Ramirez and Secretary, Department of Social Services (Social services second review) - [2019] AATA 4776

Ramirez and Secretary, Department of Social Services (Social services second review) [2019] AATA 4776 (15 November 2019)
Division:GENERAL DIVISION
File Number: 2019/4129
Re:Erika Ramirez
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Date:15 November 2019
Place:Perth

The application for a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is not granted with respect to the payment of arrears. The Tribunal grants a stay order with respect to ongoing payments, which are to be paid to the Applicant from the next pay date following the day that the Applicant receives this decision.
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Member M East
CATCHWORDS
SOCIAL SECURITY – Practice and procedure – stay application with respect to AAT Tier 1 decision – Disability Support Pension – relevant factors – financial hardship – applicant’s ability to repay debt – whether stay order would secure effectiveness of hearing – stay order not granted for arrears but granted for ongoing payments
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 25(1), 41(1), 41(2), 41(4)(a), 44A(2)
Social Security Act 1991 (Cth) – ss 94(1)(a), (b) and (c)
CASES
Broadbent v Civil Aviation Safety Authority [1999] FCA 1871
Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 146
Opie v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 769
Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418
Re Commonwealth of Australia and Quirke (1986) 9 ALD 92
Re Dart and Director-General of Social Services (1982) 4 ALD 553
Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240
Re Repatriation Commissionand Bramston (1985) 8 ALD 468
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Secretary, Department of Social Services and McNamara [2016] AATA 189
Rose and Comcare [2013] AATA 735
Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333
Re Secretary, Department of Employment and Workplace Relations and Anastasiadis
[2007] AATA 1065; (2007) 94 ALD 255
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880
Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 5, Table 7
REASONS FOR DECISION
Member M East
15 November 2019

The Applicant, Ms Ramirez, was granted Disability Support Pension (DSP) on

18 September 2008 (T10, p 124).
On 29 January 2018, the Applicant contacted Centrelink to enquire about indefinite portability of her DSP as she wished to return to the United States of America indefinitely (T62, p 260). The Applicant was advised that she would first need to undergo a review in relation to her eligibility prior to assessing whether she qualified for indefinite portability.
On 18 October 2018, the Applicant was assessed by the Job Capacity Assessor (JCA)

(T43, p 214). The JCA assessed the Applicant as having a total impairment rating of 10 points.
On 4 January 2019, the Applicant was advised that her DSP would be cancelled on the grounds that her impairments did not generate the 20 points required under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) (the Original Decision).
This decision was affirmed on review by the Authorised Review Officer (the ARO) on

23 January 2019 (T48, p 227) and the Applicant sought review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1).
Following the hearing on 13 June 2019, the AAT1 affirmed the Original Decision.
On 11 July 2019, the Applicant lodged an Application for Review of the AAT1 decision

(T2, p 3). On 25 July 2019, the Applicant lodged a ‘Request for Stay Order’ (Exhibit A1).
The Secretary has opposed the application for a stay order.
ISSUE
The issue for determination by the Tribunal is whether it should make an order to stay the operation of the AAT1 decision and if so, the extent to which the stay order should operate.
MATERIAL BEFORE THE TRIBUNAL
A hearing took place on 10 October 2019.
The Secretary was represented by Daphne Jones-Bolla of Sparke Helmore Lawyers.
The Applicant was self-represented and gave oral evidence.
The Tribunal admitted the following documents into evidence:
(a)
Applicant’s Request for Stay Order application, dated 25 July 2019

(Exhibit A1);
(b)
amended application for Stay Order application, dated 26 July 2019

(Exhibit A2);
(c)Applicant’s response to the Respondent’s opposition to the grant of Stay Order, dated 2 September 2019 (Exhibit A3);
(d)copy of a letter from Dr Geoffrey Bloor, dated 3 October 2019 (Exhibit A4);
(e)
copy of a letter from the National Disability Insurance Agency, dated

4 September 2019; and a copy of a report from Dr Oliver De Mello, dated

13 September 2019 (Exhibit A5);
(f)
copy of a letter from the National Disability Insurance Agency, dated

4 September 2019; and a copy of a report from Dr Lewis MacKinnon, dated

2 October 2019 (Exhibit A6);
(g)copy of a letter from Dr Simon Darn, dated 27 September 2019 (Exhibit A7);
(h)
copy of a medical report from Dr Oliver De Mello, dated 25 August 2019

