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

[2015] AATA 806

Kristoffersen and Secretary, Department of Social Services (Social services second review) [2015] AATA 806 (16 October 2015)

Division	GENERAL DIVISION
File Number	2015/4328
Re	Kurt Kristoffersen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	16 October 2015
Place	Brisbane

The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – portability – overseas travel by applicant exceeded “allowable absence” – no determination in place for unlimited portability – power of Tribunal to dismiss proceedings – whether proceedings have any reasonable prospect of success – application dismissed pursuant to s 42B Administrative Appeals Tribunal Act 1975 (Cth)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 42B,

Social Security Act 1991 (Cth) ss 1213, 1217, 1215, 1218AAA, 27

Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Act 2014 (Cth) s 10(3)

CASES

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152

Unilever Australia Limited v Revlon Australia Pty Ltd (No 4) [2014] FCA 1074

AustralianCompetition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544

Commissioner of Taxation v Arnold [2014] FCA 959

REASONS FOR DECISION

Senior Member Bernard J McCabe

16 October 2015

1. This case raises questions about the portability limits in Part 4.2 of the Social Security Act 1991 (Cth) (the “SS Act”) that apply to recipients of the disability support pension (the “DSP”) who undertake overseas travel. The applicant, Mr Kurt Kristoffersen, travelled by plane to Vietnam on 12 February 2015 and returned home to Australia on 15 March 2015. The Secretary says Mr Kristoffersen’s DSP was only portable for four weeks of overseas travel; a decision was made to stop those payments as of 12 March 2015. Mr Kristoffersen says the decision is wrong, and unlawful. He says the portability limits do not apply to him because he has previously been assessed as having a severe impairment within the meaning of the SS Act. He has challenged the decision to suspend his DSP payments. The amount in dispute is $138.

2. As it turns out, the case also raises questions about the Tribunal’s enhanced powers to manage proceedings and – where appropriate – dismiss applications for review. This is one of the first occasions on which those new powers have been discussed, so it is appropriate to write and publish more detailed reasons than might otherwise be necessary.

   The history of the proceedings

3. Mr Kristoffersen put his case to the Tribunal at the first tier review. The reviewable decision was affirmed. He subsequently sought second tier review by the Tribunal. The District Registrar has referred that application to me because it was unclear to her whether the application had any prospect of success given the reasons provided by the member at the conclusion of the first tier review. It is entirely appropriate that the District Registrar should do so in light of important recent amendments to the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). Those amendments provide the Tribunal with new powers to manage cases so it can more effectively fulfil the statutory objectives set out in s 2A. The amendments include an enlarged power in s 42B(1) to dismiss applications at any stage of the proceedings if the Tribunal becomes satisfied 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.

4. Section 33 has also been amended. The section still provides the procedure of the Tribunal is (subject to the AAT Act and other legislation) at the discretion of the Tribunal: s 33(1)(a). The section also retains the requirement (at s 33(1AA)) that the decision-maker use his or her “best endeavours to assist the Tribunal to make its decision…”. But there is now an additional requirement for decision-makers which also applies to other parties and their representatives. Section 33(1AB) obliges all parties to use their “best endeavours to assist the Tribunal to fulfil the objective in section 2A.”

5. The objective in s 2A has also been enlarged and clarified. The Tribunal continues to be obliged to provide a mechanism of review that is “fair, just, economical, informal and quick”. That obligation is now supplemented by other goals. Importantly for present purposes, s 2A(a) requires that the Tribunal be accessible and s 2A(c) requires the Tribunal to consider whether the mechanism of review is “proportionate to the importance and complexity of the matter”.

6. After reviewing the decision made in the course of the first tier review, I decided it was appropriate to bring the matter on for a hearing to determine whether the proceedings should be dismissed pursuant to s 42B(1). The listing notice was sent to Mr Kristoffersen on 1 October 2015. Given the gravity of the matter, I decided the application should be listed for a hearing in person. Mr Kristoffersen subsequently contacted the Tribunal by email and pointed out he had asked that his proceedings be dealt with on the telephone. I scheduled a telephone directions hearing on 7 October to discuss that request.

7. The Tribunal has the power to grant leave to a witness or a party to appear by telephone under s 33A. That leave is regularly given in simple cases, or where the evidence from a witness is uncontentious. It may be particularly appropriate to proceed on that basis in cases where the evidence is clear, the amount in dispute is small or the parties are isolated, given the Tribunal’s objective of making its proceedings accessible and proportionate. But that does not mean every hearing can be conducted remotely, or that every witness might be excused from attending in person. Hearings in person are often preferable to  hearings conducted by telephone, or even video hearings, because:

   (a)it is usually more convenient if everyone is in the one place – if documents have to be passed around, for example, or if conversations need to take place between the parties in the course of a break;

