Noakes and Secretary, Department of Social Services (Social security)
[2018] AATA 1457
•23 May 2018
Noakes and Secretary, Department of Social Services (Social security) [2018] AATA 1457 (23 May 2018)
Division:GENERAL DIVISION
File Number:2018/1590
Re:Paul Noakes
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:23 May 2018
Date of written reasons: 30 May 2018
Place:Brisbane
Pursuant to s 42B(1)(b) of the Administrative Appeals Act 1975 (Cth), the substantive application for review in this matter, namely Tribunal Application Number 2018/1590, is dismissed.
..........................[sgd]..............................................
Senior Member Theodore Tavoularis
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – portability – overseas travel by Applicant exceeded “allowable absence” – no determination in place for unlimited portability – no formal request for unlimited portability – power of Tribunal to dismiss proceedings – whether proceedings have any reasonable prospects of success – application dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Social Security Act 1991 (Cth), ss 1213, 1215, 1217, 1218AAA, 1218C
Social Security (Administration) Act 1999 (Cth), s 80CASES
Duncan v Fayle [2004] FCA 723
Kristoffersen and Secretary, Department of Social Services [2015] AATA 806
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Spencer v Commonwealth of Australia [2010] HCA 28
Theo v Secretary, Department of Family and Community Services [2006] FCA 279SECONDARY MATERIALS
Guide To Social Security
REASONS FOR DECISION
Senior Member Theodore Tavoularis
30 May 2018
INTRODUCTION
The Applicant has applied for review of a decision of the Social Services and Child Support Division of this Tribunal (“AAT1”) made on 27 February 2018. That decision addressed two issues:
(a)whether the Applicant’s Disability Support Pension (“DSP”) was properly suspended on 25 November 2016; and
(b)whether the Applicant’s DSP was properly cancelled on 24 February 2017.
AAT1 answered the first of those questions in the affirmative and the second in the negative.
The substantive application was listed for hearing in this Tribunal on 23 May 2018. In the course of several telephone directions hearings before the substantive hearing, the Respondent formed an intention to bring an application seeking an order for the dismissal of the substantive application. The basis of the dismissal, according to the Respondent, is that the substantive application lacks substance or has no reasonable prospects of success.[1]
[1] See ss 42B(1)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (Cth). See also the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) dated 10 May 2018.
If the outcome of the dismissal application is in the affirmative, that would be the end of the substantive application. If the dismissal application is refused, the Tribunal will hear and determine the following two substantive issues:
(a)whether the Applicant’s DSP was properly suspended on 25 November 2016; and
(b)whether the Applicant’s DSP was properly cancelled on 24 February 2017.
I should note at this early stage that this decision only relates to whether or not the Applicant’s substantive application before the Tribunal should be dismissed. It is clear that the Applicant is not a well man. However, any mental or physical incapacity the Applicant may have is not in issue here. Indeed, the starting point for this case is that the Applicant was in receipt of the DSP and so is evidently sufficiently unwell to attract that social security payment. Indeed, his depression was said to attract 30 impairment points under the relevant table in a 2010 Job Capacity Assessor Report.[2] However, the fact the Applicant suffers from mental or physical incapacities is not a carte blanche allowing him to otherwise avoid the requirements of social security law, and nor is it, by itself, a reason his application ought not be dismissed.
[2] T-Documents, T7, p 64.
THE LEGAL STANDARD FOR DISMISSAL
The Respondent’s dismissal application was brought under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), which provides as follows:
42B - Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that 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.
It is clear from this section that the Tribunal’s power to dismiss may be exercised at any point in the proceedings. Given the expedited nature of the hearing in this case, I have determined that it was appropriate for the dismissal application to be heard immediately before the commencement of the substantive hearing in this matter.
