Scott v Secretary, Department of Social Security

Federal Court of Australia|1993-07-14|Before: Heerey J

REASONS FOR JUDGMENT 1 The applicants Mr Ralph Scott and his wife Mrs Sophie Scott complain of wrongful refusal by the Department of Social Security (the Department) to pay them various benefits under the Social Security Act 1991 (Cth) (the Act). (Where the context indicates, "the Department" also refers to its secretary, who is the respondent in VG 666 of 1996 and the second respondent in VG 69 of 1997.) More particularly, it is alleged that benefits granted should have been backdated to earlier dates. 2 Mr and Mrs Scott, who were born in Poland, came to Australia as refugees in 1986.

VG 666 of 1996 3 This proceeding is an appeal by Mr Scott against a decision of the Administrative Appeals Tribunal (AAT) given on 15 October 1996 affirming a decision of the Social Security Appeals Tribunal (SSAT) of 13 May 1996. 4 The decision in question was a rejection of Mr Scott's claim for arrears of Disability Support Pension (DSP) for the period 19 June 1995 to 5 October 1995 when he commenced to receive payments. 5 Since 7 October 1991 Mr Scott had been in receipt of Special Benefit (SB). The qualifications for SB are set out in s 729 of the Act. Broadly speaking, SB is payable to persons who can demonstrate need but who do not qualify for any other pension or benefit. However Mr Scott was not entitled to DSP (or Invalid Pension, its equivalent under the 1947 Act) because he was permanently incapacitated on his arrival in Australia and had not completed ten years residency. On 10 May 1994 the Government announced an amendment to the Act, effective from 1 January 1995, to the effect that persons who had refugee status could have access to DSP notwithstanding residency of less than ten years. The announcement stated that existing social security recipients would not be automatically transferred to the other pension and would need to lodge new claim forms. The announcement was contained in an internal Departmental circular. The evidence does not disclose what other publicity, if any, the amendment received. 6 On 19 June 1995 Mr Scott filled in and submitted to the Department an SB review form. This form had been sent to him by the Department on 9 June 1995. It was sent under the authority of s 760 of the Act which enables the Department to give a person to whom SB is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the benefit to the person. 7 The SB review form states that it must be filled in and returned to the Department within seven days, even if the recipient's circumstances have not changed, and that "Your answers to the questions on this form will be used to check that you are receiving your correct entitlement." 8 The form requires, inter alia, details of rent paid or received, wages and other forms of income received and any change of assets. 9 Notes attached to the form list "Events to be reported" including such matters as changes in rent, marriage or divorce or children or dependent students turning 16 or 25. The notes state: "If you do not tell us [of the following events], you may be overpaid and we will have to ask you for a refund." 10 The Department wrote to Mr Scott on 24 July 1995 advising that he might be eligible for DSP and that he ought to test his eligibility by completion of a DSP claim form which was attached to the letter. Mr Scott completed the claim form and returned it to the Department on 5 October 1995. 11 As already noted, Mr Scott received DSP from 5 October 1995. He claimed however that it should have been back dated to 19 June 1995. His case was that the review form was an "initial claim" followed by a claim for DSP within the meaning of s 100(2). That subsection provides: "If: (a) a person makes a claim (in this subsection called the initial claim) for: (i) a social security or service pension, a social security benefit or a parenting payment; or (ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a disability support pension; and (b) on the day on which the person makes the initial claim, the person is qualified for a disability support pension; and (c) the person subsequently makes a claim for a disability support pension; and (d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person; the person's provisional commencement day is the day on which the person made the initial claim." 12 Mr Scott had to establish, first that on 19 June 1995 he made "a claim", that is to say a claim in writing in accordance with a form approved by the Secretary (see s 107) and secondly, that the claim was for something that fell within s 100(2)(a)(i) or (ii). (Paragraphs (b), (c) and (d) of s 100(2) were not in issue.) 13 While accepting that at all relevant times Mr Scott had been qualified for DSP, the AAT said as to the first point that "… the special benefit review form is not a claim form for disability support pension within the meaning of s 107 to the extent that a review form is a procedure adopted by the department to determine the continuing eligibility for a particular benefit or pension, as opposed to a claim form which is a form which initiates a request or a demand upon the department for a benefit or pension." 