McHaffie and Secretary, Department of Social Services 20224452, 20227119

[2024] AATA 2134

McHaffie and Secretary, Department of Social Services 20224452, 20227119 [2024] AATA 2134 (28 June 2024)

Division:                  GENERAL DIVISION

File Number(s):      2022/4452

Re:Janice Anne McHaffie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

File Number(s):      2022/7119

Re:Janice Anne McHaffie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:28 June 2024

Place:Adelaide

The applications for reinstatement of 2022/4452 and 2022/7119 are dismissed.

.....[sgnd]...................................................................

Senior Member K Millar

CATCHWORDS

PRACTICE AND PROCEDURE – social security – reinstatement – whether applications dismissed in error – where settlement agreements were signed – entering an agreement because of the person’s current financial and personal circumstances does not constitute error – application for reinstatement dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Administration Act 1999 (Cth)

CASES

Goldie v MIMIA [2002] FCAFC 367

Hrvat and Secretary, Department of Social Services [2015] AATA 719

Mori v Secretary, Department of Social Services [2014] FCA 333

REASONS FOR DECISION

Senior Member K Millar

28 June 2024

INTRODUCTION

1. Ms McHaffie has applied for the reinstatement of two applications that were previously before the Tribunal, and which were dismissed as the matters were considered to be resolved by agreement.

2. Ms McHaffie disagrees with decisions that were made that she was a member of a couple with Mr David Russell.  The decision that she was a member of a couple with Mr Russell led to a debt for a compensation recovery charge of $3,405.05 being raised in matter 2022/4452, and a decision to raise and recover a debt of $5,920.42 for the period 7 June 2017 to 27 February 2019 in matter 2022/7119. 

3. These matters were each the subject of an agreement to settle the matter at second tier review. Under s 181 of the Social Security Administration Act 1999 (Cth), where proceedings are settled and the Secretary gives the Tribunal a copy of the agreement to settle the proceedings, the application for review is taken to have been dismissed. This is what occurred with 2022/4452 being dismissed on 30 June 2022 and 2022/7119 dismissed on 7 December 2022.

   LEGISLATION

4. Under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Act’), if it appears to the Tribunal that an application has been dismissed in error, on the application of a party to the proceedings the Tribunal may reinstate the application and give such directions as appear to be appropriate in the circumstances. In general, a party must request reinstatement within 28 days of the matter being dismissed unless the Tribunal allows a further period.

5. If an error is not established, the Tribunal cannot make another decision about a matter it has already decided by dismissing it.

   WHEN CAN MATTERS BE REINSTATED?

6. Matters can be reinstated for a variety of reasons: the error need not be on the part of the Tribunal.[1]  Matters such as changing one’s mind or acting in an ill-informed manner are not sufficient to show an error.[2]  Entering an agreement because of the person’s current financial and personal circumstances is not an error.[3]  Even if error is established, reinstatement is a discretion, and the matter may not always be reinstated even if an error is shown.

   [1] Goldie v MIMIA [2002] FCAFC 367, [29].

   [2] See, for example Hrvat and Secretary, Department of Social Services [2015] AATA 719.

   [3] Mori v Secretary, Department of Social Services [2014] FCA 333.

7. The first decision in 2022/4452 was the subject of a ‘Notice of Agreement to Settle Proceedings’ on 28 June 2022 and the second in 2022/7119 was the subject of a ‘Notice of Agreement to Settle Proceedings’ on 6 December 2022. 

8. Ms McHaffie acknowledges that she signed these agreements, and that she was given 14 days between being provided with an offer to settle proceedings by the Secretary and the date the offer closed.  She was not the subject of any orders from a Court or Tribunal that she did not have capacity to make decisions. 

9. The Secretary provided information to show that the Secretary had complied with the agreement to settle the matters, and that the amounts due to be reimbursed following the settlement agreements had been credited to Ms McHaffie’s account on 22 July 2022 and 13 December 2022.

10. In her submissions, Ms McHaffie states that she  

    didn’t proceed because I was advised by Legal Aid not to.  I didn’t agree but went on their advice and didn’t understand what I was signing.  I just felt that I had no choice because of what I was told and I was financially ruined.  I honestly didn’t know about any consequences of what I was signing.

11. In further submissions, Ms McHaffie repeats that she considers the decisions to be wrong, and that the overpayment was raised in error.  She said that she has since proven that she was not a member of a couple with Mr Russell.  She has had surgery every year since 2017 and has been on medication each time.  She has had splints on her hands and has found it very difficult and painful.

12. At the time she accepted the offers she says she was living off $150 per week and was struggling with her medical bills, and that when she received the call from the Services Australia representative, she accepted the offer immediately without thinking as she felt she had no choice. 

13. In response to the submission from the Secretary that an error cannot be established because the person changes their mind, Ms McHaffie said she did not change her mind about settling at a late stage but was instructed to accept the offer by legal services. This shows that Ms McHaffie sought and received legal advice before deciding to sign the settlement agreement.   

14. Ms McHaffie says she did not understand that she was signing a waiver and was suffering from post-traumatic stress disorder from watching her father die from asbestos related illness in 2019 – 2020.  She claims that she did not agree to what she was offered.  As Ms McHaffie articulated a rationale for why she accepted the offer, sought legal advice for one of the matters, had time between the offers being made and accepting the offers, and acknowledged that she had signed the settlement notice, I consider that she did agree to what she was offered. 

15. Ms McHaffie says that her application to reinstate the matters was delayed because she was not aware of time limits at the time.  She was very ill and had to wait 12 months to go to hospital as she had cancelled her health insurance due to lack of money.  The stress of her situation has caused diverticulitis and oesophagitis and she cannot afford to go back to her specialist due to the cost and her $5,000 visa card debt.   

16. That Ms McHaffie would make a different decision about settling the matters now does not mean that there was an error in the decisions to dismiss.  Ms McHaffie was provided with 14 days to consider the offer on each occasion and signed the settlement agreement 12 days after the offer was made in 2022/4452, and after five days in 2022/7119. She obtained legal advice on at least one  occasion. 

17. I accept that she was under financial pressure and that this may explain her reasons for signing the agreements, but it does not show that the matter was dismissed in error.  

18. As I do not consider that the applications were dismissed in error, the circumstances in s 42A(10) of the Act to reinstate the applications do not exist. As a result, the application to reinstate matters 2022/4452 and 2022/7119 is dismissed.

    DECISION

19. The applications for reinstatement of 2022/4452 and 2022/7119 are dismissed.

20.      

21.     I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

...[sgnd]...............................................

Associate

Dated: 28 June 2024

Date of hearing:	12 June 2024
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Riley Calaby, Services Australia