ADMINISTRATIVE
REVIEW COUNCIL
REPORT TO THE
ATTORNEY-GENERAL
SOCIAL SECURITY APPEALS
Australian Government Publishing Service
Canberra 1981
© Commonwealth of Australia
1 981 ISBN 0 642 06666 3
CONTENTS
Paragraph(s)
CHAPTER 1 - INTRODUCTION 1.001-1.011
CHAPTER 2 - THE LEGISLATION AND ITS APPLICATION
Synopsis of the Act and Issues 2.002-2.012
The Magnitude and Geography of
Decision Making and Appeals 2.013-2.016
Current Procedures
Primary Procedures 2.018-2.023
Internal Review 2.024-2.027
Social Security Appeals Tribunals 2.028-2.029
Medical Appeals 2.030
Assessment of SSATs 2.031-2.035
CHAPTER 3 - THE NEED FOR AND SCOPE OF EXTERNAL REVIEW
Need for External Review 3.002-3.004
Costs and Benefits of Review 3.005-3.010
Conclusion 3.011-3.013
The Scope of External Review 3.014-3.024
Timing of Introducing the Recommended System 3.025-3.027
CHAPTER 4 - THE APPROPRIATE REVIEW TRIBUNAL
AAT or Separate Tribunal? 4.003-4.018
One or Two Tiers of External Review? 4.019-4.023
Relationship with the Ombudsman 4.024
CHAPTER 5 - CONSTITUTION, POWERS AND PROCEDURES OF THE REVIEW TRIBUNAL
Constitution of the Tribunal 5.002-5.010
Powers and Procedures of the Tribunal 5.011-5.035
Legislative Provisions 5.013-5.030
Manner of Exercise of Procedural
Powers 5.031-5.035
CHAPTER 6 - PRIMARY DECISION MAKING AND INTERNAL REVIEW
Primary Decision making Procedures 6.003-6.010
Pre-grant Interviews 6.003-6.004
Interview Reports 6.005-6.006
Natural Justice 6.007-6.008
Access to Information 6.009-6.010
Notification of Primary Decisions 6.011-6.016
Objectives 6.011
Written Notification 6.012
Paragraph(s)
Notification of Reasons for Decisions 6.013
Notification of Rights of Review 6.014-6.016
Internal Review
The Review Officer 6.017-6.033
Role of CES in Review 6.034-6.035
CHAPTER 7 - ADVICE AND ASSISTANCE 7.001-7.01 2
CHAPTER 8 – CONCLUSION 8.001-8.004
APPENDIX 1
Regional Offices Visited by Members of the Council
Secretariat 46
APPENDIX 2
Responses to Consultative Papers 47
APPENDIX 3
Participants at Seminars Held by Council 48
Appendix 4
A Select Bibliography on Social Security Appeals 49
Appendix 5
Research Papers Table of Contents 51
SYNOPSIS OF REPORT
The Council proposes a comprehensive system of external review by the Administrative Appeals Tribunal (AAT) of decisions in the social security area. The principal aspects of each chapter of its Report are summarised below.
Chapter 1
Most welfare payments by the Commonwealth are made under the Social Services Act 1947 (Act) Social Security Appeals Tribunals (SSATs) have been established to review most decisions made under the Act and to make recommendations to the Department of Social Security (DSS). As from 1 April 1980 the AAT has had jurisdiction to review decisions which differ from the recommendations of SSATs.
The Council has directed its attention towards determining the extent to which a right of appeal to an independent tribunal with decision-making powers is desirable and practicable taking account of the resources available. This has necessitated also making recommendations on primary decision making and internal review within DSS, as well as on the constitution, powers and procedures of the review tribunal and on the need for advice and assistance to applicants for review.
In preparing its Report the Council and its Secretariat engaged in extensive consultations with interested persons and organisations.
Appended to the Report are Research Papers prepared by the Secretariat providing detailed factual information on a number of relevant matters.
Chapter 2
The Act provides for a wide range of pensions and benefits. It is a complex structure conferring on the Director-General and his delegates a large number of discretionary powers. The exercise of these powers may be expected to give rise to appeals, which vary widely in nature and complexity.
DSS is responsible for a very large number of decisions. Thus in 1978-79 more than one million claims for unemployment benefit and a similar number of claims for other pensions and benefits were received. Each week the Department makes about one million separate payments. It has some eleven thousand officers and operates through about 140 regional offices in all States and Territories.
