Wilson and Secretary, Department of Employment, Skills, Small and Family Business (Social services second review)

Wilson and Secretary, Department of Employment, Skills, Small and Family Business (Social services second review) [2020] AATA 121 (15 January 2020)
Division: GENERAL DIVISION
File Number: 2019/2085
Re:Barry Wilson
APPLICANT

AndSecretary, Department of Employment, Skills, Small and Family Business
RESPONDENT

File Number: 2019/2083 and 2019/2084
Re:Barry Wilson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date of decision: 15 January 2020
Date of written reasons: 5 February 2020
Place:Brisbane

The Tribunal dismisses applications 2019/2084 and 2019/2085.
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Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Newstart allowance activity test – rate of Austudy – dismissal of frivolous and vexatious proceedings
PRACTICE AND PROCEDURE – role of the Tribunal – administrative justice – possible outcome versus purpose of application – correct or preferable decision – no power to address conduct of officers – frivolous or vexatious – application made for collateral purpose – abuse of the process of the Tribunal – mechanism of review that is fair, just, economical, informal and quick
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)

CASES
Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57

REASONS FOR DECISION
Member D Mitchell
Provided orally: 15 January 2020
Written reasons: 5 February 2020
INTRODUCTION

On 12 April 2019, Mr Barry Wilson (the Applicant) sought a second-tier review of three decisions made by the Social Services and Child Support Division (SSCSD) of the Tribunal on 28 February 2019.
In line with the Tribunal’s objectives set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the oral decision and subsequently these written reasons will deal with all three decisions together, as the primary consideration in the matters are similar.
BACKGROUND
Application 1
Application 1, being known as Tribunal file 2019/2085, relates to the Respondent’s decision to apply an activity test breach rate of payment reduction to the Applicant’s Newstart Allowance from 4 March 2004 to 1 September 2004. The original decision was made on 19 February 2004 and was affirmed by an Authorised Review Officer (ARO) on 16 April 2004.
The Applicant sought review of this decision by the SSCSD by way of an application made on 3 October 2018.
The SSCSD held a hearing in relation to the application and found that the decision to impose an activity test breach was incorrect and subsequently set aside the Respondent’s decision.
This was a favourable decision for the Applicant. There was no financial impact of the SSCSD’s decision, as the Applicant was moved onto Austudy payments from 4 March 2004, so no arrears are payable.
Application 2
Application 2, being known as Tribunal file 2019/2083, relates to the Respondent’s decision that the Applicant was not eligible for the long-term income support (or higher) rate of Austudy from 9 March 2009. The original decision was made on 29 December 2009 and was affirmed by an ARO on 5 February 2010.
The Applicant sought review of this decision by the SSCSD by way of an application made on 3 October 2018.
The SSCSD held a hearing in relation to the application and found that the Applicant was not eligible for the higher rate of Austudy from 9 March 2009 and subsequently affirmed the Respondent’s decision.
The Respondent contends that even if a different decision was made in relation to this application that there would be no financial impact, as the rules in relation to the date of effect of decisions would mean that the date of effect of the decision would be the date that the Applicant sought review by the SSCSD.
The Applicant sought that should a different decision be made and he became entitled to any arrears payment, that these not be paid.
Application 3
Application 3, being known as Tribunal file 2019/2084, relates to the Respondent’s decision made by an ARO on 20 October 2018 that the Applicant was not eligible to be paid at the higher rate of Austudy for the period 28 February 2011 to 20 November 2011, consequently raising a debt of which was waived due to administrative error.
The Applicant sought review of this decision by the SSCSD by way of application made on 3 October 2018.
The SSCSD held a hearing in relation to the application and found that the decision was correct and subsequently affirmed the decision.
This is a decision in the Applicant’s favour.
ISSUES
The Applicant is dissatisfied with the three decisions and is seeking further review with largely the primary objective of seeking that the Tribunal make a decision in relation to the conduct of the officers of the Respondent over a long period of time.
The Respondent made submissions that Application 1 should be dismissed pursuant to section 42B(1) of the AAT Act. That provision empowers the Tribunal to dismiss proceedings that are frivolous, vexatious, misconceived or lacking in substance, have no reasonable prospects or are otherwise an abuse of the process of the Tribunal.
The Tribunal considers that all three applications should be considered in light of section 42B(1) of the AAT Act when consideration is given to the role of the Tribunal.
As such the primary decision before the Tribunal is whether the Applicant’s applications should be dismissed pursuant to section 42B(1) of the AAT Act.
THE ROLE OF THE TRIBUNAL
As Senior Member McCabe, as he was then known, pointed out in the decision of Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57 at [4]:
The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way.
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal stands in the shoes of the original decision-maker and considers the matter afresh. The Tribunal considers the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) Affirming the decision under review;
(b) Varying the decision under review; or
(c) Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot have an Applicant’s file that is held with or by the Respondent amended or address concerns or complaints about the decision-making process (outside of reviewing the outcome). This does not in any way diminish the concerns that an Applicant may have in this regard and there are alternative mechanisms to deal with them.
SHOULD THE APPLICATIONS BE DISMISSED?
Section 42B(1) of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
The Applicant has provided a large volume of information and has gone into a lot of detail of his interactions with various officers of the Respondent.
The Tribunal notes that the Applicant has conducted himself in a very open and respectful manner. He has sought to understand the merit review process and is seeking an avenue to have his concerns with his interaction and contact with officers of the Respondent considered.
Application 1
In the Applicant’s Statement of Facts and Contentions, dated 11 December 2019, for Application 1 he sought that the application not be dismissed under section 42B of the AAT Act. The summarised orders he was seeking from the Tribunal included:
