Federal Court of Australia

Tziavaras v Secretary, Department of Social Services [2023] FCA 1250

ORDERS

THE COURT ORDERS THAT:

1.    The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be allowed.

2.    The decision of the General Division of the Administrative Appeals Tribunal made on 13 May 2022 be set aside.

3.    The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

4.    Unless a party notifies the Court by 4 pm on 27 October 2023 in writing stating opposition to this order, the respondent pay the applicant’s costs of and incidental to this proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J

1    The applicant, Mr Tziavaras, appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 13 May 2022 respecting his entitlement to the Disability Support Pension (“DSP”) under the Social Security Act 1991 (Cth) (“Social Security Act”). The Tribunal affirmed an earlier decision of the Social Services and Child Support Division of the Tribunal (“SSCSD-Tier 1”), which had affirmed an earlier decision of an authorised review officer (“ARO”) of the Department of Human Services (“Department”) to cancel the applicant’s DSP. In making its decision in May 2022, the Tribunal concluded that the applicant was not entitled to the DSP because he did not, at the relevant time, have a continuing inability to work, as required by s 94(1)(c)(i) of the Social Security Act.

2    For the following reasons, I would allow the statutory appeal under s 44 of the AAT Act.

Background

3    Mr Tziavaras suffers from osteoarthritis in his left hip. In a written statement to the Tribunal, he said that this condition resulted from a hip injury sustained by him when he was about 13 years of age. In the same statement, he said that the injury was “pretty easy to manage” while he was young, but the pain began to worsen from 2001 until he had “pain… shooting through [his] whole body”.

4    Mr Tziavaras first applied for the DSP on 7 September 2005, but this application was rejected on the basis that his condition was “short term”. A subsequent application on 4 January 2007 was accepted and, in consequence, he commenced receiving the DSP from that date.

5    On 14 July 2017, the Department wrote to Mr Tziavaras to give him notice that it was about to review his eligibility to continue receiving the DSP. By letter dated 28 September 2018, the Department subsequently advised him that he “no longer [met] the medical eligibility criteria to receive” the DSP and that the Secretary had cancelled his DSP effective from 6 November 2018. He was also informed that he would continue to receive the DSP for a further 6 weeks, “to help [him] during this time”.

6    Mr Tziavaras sought an internal Departmental review of the cancellation decision by an ARO. As already stated, the ARO affirmed the original decision. Mr Tziavaras was also unsuccessful on a review by the SSCSD-Tier 1. Both the ARO and the SSCSD-Tier 1 found that he did not have the 20 impairment points required under s 94(1)(b) of the Social Security Act to receive the DSP. I return to this below.

7    On 17 May 2019, Mr Tziavaras lodged an application for review of the SSCSD-Tier 1 decision with the General Division of the Tribunal (referred to hereafter as the “Tribunal (GD)”). The hearing of his review application was conducted almost three years later, on 24 March 2022. By the time of the hearing, the applicant had commenced working 21 hours per week (in three shifts of seven hours each) at a laboratory. His evidence to the Tribunal (GD) was that he commenced this work on 5 August 2019; that he found this amount of work “exhausting”; and that he was unsure whether he could sustain the work.

8    On 13 May 2022, the Tribunal (GD) affirmed the decision of the SSCSD-Tier 1. Unlike the ARO and the SSCSD-Tier 1, however, the Tribunal (GD) found that as at the date of the cancellation decision (also referred to below as the “cancellation date”) Mr Tziavaras had the requisite 20 impairment points, and thereby satisfied s 94(1)(b) of the Social Security Act. It was accepted that he satisfied s 94(1)(a). The Tribunal (GD) affirmed the decision to cancel the DSP nonetheless, on the basis that despite his impairment Mr Tziavaras did not satisfy s 94(1)(c) of the Social Security Act and therefore did not qualify for payment of the pension. This was because the Tribunal (GD) concluded that he did not have “a continuing inability to work” within the meaning of the Act. It noted in this regard that Mr Tziavaras had in fact been working 21 hours per week. It rejected Mr Tziavaras’ submission that s 96 of the Social Security Act operated to prevent the cancellation of the DSP on the basis of this work. In this Court, Mr Tziavaras contended that, in rejecting his submission, the Tribunal (GD) misconstrued s 96 of the Social Security Act. The Secretary argued to the contrary.

9    There was no dispute that the issue of construction gave rise to a question of law within the meaning of s 44 of the AAT Act.

Relevant statutory provisions

10    It is necessary to have regard to the relevant statutory provisions to understand the parties’ competing arguments. These provisions are located in both the Social Security Act and the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).

11    Section 94 of the Social Security Act sets out the criteria that must be met to qualify for the DSP. Subsection 94(1) relevantly provides:

94     Qualification for disability support pension

(1)     A person is qualified for 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)     one of the following applies:

(i)     the person has a continuing inability to work;

(ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

(d)    the person has turned 16; …

12    The “Impairment Tables” referred to in s 94(1)(b) are the tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”) made pursuant to s 26(1) of the Social Security Act: see ss 23, 26, 27. Nothing in this case turns on the terms of the Impairment Tables, since nothing concerning them is in contest here. This is because the Tribunal (GD) found that, under the Tables, Mr Tziavaras in fact had the necessary impairment of 20 points or more. As already noted, this appeal turns on the Tribunal (GD)’s determination that Mr Tziavaras did not have “a continuing inability to work” within the meaning of s 94(1)(c)(i).