   (b)it is usually easier to make a proper assessment of an individual’s case if that person is in the same room as the Tribunal member. Communication theorists tell us any interaction between individuals is likely to be richer and more nuanced if the parties are able to observe the non-verbal cues that accompany the spoken word. That is hard enough to do where the hearing is conducted by video link; it is very difficult indeed where the person in question is reduced to a disembodied voice on the telephone; and

   (c)It is easier to conduct the proceedings in an efficient and orderly way if the person is in the same room. Experience shows that some individuals are more likely to become uncooperative if they participate by phone. The default requirement that parties and witnesses attend in person ensures that (subject to the requirement in s 33(1)(b)) tools like the architecture and atmosphere of the hearing room are available to the member to assist in the smooth disposal of the proceedings.[1]

   [1] See, for example, Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152. In that case, Buchanan J explained (at [78]):

   Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness.

8. Ultimately, the power to grant leave in s 33A must be exercised having regard to all the circumstances of the case, and in furtherance of the objective of the Tribunal.[2]

   [2] The Federal Court has taken a similar approach in cases where a party applies to give evidence or conduct proceedings remotely pursuant to s 47A of the Federal Court of Australia Act 1976: see, for example, Unilever Australia Limited v Revlon Australia Pty Ltd (No 4) [2014] FCA 1074 at [16] per Gleeson J; see also AustralianCompetition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11] per Flick J and Commissioner of Taxation v Arnold [2014] FCA 959 at [14]-[20] per Edmonds J.

9. At the directions hearing on 7 October, Mr Kristoffersen said he was physically incapable of attending the Tribunal in person. He became angry and suggested a refusal to give him leave to attend by telephone was part of an attempt to frustrate his application for review. He behaved aggressively throughout the directions hearing. He made a number of gratuitous attacks on Tribunal staff, Centrelink officers and judges of the Federal Court. He did not provide any medical certificates that said he was unable to make the journey, although he did refer to treating doctors’ reports that talked about his disability. He also gave an undertaking that he would use his best endeavours to cooperate if he were given leave to attend by telephone. (I thought it was appropriate to seek that assurance in light of his aggressive behaviour and the requirement in s 33(1AB) that all parties use their best endeavours to assist the Tribunal to achieve its statutory objective – something it cannot do if a party behaves in an unruly or disruptive fashion.) I decided Mr Kristoffersen should be granted leave to attend the dismissal hearing by telephone that appeared to be the best way of advancing the review process in all the circumstances.

   The relevant facts

10. What follows is apparent on the face of the decision made by the Tribunal at the first tier review, and was confirmed in the course of the dismissal hearing. Mr Kurt Kristoffersen has been in receipt of the DSP since 2005. On 12 February 2015, he travelled by plane to Vietnam with his carer. He says the trip was for the purposes of receiving medical treatment. He did not return to Australia until 15 March 2015. It seems he did not inform Centrelink of his departure, although there is no question he was entitled to make the trip. The Secretary had not made any determination under Part 4.2 Division 2 of the Social Security Act 1991 in relation to the portability limits that ordinarily apply to DSP recipients who propose travelling overseas. The Secretary decided to suspend Mr Kristoffersen’s payments on 12 March 2015. That decision was contained in a notice dated the same day. The payments were reinstated following his return to Australia.

    The reviewable decision

11. The decision under review was made on 12 March 2015. It is a decision to suspend DSP because the applicant was overseas for longer than the four week portability period applicable to DSP recipients in Mr Kristoffersen’s position. 

12. The applicant sought to characterise the decision differently at the dismissal hearing, but there is no basis for doing so. (I note in his written notice of an appeal dated 24 August 2015 – at p 1 of the documents filed under s 37 of the AAT Act – he merely asserted the decision under review was “legislatively incorrect”.)

    Mr Kristoffersen’s argument

13. Mr Kristoffersen says the portability limits do not apply to him because he has previously been assessed as suffering from a severe impairment. He says that a plain reading of the SS Act reveals that portability limits do not apply to him. He said in those circumstances there was no need for him to seek a determination granting unlimited portability, or extending the portability limit. He quoted extensively from provisions of the SS Act in the course of his argument.

    The law with respect to portability

14. Mr Kristoffersen has misunderstood the provisions of the SS Act. That is not altogether surprising, as they are complex and have changed in recent times. I will explain the rules in some detail to clear up the misunderstanding.

