James and Secretary, Department of Social Services
[2017] AATA 523
•19 April 2017
James and Secretary, Department of Social Services [2017] AATA 523 (19 April 2017)
DivisionGENERAL DIVISION
File Number 2016/6788
ReMurray James
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
INTERLOCUTORY DECISION
TribunalKim Parker, Member
Date19 April 2017
PlaceMelbourne
The Tribunal refuses the Secretary’s application for dismissal of the application for review numbered 2016/6788 pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Kim Parker, Member
SOCIAL SECURITY - application for dismissal of substantive application - whether Tribunal satisfied that substantive application has “no reasonable prospect of success” – substantive application concerns eligibility for disability support pension - whether the applicant had a “continuing inability to work” – application for dismissal refused
Legislation
Administrative Appeals Act 1975 (Cth), s 42B(1)(b)
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), s 13Cases
Benjamin v Repatriation Commission (2001) 70 ALD 622
Re Filsell and Comcare (2009) 49 AAR 506
Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895
Re Preston and Secretary, Department of Family and Community Services [1999] AATA 614
Re Sazegar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 685
Soames v Secretary, Department of Social Services (2014) 63 AAR 217Re Williams and Australian Electoral Commission and Anor (1995) 38 ALD 366
REASONS FOR DECISION
Kim Parker, Member
19 April 2017
Introduction
On 15 December 2016, Mr James lodged an application (Application for Review) under the Administrative Appeals Act 1975 (Cth) (AAT Act) for review of a decision of the Social Services and Child Support Division of the AAT (AAT1) dated 8 November 2016. The AAT1 affirmed a decision made by an authorised review officer of the Department of Human Services – Centrelink on 15 August 2016 to reject Mr James’s claim for a disability support pension under the Social Security Act 1991 (Cth) (SS Act).
On 5 January 2017 the Tribunal received correspondence from the Secretary of the Department of Social Services (the Secretary) requesting that the Tribunal summarily dismiss the Application for Review under s 42B(1)(b) of the AAT Act, on the basis that it has “no reasonable prospect of success”. The Secretary’s primary contention was that Mr James was unable to satisfy s 94(1)(c) of the SS Act, being one of the mandatory eligibility requirements for the disability support pension. The Secretary contended that Mr James was unable to establish that he had a continuing inability to work or to undertake a training activity within two years, because he was working more than 15 hours per week at the relevant time.[1]
[1] Paragraph [8(c)] of these Reasons for Decision sets out the relevant period for this application.
The Tribunal is not satisfied that there is “no reasonable prospect of success” of the Application for Review for the reasons set out below. Consequently, the Tribunal refuses the Secretary’s application to dismiss the Application for Review under s 42B(1)(b) of the AAT Act.
Legislative basis for application for dismissal and principles to be applied
Section 42B of the AAT Act provides as follows:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
(2)If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3)The direction has effect despite any other provision of this Act or any other Act.
As a general proposition, the Tribunal’s power to dismiss an application under s 42B of the AAT Act should be exercised sparingly. In Re Filsell and Comcare (2009) 49 AAR 506, Deputy President Jarvis made the following observations in relation to the approach of the Tribunal when exercising its discretion under s 42B at 514:
(a)At paragraph [33], the power of the Tribunal to dismiss proceedings under s 42B is a power that should be used cautiously;
(b)At subparagraph [33(d)], if proceedings had no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, inappropriate to use the time and resources of the Tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing;
(c)At subparagraph [33(e)], applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the Tribunal’s time and resources would be wasted, and the Tribunal’s ability to provide a mechanism of review that if fair, just, economical, informal and quick (as required by s 2A of the AAT Act) would be impeded;
(d)At subparagraph [33(f)], medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available. Further, if the applicant is unrepresented, there is no obligation to file any document in this Tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this Tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant. All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the Tribunal to proceed cautiously when considering applications for dismissal under s 42B.
In the decision of Flick J in Soames v Secretary, Department of Social Services (2014) 63 AAR 217 at 227, the principles articulated by Deputy President Jarvis in Re Filsell and Comcare (2009) 49 AAR 506 were acknowledged by the Federal Court of Australia as principles to be applied in considering an application for dismissal under s 42B of the AAT Act.
More recently, the key principles relevant to the Tribunal’s powers under s 42B were summarised by Deputy President Alpins in Paraponiaris and Secretary, Department of Employment (2015) 68 AAR 143 at 149-150 which included the following considerations:
(a)The exercise of the Tribunal’s power to dismiss a proceeding summarily, must always be attended with caution and is not to be exercised lightly, as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way;
(b)The expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way”;
(c)The requirement that the Tribunal be satisfied that the application has “no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one; and
(d)Where the application requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application has “no reasonable prospect of success” and it is not enough that the applicant is unlikely to succeed in respect of such issues.
