Tran and Secretary, Department of Social Services (Social services second review)

[2024] AATA 2695

Tran and Secretary, Department of Social Services (Social services second review) [2024] AATA 2695 (1 August 2024)

Division:GENERAL DIVISION

File Number:          2024/4443

Re:Anthony Le Tran

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:1 August 2024

Place:Hobart

The Tribunal refuses the request of the Applicant, made pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, to stay the implementation of the reviewable decision.

.................................[signed]....................................

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – where carer payment and carer allowance suspended – where applicant sought internal review of suspension decision – where applicant sought first review by Tribunal – where applicant now seeks second review and stay of decision – what is the decision the subject of the stay – decision is operative decision not first review decision – applicant in gaol but not yet convicted of an offence or sentenced – effect of a stay – no purpose in Tribunal staying the decision where carer payment subsequently cancelled – no application for internal review of cancellation decision – no first review of cancellation decision – desirability of combining matters – whether tribunal should exercise discretion to otherwise affect the implementation of the reviewable decision – stay refused

SOCIAL SECURITY – pensions, benefits and allowances – carer payment and carer allowance – purpose of benefits is for income support – income support not necessary when recipient is in gaol

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1947 (Cth)(rep)

Social Security Act 1991 (Cth)

Cases

Bishop and Secretary, Department of Social Security; Re (1989) 18 ALD 661

Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246; 33 ALD 8

REASONS FOR DECISION

Senior Member D. J. Morris

1 August 2024

1. On 12 February 2024, the Applicant was arrested and taken into custody. He was at that time in receipt of carer payment and carer allowance (‘payments’). On 13 February 2024, the Respondent’s Department made a decision to suspend the Applicant’s payments.

2. On 23 May 2024 Mr Drew Scott, a solicitor who is the litigation guardian of the Applicant, made an application to the Tribunal that the decision to cancel the Applicant’s payments be stayed.

   Hearing

3. A hearing was held by telephone under s 33A of the Administrative Appeals Tribunal Act1975 (‘the AAT Act’) on 29 July 2024. Mr Scott represented the Applicant. Ms Peta Heffernan, a Senior Lawyer of The Australian Government Solicitor represented the Respondent.

4. The Tribunal had before it the Request for Stay Order dated 28 June 2024; various submissions made on behalf of the Applicant; an email from the Respondent dated 22 July 2024 opposing the grant of a stay; a copy of the first review decision, dated 23 May 2024, and a volume of ‘TD’ documents lodged under s 37 of the AAT Act.

   Submissions on the request for a stay

5. Mr Scott submitted that the Tribunal should stay the cancellation of the Applicant’s payments on the basis that the Applicant, while arrested, had not yet been listed for trial, nor has any sentence been imposed, so he should not be regarded as being ‘in gaol’ in the context of the Social Security Act 1991 (‘the Act’). He confirmed that Mr Tran was arrested in relation to warrants on 12 February 2024 and has been in custody since that date, and that he was scheduled to appear before a Magistrate on 30 July 2024 for mention.

6. Ms Heffernan submitted that no purpose would be served by the Tribunal staying the implementation of the first review decision because that would still leave in place the decision of the Respondent which affirmed the decision to suspend the Applicant’s carer payment and carer allowance.

7. The Respondent referred to an AAT decision in which an applicant applied for a stay of an order of the then Social Services Appeals Tribunal (‘SSAT’) which affirmed a decision of the Secretary that the applicant was precluded from receiving age pension pursuant to s 153(1) of the Social Security Act 1947 (then in force).

8. The matter was Re: Bishop and Secretary, Department of Social Security (1989) 18 ALD 661 (‘Bishop’). In that matter, Senior Member Purcell held that there would be no purpose in staying the operation of the SSAT decision, for that would leave the decision of the Respondent in place precluding payment of the pension to Mr Bishop.  

9. The Respondent noted that in Bishop, the Tribunal nonetheless noted that it could make an order ‘otherwise affecting the operation’ of a decision and so ordered that the applicant be entitled to receive sickness benefits from the date of the order until either the Tribunal made a determination on his application or 22 August 1989, whichever was earlier. Such payments would, if Mr Bishop were unsuccessful on substantive review, be recoverable by the Respondent pursuant to the provisions of the then Social Security Act.