13    Subsection 94(2) gives further content to the concept of “a continuing inability to work”. It relevantly provides:

Continuing inability to work

(2)    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

...

(a)    in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)    in all cases—either:

(i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

14    Section 94(5) defines “work” in the following way:

work means work:

(a)    that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)    that exists in Australia, even if not within the person’s locally accessible labour market.

(Emphasis added).

15    Section 94(2)(b), read with the definition of “work” in s 94(5), makes clear that a person applying for the DSP must satisfy the Secretary that the person suffers from an impairment that precludes the performance of work for 15 hours a week or more independently of a program of support within the next two years.

16    In respect of a person who is already receiving the DSP, the disqualifying effect of obtaining work of 15 hours or more per week is modified by s 96, which relevantly provides:

96 Continuation of disability support pension

(1)     This section applies to a person if:

(a)     the person is receiving disability support pension; and

(b)     the person would, apart from this section, cease to be qualified for disability support pension because the person obtains paid work that is for:

(i)     at least 15 hours per week; but

(ii)     less than 30 hours per week.

(2)     A person to whom this section applies continues to be qualified for disability support pension.

...

17    It is also useful to note the terms of s 80(1) of the Administration Act, pursuant to which the Secretary cancelled Mr Tziavaras’ DSP. Section 80(1) relevantly provides:

80 Cancellation or suspension determination

(1)     If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)     who is not, or was not, qualified for the payment; or

(b)     to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA):

the Secretary is to determine that the payment is to be cancelled or suspended.

Division 3AA was not engaged in the circumstances of this appeal.

18    The Secretary’s determination that a payment is to be cancelled or suspended pursuant to s 80 is an “adverse determination” as defined by s 117 of the Administration Act. Section 118(13) of the Administration Act further provides that an adverse determination (such as a determination to cancel a payment under s 80) takes effect “(a) on the day on which it is made; or (b) if a later day is specified in the determination, on that day”. Therefore, pursuant to s 118(13) of the Administration Act, the determination to cancel Mr Tziavaras’ DSP took effect on the day that it was made, that is, on 28 September 2018.

19    By virtue of s 43(1) of the AAT Act, the Tribunal (including the Tribunal (GD)) exercised the power conferred by s 80 of the Administration Act in making the decision on review. Accordingly, the Tribunal (GD) also identified the date of the cancellation decision (being the date by reference to which it had to assess Mr Tziavaras’ eligibility for the DSP) as 28 September 2018: TR, [1].

The Decision of the Tribunal (GD)

20    The evidence before the Tribunal (GD) included numerous medical reports, a Job Capacity Assessment Report of 7 September 2018, and Mr Tziavaras’ witness statement. Both Mr Tziavaras and his General Medical Practitioner, Dr K Yousif, gave evidence at the hearing before the Tribunal (GD).

21    As already noted, the Tribunal (GD) accepted that Mr Tziavaras suffered from an impairment satisfying s 94(1)(a) of the Social Security Act: TR, [9]-[10]. The first issue for the Tribunal (GD) was, therefore, whether his impairment attracted an impairment rating of at least 20 points under the Impairment Tables, as required by s 94(1)(b). In respect of Mr Tziavaras’ osteoarthritis at the left hip, the Tribunal (GD) assigned 10 points under Table 3 of the Impairment Tables: TR, [17]. As for his spinal condition, the Tribunal (GD) accepted his evidence that he had difficulties bending to knee level and straightening up again so as to warrant five impairment points under Table 4: TR, [28]. Finally, the Tribunal (GD) assigned 5 points under Table 14 of the Impairment Tables on the basis of his psoriasis: TR, [37]. The Tribunal (GD) thus concluded that, as at the cancellation date, Mr Tziavaras’ overall impairment rating was 20 impairment points, and that he satisfied s 94(1)(b) of the Social Security Act: TR, [38].

22    The second issue for the Tribunal (GD) was whether Mr Tziavaras had “a continuing inability to work”, as required by s 94(1)(c): TR, [39]. It began its consideration of this issue by noting that Mr Tziavaras had obtained work subsequent to the cancellation of the DSP: TR, [40]. The Tribunal recorded that:

The applicant gave evidence that after his DSP was cancelled, he managed to obtain a job working in a laboratory at Dandenong. He works three shifts of seven hours each per week. He finds this work nonetheless exhausting. The respondent relies upon this as supportive of its contention that the applicant has a capacity to work 15 hours or more and did so within two years from the cancellation date.

23    The Tribunal (GD) identified s 96 as the source of the parties’ disagreement on the issue of the applicant’s continuing inability to work: TR [42]. The Tribunal (GD) explained that the parties disagreed about whether s 96 was engaged in the circumstances of the case, that is, where a person obtains work of 15 to 30 hours subsequent to the cancellation of the DSP: TR, [43]-[46]. In its reasons at [47]-[48], the Tribunal (GD) addressed the issue in the following way:

In construing a section such as section 96 it is important to look at the actual language used. The fulcrum of section 96(1)(a) is that the person is receiving the DSP at the time that the person obtains paid work. Unlike Trenter, who was in paid work at the time that his DSP was cancelled, that is not the case with the applicant in this matter. He obtained work subsequent to the cancellation, which was on the basis of his medical eligibility. The Tribunal agrees with the respondent’s submission that section 96(1) and 96(2) do not apply because when the applicant obtained paid work of at least 15 hours per week but less than 30 hours per week, he was not in receipt of the DSP which is a prerequisite or trigger to the application of the section.

