FEDERAL COURT OF AUSTRALIA

Hutchinson v Secretary, Department of Social Services [2019] FCA 660

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    The decision of the Administrative Appeals Tribunal made on 21 December 2018 with the file reference 2018/3904 be set aside and the matter be remitted to the Tribunal for determination according to law.

3.    The first respondent do pay the applicant's out of pocket expenses (if any), as were actually, necessarily and reasonably incurred in the conduct of these proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Karen Hutchinson lodged a claim for a disability support pension with the Secretary on 7 November 2017. Her application was allowed from that date. She claims that her application should have been allowed with effect from four weeks before the date of her application. In that regard, cl 11(2) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) provides that if a person makes a claim for a pension based upon incapacity for work as a result of a medical condition from which the person has continued to suffer and the claim is made more than five weeks after the incapacity began and the medical condition was the 'sole or principal cause of the person's failure to make the claim within 5 weeks after the day on which the incapacity began' then the benefit or pension is to start four weeks before the date of the claim.

2    I note that cl 11(2) requires that the 'sole or principal cause' of the failure to lodge within five weeks after the day when the incapacity began must be the medical condition. Having regard to the language of the provision, if there has been an extended period from when the incapacity for work began (more than five weeks) where something other than the medical condition has been the principal cause for the failure to lodge followed by a further period even an extended period where the medical condition was the principal cause of the failure to lodge, then it could not be said that the principal cause of the failure to make the claim 'within 5 weeks after the day on which the incapacity began' was the medical condition. The cause on which the provision operates is the cause of the failure to lodge within five weeks of the incapacity, not the cause of the failure to lodge in the four weeks before the application. The relevance of the period of four weeks is only that it operates to cap the entitlement during the period before the lodgement of the application for a benefit or pension to the period of four weeks before the day on which the claim was made.

3    Importantly, cl 11(2) refers to the day on which an incapacity begins (began). Implicit in that concept is a continuing period of incapacity. Where a person experiences a period of incapacity followed by a period where the person has recovered from the incapacity and then a relapse of incapacity by reason of the same medical condition then the 'day on which the incapacity begins' is the day of the relapse that then results in a period of ongoing incapacity until the date of the application. This is reinforced by the contextual circumstance that there is no entitlement to a disability benefit or pension if a person recovers from the relevant medical condition because the person is not suffering from the disability at that time.

Ms Hutchinson's application for additional four weeks refused

4    In the circumstances of Ms Hutchinson's application, the Department formed the view that cl 11(2) did not apply to the start date.

5    The original decision concerning the start date for the pension was affirmed on internal review. Ms Hutchinson then sought review in the Social Services and Child Support Division of the Administrative Appeals Tribunal. The Tribunal affirmed the decision. Ms Hutchinson sought a further review in the General Division of the Tribunal. On the second review, the Tribunal affirmed the decision of the Tribunal on the first review.

6    The sequence of reviews is provided for by the Administration Act. Review in the Tribunal is dealt with in Part 4A of the Administration Act. The second review is provided for by s 179. If on the first review the Tribunal varies or substitutes a decision then the second review is an application to review the decision as varied: s 182. Otherwise, the second review is a further opportunity to seek a review of the original decision: s 180 item 3.

Application for review

7    Ms Hutchinson now brings an application for judicial review of the Tribunal's decision on the second review. A party to a proceeding before the Tribunal may appeal to this Court on a question of law: s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

8    In written submissions in this Court in support of the application to review the second Tribunal decision, Ms Hutchison raised three complaints each of which was said to amount to an error of law by the Tribunal. First, she said that the Tribunal had taken an unfairly narrow view of cl 11(2) and had taken into account irrelevant matters. Second, the Tribunal failed to undertake a fair and balanced assessment of the medical evidence and caused a breach of procedural fairness. Third, the Tribunal failed to take into account her submissions, particularly a claim that there had been an offence by a lawyer acting for the Secretary concerning the provision of documents to the Tribunal which was a breach of procedural fairness.

9    Relevantly for present purposes, the Tribunal reasoned in the following way. It set out in full the matters relied upon by Ms Hutchinson and the Secretary by quoting verbatim the written submissions that each of them had provided to the Tribunal. It then noted certain matters relating to Ms Hutchinson, including that she had received workers compensation payments by reason of her medical conditions for a number of years until August 2017 and the review officer had concluded that the reason why Ms Hutchinson had failed to file a claim within five weeks of her injury was that she had been receiving workers compensation payments. The Tribunal then stated the question that it had to determine in the following terms:

The Tribunal has to determine whether the Applicant's medical conditions were the primary cause for the claim not being lodged within five weeks from the date of her incapacity.

10    The Tribunal referred to a statement in the review officer's report to the effect that Ms Hutchinson had informed the officer that the reason that she had not submitted a claim for a disability support pension at the time that her medical condition was diagnosed was because she was receiving workers compensation payments. I note that this is a reference to the time of initial diagnosis of the conditions.

