Russo and Secretary, Department of Social Services (Social services second review)
[2024] AATA 2315
•9 July 2024
Russo and Secretary, Department of Social Services (Social services second review) [2024] AATA 2315 (9 July 2024)
ReviewNumber: 2023/9860, 2023/9861
Division:GENERAL DIVISION
File Numbers: 2023/9860
2023/9861
Re:Melissa Russo
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:9 July 2024
Place:Brisbane
Pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses these applications for review.
.........................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
PRACTICE AND PROCEDURE – application for review to General & Other Division (‘Tier 2 review’) – decision under review made by Social Services and Child Support Division
(‘Tier 1 review’) – where Tier 1 review application was lodged out of time – where Tier 1 review concerned Disability Support Payments (DSP) – where Applicant already in receipt of DSP at the time of Tier 1 review – where the Tier 2 review unlikely to yield any different or more favourable outcome for the Applicant – where Tier 2 review has no prospect of success – application for review dismissed.PRACTICE AND PROCEDURE – application for review to General & Other Division (‘Tier 2 review’) – decision under review made by Social Services and Child Support Division
(‘Tier 1 review’) – where Tier 1 review concerned Mobility Allowance Payments (MOB) – where Applicant is a NDIS participant – application of National Insurance Disability Scheme 2013 Act (Cth) and Social Security Act 1991 (Cth) – where Tier 2 review unlikely to yield any different or more favourable outcome for the Applicant – where Tier 2 review has no prospect of success – application for review dismissed.Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Insurance Disability Scheme 2013 Act (Cth)
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth)
Cases
Attorney-General v Wentworth (1988) 14 NSWLR 481
Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Spencer v Commonwealth of Australia [2010] HCA 28Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 July 2024
INTRODUCTION
At issue is whether the instant applications should be dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) due to neither of them having any reasonable prospects of success. This issue derives from the Applicant’s respective applications for:
·payment of DSP[1] from 4 September 2019 if she were found to be medically eligible for same; and
·whether her cancellation of MOB[2] on 21 September 2022 was correct.
[1] Denoting, ‘Disability Support Pension’.
[2] Denoting, ‘Mobility Allowance Payment’.
THE MATERIAL
The Respondent has helpfully provided a set of written submissions.[3] There is also a bundle of other relevant material before the Tribunal which I will call the Relevant Bundle.[4] In it’s aforementioned written submissions the Applicant has helpfully provided a factual summary referrable to both of the subject applications.[5]
[3] Which I will capture into evidence and mark Exhibit A.
[4] Which I will capture into evidence and mark Exhibit B. Note to reader: this includes certain material emailed to the Tribunal by the Applicant (courtesy copied to the Respondent) on 8 July 2024.
[5] See Exhibit A [8]-[24].
CONSIDERATION OF THE ISSUES
The first of the two issues relates to whether the Applicant can be paid DSP in the event she is found to be medically eligible. The initial question is whether the Applicant was given adequate or proper notice of the decision to reject her DSP from 4 September 2019. Section 237 of the Social Security (Administration) Act 1999 (‘the Administration Act’) governs the provision of decisional outcomes to applicants for DSP. It seems plain that on 29 October 2019, the Applicant was issued a notice of the Respondent’s notice containing the rejection of her claim for DSP. This notice was sent to the Applicant’s known recorded address, north of Brisbane.
This address was recorded as the Applicant’s primary residence and postal address from
4 September 2019 to 25 June 2020. This letter/notice describes an unsuccessful applicant’s rights on review and, in particular, stipulates that ‘if you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision.’ [Emphasis in original]
I am satisfied that the Respondent sent the subject letter/notice to the Applicant’s duly recorded and known postal address and that the requisite ‘Notice’ can now be found to have been received by the Applicant. Any protest she may now raise about not having received the letter/notice is rendered irrelevant due to the operative effect of section 23(12) of the Social Security Act 1991 (Cth) (‘the Act’).
The next issue to determine in relation to the Applicant’s DSP entitlements is when she can now be found to have made a request for review of the decision to reject her claim for DSP made on 4 September 2019. I have already referred to the 13 week period stipulated in the terms of the letter/notice provided to the Applicant containing the decisional outcome about her DSP. The Respondent accepts that on 24 May 2023, the Applicant first requested a review of the decision to refuse her DSP. There is nothing in the material suggestive of any possibility that she made any such request prior to 24 May 2023.
Given this reality, I safely arrive at the conclusion (and finding) that this Applicant cannot be paid DSP even in the event she was granted DSP from 24 May 2023. In that case, the Applicant will be found to already be paid DSP from a subsequent DSP grant to her resulting from a claim she made with the Respondent’s Department on 6 October 2022. I agree with the Respondent: ‘There would be no practical utility to the Applicant proceeding with her application under review regarding her DSP rejection from 4 September 2019 as she has already been in receipt of DSP from 6 October 2022.’[6]
[6] Exhibit A, p 5 [35].
The second of the two issues before the Tribunal relates to whether the Applicant’s MOB on 21 September 2022 was correctly cancelled. The governing provision is section 1038 of the Act which relevantly provides that mobility allowance is not payable to a person when that person is an NDIS[7] participant in the following circumstances:
‘Mobility allowance not payable when person is NDIS participant
A mobility allowance is not payable to a person if:
(a) the person is an NDIS participant; and
(b) an NDIS plan is in effect for the NDIS participant; and
(c) the NDIS plan contains a statement specifying the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme (within the meaning of the National Disability Insurance Scheme Act 2013).’