(Exhibit A8);
(i)T Documents (T1–T62 pp 1–288) (Exhibit R1); and
(j)a copy of the outline of submissions by the Respondent opposing the Stay Order, dated 8 August 2019 (Exhibit R2).
RELEVANT LEGISLATION AND PRINCIPLES
The filing of an application to review a decision with the Tribunal will not automatically prevent it from taking effect. This is pursuant to s 41(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which states:
(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
If the Tribunal grants a stay order under s 41(2) of the AAT Act, it will stop a decision from taking effect until the final determination of the matter following the substantive hearing.
The Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 at [20] states:
The discretion conferred by s 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal, because the appeal, although successful, may otherwise be rendered nugatory.
Section 41(2) of the AAT Act permits a party to apply to the Tribunal for a stay order with respect to an operative decision which affects a person’s rights (Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246). The Tribunal will only grant a stay order if there is something for the stay order to operate on. For example, in social security matters, if a lump sum has been paid, a stay order will be refused (Re Repatriation Commission and Delkou (1985) 8 ALD 454).
Section 41(2) of the AAT Act states:
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
(Original emphasis.)
In summary, s 41(2) of the AAT Act provides that the granting of a stay order is conditional upon:
(a)a request being made to the Tribunal by a party; and
(b)
the Tribunal having the opinion that “it is desirable to do so after taking into account the interests of any persons who may be affected by the review”.

The relevance of a person’s interests will be assessed with reference to the specific legislation under which the decision under review was made (Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333).
The fundamental purpose of a stay order is a narrow one; that is, the purpose of a stay order is to secure the effectiveness of the hearing and the determination of the application for review (Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146 at [34]).
Section 41(4)(a) of the AAT Act provides that the Tribunal will not grant a stay order unless the parties have been given a reasonable opportunity to make submissions to the Tribunal:
(4) …the Tribunal shall not:
(a)make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter;
The discretion which s 41(2) of the AAT Act gives to the Tribunal is a broad one, and is similar to the power of a court to grant a stay order (Broadbent v Civil Aviation Safety Authority [1999] FCA 1871). The AAT has a broad jurisdiction, which is conferred by numerous acts of the Commonwealth Parliament (s 25(1) of the AAT Act). Applications made to the Tribunal to stay decisions, pursuant to s 41(2) of the AAT Act, are under a broad range of Commonwealth legislation in areas including civil aviation, social security and aged pensions, compensation and professional licences and registrations (such as tax agents’ registration). The relevant factors which may be considered by the Tribunal will consequently differ for each application (Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240).
In previous stay order applications before the Tribunal involving the payment of pensions and compensation, the Tribunal has had regard to the following factors:
(a)the prospects of success, or the merits of the Applicant’s case if the matter were to proceed to a substantive hearing;
(b)the prejudice or hardship that the parties, or other persons whose interests may be affected by the review, may suffer;
(c)the likelihood of recovery of monies by the Commonwealth if the person is unsuccessful at the substantive hearing of the matter;
(d)whether it is in the public interest to grant a stay order; and
(e)whether the review application, if successful, would be rendered nugatory if the stay order is not granted.
(see for example, Re Repatriation Commission and Delkou (1985) 8 ALD 454, Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 769, Rose and Comcare [2013] AATA 735, Re Secretary, Department of Social Services and McNamara [2016] AATA 189, Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065).
The Tribunal can consider the extent to which the stay order should operate and may exercise its discretion to stay part of the operative decision (see for example,