Decision-making procedures and the skill and experience of the decision makers vary widely within DSS. Applicants for unemployment benefit are subject to a 'work test' administered by the Commonwealth Employment Service (CES) whose assessment is applied by DSS officers. DSS has introduced a system for internal review of primary decisions by Review Officers (ROs) who have power to make new decisions if necessary.
SSATs were introduced in 1975. While they provide a useful means of review within certain limits, the SSAT system has a number of defects. These stem from several sources including their lack of decision- making powers, the inclusion amongst their members of serving officers of DSS and a lack of rigour in their procedures. They are essentially part of the internal review process of DSS. They do not handle cases which involve medical issues.
Chapter 3
The present appeal system leaves the ultimate power of decision in most cases in the hands of the administration. Claimants are thus not afforded the protection given under other Commonwealth legislation where independent review is available. This weakness is particularly significant having regard to the importance to most claimants of social security payments.
The defects of the SSAT system should be remedied by a system which provides for independent review by an external tribunal with powers of decision and procedures which lead to adequately reasoned decisions. Introduction of such a system would not have any effects on DSS decision making procedures which are significantly different from those already in train. The extra costs it would impose on OSS would represent an insignificant traction of total outlays on social security payments.
The Council therefore recommends that a general system of external review should be implemented and that it should embrace all decisions under the Social Services Act and other relevant legislation (including medical cases) other than decisions under certain specified legislative provisions. These are provisions conferring facultative powers (i.e. powers relating to the obtaining of material upon which substantive decisions are made), those in which a court is named as the forum for enforcement of the powers conferred, those conferring power to determine the manner and timing of payments, and those conferring powers of delegation.
Chapter 4
The Council considers whether external review should be conducted by the AAT or by a separate specialist tribunal and whether the review structure should consist of one or two tiers. As to the latter point it considers that a one-tier structure is desirable, incorporating provision for cases involving important principles of wide application to be heard by presidential benches of the AAT.
After considering various arguments to the contrary the Council concludes that the AAT is the appropriate body to be responsible for external review and recommends accordingly.
Chapter 5
The Council makes a number of recommendations as to legislative provisions affecting the constitution, powers and procedures of the AAT in relation to the proposed social security jurisdiction. These include:
· establishment of a Social Security Division of the AAT with members of that Division resident in each State;
· appointment to the AAT of members with (a) an understanding of the situation in which most claimants live, and (b) administrative experience in social welfare and particularly of the Social Services Act;
· power for the AAT to make interim orders for payment of unemployment and sickness benefit in certain circumstances, pending conclusions of an appeal;
· hearings to be generally in private;
· provision for cases involving important principles of wide application to be heard, or if necessary reheard, by a bench of the AAT consisting of or including a presidential member.
The Council also sets out some suggestions as to the procedures the AAT might follow to achieve expeditious and informal, though sufficiently rigorous, handling of its cases. In particular it envisages that claimants would be offered a hearing in every case (though there should be power to proceed in the absence of a party who does not attend) and that hearings would be conducted by telephone where this appears to be conducive to justice or where no hearing could otherwise be provided.
Chapter 6
A system for external review of administrative decisions is part of a total process which begins before the primary decision making stage. There is an interrelationship between the powers and procedures of the review tribunal and the procedures of the authority whose decisions are subject to review. The Council therefore considers it necessary to make certain recommendations and suggestions as to primary decision making and internal review within DSS in order to affirm desirable standards of practice without necessarily implying that they indicate a need to correct existing deficiencies. Matters dealt with in this way include:
· the role and importance of pre-grant interviews;
· the quality of interview reports;
· opportunity for claimants to rebut adverse information;
· claimants' access to relevant information;
· the importance of written notification of decisions together with adequate reasons therefore and advice as to rights of review.
The Council stresses the importance of the RO system for efficient and economical handling of complaints. It makes some suggestions to strengthen the position of RO's and define the relationship between their function and that of external review. It also proposes certain procedures for invoking external review based on the principle that one, but only one, written initiative should be required of a claimant.
The Council recommends that if CES is to continue to be responsible for internal reconsideration of work test decisions, the Council's recommendations as to DSS decisions and rights of review should apply also to CES.
Chapter 7
The Council considers that there is a need for a system of advice and assistance to claimants which has regard to the fact that many of them are underprivileged persons lacking the attributes and skills necessary to initiate and adequately present an appeal. Aboriginals and migrants in particular, face special problems. The Council makes certain specific proposals and suggests that the wider problem should be considered by the Government.
