Summers and Secretary, Department of Family and Community Services
[2005] AATA 125
•9 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 125
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/23
GENERAL ADMINISTRATIVE DIVISION ) Re GWENDA JOYCE SUMMERS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date9 February 2005
PlaceCanberra
Decision This matter is conceded by the Respondent in terms that are acceptable to the Tribunal, whereby the decision under review is set aside and in substitution thereof the Tribunal decides that Gwenda Summers was eligible for New Start Allowance on 11 July 2002. The matter is remitted to the Respondent to calculate the amount that is payable to Ms Summers.
..............................................
Mr S. Webb, Member
SOCIAL SECURITY – New Start Allowance – eligibility – assets test – assessment of living arrangements – credit – Commonwealth to act as model litigant – concession by Respondent not accepted by the Applicant - decision set aside
Social Security Act 1991 ss 4, 593, 611, 1064, 1068, 1123, 1124, 1124A
Social Security (Administration) Act 1999 ss 36, 37
Judiciary Act 1903 s 55ZF
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483
Scott v Handley (1999) 58 ALD 373
Re Moline and Comcare [2003] AATA 827
REASONS FOR DECISION
9 February 2005 Mr S. Webb, Member 1. Gwenda Summers is seeking relief from a decision by the Respondent Secretary to reject her claim for payment of New Start Allowance (“NSA”) on 29 July 2002. That decision was affirmed on review by an Authorised Review Officer (“ARO”) on 7 April 2003 (T98 folios 298-300) and was subsequently affirmed by the Social Security Appeals Tribunal (“SSAT”) on 13 January 2004 (T2 folios 3-17).
2. The matter came on for hearing before me in Canberra on 24 September 2004. For reasons that will appear the hearing was adjourned. The Respondent subsequently conceded the matter. To this day Ms Summers has not accepted the terms of concession.
issue
3. The issue for determination by this Tribunal is whether the decision to reject Ms Summers’ claim for NSA was the correct and preferable decision.
legal principles
4. The matter rises for determination under the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”). A claim for a social security payment must be granted or rejected in accordance with the social security law (subs.36(1) of the Administration Act). Such a claim must be granted if the Secretary is satisfied that the claimant was qualified for the payment and the payment is payable (s.37 of the Administration Act).
5. The qualification criteria for NSA are set out at s.593 of the Act. The rate of NSA is to be determined in relation to an income test (s.1068) and an assets test (s.1064). NSA is not payable if the applicable assets limit is exceeded (s.611). Assets that are given away are to be taken into account in the assets test for a period of five years from the date of disposition (ss1123, 1124 and 1124A of the Act). Subsection 4(2) sets out the basis on which a person is considered to be a member of a couple.
factual context
6. The following facts arise from the documentary evidence.
7. Ms Summers has a Cluster B Personality Disorder (T 87 and T105).
8. Ms Summers was in employment during relevant periods. Details of her employment, business interests and earnings are in evidence (T46, T47, T48, T50, T72, T73, T85, T86, T88 and T89). It is not necessary to set out those details here.
9. On 11 July 2002 Ms Summers’ assets included three properties in Captain’s Flat and her home in Bungendore (T21, T55, T56, T57, T58, T59, T60 and T101).
10. Ms Summers lodged a claim for NSA on 11 July 2002 (T42). On that day the Respondent informed her that additional information was required within 14 days (T43). On 29 July 2002 her NSA claim was rejected on the basis that Centrelink “did not receive the documents … requested from you” (T49).
11. On 13 August 2002 Ms Summers informed Centrelink that she intended proceeding with her previous NSA claim and had been prevented from providing the requisite documentation following a death in her family (T53). On 13 September 2002 Ms Summers confirmed her intention to “continue with my application for New Start Allowance, and Disability Carers allowance, and, or, carers payment” (T67). From the documents it is plain that Ms Summers was engaged in communications with Centrelink concerning claims and disputations other than that in issue in this application. It is not necessary to consider those other claims or communications in detail for present purposes other than to note in passing that Ms Summers was charged with defrauding the Commonwealth having allegedly failed to declare a marriage-like relationship with Mr B. Bateup. Those charges were not pursued and no conviction was entered.
12. On 15 November 2002 Centrelink informed Ms Summers that proof of her identity and an “Assessment of living arrangements” were required in relation to her NSA claim (T79 and T80). On 29 November 2002 Ms Summers lodged an Assessment of Living Arrangement – Separated Under One Roof form (T84).
13. On 6 February 2003 Centrelink informed Ms Summers that additional information was required as she had been assessed as being in a marriage-like relationship with Mr Bateup (T91).
14. On 17 April 2003 an ARO decided to affirm the primary decision to reject Ms Summers’ application for NSA “on the grounds that [Ms Summers] failed to supply evidence needed in order to establish [her] entitlement to Newstart Allowance” (T98 and T90). That conclusion derived, in part at least, from the ARO’s assessment that Ms Summers and Mr Bateup were involved in “a de facto relationship”. The ‘evidence’ required by the ARO concerned details of Mr Bateup’s income and assets, ‘evidence’ that Ms Summers and Mr Bateup were living apart permanently or indefinitely and the de facto relationship had broken down, and independent valuations of the three properties owned by Ms Summers in Captain’s Flat.