10. Ms Heffernan submitted that the Tribunal should adopt the reasoning in Bishop that there is no purpose in Mr Tran’s case to stay the operation of the first review decision, and that an order affecting the operation of the decision would not be appropriate in this case because s 1158 of the Act provides that a social security pension or benefit is not payable to a person on a day when the person is in gaol and, in any event, there may be difficulty in recovering amounts paid to the Applicant if a stay is granted and the decision under review is ultimately affirmed.

11. Ms Heffernan submitted that if the Applicant is convicted of the charges laid against him and he is given a custodial sentence, he would not be entitled to ongoing social security payments and, depending on the length of the sentence, the Respondent would have difficulty recovering any amounts paid to him pursuant to a stay application.

12. In addition, the Respondent submitted that a stay should not be granted on the basis that the substantive application for review has poor prospects of success.

13. Mr Scott agreed that, while in custody, Mr Tran is not able to care for the person which founds the grant to him of carer payment and carer allowance. However, he pointed out that Mr Tran is entitled to 63 respite days under s 198AC of the Act where the carer does not have to be caring for any person, and submitted that the Tribunal should stay the decision to suspend Mr Tran’s benefits from a date at the end of the respite period, which would give him funds to enable him to pay for legal representation.

14. Mr Scott also made brief submissions about the arrest of Mr Tran and submitted that he believed the Applicant may have been confused with other persons who have the same name, in regard to his arrest and subsequent detention.

15. Mr Scott noted that, in a letter dated 3 April 2024 from an authorised review officer (‘ARO’) of the Department to the Applicant (TD, p 47) the ARO found (a) that the Applicant was in receipt of carer payment and carer allowance from January 2021; (b) that he provided care for his mother; (c) that Mr Tran entered custody on 12 February 2024; (d) that his carer payment and carer allowance were suspended from 13 February 2024; and (e) that if Mr Tran remained in custody after 13 weeks, his carer payment and care allowance “will cancel”. Mr Scott submitted that there was no ‘decision’ to cancel the payments, and that it would occur, and in fact did occur, ‘robotically.’ He submitted that if the Tribunal stayed the 13 February 2024 decision to suspend the payments to Mr Tran, the effect would be that the cancellation would not occur.

    Consideration

16. Section 41 of the AAT Act relevantly states:

    (1)Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

    (2)The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the 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, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relate or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

17. The Tribunal disagrees with the Respondent about what the ‘decision’ is in s 41. The Full Court of the Federal Court of Australia held in Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 (Davies, Burchett and O’Connor JJ) that the decision to be considered in relation to a request for a stay under s 41 concerns “the operative decision, not merely its affirmation” (see Their Honours at [6]). To that extent, that part of the reasoning adopted in Bishop has been held by the Court to be erroneous. So the decision before me is the decision to suspend the two payments to Mr Tran on 13 February 2024. However, in this case the granting of a stay would serve no purpose, because, by operation of law, Mr Tran’s two payments have since been cancelled, because he remained in custody 13 weeks after the suspension.

18. I might say that the Tribunal would be more inclined to grant a stay in a case where an applicant had availed him or herself of the right of review and where the applicant had an arguable case – for instance, in the circumstances here, if there was some error and Mr Tran had not been incarcerated or if he had since been released. But neither of those are applicable, on the agreed facts.

19. I note that the first review Member mentioned in her decision that she was aware of the cancellation of the payments on 14 May 2024, but this was after the ARO’s decision regarding the suspension decisions which was before her for review, so the Member decided she did not have jurisdiction to “affirm [sic] the decision to cancel carer allowance” but did affirm the decision to suspend the carer allowance. I respectfully agree with the Member in this respect.

20. Mr Scott confirmed to me in the hearing that there had been no request for an ARO to review the cancellation decision.

21. The Tribunal cannot consider the cancellation decision, albeit accepting that it occurred automatically after 13 weeks, triggered by the fact of Mr Tran still being in custody after the suspension of the payments to him. That is because there has been no first review of that decision, and there has been no first review because there has been no preceding ARO decision.