15. The current rules regulating the payment of DSP to persons travelling overseas are found in Part 4.2 of the SS Act. The basic portability provisions are found in Division 2, sub-division A. Section 1213 explains that the rules apply to any person who receives one of the payments referred to in s 1217 during a period of absence from Australia.[3] Section 1217 lists the DSP as one of those payments and notes (at [2AA] in the columns at the end of the section) that a person in receipt of DSP who is temporarily overseas for the purpose of obtaining eligible medical treatment is subject to a maximum portability period of 4 weeks.[4] If the person remains overseas for longer than the maximum portability period, the extra days cease to be an allowable absence within the meaning of s 1217 and no further payments can be made after that point: s 1215(1)(b).[5]

    [3]

    [4]

    [5]

16. There are exceptions to the basic portability provisions. The exceptions are found in sub-division B. Most of the exceptions are plainly unavailable in this case, but s 1218AAA is potentially relevant. That provision permits the Secretary to make a determination that a recipient of the DSP is entitled to unlimited portability if all of the following circumstances exist:[6]

    (a)the person is receiving disability support pension;

    (b)the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

    [6]

17. There has never been a determination made under s 1218AAA. Mr Kristoffersen has never sought one. Mr Kristoffersen argues he does not need one, or perhaps that he is entitled to be given one automatically, because he has previously been assessed as having a severe impairment. He is wrong.

18. To begin with, there is a good argument that the severe impairment must be assessed with reference to the current impairment tables[7] rather than the more generous tables under which Mr Kristoffersen was assessed in 2005. I note Mr Kristoffersen argued s 27 of the SS Act required the Secretary to apply the impairment tables in force at the time of his claim (ie the tables in force when he was first granted the DSP), but he has misunderstood the section. Section 27(1) certainly requires the Secretary (and the Tribunal on review) to use the impairment tables in force at the time of the claim when assessing whether a claimant qualifies for the DSP. But we are not discussing a claim for DSP or a review of his qualification. We are talking instead about an assessment for a different purpose. (I note the section goes on to provide that, in the event of a subsequent review of a recipient’s qualification, the Secretary must apply the impairment tables in force on the date of the notice of review.) It follows Mr Kristoffersen cannot simply assert that he meets the requirement in s 1218AAA(1)(b) for the purposes of this exercise. A fresh assessment is required, particularly in light of the evidence that Mr Kristoffersen has been able to undertake long overseas flights. The Secretary would also need to consider the additional matters referred to in s 1218AAA(1)(c) and (d). It is unclear whether Mr Kristoffersen would be able to satisfy those requirements either.

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

19. In any event, there has been no review or determination made under s 1218AAA or any of the other provisions in sub-division B. It follows none of the exceptions to the basic portability provisions are available in Mr Kristoffersen’s case. That means the Secretary was required to suspend Mr Kristoffersen’s payments after he was absent from Australia for more than four weeks. That is what occurred. There is no discretion to waive the application of the rule in light of special circumstances and no special circumstances have ever been identified. The Tribunal is bound to reach the same conclusion as the authorised review officer and the first tier review.

    Should the proceedings be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975?

20. I have already set out the text of s 42B of the AAT Act. The section makes it clear the power to dismiss may be exercised at any point in the proceedings. (Mr Kristoffersen claimed the dismissal hearing was unlawful because it must be convened, or listed, within 28 days of his application being received. He is wrong.) It is appropriate to dismiss this case now, at an early point in the proceedings – before the Secretary and the Tribunal incur further costs that far exceed the small amount of money in dispute - because the application is lacking in substance and has no reasonable prospect of success.

21. The application may also be frivolous or an abuse of process. I will explain why. During the course of his submissions, Mr Guthrie, who represented the Secretary, pointed out the maximum portability period had been reduced comparatively recently to 4 weeks. Before the amendments, an individual in Mr Kristoffersen’s position was entitled to remain abroad for up to six weeks. Mr Guthrie pointed out ‘grandfather’ provisions in the amending legislation meant a person who had booked his or her passage before 14 May 2014 would be entitled to operate under the old time limits.[8] Apparently Mr Kristoffersen had suggested in the course of his dealings with Centrelink that he booked the flights before the amendments commenced. If Mr Kristoffersen were able to produce evidence to that effect, Mr Guthrie said the Secretary would concede the case.

    [8] s 10(3) Social Services & Other Legislation Amendment (2014 Budget Measures No.6) Act 2014 (Cth).

22. I asked Mr Kristoffersen when he booked his trip. He refused to answer. He did not say he could not remember the date, or that he was unable to confirm it. He told me he knew why I was asking, but said flatly he was not interested in winning the case on that basis. He said he was entitled to succeed on the arguments he was determined to make, and that he wanted to proceed to a hearing and require a full review.

23. That is unacceptable. My task is to reach the correct or preferable decision having regard to the objective set out in s 2A of the AAT Act. Mr Kristoffersen is obliged to assist me to that end: s 33(1AB). If he has access to relevant admissible evidence that would allow the Tribunal to conclude the application in his favour without the expense of a full review, he should produce that evidence. If he does not have the evidence, he should not be evasive when asked about it.

1. I do not need to reach a concluded view as to whether the proceedings are frivolous or an abuse of process. I am satisfied the application should be dismissed because it is lacking in substance and has no reasonable prospect of success.

   Conclusion

2. The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 16 October 2015

Date of hearing	9 October 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services