14 As to the second point, the AAT said: "Secondly, Mr Scott needs to satisfy the tribunal on review that the pension allowance or benefit that he was receiving in this case special benefit to adopt the words of section 100(2(a)(ii) was a benefit or pension similar in character to disability support pension, and I cannot be satisfied that special benefit is similar in character to disability support pension. As Mrs Scott rightfully submitted, special benefit is the benefit that is paid when no other benefit applies. It might be different if for example Mr Scott had been receiving sickness allowance. It would not be too hard to find that a sickness allowance was similar in character to two [sic] disability support pension. But the special benefit is in my opinion not similar in character to disability support pension because it does not have as a qualification for it the same elements that need to satisfied for a person to qualify for a disability support pension namely, incapacity and continuing ineligibility for employment." 15 In my opinion, the AAT's decision as to the first point was inconsistent with the decision of a Full Court of this Court in Secretary, Department of Social Security v Cooper (1990) 21 ALD 155. The Full Court there held that a review form for a Family Allowance and Handicapped Child's Allowance was "a claim for the payment of a pension, allowance, benefit or other payment under the (1947) Act" within the meaning of s 159(5)(a) of the 1947 Act, a provision which is relevantly indistinguishable from s 100(2)(a) of the Act. As a result, the respondent Ms Cooper was entitled to have the review form treated as a claim for Invalid Pension and to receive such pension from the date thereof. The Full Court said (at 160) that the language of the subsection then under consideration "… should be applied, in accordance with the obvious intent, so that, if possible, a benefit which ought to have been received shall not be excluded by the failure of a disadvantaged person to put in the 'right' claim in a technical sense. To construe the words of the subsection in a narrowly technical spirit would be quite perversely contrary to its evident purpose. It is intended to overcome technicality and to have as broad an operation as its language will allow. … It is unlikely that a rigid definition of what constituted a 'claim' was intended to be enforced upon the provision." 16 In the present case, SB is a continuing benefit payable as long as the beneficiary satisfies the relevant qualifications set forth in s 729. So a document whose manifest purpose is to satisfy the Department that the recipient continues to satisfy those qualifications can be characterised as a "claim" for SB without doing too much violence to the language. 17 As to the second point, the AAT appears to have misread s 100(2)(a). Sub-paragraphs (i) and (ii) are mutually exclusive alternatives. The types of subvention referred to in (i) are all defined in s 23 of the Act. They are all payable under the Act. In particular, "social security benefit" is defined to include, inter alia, "(d) special benefit". Sub-paragraph (ii) however refers to subventions payable otherwise than under the Act: see the decision of the AAT in Secretary, Department of Social Security v Hissey (unreported, 592/368 AAT No 9042, 14 July 1993 at par 11). Therefore the Act does not require that any of the subventions in sub-par (i) be "similar in character" to DSP. 18 The AAT in Hissey discusses the legislative history and suggests that s 100 was introduced in its present form partly to overcome the result of Cooper: see Report of the Secretary of the Department, 1991 at 73. But s 100(2)(a) specifies various kinds of subvention, the claim for which can qualify as an "initial claim". It says nothing as to the meaning of "claim". The reasoning of the Full Court in Cooper is still applicable. It appears that the AAT in the present case was unaware of the Full Court's decision; reference is only made to the judgment of O'Loughlin J who heard the matter at first instance. 19 In its reasons for decision the AAT referred to "the subsequent amendment to the Social Security Act by prohibiting legislatively review forms as being deemed to be claim forms". The Department now accepts that there was not any subsequent amendment to the Act prohibiting review forms being deemed to be claim forms. It was suggested on behalf of the Department that the comment just quoted was "intended to reflect the changes made from the 1947 Act to the 1991 Act". However, as already stated, I do not find anything in the language of s 100 to alter the construction put by Cooper on the expression "claim". 20 Counsel for the Department argued that Mr Scott did not satisfy s 100(2)(b) because he lodged his claim for SB on 14 October 1991 and he could not have qualified for DSP then because at that stage DSP did not exist. This argument is misconceived. The question is whether Mr Scott's SB review form lodged on 19 June 1995 is to be treated as a claim for DSP. There is no doubt that as at 19 June 1995 DSP existed and that Mr Scott was qualified for it. As already mentioned, the AAT expressly accepted this. 21 Certain amended grounds of appeal were submitted, but having regard to the conclusion I have reached it is not necessary to deal with them. 22 The appeal will be allowed. The decision of the AAT dated 16 October 1996 is set aside. There being no dispute as to the facts or other requirement for further hearing, I will make a declaration that Mr Scott was entitled to payment of DSP from 19 June 1995 to 5 October 1995. There will be orders that the Department pay Mr Scott DSP from 19 June 1995 to 5 October 1995. less any amount already paid by way of special benefit, together with interest at a commercial rate, such rate to be fixed by a Deputy Registrar in default of agreement. The Department is to pay Mr Scott's costs of the appeal.