11    The Tribunal then found that there was no evidence to suggest that the medical conditions of Ms Hutchinson precluded her from lodging her claim. It noted a contention for the Secretary that there was evidence to show that Ms Hutchinson was able to attend a pharmacy or instruct someone to do so. As to this the Tribunal said that it 'takes the view that the Applicant's explanation to this contention … failed to adequately address why she was not able to file her claim earlier'. The Tribunal had earlier set out that explanation in full when quoting the submissions. It was to the following effect (leaving to one side, at this stage, an issue as to whether Ms Hutchinson had received documents):

(1)    Ms Hutchinson suffered a relapse of her medical condition in May 2017;

(2)    she was unable to re-establish psychological treatment until mid-October 2017;

(3)    it was only after recommencing treatment that Ms Hutchinson was able to contemplate leaving the safety of her home and posting her application to Centrelink which she did on or about 30 October 2017;

(4)    her brother could not have lodged the claim for her as he only visits once every six months and he is often out of the country;

(5)    prior to 13 October 2017 Ms Hutchinson did attend Chemist Warehouse around the corner from her home to obtain essential medication and despite experiencing severe agoraphobia;

(6)    she had attended medical practitioners in late September and October to obtain therapy and through the therapy she was then persuaded to commence the Centrelink process;

(7)    Comcare payments to Ms Hutchinson ceased on 16 August 2017; and

(8)    the first medical visit for treatment after her relapse was a home visit in September 2017.

12    The Tribunal received the matters stated in the submissions as evidence (para 21). It did so in circumstances where the parties had agreed that the application be heard on the papers.

13    Plainly, in those circumstances, there was evidence before the Tribunal as to why Ms Hutchinson was unable to lodge her claim. Further, there was evidence to the effect that there had been a relapse in her condition. Therefore, the question was whether Ms Hutchinson had indeed suffered a relapse in May 2017 and, if so, whether from the time of her relapse (being when her incapacity was alleged to have begun) her medical conditions were the sole or principal cause of her failure to make a claim within five weeks thereafter. In order to discharge its statutory function the Tribunal was required to consider the material relied upon by Ms Hutchinson. It did not do so. It proceeded on the basis that there was no evidence when there was evidence.

14    Although the Tribunal referred to the contention advanced for the Secretary that there was evidence to show that Ms Hutchinson was able to lodge an application or arrange for another person to do so, the finding by the Tribunal was that the contention was not addressed. Therefore, the whole of the Tribunal's reasons rest upon a conclusion that there was no evidence advanced by Ms Hutchison.

15    Finally, the Tribunal expressed its conclusion in the following terms:

Having considered each of the submissions before it carefully, the Tribunal views the medical conditions for which the Applicant has been diagnosed as longstanding conditions. The Tribunal finds that the Applicant's failure to lodge her claim … until 7 November 2017 suggests that the reason for her delay was that she was still in receipt of compensation payments until August 2017, not that her medical conditions prevented her from lodging her claim earlier.

16    However, this conclusion must be considered in the context of reasoning that there was 'no evidence' and a failure to engage with the evidence that was advanced.

17    The Tribunal then purported to affirm the decision of the Tribunal in the first stage review. However, given that the first stage review concluded that the original decision should be affirmed, the task for the Tribunal on the second stage review was to form its own view exercising all the powers and discretions conferred on the original decision-maker: s 43 of the AAT Act.

18    So, on the basis that there was no evidence from Ms Hutchinson, the Tribunal found that the reason for failing to lodge was the receipt of compensation payments. The fact that the medical conditions were longstanding indicates a conclusion reached without considering the evidence from Ms Hutchinson that there had been a relapse. If a relapse was established then it was the relapse date that was the relevant date on which the incapacity began.

19    In that context, I consider the three grounds raised by Ms Hutchinson.

Ground 1: No evidence and unduly narrow view

20    The written ground complains that the Tribunal took too narrow a view of cl 11(2). The submissions in support of ground 1 complain of an error by denying procedural fairness in making the false statement that there was no evidence. For reasons I have given the Tribunal was in error in characterising the application as being unsupported by evidence as to Ms Hutchinson being precluded from lodging her claim. The Tribunal appears to have approached the matter on the basis that the relevant time to evaluate the explanation was when Ms Hutchinson first suffered from the medical conditions. However, her claim was that there was a relapse. For reasons I have given, as a matter of proper construction of cl 11(2), if there was a period of recovery and then a relapse the question is whether the medical condition was the reason why the making of a claim for disability benefits was not made within five weeks of the relapse. The Tribunal did not consider that question. Its failure to do so was an error of law because it was informed by an incorrect understanding of cl 11(2).

21    Therefore, there was an error of law by the Tribunal in taking too narrow a view of cl 11(2). The failure to take into account the evidence of Ms Hutchinson was a consequence of that error.

22    It is not correct to separately characterise that error as one whereby the Tribunal took into account an irrelevant consideration. However, the submissions for Ms Hutchinson in support of ground 1 also complained that certain pharmaceutical benefit statements supplied as supplementary T-documents were irrelevant. I do not accept that submission. Those documents were relevant to the issue as to whether the sole or principal reason for the failure to lodge the application was the medical condition of Ms Hutchinson. The separate complaint about the circumstances in which those documents were included as supplementary T-documents is addressed below as it is the subject of ground 3.

