Walters; Secretary, Department of Employment and Workplace Relations

[2006] AATA 1129

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1129

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/113

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And GEOFFREY WALTERS

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date9 June 2006

PlaceAdelaide

Decision The application to stay the effect of the decision of the Social Security Appeals Tribunal made following a hearing on 10 April 2006 is dismissed.

..............................................

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – stay order – securing effectiveness of determination of hearing – financial hardship – applicant homeless and suffering financial and physical hardship – stay order refused

Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2)

Social Security Act 1991 s 1184K

Re Repatriation Commission and Delkou (1985) 8 ALD 454

REASONS FOR DECISION

9 June 2006   Mr J G Short (Member)

1. The application is for an order under s 41 of the Administrative Appeals Tribunal Act 1975 (the Act) staying the effect of a decision of the Social Security Appeals Tribunal (the SSAT) made on 10 April 2006 effectively abridging a preclusion period so as to end on 10 May 2006. The SSAT purported to exercise the discretion prescribed in s 1184K of the Social Security Act 1991 to treat all or part of a compensation payment as not having been made.

2.      Paragraph 39 of the SSAT’s Reasons for Decision reads as follows:

“In the Tribunal’s view Mr Walters’ circumstances are special and warrant an exercise of the discretion in his favour.  The “special” circumstances can be summarised as follows:

·Mr Walters is only 32 years of age he has suffered significant injuries and it is doubtful that he will be able to work again in fields where he had gained employment in the past (eg; shearing).  It is likely he will require extensive retraining before he is able to work again.

·Mr Walters did not receive competent professional advice about the consequences of redemption and he did not receive independent, competent financial advice before accepting redemption.

·Mr Walters may have accepted a lesser amount of compensation in recognition of the failure to receive advice, as above, or due to a real risk that he and his family would be harmed if he failed to repay drug debts.

·Aside from Mr Walters’ physical disabilities he has had significant depression over a number of years that is currently untreated due to his inability to afford the treatment.

·Mr Walters is currently homeless, in significant debt and he does not have any income and his prospects of generating any income rely on social security benefits being available to him.”

3.      The respondent’s (the Department) representative, Mr Bruce Harvey, suggested that the Secretary’s appeal against the SSAT decision was likely to be successful.  Mr Harvey referred to a line of cases which suggested that poor legal advice was not an appropriate basis upon which to favourably exercise the special circumstances discretion.  I agree that it is more appropriate that the provider of poor legal advice compensate an applicant for any loss occasioned by that advice, rather than the taxpayers of Australia through Centrelink payments.  Mr Harvey also argued that Mr Walters’ back condition and depression were not unusual conditions experienced by Centrelink recipients. 

4.      Mr Walters said that his back condition was very bad.  He said that he was in constant pain and getting worse.  He said that he could not afford pain killers and, because he does not have a health care card, cannot afford to attend a doctor.  He said that he has exhausted all avenues of charity, including organisations, family and friends.  The SSAT considered Mr Walters’ physical and mental conditions as explanatory of his failure to budget for his subsistence during a preclusion period.

5.      Mr Harvey also argued that, as Mr Walters was unlikely to find work and was not currently working and had no income, the Department would find it difficult to recover any monies paid to him in the form of Centrelink benefits between 10 May 2006 and 16 August 2006 (the original preclusion period end date). 

6.      In opposing the application, Mr Walters said that he is in a desperate situation.  He chooses not to live with his wife and child as they cannot afford to keep him and he has no source of personal support.  Mr Walters said that for a time he was living with friends, but had now exhausted this avenue of support.  He said that he is currently sleeping in the open on a riverbank and on some occasions inside a concrete pipe.  He said that the nights are very cold and that this does not help the symptoms of his back injury.  Mr Walters also said that he had not had a shower or “decent food” for months.

7.      I have considered all of the information provided by Mr Walters and the submissions made by Mr Harvey.  The law in this case was discussed in Re Repatriation Commission and Delkou (1985) 8 ALD 454. In that case the Tribunal first referred to the intended effect of the lodgement of an appeal to the Administrative Appeals Tribunal. Simply lodging such an appeal does not, and was not intended to, operate as a stay order (see s 41(1) of the Act).

8. Section 41(2) of the Act does however provide a discretion to stay the effect of a decision if it is desirable to do so. It will generally be desirable to do so if it is necessary so as to ensure that the original decision is not rendered nugatory. I must consider all of the circumstances of the case including any hardship which would be caused to anybody affected by the decision. I am not satisfied that the Department would suffer any hardship, however it is clear that Mr Walters is experiencing severe hardship and would continue to do so if he were unable to receive any pension or benefit, notwithstanding his success at the SSAT.

9.      I must also consider the likelihood of recovering any monies which Mr Walters may owe to the Commonwealth if he receives Centrelink benefits and is then required to repay those monies.  That is if the Department’s appeal is ultimately successful.  The quantum involved appears to be a little over three months worth of Centrelink benefits.  Mr Walters is unable to work and in my view is likely to require ongoing Centrelink benefits for some time.  This means that Centrelink can recover monies by withholdings.  This is not an avenue of recovery unknown to Centrelink.

10.     I have considered the submissions made by Mr Harvey and while I agree that the SSAT may have erred in including, amongst the factors it considered warranted the favourable exercise of its discretion, the poor advice provided by Mr Walters’ legal advisers, nevertheless I have not been satisfied that it is desirable to stay the effect of the SSAT’s decision.  The application is dismissed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .............J Coulthard.......................................
  Associate

Date of Hearing  30 May 2006
Date of Decision  9 June 2006

Advocate for the Applicant       Mr B Harvey

Centrelink Legal Services Branch
Advocate for the Respondent   In person