This is not a case where the applicant has continued to meet the requirements for a DSP and increased his hours of work above 15. Section 96 does not apply to an applicant whose DSP is cancelled and who subsequently secures paid work of no more than 30 hours per week.

24    Having concluded that s 96 did not apply to the applicant, the Tribunal (GD) went on to refer (at TR, [49]) to what was then the most recent Job Capacity Assessment Report before it. The Tribunal (GD) stated:

It should also be noted that the Job Capacity Assessment Report, dated 7 September 2018, referred to earlier, recorded that the applicant had a capacity to work from 15 to 22 hours per week in a light, appropriate and more sedentary role with reduced time constraints. The Tribunal considers that there is no reason not to accept the recommendations contained in that report. It is also consistent with the fact that the applicant, on his own admission, is working three 7 hour shifts per week.

(Emphasis original).

25    The Tribunal (GD) concluded that “the applicant had a capacity to work 15 hours or more per week within two years of the cancellation date” and therefore “did not have a continuing inability to work as required by section 94(1)(c) of the Act”: TR, [50]. It therefore affirmed the decision to cancel the applicant’s disability support pension: TR, [51].

The Appeal to this Court

26    On 10 June 2022, Mr Tziavaras instituted an appeal from the decision of the Tribunal (GD) under s 44 of the AAT Act on a single question of law. In substance, this question is whether the Tribunal (GD) was correct in holding that s 96(1) of the Social Security Act only applies where a person is receiving the DSP at the time they obtain paid work of at least 15 hours per week but less than 30 hours per week.

The Parties’ Submissions

Cancellation date – the agreed position

27    The parties agreed that, on review of a decision to cancel the DSP, the Tribunal must determine eligibility as at the date of the cancellation decision (here, 28 September 2018). They submitted that this was the effect of ss 117 and 118(13) of the Administration Act and of the authorities. In this context, they referred to Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 (“Freeman”) at 345; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; 158 FCR 252 (“Harris”) at 253; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234, and Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 (“Shi”) at [101] and [144]-[145]. The parties agreed that whilst it was open to the Tribunal in such a case as this to consider circumstances arising after the cancellation date, such circumstances were relevant only in so far as they cast light on the position as at the date of the cancellation decision.

The Applicant’s position

28    The applicant argued that the Tribunal (GD) erred in its construction of s 96 because:

(a)    The language and structure of s 96(1) did not require a temporal connection between the person receiving the DSP referred to in s 96(1)(a) and obtaining the work referred to in s 96(1)(b).

(b)    Upon review of a decision to cancel a person’s DSP, s 96(1)(a) is satisfied where a person is receiving DSP on the cancellation date. The provision is not limited to receipt of the DSP at the time the person obtains the work referred to in s 96(1)(b).

(c)    Upon review of a decision to cancel a person’s DSP, s 96(1)(b) is satisfied where the reviewer finds that the person would cease to qualify for the DSP on the cancellation date because of the work they have obtained. The provision is not limited to work obtained at the time the person was receiving the DSP. The provision should be read to include work that is obtained after the cancellation date, if the reviewer finds that the person ceased to qualify for DSP on the cancellation date because of that work.

29    The applicant accepted that s 96(2) was not enlivened unless all the requirements in s 96(1) were met; but he contended that the requirements in s 96(1) did not need to be satisfied at the same time. That is, the applicant submitted that:

The Tribunal’s construction of s 96(1) – namely that “the fulcrum of section 96(1)(a) is that the person is receiving the DSP at the time that the person obtains paid work” – implies words ‘at the time’ into the text of s 96(1). In effect, the Tribunal’s construction reads a temporal requirement into s 96(1) that is simply not apparent on, or consistent with, the text of the provision.

30    The applicant emphasised that the process of statutory construction required attention to the context and purpose of the relevant statutory provision. Citing Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [37]-[39], the applicant contended that the words “at the time” should not be read into s 96(1) because this “would be too much at variance, and would be inconsistent, with the language in fact used in the provision”. Instead, so the applicant submitted, “the words of s 96(1) when read naturally” and in the applicable statutory context, were “capable of applying where a person obtains work whilst awaiting review of their decision to cancel their DSP”.

31    Citing Harris at [19], the applicant submitted that, where the Tribunal is conducting a review of a decision to cancel the DSP, the Tribunal “is in precisely the same situation as the decision maker”. In this context, so the applicant contended, the first question for the Tribunal (GD), which arose under s 96(1)(a), was whether the person “is receiving” DSP on the cancellation date. The applicant argued that:

Cancellation of DSP and receipt of DSP are related but distinct issues. A person whose DSP has been cancelled because they no longer meet the medical or [continuing inability to work] criteria continues to receive DSP for 42 days after they are notified of the decision to cancel. When the Tribunal is reviewing a decision to cancel DSP, s 96(1)(a) is satisfied if the person was receiving DSP on the cancellation date.

