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

[2018] AATA 339

Treloar and Secretary, Department of Social Services (Social services second review) [2018] AATA 339 (21 February 2018)

Division:GENERAL DIVISION

File Number(s):  2017/4958

Re:Geoffrey Scott Treloar

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President K Bean

Date:21 February 2018

Date of written reasons:        27 February 2018

Place:Adelaide

The application is dismissed.

................................[SGD].......................................

Deputy President K Bean

CATCHWORDS 

PRACTICE AND PROCEDURE – Application for dismissal pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 – Decision relates to whether a debt was recoverable from the applicant – Issues have been previously considered and determined by Tribunal in an earlier matter – Whether there was a decision made under the social security law – Whether application for review has reasonable prospects of success – Application for review dismissed.

LEGISLATION   
Administrative Appeals Tribunal Act 1975, s 42B

Social Security (Administration) Act 1999, s 126
Social Security Act 1991

CASES

Treloar and Secretary, Department of Social Services (Social services second review) [2017] AATA 571

REASONS FOR DECISION

Deputy President K Bean

27 February 2018

1. This application relates to an application for review lodged by Mr Treloar on 18 August last year in which he seeks review of a decision of the Social Services and Child Support Division of the Tribunal made on 14 July 2017. That decision concerned the issue of whether an amount of $3,314.45 was recoverable from Mr Treloar as a debt and should be added to the total of his outstanding debts due to Centrelink.

2. To explain the issues which arise in the application it is necessary to briefly explain some of the relevant history to it.

3. That history includes a decision of the General Division of this Tribunal made on 5 April 2017. That decision related, in part, to debts totalling $21,211.40, arising by reason of overpayments to Mr Treloar during the period between November 2008 and July 2010. The Tribunal found that these amounts were debts due and payable to the Commonwealth by Mr Treloar and there were no grounds upon which the debts should be waived.

4. I should also explain that subsequent to these debts being originally raised by Centrelink, on 4 November 2015 Centrelink sent a letter to Mr Treloar advising him that a decision had been made to request the Australian Taxation Office to withhold $20,819.42 or the total of the money that was due to him, whichever was smaller, from his tax refund. As a consequence of this, on 5 November 2015, amounts totalling $3,314.45 were withheld by the Australian Taxation Office from Mr Treloar’s tax refund and the garnished amount was put toward recovery of his Centrelink debts.

5. Mr Treloar sought review of that decision and on 8 January 2016 an Authorised Review Officer (ARO) decided that the amount of $3,314.45 should not have been garnished and should  be refunded to Mr Treloar on the basis that Mr Treloar had not refused to enter into a reasonable repayment arrangement, notwithstanding that his current repayments were low at $20.00 per fortnight. The Centrelink records indicate that on 12 January 2016 arrangements were made to implement the ARO’s decision and Mr Treloar’s outstanding debt balances were readjusted to reflect that the tax refund was no longer to be used to recover part of the debts.

6. On 31 January 2017, Mr Treloar contacted Centrelink to “appeal” the decision to increase his debt balances. The relevant Centrelink officer confirmed that the decision of 12 January 2016 was correct, and on 3 February 2017 an ARO also “affirmed” the decision to recover all of Mr Treloar’s debts, with those amounts outstanding to include the $3,314.45 that had been refunded to Mr Treloar.

7. Following an application made by Mr Treloar to the Tribunal on 17 February 2017, a further decision was made by a Member in the Social Services and Child Support Division of the Tribunal, affirming the decision. The Member recorded that:

   Mr Treloar said at the hearing that Centrelink staff can do whatever they want.  He is now not planning to lodge tax returns in case a similar situation occurs. He is worried about fines from the Australian Taxation Office. Mr Treloar considers that the outstanding debts should not have been adjusted upwards and that he should be able to keep the $3,314.45 as a form of compensation from Centrelink.

   She observed:

   I could find no Social Security law that would allow for the scenario Mr Treloar was seeking. I find that Mr Treloar is required to repay, as part of his outstanding debts, an amount of $3,314.45 that had been garnished from his tax refund to offset the debts, but was subsequently refunded to him.

8. On 12 January 2018, the respondent filed and served submissions in support of an application that Mr Treloar’s substantive application for review be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act1975 (the AAT Act) on the basis that the application is frivolous, vexatious, has no reasonable prospect of success and is an abuse of process. The respondent relied, in part, upon the fact that the General Division of this Tribunal had already decided that the relevant debts were recoverable and there were no grounds to waive all or part of the debts.

9. In addition, as the respondent has pointed out, the Tribunal Member in that matter, Senior Member Britten-Jones, specifically considered whether the error in garnishing the amount of $3,314.45 constituted a special circumstance of the kind that would justify a waiver of part of the debt and concluded that it did not. He observed:

   With respect to the issue of the amount that was garnished by Centrelink, that amount, although garnished at one stage, has, in fact, been repaid by Centrelink and so the debt remains and, therefore, Mr Treloar is in no worse a position than if the amount had not been the subject of a garnishee notice.[1]

   [1] Treloar and Secretary, Department of Social Services (Social services second review) [2017] AATA 571, [15].

