Kumar v Secretary, Department of Social Services
[2016] FCCA 640
•24 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v SECRETARY, DEPARTMENT OF SOCIAL SERVICES | [2016] FCCA 640 |
| Catchwords: ADMINISTRATIVE LAW – Review of a tribunal’s decision – whether any questions of law raised by the application – whether applicant was required to participate in a “program of support” – whether any exemption arose – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975, s.44(1) Social Security Act 1991 (Cth), ss.94, 94(1)(c), 94(1)(da), 94(2)(aa), 94(3B), 94(3C), 94(5), 94A, 94B, 94C, 94E, 94E(2) |
| Linwood v Repatriation Commission [2016] FCA 90 Haritos v Commissioner of Taxation (2015) 233 FCR 315 |
| Applicant: | NITESH KUMAR |
| respondent: | SECRETARY, DEPARTMENT OF SOCIAL SERVICES |
| File Number: | BRG 829 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 February 2015 |
| Date of Last Submission: | 13 February 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 24 March 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the respondent: | Mr Black |
| Solicitors for the respondent: | Sparke Helmore |
ORDERS
The applicant have leave to amend the Notice of Appeal filed on 28 July, 2014 in the terms set out in the Application in a Case filed on 19 January, 2015;
The Notice of Appeal filed on 28 July, 2014, as amended, is dismissed; and
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules 2011 up to and including 18 September, 2014 and thereafter according to schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 829 of 2014
| NITESH KUMAR |
Applicant
And
| SECRETARY, DEPARTMENT OF SOCIAL SERVICES |
Respondent
REASONS FOR JUDGMENT
By his application filed on 28 July, 2014 the applicant seeks an order that a decision of the Administrative Appeals Tribunal made on 3 July, 2014 which affirmed an earlier decision rejecting the applicant’s claim for a disability support pension under the Social Security Act 1991 (Cth) be set aside. The applicant also seeks certain declaratory relief.
The respondent opposes the application. The respondent argues that the applicant’s appeal fails to disclose any question or error of law, and that the appeal should be dismissed with costs.
Mr Kumar’s appeal is brought pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal is on a question of law. Of that matter, Logan J recently commented in Linwood v Repatriation Commission [2016] FCA 90:
5. Such an appeal only lies on a question of law. The existence of a question of law goes to jurisdiction: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175. Drawing a distinction between a question of law and one of fact when conferring a right of appeal has about it a superficially attractive simplicity as a means of preventing re-agitation on the merits of factual controversies but in practice the boundary between the two can be elusive. Determining what amounts to a question of law was an enduringly controversial subject even prior to the enactment of s 44 of the AAT Act. Its jurisdictional feature in respect of a s 44 appeal has meant that this has not infrequently and then unavoidably proved to be so in this Court in such cases.
6 Recently, in Haritos v Cmr of Taxation (2015) 233 FCR 315 (Haritos) (Special Leave refused, 11 December 2015, Haritos v Cmr of Taxation [2015] HCATrans 337), the Full Court sought at least to limit the scope for controversy on that subject in appeals of the present kind. In other jurisdictions, the parliament has done so by, for example, allowing that an additional basis for an appeal as of right is on a “question of mixed fact and law”: see, for example, s 14(1)(b) of the Supreme Court Act 1975 (PNG). Be this as it may, Haritos, at [62], affirms that, “any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction … but to the exercise of that jurisdiction” and that “whether or not the notice of appeal is on a question of law is to be approached as a matter of substance rather than form”.
Earlier, in Haritos v Commissioner of Taxation (2015) 233 FCR 315 the Full Court of the Federal Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
194. We restate that the subject matter of an appeal under s 44 is a question or questions of law. We also restate that the appeal is not by way of rehearing; it is the exercise of original jurisdiction. Neither is it sufficient that the appeal merely involves a question of law. The correct approach, in our opinion, is to ask directly the question whether the appeal is on a question of law, without being diverted by whether or not the appeal raises a mixed question of fact and law. As the High Court said in Owens, the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. This distribution of function is critical to the correct operation of the administrative review process. See also O’Brien at 430 where Gibbs CJ, Wilson and Dawson JJ said that on an appeal under s 44 the appellate body should not usurp the fact-finding function of the Tribunal. But such fact-finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality.
