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

[2023] AATA 4415

Manjunath and Secretary, Department of Social Services (Social services second review) [2023] AATA 4415 (20 December 2023)

Division:GENERAL DIVISION

File Number:          2023/3122

Re:Swaroop Manjunath

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date of decision:                   20 December 2023

Date of written reasons:        19 January 2024

Place:Melbourne

1.    The Tribunal is satisfied that the Applicant was given appropriate notice of the telephone directions hearing which was listed for 20 December 2023.

2. The Tribunal, acting under s 42A(2)(a) of the Administrative Appeals TribunalAct 1975 (Cth)(‘the AAT Act’) –

(a)DIRECTS that the Applicant provides, by 5 pm on 22 December 2023, any written reasons or medical evidence as to why he did not appear at the telephone directions hearing.

(b)If the Applicant does not give an indication to the Tribunal by the date in 2(a), the application will be deemed to be dismissed under s 42A(2)(a) of the AAT Act at that time.

..............[sgn]..........................................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – where applicant is recipient of disability support pension – where applicant received advance payment – where applicant requested that DSP not be withheld as repayment of advance payment due to hardship – where agency decided recovery of advance payment could not be waived – where applicant sought review by authorised review officer – where original decision affirmed – where applicant sought review by Tribunal – where Tribunal affirmed reviewable decision – where applicant sought Second Review by Tribunal – where respondent sought dismissal on basis application has no reasonable prospect of success – advance payment where person still has social security entitlement is not a debt – debt waiver provisions not available as relief

PRACTICE AND PROCEDURE – where applicant notified of telephone directions hearing – where shortly before hearing applicant sought adjournment – where Tribunal adjourned hearing – where applicant notified of date and time of resumed hearing – where applicant failed to appear – where Tribunal directed applicant to provide written reasons or medical evidence as to non-appearance with failure to do so enlivening a contingent dismissal – where no material provided – application dismissed for non-appearance

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Cases

Re: Little and Secretary, Department of Family and Community Services [2004] AATA 406

REASONS FOR DECISION

Senior Member D. J. Morris

19 January 2024

1. Mr Manjunath has been in receipt of disability support pension (‘DSP’) since June 2021. His entitlement to DSP is not in issue in relation to this decision and these reasons.

2. On 10 October 2021 Mr Manjunath applied for advance payment of DSP. On 13 October 2021 Services Australia, an agency which is part of the Respondent’s Department, granted the Applicant advance payment in the amount of $1,372.65.

3. On 24 November 2021 Mr Manjunath asked Services Australia not to withhold any of his DSP as repayment in regard to the payment advanced to him, owing to hardship. On the same day, Services Australia paused recovery of the advance payment because Mr Manjunath experienced unexpected medical expenses.

4. On 2 February 2022, an officer of Services Australia decided that the recovery of the advance payment could not be waived because it was not a debt. This was the original decision.

5. On 28 February 2022, Services Australia recovered $105.60 in relation to the DSP advance payment.

6. On 17 May 2022 Mr Manjunath asked that the original decision be reviewed by an authorised review officer (ARO), who is an officer of the Department not involved in the original decision. In his request, the Applicant wrote:

   Due to special circumstances relating to health medical and financial I’m requesting the full waiver/cancellation of remaining $1267 owing from $1372 advance payment. I cannot repay this debt and I need full waiver/cancellation.

7. On 6 June 2022, the ARO affirmed the original decision.

8. On 21 September 2022, Mr Manjunath sought review by the Social Services and Child Support Division of the Tribunal (‘First Review’). On 31 March 2023 the First Review affirmed the decision.

9. On 3 May 2023, the Applicant sought a Second Review with the General Division of the Tribunal, as he is entitled to do. The Tribunal records indicate that on 31 July 2023 Mr Manjunath asked for a scheduled mediation conference to be postponed. Subsequently the Applicant had a discussion with a Conference Registrar and agreed that the matter should be listed for a telephone directions hearing before a Member, in order to ascertain whether he wanted to proceed with his application.

10. On 9 November 2023, the representative of the Respondent indicated the Department agreed that a telephone directions hearing was desirable and that submissions would be made seeking dismissal of the application on the basis of no reasonable prospect of success.

11. On 30 November 2023, the Respondent wrote to the Applicant and also lodged submissions with the Tribunal requesting that Mr Manjunath’s application be dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) as it has no reasonable prospect of success.

    DIRECTIONS HEARING

12. On 15 November 2023, a listing notice was sent to the parties that a telephone directions hearing would be held on 4 December 2023. On 22 November 2023, the Tribunal’s associate emailed the parties to confirm the hearing on 4 December 2023 at 10.00 am.

13. At 9.33 am on 4 December 2023, the Applicant emailed the Tribunal’s associate in the following terms:

    I’m unable to take part in this today due to health medical reasons, so need to have it rescheduled/postponed?