VG 69 of 1997 23 This proceeding is brought under s 39B of the Judiciary Act 1903 (Cth). Various decisions are complained of. These decisions have the effect, it is said, of wrongly depriving (i) Mr Scott of DSP from 1 January 1995 to 24 July 1995; (ii) Mrs Scott of Wife Pension from 1 January 1995 to 24 July 1995. 24 It is also alleged the Department misled Mr and Mrs Scott as to their "most appropriate payments" between 1 January 1995 and 24 July 1995 and failed to approve any payment for Mrs Scott for the period 1 July 1995 to 24 August 1995 until 2 September 1995. 25 The relief sought is: (i) Declarations that the foregoing decisions were ultra vires the Act and contrary to law; (ii) Certiorari in respect of the AAT's decision not to backdate Mr Scott's DSP; (iii) Mandatory orders requiring the Department to review Mr Scott's SB for the period 10 May 1994 to 24 July 1995 and grant DSP to him from 1 January 1995 or alternatively from 19 June 1995; (iv) Damages, including aggravated and exemplary damages, "a total of not less than $500,000"; and (v) Interest, costs and further or other relief.

Evidence as to Mr Scott's claim 26 The following narrative will in some respects overlap with what has already been said in relation to VG 666 of 1996. 27 As far as the evidence shows, Mr Scott's first encounter with the Department was in 1991. On 28 August 1991 it rejected his claim for Invalid Pension (the equivalent of DSP under the then operative 1947 Act). As already noted, at that time persons permanently incapacitated for work upon arrival in Australia were not eligible for Invalid Pension until they completed ten years residence. On 14 October 1991 Mr Scott lodged a claim for SB and this was granted as from 7 October 1991. 28 Mr Scott underwent SB reviews approximately every thirteen weeks until 4 October 1994 when the reviews stopped. On 10 May 1994 the Department issued the internal circular already mentioned. It was called "National Instructions". It announced that changes to the residency requirement for, inter alia, pensions under the Act would come into effect and would allow refugees to apply for pensions without having to wait the ten year period. The circular included the following: "Refugees who are already on another DSS payment (such as Special Benefit or Job Search Allowance) will not be automatically transferred to a pension. Refugees who feel a pension would suit their needs better will need to lodge a pension claim. As visa class has not been coded on the DSS systems prior to this initiative, it is not possible to generate a list of current customers who are refugees." 29 On 30 September 1994 the Department wrote to Mr Scott advising that his rate of SB had changed and that he would be paid at the partnered rate. The Department wrote to him again on 13 December advising of adjustment to payments because of office closure over the Christmas holiday period. The letter concluded: "We will assume there has been no change in your circumstances when issuing the payment. If there is any change which affects your entitlement, you must tell us immediately and return your early payment." 30 On 3 March 1995 the Department, apparently in response to a request for confirmation by Mr Scott, wrote to him confirming that he was in receipt of SB and stating the amount thereof. On 9 June 1995 the Department wrote again to Mr Scott advising that he would be paid SB from 29 May. 31 In none of the foregoing communications did the Department advise Mr Scott of his eligibility for DSP from 1 January 1995. 32 As already mentioned, Mr Scott lodged an SB review form on 19 June 1995. On 25 July an officer of the Department reviewed the form and noted that Mr Scott was likely to be eligible for a DSP. The printed form included a question "Why was the client granted special benefit?" An officer wrote "Not eligible for DSP pension until 26/11/96", which I take to be the expiry of Mr Scott's ten year residency period. The officer completing the form noted that Mr Scott would be "eligible for DSP from 26/11/96 if qualified". However the determining officer noted that he disagreed with that recommendation because "client will be eligible for DSP (as a refugee)". 33 By a letter dated 24 July 1995 the Department advised Mr Scott that he could be entitled to DSP and that he should complete the enclosed claim form. The letter advised that provided there was no change in his circumstances, payment of SB would continue until the Department could make a decision about DSP. Mr Scott replied on 4 August stating that the DSP claim "was lodged and determined in 1991". On 11 August the Department wrote stating it was aware that the 1991 claim had been rejected but advising that due to changes to the legislation and possible changes in his circumstances he might now meet the eligibility criteria for DSP. The letter also warned that if Mr Scott failed to test eligibility his entitlement to DSP would lapse. On 22 August Mr Scott wrote to the Department stating that he would require about two weeks time to complete all twenty-one pages of the form. He complained that although the change was made on 1 January 1995 the Department did not inform him of this until eight months later. 34 Mr Scott finally lodged his claim form on 5 October. The Department granted him DSP from that date. On 2 January 1996 Mr Scott wrote to the Department asking that the Authorised Review Officer (ARO) review the provisional commencement day of his DSP and change it from 5 October 1995 to 19 June 1995. The letter continued for five and a half pages and quoted extracts from decisions of the Federal Court and the Administrative Appeals Tribunal. On 10 January 1996 an ARO wrote to Mr Scott informing him that the decision had been affirmed. In essence the reason given was that the SB review form issued by the Department on 9 June 1995 and returned by Mr Scott on 19 June was not a "claim" and therefore could not be regarded as an "initial claim" under s 100(2). The letter referred to the Department's policy guidelines ("Guide to Administration of the Social Security Act" (the Guide)) Chapter 1.1400 to 1.1414 which included statements that for the purposes of s 100(2) of the Act a review form was not to be treated as "an initial claim". 35 Mr Scott lodged an application for review by the SSAT. On 13 May 1996 that tribunal affirmed the Department's decision. In its reasons for decision the SSAT noted "at the hearing Mr Scott said that he was appealing against the decision not to grant him Disability Support Pension from June 1995 as a matter of principle, rather than because he had lost out financially. He told the Tribunal that he should have been advised by the Department in January 1995 to apply then for the disability support pension but was only advised in July 1995. He applied in October because it took him that long to organise his medical reports. As soon as he received the reports from the doctor, he lodged them 2 days later with the Department to accompany his disability support pension claim." 36 I was told that the only monetary difference between SB and DSP is that the latter attracts a $5.20 per fortnight pharmaceutical benefit. 37 Mr Scott then sought review by the AAT which on 15 October 1996 affirmed the decision of the SSAT. The AAT's decision has already been discussed above in connection with VG 666 of 1996.