The precedent to be gleaned from the relevant authorities is that the power to dismiss must not be randomly or arbitrarily exercised. A decision-maker must be satisfied that an application is futile before exercising the power to dismiss. Ascertaining the futility of an application involves “… a consideration of the merits in the sense that it requires a finding that the application cannot succeed.”[3]
[3] Theo v Secretary, Department of Family and Community Services [2006] FCA 279 at [29] and [44] per Spender J, quoting French J in Duncan v Fayle [2004] FCA 723 at [22].
Consideration must also be given to understanding the applicable threshold of poor and unconvincing prospects or merits of a given application. The threshold is not to be found in concepts such as “obviously untenable” or “manifestly groundless” or “utter hopelessness”. For an application (or other proceeding) to have a “reasonable prospect” of success, those prospects must be identifiable or “real” as opposed to “fanciful”.[4] The power to dismiss may be exercised “… if and only if, [the decision maker is] satisfied that there is ‘no reasonable prospect of success’”.[5]
[4] See Spencer v Commonwealth of Australia [2010] HCA 28 at [22] per French CJ and Gummow J, and at [56] per Hayne, Crennan, Kiefel and Bell JJ.
[5] Spencer v Commonwealth of Australia [2010] HCA 28 at [60] per Hayne, Crennan, Kiefel and Bell JJ.
Perhaps of most relevance to the application now before me are the comments of the Tribunal in Reddish and Civil Aviation Safety Authority [1999] AATA 721:
…an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone’s time and money for [the application for second review] to be allowed to remain on foot[6]
[6] Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [33] per DP Blow.
WHAT DOES SUCCESS LOOK LIKE FOR THE APPLICANT?
As noted above, there are two issues before the Tribunal in the substantive application of this matter:
(a)whether the Applicant’s DSP was properly suspended on 25 November 2016; and
(b)whether the Applicant’s DSP was properly cancelled on 24 February 2017.
Importantly, the decision under review, made by the AAT1, was that the Applicant’s DSP was not properly cancelled, but was properly suspended.[7] Consequently, for the Tribunal to make a decision that would be of any practical benefit to the Applicant, I must be reasonably satisfied that his DSP should not have been suspended on 25 November 2016.
[7] T-Documents, T2, p 19.
I will not turn my mind to whether the Applicant’s DSP was properly cancelled for the simple reason that the AAT1 decision grants the Applicant the maximum practical benefit possible from that issue – it determined that the Applicant’s DSP ought not have been cancelled. Therefore, the Applicant cannot gain any practical benefit from my determination of that issue. If I were to set aside that decision, the result would in fact be a practical detriment to the Applicant.
THE SUSPENSION QUESTION
Relevant Facts
The Applicant has been in receipt of the DSP since 2010.[8] On 31 October 2016, he notified Centrelink that he would be travelling to Vietnam on 5 November 2016 for a period of four weeks (i.e. up to 3 December 2016).[9] At the time, unless a person was granted “indefinite portability”, the maximum period of time a person could be overseas and still be paid the DSP in any 12-month period was 28 days.[10] Accordingly, and due to the other overseas trips the Applicant had taken in the prior 12 months,[11] the Centrelink file notes recorded that the Applicant was entitled to be paid until 25 November 2016.[12]
[8] T-Documents, T1, p 6.
[9] Ibid, T21, p 150.
[10] Social Security Act 1991 (Cth), s 1217.
[11] See T-Documents, T20, p 144.
[12] T-Documents, T21, p 150.
On 25 November 2016, the Applicant was sent a notice that his DSP payments had been suspended.[13] This notice further said “If you do not agree with a decision we have made… [c]ontact us and ask for a review of a decision. We will change it if it is wrong.”[14] On the evidence before me, it does not appear that the Applicant contacted the Respondent again until 27 January 2017.[15]
[13] Ibid, T9, p 87.
[14] Ibid, p 88.
[15] Ibid, T 21, p 152.
