Secretary, Department of Social Services and Keith Twentyman
[2014] AATA 582
[2014] AATA 582
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6822
Re
Secretary, Department of Social Services
APPLICANT
And
Keith Twentyman
RESPONDENT
DECISION
Tribunal Deputy President JW Constance
Date 21 August 2014 Place Sydney The Tribunal refuses the application by the Applicant for a direction that the Respondent attend a medical examination.
............................[sgd]............................................
Deputy President JW Constance
Catchwords
PRACTICE AND PROCEDURE – application for the Tribunal to direct the Respondent to attend a medical examination – consideration of the Tribunal’s power under ss 33 and 43(1) of the Administrative Appeals Tribunal Act – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43(1)
Social Security (Administration) Act 1999 (Cth) ss 63(4), 64(1)Cases
Re De Marco and Comcare (1996) 43 ALD 654
Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229
Re Rayson and Repatriation Commission(2008) 109 ALD 137REASONS FOR INTERLOCUTORY DECISION
Deputy President JW Constance
20 August 2014
INTRODUCTION
Mr Twentyman has applied for a disability support pension. A Centrelink Authorised Review Officer decided that he was not entitled to the pension as he did not have the necessary impairment rating of 20 points and did not have a continuing inability to work.
On appeal, the Social Security Appeals Tribunal (“SSAT”) set aside the decision and referred the matter back to the Chief Executive Centrelink for reconsideration. The SSAT found that Mr Twentyman:
·suffers from an impairment within the meaning of the Social Security Act 1991 (Cth);
·has a total impairment rating of 20 points in accordance with the Act; and
·has a continuing inability to work.
On 23 December 2013 the Secretary applied to this Tribunal to review the decision of the SSAT. The reasons for the application are:
… that the SSAT erred in finding that Mr Twentyman should be assigned 20 points under table 5 of the Impairment Tables and that he had a continuing inability to work.[1]
[1] Application for Review of Decision 23/12/13.
THE ISSUE
At a Directions Hearing on 30 July 2014 the Secretary requested that I direct Mr Twentyman to attend a medical assessment by a psychiatrist in order to obtain a report for the purposes of these proceedings. Mr Twentyman opposed this.
CONSIDERATION
The Secretary concedes that he has the power to require Mr Twentyman to undergo a medical examination under subsection 63(4) of the Social Security (Administration) Act 1999 (Cth), (“the Administration Act”), which reads in part:
If the Secretary is of the opinion that a person to whom this subsection applies should:
…
(b) undergo a medical, psychiatric or psychological examination (whether or not at a particular place), and provide to the Secretary the report, in the approved form, of the person who conducts the examination;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing.
Subsection 63(4) applies to Mr Twentyman as a person who has claimed a disability support pension.
It was argued on behalf of the Secretary that notwithstanding the power given to him by subsection 63(4), the Tribunal should direct Mr Twentyman to attend the proposed examination. It was put that the Tribunal has the power to make such a direction under either subsection 43(1) or section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
Subsection 43(1) of the AAT Act provides:
For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ….
Section 33 of the AAT Act provides in part:
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
….
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which Reliance is intended to be placed at a hearing.
Counsel for the Secretary referred me to two previous decisions of the Tribunal.
In Re Health Insurance Commission and Hobbes and Comcare,[2] the Tribunal decided that it would constitute a denial of natural justice for the Tribunal to deny the Commission the opportunity to have an employee medically examined for the purposes of the Tribunal proceedings. The Tribunal was of the view that under subsection 43(1) of the AAT Act, the Tribunal could direct a medical examination by exercising the power given to the original decision-maker by the Act under which the reviewable decision was made.
[2] (1990) 21 ALD 229.
In Re De Marco and Comcare, [3] the Tribunal revoked a decision of Comcare to direct the Applicant to attend a medical examination. In so doing the Tribunal decided that it may exercise the power to direct a medical examination given to Comcare in the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[3] (1996) 43 ALD 654.
In my view subsection 63(4) of the Administration Act does not empower the Tribunal to direct Mr Twentyman’s attendance at a medical examination. In Re Rayson and Repatriation Commission, [4] the Tribunal decided that section 43 of the AAT Act does not permit the Tribunal to exercise procedural powers as this section is concerned solely with the powers of the Tribunal when it comes to the review of a decision. This conclusion was contrary to the approach taken by the Tribunal in the decisions to which I was referred by Counsel for the Secretary. Considering s 43 in the context of broader procedural provisions in the AAT Act, I prefer the reasoning of the Tribunal in Re Rayson.
[4] (2008) 109 ALD 137.
Without expressing a final view, it is likely that the Tribunal can direct an applicant for a disability support pension to attend a medical examination by exercising the powers given to it by section 33 of the AAT Act. This is consistent with the Tribunal being required to make the correct decision, and with the investigative powers of the Tribunal. However, I would prefer to hear more detailed argument on this question.
Assuming the Tribunal does have the power to direct Mr Twentyman’s attendance, it is not appropriate that it be exercised in the circumstances of this application. Whilst the Tribunal can require evidence to be obtained to assist its decision-making, the parties should be encouraged to gather the evidence necessary to support their respective cases.
In most circumstances the Secretary should exercise the power given to him by section 63 of the Administration Act. Whether he does so in this application is a matter for him. The Tribunal should only be asked to make a direction when it can be shown that there is a need for it to intervene.
The history of this matter should be noted. It is an appeal by the Secretary. The issues have been clear since the application was filed on 23 December 2013. A report of Mr Twentyman’s treating psychiatrist which supports the conclusion reached by the Social Security Appeals Tribunal, was filed in this Tribunal on 7 March 2014. A copy was provided to the Solicitor for the Secretary on or shortly after that date. I have been told that apart from the question of whether Mr Twentyman should attend for examination, the matter is ready to proceed to hearing. The Secretary has had ample time to arrange an appointment and, on the information available to me, should have done so much earlier than the end of July 2014.
During the Directions Hearing, Counsel for the Secretary indicated that an appointment for the assessment of Mr Twentyman’s condition is available on 10 September 2014. I indicated to Mr Twentyman that his attendance at an appointment on that date will not delay the hearing of this application. I propose to request the District Registrar to seek the availability of the parties to have this matter heard in the period 13 October 2014 – 28 November 2014.
If the Secretary does issue a notice to Mr Twentyman to attend an appointment, Mr Twentyman should consider the provisions of subsection 64(1) of the Administration Act which provides:
If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with a requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment – the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
DECISION
For the reasons outlined above, the Tribunal will refuse the Secretary’s application for a direction that the Respondent attend a medical examination.
I certify that the preceding 19 (Nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President JW Constance ........................[sgd]................................................
Associate
Dated 21 August 2014
Date(s) of hearing 30 July 2014 Date final submissions received 30 July 2014 Counsel for the Applicant B Tronson Solicitors for the Applicant Australian Government Solicitor Respondent In person
0
0