Mr Scott's claim 38 In their statement of claim the applicants allege that the Department owed a duty to take care "whether under statute law, common law or otherwise for the welfare of the applicants" and remained "in the close legal proximity with the applicants" (par 5). After reference to Mr Scott's eligibility for DSP, the applicants allege that it was "obligatory" every 13 weeks to send SB review forms to review entitlements and to determine appropriate payments to which the recipient was entitled and discuss available options with SB recipients (par 11 and 12). Reference is made to various parts of the Guide. Then it is alleged that between 10 May 1994 and 24 July 1995 the Department "intentionally to the detriment of the applicants" failed to perform the duties and obligations referred to in pars 11 and 12. In particular under par 13 it is alleged that the intention of the Department was delaying the grant of DSP to Mr Scott post 30 June 1995 "that is to on or past the date of the legislative change to the Act cancelling grants of a WP [presumably Wife Pension]". 39 Pars 14, 15, 16 and 17 allege failure or refusal by the Department to perform its "duties and obligations" despite requests by or on behalf of the applicants and a threat of continued refusal unless ordered otherwise by this Court. 40 In par 18 it is alleged that the Department intentionally, or with reckless indifference to the truth or falsity, or without belief in truth, or negligently, misled the applicants by representation and by conduct as to their appropriate payments until 24 July 1995. 41 It is said in par 19 that the Department intended that Mr Scott would act on such conduct and not claim DSP on 1 January 1995 or on any other day before 1 July 1995. In par 20 it is alleged that Mr Scott relied on the conduct and representations of the Department and had legitimate expectations of fair treatment "consistent with the announced operational policies and in conformity with s 1296 of the Act" and that the applicants did not make further enquiries regarding their most appropriate payments under the Act. In the case of Mr Scott it is said that he made "the second claim" for DSP "several months later on 5 October 1995" and missed the opportunity to be granted DSP from 1 January 1995. Paragraph 20 also contains allegations concerning conduct towards Mrs Scott. I will refer to these later when discussing her claim. 42 In par 31 it is alleged delays in granting DSP to Mr Scott were ultra vires its powers and duties imposed by the Act and by delegated legislation and were therefore void ab initio, were made knowingly beyond power and maliciously, were in breach of the duty of care under statute law, common law or otherwise, in breach of the duty to act fairly, to act with the appropriate skill and diligence of responsible authority, were the contumelious infringement of absolute rights protected by the Act and by common law, were the intentional infliction of personal injury, involved misfeasance in a public office and/or negligent conduct, amounted to deceit and were otherwise contrary to the law. 43 In par 32 it is said that the AAT reached a decision so unreasonable that no reasonable person could have exercised the power in such a way and was void ab initio. In par 33 it is claimed that by reason of the matters aforesaid Mr Scott has suffered injury, loss and damage and mental anguish including injury "to every cell, tissue and organ of his body", deterioration of his existing medical condition, diminution of existing physical capacity and shortened expectation of life, pain and suffering, psychological stress, degradation and humiliation and financial loss. 44 Paragraph 34 and 35 allege: "(34) It is common [sic] that the (Department) cuts the eligible recipients off payments thus causing injury, stress, hardship and humiliation to the eligible recipients, and the eligible recipients often do not go through the appeal process because, inter alia, they feel powerless to fight the (Department's) decisions. (35) Unless deterred by this Honourable Court by orders declaring invalidity of the set forth ultra vires decisions and conduct of the (Department) and by orders to pay damages with inclusion of aggravated and exemplary damages, the (Department) will not be restrained from contumeliously, cruelly and oppressively infringing the absolute rights and therefore harming the most infirm, disabled and powerless members of the Australian society."