32    The applicant submitted that the second question for the Tribunal (GD), which arose under s 96(1)(b), was whether the Tribunal (GD) was satisfied that the person ceased to be qualified for DSP on the cancellation date because the person obtains work of more than 15 hours per week. With respect to this question, the applicant contended that s 96(1)(b) was directed to a person’s failure to qualify for the DSP on the cancellation date because the person no longer has a continuing inability to work “over 15 hours per week”. Noting that the Social Security Act did not contain a provision that expressly disqualified a person “for DSP because they obtain paid work of more than 15 hours per week”, the applicant submitted that, in the absence of s 96, “such a person would ... cease to qualify for DSP because the fact they have obtained such work inescapably leads to the conclusion that the person does not satisfy the 15 hour rule [in s 94(5)] and therefore does not have a [continuing inability to work]”.

33    As already stated, the applicant accepted that it was open to the Tribunal to consider circumstances arising subsequent to the cancellation date but only to the extent that that information “casts light on whether a person qualified for DSP on the cancellation date”. The applicant accepted that the fact that a person has obtained work of more than 15 hours per week within two years after the cancellation date would be “clearly” relevant to whether the person, as at the cancellation date, had a continuing inability to work. The applicant submitted, however, that s 96(1)(b) of the Social Security Act would be engaged in this event and, provided the Tribunal found that the person otherwise qualified for the DSP, would preserve that DSP qualification.

34    The applicant submitted that s 96(1) should be read with s 96(3), “which carves out an exclusion for DSP recipients who obtain work between the time they become reviewed 2008-2011 DSP starters and the time the Secretary completes their first review of the person’s qualification for DSP”. The applicant submitted that:

Section 96(3) can be read as exhaustive of the categories of DSP recipients and work that are excluded from the operation of s 96. It indicates that the legislature had deliberately not excluded any other categories of DSP recipients or work from the operation of s 96, including persons who had obtained work between the cancellation date and decision upon review.

35    The applicant contended that this construction of s 96(1) was supported by the purpose of the provision and the extrinsic material. The applicant referred to the Explanatory Memorandum accompanying the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Bill 2012 (Cth), which preceded the enactment of s 96 (“the EM to the 2012 Bill”) and the Minister’s Second Reading Speech on the Bill. The applicant submitted that the legislative purpose would best be achieved by interpreting s 96 as capable of applying when a person obtains work whilst awaiting review of a decision to cancel the DSP.

36    The applicant also argued that this construction was in accord with the principle that remedial legislation be construed beneficially. Referring to Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638, Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 (“Cooper”) at 18, and Victoria v Tatts Group Ltd [2014] VSCA 311 at [61], the applicant submitted that “[w]ithin the confines of the language employed and what is open on the words used, s 96 should be construed generously in favour of the disadvantaged persons it concerns”. The applicant submitted that the construction of s 96(1) adopted by the Tribunal (GD) has “capricious and manifestly unfair results” because whether s 96(1) operates to protect a person in receipt of the DSP who obtains work is made dependent on the timing of the initial cancellation decision. In written submissions in reply, the applicant contended that this construction of s 96 simply required “a reviewer to treat the fact of a person working before a cancellation decision was made, and after it was made, on equal footing”. The applicant argued that this was “consistent with the legislative framework, the text of s 96, and the purposes of the relevant provisions and of merits review”.

The Secretary

37    In written submissions, the respondent Secretary submitted that the language of s 96(1) required that s 96(1)(a) and (b) be satisfied at the same time. The Secretary submitted that this was the effect of the use of the word ‘and’ between s 96(1)(a) and (b), and the tense and structure of these provisions. The Secretary submitted that, as at the cancellation date, it could not be said that both s 96(1)(a) and (b) applied in the applicant’s case. While the applicant was receiving the DSP, he was not in paid work.

38    The Secretary also submitted that this construction was consistent with the purpose of s 96 as indicated by the EM to the 2012 Bill. The Secretary submitted that since s 96 was intended to allow DSP recipients to “test their capacity for work without affecting their ongoing qualification”, the provision should be understood to require that the relevant work be obtained and performed at the time the person is receiving the DSP. The contrary conclusion would, so the Secretary submitted, result in a “perverse” outcome because recipients of DSP would be able to prevent cancellation of their DSP by obtaining paid work and attracting the protection of s 96. The Secretary contended that the applicant’s construction “read[s] s 96 as preventing the decision-maker from having any regard whatsoever to the fact of a person’s employment in considering their continuing inability to work”.

39    Further, the Secretary contended that, even if s 96 applied to persons who obtained work after the cancellation of their DSP, the provision would not preclude a finding that those persons did not have a continuing inability to work at the cancellation date, because s 96 does not preclude the Tribunal from using evidence of subsequent employment to support an independent conclusion, based on material other than subsequent employment, that the person had ceased to qualify for the DSP. The Secretary contended that the Tribunal (GD)’s reasons disclosed this very process of reasoning. In the Secretary’s submission, the Tribunal (GD) did not make its finding with respect to s 96(1)(b) “because” Mr Tziavaras had obtained paid work. Rather, in the Secretary’s submission, the Tribunal (GD) “relied on the [Job Capacity Assessment] Report” to make its finding that Mr Tziavaras did not have a continuing inability to work (recalling that this Report concluded that Mr Tziavaras had a capacity to work from 15 to 22 hours per week in a suitable role: see [25] above). In the Secretary’s submission, having reached this independent conclusion on the basis of that Report, the Tribunal (GD) simply “noted” that the conclusion in the Report was consistent with the fact that Mr Tziavaras was in fact working three seven hour shifts a week. The Secretary submitted that the Tribunal (GD) did no more than have “some regard to the evidence of the Applicant’s subsequent employment as corroborating the medical assessment in the JCA Report which spoke to the [a]pplicant’s qualification at the time of the cancellation” (emphasis added). The Secretary therefore contended that the applicant’s construction of s 96, even if accepted, would not have prevented the Tribunal (GD) from reasoning in this way in order to conclude that the applicant did not have a continuing inability to work.

