Sampson and Department of Family and Community Services - [2000] AATA 602

DECISION AND REASONS FOR DECISION [2000] AATA 602

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1131

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JOHN SAMPSON
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 July 2000
PlaceMelbourne

Decision The application to reinstate is refused.

……Mr J. Handley……
Senior Member

PROCEDURE: Application to reinstate; application withdrawn; whether s42A(9) or (10) applies; whether any error; whether discretion should be exercised; whether merit of application to be considered; application refused.

Administrative Appeals Tribunal Act 1975 s42A(1B)

REASONS FOR DECISION

25 July 2000 Mr J. Handley, Senior Member

The applicant applied to reinstate an application which was withdrawn by him on 10 May 2000. The application was "taken to have been dismissed" pursuant to s42A(1B) of the Administrative Appeals Tribunal Act 1975. This was communicated to the applicant by a letter from the Registrar at 12 May 2000.
At the hearing of the application to reinstate, Mr Sampson appeared without representation although he had previously been advised by a solicitor at the Brimbank Community Legal Centre. Mr Sampson confirmed at the reinstatement hearing that he was content to proceed unrepresented. Ms McInnes appeared on behalf of the respondent. The application to reinstate was opposed.
The application may be briefly summarised as follows.
In December 1998 the applicant applied for a Disability Support Pension. At that time he was in receipt of New Start Allowance. He sought Disability Support Pension by reason of a back injury. He was found to have ten impairment points pursuant to the impairment tables appended to the Social Security Act 1991. The respondent decided to reject his application. That decision was affirmed by an authorised review officer and later affirmed by the Social Security Appeals Tribunal. Proceedings were lodged in this Tribunal against the decision made by the Social Security Appeals Tribunal.
On 8 March 2000 the applicant made a further claim for Disability Support Pension and claimed again with respect to his back injury but also for a knee injury and for loss of hearing. The respondent subsequently determined that he was entitled to Disability Support Pension with effect from 8 March 2000. The applicant decided to withdraw his application made at this Tribunal against the decision made in December 1998 when he learnt that he was to be paid Disability Support Pension as a consequence of the concession made by the respondent with respect to the second application.
It appeared from the documents filed by the applicant's legal representative that the application made to reinstate was to ensure that upon a review of the decision of December 1998, the applicant would recover pension entitlement between December 1998 and March 2000 when pension was subsequently granted by reason of a second application.
Mr Sampson said that it was his decision to withdraw the appeal lodged with this Tribunal. He notified the Sunshine Office of Centrelink of this decision. He said he elected to withdraw the appeal because pension had become payable to him by reason of the second application. Despite this he did not inquire when pension payments would commence or from what date he would have an entitlement. Additionally, he said this information was not given to him by Centrelink officers.
Mr Sampson said he did not have a knee injury at December 1998. He said that it "flared up" in September 1999 and by reason of an increase in the extent of his impairment he elected to make another Disability Support Pension application.
Ms McInnes submitted that the application to reinstate was without merit because the applicant on the present evidence could not succeed in the challenge to the refusal of Disability Support Pension at December 1998. She further submitted that the knee injury which apparently gave rise to the making of the second application did not exist at December 1998 or, to use the language of the Social Security Act, was not then documented, diagnosed, investigated, treated and stabilised.
It appears that there has been a misunderstanding by the applicant and/or his representative as to his "entitlements". That is to say the correspondence received from the applicant's solicitors seek "arrears" of Disability Support Pension between December 1998 and July 1999. The relevance of the date of July 1999 is not clear although it may be inferred from the applicant's solicitors correspondence that there was a belief that the applicant's knee injury was reported to the respondent in July 1999. Even if that was so it would not explain why it was thought there was an entitlement from July 1999 (only) when in fact pension arising under the second application commenced in March 2000. Maybe that was not understood but by reason of the submissions made by Ms McInnes during the hearing and having heard the applicant I am not satisfied that the application to reinstate does have merit and I could not, on the available evidence, be confident that if the application was reinstated that the applicant would recover an entitlement to pension between December 1998 and March 2000.