[7] Denoting, ‘National Disability Insurance Scheme’.
As best as I understand the parties’ respective positions, there is no argument between them that the Applicant (1) is a ‘participant’ in the NDIS;[8] and (2) is subject to a valid ‘plan’ for the purposes of her receipt of NDIS payments.[9]
[8] Section 9 of the National Insurance Disability Scheme 2013 Act (Cth) (‘NDIS Act’); Sections 28-30 of NDIS Act.
[9] Section 37 of NDIS Act.
There can also be no cavilling with the proposition and finding that even though a NDIS recipient may be duly qualified as such, MOB is not payable to that recipient when they are in receipt of a funded package of support under the NDIS.[10] The corollary of this appears on the NDIS website which is quoted in the Respondent’s submissions comprising Exhibit A:
‘42. The NDIS website ‘Support budgets in your plan | NDIS’ viewed on 10 April 2024 under the heading of ‘Mobility Allowance’, explains:
When you become a participant in the NDIS your plan will include any supports that the NDIS will fund, including any reasonable and necessary transport-related funded supports.
If you are receiving Mobility Allowance when you receive an approved NDIS plan, your eligibility for the Mobility Allowance payment ceases.
You cannot receive Mobility Allowance once you have a plan with the NDIS. However, you will keep your Health Care Card if you have one.’[11]
[Emphasis in original]
[10] Chapter 3.6.6.20 of the Social Security Guide.
[11] Exhibit A, p 7 [42].
The decision to cease payment of MOB to the Applicant is contained in the Respondent’s letter which, inter alia, contains the following notification:
‘Important Information
We are no longer able to pay you Mobility Allowance
• “After careful consideration of your circumstances, a decision has been made to cancel your Mobility Allowance from 21 September 2022.
This is because our records show you are receiving a funded package of support from the National Disability Insurance Scheme (NDIS). People receiving support from the NDIS are not eligible for Mobility Allowance.
As a participant in the NDIS, you remain eligible for a Mobility Allowance Health Care Card. If you stop receiving a funded package of support from the NDIS, and you would like to claim Mobility Allowance in the future, please contact us.”’[12]
[Emphasis in original]
[12] Exhibit A, p 7 [43].
I am comfortably satisfied that the Applicant meets the respective requirements qualifying her as a NDIS participant who is subject to a valid NDIS plan. While the Applicant may complain about not being paid MOB for public transport costs there is no compulsion on the Respondent (or anyone else) to pay those costs. This is because section 1038(c) of the Act makes clear that there is no compulsion on the Respondent (or anyone else) to make a specific payment(s) towards NDIS participant’s transport costs. The only requirement pursuant to that section is that the subject ‘…NDIS plan contains a statement specifying the reasonable and necessary supports that will be funded….’
SHOULD BOTH APPLICATIONS BE DISMISSED?
The Respondent agitates for the dismissal of both applications on the basis that neither of them has any reasonable prospect of success. That agitation is grounded in section 42B(1) of the AAT Act and, in particular, section 42B(1)(b) which, inter alia, provides that:
‘ (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 prospects of success; or
(c) is otherwise an abuse of the process of the Tribunal.’
[My emphasis]
Helpfully, the Respondent has provided a review of the authorities referrable to the three components of section 42B of the AAT Act. With particular reference to the concept of vexatious litigation, the Respondent cited this Tribunal’s decision in Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950. There, the Tribunal quoted the comments of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at [489] where His Honour said:
‘It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
3They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.’[13]
[13] At [14].
Further, in Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57, Deputy President McCabe of this Tribunal said the word ‘frivolous… [has a particular meaning]….it means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way…’[14]
[14] At [4].
In a similar vein, this Tribunal said 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 waste of everyone’s time and money for any of these three applications to be allowed to remain on foot.’[15]
[15] At [33].
The High Court has also addressed the concept of ‘no reasonable prospect of success’ in Spencer v Commonwealth of Australia [2010] HCA 28. There, French CJ and Gummow J said:
‘….the criterion of a “reasonable prospect” of success has been understood in analogous statutory settings to mean a “real” rather than “fanciful” prospect….It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable..’[16]
[16] At [22].
DISPOSITION
First, for the application relating to payment of DSP from 4 September 2019 to have any prospect of success the Applicant would need to produce sustainable evidence of her request for an earlier review of the decision confirming rejection of her DSP claim made on that date. She cannot do so. Second, for a determination about whether or not the cancellation of MOB on 21 September 2022 was correct, she is required to produce evidence that either (1) she ceased to be a NDIS participant or (2) be able to point to a decision to revoke her NDIS participation status. She cannot do so. Further to this, the abovementioned section 1038(c) of the Act does not compel any requirement of a payment of assistance towards public transport costs.
I am consequently satisfied that both applications must be found to be utterly hopeless and that they otherwise disclose no reasonable cause of action capable of sustaining their ongoing ventilation in this Tribunal. Given the state of the legislation, I am comfortably satisfied that the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant with regard to either application.
DECISION
I will therefore issue respective orders for the dismissal of both applications on the basis that neither of them have any reasonable prospects of success. These respective dismissals are made pursuant to section 42B(1)(b) of the AAT Act.
| I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis |
..........[SGD]..........
Associate
Dated: 9 July 2024
Date of hearing: 8 July 2024 Representation for the Applicant: Self-represented litigant Solicitor for the Respondent: Mr Andrew Summers (Principal Government Lawyer) Services Australia
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