Applicant’s reply on the significance of the Job Capacity Assessment Report

40    In reply, the applicant submitted that the Secretary’s characterisation of the Tribunal (GD)’s process of reasoning was incorrect. In particular, he noted that the Tribunal (GD) commenced the section of its reasons respecting whether the applicant had a continuing inability to work with a reference to his employment, and not the contents of the Job Capacity Assessment report; and that assessment was only mentioned after the Tribunal (GD) had rejected the applicant’s construction of s 96(1). Further, the applicant contended that any reliance on the Job Capacity Assessment Report by the Tribunal (GD) would have constituted an error because that assessment was prepared on the basis that the applicant’s impairment attracted an impairment rating of 10 points, contrary to the Tribunal (GD)’s conclusion that his impairments attracted 20 points. It was therefore impermissible, so the applicant submitted, for the Tribunal (GD) to rely on that report to reach a conclusion that he did not have a continuing inability to work.

Consideration

41    In this case, the operation of s 96 of the Social Security Act must be considered in the context of the applicable legislative structure for merits review. The primary decision-maker, as the Secretary’s delegate, determined to cancel the payment of the DSP to Mr Tziavaras on 28 September 2018, with effect from 6 November 2018, on the basis he no longer met the medical eligibility criteria for the DSP. This was because, in the delegate’s view, Mr Tziavaras had an impairment that attracted no more than 10 points under the Impairment Tables and, accordingly, he did not satisfy the requirement in s 94(1)(b) of the Social Security Act. In this circumstance, the delegate was satisfied that “a social security payment is being or has been, paid” to a person (Mr Tziavaras) “who is not, or was not, qualified for the payment”; and s 80 of the Administration Act required the delegate to determine that the payment be cancelled.

42    Mr Tziavaras applied under s 129 of the Administration Act for review of the delegate’s decision, as he was entitled to do. Pursuant to s 135, an ARO conducted a review and affirmed the delegate’s decision. Mr Tziavaras then applied for “AAT first review” pursuant to s 142(1)(a) of the Administration Act. As already noted, the SSCSD-Tier 1 affirmed the decision of the ARO, again holding that Mr Tziavaras failed to satisfy s 94(1)(b) of the Social Security Act because his impairment attracted only 10 points under the Impairment Tables. Thereafter, Mr Tziavaras exercised his right to apply for “AAT second review” pursuant to s 179(1) of the Administration Act. Nearly four years after the delegate’s decision, on 13 May 2022, the Tribunal (GD) found that Mr Tziavaras’ impairment attracted 20 points under the Impairment Tables and therefore satisfied s 94(1)(b) of the Social Security Act. Notwithstanding this, it affirmed the prior decision on the ground that Mr Tziavaras failed to satisfy s 94(1)(c) because the Tribunal (GD) was not satisfied that Mr Tziavaras had a continuing inability to work within the meaning of s 94(1)(c)(i) (s 94(1)(c)(ii) being inapplicable in his case).

43    Both the AAT first review and the AAT second review were conducted under the AAT Act. It is well accepted that, when exercising jurisdiction under ss 25 and 43 of the AAT Act, the Tribunal stands in the shoes of the decision-maker whose decision is under review and can exercise the same power or powers as that decision-maker (subject to any legislative provision to the contrary). Notwithstanding the multiple levels of review, the result was that the Tribunal (GD) could exercise the same power or powers as the delegate who had determined to cancel payment of the DSP to Mr Tziavaras pursuant to s 80 of the Administration Act. In this circumstance, the Tribunal (GD) was required to address the same question as the delegate had addressed: that is, was the Tribunal (GD) satisfied that DSP has been paid to a person who was not qualified for the payment? In answering this question, the Tribunal (GD), like the delegate, had to determine whether Mr Tziavaras satisfied s 94 of the Social Security Act. In this case, as a practical matter, the Tribunal (GD) was required to determine whether his undisputed impairment attracted at least 20 points under the Impairment Tables in accordance with s 94(1)(b); and if so, whether he had a “continuing inability to work” within the meaning of s 94(1)(c), read with s 94(2) and (5).

44    As already seen, it was common ground that, on review of a decision to cancel the DSP, the Tribunal (GD) must determine these questions as at the date of the cancellation decision (that is, 28 September 2018: see [27] above). I accept this proposition, which is supported by the statutory provisions and the authorities to which the parties referred. Further, I accept that, as the parties submitted, the Tribunal may consider circumstances arising (or materials created) after the date of the cancellation decision, but only to the extent that those circumstances (or materials) bear on whether the pension has been paid to a person who was not qualified to receive the payment as at the date of the cancellation decision.