Discussion of Mr Scott's claim 45 The AAT member who made the decision of 15 October 1996 is the first respondent in VG 69 of 1997. I have already dealt with this decision in my reasons relating to VG 666 of 1996. Although the AAT's decision is to be set aside, the first respondent is protected against all the other claims by virtue of s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that a member has, in the performance of his duties as a member, the same protection and immunity as a Justice of the High Court. 46 Before turning to the remainder of Mr Scott's claim, I should state at the outset that the extravagant allegations of malice, bad faith and other intentional wrongdoing made by both Mr Scott and Mrs Scott in my opinion are baseless. A number of Departmental officers gave evidence. They were cross-examined quite skilfully and thoroughly by Mrs Scott. I am quite satisfied that those officers, and other officers who dealt with Mr and Mrs Scott, carried out their duties conscientiously and in good faith. Indeed, as will be seen in relation to Mrs Scott's claim, in some respects Departmental officers gave her the benefit of the doubt. Section 1296, referred to in the statement of claim, is in these terms: "In administering this Act, the Secretary is to have regard to: (a) the desirability of achieving the following results: (i) the ready availability to members of the public of advice and information services relating to income support; (ii) the ready availability of publications containing clear statements about income support entitlements and procedural requirements; (iii) the delivery of services under the Act in a fair, courteous, prompt and cost-efficient manner; (iv) a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients; (v) the establishment of procedures to ensure that abuses of the social security system are minimised; and (b) the special needs of disadvantaged groups in the community; and (c) the need to be responsive to Aboriginality and to cultural and linguistic diversity; and (d) the importance of the systems of review of decisions under the Act; and (e) the need to apply government policy, in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Society Security Appeals Tribunal." 47 Neither this provision, nor any other provision in the Act, creates a statutory duty sounding in damages for breach. The applicable principle is that stated by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424: "A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection." 48 An authoritative statement with direct relevance to the present case is to be found in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731-732 where Lord Browne-Wilkinson said (with the concurrence of all other members of the House of Lords): "The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty … Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provision, i.e. bookmakers and prisoners: see Cutler's case[1949] AC 398; Reg v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58. The cases where a private right of action for breach of statutory duty have [sic] been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.' (Emphasis added) 49 A further indication against a conclusion that Parliament intended to confer any private right of action is the existence in the Act of detailed mechanisms for redress against decisions thought to have been arrived at wrongly or in excess of or in absence of power. See particularly Chapter 6 which provides for internal Departmental review, and also merits review by the SSAT and AAT. Moreover the lawfulness of decisions are subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the oversight of the Commonwealth Ombudsman. 50 Still less does the Guide confer any legal rights. It is an internal administrative document not having the force of law. 51 Nor is there any common law duty of care under which the Department has obligations to inform persons in the position of Mr and Mrs Scott of potential benefits under the Act. I agree with what was said by Deputy President Burns in Re Fry and Secretary Department of Social Security (1990) 20 ALD 709 at 711: "Mr D'Angelo, whilst not submitting that the indication by the applicant of what her marital status was in the appropriate section of her claim in 1982 for an aged person constituted a claim for a widow's pension (which it clearly did not), did suggest however, that this placed some form of onus on the department to inform the applicant of her rights to claim a widow's pension. Whilst one would expect that the department would and does make every endeavour to explain to would-be applicants, when appropriate, their right to apply for the many and various social welfare benefits administered by the department, there is no legal obligation upon the department and its officers to do so. Failure to do so does not thereby override statutory requirements to entitlements." 52 I have already found in VG 666 of 1996 that Mr Scott was entitled to payment of DSP from 19 June 1995, the date of his "initial claim". He did not make any earlier claim because a combination of two factors resulted in both himself and the Department being unaware that he became qualified for DSP on 1 January 1995. First, for some reason not apparent in the evidence, regular SB reviews were not made from October 1994 to June 1995. Secondly, the Department's records did not enable it to identify the SB recipients who were refugees, at any rate until their files were examined in the course of periodic reviews. The first of these factors hardly indicates any Departmental malice - if anything it had the potential for beneficiaries to receive SB when they were not entitled. The second factor at worst was something which turned out, in hindsight, to be an administrative inadequacy. 53 Thus, quite apart from the absence of any legally enforceable duties of the kind alleged by him, the evidence does not support the allegations of intentional, malicious and conspiratorial wrongdoing made in the statement of claim. There is no basis for a finding that the Department or any of its officers acted with an intention to cause harm to Mr Scott or knowingly acted in excess of power. There has been no misfeasance in public office: Northern Territory v Mengel (1995) 185 CLR 307 at 345. 54 Mr Scott's claim will be dismissed with costs.