The Applicant explains the lack of contact he had with Centrelink between when he departed for Vietnam on 5 November 2016 and his contact with Centrelink on 27 January 2017, as being because he was in hospital. The Applicant’s hospitalisation arose because he was hit by a car on 26 December 2016 while riding a bicycle in Vietnam.[16] It seems he was very seriously injured and spent at least a month in hospital. The Applicant then says he was “stranded in Vietnam” as the staph infection he developed secondary to his accident precluded him from flying.[17] Notably, however, this accident and the subsequent hospitalisation occurred around a month after the Applicant’s DSP was cancelled. I do not doubt, per the Applicant’s Affidavit dated 16 May 2018, that these injuries have had serious knock-on effects for the Applicant. After a long convalescence, the Applicant finally returned to Australia on 23 January 2018.[18]
[16] Ibid, p 153.
[17] Applicant’s Affidavit Affirmed on 16 May 2018.
[18] T-Documents, T20, p 144.
On 27 January 2017, the Applicant contacted the Respondent to inquire about the possibility of his portability being extended. However, he was told that this would not be possible as his DSP had already been suspended by the time he was hospitalised.[19]
[19] Ibid, T21, p 152.
The Applicant has contended that:
…Centrelink knew I was severely impaired before I sought medical treatment over In Vietnam in November 2016 and was ready to come back to Australia when the accident happened. Centrelink knew my intentions to return home to Australia. Centrelink should have granted portability before I left.[20]
[20] Applicant’s Affidavit Affirmed on 16 May 2018.
Presumably, this is referring to being granted indefinite portability, as DSP recipients automatically have 28 days’ portability for any given 12-month period.[21] This accords with the Applicant’s submission that “Centrelink before I left to go overseas on 5th November 2016 denied me seeking portability from February 2016- November 2016, by not disclosing 1218 AAA Clause as I was severely impaired.”[22] Section 1218AAA of the Social Security Act 1991 (Cth) (“the Act”) relates to permanent portability for DSP recipients. However, the evidence discloses that the Applicant’s recollections as stated in his Affidavit of 16 May 2018 are incorrect.
[21] Social Security Act 1991 (Cth), s 1217.
[22] Applicant’s Affidavit Affirmed on 16 May 2018, [15].
In a letter entitled “Acknowledgement of your Complaint” and dated 5 July 2016 (some four months before the Applicant travelled overseas), a Senior Complaints Officer from the Department of Human Services wrote to the Applicant and relevantly stated:
I am writing to acknowledge the receipt of the complaint you lodged with the Department of Human Services (the department) via the Commonwealth Ombudsman’s Office on 4 July 2016.
You complained that the department is not assisting you to have your Disability Support Pension [DSP] permanently made portable overseas due to your special circumstances. You say that the requirement of completing associated paperwork contributes to your anxiety and depression…
I have previously written to you on 15 January 2016 when you did not agree with the legislative changes introduced by the Commonwealth Government from 1 January 2015 relating to the portability of DSP…
I have investigated your current Centrelink records and note that you have been offered assistance on multiple occasions in relation to your claim for permanent portability. Officers of the department have given you information relevant to your situation. Your current Case Manager Andrew offered to complete the forms with you over the phone and then send them to you for your approval and signature. He has also offered to have a third party help you to complete the required forms. These offers of assistance were declined by you.
You participated in a 3 way telephone conversation on 4 July 2016 with Derek from the department’s International Services Branch and Andrew. You were provided with a detailed explanation of DSP portability rules. Derek explained that if your circumstances remain the same then your DSP payments would continue [I]f your circumstances change such as requesting permanent portability, then your DSP needs to be assessed under the new rules which were introduced from 1 January 2015.[23]
[23] T-Documents, T23, p 211.