45    There was no challenge in this statutory appeal to the Tribunal (GD)’s finding that, as at the date of the cancellation decision, Mr Tziavaras’ impairment attracted 20 points under the Impairment Tables and that he satisfied both s 94(1)(a) and (b) of the Social Security Act. As we have seen, the applicant’s case was that the Tribunal (GD) erred in its finding that he did not have “a continuing inability to work” within the meaning of s 94(1)(c) because it misconstrued s 96 of the Social Security Act.

46    It may be recalled that the combined effect of s 94(2) and s 94(5) of the Social Security Act is that a person has a continuing inability to work within the meaning of s 94(1)(c) if the person has an impairment that is sufficient to prevent the person from doing work for 15 hours or more a week (without a program of support) within the next 2 years. It followed that in considering whether Mr Tziavaras met the requirement in s 94(1)(c), the Tribunal (GD) had to consider whether he had an impairment sufficient to prevent him from working for 15 hours or more a week within the two years following 28 September 2018, which was the date of the cancellation decision.

47    In the Tribunal (GD), the Secretary relied on the fact that, in August 2019, Mr Tziavaras obtained a job which involved him working “three shifts of seven hours each per week”; that is, in excess of 15 hours per week. The Secretary argued that this supported the proposition that Mr Tziavaras had “a capacity to work 15 hours or more and did so within two years from the cancellation date”: TR, at [40]. As stated above, it was open to the Tribunal (GD) to have regard to events after the cancellation decision but only insofar as those events were relevant to its assessment of Mr Tziavaras’ qualification for the pension as at the cancellation date. Whether an event after the cancellation date was relevant to that assessment depended on the governing statute.

48    As noted already, the substance of the applicant’s argument in the Tribunal (GD) was that, on account of s 96, his paid work after 5 August 2019 could not affect his qualification for the pension as at the date of the cancellation decision. In effect, his submission was that, by reason of s 96, this work had no bearing on his qualification for payment of pension. As we have seen, the Tribunal (GD) rejected this submission. It held that s 96 did not apply in Mr Tziavaras’ case because he did not meet the criterion in s 96(1)(a), which was a prerequisite for the protection of s 96(2).

49    Before discussing the construction of s 96 in more detail, it is useful to have regard to the legislative history of s 96 in order to better understand the text, context and purpose of the provision. The provision was introduced into the Social Security Act by the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012 (Cth). The EM to the 2012 Bill described its purpose as follows:

The measure in this Schedule is focused on ensuring that people who wish to test their capacity to increase the number of hours they work may do so without affecting their ongoing qualification for disability support pension. The measure therefore provides an incentive for workforce participation while acknowledging that disability support recipients may not be able to maintain an increased work capacity and providing disability support pension as a safety net.

50    The EM to the 2012 Bill also assists in understanding the intended operation of the provision. Under the heading “Amendments to the Social Security Act”, the EM to the 2012 Bill described the operation of s 96 as follows:

Item 1 inserts new section 96 into the Social Security Act. Section 96 allows for the continuation of a person’s qualification for disability support pension if the person obtains paid work of at least 15 hours but less than 30 hours per week.

Subsection 96(1) sets out that section 96 applies to a person who is receiving disability support pension and who would (if not for the new provision) lose qualification for the pension because of obtaining paid work of at least 15 hours per week but less than 30 hours per week.

Subsection 96(2) specifies that people to whom section 96 applies continue to be qualified for disability support pension. This means that disability support pension recipients who participate in paid work for between 15 and 30 hours per week can do so without affecting their qualification for disability support pension despite the increased number of hours worked…

51    The evident object of s 96 is to allow people who are receiving the DSP to “to increase the number of hours they work… without affecting their ongoing qualification for [DSP]”. The provision addresses the effect of s 94(1)(c), read with s 94(2) and (5). Absent s 96, the effect of these provisions is that a person in receipt of the DSP, who worked for 15 hours per week or more, would, on account of that work, cease to be qualified for the DSP. That person’s DSP would be liable to cancellation pursuant to s 80 of the Administration Act. This is because a person in this situation would fail to satisfy the Secretary that the person had “a continuing inability to work” as required by s 94(1)(c) since this requirement entails “an impairment ... sufficient to prevent the person” from doing work for at least 15 hours a week “within the next 2 years”: see s 94(2) and (5). Section 96(2) prevents this result where a person in receipt of pension payments obtains work for at least 15 hours per week but less than 30 hours per week.

52    In substance, s 96(2) provides that a person who meets the criteria in s 96(1) continues to be qualified for the DSP, notwithstanding the person would otherwise be disqualified by virtue of s 94(1)(c), read with ss 94(2) and (5). Section 96(1) sets out the circumstances in which s 96(2) applies (subject to the specific situations identified in s 96(3), none of which are presently relevant). Section 96(1) has two limbs. The first limb (s 96(1)(a)) requires that “the person is receiving a disability support pension”. Plainly enough, this limb would be satisfied where a person is receiving the DSP on an ongoing basis. This limb can, however, also be satisfied by a person who has been the subject of a cancellation determination under s 80 of the Administration Act and who applies for a review of that determination, providing the person is in receipt of the pension as at the date of the cancellation decision.

