Ingham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 1068
•23 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1068
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5383
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL INGHAM Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr R Handley, Deputy President Date23 December 2010
PlaceSydney
Decision The application for a stay order is refused.
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Mr R Handley, Deputy President
For the reasons given orally on 23 December 2010, the Tribunal refused Mr Ingham’s application for a stay order. A written version of those oral reasons follows.
REASONS FOR DECISION
23 December 2010 Mr R Handley, Deputy President 1. Mr Ingham, who is aged 43, has applied for the review of a decision of the Social Security Appeals Tribunal (SSAT) to affirm a decision made by Centrelink to refuse Mr Ingham’s application for a disability support pension (DSP) on the ground that a lump sum preclusion period applied in respect of the payment of DSP to Mr Ingham from 1 September 2007 to 17 October 2014.
2. Mr Ingham has also lodged an application for a stay of the SSAT’s decision and it is this application that is the subject of these interlocutory proceedings.
Background
3. On 14 November 2005, Mr Ingham was injured at work as a result of which he received a brain injury. He was paid weekly compensation until 31 August 2007. The SSAT found that on 15 September 2009, Mr Ingham received compensation for permanent impairment and non-economic loss of $128,500. On 18 December 2009, he received a compensation settlement of $475,000 inclusive of costs and with $50,134.97 to be refunded to QBE Workers’ Compensation. This included a component for economic loss or lost capacity to earn. It appears from the file that Mr Ingham received $324,472.87 after all deductions had been made.
4. On 11 January 2010, Centrelink decided that Mr Ingham should be subject to a preclusion period in respect of the payment of the DSP he had been receiving from 1 September 2007 to 17 October 2014 and therefore decided to cancel payment of DSP to him. On 16 August 2010, Mr Ingham sought a review of this decision which was confirmed by the original decision-maker on 20 August 2010. He therefore sought a further review.
5. On 31 August 2010, Mr Ingham lodged a new claim for DSP. On 21 September 2010, Centrelink refused this claim.
6. On 21 September 2010, an authorised review officer confirmed the original decision. On 5 October 2010, Mr Ingham appealed to the SSAT which on 15 November 2010 affirmed the decision. On 14 December 2010, Mr Ingham applied to the Tribunal for a review of this decision and for a stay.
The Relevant Law
7. Section 41(2) of the AdministrativeAppeals Tribunal Act 1975 (Cth) (the AAT Act) provides the Tribunal with a discretionary power to make an order staying the operation and implementation of the decision under review. Section 41(2) states:
41(2) The Tribunal may, on request being made, as prescribed, 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.
8. The power is to be used “for the purpose of securing the effectiveness of the hearing and determination of the application for review”: Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320, at [13]. The power does not empower the Tribunal to make a stay solely to alleviate hardship. The issue of hardship is only relevant in relation to the purpose of securing the effectiveness of the hearing and determination of the review: Trewin and Secretary, Department of Social Security [1993] AATA 322 (Re Trewin), at [32]; McDonald; Department of Family and Community Services [2001] AATA 770, at [13]. Moreover, it is clear that the power is intended to preserve the situation existing prior to the reviewable decision and not to put the applicant in a different position to that in which he or she would have been prior to the reviewable decision.
9. Section 41(2) requires the Tribunal to form an opinion that the making of a stay order “is desirable … taking into account the interests of any persons who may be affected by the review”. The four factors that are widely recognised as being relevant to this are:
(a) the prospects of success or merits of the applicant’s case on a review;
(b) any prejudice to the parties or any other person if a stay is not granted;
(c) the public interest; and
(d) whether the review application, if successful, would be rendered nugatory or pointless if a stay is not granted.
(Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380)
10. Factor (b) has been held to encompass the interests of the parties affected by the review, in this case, for example, this would include any hardship caused to the Applicant by reason of the grant or refusal of the stay, and also prejudice caused to the Department if as a result of the stay, social security benefits are paid to the Applicant and the Department has little chance of recovering such payments, if, ultimately, it is determined that the Applicant is not entitled to those payments.
Evidence and Submissions
11. At the hearing of the stay application, Mr Ingham was represented by Linda Maidens of Newell Advocacy Inc., which supports people with disabilities in the north-west of New South Wales. The Secretary was represented by Glenda Heggen, a Centrelink advocate.
12. Ms Maidens explained that Mr Ingham suffered a brain injury which appears to affect his ability to manage his affairs. He commonly has very little recollection of recent events or of actions he has taken. He is currently living in a demountable in the backyard of his father’s house. His father is a pensioner and has been supporting Mr Ingham, but cannot afford to do so any longer. He has asked Mr Ingham to leave. Because Mr Ingham has no money, he has not been taking the medicine he requires. Ms Maidens said he suffers from suicidal tendencies. In the past, she has sought help for him from the local hospital because the mental health services have not been responsive to his need for support. The doctor at the hospital provided him with medication for three days only.
13. Ms Maidens said one of the difficulties is Mr Ingham’s location. He lives in a village about 50km out of town between Narrabri and Moree.