(footnotes omitted)
Here, the respondent argues that Mr Kumar’s Notice of Appeal does not state any questions of law and as such does not engage the jurisdiction of the Court. However, it will be necessary to examine the substance of the application to determine if a question of law is truly revealed by the matters that Mr Kumar wishes to agitate.
Background and procedural history
Mr Kumar suffered multiple work-related injuries on 31 January, 2001. Pursuant to an injury management plan, called a “Return to Work Plan” in the evidence before the Tribunal, he returned to work in or about July, 2001. He was referred to Commonwealth Rehabilitation Service for further assistance on 15 August, 2001.
On 30 October, 2003 Mr Kumar was referred to Job Services Australia. He applied and enrolled in a Commonwealth supported (HECS) teaching course at the University of Western Sydney. The course went from February, 2005 to November, 2005. Sometime later on 29 May, 2009 Mr Kumar attended job search provider Mission Australia.
In December, 2010 Mr Kumar secured Newstart Allowance, a benefit provided pursuant to the Social Security Act. To meet the conditions attaching to the continued receipt of that benefit, Mr Kumar attended Mission Australia appointments in January, 2011.
The requirements of the Newstart Allowance seem to have influenced Mr Kumar to enrol in an Austudy course in early February, 2011. He attended a course until 2 December, 2011. His Newstart Allowance ceased and he commenced receiving another benefit called Austudy on 3 March, 2011.
Mr Kumar suffered further exacerbation of his injuries on 15 May, 2011 while he was working as a taxi driver. He made a second workers’ compensation claim which was accepted. However, by reason of his injuries, on 14 August, 2011 he ceased employment and did not return.
In mid-October, 2011 and again in early December, 2011 Mr Kumar inquired of Centrelink about claiming a disability support pension. His course of study had ended in early December, 2011 and his Austudy benefit had ceased. He commenced receiving Newstart allowance again.
Mr Kumar lodged an application for a disability support pension on 1 May, 2013. His claim was rejected on 5 August, 2013 by a Centrelink officer. He applied for an internal review of that decision, but that was unsuccessful. Similarly, an application for review of the decision by a Social Security Appeals Tribunal was unsuccessful. That decision was given on 12 December, 2013.
Undeterred, Mr Kumar sought review by the Administrative Appeals Tribunal. A hearing took place before the Tribunal on 18 June, 2014. The original decision by Centrelink was affirmed by the Tribunal on 3 July, 2014. It is the decision of the Administrative Appeals Tribunal that Mr Kumar appeals in these proceedings.
Mr Kumar filed an appeal to the Federal Court, on 28 July, 2014 and on 10 September, 2014 the notice of appeal was transferred to this Court.
Some of the relevant statutory framework
The eligibility requirements for a disability support pension are set out in s.94 of the Social Security Act. There are many requirements. The Tribunal noted that the parties each agreed that Mr Kumar met all of those requirements save for one. At issue was the requirement set out in s.94(1)(c)(i) of the Act, namely that he had a continuing inability to work. That subsection is in the following terms:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
…
(c) one of the following applies:
(i)the person has a continuing inability to work;
The meaning of the phrase continuing inability to work is defined in s.94(2) of the Social Security Act in the following way:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(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.
Note: For work see subsection (5).
Subsections 94(3B) and (3C) are also relevant. They are in the following terms:
Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
Subsection 94(5) defines the phrase program of support for the purposes of the Act. It provides:
(5) In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
There are some other provisions of the Social Security Act which are relevant and I will refer to them later in these reasons.
The Tribunal’s decision
The Tribunal identified the central issue for determination in the application before it in the following way:
6. To qualify for a DSP, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim. In the applicant’s case, that period is from 1 May 2013 until 22 August 2013 (“the relevant period”). The issue for determination is whether the applicant is required to undertake a program of support (“POS”) and, if so, whether he satisfies that requirement.
(footnotes omitted)
The Tribunal member summarised the submissions of each of the parties in the following way:
7. The applicant submitted that he has endeavoured for years to participate in a POS but has been thwarted in doing so by Centrelink officers. He attended appointments with a
Job Service Provider, Mission Australia Employment Solutions (“Mission Australia”), and contended that this should be treated as a POS. Alternatively, he submitted that a return to work program he had undertaken in New South Wales as a part of his rehabilitation under that State’s compensation legislation should be treated by Centrelink as a POS for the purposes of the Act. Further, he submitted that medical certificates he had provided to Centrelink would be sufficient to excuse him from completing a POS. Other matters raised by the applicant were that s 94C of the Act operated to excuse him from undertaking a POS and that the Secretary should exercise his discretion to grant him the DSP.
