SYLT and Secretary, Department of Social Services (Social services second review) - [2024] AATA 1977

SYLT and Secretary, Department of Social Services (Social services second review) [2024] AATA 1977 (24 June 2024)
Division:GENERAL DIVISION
File Number: 2023/8600
Re:SYLT
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:24 June 2024
Place:Brisbane

Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses this application for review.
.......................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
PRACTICE AND PROCEDURE - application for review of decision made by Social Services and Child Support Division (SSCSD) of this Tribunal (‘Tier 2 review’) - where the Applicant contends incorrect information applied by the Respondent’s Department in raising Centrelink debts - where the Applicant contends the law was not applied correctly by SSCSD - where the Respondent and the SSCSD decisions are in favour of the Applicant - where Tier 2 review unlikely to yield any different or more favourable outcome for the Applicant - where issues contended by the Applicant in Tier 2 review unable to be reviewed by this Tribunal - application for review dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (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
Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57
REASONS FOR DECISION
Senior Member Theodore Tavoularis
24 June 2024
INTRODUCTION

This Tribunal did on 31 October 2023 (1) affirm an earlier decision of an Authorised Review Officer (‘ARO’) made on 1 February 2023 to increase the Applicant’s Disability Support Pension (‘DSP’) effective from 1 December 2022; and (2) dismissed a purported further application from the Applicant that sought ‘…general review of [the Applicant]’s Centrelink records and payments’.
The Respondent has raised a fundamental issue in terms of the future sustainability of the instant application. The broad position of the Respondent is that the instant application is manifestly hopeless because it is not jurisdictionally possible for the Tribunal to grant the relief sought by the Applicant.
Based on the contended lack of jurisdictional capacity in the Tribunal, the Respondent consequently agitates for dismissal of the instant proceeding pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). The instant application purports to raise the following questions:
·was the decision to increase the Applicant’s DSP from 1 December 2022, correct?
·if the answer to the immediately preceding question is ‘yes’, the next question becomes whether it can be found that the Applicant received an overpayment(s) in DSP payments for the period 4-30 November 2022; and
·if the answer to the immediately preceding question is ‘yes’, the next question becomes whether there should be a waiver of all or part of any debt deriving from that overpayment?
As correctly pointed out by the Respondent, the Tribunal’s abovementioned decision made on 31 October 2023 was entirely favourable to the Applicant. This is because that decision effectively waived recovery of any then-calculated debt. The overpayment amounted to the grand total of $28.74 which comprised an overpayment of DSP benefits for the period