15. On 8 December 2003 Centrelink issued Ms Summers with a notice confirming that she had “been separated since 1 January 1993” (T113).
16. Ms Summers sought review of the ARO’s decision by the SSAT. On 13 January 2004 the SSAT decided to affirm the decision on the basis that the value of Ms Summers’ assets on 11 July 2002 exceeded the applicable asset limit for a single homeowner at that time (T2).
17. On 22 January 2004 Ms Summers pursued the matter by way of application to this Tribunal for review of the SSAT decision (T1).
18. The matter came on for hearing before me in Canberra on 24 September 2004. Ms Summers was unrepresented at the hearing and gave oral evidence. The Respondent Secretary was represented by Mr G. Peek, Australian Government Solicitor and Ms S. Mantaring, Centrelink Service Recovery Team.
19. It was necessary to adjourn the hearing as a result of the Respondent’s failure to obtain independent valuations of assets owned by Ms Summers at the relevant time. The matter was set down to resume on 6 December 2004. On 18 November 2004 the Respondent informed the Tribunal that the Secretary had decided to concede the matter and grant NSA from 11 July 2002. On 1 December 2004 the Respondent informed the Tribunal that notification of the concession had not been provided to Ms Summers “because Centrelink does not have her current address”. A telephone directions hearing was listed and held on 3 December 2004. However, Ms Summers failed to attend. The Respondent was directed to file terms of the concession forthwith, which were received by the Tribunal on 3 December 2004 with a request that the Tribunal make a decision in the matter in accordance with the terms of concession.
20. On 6 December 2004 Ms Summers represented her daughter, Lahteysha Summers, at a Telephone Directions Hearing in an unrelated matter in which Ms Mantaring represented the Respondent Secretary. During the course of the directions hearing Ms Summers informed the Tribunal that she had not received notification of any settlement in the present matter and stated that she would not agree to finalise the matter without the opportunity to carefully consider the terms of the Respondent’s concession. For reasons of security Ms Summers requested that the terms of settlement and documents in her daughter’s matter be sent to the Bungendore Post Office for collection by her rather than to her street address. The Tribunal directed the Respondent to serve the documents in a manner consistent with Ms Summers’ request within 3 days and directed Ms Summers to file her response forthwith thereafter. On 4 February 2005 the Respondent informed the Tribunal that the terms of concession had not been served on Ms Summers because she had not up-dated her postal address with Centrelink. Curiously, other documents covered by the 3 December 2004 direction concerning the Lahteysha Summers matter were despatched within the requisite time and were subsequently collected from the Bungendore Post Office by Ms Summers in January 2005.
consideration of the issues
21. It is convenient to set out the full text of the Respondent’s concession and request for decision:
“1. These proceedings relate to the rejection of the applicant’s newstart allowance claim which was lodged on 11 July 2002.
2. The Respondent decided to concede the matter and has agreed to grant the Applicant newstart allowance from 11 July 2002.
3. The basis of the concession have been reduced to writing as follows:
1. The Respondent accepts that the Applicant was not a member of a couple on 11 July 2002.
2. The Respondent accepts that the value of the Applicant’s assets were under the Assets Threshold for a single homeowner.
4. The Respondent applies to the Tribunal to make a decision in accordance with the above terms pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975.”
22. While I am not bound by the concession made by the Respondent, it is reasonable, in the circumstances of this case, to accept it unless there exist good reasons to the contrary (see Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 488).
23. I have carefully considered the terms of concession and the Respondent’s request. I note that the Respondent has not filed any additional documentation concerning Ms Summers’ assets at the relevant time and their independent valuation, nor has additional material been filed concerning the assessment of Ms Summers living arrangements at that time.
24. I have carefully considered all of the documentary material that is before me in this matter and the circumstances that currently pertain. I note that while progress of the matter has been impeded, in part, by difficulties contacting and communicating with Ms Summers there is an obligation upon the Respondent, nonetheless, to act as a model litigant (see Scott v Handley (1999) 58 ALD 373 at 383). As will appear, I am of the opinion that that obligation has not properly been discharged in this case. That is a subject to which I will return in due course.
25. Furthermore, I have carefully considered issues concerning the reliability of Ms Summers’ accounts of events and related claims. I note that Ms Summers suffers from a Cluster B Personality Disorder. That being so, I do not intend to place any weight on her uncorroborated testimony.
26. Nonetheless, following Tuite v Administrative Appeals Tribunal (supra) I am satisfied that there are no sound reasons to reject the Respondent’s concessions in this matter. Furthermore, accepting the terms of those concessions, I am satisfied that no contestable issues remain and no more beneficial result can be achieved by further agitation of concerns that have been expressed by Ms Summers in these proceedings, especially in relation to matters that are not presently within the jurisdiction of this Tribunal.
27. I note, however, that much of the material before me has not been thoroughly examined or tested in cross examination. I am not in a position to properly assess the basis for the Respondent’s concession or to determine, to the requisite degree of satisfaction, the veracity of Ms Summers’ claims.