8. For the respondent, Mr Rick McQuinlan submitted that the applicant did not have a serious impairment and that, in order to meet the work test, he had to undertake a POS of 18 months duration in the three years preceding the date of his claim. Mr McQuinlan noted that, in the three years preceding his claim, the applicant was referred to Stream 1 and Stream 2 services, both of which are POS programs. However, he also noted that the applicant attended these for a period of less than three months and not for the required 18 months. He was aware that the applicant had produced medical certificates to Centrelink to indicate that he was unfit for work. He submitted that these had no role to play in relation to involvement in a POS. He submitted that the applicant had been in receipt of Newstart Allowance leading up to making his DSP claim and that the certificates related to excusing him from engaging in job search activities for
Newstart Allowance purposes. He also noted that the applicant had been involved in a return to work program in New South Wales as part of a workers compensation arrangement following his experiencing work-place injuries. Again, he submitted that this had no relevance to a POS. Mr McQuinlan submitted that the applicant had not completed a POS as he was required to do and that, accordingly, he did not meet the qualifying criteria for the DSP. He submitted that the decision under review ought be affirmed.
Neither party suggested that those summaries were inaccurate.
The Tribunal found that Mr Kumar satisfied the age and residency requirements of s.94 of the Act. The Tribunal found that Mr Kumar suffered from bilateral knee conditions and a spinal disorder. Those conditions were assessed in a Job Capacity Assessment Report dated 24 July, 2013. The assessor’s opinion was that the impairment from Mr Kumar’s conditions each satisfied the 10 point level in Tables 3 and 4 respectively in the Impairment Tables in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011. No issue was taken by Mr Kumar with that assessment or the impairment rating ascribed to his injuries. Taken together, those ratings gave Mr Kumar a combined rating of 20 points, but that was not sufficient for his injuries and impairment to meet the description of severe impairment for the purposes of s.94(3B) of the Act.
Consequently, to be satisfied that Mr Kumar had a continuing inability to work for the purposes of s.94(1)(c)(i) of the Act, the Tribunal had to be satisfied that Mr Kumar met s.94(2)(aa) of the Act.
However, the Tribunal was not so satisfied. To be satisfied that Mr Kumar had a continuing inability to work, the Tribunal needed to find that Mr Kumar had actively participated in a program of support within the meaning of s.94(3C) of the Act. That, in turn, required the Tribunal to consider and make findings about at least two matters, namely:
a)“the requirements specified in a legislative instrument made by the Minister for the purposes of” s.94(3C) of the Act; and
b)whether the programs that Mr Kumar claimed he had participated in were programs of support for the purposes of the Act.
The Social Security (Requirements and Guidelines – Active Participation for disability support pension) Determination 2011 was a legislative instrument made by the Minister for the purposes of s.94(3C) of the Act. The Tribunal set out cl.5 of the Determination which dealt with the Requirements for Active Participation and cl.6 of the Determination which set out the matters that needed to be taken into account when deciding whether a person had actively participated in a program of support for the purposes of s.94(2)(aa) of the Act.
After noting that there were also policy guidelines in existence to assist the Tribunal to determine the matter (which the Tribunal noted did not bind the Tribunal but which it would usually apply), the Tribunal made the following findings:
13. The applicant was a taxi driver in Sydney. He last worked as such in August 2011. From January 2001 until December 2012, he received payments from the Workers Compensation Commission of New South Wales in accordance with the Workplace Injury Management and Workers Compensation Act 1998 (NSW). In those 12 years, he said, he was engaged in a return to work program, details of which were set out in a Return to Work Plan, dated 24 September 2001. Therein, the goal of the program is given as:
For Mr Kumar to return to his pre-injury duties as a casual taxi driver with Legion Cabs P/L in a part time / pre injury capacity.
14. The agreed arrangement with the applicant was that he undertake the night shift from 3:00 pm to 3:00 am and that he be provided with a coccyx relief cushion. His evidence was that he reported to work when he was able to and would contact the cab company if he was not well enough to do so. The Return to Work Plan does not support the applicant’s evidence that it was of 12 years duration. In specific terms, it gives the dates of the program. There were two separate phases, each of two weeks duration from 24 September 2001 to 5 October 2001 and from 8 October 2001 to 19 October 2001.