Factual background
For the purpose of the dismissal application, the following matters were not in contention as between the parties:
(a)Mr James advised the Department of his intention to claim disability support pension on 12 November 2015 and lodged his claim for disability support pension on 20 November 2015. Under s 13 of the Social Security (Administration) Act 1999 (Administration Act), the deemed date of Mr James’s claim for disability support pension was 12 November 2015;
(b)Mr James has been diagnosed as suffering from the medical condition of hyperhidrolysis. Hyperhidrosis is a disorder characterised by the increased production of sweat disproportionate to the amount required to compensate for environmental conditions or thermoregulatory needs. Surgery was performed on Mr James to alleviate the symptoms on 22 July 2015, however, this caused severe compensatory sweating (a known risk with this surgical procedure);
(c)The relevant period for determining qualification of disability support pension for Mr James, under Schedule 2, subclause 4(1) of the Administration Act, was 13 weeks following the deemed date of the claim, i.e., 12 November 2015 to 11 February 2016 (Relevant Period);
(d)Between 7 February 2011 and 28 February 2016 (which encompasses the Relevant Period), Mr James performed duties on a regular and systematic basis at Monash Health as a casual “Continuous Patient Observer/Cleaner”. During this time Mr James worked between 25 and 35 hours per week; and
(e)Mr James ceased duties at Monash Health on 28 February 2016 to undertake surgery on some hernias he had developed, at which time he was working on average 30 hours per week. His position was subsequently made redundant and Mr James has not returned to work at Monash Health since 28 February 2016.
Mr James has not performed any other work for any other employer on or after 28 February 2016.
The Secretary’s contentions in support of the dismissal application
The Secretary contends that Mr James has “no reasonable prospect of success” in the Application for Review as he could not satisfy s 94(1)(c) of the SS Act.[2]
[2] Paragraph [18] of the Secretary’s Outline of Submissions dated 5 January 2017.
Section 94 prescribes the criteria for eligibility of a person to receive a disability support pension under the SS Act and the relevant parts of this provision are reproduced below:
(1)A person is qualified for disability support pension if:
(a)The person has a physical, intellectual or psychiatric impairment; and
(b)The person’s impairment is of 20 points or more under the Impairment Tables; and
(c)One of the following applies:
(i) The person has a continuing inability to work:
(ii) The Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
…
(a)In all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)In all cases – either:
(i) The impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) If the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
(5)In this section:
…
“work” means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage: and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
The Respondent contends that Mr James cannot support the contention that he satisfies s 94(1)(c)(i) as he worked more than 15 hours per week during the Relevant Period “as supported by contemporaneous evidence, including Mr James’s own evidence”. [3] As mentioned above, Mr James does not dispute that he worked more than 15 hours per week during the Relevant Period.
[3] Paragraph [25] of the Secretary’s Outline of Submissions dated 5 January 2017.
Mr James’s contentions in opposition to the dismissal application
Mr James contended that he was only able to work during the Relevant Period (or indeed, up to 28 February 2016) with considerable discomfort, or under sufferance, due to his condition. Mr James contended that it was only on account of the good will of his employer at that time and its preparedness to accommodate the difficulties he was experiencing while working that allowed Mr James to continue working.
It was contended by Mr James that he sweated excessively while he performed his physically demanding duties at the hospital. Mr James said he was frequently embarrassed by the sweating and resulting body odour. Mr James indicated that this impacted upon his self-esteem.
Mr James contended that his employer accommodated his situation by allowing him to change his uniform, which also required his employer to launder those uniforms. He would do this approximately three times during a seven-hour shift. Mr James said that his employer was becoming annoyed at having to do so. Mr James was concerned that other employers may not be prepared to be so accommodating.
An alternative basis of satisfying ss 94(1)(c) is the participation in “the program administered by the Commonwealth known as the supported wage system” – by way of s 94(1)(c)(ii). Mr James was asked by the Tribunal at the summary dismissal application whether he had participated in such a program during the Relevant Period, to which Mr James confirmed he had not. [4]
[4] The Tribunal notes that it ought not confine itself to the case put by the parties and that it has a broader duty to look beyond that: Benjamin v Repatriation Commission (2001) 70 ALD 622 at 623 per Moore, Emmett and Allsop JJ.
Consideration
The central issue in this dismissal application is whether it was possible for Mr James to satisfy the requirements of s 94(1)(c)(i), namely, that he had a “continuing inability to work” as defined under the SS Act, in circumstances where he did in fact perform work during the Relevant Period. This was the primary basis upon which the Secretary made the application for summary dismissal. In other words, the Secretary contended that it was not possible in Mr James’s circumstances for him to satisfy this criterion. Mr James was not otherwise able to satisfy s 94(1)(c), by meeting the alternative qualifying requirement arising under s 94(1)(c)(ii), as Mr James did not participate in a supported wage system program (see paragraph [16] above).