In an affidavit affirmed by the Applicant on 10 October 2016, the Applicant indicates he had discussed indefinite portability with “Derek” from Centrelink,[24] This affidavit also discloses that “Andrew” from Personalised Services contacted the Applicant about filling in the forms for indefinite portability in a phone call,[25] and in a letter.[26] The Applicant also mentioned that he and Andrew “had communication jointly with Derek”.[27] The Applicant strenuously denied that anyone from Centrelink tried to help him fill out the forms, although he recognised that Andrew had said he had.[28]
[24] Ibid, T15, p 125, [40].
[25] Ibid, [43].
[26] Ibid, [45].
[27] Ibid, p 126, [55].
[28] Ibid, [53].
I note that this affidavit is dated from before the Applicant travelled to Vietnam, and plainly discloses that (1) the Applicant knew about indefinite portability for his DSP, and (2) knew that forms needed to be filled out for that to occur. His assertion that a Centrelink case officer has lied about helping the Applicant fill out forms is troubling, although it is unsubstantiated. I make no positive finding regarding whether the any Centrelink officer did or did not offer to help the Applicant fill in his forms.
I find that Centrelink not only disclosed the option of indefinite portability to the Applicant, but relevant officers provided the forms necessary for the Applicant to lodge an application for indefinite portability at least four months before he traveled to Vietnam. Additionally, Centrelink/the Respondent furnished the Applicant with “a detailed explanation of DSP portability rules”,[29] which presumably would have included the requirements of s 1218AAA.
[29] Ibid, T23, p 211.
On the basis of this factual scenario, I must then determine whether the Applicant’s DSP was properly suspended.
How does portability of DSP work?
The basic concept of portability is to allow a recipient of a social security payment to continue to receive that payment throughout that recipient’s period of absence from Australia. Understandably, the Act establishes specific and strict requirements that must be met if a social security payment is to be made to a recipient while abroad.
The General Provisions
Section 1213 of the Act bestows a right of portability on a person during a period of absence from Australia. For s 1213 to have operation, it is mandatory for a putative recipient of portability to be in receipt of a specifically defined social security payment. There is no question that DSP does constitute “a social security payment” for present purposes.[30]
[30] DSP is one of the listed social security payments appearing in Column 2 of the table at the end of section 1217 of the Act.
The determination of any issue surrounding the grant of portability requires an appreciation of three additional concepts:
(a)maximum portability period: comprises a “total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension.”[31]
(b)allowable absence: is one that “does not… cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28” [days].[32]
(c)portability period: for present purposes, the Applicant seeks portability for the purpose of seeking medical treatment. In that event, the maximum allowed portability period is four (4) weeks.[33] Where a person’s maximum portability period is not for an unlimited period, the portability period:
(i)begins at the commencement of the period of absence; and
(ii)ends at the earlier of:
· the first time during the period of absence at which the absence is not an allowable absence in relation to the payment; or
· the end of the period that is the person’s maximum portability period for the payment.[34]
[31] Section 1217 of the Act, Column 5: For DSP column item.
[32] Section 1217(2)(b)(ii) of the Act.
[33] Section 1217, Row 2AA of the Act.
[34] Section 1217(4)(b)(i) and (ii) of the Act.
Specific provisions that may relate to the Applicant
There are two provisions that may come to the aid of the Applicant. First, s 1218C of the Act allows for extension of a person’s DSP portability in certain circumstances. That section provides:
1218C Extension of person’s portability period – general
1the Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) a serious accident involving the person …
…
(c) the hospitalisation of the person …
Second, s 1218AAA(2) allows for a severely disabled DSP recipient to request indefinite portability in respect of their payments. Section 1218AAA(2) provides:
(2) The Secretary must not make a determination [regarding unlimited portability] in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i)a serious accident involving the person;
(ii)the hospitalisation of the person; and
(b) the person’s portability period for disability support pension had not ended at the time the event occurred.
Clearly, s 1218AAA(2)(b) mandates that the Secretary must not make any determination about indefinite portability in respect of a person outside of Australia in circumstances where that person’s portability period had ended prior to either of the events described in ss 1218AAA(2)(a)(i) or (ii). This is where the Applicant, in my view, is confronted with a fatal difficulty in propounding the substantive application any further.