Evidence as to Mrs Scott's claim 55 On 28 January 1993 Mrs Scott lodged a claim for DSP. The claim was rejected on the ground that she did not have an impairment of 20 per cent or more according to the Impairment Tables (s 94(1)(b)). The decision was affirmed by an ARO on 24 November 1993. At the time Mrs Scott did not seek to exercise any further appeal or review rights . 56 On 30 August 1994 Mrs Scott lodged a claim for SB. In her claim form she referred to the rejection of her DSP claim and stated "the claim for this special benefit is being lodged because the time is needed for the matter to be prepared for further consideration by higher authorities." 57 On 22 September 1994 the Department wrote advising the claim for SB had been rejected because Mrs Scott was in receipt of Partner Allowance so SB was not necessary. Partner Allowance is payable when a person's partner is receiving, inter alia, SB: s 771HA(1)(c)(i). 58 On 4 May 1994 the Government announced that from 1 July 1995 Partner Allowance would be available only to persons over 40 years of age with little or no recent labour market experience. Mrs Scott was then aged 32. On 6 June 1995 the Department wrote to her confirming that she had been contacted by the Northcote Regional Office social work staff and had been told that as from 1 July payments would cease. The letter confirmed that the staff suggested she lodge a claim for Job Search Allowance (JSA) or some other type of payment in order to avoid delay in her payments. The letter reminded her that if she did not lodge an alternative claim for payment prior to 1 July 1995 her social security payments would cease. 59 On 30 June 1995 Mrs Scott lodged a claim for SB. On 19 July 1995 the Department wrote to her rejecting her claim. The letter stated that SB was only payable if no other reasonable means of support existed and no other social security allowance or pension was payable. The letter stated: "If you are able to look for work, Job Search Allowance would be your correct entitlement. If you are unfit to look for work because of a medical condition, either Sickness Allowance or Disability Support Pension may be your correct payment type. As you have declined to test your eligibility for any of these payments it cannot be determined that you are not entitled to any other Social Security allowance or pension." 60 On 26 July 1995 Ms Toni Pedler, an officer of the Department, spoke with Mrs Scott. According to a file note made on 28 July, Mrs Scott had only recently appealed her DSP rejection made two years previously. Ms Pedler's file note, addressed to a colleague, continues: "[I] stated she had two options. 1. Put in a DSP to retest eligibility for that and we could then grant SL [sic - presumably SB], or 2. Claim JSA (which she doesn't want to do). Spoke to Kevin Ryan who is a nominee for Sophie. Kevin is following up with Sophie about lodging a claim for DSP. At this stage I haven't heard anything further. Sophie did want to appeal against the rejection of Special [sic] but at this stage it's still under reconsideration as we haven't heard back from Kevin. Hopefully she'll lodge a claim for DSP and make life easier for everyone." 61 However Mrs Scott did not lodge a claim for DSP or any other social security benefit. On 3 August 1995 she wrote to the Department asking that the decision not to grant her SB be reviewed by an ARO. In her letter she said that she was unfit to look for work; thus applying for JSA would be an offence and likewise applying for SB because she had 70 per cent permanent physical disabilities as opposed to temporary disability. Nor should she apply for DSP because she had not yet had her DSP claim reviewed by higher authorities. On 11 August the Department wrote to Mrs Scott advising that the case had been reviewed and it was considered that the decision to reject her claim for SB was correct but that the file had been forwarded to an ARO for further consideration. 