The application to reinstate was made pursuant to s42A(9) and/or (10) of the Administrative Appeals Tribunal Act. I am not confident that sub-section (9) applies. That sub-section appears to contemplate applications dismissed under sub-section (2). To this extent I note the expression "the application" as appears at sub-section (9) whereas at sub-section (10) the expression "an application" is used. Both sub-sections permit the Tribunal in the exercise of its discretion to reinstate an application, and give directions as may be "appropriate in the circumstances", however, sub-section (10) permits reinstatement if the application has been "dismissed in error".
In the present application the Tribunal was asked to withdraw the appeal by the request of the applicant. Under sub-section (1B) of s42A, upon receipt of notification of a withdrawal the Tribunal is "taken to have dismissed the application without proceeding to review the decision". Approximately two weeks later the applicant apparently sought legal advice for the first time. I am not confident that the application was dismissed in error because it would appear that sub-section (10) attaches the error to that of the Tribunal. The Tribunal did no more than what it was obliged to do under s42(A) having received a notification of withdrawal. That is, as a matter of law, the Tribunal was obliged to dismiss the application under sub-section (1B).
At a more substantive level, however, if the concept of "error" extends to an error made by a party to a proceeding who, in error, withdrew an application before the Tribunal I would be obliged having regard to the discretion available to inquire into the merits of an application in the event that it were to be reinstated.
In the present case having regard to the documents filed the applicant was unable to demonstrate an impairment of greater than 10% in his pension application of 10 December 1998. In order to qualify for pension an applicant must demonstrate an impairment of 20% or more. On the one hand, the evidence of the doctor who assessed impairment of 10 impairment points may be overturned upon cross-examination in a subsequent hearing but there are many references in the T documents to the applicant's treating doctor and the Commonwealth Medical Officer making similar findings of fact with respect to the extent of the applicant's disability which, when applied to the impairment tables, would permit a finding of 10 impairment points only.
Additionally, the applicant then only claimed for his back injury. The existence of other injuries was not known to the respondent then nor – in so far as the knee injury was concerned – was it known to the applicant until September 1999.
Additionally, there are references within the T documents to officers of the respondent making findings that the applicant would not have satisfied the work activity test under s94 of the Social Security Act. That is to say even if the applicant had achieved 20 impairment points, he would not have been able to demonstrate a continuing inability to work which is a further prerequisite to qualification for Disability Support Pension.
The applicant said he did not notify the respondent of the existence of his knee injury until he made his second application in March 2000. At that time he also claimed for hearing loss. In a report completed by Dr Langley filed by the applicant's representative on 2 February 2000 it is recorded that the applicant presented
complaining of left leg pain on 8 September 1999. It is also recorded that osteoarthritis of the left knee was then diagnosed. Quite apart from the absence of notification to the respondent in the original claim of the existence of the knee injury, it would appear that the injury was not diagnosed until September 1999. This is consistent with the applicant's evidence that he attended his doctor in September 1999 because his knee "flared up". Clearly the injury was not documented, diagnosed, investigated, treated and stabilised at the time of his claim in December 1998. Additionally – and substantially in so far as merit is concerned – the applicant would be unlikely to have succeeded in any review of the pension refusal at December 1998 in the absence of the knee injury then being part of that application.
On the papers filed with the Tribunal and upon the information provided by Mr Sampson at the reinstatement hearing I could not be confident that any application to reinstate, thereby permitting a challenge to the refusal to grant pension in December 1998, would be successful. I note also that the applicant received New Start Allowance between December 1998 and March 2000 although in an amount slightly less than the amount which would have otherwise been paid in Disability Support Pension.
In all of the circumstances and having regard to the general principle of litigation being brought to an end I am in the circumstances unable to exercise the discretion available under either (9) or (10) of s42A.
The application to reinstate application V1999/1131 is refused.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  20 July 2000
Date of Decision  25 July 2000
Counsel for the Applicant        Not Represented
Solicitor for the Applicant
Counsel for the Respondent    Ms C McInnes
Solicitor for the Respondent