·Acknowledgement of the conduct of the Respondent’s officers and officers of Workcover;
·How his 2001 compensation affect payments should have been treated;
·Whether section 8 of the Social Security Administration Act 1999 (Cth) was followed by the Respondent’s officers; and
·That the power in section 43(6) of the AAT Act be applied if applicable.
At Hearing, after discussing the powers of the Tribunal, the Applicant said he did not know what he wants the Tribunal to do. He said that he should never have been breached and that the conduct of Centrelink staff as far back as 2001 has been unacceptable.
The Applicant told the Tribunal that he wants the pathway to proceed to the Federal Court.
The Respondent in their Statement of Facts and Contentions, dated 27 August 2019, for Application 1 contended that while it did not agree with the SSCSD decision, the Applicant was wholly successful and, as such, the application is vexatious within the meaning of section 42B of the AAT Act.
The Respondent submitted that the application amounts to an abuse of process because there is no practical utility where the decision in dispute has already been set aside and a finding has been made in his favour.
The Respondent contended that this suggests the appeal has been lodged for some alternative or collateral purpose, and if so, it was submitted that it can be taken to be vexatious.
At Hearing the Respondent maintained their written contentions and submitted that there is no utility or practical benefit of the application. The Respondent contended that seeking commentary or a decision relating to the conduct of its officers constituted an alternative or collateral purpose.
Application 2
In the Applicant’s Statement of Facts and Contentions, dated 10 January 2020, for Application 2 the summarised orders he was seeking from the Tribunal include that:
·His Centrelink file be corrected;
·If he was successful, that he not be refunded with any taxpayer money resultant to any entitlement resulting from the proceedings;
·The conduct of the Respondent’s officers be acknowledged;
·A decision would assist him in making an application to have his tertiary studies debt waived;
·A decision would assist him to have his 2016 CDDA claim with the Department of Human Services reviewed; and
·A decision would assist him to make an application to the Department of Finance relating to an Act of Grace Payment.
At Hearing, after discussing the powers of the Tribunal, the Applicant said that he believes he was entitled to the higher rate of Austudy, based on the contention that his Newstart Allowance should not have been cancelled. The Applicant said he wants the Tribunal to make the correct decision as within its power and that he wants to have a pathway to seek review by the Federal Court.
The Applicant said he wants Centrelink to admit they were wrong but he does not want any back payment.
At Hearing the Respondent submitted that they did not urge the Tribunal to dismiss Application 2 under section 42B of the AAT Act on the basis that the Applicant has an entitlement for merits review.
Application 3
In the Applicant’s Statement of Facts and Contentions, dated 10 January 2020, for Application 3 the summarised orders he was seeking from the Tribunal include that:
·     His Centrelink file be corrected;
·     If he was successful, that he not be refunded with any taxpayer money resultant to any entitlement resulting from the proceedings;
·     The conduct of the Respondent’s officers be acknowledged;
·     A decision would assist him in making an application to have his tertiary studies debt waived;
·     A decision would assist him to have his 2016 CDDA claim with the Department of Human Services reviewed; and
·     A decision would assist him to make an application to the Department of Finance relating to an Act of Grace Payment.
At Hearing, after discussing the powers of the Tribunal, the Applicant said that he believes he was entitled to the higher rate of Austudy and that the decision that he was not entitled was wrong. The Applicant said he wants the Tribunal to make the correct decision as within its power and that he wants to have a pathway to seek review by the Federal Court.
The Applicant was focused on understanding what “he has done wrong”. The Tribunal explained that it is not a matter of what he has done wrong, rather it is the interpretation of the relevant legislation.
The Applicant understands that the current decision is favourable to him and that the debt that was raised was waived.
At Hearing the Respondent submitted that they did not urge the Tribunal to dismiss Application 3 under section 42B of the AAT Act on the basis that the Applicant has an entitlement for merits review. The Respondent confirmed that the Applicant had only received an eligible payment for 23 of 39 weeks prior to recommencing his study and as such would not meet the requirements to be paid the higher rate of Austudy.
CONSIDERATION
Applications 1 and 3
Having considered the evidence before the Tribunal and the submissions made by the Applicant and Respondent in relation to Applications 1 and 3, the Tribunal dismisses these applications pursuant to section 42B of the AAT Act.
The reasons for the Tribunal’s decision are that these reviewable decisions are favourable to the Applicant and the Tribunal is unable to make any order that will have a practical effect. Further the reasons for seeking review of these decisions largely relate to the Applicant’s dissatisfaction of his experiences with officers of the Respondent over a lengthy period of time which can be seen as, although it should be noted unintentionally by the Applicant, as having been made for collateral purposes and not for the purposes of having the Tribunal decide the issues to which they give rise. As set out above, the role of the Tribunal and potential outcomes was discussed with the Applicant.
Application 2
Having considered the evidence before the Tribunal and submissions made by the Applicant and Respondent in relation to Application 2, the Tribunal finds that, although the majority of the Applicant’s reasons for seeking review to some extent lie outside of the remit of the Tribunal, there is a legal issue at question of which the Applicant should be heard. The reviewable decision was not favourable to the Applicant and the Tribunal is satisfied that this application warrants further consideration and will proceed to a full hearing.
DECISION
Pursuant to section 42B of the AAT Act application numbers 2019/2085 and 2019/2084 are dismissed.
Application number 2019/2083 will proceed to substantive Hearing.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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Associate
Dated: 5 February 2020

Date of hearing: 15 January 2020

Applicant: In person

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2020] AATA 121

15 January 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Abuse of Process

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	15 January 2020
Applicant:	In person
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services