Sudak; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1553
•17 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1553
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1699
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
ANDRZEJ SUDAK
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date17 July 2007
PlaceAdelaide
Decision The tribunal refuses the application for a stay, but directs that this matter be listed for an early hearing.
D G Jarvis
(Sgined)
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for stay of decision in relation to application for newstart allowance - effect of decision of SSAT - SSAT did not consider activity test - held that not appropriate to remit to SSAT for reconsideration - held that SSAT decision did not impose liability to pay pension - held that accordingly application for stay of decision be refused.
SOCIAL SECURITY – newstart allowance - application for pension refused because respondent not a member of a couple – decision of SSAT that as at date of hearing, respondent not a member of a couple and any future claim should be assessed on that basis, subject to any future reconciliation – meaning of “period” - held that SSAT's decision not binding on decision-makers in determining any future claims - held that SSAT decision did not impose liability for pension - held that accordingly application for stay of decision be refused.
Social Security Act 1991 (Cth), ss 593(1) and 601
Social Security (Administration) Act 1999 (Cth), ss 37(2), 39(3) and 42, and Schedule 2 cl 3(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss 41(2) and 42D
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Secretary, Department of Social Security v Goudge (1989) 17 ALD 415
Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246
P. Sutherland, Social Security and Family Assistance Law, (2nd Edition, 2005)
REASONS FOR DECISION
17 July 2007 Deputy President D G Jarvis 1. On 2 November 2006 the respondent, Mr Andrzej Sudak, lodged a claim for newstart allowance. The claim was later rejected by Centrelink because it was decided that his wife’s income was above the allowable limit.
2. This decision was affirmed by an authorised review officer (ARO). However, following a review at Mr Sudak’s request by the Social Security Appeals Tribunal (SSAT) that tribunal decided on 22 March 2007 to set aside the ARO’s decision, and substituted its decision, which was as follows:
“… that Mr Sudak is not a member of a couple, he is separated from his wife under the same roof, and has been so separated since the day of hearing. Subject to any future reconciliation, he should be treated as an independent person in assessing any further claim for social security benefits.”
3. On 3 May 2007, the Secretary, Department of Employment and Workplace Relations applied to this tribunal for review of the SSAT’s decision. On 25 June 2007, the Secretary applied for an order pursuant to s 42(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) staying the decision of the SSAT until the application for review has been determined by this tribunal.
4. I was informed at the hearing of the application for a stay that Mr Sudak has made two further claims for social security payments since the date of the SSAT decision. The first was another claim for newstart allowance. I was further informed that notwithstanding the decision of the SSAT as to the status of Mr Sudak’s marital relationship, a delegate rejected that claim, also on the grounds that Mr Sudak’s wife’s income was above the allowable limit. The second claim was a claim for disability support pension, which at the date of the hearing of the stay application was still being assessed.
Issue before the Tribunal
5. The issue before this tribunal is whether an order should be made staying or otherwise affecting the operation or implementation of the decision to which the present proceedings relate, or a part of that decision. That issue entails analysing the decision of the SSAT, and whether its effect was to make the Commonwealth liable to pay newstart allowance to Mr Sudak. If that is not the case, it would not be necessary or appropriate for me to make an order staying the implementation of the decision of the SSAT.
Legislative Scheme
6. Under s 11(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) a person who wants to be granted a social security payment must make a claim for the payment in accordance with Division 1 of Part 3 of that Act.
7. Under s 37(2) of the Administration Act, the Secretary (and those standing in the shoes of the Secretary, following any application for review of the primary decision namely an ARO, the SSAT or this tribunal) must determine that a claim for a newstart allowance is to be granted if the Secretary (or other decision-maker) is satisfied that the claimant is qualified or is expected to be qualified for the allowance, and that certain exceptions (not relevant to the present matter) do not apply.
8. Section 593(1) of the Social Security Act 1991 (Cth) (SS Act) provides relevantly that a person is qualified for a newstart allowance in respect of a period if the Secretary (or an ARO, the SSAT or this tribunal, in the event that there is an application to review the primary decision) is satisfied that throughout the period the person is unemployed and satisfies the activity test. Those provisions are subject to other qualifications which may potentially be relevant on the ultimate hearing of the proceedings in this tribunal, but they are not relevant to a determination of the Secretary’s application for a stay.