The Applicant’s Submissions
The basic thrust of the Applicant’s submissions was that his mental health condition and cognitive impairment render him such as to not be able to fill in or complete forms and similar documents of the type required for an application for indefinite portability. He says that he has made this plain to officers of the Respondent on various occasions who have assured him that all would be well. He said he was told certain things and given certain directions by officers of the Respondent but cannot point to any evidence that these advices and/or directions were provided to him and by whom.
The aspect of the Applicant’s submissions which lacks credibility and is not convincing relates to his failure to involve or engage a third party in assisting him to fill in and complete relevant forms. During the hearing, he said that he had sought assistance from his local legal aid office but their office was not in a position to fund legal assistance for the completion of forms as sought by the Applicant.
In the substantive proceedings, he has filed an affidavit dated 16 May 2018. The affidavit is lengthy, well composed and formatted with some portions in bold print, other portions underlined and with a substantially correct jurat or signing section at the end of that document. It is, to my mind, less than credible for the Applicant to submit that he can source a third party to assist him with preparation of an accurately formatted six page affidavit yet not be in a position to obtain similar assistance for completion of government forms that are very important to him.
His submission about not being able to complete or fill out any form about anything at any time does not stand to reason when one has regard to essential documents and/or forms that often need to be filled out from time to time. Examples include applications for provision of utilities such as power, the completion of ballot papers on a given election day or even something as cursory as manually completing a lotto entry or equivalent.
The Applicant’s submission may have had some traction were it to relate to circumstances where, for example, he attempted to fill out a form or similar document, then submitted it but was later told that it was incomplete or incorrectly filled out. That is not the evidence before the Tribunal. As outlined earlier, no application or request or form has ever been submitted for indefinite portability, even though the Applicant was aware before he travelled to Vietnam that he needed to do so to claim indefinite portability.
In any event, the Applicant’s submission about not being in a position to fill out, draft or otherwise complete necessary forms goes nowhere because, as was pointed out to him at the hearing, the applicable legislation contains absolutely no discretion for either the Respondent or the Tribunal to dispense with the requirement for the making of an application for indefinite portability. While extensions of portability under s 1218C may not require a written application, one must still meet the conditions precedent for the exercise of that discretion. The Applicant’s submissions do not take him far in that regard.
WHY THE APPLICANT IS NOT ENTITLED TO PORTABILITY
There is little or no doubt that any decision or determination about indefinite portability must be made prior to the recipient’s departure from Australia. Support for this view can be found in both binding authority and in the scheme of the legislation.
Section 1218AAA essentially comprises an exception to the basic portability provisions of the Act. Section 1218AAA(i) permits the Respondent to make a determination that a recipient of DSP is entitled to unlimited portability if all of the following circumstances exist:
(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.
Assessing whether a recipient meets the above circumstances is a considered and methodical process. It is not arbitrary or “automatic”.[35] Departmental policy guides the Respondent to, firstly, consider the abovementioned factors in s 1218AAA(1) and secondly, take into account the opinion of a Job Capacity Assessor (“JCA”) and, specifically, whether the JCA indicates, based on the evidence and the assessor’s professional opinion, it is unlikely the recipient will have any capacity to undertake work in the open employment market at or above the relevant minimum wage in the next five years, even with interventions.[36]
[35] See Kristoffersen and Secretary, Department of Social Services [2015] AATA 806 per Senior Member McCabe (as he then was, now Deputy President McCabe), paragraph [17].
[36] See the Guide to Social Security, instruction 7.1.2.20 Application of Portability Rules (Portability Table) (“the Guide”).
Thus, the procedure for obtaining indefinite portability is:
(a)an application or request for indefinite portability must be made;
(b)a JCA must provide the professional opinion described in the Guide; and
(c)a determination by the Respondent must follow.