53    As Mr Tziavaras’ case illustrates, as at the date of a cancellation decision, a person is in receipt of the pension up until the pension payments cease. In his case, this was well after the cancellation date. In its letter of 28 September 2018, the Department advised him that its cancellation decision was effective from 6 November 2018 and that he would continue to receive the DSP for a further six weeks: see [5] above. The parties accepted that this is what had in fact happened. Mr Tziavaras therefore satisfied s 96(1)(a) as at 28 September 2018. It is immaterial that he was not receiving payments at the time of the review of the delegate’s decision. This is because, on a review of a cancellation decision under s 80, a decision-maker is required to assess whether the review applicant is qualified for the DSP as at the date of the cancellation decision, rather than as at the date of the review. As at the cancellation date, therefore, Mr Tziavaras fell within the description of a person who “is receiving disability support pension”. That is, he met the description in s 96(1)(a) of the Social Security Act.

54    The second limb of s 96(1) is satisfied if “the person [who is receiving disability support pension] would, apart from this section, cease to be qualified for the [pension] because the person obtains paid work” that is for “at least 15 hours per week; but ... less than 30 hours per week”. The second limb of s 96(1) (s 96(1)(b)) first requires that, save for s 96, the person would lose their qualification for the DSP because of the person’s hours of paid work: see s 96(1)(b)(i). As we have seen, a person in receipt of the DSP who works at least 15 hours per week or more (see s 94(5)) would cease to qualify for the pension (absent s 96) because that person would cease to satisfy the “continuing inability to work” requirement in s 94(1)(c): see [51] above. Secondly, the second limb of s 96(1) requires that this work must be “for less than 30 hours per week”. Section 96(2) shields a person from disqualification on account of work only if the person satisfies all parts of the two limbs of s 96(1).

55    In effect, s 96 operates to limit the power to cancel a person’s DSP under s 80 of the Administration Act. Before the Secretary (or a delegate) or a decision-maker on review can cancel a DSP, the Secretary must be satisfied that the pension “is being, or has been, paid” to a person who was not qualified for the payment of the pension. This requires a decision-maker to form a state of satisfaction about whether the pensioner meets all the criteria for the pension. Relevantly here, the decision-maker had to consider whether Mr Tziavaras had “a continuing inability to work” within s 94(1)(c), being an inability to work for at least 15 hours a week within the next 2 years: see s 94(2) and (5). Section 96 prevents a decision-maker from concluding that a person no longer has “a continuing inability to work” for the purpose of s 94(1)(c) on the basis that the person has in fact obtained paid work for at least 15 hours but less than 30 hours per week.

56    In this case, the Tribunal (GD) was required to determine whether Mr Tziavaras was qualified for the DSP as at 28 September 2018 (being the date of the cancellation decision). As regards s 94(1)(c), this meant that the Tribunal (GD) had to determine whether as at 28 September 2018, Mr Tziavaras had a continuing inability to work. As at that date, Mr Tziavaras would have had a continuing inability to work if he had an impairment sufficient to prevent him from doing work for 15 hours or more a week within the next 2 years: see [46]. As at 28 September 2018, Mr Tziavaras had not undertaken any “work” within the meaning of s 94. He did, however, work 15 hours or more per week in the two years after 28 September 2018. His evidence before the Tribunal (GD) was that, to make ends meet, when his DSP ended, he was obliged to apply for Newstart (an income support allowance) and that “as part of that” he obtained a job through his Newstart provider. The result was that, on 5 August 2019, he commenced work involving 21 hours per week in three shifts of seven hours each.

57    As stated above, it was open to the Tribunal (GD) to consider circumstances arising after the cancellation date but only to the extent that they were relevant to whether a person qualified for DSP on the cancellation date. Leaving aside s 96, it was therefore open to the Tribunal (GD) to have regard to the work Mr Tziavaras did in the two years after the date of the cancellation decision in determining whether he had a “continuing inability to work” as at the cancellation date. As we have seen, the Tribunal (GD) reasoned that Mr Tziavaras did not have a continuing inability to work because he had in fact been working at least 15 hours a week in the two years after the cancellation date. In other words, absent s 96, the fact that he had been doing this paid work on and after 5 August 2019 would (in the Tribunal (GD)’s view) disqualify him for payment of the pension. Section 96(2) shielded him from this outcome. This was because he not only satisfied s 96(1)(a), but also s 96(1)(b). This was because his work on and after 5 August 2019 was for less than 30 hours a week.

58    The use of the conjunction “and” between paragraphs (a) and (b) of s 96(1) meant that both paragraphs had to be satisfied before s 96 could apply to Mr Tziavaras, and s 96(2) could shield him from the consequence of working 15 hours or more per week in the two years after the decision to cancel his pension under s 80 of the Administration Act. As already stated, on a review of the delegate’s cancellation decision, a decision-maker was required to assess whether the review applicant qualified for payment of the DSP as at the date of the cancellation decision. This meant that the decision-maker was obliged to consider whether Mr Tziavaras satisfied both limbs of s 96(1) as at that date.

