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

[2016] AATA 417

Kenyon and Secretary, Department of Social Services (Social services second review) [2016] AATA 417 (22 June 2016)

Division	GENERAL DIVISION
File Number	2016/2403
Re	Rochelle Kenyon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	22 June 2016
Place	Melbourne

The Tribunal refuses the applicant's request under section 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of this review.

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

Mr Conrad Ermert, Member

SOCIAL WELFARE – social security payments – request for stay of decision – whether desirable to grant stay application– whether grant of stay would be prejudicial to the parties – where prospects of success unlikely – where grant of stay would be against public interest – where grant of stay would cause hardship – where refusal of stay would not render application for review nugatory – request refused.

LEGISLATION

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Mr Conrad Ermert, Member

22 June 2016

INTRODUCTION

1. On 9 February 2010 Ms Rochelle Kenyon was granted a disability support pension (DSP).  On 23 November 2015 the Department of Human Services (the Department) decided that Ms Kenyon was not qualified to receive DSP.  An Authorised Review Officer affirmed the decision on 8 December 2015.  Ms Kenyon applied for a further review and on 29 March 2016 the Social Services and Child Support Division of this Tribunal affirmed the decision.

2. On 4 May 2016 Ms Kenyon lodged a Request for Stay Order on the grounds that she had fallen into hardship, was struggling to pay basic living expenses and feared eviction and repossession.  On 23 May 2016 the Department lodged an objection to the application for a Stay Order.

   THE HEARING

3. The hearing was conducted via a telephone connection.  Ms Kenyon represented herself.  Mr Tim Noonan, a Solicitor with the Freedom of Information and Litigation Branch of the Department, represented the Department.

4. I had before me a letter titled “Re: Secretary, Department of Social Services and Rochelle Kenyon Stay Application – Hearing 15 June 2016” signed by Mr Noonan, undated but received on 10 June 2016. 

   SUBMISSIONS

5. Mr Noonan relies on the contentions contained in his letter.  He submitted that the date for determining Ms Kenyon’s qualification for DSP is 23 November 2015, that being the date of the notification to cancel her DSP.

6. He submitted that, in determining whether to grant a Stay Order, the Tribunal must consider the following factors:

   ·The prospect of success or the merits of the case on review;

   ·Whether there will be prejudice to the parties or anyone else if a Stay were not granted;

   ·Whether it is in the public interest to grant a Stay; and

   ·Whether the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

7. He summarised his contentions as:

   ·The prospects for success of the review were very low as:

   obased on the available medical evidence, the accepted conditions were not fully diagnosed, treated and stabilised and could not be assigned impairment ratings of 20 points or more as required by subsection 94(1)(b) of the Social Security Act 1991 (the Act); and

   othe Job Capacity Assessor reported that Ms Kenyon would be capable of working for 15 to 22 hours per week with intervention by 2017 and, as a result, she did not meet the ‘continuing inability to work’  requirements contained is subsection 94(1)(c) of the Act;

   ·As Ms Kenyon was in receipt of Newstart Allowance at the rate of $630 per fortnight, Ms Kenyon would not suffer hardship in the sense of substantial detriment;

   ·It was not in the public interest to effectively give Ms Kenyon an “interest free loan” until the date of the Tribunal decision in relation to the substantive application; and

   ·There was a real risk that, if the Stay Order were granted, the Department would not recover the payments made.

8. Responding to the assessment of her medical conditions, Ms Kenyon said her doctors were having difficulty preparing the required reports as her conditions were not under control.  She said her conditions were still being treated, they fluctuated and were not stable.

9. Ms Kenyon said also that she would suffer great hardship if she did not receive the disability pension payments.  She would not be able to afford to pay household bills, medical expenses and may have to move house.  When asked how she would manage if she had the added burden of a debt to pay, Ms Kenyon said she would have to repay it in instalments.