15. I am satisfied that this Return to Work Plan in New South Wales does not constitute a POS. It was not provided by a designated provider but, even if it were, the duration was clearly stated to be four weeks and not the required 18 months.
16. In evidence were documents sent to the applicant by Mission Australia, the applicant’s Job Search Provider. These related to his seeking work whilst in receipt of the Newstart Allowance from Centrelink. They advised the applicant of appointment times with that organisation. His initial appointment was on Wednesday 14 March 2012 and subsequent appointments were advised for 2 April 2012, 3 May 2012, 15 May 2012, 16 May 2012, 17 May 2012, 4 June 2012, 31 July 2012, and 2 October 2012. The applicant moved from New South Wales to Queensland and a different Job Search Provider, Link Personnel, advised him of an appointment on 16 January 2014. The applicant’s evidence was that he attended few of those appointments but usually contacted the relevant organisation and advised that he had medical certificates to excuse him from seeking employment. When he attended, the officer with whom he spoke advised that he was excused from participating because of medical certificates held by Centrelink. However, he said that, on one such occasion with Mission Australia, he was provided with an appointment card which advised that he would be contacted by a person called “Van”. A copy of that card, which is undated, was in evidence. The applicant said that Van did not contact him. With Link Personnel, the applicant said that he enquired about being placed in a POS but was advised that he was not eligible because the JCA assessor had concluded that he had a capacity to work for only 0 to 7 hours per week.
17. The applicant’s dealings with the Job Search providers were concerned with his continuing qualification for Newstart Allowance. They did not relate to a POS. The applicant referred to his lodgement of many medical certificates to exempt him from participating in a POS. In evidence were Workcover NSW Medical Certificates dated 13 July 2011, 16 August 2011, 30 September 2011, 30 November 2011, 30 January 2012, 30 March 2012, 30 April 2012, 30 May 2012, 30 July 2012, and 18 September 2012 as well as Centrelink Medical Certificates dated 24 September 2012 and 12 November 2012. Each of those certified that the applicant was unfit for work for stated periods. However, while these may have had relevance to exemption from the activity test for Newstart Allowance, they could not excuse him from actively participating in a POS. This is provided for in s 3.6.2.112 of the Guide which is set out above.
18. As I understand it, the applicant’s reference to being excused by the Secretary is based on his medical certificates. I have determined that the medical certificates do not assist the applicant in that manner. There are exemptions from the requirement of actively participating for the required 18 month period in a POS. These are set out above in Part 2 under ss 5(2), (3), (4), (5) of the Determination. None of those grounds for exemption was raised by the applicant and I am satisfied that these have no application in this matter.
19. The applicant relied upon s 94C of the Act which refers to exemption for illness. However, that provision, which is set out above, is not concerned with a POS. Rather, it relates to participation plans made under ss 94A and 94B of the Act.
20. The applicant has not complied with the provisions of the Act which require that he undertake a POS in order to establish that he has a continuing inability to work. He does not qualify under s 94 of the Act for the disability support pension.
The questions of law and their answers
In his Notice of Appeal, Mr Kumar specifies eight purported questions of law. In addition to those purported questions of law, Mr Kumar sought to expand his appeal by filing an Application in a Case on 19 January, 2015 in which he sought leave to add three further questions of law.
The respondent objected to Mr Kumar pursuing his further grounds because:
a)directions had been made for the filing of an amended Notice of Appeal and Mr Kumar had not met the time limits in that direction for the filing of the amended document; and
b)the further questions of law would add nothing to Mr Kumar’s case, but would only serve to complicate the appeal.
I have resolved to permit leave to rely upon the Application in a Case and the further grounds raised in it. The new grounds are, I think, merely restatements of the matters already raised in the Notice of Appeal. There is no prejudice or surprise arising from the further grounds to the respondent.
Mr Kumar has also filed three affidavits in the proceedings. One was filed with his Notice of Appeal and the other two were filed on filed on 19 January, 2015 and 10 February, 2015. By each of those affidavits, Mr Kumar has attempted to introduce evidence that was not before the Tribunal to support his arguments on this application. The respondent has objected to the affidavits, although pointed out that some of the documents annexed to them were already before the Court as part of the Tribunal’s documents that were furnished for the purposes of the appeal.
I have resolved to give Mr Kumar leave to rely upon each of the affidavits that he has filed. The respondent’s objection to Mr Kumar’s reliance upon that material is well taken, and I propose to give no weight to any material that was not before the Tribunal.