Ground 2: Fair and balanced assessment

23    The submission in support of ground 2 is that Ms Hutchinson was denied procedural fairness because the Tribunal relied on the argument that Ms Hutchinson was in support of disability benefits as a reason why the claim to the additional four weeks of pension should be refused.

24    This was not a denial of procedural fairness. It was a matter that had been advanced by the Secretary and a matter which Ms Hutchinson was given an opportunity to address.

25    In supplementary submissions, Ms Hutchinson said there was no engagement with any of her submissions to the Tribunal. She complains that she was effectively disregarded from the whole process. These complaints go beyond the terms of ground 2. They echo to some extent the complaint raised by ground 1 (which I have upheld) It is perhaps understandable that Ms Hutchinson may have been frustrated by receiving reasons that did no more than quote verbatim the competing submissions of the parties without engaging with the matters raised in those submissions. However, given the view I have reached as to ground 1 it is not necessary to consider whether it would be appropriate to address these concerns having regard to the terms in which the grounds were formulated. To the extent that they raise other matters they are of a kind that has been addressed in ground 1. As I have stated, the Tribunal should have considered the evidence advanced by Ms Hutchinson, but failed to do so because of an erroneous view that it took of the operation of cl 11(2).

Ground 3: Complaints concerning lawyer for the Secretary

26    Ms Hutchinson says that after the parties were advised that the matter was to be heard on the papers, the lawyer for the Secretary arranged to file new documents which had not been received by Ms Hutchinson.

27    The complaint appears to have its origins in what occurred in the earlier Tribunal hearing. Ms Hutchinson maintained that she had not received the 'T-documents'. The term is used to describe documents which the original decision-maker (in this case the Secretary) must lodge with the Tribunal in order to comply with s 37 of the AAT Act. The obligation is ongoing: s 38AA. For the first review, those obligations are expressly imposed upon the Secretary by the Administration Act (s 148) and supplemented (s 165, s 165A and s 166). For the second review, there is no modification of the obligations under the AAT Act. The Tribunal has issued a practice direction dated 30 June 2015 under s 18B in respect of the obligation to produce T-documents. It includes the following direction in para 9:

9.1    After the time for complying with section 37 has ended and before the review is determined, a decision-maker must lodge with us a copy of any document that comes into the decision-maker's possession and is relevant to the review, other than any document:

(a)    previously lodged with us under section 37;

(b)    already given to us by another party; or

(c)    we have given to the decision-maker.

9.2    A Section 38AA document must be lodged as soon as practicable after the decision-maker obtains possession or control of the document.

9.3     The decision-maker must also give a copy of any Section 38AA document to any other party at the same time, unless the decision-maker applies for a direction under section 35 of the AAT Act in relation to the document in accordance with the procedures specified in Section 3 of this Direction.

28    There were supplementary documents that were provided to the Tribunal pursuant to those obligations. Those documents included a copy of a covering letter referring to the original T-documents that had been provided to the Tribunal when it dealt with the first review. The covering letter itself became relevant because Ms Hutchinson maintained that she had not received the T-documents as part of the first review. The supplementary T-documents did not include the original T-documents nor did they purport to do so.

29    Unfortunately, Ms Hutchinson formed the view that there was some impropriety in providing the supplementary documents and that they somehow created the false impression that the supplementary documents included the original documents when that was not the case. On that basis, Ms Hutchinson made an assertion that there had been fraudulent behaviour that contravened the model litigant obligations of the Secretary. I do not accept these submissions. The material before me was to the contrary effect, namely that the supplementary documents were provided to fulfil an obligation of disclosure that fell upon the Secretary.

30    There was no error by the Tribunal in failing to deal with the claims by Ms Hutchinson about the disclosure of the documents. They concerned whether the Tribunal on the first review had properly dealt with the matter by referring to T-documents provided after the Tribunal had decided to determine the matter on the papers. When the Tribunal was constituted in its General division to hear the application by Ms Hutchinson on the second review it was to deal with the matter afresh and independently.

31    There has been no error demonstrated by reason of the approach to the T-documents.

Conclusion

32    As the application for review has succeeded on ground 1, the application should be allowed. The Tribunal has yet to deal with the application by reference to the evidence relied upon by Ms Hutchinson. No party invited the Court to make factual findings in the exercise of the statutory power conferred by s 44 of the AAT Act. In circumstances where the relevant facts have not been considered by the Tribunal it is appropriate that the matter should be remitted to the Tribunal to be dealt with according to law.

33    Ms Hutchinson seeks costs. As she acted on her own behalf those costs will be confined to those which can be recovered by a self-represented person. It was accepted by counsel for the Secretary that costs should follow the event. Therefore, I will make an order for the respondent to pay the costs of the application to be assessed if not agreed. As Ms Hutchinson was self-represented the order should be in the form made by the Full Court in von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172, for the reasons there given, particularly at [23]-[24].

Associate:

Dated:    13 May 2019