14. Given the close proximity to the hearing, the Tribunal convened the hearing at 10.00 am on 4 December 2023, as listed. The Tribunal intended to hear any submissions from Mr Manjunath as to the medical reasons that prevented him from participating that day, and for the Respondent to make any response. Each party was contacted but the Applicant then hung up and could not be recontacted. Given he had cited medical reasons in his (eleventh hour) email to the Tribunal, the Tribunal decided to adjourn the directions hearing until 20 December 2023.

15. At my direction, the Tribunal’s associate wrote to the Applicant in the following terms, sent by email:

    Dear Mr Manjunath,

    You advised at 9.33 am this morning that you were unable to take part in the telephone directions hearing this morning for "health medical reasons". I informed the Senior Member who indicated the hearing at 10 am should go ahead where you would have your own opportunity to either seek an adjournment or proceed. I telephoned you to inform you of this, and also conveyed the Senior Member's offer that the matter could be dealt with on the papers (i.e., without a hearing), should you so consent.

    At the directions hearing, the Tribunal explained you had emailed saying you did not want to proceed for medical reasons and asked the view of the Respondent. The Respondent reiterated the position in their written submissions that the matter should be dismissed for not having any prospect of success, but was open to postponing the hearing. The Respondent asked that, if you request another postponement, you be asked to lodge proper medical evidence for that further delay or else the Tribunal can deal with the matter for failure to appear or no prospect of success (ss 42A and 42B of the Administrative Appeals Tribunal Act 1975).

    The Tribunal adjourned the telephone directions hearing until 10 am on 20 December 2023. I have attached a new listing notice for that date. In the meantime, can you please provide us with any medical certificate or evidence of your inability to attend today.

    The Senior Member asked me to remind you that you can still request that the matter be dealt with on the papers. If you wish to take up this option, you will have the opportunity to make a written submission in support of your case. Please let me know if you would prefer to take this course.

16. As mentioned above, a listing notice was then sent to the parties advising of the date and time of the resumed directions hearing. The Tribunal undertook a prehearing check with the Applicant on 15 December 2023 and sent him a reminder by text message on 19 December 2023.

17. When the directions hearing resumed on 20 December 2023, the Respondent was represented by Ms Aarabi Raveendiran, Senior Government Lawyer, Services Australia. In spite of several attempts, the Applicant was unable to be contacted.

18. The Tribunal took into account a volume of documents lodged by the Respondent under s 37 of the AAT Act (‘TD’ documents); a volume of supplementary documents lodged by the Respondent under s 38AA of the AAT Act (‘STD’ documents) and a document titled Respondent’s Submissions, lodged on 30 November 2023.

    CONSIDERATION

    The substantive matter

19. On 10 October 2021 Mr Manjunath requested an advanced payment of his DSP totalling $1,372.65. This request was granted, and the advance was issued to the Applicant on 13 October 2021 (TD, pp 13-15).

20. On 24 November 2021 (STD, p 1) the Applicant contacted Services Australia requesting a change in the repayments of the DSP advance paid to him owing to special and unusual circumstances. Mr Manjunath requested that the repayments decrease to zero dollars. A delegate of the Secretary approved the request to decrease the recovery amount and an officer recorded that:

    The Customer is aware that the decrease in their deduction is of a temporary nature due to Special and Unusual circumstances. The repayments will increase back to the standard recovery rate from 24 Feb 2022. Outstanding balance amount of $1372.65. Old fortnightly deduction amount was $105.60. New fortnightly deduction amount is $0.00. This decision was made under Section 1061 of the Social Security Act.

21. In February 2022 (STD, p 3), Mr Manjunath contacted Services Australia seeking a further suspension of repayment of his DSP advance payment for another three months due to ‘unforeseen medical expenses that he has had over the last 3 months’. It was recorded that the Applicant told an officer that he has an ‘additional $4,000 plus’ in out-of-pocket medical expenses and repaying the advance would place him in severe financial hardship. The officer recorded that Mr Manjunath was told that based on current circumstances he will not be able to get another advance until the one he is currently repaying has been repaid.

22. The Applicant then lodged a request for a review by an ARO and wrote (STD, p 5):

    “Due to special circumstances relating to health medical and financial I’m requesting the full waiver/cancellation of remaining $1267 owing from $1372 advance payment. I cannot repay this debt and I need full waiver/cancellation.”

23. Section 1061(1) of the Social Security Act 1991 (‘the Act’) provides:

    Qualification for advance payment

    Qualifications

    (1)         Subject to this section, a person is qualified for an advance payment of a social security entitlement only if:

    (a)       The social security entitlement is payable to the person; and

    (b)the person has been receiving an income support payment for a continuous period of 3 months immediately before the day on which the person’s application for the advance payment is lodged; and

    (d)the Secretary is satisfied that the person will not suffer financial hardship from reductions in instalments of the social security entitlement as a result of receiving the advance payment.