It is patently clear that prior to the Applicant’s departure from Australia on 5 November 2016, none of these three requirements had occurred or had otherwise been met.
Accordingly, s 1218AAA cannot assist the Applicant. In short compass, this is because:
·the Applicant departed Australia for Vietnam on 5 November 2016;
·he was told before his departure that his DSP payments would cease on 25 November 2016 because his basic portability would expire at that time;[37]
·his DSP was suspended on 25 November 2016 because his portability had expired;
·he has not made any application for indefinite portability either prior to or after the expiry of his portability period on 25 November 2016.
[37] T-Documents, T21, p 150.
There is no prospect of a successful application of 1218AAA for indefinite portability because the accident in Vietnam and the Applicant’s subsequent hospitalisation occurred on 26 December 2016. The Applicant’s portability period for the DSP ended on 25 November 2016. Unlimited portability for the period the Applicant was overseas is thus not available to the Applicant.
Additionally, s 1218C contemplates the extension of an applicant’s portability. This presupposes that their social security payment is still being actively received. In this case, the Applicant’s payments had already been suspended – he had already lost the right to be paid his DSP whilst overseas – by the time he was hospitalised in Vietnam and so otherwise would have satisfied the requirements of s 1218C. Consequently, there was nothing for s 1218C to extend at the time he asked for an extension of his portability period.
The Respondent has, to my mind, rightfully not paid the DSP to the Applicant for the period 25 November 2016 to 24 February 2017. Section 1215(b) of the Act provides that if a person remains overseas for longer than the maximum portability period (here 28 days), the extra days cease to be an allowable absence (because those extra days are outside the allowed 28 days in the last 12 months) and no further payments can be made beyond that point.
I also consider the Respondent has:
(a)correctly applied s 80 of the Social Security (Administration) Act 1999 (Cth)[38] during the period 25 November 2016 to 24 February 2017; and
(b)correctly not taken issue with the AAT1 decision to overturn the cancellation of the Applicant’s DSP with effect from 24 February 2018.
[38] This section provides that a person’s social security payment may be suspended or cancelled if the Respondent is satisfied that a payment is not payable at that time.
DISMISSAL OF THE SUBSTANTIVE APPLICATION
In the substantive matter before the Tribunal, there is no practical benefit to the Applicant for this review to remain on foot when the following things are beyond argument:
(a)his serious accident and hospitalisation in Vietnam occurred outside his allowable absence for DSP. Plainly, his portability for DSP had expired when the accident and hospitalisation occurred. Section 1218C of the Act is not available to him for the purposes of unlimited portability or for any other purpose;
(b)the strict requirements for qualification for indefinite portability contained in s 1218AAA(2) of the Act have not been met. His portability period for DSP had ended at the time the events (accident and hospitalisation) allegedly occurred.
CONCLUSION
The Applicant did not make an application for unlimited portability of his DSP prior to his departure from Australia. There is nothing in the Act to authorise an extension of his DSP portability in circumstances where the events preventing his return to Australia (accident and hospitalisation) occurred after the expiration of the maximum portability period. Similarly, there is no discretion in the Respondent or this Tribunal to dispense with the strict requirements of the Act governing portability of DSP.
I am therefore of the view that this matter is lacking in substance and has no reasonable prospects of success. It should be dismissed pursuant to section 42B(1)(b) of the AAT Act. The Tribunal is precluded from making a decision that would be of any practical benefit to the Applicant in this matter and continuing with the review would be a waste of time and money.
ORDER
I order that the Application for Second Review filed with this Tribunal on 26 March 2018, be dismissed pursuant to section 42B(1)(b) of the AAT Act.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............................[sgd].........................................
Associate
Dated: 30 May 2018
Date of hearing: 23 May 2018 Applicant: By telephone Advocate for the Respondent: Ms Maleah Underhill Solicitors for the Respondent: Department of Human Services
2
4
0