As set out above and as relevant to Mr James’s circumstances, the concept of a “continuing inability to work” is defined in the SS Act as “the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years” where in turn “work” means work “for at least 15 hours per week on wages that are at or above the relevant minimum wage”.
Mr James may face difficulty establishing that his impairment was of itself sufficient to prevent him from doing any work within two years of the Relevant Period. He did, in fact, work more than 15 hours per week during the Relevant Period and slightly beyond it (to 28 February 2016). However, the Tribunal notes previous applications where there was a live issue as to whether the applicant had a “continuing incapacity to work” despite the applicant having worked more than 15 hours per week during or immediately prior to the corresponding relevant period in those applications.
In Re Preston and Secretary, Department of Family and Community Services [1999] AATA 614 the applicant had been working underground in a colliery up until three days before submitting a claim for Newstart Allowance, which was later treated as a claim for a disability support pension. He ceased work after taking a redundancy package.
The Secretary contended that Mr Preston gave up full time employment because of the financial inducement of a redundancy package and that otherwise, he would have attempted to work until a later period of time which meant that as at the time he made the claim he did not have a continuity inability to do any work. The Tribunal considered that notwithstanding the fact that Mr Preston was working immediately before the relevant date, the question to be determined was “really a medical question”. [5]
[5] Paragraph [8] of Re Preston and Secretary, Department of Family and Community Services [1999] AATA 614.
The Tribunal concluded as follows:
“In view of the medical evidence that has been put before me, I have come to the conclusion that he would have been unable to work. The fact that he decided to take a redundancy package is, in itself, not an indication that he was able to work in the light of the positive evidence to the contrary.”
The Tribunal also concluded as follows: [7]
“The Department relies only on the fact that the applicant was working up to a few days before the relevant date. The evidence of Dr Qureshi’s certificate indicates that it must have been only with great difficulty that he continued to work. It would have been a triumph of hope over experience and medical advice to express a desire to continue to work until his 60th birthday. An ability to work cannot mean an ability to pursue employment whilst suffering an unacceptable level of pain or impairment. In this case, persons other than the applicant are better qualified to judge whether that level would have been reached by performance of any work.” (emphasis added)
[7] Ibid at paragraph [17].
Another example is Re Sazegar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 685 where Mr Sazegar continued to work more than 15 hours per week after he made the claim for disability support pension up until a date close to the commencement of the hearing of his application before the Tribunal, including for half of the relevant period. Mr Sazegar contended that Centrelink required him to work in order for him to receive the Newstart Allowance.
The general principle arising in Re Preston, as underlined in paragraph [23] above, was certainly acknowledged and applied by the Tribunal in Re Sazegar, even though the Tribunal ultimately distinguished Re Preston. It was distinguished on the basis that while Mr Sazegar worked with back pain, he was not “pursuing employment while suffering an unacceptable level of pain or impairment” and therefore, Mr Sazegar was found by the Tribunal not have a “continuing incapacity for work”.
The final conclusion reached by the Tribunal on the issue of eligibility in these two cases is not important for present purposes. What is important is that they demonstrate that the fact that an applicant performed work immediately before or during the relevant period was not regarded by the Tribunal as a clear or insurmountable obstacle to a claimant being able to satisfy that on the medical or other evidence that they had a “continuing inability to work”. An assessment still had to be made. Instead, those cases demonstrated that whether this criterion was met was essentially a medical question and part of that assessment may involve applying the principle as underlined in paragraph [23] above.
It flows from this that Mr James should be afforded his “day in court” [8] to present his case as to why the principle arising Re Preston, as underlined in paragraph [23] above, applies in his case (i.e. whether he met the description of “pursuing employment while suffering an unacceptable level of pain or impairment” while working during the Relevant Period (and slightly beyond the end of that period)). Further, Mr James should be afforded the opportunity to present medical or other evidence in support of his contention that as at the Relevant Period, he had a “continuing inability to work” within the next two years, despite the fact that he was performing work during the Relevant Period (and slightly beyond the end of that period).
[8] Re Williams and Australian Electoral Commission and Anor (1995) 38 ALD 366 at [69].
For these reasons, the Tribunal is not satisfied that Mr James has “no reasonable prospect of success” with respect to satisfying the necessary criterion in s 94(1)(c)(i) of the SS Act, as it cannot be said that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one and it is not enough that Mr James’s prospects of success might be considered by the Tribunal as unlikely. Accordingly, the Tribunal refuses to dismiss the Application for Review.
29. I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Kim Parker, Member
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Associate
Dated 19 April 2017
Date of interlocutory hearing 23 February 2017 Applicant By Telephone
Advocate for the Respondent Ms Jenna Molan Solicitors for the Respondent Department of Human Services,
Freedom of Information & Litigation Branch
[6] Ibid at paragraph [9].
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