Re Secretary, Department of Social Security and Collins
(1991) 26 ALD 344). In cases where the recipient of a payment would suffer hardship, the Tribunal may exercise its discretion to stay the payment of the lump sum arrears pending the final decision of the Tribunal under review, but not the ongoing weekly or fortnightly payments (see for example Re Commonwealth of Australia and Quirke (1986) 9 ALD 92 (Quirke); Re Repatriation Commission and Bramston (1985) 8 ALD 468). This may assist to relieve hardship to the recipient, whilst, in part, protecting public funds from being dissipated.
CONSIDERATION
Prospects of success
The Tribunal should consider the prospects of success or the merits of the Applicant’s case if the matter were to proceed to a substantive hearing in deciding whether to exercise its discretion to grant a stay order.
The relevant legal principles relating to this ground were summarised by Member Fice in Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065 at [10]-[11] as follows:
10. When considering the prospects of success of an applicant in the course of a Stay application, it is not the role of the Tribunal to conduct a preliminary hearing of the substantive matter based on the evidence given in the SSAT. As Davies J (President) said in Re Dart and Director-General of Social Services (1982) 4 ALD 553 at 555:
It is not convenient or appropriate that on this application for a stay there should be any preliminary trial of the issues that will ultimately have to be considered by the Tribunal.
11. However, it is relevant for the Tribunal to consider whether there exist facts and circumstances which, if established at the substantive hearing, would provide a basis for the Secretary’s success in the review application; or whether there are points of law raised which, if sustained, will lead to that conclusion (see Re Commonwealth of Australia and Quirke [1986] AATA 57; (1986) 9 ALD 92 at 95). As there was no further evidentiary or factual material produced to support the applicant’s claim at the hearing of this application, the applicant must demonstrate that the decision of the SSAT was wrong in law. In other words, the applicant must demonstrate that the SSAT’s decision was obviously incorrect on its face (see Re Secretary, Department of Social Security and Collins [1991] AATA 199; (1991) 26 ALD 344 at 346-347).
In summary, the Secretary’s submission is that the Applicant’s application has limited prospects of success.
The Secretary correctly submitted that the question of eligibility for DSP can only be considered at the date of cancellation (4 January 2019). The Applicant has claimed eligibility for DSP for a lower back pain condition and psychological conditions of anxiety and depression.
The Secretary submits that the Applicant’s lower back pain condition attracts 10 points under Impairment Table 4 – Spinal Function and that her psychological condition was not fully diagnosed, treated and stabilised at the cancellation date (no evidence of diagnosis as required by the introduction to Table 5 of the Impairment Tables).
The ARO assessed the Applicant’s lower back pain condition under Impairment Table 1 which assesses functions requiring physical exertion and stamina. The AAT1 concluded that Impairment Table 4 was more appropriate, the condition was fully diagnosed, treated and stabilised but has resulted in a moderate impairment of spinal function generating 10 points from Impairment Table 4.
The Applicant submitted that she disagrees with the Secretary’s submissions and provided various arguments in support of her submission and has referred to her oral evidence at the AAT1 hearing. The Tribunal has had regard to the arguments and evidence provided by both the Applicant and the Secretary. Whilst the Tribunal takes note that the Applicant has self-reported her symptoms as being sufficient to qualify for a 20 point ‘severe’ impairment rating under Impairment Table 4, this needs to be corroborated by independent medical evidence.
The Tribunal notes the decisions of the ARO and the AAT1 and the conclusion reached by the member at the AAT1 review. Ultimately, the question of whether the Applicant will be successful in her application for review will depend upon an assessment of the medical and oral evidence at the substantive hearing insofar as it relates to the Applicant’s conditions at the date of cancellation. The Secretary may have a reasonable prospect of success at the substantive hearing which weighs in favour of not granting the stay order.
Prejudice or hardship
Whether a person’s interests will be affected by the review will be assessed with reference to the specific statutes under which the decision being reviewed was made (Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333).

With consideration to the statutory regime, in this instance the Social Security Act 1991 (Cth) and the relevant Impairment Tables, the persons who may be affected by this application are the Secretary and the Applicant.
The Secretary submits that she may be prejudiced if the stay is granted. If the stay is granted to the Applicant, the Secretary would be required to pay arrears of DSP from

29 June 2019 (Exhibit R2, para 1.33) and to continue to pay DSP. If the Applicant is unsuccessful in her substantive application these payments would become a debt which is due and payable to the Commonwealth. This would inevitably involve recovery processes which incur costs to the Commonwealth.
The Applicant gave evidence that she owns a house which is currently not fit for living in. She said that since being burgled when she lived in that house she has rented a room with an acquaintance of hers. At present, she has no income and relies on charity vouchers from St Vincent de Paul for food. She said her house is in a state of disrepair with no utilities attached and it was not an option for her to live there. She said the person she was living with was threatening to make her leave because she had been unable to contribute to any expenses since her DSP was cancelled. The Applicant said that although she was able to access medical care because her medical providers bulk-billed her, she has been unable to take any of the medication which she took regularly prior to her DSP being cancelled.
The Secretary correctly submitted that the Applicant is making a fresh claim for DSP and has also not made a claim for Newstart and had her eligibility considered. The Applicant submitted that she would not be eligible for Newstart; however, as Newstart has not yet been the subject of a claim, the Tribunal is unable to form an opinion on this matter.