The questions of law articulated by Mr Kumar are, in part at least, not questions of law at all, but seek to cavil with the factual findings of the Tribunal. At best, the questions as framed by him are mixed questions of fact and law. That is especially so in respect of the questions stated in the Application in a Case. Nonetheless, I will address each.
The respondent submits, correctly I think, that Mr Kumar’s stated questions of law raise two main contentions, namely:
a)was Mr Kumar required to participate in a program of support under the Act? and
b)If so, on the facts as found by the Tribunal, did Mr Kumar participate in a program of support?
In my view, the answers to those two questions overarching questions are:
a)Mr Kumar was required to participate in a program of support under the Act if he wished to obtain a disability support pension; and
b)on the facts as found by the Tribunal, Mr Kumar did not participate in a program of support for the purposes of the Act.
Consequently, he did not qualify for the grant of a disability support pension.
I will endeavour to explain my reasons for those conclusions as I deal with Mr Kumar’s questions of law.
It is convenient I think, if I deal with Mr Kumar’s grounds in a different order to that in which they appear in the Notice of Appeal and the Application in a Case.
Application in a Case – Question 2
This question posed by Mr Kumar is in the following terms:
2. Whether I was required to participate in a “Program of Support” within the meaning of section 94 of part 2.3 division 1 of the Social Security Act 1991 and Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 to be eligible for the Disability Support Pension on the relevant date of claim when:
a) I was totally incapacitated for more than 18 months in the last 3 years of the relevant date of the claim within the meaning of subsection 94C of the Social Security Act 1991.
b) For the rest of the period I was in supported employment under workers compensation legislation (NSW) and/or within the meaning of subsection 94E (2) of the Social Security Act 1991.
c) I fell within the exception of subsection 94(1)(da) at the material time.
This question squarely raises whether Mr Kumar was required to have actively participated in a program of support so as to qualify for the grant of a disability support pension. It also squarely raises the relationship, if any, between s.94(3C) and ss.94C and 94E of the Act.
Mr Kumar’s lengthy written submissions tend to suggest that his case is that he was not required to participate in a program of support because:
a)he was exempt from participation by reason of s.94(1)(da) of the Act;
b)further, he was exempt by reason of ss. 94C and/or 94E of the Act; and
c)in any event if he was required to participate in a program of support, the Secretary was obliged by the Act to provide him with a program of support and had not done so.
Before dealing with these issues further, it is necessary to say something of an argument upon which Mr Kumar placed some reliance in his submissions. He argues that the requirement in s.94(2)(aa) that a person must have actively participated in a program of support in order to have a continuing inability to work was introduced into the Act with effect from 3 September, 2011. And so it was: Family Assistance and Other Legislation Amendment Act2011 (No 52 of 2011), Sch.3 cl.3. He further argues that he was fully incapacitated immediately before the commencement of s.94(2)(aa). That, he argues, means that he demonstrated that he had a continuing inability to work that was unaffected by the introduction of s.94(2)(aa) of the Act. Accordingly, the Secretary and the Tribunal should have considered his pension application without reference to s.94(2)(aa) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination2011 at all.
That argument, however, must be rejected because Mr Kumar did not make application for his pension until 1 May, 2013. He needed to establish that he was qualified to receive the disability support pension according to the relevant legislation as it stood at that date. Even if he was fully incapacitated prior to the introduction of s.94(2)(aa), he had no right to have his pension application that was made in 2013 considered without reference to that subsection. Despite Mr Kumar’s arguments to the contrary, s.7 of the Acts Interpretation Act 1901 (Cth) does not assist his argument.
On any fair reading of ss.94(1)(c)(i) and 94(2)(aa) of the Act, Mr Kumar needed to demonstrate that he had actively participated in a program of support if he was to qualify for the grant of a disability support pension. In my view no other construction is fairly open on the text of those subsections.
However, Mr Kumar’s question, as framed by him, suggests that he was “exempted” from the requirement imposed by s.94(2)(aa), by ss.94(1)(da), or 94C or 94E of the Act, or all three.
It is to that matter to which I now turn. It is necessary to set out some more of the legislation. Section 94(1)(da) provides:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
…
(da) in a case where the following apply:
(i) the person is under 35 years of age;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
Section 94A of the Act provides for the participation requirements referred to in s.94(1)(da) of the Act. Section 94B deals with participation plans, a phrase used only in ss.94A – 94F of the Act.