59    I reject the Secretary’s contention that s 96, through its use of the present tense, establishes a temporal requirement that the work to which s 96(1)(b) refers be done “at the same time” as the pensioner receives the pension payment to which s 96(1)(a) refers. The text of s 96 does not require these words to be read in as in fact the Secretary’s submission would require; and there is no sufficient reason to do so. The Secretary’s contention pays insufficient regard to the fact that where a decision-maker is considering an exercise of power under s 80 of the Administration Act, the definitions of “continuing inability to work” in s 94(2) and of “work” s 94(5) require some assessment of the person’s situation in the following two years. On a subsequent review, the decision-maker may have evidence as to what has in fact occurred in the two years after the cancellation date, but this will be relevant only to the extent that it bears on the decision-maker’s assessment as at the cancellation date. That is, work obtained by the review applicant in the two-year period after the cancellation date can only ever be relevant, if relevant at all, to the position on the cancellation date; and this is the very same date on which the review applicant must demonstrate receipt of the pension. For this reason, to the extent that work obtained by the review applicant within the two year-period following the cancellation date is properly considered relevant to assessing a review applicant’s “continuing inability to work”, that work satisfies s 96(1)(b) as at the cancellation date.

60    I accept that there is a degree of awkwardness in applying s 96, which uses only the present tense, in a review context, especially once several years have passed since the primary cancellation decision. That awkwardness is the product of the inquiry that the decision-maker must make on a review of a decision to cancel payment of the DSP. As we have seen, the decision-maker must assess a person’s entitlement to the DSP by reference to the cancellation date, that is, a date in the past. In so doing, the decision-maker on review must consider whether the person had a continuing inability to work on the cancellation date. This inquiry involves an assessment of whether the person’s impairment was sufficient at that date to prevent the person working fifteen hours or more per week in the two following years. When the primary decision-maker makes this same inquiry, the inquiry will clearly be prospective in nature. Where, however, a review takes place several years after the primary cancellation decision (as it did here), it is likely that the decision-maker will have material on the review showing what in fact occurred in the two years after the cancellation date. As we have seen, the decision-maker can have regard to this material to the extent that it is relevant to an assessment of the issue as at the cancellation date. It is in this context that the decision-maker must consider the application of s 96. In the review context, the inquiry is not about the present situation of the person whose pension has been cancelled some time before. Rather, the inquiry must involve the decision-maker on review looking back to the situation of that person as at the date of the cancellation decision, subject to a relatively limited capacity to have regard to events in the subsequent two years that bear on the assessment of the person’s continuing inability to work as at the cancellation date. This explains why a construction of s 96 ruled by its use of the present tense results in a temporally artificial and inappropriate inquiry and ought not be adopted.

61    Furthermore, to include the additional words for which the Secretary contended would deprive a review applicant of the entire benefit of a review and the statutory protection that s 96(2) would otherwise give him if his pension had not been cancelled: compare Cooper at 18. This can work significant unfairness, as this case illustrates.

62    I also reject the Secretary’s submission that the Tribunal (GD) did not find that Mr Tziavaras failed to satisfy s 94(1)(c) because he had obtained paid work after 5 August 2019; and that it instead relied principally on a Job Capacity Assessment Report of 7 September 2018. The Secretary’s argument effectively reverses the Tribunal (GD)’s reasoning. The Tribunal (GD) commenced its discussion concerning Mr Tziavaras’ continuing inability to work by noting that the respondent Secretary relied on the fact the Mr Tziavaras had undertaken work involving more than 15 hours per week within two years of the cancellation date as being indicative of his failure to satisfy s 94(1)(c). The Tribunal (GD) rejected Mr Tziavaras’ submissions concerning the application of s 96, concluding that s 96 “does not apply to an applicant whose DSP is cancelled and who subsequently secures paid work of no more than 30 hours per week”. In this circumstance, it is tolerably clear that the Tribunal (GD) primarily relied on Mr Tziavaras’ work from 5 August 2019 onwards in support of its conclusion that Mr Tziavaras did not satisfy s 94(1)(c) of the Social Security Act. The Tribunal (GD)’s subsequent statement that “[i]t should also be noted that the Job Capacity Assessment Report ... recorded that the applicant had a capacity to work from 15 to 22 hours per week ...” indicated that the Tribunal (GD) regarded this Report as supportive, not determinative, of its finding on the issue.

63    As I do not accept the premise of the Secretary’s argument in this regard, it is unnecessary to consider whether, as the Secretary’s submitted, notwithstanding s 96, it was open to the Tribunal (GD) to treat Mr Tziavaras’ work after 5 August 2019 as corroborative of a finding based on other material (such as a Job Capacity Assessment Report) that he did not have a continuing inability to work as at the cancellation date. I accept, however, that a decision-maker’s uncritical reliance on the conclusions of a previous report (such as a Job Capacity Assessment Report) based on different facts and assumptions is likely to lead to error. In this case, the Tribunal (GD) relied on a Job Capacity Assessment Report made on the basis that Mr Tziavaras’ impairment attracted an impairment rating of 10 points under the Impairment Tables, whereas the Tribunal (GD) ultimately held that his impairment attracted 20 points under those Tables. Whether this led to further error is unnecessary to determine in this case.

Disposition

64    For the forgoing reasons, I would allow the statutory appeal and set aside the decision of the General Division of the Administrative Appeals Tribunal made on 13 May 2022. I would further order that the matter be remitted the Tribunal to be heard and determined according to law. Subject to anything the parties may wish to submit, the respondent should pay the applicant’s costs of and incidental to this proceeding, as agreed or assessed.

Associate:

Dated:    20 October 2023