22. The Tribunal explained to Mr Scott at the hearing that, in spite of the cancellation occurring ‘automatically’ or, to use his word, ‘robotically,’ it nonetheless is a decision by the Respondent’s Department, and is reviewable by an ARO. Ms Heffernan confirmed that was also her view.

23. The Tribunal suggested to Mr Scott, if he wishes to pursue the matter, that he consults with the Applicant and consider seeking internal review of that decision by an ARO and, if unsatisfied with the outcome, it would be open to seek first review by the Social Services and Child Support Division. It would be convenient, if Mr Tran were still unsatisfied and sought a second review, for the suspension and cancellation decisions to be considered together. But those are decisions for the Applicant, and the suspension decision has been overtaken by the cancellation.

24. The Tribunal notes that s 1158 of the Act provides, inter alia, that an instalment of a social security benefit or a carer allowance is not payable to a person in respect of a day in which the person is in gaol. Section 23(1) of the Act provides that ‘a social security benefit’ includes carer payment.

25. Section 1158 has a note regarding the definition of ‘gaol’ which refers to s 23(5) of the Act.

26. Section 23(5) of the Act states:

    For the purposes of this Act, a person is in gaol if:

    (a)the person is being lawfully detained (in person or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or

    (b)the person is undergoing a period of custody pending trial or sentencing for an offence.

27. Mr Scott’s submissions are twofold. He told the Tribunal that Mr Tran had been arrested but has not yet been convicted or sentenced, so the first part of this definition was not applicable. He further said that, as the Applicant has not yet been committed to trial, the second part of the definition relating to ‘pending trial’ is also not applicable.

28. The Tribunal is hampered by not having before it specific details relating to Mr Tran’s incarceration, but accepts Mr Scott’s submissions about that. The Tribunal agrees that paragraph (a) of the definition in s 23(5) of “in gaol” is not applicable to the Applicant. However, the Tribunal does not accept that the phrase “is undergoing a period of custody pending trial” in paragraph (b) is also not applicable.

29. The definition in s 23(5) must be read in the context of s 1158 and the purpose of the Act. The principle behind social security payments not being payable when the recipient is incarcerated is because the social security regime is centred on income support for daily living, and when a person is a prisoner, his or her accommodation and sustenance needs are met. It is logical that payments under the Act are suspended when a person enters custody, and that there is a process for cancellation if a person remains in custody after a defined period.

30. Therefore, the Tribunal interprets the phrase “pending trial” in s 23(5) to encompass the situation that the Applicant is apparently in, at the date of the hearing (which was one day before his matter was to be mentioned before a Magistrate): until there is some other decision of the Court, Mr Tran is indeed awaiting trial.

31. I emphasise that nothing in the operation of these provisions should be taken to tread on the presumption of innocence that Mr Tran is entitled to. But the fact of the matter is that the basis for entitlement to the carer allowance and carer payment he received is (temporarily) removed whilst he is incarcerated.

32. Mr Scott submitted that the Tribunal could affect the implementation of the suspension decision by altering the date of suspension so it occurred after the respite days Mr Tran could otherwise avail himself of, so as to enable the Applicant to receive public funds he could use for his legal representation. I do not think this would be a proper use of the discretionary power available under s 41(2) of the AAT Act, because that discretion is limited to taking actions to secure the effectiveness of the hearing or the determination of the application for review. Other avenues are available to Mr Tran in that regard, either through Legal Aid or potentially drawing on his own resources.

33. The Tribunal notes that it is open to Mr Tran, if he is released from custody, to reapply for carer allowance and carer payment. The Tribunal thanks Mr Scott and Ms Heffernan for their thoughtful submissions before and at the hearing.

34. The request for a stay lodged with the Tribunal on behalf of the Applicant on 23 May 2024 is refused.

    DECISION

35. The Tribunal refuses the request of the Applicant, made pursuant to s 41(2) of the AAT Act, to stay the implementation of the reviewable decision.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[sgn].......................................

Associate

Dated: 1 August 2024

Date of hearing:	29 July 2024
Solicitor for the Applicant:	Mr Drew Scott
Solicitor for the Respondent:	Ms Peta Heffernan
Solicitors for the Respondent:	The Australian Government Solicitor