Mr Kumar argues that s.94(1)(da) operates to exempt him from the necessity to undertake a program of support as required by s.94(2)(aa) of the Act.
However, the flaw in Mr Kumar’s argument is that a program of support for the purposes of s.94(2)(aa) of the Act and a participation plan for the purposes of s.94(1)(da) and ss.94A – 94F of the Act are not the same thing. His argument conflates the two and proceeds on the basis that when the Act speaks of a participation plan it is speaking of a program of support. But it does not.
As the respondent submits, the phrase participation plan which appears in s.94A of the Act (and the related provisions in ss.94B to 94F) relates to the participation requirements which are imposed as one of the qualifying criteria for a pension applicant who comes within the scope of s.94(1)(da) of the Act. Mr Kumar was not within the scope of s.94(1)(da) of the Act and was not required to satisfy its terms.
Section 94(3C) defines when an applicant for a disability support pension shall be taken to have actively participated in a program of support for the purposes of s.94(2)(aa) of the Act. But the phrases actively participated in a program of support and participation plan are not related. The use of actively participated in s.94(3C) does not call up or otherwise engage with the phrase participation plan in ss.94A – 94F of the Act as Mr Kumar seemingly suggests that it does.
To the extent that Mr Kumar suggests that to qualify for a disability support pension, he does not have to meet any participation requirements, his argument is correct. He is not within s.94(1)(da) of the Act. That does not mean however, that he does not have to undertake a program of support so as to meet the requirements of s.94(2)(aa) of the Act.
Subsections 94C and 94E of the Act deal with circumstances when a person will not have to meet the participation requirements even if they come within s.94(1)(da) of the Act. If a person is covered by a participation exemption (see s.94A(2) of the Act) s.94A(1) of the Act does not apply to them. But ss.94C and 94E were of no relevance to Mr Kumar’s application because he was not caught by s.94(1)(da) of the Act and therefore, did not have to meet any participation requirements under s.94A of the Act.
Before the tribunal, Mr Kumar only referred to s.94C of the Act as “exempting” him from active participation in a program of support. The Tribunal member recognised that when he said at paragraph 19:
The applicant relied on s 94C of the Act which refers to exemptions for illness. However, that provision, which is set out above, is not concerned with a POS. Rather, it relates to participation plans made under ss 94A and 94B of the Act.
In my view, the Tribunal was plainly correct.
So, in answer to this question posed by Mr Kumar in his Application in a Case, in my view Mr Kumar was required to actively participate in a program of support within the meaning of s.94 of the Act to be eligible for a disability support pension. For that purpose, it did not matter, even if it was the case, that:
a)he was totally incapacitated for more than 18 months in the last 3 years of the relevant date of the claim within the meaning of s.94C of the Act;
b)for the rest of the period he was in supported employment under New South Wales workers’ compensation legislation and/or within the meaning of s.94E(2) of the Act; and
c)whilst he might of met the requirements of s.94(1)(da) of the Act so that he did not have to meet any participation requirements, that was immaterial to his claim to a pension.
Notice of Appeal - question 2
The conclusions to which I have just come also dispose of question 2 in Mr Kumar’s Notice of Appeal. That question is in the following terms:
2. Whether, in determining if the Applicant had or was required to participate in a Program of Support, the AAT:
a. was required to take into account the following facts and requirement of the Act:
i. That the Secretary did not require the Applicant to commence a Program of Support that met his specific needs.
ii. That the Secretary did not require the Applicant to participate in a Program of Support, despite many requests by the Applicant.
iii. That the Applicant at the material time satisfied the conditions in section 94(1)(da) of the Act.
b. failed to take into account the aforementioned facts, matters and circumstances and requirements of the Act.
c. came to an incorrect decision as a result of that failure.
Mr Kumar’s submissions reveal that his argument concerning this purported question of law is founded upon his view that a program of support for the purposes of s.94(2)(aa) is the same thing as a participation plan provided for in ss.94A – 94F of the Act. For the reasons I have given above, they are not the same thing, but rather two distinct requirements that operate independently of each other in the circumstances set out in the Act.
Notice of Appeal - questions 3 and 4
Similarly, the conclusions I have reached in respect of question 2 in the Application in a Case are also sufficient to dispose of questions 3 and 4 in Mr Kumar’s Notice of Appeal. Those questions are in the following terms:
3. Whether sections 94(1)(d)(a) (sic), 94A, 94C and 94E of the Act applied to the Applicant and whether he was exempted under those sections.