10. The respondent also contended:

    In light of the Tribunal’s findings in Action No. 2016/1310, it is clear that the applicant is here seeking to litigate anew a case which has already been disposed of by the earlier proceedings. The Secretary contends that this is an abuse of process and that the application for review should be dismissed on that basis.

    Further, the Secretary contends that the application for review is frivolous, vexatious and has no reasonable prospect of success because it discloses no new cause of action and the relief sought is insupportable in law.[2]

    [2] Respondent’s submissions in support of application for dismissal, [10]-[11].

11. A hearing was held to address the respondent’s dismissal application on 13 February 2018. At that hearing Mr Treloar essentially reiterated arguments which had been put previously. He also contended that, as he would be entitled to compensation under the Scheme for Compensation for Detriment Caused by Defective Administration (the CDDA Scheme), the debt amount should be waived essentially in lieu of compensation that he would be entitled to under that Scheme.

12. At the hearing, I also raised the issue of whether any reviewable decision had in fact been made on 12 January 2016, or whether what occurred was in the nature of implementation of the ARO’s decision of 8 January 2016. Of course in the absence of a reviewable decision having been made, the Tribunal would not have jurisdiction in any event. I note that Ms Moran, who appeared for the respondent, subsequently sought instructions with respect to that issue but her instructions were not to make any further submissions with respect to it, but rather to rely upon the respondent’s existing submissions.

13. I have serious reservations as to whether the Tribunal’s jurisdiction has been properly invoked in this matter. My understanding is that the merits review regime relevantly depends upon an officer having made a decision “under the social security law”.[3] It is not apparent to me that on 16 January 2016 any officer in fact made any decision under the social security law. It appears to me that all that occurred was that Mr Treloar’s debt balances were administratively adjusted to reflect the fact that a portion of the debt had been refunded to him, and this did not involve any decision under a provision of the social security law which could give rise to an entitlement to merits review.

    [3]     Social Security (Administration) Act 1999, s 126.

14. In any event, however, even if the Tribunal does have jurisdiction in this matter, I accept the respondent’s submission that the application has no reasonable prospect of success. The question of whether special circumstances arise from the fact that the relevant amount was originally garnished and an ARO subsequently reversed that decision, has already been considered and determined by the Tribunal, and there is no other legal basis upon which Mr Treloar’s debt amount can be reduced by the relevant amount of $3,314.45.

15. If Mr Treloar wishes to pursue compensation under the CDDA Scheme, it is of course open to him to do so. However, there is nothing in the social security law which allows a debt to be reduced by reference to a possible entitlement under that Scheme. The only relevant bases upon which a debt may potentially be reduced are the provisions of the Social Security Act1991 relating to write-off and waiver, which either do not apply or have already been considered by Senior Member Britten-Jones.

16. For completeness, I acknowledge Mr Treloar’s short written submission provided on 20 February in which he contended that the relevant issue was not in fact before Senior Member Britten-Jones in matter 2016/1310, and was not before the Tribunal until the first tier decision of 14 July 2017 the subject of his current application was made.  For reasons already canvassed, I do not accept that submission.

17. As I have already alluded to, the issue of whether there were special circumstances such as to justify waiver of all or part of the relevant debt was properly before Senior Member Britten-Jones and was dealt with by him.  In my view, the matter of current concern, being the action taken to implement the ARO’s decision such that Mr Treloar’s overall debt balance was adjusted to reflect the refund to him of the amount garnished from his tax refund, is unlikely to have been the subject of any decision under the social security law, such as to give the Tribunal jurisdiction.  Further even if the Tribunal does have jurisdiction with respect to that issue, in my view there is no basis on which Mr Treloar’s current application can succeed as there is no legal basis apparent to me on which Mr Treloar could establish an entitlement to retain the amount refunded to him without a commensurate increase in a properly raised and recoverable debt owed by him to the Commonwealth.

18. I therefore accept the submission of the respondent that if there is jurisdiction, the application for review has no reasonable prospect of success and should be dismissed under s 42B of the AAT Act. Of course if there is no jurisdiction it would also be necessary to dismiss the application. It follows that regardless of whether the Tribunal does or does not have jurisdiction, I am satisfied that the appropriate course is to dismiss the application.

19. I should add that these reasons were initially delivered orally on 21 February 2018.  However, later that day Mr Treloar requested written reasons, and these reasons have been prepared in answer to that request.

    DECISION

20. The application is dismissed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

…………………[SGD]……………………

Associate

Dated: 27 February

Date(s) of hearing:  13 February 2018

Advocate for the Applicant:                Self-Represented

Advocate for the Respondent:           Ms E Moran

Solicitors for the Respondent:           Sparke Helmore Lawyers