28. In so far as I accept the Respondent’s concession, it follows that the decision under review is set aside and in substitution thereof a decision entered that Ms Summers was qualified for NSA on 11 July 2002. The matter is remitted to the Respondent to calculate any amounts payable to Ms Summers.
29. In conclusion, I record the following comments concerning the Respondent’s conduct in these proceedings. In the circumstances of the protracted nature of this dispute it is a matter of concern that the Respondent was not properly prepared when this matter came on for hearing. Despite the clear importance of and need for independent valuations of Ms Summers’ assets at the relevant time, to which the ARO and the SSAT referred in their respective decisions, no such valuations were tendered and I understand from the Respondent’s representatives that no such valuations were obtained.
30. The Commonwealth is expected to act as a model litigant. In Scott v Handley (supra) the Full Court of the Federal Court said at ALD 383:
“43 … The spirit of this "model litigant" responsibility, now long enshrined in a policy document of the Commonwealth, is perhaps best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342:
"I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken."
44 Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see eg Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-197; SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368; Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384; see also R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 876-877.
45 As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise cost and delay": Kenny's case, above, at 273; and of assisting "the court to arrive at the proper and just result": P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at 368.”
The standard of fair dealing to which the Full Court referred is a policy that was given statutory force by Direction of the Attorney-General under s.55ZF of the Judiciary Act 1903 with effect from 1 September 1999.
31. The obligation of fair dealing on the Commonwealth, as a model litigant, is most sharply focussed in litigation involving an unrepresented individual, especially if that person has few resources, lacks legal representation, suffers ill health, is of uncertain soundness of mind, and has been adversely affected by a decision of the Commonwealth to deny income support. Whatever her faults and failings, and notwithstanding the serious questions of credit that attach to her claims and testimony and her honesty in dealing with the Respondent, I am satisfied that Ms Summers is such a person.
32. At the hearing in this matter the sole evidence on which the Respondent sought to rely for the purposes of valuing Ms Summers’ assets was a loan application form in which Ms Summers estimated the value of her assets. I do not accept that that document is evidence of the value of her assets at that time, nor do I accept that it is evidence that she possessed each of the assets claimed therein. The reliability of Ms Summers’ claims is in issue. In such circumstances accepting, without corroborating documentation, the contents of the loan application form she completed would, at best, be imprudent. On any assessment, a claim contested on the basis of such flimsy material would be unlikely to succeed. Nonetheless, the Respondent adduced no other evidence to assist the Tribunal on this point.
33. The assessment of Ms Summers’ living arrangements at the relevant time, and whether she was a member of a couple, was not seriously agitated before me. That is perhaps not surprising because Centrelink formally notified Ms Summers on 8 December 2003 that she had been “separated since 1 January 1993” (T113). Nonetheless, as I understand the Respondent Secretary’s contentions the issue remained on foot and was a live issue in these proceedings. The material before me points to a relationship of some sort between Ms Summers and Mr Bateup. The precise details of that relationship cannot be ascertained without thoroughly examining and testing the evidence. That has not occurred in these proceedings. While I make no findings about Ms Summers’ relationship with Mr Bateup, the material before me is not sufficient to reject the Respondent’s concession that Ms Summers was not a member of a couple at the relevant time.
34. I note, however, that the evidence indicates that the alleged relationship between Ms Summers and Mr Bateup is a matter of on-going disputation between the parties in relation to other matters that are not the subject of these proceedings.
35. In such circumstances, bearing in mind the foregoing, it would be appropriate for the Respondent to thoroughly review and carefully consider the manner in which this case has been prepared and conducted. In so doing, the Commonwealth’s obligation to act as a model litigant, and the Directions and caselaw to which I have referred, should be taken into account. I note that the obligation requires that the Commonwealth is to act fairly and consistently, dealing with matters promptly, endeavouring to avoid litigation where possible and not pursuing appeals unless there are reasonable prospects for success or the appeal is otherwise justified in the public interest.
36. Had this case been properly prepared and requisite evidence gathered, the Respondent would have been in a position to make a reasonable assessment of whether to contest or concede the case at a much earlier stage. Furthermore, such an approach would have enabled relevant evidence to have been filed and served in accordance with the Tribunal’s General Practice Direction, thereby ensuring procedural fairness to Ms Summers in preparing her case (see Re Moline and Comcare [2003] AATA 827). As it is the Respondent’s reasons for conceding the matter in the manner described remain opaque. Nonetheless, on the material before me, this case is resolved on the basis of the Respondent’s concession.
decision
37. The decision under review is set aside and in substitution thereof the Tribunal decides, as conceded and requested by the Respondent, that Ms Summers was qualified for NSA on 11 July 2002.
I certify that the preceding 37 paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Z. Khan
AssociateDate/s of Hearing 24 September 2004
Date of Decision 9 February 2005
Representative for the Applicant Self - represented
Counsel for the Respondent Mr G. Peek
Solicitor for the Respondent Ms S. Mantaring
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