4. Whether sections 94A and 94C of the Act should be read alone to enable the Applicant to fall within the exceptions set out therein.
As I have concluded above, ss.94(1)(da) did not apply to Mr Kumar. Nor did the provisions of ss.94A, 94C and 94E of the Act. I agree with Mr Kumar’s proposition (if I understand it correctly) that ss.94A and 94C (and 94E for that matter) should be read alone, in the sense that they should be read independently of s.94(2)(aa). When that is undertaken, it is clear, in my view, that ss.94A – 94F have no application to Mr Kumar.
The remaining questions
The remaining purported questions of law are all related, although I will deal with question 5 in Mr Kumar’s Notice of Appeal separately. They require a consideration of what constitutes a program of support and then, whether on the facts of this case, Mr Kumar indeed actively participated in a program of support for the purposes of s.94(2)(aa) of the Act.
I have set out the definition of program of support above.
At paragraph 33 of his written submissions Mr Kumar identifies six ways in which he claims to have actively participated in a program of support for the purposes of s.94(2)(aa) of the Act. They are:
a)participating in a return to work scheme on two occasions provided through Workcover NSW and its agents, Zurich Insurance, CGU Insurance and QBE Insurance;
b)two occasions of Job Search Assistance provided to him by two different Job Service Providers, namely Mission Australia Employment Solutions Service and Link Personnel;
c)participating in study funded by an Austudy Allowance; and
d)participating in a rehabilitation program provided by the CRS Australia.
The relevant remaining questions are these:
a)From the Notice of Appeal:
1. Whether a program can be considered a Program of Support within the meaning of section 94(5) of the Social Security Act 1991 (Cth) (“the Act”) despite:
a. being undertaken for Newstart or Austudy or a similar program other than the Disability Support Pension;
b. being undertaken for less than 18 months.
6. Whether a Commonwealth Rehabilitation Services program constitutes a Program of Support within the meaning of the Act and the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (Cth) (the “Determination”) and, whether the Applicant actively participated in, complied and completed this program.
7. Whether the requirements and services offered by Mission Australia Employment Solutions Service, Link Personnel or other designated providers constituted a Program of Support within the meaning of the Act and the Determination and, whether the Applicant actively participated in this program.
8. Whether the HECS funded course at the University of Western Sydney in 2005 and TAFE Course in Granville Sydney on or about 1 February 2011 to 2 December 2011 (“the Educational Courses”) and the Job Search Australia provided by Job Search Australia./Mission Australia Employment Solution Services located in Merrylands, Sydney on or about 30 October 2003 to 18 July 2004, 9 January 2008 to 13 April 2008 and 21 May 2009 to 26 June 2009 (“the Job Search Courses”) constituted a Program of Support within the meaning of the Act and Determination and, whether the Applicant actively participated in this program.
b)From the Application in a Case:
1. Whether I satisfied the conditions for the “Program of Support” within the meaning of section 94 of part 2.3 division 1 of the Social Security Act 1991(Cth) and Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 to be eligible for the Disability Support Pension on the relevant date of claim when:
a) I the employment activities undertaken under the obligation towards the “Return to Work Plan” Workers Compensation Act 1987(NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) or within the meaning of subsection 94E (2) of the Social Security Act 1991 throughout until 14 August 2011 in the past 3 years.
b) I completed “Program of Support” with designated Job Search provider, Mission Australia in the last 3 years of the relevant date of the claim even though the periods of such programs were less than 3 months.
c) I undertook “Austudy course” [Inter alia page 157 of the T-documents] between the period 31 January 2011 and 2 December 2011.
3. Whether I had a “continuing inability to work” on the relevant date of the claim to be eligible for Disability Support Pension within the meaning of 94(c)(i) of the Social Security Act 1991 when:
a) When my assessed work capacity was 0-14 hours per week in the next two years on the relevant date of the claim.
b) I undertook various programs of support as mentioned above in question 1a, 1b and 1c.
In my view, most of these purported questions of law are not questions of law at all. But even if I am wrong about that, an answer to those questions will not assist Mr Kumar in this application.
Section 94(3C) of the Act provides that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection. As I have set out above, the relevant instrument is the Determination. Relevantly, clause 5 of the determination provides:
5. Requirements for active participation
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c) subsection (6) is satisfied in relation to the person and the program of support.