62 On 14 August 1995 Mrs Scott applied to the SSAT for review of the decision not to grant her SB. 63 The ARO for Mrs Scott's claim was Ms Roberta Chrystal. On 21 August Mrs Scott wrote to Ms Chrystal advising that the option not to lodge the new application for DSP, but review the case before the SSAT, had been suggested by Sir Ronald Wilson, President of the Human Rights and Equal Opportunity Commission. In the letter Mrs Scott stated that because she needed time to prepare her case for the SSAT appeal the claim for SB had been lodged. 64 Ms Chrystal examined Chapter 15 of the Guide. She reached the conclusion that it was not necessary for a claim in respect of another benefit or benefits to be rejected in order for a claimant to satisfy the criteria for receipt of SB. In the course of preparing her review of the decision Ms Chrystal was telephoned on two occasions by Ms Jenny Blakey of the Welfare Rights Unit. Mrs Scott was present with Ms Blakey. Ms Blakey told Ms Chrystal that Mrs Scott would appeal against the refusal of DSP and lodge further medical evidence. Ms Blakey outlined Mrs Scott's medical problems. She could not walk without the assistance of a walking stick and needed assistance when sitting down and getting up. She could not sit for long periods, was asthmatic and had disability in her knees. After checking with a policy officer, Ms Chrystal decided to allow payment of SB. She advised Ms Blakey accordingly and explained that SB would be paid pending the outcome of the SSAT appeal provided Mrs Scott lodged an appeal to the SSAT in respect of the decision to refuse DSP in 1993. Ms Chrystal also advised Ms Blakey that Mrs Scott should lodge a new claim for DSP as well because this claim would be processed more quickly than the appeal. Ms Chrystal's decision was confirmed in a letter from her to Mrs Scott dated 23 August 1995. In the letter Ms Chrystal stated she believed Mrs Scott qualified for SB until the outcome of her appeal to the SSAT against the refusal of DSP was known. The letter stated that Ms Chrystal had asked the Northcote office to arrange the payment of arrears of SB as from 30 June 1995. Payment of SB was back dated to 3 July 1995, the first working day after the date of Mrs Scott's claim and the first working day after the date on which Partner Allowance had ceased. 65 In an affidavit sworn in the present proceeding, Ms Chrystal deposed that her decision was not made with strict regard to Chapter 15 of the Guide. Its provisions were administrative guidelines that had no legislative force and were not binding. She deposed: "In effect, I tried to balance these guidelines and common sense because I was aware of the financial difficulties being experienced by the applicants." 66 I accept that evidence. 67 Mrs Scott did not lodge a new claim for DSP. 68 On 8 January 1996 the SSAT affirmed the decision of 24 November 1993 rejecting Mrs Scott's claim for DSP. The SSAT noted that Mrs Scott had submitted some twenty medical reports. Many of these were from consultants in Europe but were not based on any personal consultation with or examination of Mrs Scott. After reviewing the evidence, the SSAT made findings as follows: "Mrs Scott is a 34 year old woman who suffers from pain in her feet and elbows and has received treatment for these symptoms. She had a large number of other symptoms which seem to be psychosomatic in origin, but has refused to attend a psychiatrist to assess the nature and severity of these symptoms." 69 The SSAT noted that s 94(1) of the Act sets out the qualifications for DSP including that the applicant have a physical, intellectual or psychiatric impairment and that impairment be 20 per cent or more under the Impairment Tables. The SSAT accepted that Mrs Scott had a physical impairment but also accepted the Australian Government Health Service doctor's assessment of zero per cent. Accordingly it was found she was not eligible for DSP. 70 Mrs Scott lodged an application for review of this decision with the AAT. The Department decided to concede that application. Accordingly the AAT decided on 9 September 1996 that Mrs Scott was entitled to DSP from 28 January 1993. On 6 November 1996 the Department informed her of this decision.