4 November-30 December 2022. As noted by the Respondent, the Applicant ‘….cannot obtain a more favourable position from the Tribunal on the issues it can decide’.[1]
[1] R1, p 2 [4].
This matter proceeded before me on an interlocutory basis on 7 June 2024. The Applicant represented herself and also had her son with her in a support-person capacity. The Respondent was represented by Ms Tidy of Sparke Helmore Lawyers. Shortly after commencement of the interlocutory hearing I sought and obtained the parties’ confirmation that the totality of the material presently before the Tribunal comprised eight exhibits, four from the Respondent and four from the Applicant. Attached to these Reasons and marked ‘Annexure A’ is a true and correct copy of the list of exhibited documents.
RELEVANT FACTS
The Applicant has received DSP benefits across a number of periods since 2013. Her most current period of receipt of benefits commenced in 2021. Her DSP benefits were cancelled in January 2018 because the Respondent claimed she was a member of a couple at the relevant time and the combined income of herself and her spouse precluded DSP payments to her. She successfully challenged this cancellation and secured a decision that she was not a member of a couple.
This decision had a consequential effect in terms of the outstanding debt the Respondent claimed to be owed by the Applicant. In short order, this recalculation process involved (1) the Applicant receiving a refund of $2,505.33; and (2) the figure for her new outstanding debt to the Respondent’s Department was fixed at $1,421. The process of calculations giving rise to both the refund and the debt were duly explained to the Applicant, in writing, in August and December 2022.
There followed:
·on 24 August 2021, a fresh grant of DSP to the Applicant, such date being backdated to 4 January 2021;
·on 10 December 2022, the Respondent increased the Applicant’s DSP. This increase was backdated to 4 November 2022 and resulted her in receiving $60.69 in arrears payments from 4 November - 30 December 2022;
·on 19 January 2023, consequent upon the Applicant’s self-reporting of the specific monthly amount she was receiving from an income protection insurer, the Respondent made a decision to re-calculate the Applicant’s DSP based on this self-reported monthly income figure;
·the Applicant did not agree with the Respondent’s abovementioned respective decisions made on 10 December 2022 and 19 January 2023 and she sought internal review of both of them;
·on 1 February 2023, the ARO made its abovementioned decision.[2] This was the decision that found an overpayment of $28.74 for the period 4 -30 November 2022. The Respondent waived collection of that amount because it was beyond their threshold limits as a recoverable item;
[2] See [1] of these Reasons.
·on 20 March 2023, the Applicant did, for some reason, seek review of the ARO’s decision at the first tier of review in this Tribunal. This seemingly pointless application was ventilated on 19 August 2023;
·on 31 October 2023, the first tier of review at this Tribunal:
oaffirmed the ARO’s decision made on 1 February 2023;
owas satisfied that the Applicant did, on 1 December 2022, correctly and adequately notify the Respondent of the level of income protection payments she was then receiving; and
odecided the Applicant was entitled to the abovementioned back payment from 1 December 2022 amounting to $28.74.
·the Tribunal’s (first tier review) decision of 31 October 2023 also found:
othat the Applicant was purportedly agitating much broader issues than those decided by the ARO in its decision of 1 February 2023;
othat those broader issues compelled a further review or examination about the state of her Centrelink records and a recalculation of any payments previously determined by the Respondent as being payable to the Applicant;
othese additional complaints and purported re-agitations were not within its jurisdictional purview; and
othat the application for general review should be dismissed and that the ARO’s decision of 1 February 2023 should be affirmed.
Further consideration of the Applicant’s purported complaints now falls at the feet of this second tier of review of the Tribunal by virtue of the Applicant’s most recent application made on 10 November 2023 in which she seeks review of the Tribunal’s first tier decision made on 31 October 2023.
APPLICABLE LEGISLATION
In terms of the aspect of this matter relating to benefits paid to the Applicant, the relevant legislation comprises:
·Social Security Act 1991 (Cth) (‘the SS Act’); and
·Social Security (Administration) Act 1999 (‘the Administration Act’).
In terms of the Tribunal’s capacity to dismiss an application for review at any stage of a proceeding, the relevant provision is to be found at section 42B(1) of the AAT Act which relevantly facilitates dismissal of an application if the Tribunal is satisfied it:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
WHAT ISSUES ARE ACTUALLY IN DISPUTE?
There is little or nothing to displace a finding that the Respondent’s decision to increase the Applicant’s DSP with effect from 1 December 2022 was a correct decision. The Applicant acknowledges that she did, on 1 December 2022, first notify the Respondent about the change in the level of income protection payments she was receiving. There is little or nothing to cavil with the finding that section 110 of the Administration Act facilitates the backdating of any increase in the Applicant’s DSP to the date of her notification of the change in her income protection payments. As best as I understood the respective contentions, there is no argument from the Applicant that she did receive an overpayment of DSP in the sum of $28.74 for the period 4-30 November 2022.