The phrase relevant date of claim is defined in cl.3 of the determination to be the date on which the claim is made or is taken to have been made by Mr Kumar. Thus, cl.5(1)(a)(ii) requires Mr Kumar to demonstrate that he had participated in a program of support during the 36 months ending immediately before 1 May, 2013, or other words in the 36 month period commencing on 30 April, 2010.
Before the Tribunal, Mr Kumar’s case was that he had participated in a program of support for the whole of the period from soon after his accident in 2001 until he ceased receiving workers’ compensation payments in December, 2012. His case was that his program of support was being given a special cushion to sit on while he worked, to limit his driving hours and to stretch on the hour every hour he was at work.
After discussing those claims with Mr Kumar in the course of his evidence, the Tribunal member asked Mr Kumar:
SENIOR MEMBER: Is that the only type of activity you are referring to in order to show that there's a program of support?
WITNESS: That's right, your Honour.
Later, in both his evidence and submissions, Mr Kumar confirmed that his case that he had undertaken a program of support was to found in the Return to Work Plan that had been put in place following his injury in 2001. In fact, he made the point, on several occasions, that he had not been given any other program of support from the respondent, despite him asking to commence one.
The Tribunal member dealt with Mr Kumar’s argument by identifying from the evidence what it was that Mr Kumar contended constituted the program of support and made findings about that program. I have set out the relevant findings above (see paragraphs 13, 14 and 15 of the Tribunal’s reasons set out above). The Tribunal was not satisfied that the Return to Work Plan implemented for the purposes of Mr Kumar’s workers’ compensation matter was a program of support. That finding was plainly open, indeed inevitable, on the material before the Tribunal.
Even if the matters the subject of the questions raised by Mr Kumar are questions of law, they do not arise in the context of this case because Mr Kumar’s case before the Tribunal was limited to the contention that his Return to Work Plan was a program of support for the purposes of the Act. There could be no error of law in the Tribunal not considering or making findings in respect of the purported programs of support upon which Mr Kumar is now attempting to rely, because those matters were not relied upon by him before the Tribunal for that purpose.
Further, there is another reason why, even if the questions posed by Mr Kumar are answered in the way in which he seeks, his application cannot succeed on these questions. To be satisfied that Mr Kumar had participated in a program of support, the responded was required to consider, amongst other things, whether the claimed program of support was specifically tailored to address Mr Kumar’s level of impairment, individual needs and barriers to employment: cl. 6(b) of the Determination. However, there was no evidence at all that in respect of any of the matters now relied upon by Mr Kumar as constituting the relevant program of support, (leaving aside the Return to Work Plan) those programs were specifically tailored to address Mr Kumar’s level of impairment, individual needs and barriers to employment. He could not have satisfied the requirements of cll.5(1)(c) and 5(6) of the Determination on the evidence in any event.
In my view, Mr Kumar does not demonstrate that the Tribunal has made any error, either of law or fact in its determination on the grounds raised by these questions.
Notice of Appeal – question 5
This question is related to the questions that I have just dealt with. It is in the following terms:
5. Whether sections 5(2), (3), (4) and (5) of the Social Security (Requirements and Guidelines – Active participation for Disability Support Pension) Determination 2011 (“the Determination”) exempt the Applicant and if the Applicant falls within the exemptions set out therein.
Clauses 5(1), (2), (3), (4) and (5) of the Determination are in the following terms:
5. Requirements for active participation
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c) subsection (6) is satisfied in relation to the person and the program of support.
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the program.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the relevant date of claim; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the relevant date of claim, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
The Tribunal’s findings of fact relating to the Return to Work Plan are fatal to Mr Kumar’s argument based upon these clauses. Even if the Return to Work Plan constituted a program of support for the purposes of the Act, it was undertaken and completed by Mr Kumar well before the 36 month period immediately preceding his claim. It could not be a program of support for relevant purposes.
Further, to the extent that Mr Kumar sought to rely upon medical certificates that he said led to him receiving exemptions from certain requirements relating to the receipt by him of a Newstart Allowance in that 36 month period, the Tribunal’s reasons and findings explain why those medical certificates did not exempt him form the requirement to participate in a program of support (see paragraphs 16 – 18 of the Tribunal’s reasons).
Conclusion
In my view, Mr Kumar’s purported questions of law do not demonstrate the Tribunal made any errors of law (or fact) in reaching the decision that it did.
In those circumstances, Mr Kumar’s Notice of Appeal must be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 24 March 2016
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