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

[2017] AATA 83

Zinck and Secretary, Department of Social Services (Social services second review) [2017] AATA 83 (18 January 2017)

Division:GENERAL DIVISION

File Number:2016/6449  

Re:Agnes Zinck  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:18 January 2017

Date of written reasons:         30 January 2017

Place:Sydney

Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, Ms Agnes Zinck’s application for a stay of the Social Services and Child Support Division dated 28 October 2016, is refused.

...................................[sgd].....................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for a stay of decision – disability support pension – limited prospects of success – not in the public interest to grant a stay – application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975(Cth), s 41

Social Security Act 1991 (Cth), s 94 (1)

Social Security (Administration) Act 1999(Cth), s 80(1), s 118(13)

CASES

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

SECONDARY MATERIALS

Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

30 January 2017

INTERLOCUTORY APPLICATION

1. On 28 October 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision of the Secretary to cancel the applicant’s disability support pension (the decision).

2. The basis of the decision was that the applicant ceased to satisfy the criteria for the disability support pension set out in section 94 of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 1 June 2016.

3. On 28 November 2016, the applicant applied for a review of the decision (substantive matter).

4. These interlocutory proceedings concern an application for an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to stay the operation of the decision until the final determination of the substantive matter before this Tribunal.

5. The Secretary opposes the granting of a stay order.

6. At the hearing of the application for a stay, I made an oral decision refusing to grant the stay. These are my written reasons for doing so.

   POWER TO GRANT A STAY

7. Section 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. That is, the decision under review has full effect until and unless the Tribunal makes an order staying the operation or implementation of the decision.

8. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to section 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’

9. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles that may be considered when determining a stay application:

   [6] The decision whether to grant a Stay is entirely discretionary.  It follows that an applicant does not have an automatic right to a Stay.  Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise.  Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions.  In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. [emphasis added]

   [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications.  Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

   (a)The prospects of success or the merits of the applicant’s case on review.

   (b)Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

   (c)     Whether it is in the public interest to grant a Stay.

   (d)That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

   PROSPECTS OF SUCCESS

10. The Secretary contends that Ms Zinck’s prospects of success in the substantive matter are poor.

11. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of Ms Zinck’s application for review.

12. The power for the Secretary to cancel Ms Zinck’s disability support pension is contained in section 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Pursuant to section 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made; in this case on 1 June 2016 (date of cancellation).

13. In assessing whether Ms Zinck qualified for the disability support pension in 2016, Centrelink was required to apply the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (the Impairment Tables), pursuant to subsections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables that applied when Ms Zinck was granted the disability support pension in 2006.

14. Section 94(1) of the Act provides that a person qualifies for the disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work as defined in s 94(2) of the Act.

15. Ms Zinck did not satisfy these criteria at the date of cancellation.

16. The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

17. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

18. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

19. Relevantly, the Introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition ‘must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’.

20. The Secretary contends that, based on the medical evidence set out in the SSCSD decision, Ms Zinck’s mental health condition was not fully diagnosed, treated and stabilised at the date of cancellation as she had not provided any recent evidence of a diagnosis by an appropriately medical practitioner.

21. Having read the decision under review and taken into account the submissions made by the parties, I accept that this may well be the case.  As the condition is not ‘permanent’ as defined by the Impairment Tables Determination, a rating in accordance with Table 5 – Mental Health Function of the Impairment Tables cannot be assigned.

22. I consider that the substantive matter has limited prospects of success and this weighs heavily against the granting of a stay.

    PREJUDICE TO THE PARTIES AND THE PUBLIC INTEREST

23. It is not in the public interest to provide payments that are clearly not due. If a stay is granted and my assessment of Ms Zinck’s prospects of success at a substantive hearing are correct, there is a real risk that she may incur a substantial debt which the Secretary would then have to recover, at some expense to the taxpayer. The recovery of such a debt would place financial burden on Ms Zinck and may lead to financial hardship.

24. Consequently, the prejudice to the parties and public interest considerations do not favour the grant of a stay in this case.

    FINANCIAL HARDSHIP

25. I accept Ms Zinck’s submission that her financial situation is stressful; however, there is no evidence that she is currently in financial hardship. Ms Zinck works approximately 15 hours per week and receives Family Tax Benefit A and B payments.

    CONCLUSION

26. For the reasons given above, the application for a stay was refused at the hearing of the interlocutory application.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...................................[sgd].....................................

Associate

Dated: 30 January 2017

Date of hearing:	18 January 2017
Applicant:	Self-represented
Solicitors for the Respondent:	Ms J Eslick, Department of Human Services