14. Ms Maidens said that Mr Ingham appears to have signed documents without understanding their effect. She suggested that the lump sum compensation he received should have been placed in the hands of a financial manager appointed by the Guardianship Tribunal. She agreed that there is a lack of evidence to explain how the compensation money was spent. The difficulty is that Mr Ingham often does not remember what money he has spent and when. Ms Maidens said it appears that money may have been removed from his bank account by a former girlfriend. Mr Ingham has also bought assets – cars, for example – and then resold them at a significant loss.
15. Ms Maidens asked that a stay be granted. In the meanwhile, Mr Ingham will be reassessed by the New England Brain Injury Rehabilitation Services.
16. Ms Heggen referred to two lists of expenditure provided by Mr Ingham and to inconsistencies between those lists. She also referred to bank statements he provided that document large sums of money withdrawn. For example, in the case of Mr Ingham’s Westpac account, over $200,000 withdrawn on 2 and 3 February 2010, which have not been explained. Ms Heggen said it also appears from the SSAT decision that Mr Ingham may still have assets that he can realise – a coin and stamp collection and jewellery – the proceeds of which can be used to support him while, for example, an urgent application is made to the Guardianship Tribunal for the appointment of a financial manager.
17. Ms Heggen said that the Respondent is concerned that if DSP payments to Mr Ingham are resumed, and it is later determined that he is not entitled to those payments, this will require the recovery of such overpayments, and will impose a further burden on Mr Ingham.
18. Ms Heggen suggested that the matter should proceed to an early hearing, and noted that the Respondent will wish to call Mr Ingham, his father Mr Noel Ingham and Mr Ingham’s former girlfriend, Ms Lang, to give evidence.
Discussion
19. I have considered the parties’ submissions and looked at the evidence provided to the Tribunal. There is no dispute that Mr Ingham suffers from a brain injury. According to a clinical assessment dated 21 September 2006, it is likely that this has affected his memory and capacity to sustain mental effort. There is no more recent report, although the file indicates that Mr Ingham has been prescribed medication for his condition which he states that he is not currently taking because he cannot afford it.
20. In my view, this is a situation which needs urgent intervention by the local community health services – although I appreciate that access to such services is difficult in the north-west region of New South Wales where Mr Ingham lives. Such evidence as I have also indicates a need for the appointment of a financial manager for Mr Ingham’s assets, or probably some legal assistance to ascertain whether certain assets held which Mr Ingham has purchased may be recoverable.
21. Essentially, what I have been presented with is a situation of present financial hardship, with a lack of clear evidence of how much of Mr Ingham’s compensation payments have been dissipated.
22. Such a situation of financial hardship is not one where it is appropriate for the Tribunal to order a stay of an SSAT decision. Section 41(2) of the Administrative Appeals Tribunal Act 1975 says that the making of stay orders must be used for the purpose of securing the effectiveness of the hearing and the determination of the application for review. There have been numerous decisions of the Tribunal where it has been held that financial hardship of itself is not a sufficient ground. For example, in Re Trewin, to which I referred earlier, Deputy President Forgie said, at [32], that section 41(2)
“…does not give me power to make an order to alleviate hardship pending the hearing.”
23. Nevertheless, financial hardship is certainly relevant when considering the prospects of the applicant of succeeding at the substantive hearing.
24. In terms of the Applicant’s prospects of success, the evidence available to the Tribunal currently does not of itself indicate that the SSAT decision is incorrect. There needs to be significant work done for the Applicant to gather together relevant evidence to clarify how the very significant compensation payments that he received were spent.
25. In terms of prejudice to the parties, the evidence at this stage suggests that Mr Ingham may be in financial hardship, but there are many unanswered questions about such assets as he still has and whether money he has spent may be recoverable. With regard to the Commonwealth, I am concerned that if DSP payments are made to Mr Ingham, and it is determined that he is not entitled to such payments, this may make recovery by Centrelink difficult and further complicate what is a very messy situation. The public interest requires, in my view, that Mr Ingham receives assistance for the management both of his mental health and his finances. This is not something in respect of which this Tribunal has any power. All I can do is strongly recommend that assistance be provided to Mr Ingham, as appropriate, by community mental health services and that consideration be given to the urgent appointment of a financial manager.
26. As I have said, I am not satisfied that I should order a stay of the Tribunal’s decision. I can arrange for there to be an early hearing of the substantive application so that there can be a determination on the review as soon as possible. However, it will be to the Applicant’s benefit for there to be a new medical assessment of his mental condition – and the Tribunal proceedings should await that assessment.
27. Currently, the matter is listed for a preliminary conference on 15 February 2011. I intend to leave that conference in place. After the conference, and once the Tribunal has been provided with all the relevant evidence, the matter will be heard as soon as possible. But setting a hearing date will need to await the outcome of the conference.
28. The application for a stay order is refused.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: ..............................................................................
AssociateDate/s of Hearing: 23 December 2010
Date of Decision: 23 December 2010
Applicant representative: Ms L Maidens, Newell Advocacy Inc.
Respondent representative: Ms G Heggen, Centrelink Advocacy
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