   TRIBUNAL CONSIDERATION

10. Subsection 41(2) of the Administration Appeals Tribunal Act 1975 provides that the Tribunal may make an order staying the implementation of a decision 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.  Although the matters to be considered in making a decision are not prescribed, the following matters have been considered in similar cases:

    ·The prospects of success or merits of the case;

    ·Prejudice to the parties or those persons whose interests may be affected by the review;

    ·Whether it is in the public interest to grant a Stay;

    ·Hardship or loss which may be suffered by an applicant;

    ·Likelihood of recovery of monies by the Commonwealth in social security cases where debts are owed; and

    ·Whether the review application, if successful, would be rendered nugatory or futile if the Stay is not granted.

    Prospects of Success

11. Ms Kenyon said that at the time of her application for DSP she was not aware of the particulars required in the medical reports and neither were the doctors.  She said it was not possible for her conditions to be fully treated and stabilised as her conditions were not under control, they fluctuated and were still being treated.  She was seeking some legal advice to assist her in her substantive application. 

12. Without medical evidence that her physical and mental conditions were fully diagnosed, fully treated and fully stabilised at the relevant date, 23 November 2015, I consider it unlikely that a tribunal hearing the substantive case would be able to find that Ms Kenyon was qualified for DSP on that date.  Medical reports prepared subsequent to the relevant date generally do not carry the same weight as more contemporaneous reports.  The decision must be made on the impact of the conditions at the time. 

    Prejudice to the Parties

13. Ms Kenyon contends that she will suffer financial hardship if her DSP payments stop.  However, if her application for review is not successful her payments will cease in any case, and by then she will have accumulated a debt which will have to be repaid.  Ms Kenyon said, if that were the case, she would have to repay the debt in instalments.

14. I accept that Ms Kenyon will be in straitened circumstances if her DSP payments cease, however her circumstances will be even worse if she has an additional debt to repay at the same time. 

    Public Interest

15. Mr Noonan submitted that it is undesirable to pay public monies to a person who may not be entitled.  He added that the administrative cost of recovering a debt is also a material consideration.

16. I accept this contention and can see no public interest in continuing to pay Ms Kenyon’s DSP with the reasonable likelihood of the Commonwealth subsequently having to recover the money.

    Hardship or Loss suffered by the Applicant

17. As above, I accept that Ms Kenyon will be in straitened circumstances if the DSP benefits cease to be paid.  However she remains in receipt of the Newstart Allowance and accordingly and I do not consider her circumstances to be an unbearable hardship.  Indeed, Ms Kenyon agreed she would have to manage even if she had to repay a debt. 

18. Granting a Stay Order will not assist Ms Kenyon, except in the short term.  In fact, a Stay Order could well increase her hardship, for a longer period, by the imposition of a requirement to repay a debt. 

19. There is no loss involved as the review of the substantive matter will not alter the final amounts of money to be paid by or to each party. 

    Likelihood of Recovery

20. Mr Noonan raises this as an issue for consideration but makes no contention that the Department does not have reasonable prospects of recovering a debt from Ms Kenyon.  I note the statement of Ms Kenyon that, if necessary, she would manage to repay a debt by instalments. 

21. As Ms Kenyon will continue to receive Newstart Allowance, the Department will have access to the means to recover a debt by way of deductions from that allowance. 

    Whether the Review would be rendered Nugatory

22. The only issue submitted for consideration is the likelihood of the recovery of a debt.  I have already found that this is not an issue in this case.

    CONCLUSION

23. After considering the issues I conclude:

    ·Compelling new medical evidence relevant to 23 November 2015 would be needed to give the substantive application any prospect of success;

    ·There is no prejudice to Ms Kenyon in not approving the Stay Order; indeed her situation may well be worse if her DSP payments become a debt to be repaid;

    ·There is no public interest in continuing to pay the benefits;

    ·The hardship for Ms Kenyon would be increased by the added burden of a debt;

    ·There is no loss to Ms Kenyon as all monies will be correctly distributed following the substantive review;

    ·The Department will be in a position to recover any debt by deductions from Newstart Allowance; and

    ·The substantive review would not make pointless a Stay Order.

24. On balance I am not of the opinion that it is desirable to make a Stay Order in this case.

    DECISION

25. The request for a Stay Order is refused.

26.     I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 22 June 2016

Date(s) of hearing	15 June 2016
Applicant	By Telephone
Advocate for the Respondent	Mr T Noonan
Solicitors for the Respondent	Department of Human Services, FOI & Litigation Branch