Mrs Scott's claim 71 The allegations already referred to in par 5 of the statement of claim as to the existence of a duty of care are relevant also to Mrs Scott's claim. 72 In par 20 it is alleged that because Mr Scott made his second claim for DSP on 5 October 1995 and "missed the opportunity to be granted DSP from 1 January 1995", Mrs Scott "missed the opportunity given by the Australian Parliament to be granted a WP from 1 January 1995 and at all". Therefore, it is said, Mrs Scott was "forced to claim the alternative payment from (the Department) from 1 July 1995 and although (Mrs Scott) was qualified either for DSP or SB at that time (from 1 July 1995 till 24 August 1995) and although either DSP or SB was payable to (Mrs Scott) at that time (the Department) intentionally refused to grant either a DSP or a SB to (Mrs Scott)". 73 Particulars under par 20 allege that by the "back door approval" of not granting Mr Scott a DSP and therefore not granting Mrs Scott WP and not granting Mrs Scott any other pension or benefit "and therefore by means of illegally starving" Ms Scott and "illegally indirectly starving Mr Scott (the Department) intentionally wanted" (a) to prove the appropriateness of the Department's disregard to the physical impairment of Mrs Scott presented in 1993 and (b) to prove that Mrs Scott "could (what is denied) work in the situation of starvation" and (c) not to allow Mrs Scott to have the rejection of her claim for DSP being reviewed by the SSAP. 74 Par 21 alleges Mrs Scott's lodgment of her SB claim on 30 June 1995. Par 22 alleges that less than 13 weeks were needed for preparing Mrs Scott's submissions for the SSAT Appeal. Sub-joined particulars refer to 24 medical opinions. (There may be a typographical error here. The meaning rather suggests not less than 13 weeks were needed.) 75 Par 23 alleges Mrs Scott had a statutory right under s 1247 of the Act to have the decision rejecting her DSP claim reviewed by the SSAT and that she had the right under common law or otherwise to be given time for preparation of the case for review. 76 Par 24 alleges the common category of short term payment of SB for up to 13 weeks was payable under p 15.810 of the Guide to Mrs Scott who was an applicant for DSP at that time and under s 729. Pars 25 and 26 allege an alternative duty on the Department to consider Finance Direction 21/3 and s 34A of the Audit Act 1901 (Cth). 77 In par 27 Mrs Scott alleges that the grant of SB to her was intentionally delayed, in breach of ss 729 and 1296 of the Act by the Department until 24 August 1995 and "the Applicants were at that time intentionally ultra vires the Act and intentionally contrary to common law or otherwise intentionally unlawfully directly or indirectly denied by [the Department] the absolute rights namely (a) the right to a standard of living adequate for health and well-being of the applicants; and (b) the right to adequate nourishment and medicines for the preservation and structures of the applicants' bodies; and (c) the right to security in the event of disability; and (d) the right to have the Applicants' dignity respected; and (e) the right to have a decision reviewed by the competent higher authorities; and (f) the right to prepare a case for review by the competent higher authorities. 78 Further it is alleged in par 28 that the Department "was at that time well aware of the Applicants' economic situation and nevertheless disregarded the numerous pleas of [Mrs Scott] for the SB payment to eliminate the exceptional hardship and the suffered by the Applicants' injury and humiliation therefore (but not exclusively therefore) [the Department] in the aggravated way (a) consciously and wilfully acted in excess of statutory power and otherwise unlawfully; (b) intentionally and contumeliously infringed the absolute rights of the Applicants; (c) intentionally and contumeliously refused to desist from the wrongful and injurious conduct; (d) wilfully caused the foreseeable harm to the Applicants; (e) intentionally and contumeliously engaged in conduct calculated by producing injury and suffering to the Applicants to compel [Mrs Scott] to resign from the absolute right to review." 79 Pars 29 and 30 allege the approval of Mrs Scott's SB on 24 August 1995 backdated to 1 July 1995 and the approval of her DSP on 9 September 1996 backdated to 28 January 1995. 80 Par 31 alleges that the delay in granting SB or DSP to Mrs Scott and the consequences thereupon were ultra vires, knowingly beyond power and maliciously etc etc (see the terms of par 31 quoted in relation to Mr Scott's case above). 81 Par 33 alleges that Mrs Scott suffered injury and loss in terms already quoted in relation to Mr Scott's case. 82 Pars 34 and 35 already quoted also apply to Mrs Scott's case.

Discussion of Mrs Scott's case 83 For the reasons already given in relation to Mr Scott's case, no duty of care sounding in damages was owed by the Department to Mrs Scott. 84 In any case, Departmental officers have applied the Act properly. They have sought to do the best they could for her, consistently with their statutory obligations. In some instances they have made decisions giving Mrs Scott the benefit of the doubt. I refer in particular to Ms Chrystal's decision as to backdating of SB, and the decision to concede the AAT appeal. 85 The allegations of malicious, conspiratorial conduct are completely without foundation. There was no misfeasance in public office. 86 The claim will be dismissed with costs, including reserved costs. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 16 December 1999 Counsel for the Applicants: The applicants appeared in person

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 7 and 8 September, 7 and 8 October, 1999

Social Security Act 1991(Cth)ss 100(2), 1296

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Judgment (12 paragraphs)

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Legislation Cited (5)

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