Likewise, there is nothing to cavil with the finding that section 1223(1) of the SS Act facilitates a finding that payment of a benefit to a non-entitled person renders that payment a debt due to the Commonwealth which arises when the person receives the benefit of that payment. While the overpayment in the sum of $28.74 is a legally recoverable debt pursuant to section 1223(1) of the SS Act, any capacity in the Respondent to recover that debt is conditioned by section 1237AAA of the SS Act. This latter section actually obliges the Respondent to waive that $28.74 debt for present purposes.
THE APPLICANT’S CONTENTIONS
In the instant application, the Applicant puts her contentions in these terms:
‘1. I greatly believe decision is wrong and a different decision should be made.
2. The information and documents was [sic] not taken into account.
3. My documents has [sic] been missing [sic] on the hearing day in court on 29 August 2023.
4. Subject of this AAT appeal review has been different. Incorrect information as personal and financial information Services Australia – Centrelink used as assessing my ASP [sic] creating multiple debts.
5. The law was not applied correctly.’[3]
[3] A1.
THE CORRECT COURSE THIS TRIBUNAL SHOULD TAKE
Given the abovementioned review of relevant stages and outcomes referrable to this matter, I am hard-pressed to comprehend what is left for agitation by either of the parties or, more to the point, what this Tribunal may be jurisdictionally empowered to determine between them.
In these circumstances I refer to, and am attracted by, the Respondent’s submissions about dismissal of this Application in circumstances where I am satisfied that any of the three components of section 42B of the AAT Act are met. 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.’
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…’[4]
[4] 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.’[5]
[5] At [33].
DISPOSITION
Having regard to (1) the evolution of the factual sequence of this matter; (2) the Applicant’s abovementioned five grounds of review now sought to be agitated in the instant application; and (3) the state of the authorities, I make the following findings.
I am hard-pressed to comprehend precisely what it is that the Applicant wants this Tribunal to review. Her contended grounds now sought to be agitated are generally stated, vague and otherwise fail to identify a specific issue relating to her history of receipt of benefits from the Respondent. More particularly, I am satisfied that the five grounds she has stipulated are so obviously untenable or manifestly groundless as to be utterly hopeless.
I am also satisfied that her now-stated grounds of agitation are, both singularly and in total, futile or pointless and that the reason for this finding is that this Tribunal does not have jurisdiction to address or deal with those agitated elements in any meaningful way. The only logical conclusion is that the matters now agitated by the Applicant in the instant application cannot result in any change to the substantive decision under review and that those matters are now being advanced for other collateral issues not within this Tribunal’s jurisdictional scope of review.
Two things lie at the core of this matter: (1) as a DSP recipient, the Applicant’s statutory obligation to self-report any change in her income levels; and (2) consequential action taken by the Applicant as a result of that self-reporting. Actions then taken by the Respondent consequent upon that self-reporting can then give rise to a complaint(s) by the Applicant. The Respondent’s actions were the subject of fulsome review, first at ARO level on
1 February 2023 and then at the first level of review of this Tribunal on 31 October 2023.
This Tribunal’s jurisdiction is, by virtue of section 179(2)(a) of the Administration Act limited to consideration of the reviewable decision before it. The critical difficulty for this Applicant is that her five now-contended grounds cannot, on any reasonable analysis, possibly compel review of the Tribunal’s Tier-1 decision made on 31 October 2023. Phrases such as ‘greatly believed decision is wrong’; or ‘…documents…not taken into account…’; or ‘…documents missing’; or ‘…law not applied correctly…’ are , for the reasons I have outlined frivolous, vexatious and misconceived or otherwise lacking in substance. Those phrases do not engage this Tribunal’s jurisdiction pursuant to section 179(2)(a) of the Administration Act.

DECISION
I am satisfied the instant application has no reasonable prospect of success and is otherwise frivolous, vexatious, misconceived or lacking in substance. I will order that the instant application be dismissed pursuant to section 42B(1) of the AAT Act.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............[SGD]...............
Associate
Dated: 24 June 2024

Date of hearing: 7 June 2024

Representation for the Applicant: Self-represented litigant

Solicitor for the Respondent: Ms Madi Tidy (Associate)

Sparke Helmore Lawyers
ANNEXURE A
Exhibit List:
Respondent’s submissions:
·Exhibit R1- Respondent’s submissions for dismissal pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
·Exhibit R2 – Section 37 documents (T documents).
·Exhibit R3 – Supplementary T-documents.
·Exhibit R4 – Submissions on confidentiality request.

Applicant’s submissions:
·Exhibit A1- Application for review.
·Exhibit A2 – Request for confidentiality order.
·Exhibit A3 – Submissions on Respondent’s dismissal request.
·Exhibit A4- Emails from Applicant relating to ADR process.

Date of hearing:	7 June 2024
Representation for the Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Madi Tidy (Associate)
Sparke Helmore Lawyers