9. The requirements to satisfy the activity test are provided for in s 601 of the SS Act. This section relevantly provides that a person satisfies the activity test in respect to a period if the person satisfies the Secretary (or others standing in the Secretary’s shoes) that throughout the period the person is actively seeking, and willing to undertake, paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
10. Section 42 of the Administration Act provides in effect that a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2. Clause 3(1) of Schedule 2 provides for the general rule to determine the start day, and provides that if the person is qualified for the payment on the day on which the claim is made, the person’s start day in relation to the payment is that day. Section 39(3) of the Administration Act provides in effect that if the person is not, on the day on which the claim is made, qualified for the social security payment claimed, but becomes qualified for the payment within 13 weeks after the day on which the claim is made, then the claim is taken to have been made on the day on which the person becomes so qualified. This section is repeated in substance in clause 4(1) of the Administration Act, but both s 39(3) and clause 4(1) do not apply to claims for newstart allowance (see clause 4(2)(a) of Schedule 2).
11. Under s 129 of the Administration Act, a person affected by a decision of an officer under the social security law may apply to the Secretary for review of that decision. Section 135 contemplates that the review will be undertaken by the Secretary, the CEO or an ARO, and that person is required by s 135(1) to review the decision, and either to affirm the decision, vary the decision or set the decision aside and substitute a new decision.
12. Under s 142 of the Administration Act a person whose interests are affected by the decision of the Secretary, the CEO or the ARO may apply to the SSAT for review of that decision.
13. Provision is made in Division 5 of Part 4 of the Administration Act for a right of review by this tribunal of decisions made by the SSAT. Section 41(2) of the AAT Act provides in effect that if this 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, it may make such order “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 the determination of the application for review.”
14. The decision that this tribunal is authorised to stay under s 41(2) of the AAT Act is the operative decision. In some cases this may be the primary decision made by the delegate of the Secretary, and not the decision of the SSAT: Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 8.
Consideration
15. In order to determine whether I should grant the Secretary’s application for a stay, it is necessary to determine the effect of the decision of the SSAT on the rights and liabilities of the parties.
Relevance of decision of SSAT to any future claim by Mr Sudak
16. The SSAT’s decision as to how a decision-maker should assess any future claim for social security benefits that might be made by Mr Sudak is not relevant to the determination of the Secretary’s application in the present proceedings for a stay. The SSAT, like this tribunal, has no power to give advisory decisions, and in any event, this aspect of its decision related to future events. Whilst due weight should be given to the SSAT’s analysis of Mr Sudak’s position and to its conclusion that he was not as at the date of the SSAT hearing a member of a couple, that conclusion would not be binding on a future decision-maker who would, of course be obliged to determine the issue of whether Mr Sudak was a member of a couple by reference to all of the then current circumstances. The SSAT recognised this to the extent that that part of its decision was expressed to be subject to any future reconciliation.
17. Further, the fact that Mr Sudak made a subsequent claim for newstart allowance that has been rejected is not the subject of the present proceedings. I understand that Mr Sudak has not requested a review of the decision to reject his subsequent claim, and I have no jurisdiction to consider it in the present proceedings.
Effect of decision of SSAT
18. On the face of it, the decision of the SSAT was favourable to Mr Sudak, in that the SSAT set aside the decision of the ARO and decided that he was not a member of a couple. However, the SSAT did not decide that Mr Sudak was entitled to newstart allowance. Further, the SSAT said, at [38] of its reasons, that it “was not satisfied that the evidence was sufficient to demonstrate that Mr Sudak should be regarded as living separately and apart from his wife before the date of hearing” (being 22 March 2007). At [42], the SSAT recorded its view that as at the date of the hearing, the relationship between Mr Sudak and his wife had deteriorated to a point where they should no longer be regarded to be in a marriage-like relationship. The SSAT’s findings accordingly supported the decisions by the primary decision-maker and by the ARO as to the situation of Mr Sudak as at the respective dates of their decisions.
19. Of course, on the hearing of the present proceedings, all aspects of Mr Sudak’s claim for newstart allowance, including the question of whether he is a member of a couple, will be considered afresh by this tribunal, in the light of all of the evidence placed before it, but that process does not occur when considering an application for a stay.
20. On analysis, therefore, leaving aside the SSAT’s inappropriate finding as to the way in which future claims should be assessed, the SSAT decided simply that Mr Sudak was not a member of a couple as at 22 March 2007, and it would follow that the SSAT considered that his claim for newstart allowance should not have been rejected on that basis.