Chapter 8
The Council summarises the principles which in its view should underlie a social security appeals system. Its proposals are designed to implement these principles and overcome the defects of the present system.
LIST OF RECOMMENDATIONS
Recommendation No. 1 Jurisdiction should be vested to review all decisions of the Minister and the Director-General and their delegates made under the Social Services Act 1947 and regulations made under that Act, Part V of the Defence (Re-establishment) Act 1965, Part IV and Division 3 of Part Xl of the Re-establishment and Employment Act 1945, and regulation 22 of the Migration Regulations, other than decisions under sections 12, 16, 27(1), 40(2), 44, 67, 69(2), 73, 83AG, 99(2), 105N, 105NA, 115(5) and (6), 118, 123(1), 128, 129, 132, 133H, 133K, 135R(2), (3) and (7), 135W(2), 140(1), and 141 of the Social Services Act 1947 (including those sections as extended by sections 83AAG, 105D and 105R of the Social Services Act 1947), 49 of the Defence (Re-establishment) Act 1965 and 150 of the Re-establishment and Employment Act 1945, and under section 59 of the Defence (Re-establishment) Act 1965.
Recommendation No. 2 Government consideration of the review structure proposed in this Report should be commenced without waiting for a substantial accumulation of experience of appeals under the Administrative Appeals Tribunal (Social Services Act) Regulations 1980.
Recommendation No. 3 The Social Security jurisdiction set out in Recommendation No 1 should be vested in the Administrative Appeals Tribunal.
Recommendation No. 4 A Social Security Division should be established within the Administrative Appeals Tribunal.
Recommendation No. 5 There should be no legislative prescription as to the qualifications of members of the Tribunal for social security cases, but there should be appointed to the Tribunal a sufficient number of (a) members with an understanding of the situation in which most claimants likely to come before the Tribunal in this jurisdiction live, and (b) members with administrative experience of social welfare and particularly of the Social Services Act (provided that if such persons have been government officers, they have ceased to be government officers by the time of their appointment).
Recommendation No. 6 There should be no prescription as to the number of members to constitute the Tribunal in social security cases.
Recommendation No. 7 There should be members of the Social Security Division of the Administrative Appeals Tribunal resident in each State.
Recommendation No. 8 For purposes of the social security jurisdiction, legislation should provide that where a written request for RO reconsideration is forwarded to the Tribunal as an appeal, the request shall be deemed to be an application to the Tribunal for review of the RO's decision.
Recommendation No. 9 For purposes of the social security jurisdiction, legislation should provide that a statement of reasons and copies of all relevant documents shall be furnished to the Tribunal within 14 days of notice to the Department that an application for review has been lodged.
Recommendation No. 10 Where an application is brought for review of a decision not to grant, or to grant at a rate less than the maximum unemployment or sickness benefits in respect of a 'relevant period' (see Sections 107 and 108 of the Social Services Act), and where the applicant has been in receipt of unemployment or sickness benefit in the period immediately prior to the 'relevant period', the Tribunal should have power in accordance with the provisions of Section 41 of the AAT Act to make an order for payment, or payment at the maximum rate, on an interim basis.
Recommendation No. 11 For purposes of the social security jurisdiction, legislation should provide that the hearing of a proceeding is to take place in private, provided that the Tribunal may, with the consent of the parties, authorise the presence of particular persons or the public generally.
Recommendation No. 12 Sub-section 43(2) of the AAT Act should be amended to provide that reasons for decisions of the AAT may be given orally or in writing and that those reasons shall be furnished in writing to a party upon request. The sub-section should be varied for the purposes of the social security jurisdiction even if it is not amended with general effect.
Recommendation No. 13 Section 21 A of the Administrative Appeals Tribunal Act should be amended to provide that where the tribunal hearing or to hear a case is constituted otherwise than by or including a presidential member, the tribunal may request the President to reconstitute the tribunal to consist of or include a presidential member upon the ground that the case involves an important principle of wide application. The Act should provide for the request to be made only after receiving the submissions of the parties, which should also be transmitted to the President. If the President is satisfied that the ground of the request has been established he may direct that the Tribunal be reconstituted in accordance with the request. The section should be varied for purposes of the social security jurisdiction even if it is not amended with general effect.