In circumstances where the Applicant has not yet made an application for alternative benefits which may be available to her, this weighs against her claim of financial hardship.
The Tribunal considers the potential prejudice to the Secretary should the stay be granted both with respect to the arrears and to the ongoing payments could be significant. However, the Tribunal is mindful that the Applicant is suffering from both physical and psychological conditions which require ongoing medication. The Tribunal gives this some weight in favour of granting the stay with respect to future payments.
The likelihood of recovery of monies by the Commonwealth if the Applicant is unsuccessful at the substantive hearing of the matter
The Applicant acknowledges that should the stay be granted and she is not ultimately successful in her review application, she would need to repay any monies received.
The Applicant is not in receipt of any other social security benefits and gave evidence that she has no personal assets or other sources of income. Furthermore, the Applicant is able to reside in the USA which could further hinder the prospects of recovery by the Commonwealth.
On the other hand, the Applicant gave evidence that she has a house which although cannot be lived in, is unencumbered and able to be sold. The Tribunal considers that the Applicant’s property interest significantly increases the likelihood of recovery of monies by the Commonwealth should the Applicant be unsuccessful at the substantive hearing of this matter.
The Tribunal gives this weight in favour of the granting of a stay order.
Public Interest
The Secretary submitted that “DSP payments are made from public funds and she
[the Secretary] has an obligation to protect those funds by ensuring that payments are only made to individuals who are lawfully entitled to receive them” (Secretary’s submissions dated 16 May 2018, at para 26).

The Tribunal agrees that this tends to weigh in favour of not granting the stay order.
Whether the review application will be rendered nugatory
The Tribunal is also required to consider whether the review application, if successful, would be rendered nugatory if the stay order is not granted.
The Secretary has correctly submitted that if the Applicant’s stay order is not granted,

the proceedings would not be nugatory because she would be entitled to arrears of her DSP. However, if the stay order is granted and arrears are paid, the Secretary runs the risk of not being restored to her original position if the decision under review is affirmed because of the risks inherent in recovering those monies.
The Tribunal notes that arrears would need to be paid from 29 June 2019 when her payments stopped. The Tribunal finds this weighs in favour of not granting the stay order for payment of arrears, but granting a stay order in respect of ongoing payments.
In summary, the Secretary’s argument is that if the stay order is granted and the substantive application does not succeed, the Applicant would have received monies that she was not entitled to. This money must be recovered in circumstances where the Applicant may experience hardship in repaying it. Consequently, refusing the stay order would assist in securing the effectiveness of the hearing.
Further, the Secretary submitted that, “…while the amounts may be recoverable at law, successful recovery action cannot be guaranteed.” The difficulty in recovering monies has been found by the Tribunal to weigh in favour of not granting a stay order

(Re Repatriation Commission and Delkou (1985) 8 ALD 454).
The Tribunal asked whether the Applicant had the right to reside in the USA and she confirmed she had dual citizenship. The risk, if she were to be unsuccessful in the substantive application is that the Applicant could return to the USA and not be liable for repayment of the debt. Balanced against this, however, is the equity she has in her house which could be accessed should a debt arise.
CONCLUSION
Having reviewed the evidence before it, including the oral and written submissions of both parties, and for the reasons outlined above, the Tribunal concludes that it should exercise the discretion conferred upon it by s 41(2) of the AAT Act to not grant a stay order to secure the effectiveness of the hearing of the substantive application currently before the Tribunal with respect to the arrears. There are circumstances which justify the departure from the rule that a successful litigant is entitled to the fruits of the judgment pending appeal, and for the reasons outlined above, the stay is granted with respect to the ongoing payments. In Quirke, when granting a stay order with respect to the arrears, but not ongoing weekly compensation payments, Senior Member the Hon JBK Williams (at [96]) ordered that weekly payments should commence from the next “pay-day” following his decision. The Tribunal proposes to proceed in a similar manner in this application.
The Tribunal notes the hardship that the Applicant is suffering, namely her lack of income and access to medication. As a consequence, the Applicant requires the substantive application to be resolved quickly. The Tribunal notes the decision in Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418, where the Tribunal granted a stay order, but to reduce hardship to the recipient of the payment, directed that the hearing of the substantive matter be expedited. The Tribunal has therefore requested that, to the extent that Tribunal resources permit, that this matter be expedited to be heard as soon as possible.
DECISION
The application for a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is not granted with respect to the payment of arrears. The Tribunal grants a stay order with respect to ongoing payments, which are to be paid to the Applicant from the next pay date following the day that the Applicant receives this decision.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Member M East

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Associate
Dated: 15 November 2019

Date of hearing: 10 October 2019

Applicant: Self-represented

Counsel for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	10 October 2019
Applicant:	Self-represented
Counsel for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore