Vaughan and Secretary, Department of Social Services (Social services second review)
[2016] AATA 482
•8 July 2016
Vaughan and Secretary, Department of Social Services (Social services second review) [2016] AATA 482 (8 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4888
Re
Kevin Vaughan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms S Taglieri, Member
Date 8 July 2016 Place Hobart The application for reinstatement is refused.
........................................................................
Ms S Taglieri, Member
CATCHWORDS
PRACTICE AND PROCEDURE - reinstatement application – where application dismissed by reason of the Applicant’s failure to appear at a hearing by telephone - substantive application without arguable merit - application for reinstatement refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(8A), 42A(9)
Social Security (Administration) Act 1999 (Cth) ss 11, 16
CASES
Bennett and SDEEWR [2009] AATA 1002
Staats and National Archives of Australia [2010] AATA 531
Porkovich and SDEWR [2007] AATA 61
Formosa v Department of Social Security [1988] FCA 291
Gutmann & Secretary, Department of Social Security [1996] AATA 729
SECONDARY MATERIALS
Department of Social Services Guide to Social Security Law (Version 1.222, released 1 July 2016)
REASONS FOR DECISION
Ms S Taglieri, Member
INTRODUCTION
The Tribunal convened a hearing in relation to the application by Mr Vaughan and gave notice to him that the hearing would occur on 24 March 2016, 4:00pm AEST. As Mr Vaughan resides in Ireland, arrangements were made for his participation by telephone. As such he was notified that the hearing would be on 24 March 2016, 5:00am Irish time. At the appointed time for the hearing, three attempts were made to telephone Mr Vaughan on the telephone number he had provided to the Tribunal, but he failed to answer the phone.
After inviting submissions from the Respondent’s counsel, the Tribunal being satisfied that Mr Vaughan had been properly notified of the date, time and arrangements for the hearing, the Tribunal dismissed the application pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).
In accordance with usual practice, Mr Vaughan was advised of the dismissal of his application that he may choose to apply for reinstatement and the requirement to do so within 28 days.
On 29 March 2016, the Tribunal received an email, the text of which is:
I am writing to apologise for missing your phone call on Wednesday 23 March, 4.00 pm AEDST, (Thursday, March 24, 5 am Irish Time). I am so sorry but I got confused with the time difference. I was very annoyed with myself when I saw on my phone that I had missed 3 calls from you. It is entirely my fault and I hope you will make allowances and schedule another time to phone me. Again I am very sorry to have caused you an inconvenience. I do hope to hear from you soon with another appointment for a phone call.
Please don't reply to this email address as I am sending it from my local Citizens Information Centre.
It is apparent that Mr Vaughan was not aware of the dismissal of the Application at the time he sent the email. Nonetheless, it was appropriate to treat it as a request for reinstatement by the Tribunal for the purposes of subsection 42A(8A) of the Act. The Respondent’s Counsel was invited to indicate whether reinstatement was opposed and, if so, to make submissions.
The Respondent made submissions opposing reinstatement and Mr Vaughan filed various letters with the Tribunal which have been treated as submissions.
The Respondent’s submissions are by email dated 28 April and 12 May 2016. Mr Vaughan’s letters are dated 29 March, 20 April and 16 May 2016.
POWER TO REINSTATE
The issue is whether the Tribunal ought to exercise its powers pursuant to subsection 42A(9) of the Act, which provides:
If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
As is observed in various authorities[1], there are no express provisions in the Act which guide in respect of when or how the discretion in subsection 42A(9) of the Act ought to be exercised. Despite this, it is accepted that the overriding consideration is whether it is appropriate to reinstate and that the following factors are relevant, but no single factor is necessarily more important than another. It is necessary to weigh up the factors in so far as they are relevant[2]:
(a)A person should not be prevented from presenting a case in the absence of prejudice to the other party;
(b)Whether the failure to appear is adequately explained;
(c)Whether the case would have arguable merit if reinstatement was granted;
(d)The efficiency of case management, including the objectives of the Tribunal in section 2A of the Act.
[1] For example, Bennett and SDEEWR [2009] AATA 1002 and Staats and National Archives of Australia [2010] AATA 531.
[2] Porkovich and SDEWR [2007] AATA 61, Bennett and SDEEWR [2009] AATA 1002 and Staats and National Archives of Australia [2010] AATA 531.
GROUNDS OF OPPOSITION AND FINDINGS
The effect of the Respondent’s submissions are that all factors above weigh against exercising the discretion to reinstate. It says that Mr Vaughan’s case on review is without merit, his explanation for non-attendance at hearing trivial and reinstatement would cause it prejudice, specifically in relation to the costs to the tax payer and the Tribunal’s time.
Mr Vaughan says he confused the time differences and made a mistake. He has no prior record of non-compliance and has apologised. It is not material in the Tribunal’s view whether the explanation is trivial. The Tribunal accepts that it is a reasonable explanation and an honest mistake which could easily be made by the average person and is more likely for an elderly person such as Mr Vaughan. This consideration ought not deprive reinstatement but other factors must also be weighed up.
The prejudice claimed relates to duplication or wasted time, causing cost to the Respondent and the Tribunal. While the Tribunal accepts that there will be additional cost if the application is reinstated, the wasted costs will be modest as the time for and incidental to the appearance in March 2016 was fairly short. This factor also does not vitiate the exercise of the discretion.
It is necessary to also consider if the substantive application for review has arguable merit. Mr Vaughan’s substantive argument is that his pension ought to be backdated because he first “claimed” it in 2007. He says he sent a lengthy letter about his working history at that time. The Tribunal accepts that such a letter probably was sent, but that alone does not constitute a claim as required by the Social Security (Administration) Act 1999 (Cth) (“the Administration Act)[3].
[3] Formosa v Department of Social Security [1988] FCA 291 and Gutmann & Secretary, Department of Social Security [1996] AATA 729.
In order for a person to make a valid claim for the purposes of seeking a social security benefit, he or she must lodge an approved form in an approved manner[4]. At its most favourable and accepting Mr Vaughan’s claims as honest, he says that he only completed part of the approved claim form and that he believes that part which he completed was returned to the Respondent in 2007.[5] If this were found to be the case following a hearing, the Tribunal could not be satisfied that a claim had been validly made in 2007 because there is an absence of any evidence capable of establishing that what was lodged, contained sufficient detail to constitute a claim in writing made on an approved form and in an approved manner[6]. The Guide to Social Security Law[7] requires that when completing claim forms, “all necessary questions must be answered”[8]. No doubt the policy intent of this is to ensure that the Respondent has the requisite means of assessing the Applicant’s eligibility to receive a payment of social security.
[4] Sections 11 and 16 of the Administration Act.
[5] Letter to Tribunal from Mr Vaughan dated 5.12.15.
[6] As required by Sections 11 and 16 of the Administration Act.
[7] Department of Social Services Guide to Social Security Law (Version 1.222, released 1 July 2016).
[8] At 8.1.1.20 of the Department of Social Services, Guide to Social Security Law (Version 1.222, released 1 July 2016).
The claim form at T5, bearing Mr Vaughan’s signature and date of 23 May 2007, appears to be Part B and C of the approved form which had to be returned to the Respondent[9]. It has a handwritten notation at Part C of the form[10], referring to a new address as from 10 July 2012. That date is in close proximity to 17 July 2012, being the date the representative of the Department of Social Protection Social Welfare Local Office in Ireland, signed the “Checklist” in Part C of that form. This, together with the notation in the Respondent’s computerised records dated 17 August 2012[11], tend to suggest that the claim form Mr Vaughan says he partly completed and returned to the Respondent in 2007, was not returned until 2012. The record states:
“new claim and modia iss, as cus completed an old claim form and it was signed in 2007.”
[9] Pages 13 to 22 (parts B and C) of the standard authorised form.
[10] At page 21 of T documents.
[11] At page 101 of the T documents.
The T documents reflect that Mr Vaughan then completed and lodged a “new” claim form on 27 August 2012, which was actioned by the Respondent[12].
[12] At page 35 of the T documents, the updated or “new” format form.
It is quite conceivable that, Mr Vaughan partly completed the “old” claim form in 2007, further completed it in 2012 and then returned it to the Respondent, but has honestly forgotten when he returned the old form. This being consistent with:
(e)the observations above about the documentation before the Tribunal;
(f)that the only 2 pages of the “old” form Mr Vaughan still had in 2014 when he provided them to the Respondent were those at pages 10 and 11 of the T documents; and
(g)Mr Vaughan having memory deficit[13].
[13] For example, at pages 4 and 71 of T documents.
It is unnecessary and inappropriate to reach any firm view about the facts, but it is relevant that there are no or virtually no materials upon which Mr Vaughan could persuade the Tribunal that he made a valid claim within the meaning of the Administration Act prior to 2012. As such it cannot be said that his case has arguable merit. This, coupled with consideration of the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, informal and quick, leads the Tribunal to conclude that the discretion to reinstate the application pursuant to subsection 42A(9) of the Act should not be exercised.
DECISION
The application for reinstatement is refused.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)
........................................................................
Administrative Assistant
Dated
Date of hearing Hearing on the Papers Applicant Self-represented Solicitor for the Respondent Mr Brian Sparkes, Department of Social Services
0
3
0