24. Section 1061EL of the Act provides that a person must repay the advance payment to the Commonwealth either by dedications from the person’s social security entitlement or a method provided for in Chapter 5 of the Act which deals with overpayments and debt recovery, or by another method that is acceptable to the person and the Secretary.

25. Section 1224E of the Act provides that if a person who is receiving a social security entitlement has received an advance payment but has not repaid it and ceases to be a recipient of the social security entitlement, the amount that has not been repaid is a debt due to the Commonwealth.

26. The Act provides, in Part 5.2, extensive provisions relating to the recovery of debts due to the Commonwealth from, for example, overpayment of, or lack of qualification for, a social security entitlement. Part 5.4 of the Act sets out provisions for when the Secretary can write off a debt (s 1236), waive the right to recover a debt (s 1237); waive a debt arising from error (s 1237A); waive a debt relating to an offence where the Court has made a relevant order (s 1237AA); waive a small debt (s 1237AAA); waive a debt in relation to a settlement (s 1237AAB); waive a debt where the debtor or the debtor’s partner would have been entitled to an allowance (s 1237AAC) or waive a debt owing to special circumstances (s 1237AAD).

27. It would appear that Mr Manjunath was seeking relief under the discretionary powers available in s 1237AAD of the Act. However, the difficulty for the Applicant is that there is no contest that he was, at the time he was given an advance payment, and continues to be, entitled to receive DSP. Section 23 contains the Dictionary of terms used in the Act. The term “social security entitlement” lists eight pensions, allowances or payments encompassed by this term, and includes DSP. In this case, because Mr Manjunath has a social security entitlement, the decision by the Respondent to advance payment to him early at his request does not constitute a ‘debt,’ precisely because the advance payment is an entitlement. However, as set out above, the Act requires that such an advance payment must be repaid, and the usual way of repayment is by instalments from future social security payments.

28. Therefore, there is no provision for the Secretary to ‘waive’ or ‘cancel’ the requirement for the Applicant to repay the advance payment of his DSP. The Respondent drew the Tribunal’s attention to a decision in Re: Little and Secretary, Department of Family and Community Services [2004] AATA 406. In that matter Mr Little had been in receipt of Carer Payment (CP) in respect of his wife. The Department paid him an advance payment of $500 in relation to his CP. At that time Mr Little’s wife had left the family home for what he believed was a temporary absence. The advance payment was paid into a bank account accessible by both Mr Little and his wife. The whole amount was withdrawn. Mr Little and his wife subsequently became estranged. The Tribunal found that the advance payment was improperly made, because Mr Little did not request it. Mr Little repaid the advance, but then brought the matter to the Tribunal saying that, in the circumstances, he should not have been required to repay the advance of CP.

29. While Member Barton made certain recommendations relating to the defective manner in which the CP had been advanced to Mr Little, he relevantly found, at [6] as follows:

    The Tribunal finds that the advance payment of CP was never a debt due to the Commonwealth because the circumstances in which it was paid and repaid precluded it or any part of it from becoming a debt due to the Commonwealth pursuant to the above provisions of s 1224E(1). It follows that the respondent (and therefore the Tribunal) does not have a discretion in terms of any of the provisions of the Act…to waive the right of the Commonwealth to the amount of the advance payment of CP repaid.

30. I agree with, and adopt, the reasoning of the learned Member in that matter. While the difference here is that Mr Manjunath requested the advance payment of his DSP (unlike Mr Little), there is no power for the Tribunal, standing in the shoes of the Secretary, to exercise any of the discretionary powers in relation to whether to recover a debt owed to the Commonwealth because there is no debt.

31. The Tribunal cannot give the financial relief to Mr Manjunath that he seeks. The Respondent is required by law to recover the advance payment by instalments (or another agreed method) from Mr Manjunath’s regular DSP payments.

32. In the ordinary course, the Tribunal would have explained this to the Applicant at the interlocutory directions hearing and would have made orders dismissing his application on the basis that there was no prospect of success under s 42B(1)(b) of the AAT Act.

    Failure of Applicant to appear

33. However, in this case the Tribunal was satisfied under s 42A(7) of the AAT Act that Mr Manjunath had been given adequate notice of the interlocutory hearing by telephone convened on 20 December 2023, and that he failed to appear.

34. To assure itself that, in a case where the Applicant may not have appeared because of a medical emergency and therefore dismissal of the matter under s 42A(2) of the AAT Act may be seen to be harsh, the Tribunal made orders on 20 December 2023 that the dismissal was contingent and would not take effect until 5.00 pm on 22 December 2023, to give Mr Manjunath the opportunity to provide the Tribunal with any medical or other evidence he wished to. These orders were emailed to the parties.

35. In the event, no such information was submitted to the Tribunal, so the dismissal of the application occurred at the time foreshadowed in the order.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate

Dated: 19 January 2024

Date(s) of hearing:	4 & 20 December 2023
Applicant:	Self-Represented
Counsel for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia Litigation Branch