21. Under s 593(1) of the SS Act, entitlement to newstart allowance is determined by reference to a period. The SSAT’s decision entailed a finding as to his status on one day (and, inappropriately, thereafter). In the context of s 593(1) I do not consider that one day would be a “period” within the meaning of that subsection (although it might constitute a period for other purposes). But even if the one day that was the subject of the SSAT’s finding were regarded as a “period”, the SSAT did not consider other issues which would ordinarily require consideration in order to determine an entitlement to newstart allowance. In particular, the SSAT did not consider whether Mr Sudak satisfied the activity test in respect of the “period” to which its limited finding related, namely 22 March 2007, or whether he should be relieved by virtue of his medical condition from complying with that test. In saying this, I have not overlooked that the SSAT recorded in its decision that Mr Sudak said that he had been looking for work but had been unable to find any, and he thought that his age was against him. However, this was not expressed as a finding by the SSAT, and in any event was not expressed as describing the situation on the day of the hearing. It accordingly follows that none of the primary decision-maker, the ARO or the SSAT has been satisfied that Mr Sudak is entitled to newstart allowance, and so the Commonwealth is not under any liability to make payments of newstart allowance to him. And even if (contrary to my view) the SSAT’s reference to Mr Sudak having been unable to find work would be said to apply to the position on 22 March 2007, the SSAT’s decision would in that event only make the Secretary liable for newstart allowance in respect of that one day.
22. Having regard to the effect of the SSAT’s decision, I reject the Secretary’s application to stay the operation of the decisions of the SSAT, the primary decision-maker or the ARO, and on my analysis, there is no need for the tribunal to grant a stay.
23. Notwithstanding my above conclusion, it was put to me that Mr Sudak is suffering hardship, in that he is not receiving any monetary financial support from his wife, and is unable to afford medication that has been prescribed by a psychiatrist to treat a depressive condition. In addition, he is suffering from alcohol dependence. I also take into account the SSAT’s finding that at least as at the date of the hearing before it, his relationship with his wife was such that he was not a member of a couple. Having regard to those circumstances, I think it appropriate to direct that this matter be listed for an early hearing.
24. Another issue may arise at the hearing of this matter, in view of the finding by the SSAT that the relationship between Mr Sudak and his wife resulted in their separation occurring progressively to the point where it could no longer be said that Mr Sudak was a member of a couple. It is possible, depending on all of the evidence before this tribunal on the hearing of the matter, that this tribunal may find that Mr Sudak was not entitled to newstart allowance at the time when he lodged his application, but may have become entitled subsequently. In matters involving claims for disability support pension (DSP), it has been decided that liability for DSP arises if the claimant is qualified to receive the pension at the date of lodgement of the claim, or on a subsequent date within 13 weeks after the date of lodgement but if the applicant qualifies for DSP after that, no liability arises until a new claim for DSP is lodged (see Secretary, Department of Social Security v Goudge (1989) 17 ALD 415, the discussion of the authorities in P. Sutherland, Social Security and Family Assistance Law, (2nd Edition, 2005) at pages 827 – 830 and the provisions for the “start day” in s 39(3) and section 4 of Schedule 2 of the Administration Act). However, as mentioned above, those provisions of the Administration Act do not apply in the case of newstart allowance. I express no opinion at this stage on whether Mr Sudak would be entitled to newstart allowance if it appears that he qualified for that allowance at a date subsequent to the date when he lodged his claim, or whether that entitlement (if any) would depend on whether he qualified earlier or later than 13 weeks after lodgement. Any such issues can be determined if necessary when the application for review is finally determined by this tribunal.
25. For the sake of completeness, I refer to two further issues. First, the fact that the SSAT exceeded its jurisdiction (to the extent that it conditionally decided how future claims should be assessed) does not deprive this tribunal of jurisdiction (see Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72). Second, it would ordinarily be appropriate to remit this matter to the SSAT for reconsideration pursuant to s 42D of the AAT Act, on the grounds that the SSAT did not consider all matters relevant to the determination of the claim for pension, namely the activity test. However, as the SSAT’s finding as to Mr Sudak’s status related to one day only, and even if (contrary to my view) that one day constituted a “period” for the purposes of the activity test, I do not think that this is an appropriate case for the exercise of the discretion conferred by s 42D. The application for review appears to raise substantive issues which are appropriate for this tribunal to consider afresh on the hearing of the application for review.
Decision
26. The tribunal refuses the application for a stay, but directs that this matter be listed for an early hearing.
I certify that the 26 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 11 July 2007
Date of Decision 17 July 2007Advocate for the Applicant Mr C Goldsworthy
Centrelink Legal Services BranchCounsel for the Respondent Ms M Riley
Welfare Rights Centre
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