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

[2016] AATA 521

Nguyen and Secretary, Department of Social Services (Social services second review) [2016] AATA 521 (7 July 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2911
Re	Tu Nguyen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	7 July 2016
Date of written reasons	22 July 2016
Place	Sydney

The Tribunal refuses the applicant’s application for an order staying the implementation of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 18 May 2016.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application for stay of decision – prospects of success of the substantive application – whether there will be prejudice to the parties if a stay were not granted – whether there is evidence of financial hardship – stay refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 41(1) and 41(2)

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011

CASES

Re Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065

REASONS FOR DECISION

Senior Member A Poljak

22 July 2016

INTERLOCUTORY APPLICATION

1. On 18 May 2016, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”) affirmed the decision of the Secretary to cancel the applicant’s disability support pension (“the decision”).

2. The basis of the decision was that the applicant, Mr Nguyen, ceased to satisfy the criteria for the disability support pension set out in section 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (“the Act”) at the date of cancellation on 14 October 2015. Mr Nguyen seeks review of the decision (“substantive matter”).

3. These interlocutory proceedings concern the applicant’s application for an order made on 8 June 2016 under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AATAct”) staying the operation of the decision until final determination of the substantive matter before this Tribunal. That is, the applicant seeks to have his disability support pension reinstated.

4. The Secretary opposes the granting of a stay order.

5. At the hearing of the application for a stay, I made an oral decision refusing to grant the stay. These are my written reasons for doing so.

   POWER TO GRANT A STAY

6. Section 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. In other words, the decision under review has full effect until and unless it is set aside or replaced.

7. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to s 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’

8. In Re Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:

   [6] The decision whether to grant a Stay is entirely discretionary.  It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise.  Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions.  In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. (emphasis added)

   [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications.  Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

   (a)The prospects of success or the merits of the applicant’s case on review.

   (b)Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

   (c)Whether it is in the public interest to grant a Stay.

   (d)     That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

   PROSPECTS OF SUCCESS

9. The Secretary contends that Mr Nguyen’s prospects of success in the substantive matter are poor.

10. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of Mr Nguyen’s application for review.

11. The power for the Secretary to cancel Mr Nguyen’s disability support pension is contained in section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). The cancellation decision takes effect on the day on which it was made, in this case on 14 October 2015 (“date of cancellation”), pursuant to s 118(13) of the Administration Act.

12. In assessing whether Mr Nguyen qualified for the disability support pension in 2015, Centrelink was required to apply the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”), pursuant to subsections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables which applied when Mr Nguyen was granted the disability support pension in 2007.

13. Section 94 of the Act provides that, to qualify for the disability support pension, a person must have:

    (i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Impairment Tables; and

    (ii)a continuing inability to work as defined in the Act.

14. Mr Nguyen had to satisfy these criteria at the date of cancellation.

15. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Before giving a rating under the Impairment Tables, a condition must be fully diagnosed, treated and stabilised (Part 2, clause 6 of the Impairment Tables).

16. The Secretary accepts that the condition of poliomyelitis is fully diagnosed, treated and stabilised. In regards to the functional impact this condition has on upper and lower limb function, the Secretary contends that based on the medical evidence, Mr Nguyen’s combined impairment rating would not reach 20 points under the Impairment Tables. My preliminary view of the matter is that this is correct.

17. The Secretary also contends that Mr Nguyen’s mental health condition cannot be considered as fully diagnosed at the date of cancellation because a diagnosis had not been confirmed by a clinical psychologist or psychiatrist pursuant to the Introduction to table 5 of the Impairment Tables. Having read the decision under review and having taken into account the submissions made by the parties, I accept that this may well be the case. It follows that no impairment rating may be given to this impairment.

18. At the hearing, Mr Nguyen was self-represented. 

19. In the application for a stay order the applicant has stated the order sought is “to reinstate the payment, the applicant’s condition was much worse than when the original decision was made in 2007” which does not support that the original decision was incorrect but rather that the applicant’s circumstance have changed.

20. I do not consider that the substantive matter has great prospects of success and this weighs heavily against the granting of a stay.

    PREJUDICE TO THE PARTIES AND THE PUBLIC INTEREST

21. It is not in the public interest to provide payments that are clearly not due. If a stay is granted and my assessment of Mr Nguyen’s prospects of success at a substantive hearing are correct, there is a real risk that he may incur a substantial debt which the Secretary would then have to recover, at some expense to the taxpayer.

22. The recovery of such a debt would place financial burden on Mr Nguyen and may lead to financial hardship. This is of particular concern because Mr Nguyen is already in the process of paying back a debt to the Commonwealth in the order of approximately $600, which he stated at the hearing.

23. Consequently, the prejudice to the parties and the public interest considerations do not favour the grant of a stay in this case.

    FINANCIAL HARDSHIP

24. There is no evidence that Mr Nguyen is currently in financial hardship.

25. The Secretary relevantly noted that Mr Nguyen had the option of testing his eligibility for other Centerlink payments (such as Newstart allowance) which mitigates any potential for him to suffer financial hardship pending final determination of the substantive matter.

    CONCLUSION

26. For the reasons given above, the application for a stay was refused at the hearing of the interlocutory application.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 22 July 2016

Date(s) of hearing	7 July 2016
Solicitors for the Applicant	Nguyen & Co. Solicitors
Solicitors for the Respondent	Mr A Lones, Department of Human Services