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.