or did not have capacity to sign it. But none of those arguments is put here. Therefore, the discretion in s 42A(10) does not come into operation. The dismissal under s 181 of the Administration Act was not in error.

11. At the hearing, the Respondent’s lawyer, Ms Ravindeeran, made clear to GSRJ that, should she encounter difficulties in repaying the remaining portion of the debt, she can approach the Department requesting reconsideration, either to change the rate of repayment or to make a case for hardship. If she does so, and is not satisfied with the outcome, it would then be open to the Applicant to make a fresh application to the Tribunal.

    CONCLUSION

12. The Tribunal found that as the matter was dismissed under s 181 of the Administration Act, the application has been concluded. It further found that the provisions of s 42A(10) of the AAT Act allowing direction to reinstate an application that was dismissed in error are not enlivened in this case. There is no evidence of error.

    DECISION

13. The Tribunal is satisfied that the parties settled the proceedings which are the subject of this application for review by agreement in writing which was given to the Tribunal and acknowledged on 20 October 2017. Therefore, the application for review is taken to have been dismissed under s 181 of the Administration Act. There being no error identified in the dismissal, the Tribunal does not have jurisdiction to reinstate the application.

    ADDENDUM

14. The four paragraphs that follow this paragraph are not to be regarded as part of the reasons for the decision.

15. Following the hearing, the Applicant contacted the Tribunal’s Associate and advised she would be sending in some further material. The Associate informed the Applicant that an oral decision had been made, but, if she sent in any material, it would be forwarded to the Senior Member for such action, if any, that he decided to take.

16. On 1 February 2023, GSRJ sent an email with various comments and with attachments. The attachments were three letters from Centrelink, part of the Department. Relevantly, a letter dated 20 May 2020 advised the Applicant that she had been identified as a group member of a class action being initiated in the Federal Court of Australia about the Department’s automated debt recovery system, called colloquially ‘robodebt’.

17. A further letter from the Department dated 1 November 2021 advised GSRJ as a group member of the class action, that the Federal Court had approved a settlement that was being distributed to eligible group members.  However, the letter went on to say that because of the category of her debt, she was a group member who had been identified as not entitled to monies from the settlement. In relation to GSRJ’s DSP debt, this letter stated:

    The debt used averaged Australian Taxation Office income information. The amount repaid was less than what was owed after the debt was recalculated using verified income information.

18. Having made an oral decision on 20 January 2023, the Tribunal is functus officio. That means, apart from the administrative act of providing written reasons, which was foreshadowed at the end of the interlocutory hearing, the Tribunal can take no further action in relation to GSKJ’s attempt to put further material before the Tribunal. As stated above at paragraph [52], it is open to the Applicant to approach the Department about the remaining portion of the debt. She may wish to provide the material she sent to the Tribunal on 1 February 2023 to the Department if she chooses so to do.

60.     I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

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

Associate

Dated: 6 February 2023

Date of interlocutory hearing:	20 January 2023
Applicant:	GSRJ (Self-represented)
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia