ADMINISTRATIVEREVIEW COUNCIL

REPORT TO THEATTORNEY-GENERAL

SOCIAL SECURITY APPEALS

Australian Government Publishing ServiceCanberra 1981

© Commonwealth of Australia

1 981 ISBN 0 642 06666 3

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CONTENTSParagraph(s)

CHAPTER 1 - INTRODUCTION 1.001-1.011

CHAPTER 2 - THE LEGISLATION AND ITS APPLICATIONSynopsis of the Act and Issues 2.002-2.012The Magnitude and Geography of Decision Making and Appeals 2.013-2.016Current 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 REVIEWNeed for External Review 3.002-3.004 Costs and Benefits of Review 3.005-3.010 Conclusion 3.011-3.013The Scope of External Review 3.014-3.024Timing of Introducing the Recommended System 3.025-3.027

CHAPTER 4 - THE APPROPRIATE REVIEW TRIBUNALAAT or Separate Tribunal? 4.003-4.018One or Two Tiers of External Review? 4.019-4.023Relationship with the Ombudsman 4.024

CHAPTER 5 - CONSTITUTION, POWERS AND PROCEDURES OF THE REVIEW TRIBUNALConstitution of the Tribunal 5.002-5.010Powers 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 REVIEWPrimary 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 6.009-6.010Notification of Primary Decisions 6.011-6.016 Objectives 6.011 Written Notification 6.012

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Paragraph(s) Notification of Reasons for Decisions 6.013 Notification of Rights of Review 6.014-6.016Internal Review The Review Officer 6.017-6.033Role 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 1Regional Offices Visited by Members of the Council Secretariat 46

APPENDIX 2Responses to Consultative Papers 47

APPENDIX 3Participants at Seminars Held by Council 48

Appendix 4A Select Bibliography on Social Security Appeals 49

Appendix 5Research Papers Table of Contents 51

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SYNOPSIS OF REPORTThe 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.

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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;

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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

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overcome the defects of the present system.

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LIST OF RECOMMENDATIONSRecommendation 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

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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.

Recommendation No. 14 Provision should be made for purposes of the social security jurisdiction that where a decision has been made by a tribunal constituted otherwise than by or including a presidential member, a party may, within 28 days or such longer time as the President may permit, apply to the President for a re-hearing of the case by a tribunal consisting of or including a presidential member upon the ground that the case involves an important principle of wide application. If the President is satisfied that the ground of the application has been established he may direct that the case be re-heard by a tribunal so constituted.

Recommendation No. 15 Pre-grant interviews should be conducted whenever possible and appropriate. The officers concerned should regard it as important to ensure that as many relevant facts as possible are made known to the decision maker, and that the claimant is made aware of his rights and responsibilities and the grounds upon which adverse decisions might be made.

Recommendation No. 16 Reports of interviews which purport to represent statements of the interviewees should, as far as possible on matters which are relevant to a claimant's eligibility, include the information in the interviewees' own words, indicate the context in which the statements were made, and give a fair indication of the content of the discussions.

Recommendation No. 17 Where a decision might reasonably be expected to be the subject of a dispute with a claimant, he should be notified and given an opportunity, before that decision is made, to confirm, rebut or make submissions on the material

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upon which the Department might rely as a basis for that decision.

Recommendation No. 18 The current principles and guidelines for applying the legislation (e.g. those in DSS Manuals of Instructions) should be freely available to the public for inspection at each regional office and, where practicable, copies of relevant parts of the Manuals should be given to interested persons.

Recommendation No. 19 (a) Written notification should be given for every refusal of payment, variation of rate, postponement, suspension or cancellation of payment, other than those made on the claimants' advice and those where the decision arises from non-receipt of an application for unemployment or sickness benefit and the claimant has received that benefit for a relatively short period (e.g. less than 6 weeks).

(b) Notification should set out the exact terms of the decision made and should as far as possible contain the reasons for the decision including the criteria for the making of the decision, a brief statement of the material facts found, and a statement of why those facts failed to meet the criteria.

(c) Notification should in every case set out the claimant's rights of review including the identification of the external tribunal, the existence and function of the review officer, his telephone number, his name as at a particular date, and the means of obtaining review.

Recommendation No. 20 There should be at least one review officer and one 'back-up' review officer in each regional office. They should have power to redetermine claims except where the relevant delegation is restricted to officers at State headquarters or Central Office, in which case the review officer should make a recommendation to the relevant delegate.

Recommendation No. 21 (a) Review by an R0 should not be a prerequisite to seeking external review but R0 review before external review should be encouraged. Notification of primary decisions should indicate the availability of direct access to external review, but should indicate the desirability of obtaining an R0's decision.

(b) Where a claimant obtains an R0 decision before the hearing of an appeal, the decision subject to external review should be that of the R0 and not that of the primary decision maker.

Recommendation No. 22 There should be one, but only one, written initiative required of a claimant to obtain external review.

Recommendation No. 23 Every applicant for reconsideration of a primary decision by a Review Officer should be notified of the Review Officer's decision. Where the applicant's claim is not wholly conceded the notification should be in writing and should state the exact terms of the decision made and should contain the reasons for the decision, setting out the criteria for making the decision, a brief statement of the material facts found and a brief statement of why the claimant fails to meet the criteria on those facts.

Recommendation No. 24 If the function of internal reconsideration of decisions based on work tests is to be exercised by CES rather than DSS, the foregoing recommendations in relation to internal reconsideration within DSS should also be implemented (by legislation, if necessary) within CES. The rights of appeal to the AAT recommended in this Report should apply equally to CES decisions, and the relevant

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avenues and rights of review should be made clear in any notification.

Recommendation No. 25 Provision should be made for: legal aid for cases going to a presidential bench of the AAT, i.e. cases on important

principles of wide application; the Tribunal to be empowered to order payment of the expenses of applicants

attending hearings; a system to ensure that people are advised by DSS and/or the Tribunal of the sources

of advice and assistance available to them.

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CHAPTER 1INTRODUCTION

1.001 Most social welfare payments by the Commonwealth are made under the Social Services Act 1947 (Act). Social Security Appeals Tribunals (SSATs) were established by Ministerial instructions to review decisions made under the Act, other than decisions based on medical determinations, and commenced operations on 10 February 1975. The Tribunals have no power of decision but make recommendations to the Department of Social Security (DSS). Under present practice decisions which differ from their recommendations may be made only by the Director-General of Social Services (Director-General) or a Deputy Director-General. As from 1 April 1980, the Administrative Appeals Tribunal (AAT) has had jurisdiction to review decisions which differ from recommendations of SSATs (Administrative Appeals Tribunal (Social Services Act) Regulations 1980).

1.002 The Council has directed its attention towards determining the extent to which a right of appeal against unfavourable decisions of the Director-General is desirable and practicable taking account of the resources available (Second Annual Report, paragraph 22). As the Council pursued this inquiry it became apparent that it must consider matters extending beyond the future of the SSATs and the introduction of a general right of appeal to an external tribunal. The practicability of constructing a right of external review depends largely upon the procedures within the Department for providing effective internal review of decisions. Effective internal review depends, in turn, upon the degree of competence which is brought to primary decision making, the correctness of primary decision making, and the extent to which the procedures implemented tend towards such correctness. Hence the Council has found it necessary to make recommendations on primary decision making and internal review. Its consideration has been limited to those matters which are related to the review of decisions, and has not ranged as widely as would have been relevant to an inquiry for the specific purpose of paragraph 51(1)(g) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

1.003 The ambit of the Council's inquiry may be defined as follows:(a) to make recommendations as to what decisions made pursuant to powers

conferred by the relevant legislation (see paragraph 1.004 below) should be reviewable and, if so, whether by a court, the AAT, another administrative tribunal, the Ombudsman, or some other body;

(b) to make recommendations on the constitution and powers of a review body and the procedures which it should follow;

(c) to make recommendations as to such aspects of primary decision making procedures as are significant for the review process;

(d) to make recommendations as to procedures within the Department of Social Security for review of primary decisions;

(e) to make recommendations as to whether special provision should be made for advice and assistance for applicants for review.

1.004 The 'relevant legislation' is the Social Services Act 1947, the Defence (Re-establishment) Act 1965, and the Re-establishment and Employment Act 1945 (the latter two in so far as they are administered by the Minister for Social Security), the Social Services (Reciprocity with New Zealand) Regulations, the Social Services (Reciprocity with United Kingdom) Regulations, and regulation 22 of the Migration Regulations. The

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Minister administers a number of other Acts which relate to the making of grants or periodical payments to States or organisations involved in social welfare work, and to compensation for injuries to Commonwealth employees and seamen. A consideration of review rights in respect of decisions pursuant to powers conferred by those latter statutes is outside the scope of this project

1.005 The Council has not been concerned with questions relating to the delivery of welfare services (as such) (see the Report of the Royal Commission on Australian Government Administration) (Australian Government Publishing Service, 1976) pp.325-331 and Appendix 4.C), the provisions of the Act or Manuals of Instructions governing entitlement to social security payments or services, or general questions of the organisation or procedures of the Department of Social Security or the Commonwealth Employment Service (CES) (for which see especially the Review of the Commonwealth Employment Service (AG PS 1976) the 'Norgard Report', the Inquiry into Unemployment Benefit Policy and Administration (AG PS, 1977) 'Myers Report', and the Joint Review of the Location, Management and Staffing of Decentralised Offices in the Department of Social Security (1978) the 'Scott-Addie Report').

1.006 In the course of its examination of the subject the Council held two seminars, one in Sydney on 12 August 1977, and the other in Melbourne on 1 September 1979. Its Secretariat has also been involved in extensive consultations with officers of DSS and CES, involving visits to all state headquarters of DSS and CES (except that of the CES in Western Australia) as well as twenty-five Social Security Regional Offices and seventeen CES Regional Offices. These are listed in Appendix 1. The Secretariat also consulted with members of the existing Social Security Appeals Tribunals in all States and the Australian Capital Territory, and attended hearings of each of these Tribunals. Discussions were held with Professor D. Donnison, the then Chairman of the United Kingdom Supplementary Benefits Commission.

1.007 The Council distributed two consultative papers to some 160 persons and organisations. The distribution had the object of canvassing options as to the most practicable means of providing an effective appeal process taking account of the resources available. The papers contained a discussion of existing processes for the review of social security decisions and a tentative structure for reform of the existing processes with a range of options at each stage. Responses were received from a number of persons and organisations.

1.008 The persons and organisations who commented on the Council's consultative papers and participated in the Council's seminars are set out in Appendixes 2 and 3. The Council expresses its appreciation to them and to all departmental officers and others who assisted it by the provision of information and advice.

1.009 A list of books and articles considered in the course of preparation of this Report is set out in Appendix 4.

1.010 Chapter 2 briefly describes the relevant legislation, the scale and complexity of the task of administering it, and the procedures currently in force within DSS. The remainder of the Report sets out the Council's conclusions and recommendations with supporting argument and discussion of the issues.

1.011 Appendix 5 consists of Research Papers prepared by the Council's Secretariat and provided to the Council in the course of its consideration of the issues and preparation of this Report. The first three of those papers provide a great deal of detailed factual

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information on the matters described briefly in Chapter 2. The other two papers provide background information on some overseas systems for review of social security decisions and a discussion of the costs and benefits of the system of review proposed by the Council in this Report.

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CHAPTER 2THE LEGISLATION AND ITS APPLICATION

2.001 This Chapter summarises the legislative framework established by the Social Services Act and some of the main issues likely to arise in its administration. The magnitude of the administrative task and its geographical distribution are then described, after which the current procedures for primary decision making and internal review as at 1 March 1980 are briefly set out. Fuller details on these matters are to be found in the first three parts of Appendix 5.

Synopsis of the Act and Issues

2.002 The Social Services Act has been substantially amended over the years, greatly increasing the scope of social security payments. It now provides for payments in respect of the following: age and invalid pensions, widow's and wife's pensions, supporting parent's benefits, funeral benefits, family allowances, double orphans pensions, handicapped child allowances, unemployment and sickness benefits, special benefits, sheltered employment allowances and rehabilitation payments.

2.003 Under the Act the Director-General has power to determine claims. He also has power to review his decisions and those of his officers under delegation, where it appears to him that there is sufficient reason for so doing. The Act also provides that a person affected by a decision may appeal to the Director-General against any decision except a determination, direction, decision or approval of the Director-General himself. Except where the context otherwise requires, references in this Report to decisions of the Director-General include decisions made by officers of DSS under authority delegated by the Director-General.

2.004 The Act provides criteria for entitlement and disentitlement to benefits. The criteria in relation to eligibility range from relatively simple requirements for fact finding such as age and residence, to requirements involving a judgment such as being in 'necessitous circumstances', 'taking reasonable steps to find work' and being in a 'bona fide domestic' relationship. The most contentious issues in social security appeals arise from the last two of these criteria. The question of whether or not a bona fide domestic relationship exists may affect entitlement to an age, invalid, wife's or widow's pension, a supporting parent's benefit, a funeral benefit and unemployment or sickness benefit.

2.005 Many of the criteria in the Act are expressed in general words which provide for flexibility of application by the Department. In order to balance flexibility with consistency the Departmental Manuals lay down guidelines to which officers of the Department are to have regard. Thus, the Unemployment and Sickness Benefit Manual provides a general disentitlement, in relation to the 'work test', where 'claimants make themselves unacceptable to employers', and gives fact situation examples, e.g. by adopting attitude or dress 'which is clearly inappropriate to the type of employment sought' (U and SB Manual 14.144).

2.006 As was held in Green v. Daniels (1977)13 ALR 1, the Director-General is not concerned in his administration of section 107 (the section which lays down the entitlement criteria for unemployment benefit) with the carrying out of any policy. In that area, Stephen J. (at p.9) stated, 'No general discretion is conferred upon him;

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instead specific criteria are laid down in the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer'.

2.007 The Director-General has a discretion as to the rate of benefit in each particular case. The Act sets out the maximum benefit payable, with specific provisions in particular cases for increases in certain circumstances, e.g. in cases of custody of children. As a matter of practice, if a person is paid a benefit he will, subject to the means test, be paid the maximum benefit, i.e. the Director-General presently does not exercise his discretion to set particular lesser rates for particular claimants once entitlement is shown.

2.008 A means test applies to payments in most situations under the Act. In applying the test the Director-General deducts from the maximum benefit payable an amount related to a claimant's income in excess of a stipulated sum, e.g. in age pensions, the maximum rate of pension is reduced by $1 for every $2 by which income as assessed exceeds the stipulated income. Some payments (including age pensions, unemployment, sickness and special benefits) are subject to income tax, although certain other benefits are not taxable.

2.009 Claimants are required to inform the Director-General of changes in circumstances which may alter their entitlements. The most relevant change in many cases would be a variation in income or dependency as a result of which a person may have payment terminated, decreased or increased depending on the operation of the means test.

2.010 There are a great number of powers vested in the Director-General (and his delegates) under the Social Services Act. Some of these, particularly those of general effect and those which may be expected to give rise to frequent or difficult appeals, have been referred to above.

2.011 There are many specific provisions in the legislation relating to particular benefits, and a number of other provisions of a general character, under which administrative discretions are exercised. These may be expected to give rise to appeals which range widely in nature and complexity.

2.012 A description of the legislative provisions governing payment of the various social service benefits, together with a discussion of their chief implications for administrative review, is set out in Part 1 of Appendix 5.

The Magnitude and Geography of Decision Making and Appeals

2.013 Any system proposed for appeals against decisions made under social security legislation must take account of the large number of decisions and the wide geographical spread of decision making in DSS. In 1977-78, 7804 appeals were lodged with the SSATs. This number decreased to 9312 in 1978-79 and 7197 in calendar year 1979. The issues most common in those appeals were whether the claimant passed the 'work test' or was involved in a de facto relationship. To illustrate the extent of decision making in the Department, during 1978-79 an estimated 1 078 000 claims for unemployment benefit were received of which an estimated 810 500 were granted. More than one million claims for other pensions and benefits were lodged during the same period. The number of persons receiving pensions (age, invalid, wife's, widow's,

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sheltered employment and supporting parent's) and benefits (unemployment, sickness and special) at 30 June 1979 was about 2 187 000. This figure does not include recipients of other payments such as family allowances and rehabilitation payments. Each week the Department makes about one million separate payments.

2.014 Each year since 1974 there has been a significant increase in the volume of work of the Department. This has resulted mainly from the increase in the pensioner and unemployment beneficiary population. The Department has been engaged in a large-scale program to decentralise. One of the objectives of this program is to provide a more sensitive and personal response to the special needs of each area. Decentralisation increases the possibility of inconsistency of decision making unless there is adequate central co-ordination. At present there are about 140 regional offices in all States and Territories. Apart from the practical difficulties of having an organisation of some eleven thousand officers spread across Australia, the Department has an inherently difficult task in administering the Social Services Act. The Act in many provisions gives little guidance to the Director-General as to how he is to determine whether he is satisfied that particular criteria have been established. The Manuals of Instructions attempt to guide the thousands of officers who actually make the decisions under delegations. It can be appreciated that the Manuals could well be interpreted in different ways by different officers. Also, the Manuals may be silent on some matters which are required to be determined.

2.015 The appeals system proposed later in this Report has taken account of the magnitude and geography of the decision making process. It recommends an effective system of internal review by the Department before the Tribunal is involved. This will reduce to a great extent the number of appeals which might otherwise proceed to external review. The problems arising from the distance of some appellants from an external review tribunal are more difficult to overcome. However, the Council notes the location of Departmental offices and the existing permanent offices of the Administrative Appeals Tribunal in the major capital cities.

2.016 Part 2 of Appendix 5 sets out some detailed statistics on decision making and appeals and discusses the problems which arise from the need to handle a large volume of cases through a widely decentralised organisation.

Current Procedures

2.017 The description of procedures in this part is based on information available to the Council as at the end of February 1980, and includes an assessment of the SSATs. As from 1 April 1 980, the Administrative Appeals Tribunal has had jurisdiction under the Administrative Appeals Tribunal (Social Services Act) Regulations 1 980 to review decisions of the Director-General of Social Security which differ from recommendations of SSATs. At the present time, three applications for review under those Regulations have been received by the AAT although no cases have yet been heard.

Primary Procedures

2.018 The most important decision in the administration of the social security legislation is the primary decision. This is probably also true in other areas of government administration but it is especially significant in the social security context where a social security payment may be a person's sole source of income. The characteristics of the decision makers and the procedures they follow affect the likelihood of the correct or

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preferable decisions being made, the attainment of which is the primary aim of the administration. The achievement of that aim has necessary and fundamental implications for any appeals system.

2.019 The volume of decisions and the decentralisation of DSS necessitate extensive delegation to the lower levels of the public service. There is a wide variety of experience in the primary decision makers (particularly for unemployment and sickness benefit) but they tend generally to be younger officers with limited experience of about age 18-25.

2.020 Decision making procedures are not identical for all areas of decisions, though there are many common features. The procedures adopted for a number of classes of pensions and benefits are described in some detail in Part 3 of Appendix 5.

2.021 The work test which is applied to applicants for unemployment benefit is administered by the Commonwealth Employment Service (CES). A CES work test assessment is applied by DSS officers. This practice limits the exercise by DSS officers of the discretion conferred on them under the Act.

2.022 The Department conducts pre-grant interviews in some major payment areas and it is intended to extend the practice to others. Those interviews provide an opportunity for the facts to be ascertained, for the payments and services of the Department to be explained and for the claimants' rights and responsibilities to be spelt out. Information relevant to claims is also obtained from other persons such as employers or neighbours by interviews and other means. Reports of discussions with claimants and other persons are attached to the Departmental files and may be the bases for adverse decisions. The reports are of uneven quality and this affects the likelihood of the correct or preferable decisions being made.

2.023 Departmental instructions provide that every adverse decision should be notified in writing to the claimant concerned. This is largely, but not completely achieved, the degree of notification varying among the States and types of payment. Notification should include the reasons for the decision. Where reasons are given at present they tend to be uninformative. Experience of DSS officers and in overseas systems suggests that better reasons should reduce the number of dissatisfied claimants and accordingly reduce the incidence of lodgment of inappropriate appeals. The DSS Instructions on Appeals Procedures provide for notification of rights of appeal. Appendix 5, Part 3, gives some details of present notification forms and procedures and discusses certain inadequacies which are apparent therein.

Internal Review

2.024 It is generally accepted that internal review is both necessary and desirable; necessary because primary decisions tend to be made by officers of such limited experience that it would be unsatisfactory for those decisions to form the basis for external review; desirable because internal review permits fast and cost effective evaluation of decisions and reduces the need for external review.

2.025 A major medium of departmental reconsideration is the Review Officer (RO). These officers have been progressively introduced to the Department since April 1978. DSS instructions are that ROs are to be senior officers in each regional office. The function is generally attached to a particular position or positions in each office (most commonly that of the regional manager or the pensions determining officer). ROs are

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not to have been associated with the primary decision concerned and are to provide an independent review of that decision, with power to make a new decision if necessary. In practice, some ROs might be quite junior officers. Certain inadequacies, described in some detail in Appendix 5 Part 3, flow from the limited portion of an officer's time spent in RO activities, from the fact that the function is attached to particular substantive positions rather than being vested in the most appropriate individuals, and from filters placed between claimant and RO in a number of offices. DSS have suggested that ROs have caused the great drop in appeals apparent since mid-1978. However it appears that that drop owes much to reduction in the number of adverse work test reports being made by CES. Appeals in non-unemployment benefit areas have grown in line with the growth in pensioner population, while appeals in the unemployment benefit area have dropped substantially.

2.026 Part 3 of Appendix 5 provides detailed statistics relating to the activities of ROs. In particular it may be noted that statistics for New South Wales for the period from May 1978 to September 1979 indicate that in 66.1 % of appeals to Social Security Appeals Tribunals there had been no prior RO review.

2.027 A further stage of internal reconsideration occurs when a claimant appeals to an SSAT. This reconsideration is conducted by, or under the control of, a Specialist Benefit Unit in each State. The procedures, which vary to some extent between states, are discussed in detail in Appendix 5.

Social Security Appeals Tribunals

2.028 At present a person may appeal to an SSAT from a decision of the Department made otherwise than on medical grounds. The SSATs were established by Ministeral direction and commenced operation on 10 February 1975. There is an SSAT in each State and Territory constituted by a full-time member seconded from the Department and two part-time members one with experience in the legal and the other in the welfare field. The Tribunals have no statutory basis and can only make recommendations to the Department. While most SSAT recommendations favourable to claimants are accepted by DSS, a varying and at times significant proportion of recommendations is rejected.

2.029 SSATs are not organised nationally and their procedures and approaches to their task differ. Some tribunals attempt to see or speak to the claimant in each case; others generally decide matters on documentation alone; others again use a combination of personal contact, file and telephone calls. There is no uniformity as to when each or any of the above modes of operation is used. When a claimant is given an oral hearing, the manner of proceeding varies from case to case, ranging from an informal discussion with prompting and gentle inquiry to a form of cross-examination. The manner in which SSATs make use of the Departmental Manuals varies from tribunal to tribunal. Some tribunals regard the Manuals, along with the Act, as the basis for their decisions; other tribunals regard the Act as binding and apply the Manuals as a non-binding guide; one tribunal regards itself as bound by neither the Appeals Procedures Instructions issued by DSS nor the general thrust of parts of the Manuals.

Medical Appeals

2.030 Medical appeals (i.e. appeals against adverse decisions made on the advice of Commonwealth Medical Officers) are not handled by the SSATs. They are first considered by State Directors of Health. If an appeal is not upheld by DSS after considering the State Director's recommendation it is referred to an external medical

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practitioner who reports to the Director of Health, usually following physical examination of the claimant. The Director forwards the report to DSS with his comments and a decision is then made. This process clearly falls short of independent external review.

Assessment of SSATs

2.031 The Director-General of Social Services has informed the Council that in his view:

There are very real advantages in the present system of social security appeals and, with minor modifications, it can be made to meet all the reasonable needs of the Government and the public. At present we have a system which works, and works quite well. We should hesitate to advocate an alternative system without facing up to just what the alternative system will entail. (Letter of Director-General to Director of Research, of 7 February 1980.)

In that letter the Director-General advised that the Department is pursuing an exercise of fine tuning the appeals system by, for instance, recommending to SSATs that they attempt to conduct hearings in every case and suggesting other procedures designed to ensure that the SSATs operate in an appropriate and consistent manner, and that they are separate from the Department and operate as independent review tribunals. Other modifications proposed by the Director-General are the extension of SSATs' jurisdiction to medical appeals and a system of certification by the Director-General whereby cases rejected by SSATs can be passed on to the AAT.

2.032 Assessments of the SSATs expressed to the Council have, however, been different from those of the Director-General. Thus, in reply to the Council's first survey of tribunal procedures in 1976, the Chairman of the New South Wales SSAT identified five defects in procedures which prevented claimants obtaining a fair hearing:

lack of full information as to the case to be met; lack of an opportunity to answer the Department's case; use of anonymous hearsay evidence against the claimant; lack of access to documents in DSS files.

The claimant's main disadvantage is that he does not understand the issues, he has no knowledge of the Department's instructions or policy and he does not know his rights. He does not know how to present arguments or facts which would assist his case and he is not permitted to have legal representation.

2.033 The various procedures for providing telephone or attended hearings are aimed at meeting these weaknesses. They do not, however, in the Council's view, provide hearings sufficient to meet either the standards of justice applied in other areas of Commonwealth administrative review or those applied to social security appeals overseas. When there is no hearing the completeness and reliability of the facts upon which cases are decided are particularly dubious. Upon the Secretariat's observation of such tribunal meetings it appears that members are often obliged to try to imagine arguments which a claimant might have wished to advance had he been able to take advantage of a hearing.

2.034 Paragraphs 2.029 and Part 3 of Appendix 5 (paragraphs 3.106 to 3.147) discuss in detail the present procedures of the SSATs. The Council's assessment of those tribunals is that the SSATs are not constituted, and do not operate satisfactorily, and are

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unacceptably internal to DSS in their operation. In particular the SSATs:

are and are recognised to be part of the process of advising the Director-General; have no statutory basis and no power of decision; give the appearance of lack of independence by including serving DSS officers in

their constitution; lack procedures and powers for effective fact finding; offer a level of justice which falls short of that appropriate to the interests and issues

at stake;

2.035 In the light of the views expressed to the Council, and its own assessment of SSATs, the defects in those tribunals cannot be remedied by variations upon the current structure. In particular amendments to the existing structure of types such as those proposed in paragraph 2.034 above would: add to the already long delays in reaching decisions not remedy the defects referred to in paragraph 2.034 above not provide a right of review commensurate with the interests involved

A major restructuring of the social security appeal process is seen by the Council to be necessary. This is the subject of the following chapters of the Report.

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CHAPTER 3THE NEED FOR AND SCOPE OF EXTERNAL REVIEW

3.001 Institution of a system of independent external review is the major reform proposed by the Council in this Report. The discussion of this matter in this chapter faIls into two main parts. First, there are considerations affecting the need for review: the defects of the existing SSAT system and proposals for remedying those defects, and the costs and benefits of review. Secondly, there is the question of defining the particular decisions which should be subject to review.

Need for External Review

3.002 Social security is now an accepted part of the Australian community's fabric. The Act confers an entitlement to payment where a person qualifies for payment; persons who are entitled to payment should be paid. This implies that the decision whether to pay should not rest ultimately in the hands of the administration, but should be protected as are other entitlements under Commonwealth legislation. This conclusion is strengthened by the importance to claimants of payments under the Act; in many cases, social security payments represent the sole income of claimants. Because of the effect which adverse decisions can have upon claimants, it is of great importance that payment is refused, cancelled, suspended, or reduced only when that is the correct or preferable decision. In the Council's view, this is only to be assured through a system of external review of individual decisions.

3.003 The present social security appeal system leaves the ultimate power of decision in the hands of the administration except in respect of the limited number of cases which will be reviewed by the AAT under the jurisdiction vested in it as from 1 April 1980. This situation falls short of the objective which was stated by the Minister for Social Security in reply to a question without notice (Commonwealth Parliamentary Debates (Senate)), 27 September 1979, p.1027:

The method of operation of the Social Security Appeals Tribunals as an informal appeals tribunal has been continued by the present Government, but I have said repeatedly in this place that I believe that people who wish to appeal under the Social Services Act should have the same degree of redress against determinations that are made as people who are working under any Act of the Commonwealth Government.

3.004 Both in the Council's view and that of outside persons and organisations consulted, including many members of SSATs, the present review process, even as modified by the recently vested AAT jurisdiction, is inadequate. A revised system is required which incorporates the following features:

an independent statutory tribunal with power of decision; a procedure involving oral hearing rather than a decision on the file; a hearing involving evidence where desired or necessary from persons other than the

claimant and decision maker; procedural powers in the tribunal to enable proper decisions to be made; the giving of adequately reasoned decisions; a mechanism for obtaining rulings in important cases by a presidential bench of the

Administrative Appeals Tribunal.

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Costs and Benefits of Review

3.005 Any system of review must be an effective and not disproportionate use of resources. This was noted in paragraph 9 of the Council's Second Annual Report.

3.006 It is not possible to apply a cost-benefit analysis to a decision whether to create a right of review because intangible benefits cannot properly be measured against tangible costs. The practicability of cost-benefit analysis is further reduced in this present case because the cost to DSS of existing review processes has not been ascertained in the past and cannot at this stage be ascertained by the work of the Council alone. This does not mean that a systematic attempt to isolate the relevant costs and benefits of the proposed process should not be undertaken. Within the limits of the resources and information available to it, the Council has done that. The balancing of costs and benefits has been made between costs to the Commonwealth budget, and benefits to the community (including applicants) and the Department. A Research Paper on this matter, prepared by the Council's Secretariat, appears as Part 5 of Appendix 5.

3.007 Certain costs will be incurred as a result of the recent introduction of the limited jurisdiction in the AAT which is likely to affect the operations of both SSATs and the Department of Social Security. It can be expected that the SSATs will adopt a more rigorous approach to both the fact-finding and the reasoning of their decisions as well as make more recommendations favourable to claimants than they have done in the past. The Department can also be expected to devote more effort to the task of fact finding in its primary decision making. This should lead to more correct or preferable primary decisions. The extra resources which will be needed to ensure this improvement are costs of the present system, not of the system now proposed by the Council in this report. Therefore the costs of the system proposed will not be as great as would be the case if the AAT were not already involved in the review system.

3.008 The result of the Council's attempt to isolate and quantify the relevant costs and benefits of the review process proposed in this Report is that cost figures are derivable only in relation to the AAT. The Council, to assist in its attempt to quantify costs, presumed that external review as recommended later in this Report would be carried out by the AAT. The Council considered that the costs, as identified, would not be less if a tribunal, other than the AAT, were to be the external tribunal. Additional AAT costs may be expected to be in the order of $400 000 to $550 000 per annum over and above the costs involved in the present SSAT system plus 'on costs' (e.g. superannuation). The additional costs to DSS cannot be estimated by the Council.

3.009 Whether the cost of the system proposed in this Report is justified is a question for the Government. While as noted, additional costs may well be incurred within DSS, their extent can, in the Council's view, be limited by careful management. They will, in any event, be an insignificant fraction of total outlays on payments under the Social Services Act ($6762 million in 1978-79).

3.010 The benefits of the Council's proposal are primarily those which stem from the considerations indicated in paragraphs 3.003 and 3.004 above, i.e. greater assurance of justice within the statutory framework for individual social security claimants and

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greater public confidence on the justice of the system. Secondly, there are benefits to DSS itself in better decision making. It is the Council's view that the benefits to be provided by the proposed review process greatly outweigh the likely costs to the administration.

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Conclusion

3.011 In the light of the above considerations, the Council has concluded that there is a clear need for a general system of external review of adverse decisions by an independent tribunal with adequate fact-finding powers and procedures and with the authority to determine issues conclusively. Anything less than this would deny to social security claimants the rights which are being extended progressively to persons affected by decisions in other areas of government administration.

3.012 Any decision not to extend such rights to social security claimants would, in the Council's view, have to depend for its justification on considerations of cost. While the costs of a system of external review cannot be estimated with precision, it is clear from the foregoing discussion of this topic that they are of a minor order of magnitude by comparison with the overall costs of the Government's social security program. The Council also considers that institution of a general system of review will not have significant effects on the organisation and procedures for decision making within DSS over and above those which will of necessity arise from the recently vested AAT jurisdiction.

3.013 The Council has therefore concluded that a general system of external review should be implemented and this conclusion is embodied in its Recommendation No. 1 (see paragraph 3.024 below).

The Scope of External Review

3.014 Decisions to be Subject to External Review. In principle, every decision which relates to the making of any social security payment or assistance, should be subject to external review. `Decision' is here given the wide definition contained in the Administrative Appeals Tribunal Act 1975 section 3(3). 'Payment or assistance' extends to all the social security services for claimants which are authorised by the legislation, whether they consist of the payment of money or otherwise. This is the jurisdiction at present exercised by SSATs, plus medical matters and a small number of powers (see paragraph 3.024 below) conferred otherwise than under the Social Services Act.

3.015 The Council considers that decisions involving medical questions should be included within the scope of the proposed system of external review. The present system for review of medical matters was described in paragraph 2.030 above (see also Part 3 of Appendix 5 paragraphs 3.148 and 3.149). As was there pointed out, this system does not meet the standards of a satisfactory scheme of external review. There is no reason why the standards applied in medical cases should be lower than those applicable to other cases.

3.016 The several hundred powers of decision contained in the relevant legislation may be graded by their potential impact upon claimants. Many powers are of the first importance, e.g. section 46 of the Social Services Act which empowers the Director- General to cancel, suspend, increase or reduce the rate of pension payment. Others are of less importance though likely to give rise to dispute, e.g. section 65A(3) to determine the date of commencement of payment. A number of provisions are unlikely ever to give rise to dispute because the facts in issue would be so clear, e.g. section 95B which provides that the Director-General shall direct that child endowment cease when a child starts to receive payment from a prescribed educational scheme. In other contexts, e.g. exclusion from the operation of the Administrative Decisions (Judicial Review) Act 1977

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and from the Ombudsman's jurisdiction, the Council has taken the view that the unlikelihood of a dispute arising should not be regarded as a reason for exclusion from review. A similar approach should be taken here, particularly as it is recommended below that jurisdiction should be vested in general terms subject to express exclusions of particular decisionmaking powers.

3.017 The Administrative Appeals Tribunal Act section 25(1) authorises enactments to provide for jurisdiction to review decisions made in the exercise of powers conferred by an enactment. Such provisions are required to specify the person or persons to whose decisions the jurisdictional provision applies, and jurisdiction may be expressed to apply to all that person's decisions or to a class of his decisions (sub-section (3)).

3.018 Apart from the Re-establishment and Employment Act 1945 and two exceptions in the Social Services Act, all decision-making powers are conferred on the Director-General. The two exceptions in the Social Services Act are the section 133C definition of 'approved organisation' sub-paragraph (a)(iv), which confers a power on the Governor-General to approve organisations, and sub-section 135D(5) which makes the Director-General in rehabilitation matters subject to directions of the Minister. The relevant powers conferred by the Re-establishment and Employment Act are placed in the hands of the Minister and, by incorporation of the rehabilitation provisions of the Social Services Act, the Director-General. The ministerial power in the Social Services Act referred to above is not subject to a statutory power of delegation, though the principle that an officer may lawfully act as an alter ego for his Minister would presumably apply (see Lewisham Borough v. Roberts [1949] 2 KB 608). The Social Services Act (section 12 in respect of the Director-General), the Defence (Re-establishment) Act 1965 (section 59) and the Re-Establishment and Employment Act (section 7) all contain delegation provisions.

3.019 The practicable manner of conferring jurisdiction is to refer generally to all decisions under the relevant legislation, and then exclude those decisions which it would be undesirable to have subject to review. Four groups of decision-making powers under the Social Services Act should be excluded from review. A number of the provisions appearing in a part dealing with one pension or benefit and suggested for exclusion are, by force of other sections, extended to apply to pensions and benefits other than that one (e.g. section 83AAG extends some 20 sections dealing with matters which range from widow's pension to supporting parent's benefit). Exclusion should take account of this.

3.020 The first class of provisions to be excluded is 'facultative powers'. These do not themselves constitute elements of a substantive decision concerning a social security payment, but are powers relating to the obtaining of material upon which a substantive decision is made. Review on the merits before tribunals is aimed at substantive and not procedural or adjectival decisions. Actions relating to the manner of conducting the business of the Department fall properly within the jurisdiction of the Ombudsman. The powers proposed to be excluded under this heading are: sections 16 and 141 (evidential powers, e.g. to take evidence on oath), 67 and 118 (as to the manner of investigating claims), and 27(1), 44, 73, 105N, 105NA, 129 and 133K (requirements that the claimant or subject of payment submit to a medical examination or produce evidence of income or other information).

3.021 Secondly, exclusion is proposed of provisions where a court is named as the forum for enforcement of the powers concerned. Such provisions are sections 115(5) and (6), and 135R(2), (3) and (7) (requiring and securing payment from a person who is liable to

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pay damages or compensation to the recipient of sickness benefit or rehabilitation) and 140(1) (recovery of overpayments from recipients otherwise than by deduction from future social security payments). The provision for recovery in the courts in these situations is submitted to be appropriate and there would appear to be no good reason to engage in restructuring the provisions to give rise to a form of administrative decision which could then be made reviewable by a tribunal.

3.022 Thirdly, it is recommended that the power to determine the manner and timing of payments (sections 40(2), 69(2), 83AG, 99(2), 123(1), 128, 132, 133H and 135W(2)) should not be reviewable. One of these powers was used, for instance, when payment of unemployment benefit was changed from being made in advance to being made in arrears. Exclusion of this power would appear to be appropriate both because of its 'facultative' character and because of the 'policy' nature of its use.

3.023 The exercise of powers of delegation is also submitted not to be suitable for review by tribunal procedure and it is therefore recommended that decisions under sections 12 of the Social Services Act, 59 of the Defence (Re-establishment) Act,and 7 of the Re-establishment and Employment Act should be excluded (the first two require express exclusion; the last does not because the proposed conferral of jurisdiction does not extend to the part of the Act in which the delegation provision is found).

3.024 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 XI 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.

Timing of Introducing the Recommended System

3.025 The Council sees the limited jurisdiction vested in April 1980 as no more than a first step towards a comprehensive review structure. The Council has already indicated its view that advisory tribunals are unsatisfactory in the social security area, yet if a power of decision were to be given to the SSATs they would need to be changed radically in character. A thorough re-evaluation of the social security appeal process would then become necessary.

3.026 It is unnecessary to await some months of experience with the recently vested jurisdiction before commencing consideration of the Council's recommendations. Experience under that jurisdiction will have little relevance to the proposals herein for a comprehensive appeal structure. While it might well indicate the legally difficult areas of a social security jurisdiction, that experience is unlikely. to shed much light on the procedural difficulties of ordinary social security appeals. It is those cases which give rise to the particular problems to be overcome in a comprehensive structure.

3.027 Recommendation No. 2. Government consideration of the review structure proposed in this report should be commenced without waiting for a substantial

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accumulation of experience of appeals under the Administrative Appeals Tribunal (Social Services Act) Regulations 1980.

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CHAPTER 4THE APPROPRIATE REVIEW TRIBUNAL

4.001 Two related questions are considered in this chapter: whether external review should be conducted by the Administrative Appeals Tribunal or by a separate tribunal constituted for the purpose (Social Security Tribunal); and whether the review structure should consist of one or two tiers. The relationship between the review tribunal and the Ombudsman is also discussed.

4.002 First, a preliminary point may be noted. Because of the volume and geographical spread of likely appeals, consistency of criteria and standards in decision making will be an important objective. This can best be achieved by providing that cases involving important principles of wide application be decided by a presidential bench of the AAT. If a Social Security Tribunal were established it would be necessary to provide in such cases for reference or appeal to the AAT. However, if the AAT itself is the appeals tribunal a more flexible arrangement is possible, as is discussed below.

AAT or Separate Tribunal?

4.003 Accessibility of Tribunal. Some persons and organisations in responding to the Council's consultative papers suggested the creation of a specialist Social Security Tribunal and submitted that the AAT would not be sufficiently accessible either physically or psychologically to aggrieved persons; physically, because it has only sat in the capital cities and psychologically, because it was submitted to be legalistic and remote in its procedures and atmosphere in some proceedings. SSATs have seldom sat beyond capital cities. The fact that the AAT has not sat in smaller centres has been a result of both the nature of its current jurisdiction and the infrequency of applications coming from country centres. It can be assumed that the Tribunal will in future sit in country centres when necessary.

4.004 Suggestions that the tribunal is remote and legalistic derive from observation of some tribunal hearings. Most hearings held outside the A.C.T. are, by the nature of the jurisdiction and the presence of legally represented parties, appropriately dealt with in a manner similar to judicial proceedings. It does not follow that similar procedures and approaches will pertain in every jurisdiction; substantial informality applies in A.C.T. Rating appeals where claimants are unrepresented. It is accepted by Council and the President of the tribunal that a social security jurisdiction will involve more informal settings and different procedures. There is no reason why the AAT should be any less accessible either physically or psychologically to aggrieved persons than a Social Security Tribunal.

4.005 The Repatriation Analogy. The Repatriation Review Tribunal was established in 1979 in place of the War Pensions Entitlement and Assessment Appeals Tribunals. This reversed the earlier decision of the Government that the jurisdiction of the War Pensions Tribunals should be vested in the AAT. Submissions have been made to the Council that the repatriation model should be followed in the social security area.

4.006 Considerations which led to the reversal of the Government's decision included the following:

the Repatriation Commission's policy not to oppose veterans before the tribunals,

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combined with the burden of proof beyond reasonable doubt in favour of the veteran, which were thought by the Government to make the AAT procedures unworkable;

the view of relevant organisations that legal involvement should be avoided; the belief at the time the Government's decision was reversed that vesting of jurisdiction in the AAT would have led to an unbalancing of the tribunal's workload so that it would be effectively a repatriation tribunal and not a general tribunal;

the wish of relevant organisations that a specialist repatriation tribunal continue.

4.007 The first three considerations have little, if any, application to social security. First, DSS is prepared to make submissions contrary to the claimant before the tribunal and there is no special burden of proof. Second, it was accepted at the Council's Sydney and Melbourne Seminars that legal representation should be available before the external tribunal and only two submissions made on the Consultative Papers were against legal representation. Third, while a decision to vest the social security jurisdiction in the AAT would necessarily 'unbalance' the tribunal to some extent at first, this would be a temporary condition which would be rectified as other jurisdictions are vested.

4.008 In regard to the fourth consideration in paragraph 4.006 above, a number of organisations making submissions to the Council supported the establishment of a specialist social security tribunal. There were two reasons advanced. The first was that the AAT would not be the appropriate tribunal (see paragraphs 4.010-4.014 below). The second was that claimants would be more likely to trust a specialist tribunal which was clearly the successor of the existing SSATs. This must, of course, be an untested assertion at this stage. But even if true initially it does not necessarily represent the attitude of claimants in the longer term when they will have become familiar with a new review authority and its methods of operation.

4.009 Powers and Procedures of Tribunal. On balance, the Council does not favour the establishment of a separate Social Security Tribunal with membership, powers and procedures similar to those of the AAT.

4.010 In the Council's view, a decision to opt for a Social Security Tribunal with more restricted powers and procedures than the AAT would be justified only if one or other of the following propositions were adopted. The first is that the proposed powers and procedures, though restricted, would be nonetheless adequate for adjudicative fairness in the social security area. The second is that while powers and procedures similar to those of the AAT may be desirable in principle they would impose unacceptable costs on the community and hence a lower standard of fairness should be applied in social security cases.

4.011 The Council does not adopt the first proposition because it does not pay adequate regard to the fact that the issues likely to arise will cover a wide range of complexity and difficulty. It would be necessary to provide that those cases which could not be dealt with satisfactorily by a tribunal with restricted procedural powers as well as those involving important principles of wide application, be decided by the AAT through a system of appeals or by reference of cases. This would introduce an extra step in the review process. It is also unlikely that the total costs involved would be significantly, if at all, less than those which would arise under a flexible system of review by the AAT.

4.012 The second proposition assumes that the community would be prepared to accept

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a lower standard of justice for social security claimants than for persons seeking review in other areas of the AAT's jurisdiction. The Council is unable to support this proposition, particularly having regard to the fact that for most social security claimants the benefits they are seeking represent the whole or a major part of their means of subsistence. The monetary amounts at issue in other areas of jurisdiction may often be greater but their impact on the livelihood of the appellants concerned would in many cases, perhaps most, be less.

4.013 The costs of the review process are of course rightly a matter of concern. The Council considers that the appropriate means of minimising these costs is to seek to reduce the number of appeals by ensuring, as far as may be possible, that the correct or preferable decisions are made within DSS at the primary stage or when primary decisions are reviewed internally. This Report contains in Chapter 6 proposals which are directed to that objective, which will be assisted also by the availability of authoritative decisions from the AAT.

4.014 One possible compromise which the Council would regard as unacceptable would be to confer jurisdiction on the AAT to deal with social security cases, but to provide that in respect of such cases its powers shall be restricted. This course would strike a serious blow at the standing and reputation of the AAT generally, particularly as social security cases would, at least for the time being, represent a substantial proportion of its total activity.

4.015 Conclusion. In the light of the above the Council considers that the social security jurisdiction should be vested in the AAT. Vesting the jurisdiction in the AAT would provide the following advantages:

(a) The AAT would assure a high standard of procedural fairness, authority and clarity of decision making.

(b) The AAT would provide a pool of members of varying skills and experience, who would not be restricted to sitting on social security cases, and this would permit the appropriate constitution and reconstitution of the tribunal according to the needs of each individual case.

(c) The AAT would provide an efficient review process earlier than would a separate Social Security Tribunal because of its experience with the jurisdiction vested by the Administrative Appeals Tribunal (Social Security) Regulations 1980.

Further, it would be no more costly than a Social Security Tribunal, and probably less so.

4.016 The volume of appeals to be dealt with cannot be estimated with any precision but will clearly be substantial by comparison with existing jurisdictions of the AAT. Furthermore it will be necessary to use procedures of differing formality for different cases. The AAT has already employed informal and expeditious procedures to deal with particular kinds of cases. The Council is confident that the AAT will in the same way be able to meet the requirements of high volume and flexiblity of procedure which would be posed by the vesting in it of the social security jurisdiction.

4.017 Recommendation No. 3. The Social Security jurisdiction set out in Recommendation No. 1 should be vested in the Administrative Appeals Tribunal.

4.018 A decision on social security appeals has important implications for the future structure of Commonwealth administrative review. The AAT was envisaged by the

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Bland Committee as being a general Commonwealth administrative tribunal, though it was recognised that some particular tribunals might remain separate. A decision to vest the social security jurisdiction in the AAT would be a major step in line with the policy envisaged by the Kerr and Bland Committees.

One or Two Tiers of External Review?

4.019 In general, and with application to social security appeals specifically, three arguments have been put to the Council which suggest that the structure should be two tiered:

(a) The 'trial' tribunal can go wrong and there must be provision for rectification on the merits.(b) A two tier system permits the most appropriate division of labour and flexibility

given the volume of cases, the need for speed of decisions, and the necessity for dealing with cases which will range from the very simple to the very complex.

(c) There is a need for consistency among decisions which is best assured by an appellate structure.

4.020 The Council does not consider that a two tier structure is required, particularly if the AAT were to be the 'trial' tribunal. As to argument (a) in the preceding paragraph it is accepted that some tribunal decisions will not be the correct or preferable ones. However, having regard to the fact that the members appointed to the AAT for social security appeals would have appropriate skills and experience, it can be assumed that the number of 'errors', and hence the need for an appellate structure to correct them, would not be large. Even if there were a substantial need for a rectification mechanism, an appellate structure is not the only means of achieving this. A rehearing process is an alternative which, for present purposes, is considered to be preferable to an appeal.

4.021 The Council considers that for cases involving important principles of wide application there should be a procedure for appeal to, or rehearing by, a presidential bench of the AAT (unless of course the case has been decided initially by such a bench). However, most cases will not involve such principles and for these cases there is nsidered d to be no need for an appeal or rehearing procedure. The doctrine of res judicata does not apply in administrative tribunals and under the scheme of the Social Services Act it will always be possible for a claimant to make a fresh claim to the Department and thence, if necessary, obtain a further hearing by the Tribunal.

4.022 As to point (b) in paragraph 4.019 above, it is accepted that different types of cases will require different personnel and procedures. The AAT experience with sections 20-21A of its Act shows the value of flexibility to constitute tribunals according to the needs of individual cases. This is considered to be the direct and appropriate means of adjusting personnel to the needs of different types of social security cases given that the Tribunal has a sufficient pool of members representing a range of expertise.

4.023 Argument (c) in paragraph 4.019 above pointed to the need for consistency in decision making. However, an appellate structure is not the only means of achieving consistency. It has been achieved within the AAT by authoritative and persuasively presented decisions within a single tribunal level.

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Relationship with the Ombudsman

4.024 In the Council's view external review of the merits of social security decisions requires a body with facilities, powers and procedures of the kind found in the AAT. Nevertheless, the particular characteristics of social security claimants suggest that there is need for a special relationship between the external review tribunal and the Ombudsman. It is envisaged that in many cases claimants would think first of the Ombudsman as a remedy for their grievances, notwithstanding that there exists a tribunal appeal. Too many jurisdictional hurdles should not be placed before claimants and it is desirable that the Ombudsman should not routinely refuse to investigate social security complaints solely because tribunal review is available. It should be expected that the Ombudsman would consider, when exercising his discretion under section 6(3) of the Ombudsman Act 1976, the likelihood, in a particular case, of his being able to achieve rapid and expeditious resolution of the claimant's problems.

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CHAPTER 5CONSTITUTION POWERS AND PROCEDURES OF THE REVIEW

TRIBUNAL

5.001 The previous chapter includes the Council's recommendation that the Administrative Appeals Tribunal should have a comprehensive jurisdiction to review decisions under social security legislation. This chapter considers the requirements which will arise from this jurisdiction as to the constitution, powers and procedures of the AAT and the extent to which special legislative or other arrangements will be necessary.

Constitution of the Tribunal

5.002 One task which will face the AAT is to develop an appropriate body of specialised skill and experience which can be employed in the expeditious handling of social security cases, while at the same time taking advantage of the relevant skills and experience developed by its members in other jurisdictions. Fulfilment of this task would in the Council's view be assisted by creating within the AAT a social security division. This could consist partly of members assigned only to that division and partly of members who are assigned also to one or more of the other divisions. It would then be possible for individual benches of the tribunal to be drawn from a wide range of skills and experience according to the needs of particular cases.

5.003 Recommendation No. 4. A social security division should be established within the Administrative Appeals Tribunal.

5.004 The AAT Act leaves it to the President to direct both how many and which members are to constitute a bench of the tribunal. In 1978 the Council recommended principles to govern whether there should be statutory prescription of qualifications for non-presidential members in particular jurisdictions (Second Annual Report, paragraph 63). In the Council's view there are no grounds for departing from those general principles in the social security jurisdiction.

5.005 Almost all submissions made to the Council supported the prescription of a three member bench. It was argued that a blend of experience and expertise was needed because cases would often turn on inferences and overall assessment. That argument is not necessarily applicable in every case arising in this jurisdiction, e.g. some cases may be based on agreed facts and relate only to legal questions. Hence while a three member bench may be appropriate for many cases, there are likely to be others where one member would suffice.

5.006 In the context of advocating three-member tribunals, respondents to the Council's Consultative Papers supported the present SSAT blend of experience, i.e. law, social welfare and administration, though they almost all rejected the proposition that serving officers of DSS should be members. The appropriateness of having available persons with that blend of experience is accepted. The Act is complex and major legal problems will not be infrequent; hence legal experience would be appropriate. The operation of the Social Services Act is intricate and there may commonly be cases where a member with practical experience of the administration of the Act would be valuable. There will also commonly be cases where it will be useful to have a member with an understanding of claimants' problems. This is especially important given the likelihood that tribunal

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members would not generally have that understanding from their own experience. This is not to say that a tribunal bench should not at times include people who do not have any of the above particular expertise or experience. These special qualities, however, will commonly be desirable. The reasons for having members with the above expertise do not lead to the conclusion that the tribunal should always be so constituted.

5.007 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).

5.008 Recommendation No. 6. There should be no prescription as to the number of members to constitute the tribunal in social security cases.

5.009 Attention has already been drawn to the fact that both claimants and DSS offices are widely spread throughout Australia. Hence a significant volume of appeals is likely to arise in all States. To avoid unnecessary costs and to facilitate the speedy hearing of cases it is desirable to have AAT members located in each State.

5.010 Recommendation No. 7. There should be members of the Social Security Division of the Administrative Appeals Tribunal resident in each State.

Powers and Procedures of the Tribunal

5.011 The Council's approach to making recommendations on the Tribunal's powers and procedures is, first, that the defects perceived in current SSAT powers and procedures should be remedied to the extent practicable, given the number, geographical spread and character of matters coming for consideration by the external tribunal. Secondly, provision should be made for the fact that the types of cases coming for external review will vary greatly. Some will involve substantial points of statutory interpretation and matters of principle. Others will involve controverted facts or complex material from which delicate inferences have to be made. The majority of cases are, however, expected to involve comparatively simple issues where:

the evidence is largely that of the claimant and a departmental officer the evidence is not challenged by adducing contrary evidence from other witnesses documentary material is used to expand the primary evidence the major questions involve inferences from the evidence and material the claimant

is not represented

The low key character of most cases should be borne in mind. Statutory provisions as to the AAT's powers and procedures must be such as to cater for the full range from the most to the least complex issues and situations.

5.012 The following discussion of powers and procedures for the AAT in this jurisdiction involves, first, recommendations on statutory provisions relating thereto and, secondly, statements of how the Council envisages those powers and procedures are likely to be exercised. The latter necessarily underlie the former.

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Legislative Provisions

5.013 Application for Review. It is proposed later in this Report (see paragraphs 6.025-6.027) that where a written request for reconsideration by a DSS Review Officer (RO) is made and the RO does not decide wholly in favour of the claimant, the request for RO reconsideration and the reasons for the RO's rejection should be forwarded to the tribunal. A variation of the procedures in section 29 of the AAT Act (which governs the formalities of instituting an application for review by the AAT) for the purposes of social security appeals is necessary to deem that request an application for review by the tribunal of the RO's decision.

5.014 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.

5.015 Access to Material. It is an element of natural justice that a party should have access to the case to be met. Full access to the reasons for the decision challenged, to documents relevant to the decision and to the evidence presented to the tribunal by the DSS is considered to be essential. Therefore no amendment to the substance of sections 35-38 of the AAT Act is proposed. On the other hand, the importance to claimants of the payments in issue means that appeals should not be unduly delayed so that material can be provided. Sub-section 37(1) of the AAT Act (as amended in 1979) provides that the reasons for the decision to be reviewed and relevant documents are to be lodged with the tribunal by the respondent within 28 days of notice of the application. Sub-section 37(1 A) allows the tribunal to abridge that period where an applicant might otherwise suffer hardship. Social security payments are likely to be the sole significant source of income of most claimants so the requirements of sub-section 37(1 A) are likely to be met in most cases. Since the DSS material necessary for the review should in most cases have been adequately prepared by the RO, it is considered that 14 days would be a sufficient period as a general rule. It is noted that section 37 is not one which paragraph 25(6)(b) of the AAT Act contemplates may be amended for particular jurisdictions.

5.016 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.

5.017 Interlocutory Powers. The power to make orders staying or otherwise affecting the operation or implementation of a decision is contained in section 41 of the AAT Act. Decisions on payment of pensions and benefits may be decisions to:

(a) refuse to grant or grant at a less than maximum level a pension or benefit otherwise than as set out in (c) below;

(b) vary, cancel or suspend an existing pension or benefit;(c) refuse to grant or grant at a less than maximum level unemployment or sickness

benefit in respect of a particular recurring period.

5.018 It is undesirable that claimants should be deprived of sustenance where there is good reason for their being paid pending an appeal. The Council is of the view that the

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tribunal should have power to stay decisions falling within (b) (the existing AAT power) but should not have power to grant, on an interim basis, applications falling within (a). There is a particular problem in type (c). Persons in receipt of unemployment or sickness benefit over a period are in law making periodical applications for new payments, but in effect may be continuing to receive benefits which have previously been paid to them. Where they are in this way continuing to receive 'existing' payments their position should be subsumed to pensioners under type (b).

5.019 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.

5.020 Hearings. The AAT Act provides for the holding of preliminary conferences (section 34), for parties to present witnesses (section 39 by inference), for the tribunal to summon witnesses (sub-section 40(1 a)), for claimants to be legally represented (section 32), for hearings in principle to be held in public (section 35) with appropriate informality (paragraph 33(1)(b)), for the tribunal not to be bound by rules of evidence (paragraph 33(1)(c)), and for the tribunal to administer oaths, adjourn hearings, and proceed in the absence of the parties (sub-section 40(1)) two of those provisions call for comment in the context of social security appeals.

5:021 The AAT Act provides that hearings should in general be public. This is contrary to the present rules of SSATs. The Council recommends that social security hearings before the AAT should be private. In so deciding the Council has borne in mind the following:

(a) SSATs currently hear appeals in private; both the U.K. Supplementary Benefits Appeals Tribunals and the New Zealand Social Security Authority (a tribunal) are required generally to hold hearings in private.

(b) Given the likely characteristics of many applicants, privacy would put an applicant more at ease and hence assist him to do greater justice to his case than he might in a public hearing.

(c) The personal nature of the issues involved suggests privacy.(d) Fear of publicity and of having to present a case publicly might inhibit resort to

the tribunal.(e) Bearing in mind the number of likely cases, private hearings would assist in

achieving expedition.(f) Privacy would promote informality, which is desirable.

The AAT should be empowered to compile and publish summaries of its decisions, as are Taxation Boards of Review. There should also be a power,in the Tribunal to sit in public, and the decisions of the Tribunal in such cases should be public subject to the existing powers in the AAT to prohibit or restrict the publication of evidence.

5.022 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.

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5.023 Section 32 of the AAT Act provides that applicants may be represented, by legal practitioners or otherwise. Legal representation in social security matters is controversial and the rules governing the SSATs currently exclude legal representation. Both Seminars held by the Council concluded that legal representation should not be excluded. There are likely to be cases involving complex and controverted factual situations or significant points of law. It is therefore undesirable that legal representation should be excluded. It may be that legal representation might lead to a greater formality in individual cases, but equally legal representation assists claimants properly to present their cases in such a formal environment. No change to section 32 is proposed.

5.024 Decision in Writing. Sub-section 43(2) of the AAT Act requires reasons to be given by the tribunal in writing. As the sub-section has been interpreted by the Federal Court in Sullivan v. Department of Transport (1978) 1 ALD 383, the tribunal has been obliged in practice to prepare written decisions of a character similar to superior court judgments. In the context of social security appeals this would cause extensive delay and add substantially to the cost of the appeal process. The Council has already recommended to the Attorney-General that sub-section 43(2) should be amended to provide generaly for the giving of oral reasons which shall be furnished in writing upon request. This amendment is especially important in the social security jurisdiction.

5.025 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.

5.026 Cases Involving Important Principles of Wide Application. The Council is of the view that there should be provision for rehearing cases which involve important principles of wide application. There are three stages where it may become apparent that a case involves a principle of this kind: when the documents required to be lodged with the tribunal have been lodged, when further development of the case has occurred (usually at the hearing) and when a decision has been made. Constitution of the tribunal in the first situation is adequately provided for by the AAT Act at present.

5.027 Section 21A of the AAT Act provides for the reconstitution of a tribunal after the members who are to hear the cases have been determined. Reconstitution can be ordered only after a party requests it. Having regard to the likely attributes of many applicants before the Tribunal, it is considered that the reconstitution provision would be of practical utility in many cases only if the tribunal directed to hear a case were empowered of its own motion to request the President to reconstitute the tribunal. The Council has previously recommended that section 21A should be amended with this general effect.

5.028 Recommendation No. 13. Section 21A 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 orincluding 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

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varied for purposes of the social security jurisidiction even if it is not amended with general effect.

5.029 The importance of a case might only appear after a decision has been made by the tribunal and the reasons stated. It may be then, for instance, that it is recognised that the principles upon which the decision was based could apply in many other situations. It is therefore necessary to make provision for rehearing cases where this occurs.

5.030 Recommendation No. 14. Provision should be made for purposes of the social security jurisdiction that where a decision has been made by a tribunal constituted otherwise than by or including a presidential member, a party may, within 28 days or such longer time as the President may permit, apply to the President for a rehearing of the case by a tribunal consisting of or including a presidential member upon the ground that the case involves an important principle of wide application. If the President is satisfied that the ground of the application has been established he may direct that the case be reheard by a tribunal so constituted.

Manner of exercise of Procedural Powers

5.031 It is difficult to devise in advance of proceedings detailed prescriptions on the way they should be conducted. It is preferable to allow the appropriate procedure to develop from individual cases. The Council anticipates certain difficulties in organising and conducting proceedings in a comprehensive appeal system. It has given thought to measures (discussed in the following paragraphs) which would tend to mitigate the problems foreseen.

5.032 It is expected that there will be available to the tribunal hearing rooms with informal settings, and that these will be used where appropriate to the case in hand.

5.033 The experience of the SSATs is that a review conducted solely on the record will very often fall short of revealing the information necessary to do justice on the merits. The Council envisages that a hearing would be offered to the claimant in each case, though there should be power to proceed in the absence of a party should he fail to attend. The wide spread of locations from which social security appeals arise might often make it difficult for a claimant to attend a hearing personally. The Council envisages that the tribunal would use the telephone to conduct hearings where this appears to be conducive to justice or where no hearing could otherwise be provided.

5.034 Parties are entitled to present their own witnesses to the AAT. They do not have power to summon them (though the tribunal itself has this power). It is expected that in many cases there would be no witnesses other than the claimant and a departmental officer. Consequently, there are likely to be occasions when the evidence or material available to the tribunal is not the best evidence in the sense of involving direct oral testimony by persons who are in a position to know the relevant facts fully and personally. If the best evidence is sought on all issues, this would significantly extend the length of hearings and lead to greatly increased costs. In practice clear evidence might not be available but it might often be unrealistic to go further in seeking evidence than to receive that of the parties. There will on the other hand be occasions where the tribunal could not decide the case justly or effectively without seeking further evidence. The Council expects that the tribunal would use its power to summon witnesses sparingly, as has been its practice.

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5.035 The normal practice of courts is that the bench takes a relatively passive role in receiving such evidence and submissions as the parties see fit to offer. The AAT fits generally into this pattern, though it tends to be more active than courts in asking questions of witnesses. Because many claimants will be unrepresented and unskilled in presentation of their cases, a departure from the traditional court role and a development of the AAT's pattern is likely to be necessary. It is envisaged that the tribunal would not expect the claimant in every case to present without guidance all relevant evidence and arguments. On that basis, it is expected that the Tribunal will take an active role in the conduct of hearings, including asking questions of witnesses, though this active questioning is not expected to extend to the exclusion of parties asking questions should they so wish. It is recognised that there can be a danger in an adjudicator entering too much into the development of a party's case.

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CHAPTER 6PRIMARY DECISION MAKING AND INTERNAL REVIEW

6.001 A system for external review of administrative decisions is part of a total process which begins before the primary decision-making stage. The scope of the jurisdiction, the powers and procedures of the review tribunal and its decisions will affect the organisation and operations of the authority whose decisions are subject to review. Conversely, the procedures for primary decision making, for provision of reasons for decisions and other information and for internal review may help or hinder the work of the tribunal. When a large-volume jurisdiction is involved it is particularly desirable that the whole process be designed with a view to economy and efficiency in operation. Thus if more correct or preferable decisions are made initially, and if more conflicts are satisfactorily resolved without resort to external review, the demands on the external review process will be reduced.

6.002 The Council has therefore found it necessary to make certain recommendations and suggestions as to procedures at and before the primary decision-making stage, and as to internal review within DSS. In doing so it has borne in mind its function of making recommendations to improve procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and equitable manner (see AAT Act, paragraph 51(1)(g)), though it did not undertake the task for this purpose. However it is important to note that a recommendation or suggestion from the Council should not necessarily be interpreted as implying that there is a deficiency in the operations of the Department and a need for corrective action. Rather, it should be regarded as an affirmation of desirable practice, having regard to appropriate standards of justice and to the requirements of the proposed system of review. The Department has itself taken a constructive approach to the heavy task which has confronted it as a result of the rapid increase in the scale of its widely dispersed operations. In a number of respects the arrangements recommended by the Council are already in force, wholly or in part, or are in the process of being introduced. Where they are not, their implementation is, of course, regarded by the Council as highly desirable. Where they are in force the Council's recommendations should be seen as supporting their retention when any changes in the Department's organisation or procedures are under consideration.

PRIMARY DECISION MAKING PROCEDURES

Pre-grant Interviews

6.003 Pre-grant interviews tend to reduce the call on remedial processes because they provide more facts for the decision maker and more information for the claimant, so reducing misunderstanding and preventing errors. It is considered that as much information as possible on their entitlements and responsibilities should be made available to claimants. Claimants should also be made aware of the grounds upon which adverse decisions may be made against them in the future.

6.004 Recommendation No.15. Pre-grant interviews should be conducted whenever possible and appropriate. The officers concerned should regard it as important to ensure that as many relevant facts as possible are made known to the decision maker, and that the claimant is made aware of his rights and responsibilities and the grounds upon which adverse decisions might be made.

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Interview Reports

6.005 The likelihood of making correct or preferable primary decisions is affected by the quality of reports of interviews with claimants or witnesses. This in turn depends on the extent to which those reports fairly represent the course of the interviews and how faithfully they reflect the interviewees' statements. Furthermore the efficiency of review processes is affected by the quality of the documentation which is before the tribunal and the parties.

6.006 Recommendation No 16. Reports of interviews which purport to represent statements of the interviewees should, as far as possible on matters which are relevant to a claimant's eligibility, include the information in the interviewees' own words, indicate the context in which the statements were made, and give a fair indication of the content of the discussions.

Natural Justice

6.007 The likelihood of incorrect decisions being made is reduced if the material on which they are based is tested by permitting claimants to make known their views thereon. CES has for some time had a rule to this effect. It has proved to be effective in promoting correct decision making. The rule is also one of fundamental justice.

6.008 Recommendation No.17. Where a decision might reasonably be expected to be the subject of a dispute with a claimant, he should be notified and given an opportunity before that decision is made to confirm, rebut or make submissions on the material upon which the Department might rely as a basis for that decision.

Access to Information

6.009 The Manuals of Instructions are very important elements in determining whether, and to what payments, claimants are entitled. Justice requires that the rules in the Manuals should be public, though no doubt some parts should remain secret, e.g. those relating to the detection of fraud.

6.010 Recommendation No 18. The current principles and guidelines for applying the legislation (e.g. those in DSS Manuals of Instructions) should be freely available to the public for inspection at each regional office and, where practicable, copies of relevant parts of the Manuals should be given to interested persons.

NOTIFICATION OF PRIMARY DECISIONS

Objectives

6.011 Notification of the primary decision is the essential starting point of the review process. Inadequate or no notification may result in delay and added cost in requests for information and in handling appeals. It may lead to unnecessary appeals or inhibit claimants exercising their rights of review. Notifications should therefore inform claimants of:

the exact decisions made the reasons for the decisions their rights of review

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Written Notification

6.012 Because of the importance of notification, written notification of adverse decisions should be made wherever possible. Cessations of payments which are periodical (unemployment and sickness benefits) raise particular problems for notification. If a claimant does not notify DSS or CES of finding work or recovering from illness, but simply does not lodge an application for payment during the following period, benefit will cease automatically. Notification by DSS to the claimant of cessation of payment in those circumstances would be unwarranted provided that claimants have been clearly notified of their obligation to lodge applications periodically. However, a significant minority of cases where appplications for continuation are not lodged arise for other reasons. It is desirable in principle that there be notification in such situations, but the two classes cannot practicably be distinguished by DSS for notification purposes. It would not be a wise use of resources to notify in every case. However, a distinction exists where a claimant has been in receipt of payment for such a time (e.g. six weeks or more) that he is likely to be fully or substantially dependent on social security and to lack the resources to tide himself over a period while any error is corrected; notification should be made to such claimants. This view is reflected in Recommendation 19(a) below.

Notification of Reasons for Decisions

6.013 A claimant may not be able to assess whether a decision is correct or should be accepted unless he is aware of the reasons for that decision. Statements of reasons are often effective in reducing costs incurred as a result of persons later seeking reasons or challenging decisions inappropriately. Reasons may be stated briefly provided that they are informative. Recommendation 19(b) below is not to be read in derogation of claimants' rights under section 13 of the Administrative Decisions (Judicial Review) Act 1977 or section 28 of the Administrative Appeals Tribunal Act 1975.

Notification of Rights of Review

6.014 A right of review is unlikely to be availed of if a person who has that right does not know of it. Notification should therefore include a statement of the right of review and how it is initiated (see Recommendation 19(c) below).

6.015 The following is an example of what is considered an appropriate notification of review rights. In this example it is assumed that, as recommended herein, the external review authority is the AAT.

Dear X,I am writing to you about your claim for x benefit. I have decided not to grant etc. for the following reasons: (criteria, facts, reason).

If you are dissatisfied with my decision you may appeal to the Administrative Appeals Tribunal which is independent of the Department of Social Security.

You are advised as a first step to contact a Review Officer. At present the Review Officer is Mr X on phone number x. He is a senior officer who has not dealt with your case before and he has the power to grant your payment. " If the Review Officer agrees that your claim should be paid, that is the quickest

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way to receive your (cheque, benefit, allowance).

If you are still dissatisfied after having contacted the Review Officer there is a simple arrangement for putting your complaint before the Administrative Appeals Tribunal. The Review Officer will explain the arrangement to you.

You are not required by law to see a Review Officer and you may appeal directly to the Tribunal if you wish.

*This wording will require variation where the Review Officer does not possess the power (see paragraph 6.020 below).

6.016 Recommendation No.19. (a) Written notification should be given for every refusal of payment, variation of

rate, postponement, suspension or cancellation of payment, other than those made on the claimants' advice and those where the decision arises from non-receipt of an application for unemployment or sickness benefit and the claimant has received that benefit for a relatively short period (e.g. less than six weeks).

(b) Notification should set out the exact terms of the decision made and should as far as possible contain the reasons for the decision including the criteria for the making of the decision, a brief statement of the material facts found, and a statement of why those facts failed to meet the criteria.

(c) Notification should in every case set out the claimant's rights of review including the identification of the external tribunal, the existence and function of the Review Officer, his telephone number, his name as at a particular date, and the means of obtaining review.

INTERNAL REVIEW

The Review Officer

6.017 As will be apparent from other parts of this Report, particularly Chapter 3, the SSATs are part of the internal review process of DSS. This appears from their constitution, procedures and practical relationship with the Department, as well as from the Director-General's view of their role (see Appendix 5 Part 3, paragraph 3.137). With the institution of a general right of appeal to the Administrative Appeals Tribunal, the role of the SSATs can be replaced by an improved Review Officer structure.

6.018 Internal review prior to external appeal is desirable for three reasons. First, primary decisions tend to be made by officers of such limited experience (see Appendix 5 Part 3, paragraphs 3.004-3.006) that it would be unsatisfactory for those decisions to form the basis for external review without re-examination. Second, internal review permits quick and cost-effective evaluation of decisions and should, in most cases, reach the correct or preferable decisions (assuming Manuals of Instructions provide appropriate guidance). Third, it may mean that appeals need not be lodged in a number of cases.

6.019 There is a limit to what can be expected of internal review. The RO cannot be fully independent of DSS decision making, nor can he.mimic external review. But he should seek to develop, and be seen by claimants to possess, a neutral and unprejudiced

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attitude. At the same time he should avoid giving claimants any impression that he represents their final avenue of appeal, or influencing in any way the exercise of their rights of appeal. He should, as far as practicable, seek to make the correct or preferable decision using material and an approach (though not a procedure) reasonably equivalent to those used on external review. The position of RO should, wherever possible, be full time but, where the workload in a particular office is not sufficient to justify a full-time appointment, the work could be combined with other departmental functions. However, it is important that there be an RO in each regional office, together with a supporting or `back-up' RO to assist at times of heavy workload, to be available in the absence of the RO, and to review any primary decisions made by the RO himself. The Review Officer should have power to redetermine a claim where the relevant delegation permitted the original determination to be made in the regional office concerned.

6.020 Recommendation No. 20. There should be at least one Review Officer and one `back-up' Review Officer in each regional office. They should have power to redetermine claims except where the relevant delegation is restricted to officers at State headquarters or Central Office, in which case the Review Officer should make a recommendation to the relevant delegate.

6.021 Relationship of Review Officer with External Review. Establishing the relationship between internal and external review raises the questions of whether RO consideration should be integrated with external review (i.e. take place after an application for external review has been lodged) or separate from and prior to that review.

6.022 Council is of the view that RO consideration should be separate from and prior to the external review process for two reasons. First, RO consideration is necessarily more accessible to claimants than any external review body. The characteristics of RO consideration which make it capable of resolving matters cheaply and speedily are likely to be lost if RO consideration becomes mixed with preparing a case for appeal. Second, prior RO review would assist in confining the AAT's more rigorous fact finding process to disputes which are difficult to resolve.

6.023 The Council does not propose, however, that RO consideration should be a prerequisite to external review. In most cases, because of the prospect of quicker and cheaper resolution of their problems, it will be in the interests of claimants to first seek RO reconsideration. General awareness of this situation should be encouraged, but the Council sees no reason to prevent claimants from going straight to external review where they believe that RO reconsideration is unlikely to be helpful. It is always open to the Department to reconsider the matter on its own initiative prior to the external review hearing.

6.024 Recommendation No.21. (a) Review by an RO should not be a prerequisite to seeking external review but RO review before external review should be encouraged. Notification of primary decisions should indicate the availability of direct access to external review, but should indicate the desirability of obtaining an RO's decision.(b) Where a claimant obtains an RO decision before the hearing of an appeal, the decision subject to external review should be that of the RO and not that of the primary decision maker.

6.025 Mechanism for Invoking Review. Requiring social security claimants to take a series of initiatives to obtain external review would have an undesirably discouraging affect. Initiatives should therefore be kept to a mimimum. On the other hand, it would

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be undesirable for matters to proceed to an external tribunal by operation of inertia. It is considered to be essential that a written application should be made for external review but that oral applications for RO review should be accepted. In those cases (expected on the basis of past experience to be few) where written application is made to an RO, a mechanism should be implemented for taking that application as an application for external review where the RO does not redetermine the case wholly in the claimants' favour. It is considered that only a small number of cases where the claimant does not wish to press his claim would reach the external review by that mechanism.

6.026 Recommendation No.22. There should be one, but only one, written initiative required of a claimant to obtain external review.

6.027 The Council envisages that, to give effect to this recommendation, it would be necessary to establish procedures along the following lines:

(a) Where a claimant presents a written request for reconsideration by the RO, whether or not that request is sent by mail or is submitted while attending at DSS, and the RO does not decide wholly in favour of the claimant, the claimant should be notified that: his request and the RO's reasons will be forwarded to the tribunal

automatically after a fixed period, e.g. 7 days, unless the claimant informs DSS that he does not wish the application to proceed; and

the claimant may put further information on a 'statement in support of appeal' form should he so wish, which he could then forward directly to the Tribunal.

(b) Where a claimant seeks reconsideration during a telephone conversation or where he attends the DSS office but the decision on his challenge is postponed, later written notification should be given which, if the decision is not wholly in favour of the claimant should sufficiently state the basis on which the claimant has made his challenge (as understood by the Department) as well as the RO's decision; and the claimant should be provided with an appeal form which he may forward to the tribunal directly or through DSS as he wishes.

(c) Where a claimant attends a DSS office and the RO gives, immediately and orally, a decision which is not wholly in favour of the claimant, that decision should be recorded in writing and an appeal form should be offered to the claimant which he may lodge directly with the tribunal or through DSS as he wishes.

(d) Direct application to the tribunal may be made without the intervention of an RO. The claimant must obtain an appeal form of his own initiative, or write a letter to the tribunal giving the required details.

6.028 Skills and Aptitudes of Review Officers. The importance of the RO in the total review process requires administrative action to ensure that persons exercising the RO function have the aptitude and training which tend towards attainment of the objectives of the RO concept. Some comments and suggestions on this matter are made in the following paragraphs.

6.029 As noted above (paragraph 6.019) the RO should, so far as possible, bring neutrality to his function. Support for his neutrality could be provided by making express statutory provision for the function of RO.

6.030 The RO appointed for each office should be the best person available for the

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function at the time. Hence the function of a part-time RO (when the workload in the particular office does not justify a full-time appointment) should not be associated on a permanent basis with a particular substantive position. Personal qualities (including appropriate seniority) should be the basis for selection rather than the other functions exercised in association with the role of RO.

6.031 The value of training courses for ROs, 'back-up' ROs and potential ROs will be readily appreciated.

6.032 Notification of RO Decisions. The notification of decisions by ROs is no less important than notification of primary decisions. Every decision should be notified along with the reasons therefor and rights of review. The manner of invoking external review has been set out in paragraph 6.027 above.

6.033 Recommendation No 23. Every applicant for, reconsideration of a primary decision by a Review Officer should be notified of the Review Officer's decision. Where the applicant's claim is not wholly conceded the notification should be in writing and should state the exact terms of the decision made and should contain the reasons for the decision, setting out the criteria for making the decision, a brief statement of the material facts found and a brief statement of why the claimant fails to meet the criteria on those facts.

Role of CES in Review

6.034 The present division of functions between DSS and CES (see paragraph 2.021 above) gives rise to problems.

6.035 Recommendation No.24. If the function of internal reconsideration of decisions based on work tests is to be exercised by CES rather than DSS, the foregoing recommendations in relation to internal reconsideration within DSS should also be implemented (by legislation, if necessary) within CES. The rights of appeal to the AAT recommended in this Report should apply equally to CES decisions, and the relevant avenues and rights of review should be made clear in any notification.

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CHAPTER 7Advice and Assistance

7.001 The provision of advice and assistance for claimants is a highly desirable aspect of the social security appeals process. In the absence of an adequate system of advice and assistance, the whole appeals process would be seriously inadequate. The construction of an appeals process is in itself, in some jurisdictional areas, sufficient for the Council to be confident that the right of appeal conferred would be a real option and not merely a paper one. With social security appeals, however, the situation is very different because many social security claimants are underprivileged persons who lack the intellectual accomplishments, the social skills and the persistence to initiate and adequately present a submission by way of appeal.

7.002 It was suggested to the Council that there was no special need to provide advice and assistance to claimants because many will be able to manage on their own account and because DSS officers and voluntary welfare groups will be able to provide some help. Reference was also made to the analogy of unrepresented appellants before Taxation Boards of Review, for whom there is no special provision for advice and assistance. However the Council considers that advice and assistance are of such importance in social security cases that their provision should not be left to the chance that DSS officers and welfare groups will be available to assist in given cases. Furthermore the type of advice which DSS officers could provide would necessarily be limited in scope. They could suggest courses of action and advise on the availability of welfare agencies but could not persuade or dissuade. They would lack professional committment to a claimant's case, and their ability to press a case vigorously with DSS decision makers would be restricted.

7.003 The need for assistance is particularly strong in cases which are heard by presidential benches of the AAT because they involve important principles of wide application. These cases will usually require careful and well-prepared presentation, with the assistance of counsel. However from the point of view of the claimant concerned in a particular case, the fact that an important principle is involved is a fortuitous and incidental circumstance for which he is in no way responsible. Council considers that many persons to whom the proposed system applies would not be able to avail themselves of their rights without there being adequate provision for their assistance. The difficulty many claimants will have in understanding and taking advantage of a review process is likely to be accentuated for groups of people facing special problems, particularly Aboriginals and migrants.

7.004 Aboriginals. Aboriginals are likely to experience difficulties of access to a social security appeals process different from those of most other claimants. Among the sources of their problems are the remote location of many Aboriginals, language difficulties and a sense of alienation.

7.005 DSS has introduced Aboriginal Liaison Officers (ALOs) into a number of its Regional Offices and it is understood that these officers will become more widespread in the future. ALOs would appear to provide some assurance of Aboriginal access to the review process. Particularly where traditional lifestyles continue to be followed, it will be vital that ALOs are freely available to advise and assist Aboriginal claimants. The Department of Aboriginal Affairs has advised that ALOs should be as close as is practicable to traditional local communities.

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7.006 Migrants. The special needs of many migrants arise from a number of factors, particularly language difficulties, lack of familiarity with Australian Government structures and procedures, and a 'cultural gap' between their earlier background and the Australian scene, leading in some cases to defensiveness and lack of confidence. As with Aboriginals, migrants are more likely to be dependent upon social security payments than are other members of the Australian community.

7.007 Migrant Liaison Officers are increasingly being appointed in Commonwealth Government departments. The appointment of these officers and the increase in the number of DSS officers from migrant backgrounds promote understanding within DSS regional offices of attitudes and actions which might not otherwise be understood by Australian staff. The spread of such officers is a desirable development.

Sources of Advice and Assistance

7.008 Section 69 of the AAT Act authorises the Attorney-General to provide such legal or financial assistance in relation to proceedings as he determines if he is satisfied that it would involve hardship to a person to refuse the application and that in all the circumstances it is reasonable that the application should be granted. The fund for this purpose is separate from legal aid funds administered by Legal Aid Commissions. The application of section 69 was considered on a number of occasions by a working party drawn from the Departments of the Attorney-General and Social Security, the AAT and the Council Secretariat, established to consider implementation of the 1977 proposal for AAT jurisdiction. It was estimated by that working party that some $20 000 - $30 000 would be required under section 69 to provide assistance for applicants under the proposal for limited AAT jurisdiction which was implemented as from 1 April 1980.

7.009 It will be readily apparent that the access of applicants to the tribunal would be considerably enhanced if the tribunal were able in appropriate cases to order payment of expenses incurred by claimants in attending hearings. Where an applicant is located at a distance from the tribunal, bringing the applicant to the tribunal may be cheaper than the alternative of the tribunal travelling to the applicant.

7.010 At the Council's Melbourne Seminar a general consensusus emerged in favour of the following structure for advice and assistance. There was envisaged a single Federal department or authority with overall supervision of the system. That authority would make grants to one or two umbrella organisations in each State and Territory to administer the system. There would be a network of advisers and assistants throughout the States who would be paid by the umbrella organisations on a fee for service basis. Those advisers and assistants could include in their number such persons as lawyers, social workers and beneficiaries who have themselves established expertise (vide the Action and Resource Centre in Melbourne). Claimants would have the right to choose their advisers and assistants and dismiss them. Advisers and assistants would be responsible both to their clients and to the umbrella organisation paying them.

7.011 In this chapter the Council has drawn attention to the need for means of advice and assistance to enable the benefits of a review system to be fully realised, and has referred to some of the main reasons why this need exists. However determination of an appropriate scheme is beyond the charter of the Council and is a matter for the Government to determine. The Council's recommendation on this question is therefore confined to certain aspects of immediate practical importance. In making its

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recommendation it also suggests that, in giving attention to the wider problem, the Government consider the scheme outlined in the preceding paragraph.

7.012 Recommendation No.25. Provision should be made for:

legal aid for cases going to a presidential bench of the AAT, i.e. cases on important principles of wide application;

the tribunal to be empowered to order payment of the expenses of applicants attending hearings;

a system to ensure that people are advised by DSS and/or the tribunal of the sources of advice and assistance available to them.

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CHAPTER 8CONCLUSION

8.001 Viewed from one aspect, the purpose of a system of review of administrative decisions is to provide for the resolution of grievances by correct and authoritative decisions which command general confidence. To this end the review authority should:

have powers and procedures for effective and efficient fact finding; observe high standards of procedural fairness; be accessible, both physically and psychologically, to persons seeking review.

8.002 A review system is not, except in the simplest situations, merely the addition of a means of independent review at the end of and outside an existing decision making structure. Where the volume of decisions and appeals is large it should be considered and designed as a total process which may require adjustments within the original decision making structure itself. Given the benefits of administrative review the process is justified provided it does not involve a disproportionate use of resources having regard to the importance of the subject matter to persons affected by decisions. This involves balance in the application of resources to the tasks of primary decision making, internal review and external review so that correct decision making at the primary level is encouraged and so that disputes are resolved, where this can be done justly and efficiently, at the earlier and less costly stages of the process rather than later.

8.003 In addition to these general desiderata, each individual review jurisdiction has its own particular requirements. In relation to social security, five specific objectives arise from the nature of the questions dealt with and from the personal attributes of many of the claimants:

The process should accommodate the fact that it is dealing with underprivileged people.

Information as to rights and responsibilities should be widely distributed to claimants both before and after any situation of grievance arises; in particular, claimants should be adequately notified of the matters in issue.

The number of independent initiatives required of claimants to avail themselves of their rights should be kept to the mimimum practicable.

Procedures before tribunals should be flexible, allow substantial informality in cases where formality is not essential, and permit the undertaking of an active role by the tribunal.

Provision should be made for advice and assistance for claimants, particularly the specially disadvantaged groups among them such as Aboriginals and migrants.

8.004 In the Council's opinion, the present review system, even as modified recently by vesting a limited jurisdiction in the AAT (which, in itself, is a useful step forward), does not meet the foregoing requirements and falls short of the standards accepted as appropriate in other areas of jurisdiction. The defects of the present system, in both principle and procedure, have been set out at a number of points in this Report. The proposal put forward by the Council should overcome those defects. It is a structure which is designed fairly to balance the rights of the individual with the needs of sound administration and to be comprehensive. Each part of the proposal interlocks with the others in making a whole. If only parts of the whole were to be implemented, there

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would be a danger that the balance carefully struck might be lost. The Council expresses the hope that its Report will receive early consideration by the Government.

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APPENDIXES

APPENDIX 1 - Regional Offices visited by Members of the Council Secretariat

APPENDIX 2 - Responses to Consultative Papers

APPENDIX 3 - Participants at Seminars held by Council

APPENDIX 4 - A Select Bibliography on Social Security Appeals

APPENDIX 5 - Research Papers

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APPENDIX 1REGIONAL OFFICES VISITED BY MEMBERS OF THE COUNCIL

SECRETARIAT

Department of Social SecurityAustralian Capital Territory CanberraNew South Wales Bondi Junction

Coffs HarbourGraftonHurstvilleLismoreLiverpoolMount DruittNewcastleParramattaRedfernSydney

Queensland BrisbaneGold CoastRedcliffe

South Australia AdelaideElizabethSalisbury

Victoria CamberwellFootscray (Review Officer only)MelbourneMoonee PondsSt KildaSunshine

Tasmania Hobart

Commonwealth Employment ServiceAustralian Capital Territory CanberraNew South Wales Blacktown

BondiCoffs HarbourGraftonLismoreLiverpoolMount DruittMurwillumbahNewcastle

Queensland Mermaid BeachRedcliffe

South Australia SalisburyVictoria Moonee Ponds

Mount WaverleySt KildaSunshine

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APPENDIX 2RESPONSES TO CONSULTATIVE PAPERS

Commonwealth Departments and AuthoritiesAboriginal AffairsAttorney-General'sEmployment and Youth AffairsImmigration and Ethnic AffairsFinanceSocial SecurityVeteran's AffairsPublic Service Board

TribunalsSocial Security Appeals Tribunal - New South WalesSocial Security Appeals Tribunal - QueenslandSocial Security Appeals Tribunal - South AustraliaSocial Security Appeals Tribunal - Victoria

IndividualsMr T. Carney (Monash University)Prof. J. Lawrence (University of New South Wales)Prof. H. Whitmore (University of New South Wales)

OthersAustralian Catholic Welfare Commission (New South Wales)Australian Council of Social Service Inc.Baptist Union of VictoriaBrotherhood of St LawrenceCatholic Family Welfare BureauCentacare - New South WalesCentacare - TasmaniaCentacare - Western AustraliaFitzroy Legal ServiceLaw Council of Australia - Administrative Law Committee LawCouncil of Australia - Underprivileged and the Law CommitteeNew South Wales Council of Social ServicesParents without PartnersRedfern Legal CentreSmith Family - New South WalesSouth Australia Council of Social ServiceSt Vincent de Paul SocietyVictoria Council of Social ServiceVictoria Department of Social Welfare

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APPENDIX 3PARTICIPANTS AT SEMINARS HELD BY COUNCIL

Seminar of 12 August 1977 (Sydney)

Mr W. Bartley (Department of Social Security)Mr J. Matthews (Department of Social Security)Mrs J. Moore (New South Wales Social Security Appeals Tribunal)Mr M. Shatin (Victorian Social Security Appeals Tribunal)Mr T. Smith (Law Council of Australia, Underprivileged and the Law Committee)

Seminar of 1 September 1979 (Melbourne)

Mr E. Attridge (Attorney-General's Department)Mr G. Brewer (Brotherhood of St Laurence)Mrs M. Campbell (Commonwealth Legal Aid Commission)Ms R. Canham (Action and Resource Centre)Mr T. Carney (Monash University, formerly Victorian Social Security Appeals Tribunal)Mr M. Cunliffe (Department of Social Security)Mr J. Disney (formerly of the University of New South Wales)Mr M. Douglas (Department of Social Security)Mr E. Dyrenfurth (Commonwealth Employment Service)Mr S. Einfeld (Brotherhood of St Laurence)Mr G. Flynn (Commonwealth Ombudsman's Office)Ms R. Galbally (Victorian Council of Social Service)Mr V. Kiessling (Victorian Social Security Appeals Tribunal)Miss R. Lansdowne (Australian Council of Social Service)Prof. J. Lawrence (University of New South Wales)Mrs J. Moore (New South Wales Social Security Appeals Tribunal)Mrs J. McClintock (Australian Council of Social Service)Mr T. Smith (Law Council of Australia, Underprivileged and the Law Committee)Ms M. Virtue (Action and Resource Centre)Mr P. Watherow (Commonwealth Employment Service)

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APPENDIX 4A SELECT BIBLIOGRAPHY ON SOCIAL SECURITY APPEALS

(a) Australia

Final Report of the Committee on Administrative Discretions (the Bland Committee) (Canberra, 1973)Commission of Inquiry into Poverty, First Main Report: Poverty in Australia (Canberra, 1974)Commission of Inquiry into Poverty, Second Main Report: Law and Poverty in Australia (Canberra, 1975)Commission of Inquiry into Poverty, Values in Australian Income Security Policies (Canberra, 1975)Commission of Inquiry into Poverty, Essays on Law and Poverty: Bail and Social Security (Canberra, 1977)Inquiry into Unemployment Benefit Policy and Administration (the Myers Committee) (Canberra, 1977)Department of Social Security, Annual Report 1978-79 (Canberra, 1979)Law Council of Australia, Social Security Appeals (Melbourne, 1977)G. Brewer, Rough Justice: a Study of the Causes and Effects of the Termination of Unemployment Benefit (Fitzroy, Vic. 1978)P. Bayne, 'Special Benefits for Migrants' [1977] Legal Services Bulletin 372T. Carney, Unemployment Benefits: Three Legal Issues [1977] Legal Services Bulletin 365P. Hanks, 'Income Support: Rights or Discretion?' [1977] Legal Services Bulletin 376R.W. Hughes, 'The Social Security Appeals System' (1975) Social Security Quarterly 8M.J. Mossman, 'The Baxter Case: de facto Marriage and Social Welfare Policy' (1977) 2 University of New South Wales Law Journal 1M.J. Mossman, 'Decision Making by Welfare Tribunals: the Australian Experience' (1979) 31 University of Toronto Law Journal 218C. Petre, 'Social Security Appeals: Redfern Legal Centre's Experiences' [19771 Legal Services Bulletin 386R. Sackville,'Property Rights and Social Security' (1978) 2 University of New South Wales Law Journal 246R. Sackville, 'Social Security and Family Law in Australia' (1978) 27 International and Comparative Law Quarterly 127

(b) United Kingdom

Supplementary Benefits Handbook (Revised edition, London, 1977)Supplementary Benefit Appeal Tribunals: a Guide to Procedure (London, 1977)Supplementary Benefits Commission, Annual Report 1977 (London, 1978)M. Adler and A.W. Bradley, Justice, Discretion and Poverty: Supplementary Benefit Appeal Tribunals in Britain (London, 1975)K. Bell, Research Study on Supplementary Benefit Appeal Tribunals (London,

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1975)H. Calvert, Social Security Law (2nd edition, London, 1978)J.A. Farmer, Tribunals and Government (London, 1974)J. Fulbrook, Administrative Law and the Unemployed (London, 1978)A.I. Ogus and E.M. Barendt, The Law of Social Security (London, 1978)A.W. Bradley, 'Reform of Supplementary Benefits Tribunals - the Key Issues' (1976) 27 - Northern Ireland Law Quarterly 96A. Prosser, 'Politics and Judicial Review: the Atkinson Case and its Aftermath' [1979] - Public Law 59R.M. Titmuss, 'Welfare Rights: Law and Discretion' (1971) 42 Political Quarterly 113

(c) Canada

Canada Law Reform Commission, Unemployment Insurance Benefits: a Study of Administrative Procedure in the Unemployment Insurance Commission (Ottawa, 1977)Canada Law Reform Commission, The Pension Appeals Board (Ottawa, 1979)Department of National Health and Welfare, Outline of Provincial Welfare Appeal Systems in Canada (Ottawa, 1978)

(d) United States of America

J.L. Mashaw, Social Security Hearings and Appeals: a Study of the Social Security Administration Hearing System (Lexington, Mass., 1978)F. Davis and J. Reynolds,'Profile of a Social Security Disability Case' (1977) 42 Missouri Law Review 41R. Dolzer, 'Welfare Benefits as Property Interests: a Constitutional Right to a hearing and Judicial Review' (1977) 29 Administrative Law Review 25W.D. Popkin, 'The Effect of Representation in Non-Adversary Proceedings' (1977) 62 Cornell Law Quarterly 989

(e) New Zealand

J. Hughes, 'Social Welfare - Domestic Purposes Benefit: Lessons from the Furmage Case' [1979] New Zealand Law Journal 32

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APPENDIX 5RESEARCH PAPERS INTRODUCTION

This Appendix is divided into 5 Parts, each of which is a Research Paper prepared by the Council's Secretariat. These papers were provided to the Council in the course of its consideration of the issues and preparation of its Report and recommendations. They are as follows:

Part 1: The Legislation and the Issues in Decision MakingPart 2: The Magnitude and Geography of Decision Making and AppealsPart 3: Current Procedures for Decision Making and ReviewPart 4: Characteristics of Some Overseas SystemsPart 5: Costs and Benefits of Review

RESEARCH PAPERS TABLE OF CONTENTS

PART 1 - THE LEGISLATION AND THE ISSUES IN DECISION MAKING

INTRODUCTION 1.001-1.002GENERAL POWERS 1.003-1.013 MAJOR ISSUES De facto relationships 1.015-1.019 Work test 1.020SOCIAL SERVICE PAYMENTS AGE AND INVALID PENSION Qualification Pension 1.021-1.023 Invalid Pension 1.024-1.026 Rate of Pension 1.027 The halving principle 1.028-1.030WIDOW'S PENSION Qualification 1.031-1.033 Cohabitation Rule 1.031 Rate of Pension 1.034WIFE'S PENSION 1.035REVIEW OF PENSIONS 1.036-1.040UNEMPLOYMENT AND SICKNESS BENEFIT Qualification Unemployment 1.041-1.050 Sickness 1.051-1.052 Rate of Benefit 1.053-1.057SPECIAL BENEFITQualification 1.058-1.063 Rate 1.064SUPPLEMENTARY ALLOWANCE 1.065FAMILY ALLOWANCE 1.066-1.067SUPPORTING PARENT'S BENEFIT 1.068-1.071FUNERAL BENEFIT 1.072-1.075DOUBLE ORPHAN'S PENSION 1.076REHABILITATION 1.077-1.084SHELTERED EMPLOYMENT ALLOWANCE 1.085-1.088

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HANDICAPPED CHILD ALLOWANCE 1.089-1.093CLAIMS AND PAYMENTS Claims 1.094-1.098 Payment 1.099-1.105 Reciprocal Agreements and Payments Overseas 1.106-1.110 Conclusion 1.111-1.112

PART 2 - THE MAGNITUDE AND GEOGRAPHY OF DECISION MAKING AND APPEALS 2.001-2.011

PART 3 - CURRENT PROCEDURES FOR DECISION MAKING AND REVIEWMAKING THE PRIMARY DECISION 3.002-3.003The Decision Makers 3.004-3.008PROCEDURES FOR DECISION MAKINGAge, Invalid and Widow's Pensions 3.010-3.013Unemployment Benefit 3.014-3.026 Pre-grant Interviews 3.015-3.019 CES Procedures and Work Testing 3.020-3.024 Reviews 3.025-3.026 Sickness Benefit 3.027 Special Benefit 3.028Family Allowance (Child Endowment) 3.029NOTIFICATION OF THE PRIMARY DECISIONIncidence of Notification 3.030-3.033Notification of Reasons 3.034-3.037Notification of Rights 3.038-3.044INTERNAL RECONSIDERATIONReview Officers 3.046-3.065 Who are ROs? 3.048-3.050 Time Spent on RO Activity 3.051 Procedures of ROs 3.052-3.054 Vetting RO Contacts 3.055-3.056 Procedures for Handling Contacts by ROs 3.057 The Effect of ROs - Appeals 3.058-3.059 - Decisions 3.060 - Appellants 3.061-3.062 Conclusion 3.063-3.065Specialist Benefits Units 3.066-3.071Appeals Conceded Prior to SSAT Consideration 3.072-3.073CES Role in Review 3.074-3.077SOCIAL SECURITY APPEALS TRIBUNALS 3.078-3.149Mechanism for Invoking Review 3.079-3.084Delay in Finalising Appeals and Continuation of Payment 3.085 Delay 3.085-3.087 Continuation of Payment 3.088-3.091Organisation and Constitution of SSATs 3.092-3.102 Structure 3.092 Constitution 3.093-3.100 Administration 3.101-3.102Power of SSATs 3.103-3.105Procedures of SSATs 3.106-3.129

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Documentation 3.106Consideration of Appeals 3.107 NSW and ACT 3.108-3.110 Queensland 3.111 Other Tribunals 3.112-3.114CES Liaison Officer 3.115Claimants input to Appeal Decision 3.116Claimants Access to Material 3.117-3.119Incidence of Hearings 3.120-3.122Costs of Attending Hearings 3.123 Travel by Tribunals 3.124-3.125 Conduct of Attended Hearings 3.126-3.127 Use of Manuals of Instructions by SSATs 3.128-3.129DSS Reconsideration of SSAT Recommendations 3.130-3.132 Rejection of Appeals for New Reasons 3.133-3.135 Assessment of the SSATs 3.136-3.137 Defects in SSAT Procedures 3.138-3.144 The Effect of the SSATs 3.145-3.146 Conclusion 3.147 Medical Appeals 3.148-3.149 Advice and Assistance 3.150-3.154

PART 4 - CHARACTERISTICS OF SOME OVERSEAS SYSTEMS

INTRODUCTION 4.001-4.004BRITISH SYSTEM 4.005-4.031 Introduction 4.005-4.011 Supplementary Benefits 4.012-4.016 Operation of Supplementary Benefit Appeal Tribunals 4.017-4.023 Review of Decisions 4.024 National Insurance Tribunals 4.025-4.026 Review of Decisions 4.027-4.031CANADIAN SYSTEM 4.032-4.058Introduction 4.032-4.033Provincial Social Security Appeals System 4.034-4.044Federal Unemployment Insurance Appeal System Board of Referees 4.045-4.049 Umpire 4.050-4.056 Review by the Federal Court 4.057-4.058NEW ZEALAND SYSTEM 4.059-4.076 Introduction 4.059-4.060 Social Security Appeal Authority 4.061-4.076SUMMARY OF OVERSEAS SYSTEMS 4.077-4.078

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PART 5 - COSTS AND BENEFITS OF REVIEW

INTRODUCTION 5.001-5.005Number of Cases and Time Involved 5.006-5.009Immediate Tangible Costs: Administrative Appeals Tribunal 5.010-5.015 Applicant 5.016-5.017 Respondent 5.018-5.021Secondary Tangible Costs of the Respondent 5.022Intangible Effects 5.023-5.025Conclusions on Costs and Benefits 5.026

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APPENDIX 5 - PART 1THE LEGISLATION AND THE ISSUES IN DECISION MAKING

Introduction

1.001 This Part deals separately with the different social service payments which may be made under the Social Services Act 1947 (Act) except where the provisions in relation to more than one payment are so similar as to avoid the necessity for individual treatment. The Act contains similar provisions in relation to both claims and payments, and all payments made under the Act will be considered under that general heading. The Act has been considered as at 31 December 1979.

1.002 The payment areas cover a wide spectrum of social service assistance and specific provisions for each payment have been enacted. The Act has been substantially amended over the years, increasing greatly the scope of payments. Payments are now made in respect to age and invalid pensions, widow's and wife's pensions, supporting parent's benefits, funeral benefits, family allowances, double orphan's pensions, handicapped child's allowance, unemployment and sickness benefits, special benefits, sheltered employment allowances and rehabilitation payments. Reference to the word 'payment' includes 'pension', 'benefit' or 'allowance'. The word 'claimant' includes a person applying for, receiving or being denied a payment (including a suspension or variation).

General Powers

1.003 Section 13 provides that the Director-General of Social Services shall, subject to the Act, determine claims. Section 12 provides that the Director-General may delegate to a Deputy Director-General, Assistant Director-General, or Director, Registrar or to any other officer, all or any of his powers and functions under the Act. As referred to in paragraphs 3.004 below there is extensive delegation under the Act reaching low levels of the Public Service. The word 'Director-General' is used hereafter, unless the context otherwise indicates, as including his delegates.

1.004 Section 14 provides that whenever it appears to the Director-General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under the Act (including a determination, direction, decision or approval of the Director-General personally), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it.

1.005 The Act sets maximum amounts for any one payment. It is open to the Director-General to set a payment at any level up to that maximum. The Director-General as a matter of practice does not avail himself of this power and where a person satisfies the eligibility criteria, for example, for an age or invalid pension subject to the means test, see paragraph 1.027 below, the claimant will receive the maximum payment provided for under the Act.

1.006 Section 15 provides that a person affected by a determination, direction, decision or approval under the Act (except a determination, direction, decision or approval of the Director-General personally) may within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval. There is no existing time prescription. This is the only

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section in the Act at present under which a reconsideration may be initiated by a claimant.

1.007 Section 135W provides that a pension may, at the request of a pensioner and with the consent of the Director-General, be paid to an account of the pensioner. If an amount greater than the pensioner's entitlement is paid to an account the Director-General may serve on the bank, credit union or building society where the account is maintained, a notice requiring repayment.

1.008 Where an amount has been paid, which would not have been paid but for a false statement, or, in consequence of a failure to comply with a provision of the Act, the amount is recoverable in a court of competent jurisdiction as a debt due to the Commonwealth - section 140(1).

1.009 Where for any reason an amount has been paid, which should not have been paid, and the person to whom the amount was paid is receiving another payment under the Act, the amount may, if the Director-General in his discretion so determines, be deducted from that other payment - section 140(2). The departmental instructions state that on failure to notify of a change in circumstances an overpayment is calculated - in respect of income, from the date of receipt of the income; in respect of, for example, marriage, from the payday after the occurrence of the event - money may be recovered by asking for a refund in one sum or by instalments.

1.010 If the Department is in error, for example, paying a person twice in relation to the same entitlement, or making a payment higher than that to which the person was entitled, the money wrongly paid may also be recovered at common law - Commonwealth of Australia v. Burns [1971] VR 825.

1.011 The Director-General may require a confidential report from any person relating to any matter which might affect the payment of a benefit - section 141.

1.012 Where a person being eligible for a benefit claims for the wrong benefit, the Director-General may, if he considers it reasonable, and subject to lodgment of a correct claim, treat the first claim as valid for the purposes of determining the date from which the benefit is to be paid - section 145.

1.013 Any benefit money which may have accrued at the death of a recipient may be paid to the person who in the opinion of the Director-General, is best entitled to receive it - section 146.

Major Issues

1.014 The most contentious issues which arise in social security appeals are the existence of a de facto relationship and the satisfaction of the work test.

De facto relationships

1.015 The existence of a de facto relationship is relevant to both entitlement and disentitlement provisions in the Act, e.g. a woman pensioner who was living with a man on a bona fide domestic basis would on his death be entitled to receive a funeral benefit. In relation to disentitlement, a single woman receiving unemployment benefit would cease to become entitled to that benefit if she began to live with a man on a bona fide

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domestic basis. If the man was also unemployed and receiving benefit his benefit would be increased to the'married rate' (which is less than twice the single rate). The existence of a de facto relationship can therefore also affect the rate of benefit as well as entitlement or disentitlement.

1.016 The question of determining whether a woman is living with a man on a 'bona fide domestic basis' has caused the Department a great deal of concern. The problem arises in relation to payments under age, invalid, wife's, widow's, supporting parent's, funeral benefits and unemployment and sickness benefit provisions. The Department of Social Security's Manuals do not attempt to define the term, but some guidelines have emerged as to application of the phrase, e.g. the man with whom the woman is allegedly cohabiting claims her as his dependant for taxation purposes; the parties are known generally in the neighbourhood and among the tradespeople as man and wife; the parties pool resources and share the domestic expenses etc.

1.017 The British Supplementary Benefits Commission has listed what it considers are the main considerations in determining 'husband and wife' relationships (Living Together as Husband and Wife SBA Paper No. 5 HMSO 50 1976):

(a) member of the same household(b) duration(c) financial support(d) sexual relationship(e) children(f) public acknowledgment

The Report (paragraphs 49-53) states that a suitable definition of cohabiting as man and wife' seems impossible:

In the variety of ways in which human beings arrange their affairs it must always be a question of fact whether or riot a man and a woman are cohabiting as man and wife.

1.018 Although the New Zealand definition relating to conjugal status for benefit purposes in the Social Security Act 1964 has recently been changed as a result of Furmage v. Social Security Commission (unrep. Supreme Court Wellington M500/77) - which section now provides that the Social Security Commission may regard as husband and wife any man and woman who, not being legally married, 'have entered into a relationship in the nature of marriage') - it has been argued that the underlying issues and their treatment by the New Zealand Social Welfare Department are likely to remain the same under the new section as those raised by the previous concept of living together on a domestic basis as husband and wife - J. Hughes, 'Social Welfare Domestic Purposes Benefit: Lessons from the Furmage Case' [1979] New Zealand Law Journal 32. Of the cases dealt with by the Social Security Appeals Authority since its establishment in 1974 a significant number have concerned questions involving cohabitation (see Part 4).

1.019 The basis for the cohabitation rule is explained by Professor R. Sackville in The Poverty Commission's Second Main Report: Law and Poverty in Australia (AGPS, 1975) p.191:

Yet despite its obvious disadvantages, the cohabitation rule is founded on a fundamental policy that cannot be overlooked, that is the need to treat an unmarried couple living together as man and wife no more favourably than a married couple in a

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similar financial position. In the absence of a cohabitation rule an unmarried couple living together would have a positive incentive to remain unmarried if one party receives an income maintenance payment. This cannot be fair. We have therefore not found it possible to recommend a complete break from the rule and we are forced to agree with investigating bodies in the United Kingdom and New Zealand that there is no workable alternative to it.

Work test

1.020 As the work test has relevance only in relation to entitlement and disentitlement to unemployment benefit, this matter is considered in relation to the provisions of the Act on unemployment benefit at paragraph 1.041 et seq.

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SOCIAL SERVICE PAYMENTS

Age and Invalid Pension

Qualification for Age Pension

1.021 A man or woman who has attained the age of 65 years or 60 years respectively and has resided in Australia for not less than 10 years is qualified to receive an age pension. A person who has left Australia and is residing overseas is also qualified to receive an age pension if he had resided here for a certain minimum period and meets certain other conditions, and is, in the opinion of the Director-General, in special need of financial assistance - section 21A. Payment of pensions to qualified persons under the age of 70 years is subject to an income test (see below, paragraph 1.027).

1.022 Therefore a person residing overseas who applies for an age or invalid (or widow's - section 61A) pension has to satisfy different eligibility criteria than does a resident applicant. The Manual states that if a person residing overseas receives income equal to the existing rate of a pension, he will not be regarded as 'in special need of financial assistance' (Pensions Manual Instruction 30.2).

1.023 The Act states that an age pension shall not be granted to a person who has deserted a spouse without just cause if the desertion has continued during the period of six months immediately preceding the date of lodgment of claim. Furthermore, a pension shall not be granted to a person, being a husband, if he has during that period failed without just cause to provide his wife with adequate means of maintenance or has neglected to maintain any children under sixteen. A wife shall not be granted a pension if she has deserted any of her children under 16 - section 22. The term 'wife' includes a dependent female (section 18) which is defined as 'a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him'.

Qualifications for Invalid Pension

1.024 A person above the age of 16 who is permanently incapacitated (not less than 85%) for work or permanently blind and is residing and physically present in Australia on the date he lodges a claim, is entitled to receive an invalid pension. Normally, a medical certificate from a Commonwealth Medical Officer is required from all claimants. Other persons may also receive invalid pensions even though they do not reside in Australia if they meet certain criteria involving previous residence as well as satisfying the Director-General that they are in special need of financial assistance.

1.025 An invalid pension shall not be granted to a person if, inter alia, his incapacity was brought about with a view to obtaining a pension, or if he has an enforceable claim against any person under any law or contract for adequate compensation in respect of his permanent incapacity or permanent blindness - section 25. The Act is silent on who decides whether a claim is enforceable.

1.026 Entitlement or non-entitlement to an age or invalid pension rests on a person's circumstances meeting the stated criteria. Most requirements to be met for an age or invalid pension are not those which normally lead to appeals and are relatively easy to determine, e.g. age, sex, residence in Australia. One entitlement criterion in certain cases involves the Director-General being satisfied that the claimant is a person in special need of financial assistance. Once the conditions of entitlement are met, there is

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no discretion in the Director-General either to grant or deny the payment of a pension. A person may not receive an age and invalid pension at the same time.

Rates of Pension (age and invalid)

1.027 The rate of pension is that determined by the Director-General as being reasonable and sufficient, having regard to all the circumstances of the case, but may not exceed the applicable maximum fixed rate - section 28. Pensions may be increased beyond the fixed basic rate in certain circumstance; for example, where a person has the custody, care and control of an invalid child who, in the opinion of the Director-General, requires full-time care and attention. Although section 28 provides that the Director-General may determine an individual rate for each age or invalid claimant, the Deparment's practice, as mentioned in paragraph 1.005, is to pay the applicable maximum fixed rate for all claimants once they have satisfied the entitlement criteria. Application of the income test will of course in many cases mean that a claimant will receive less than the maximum. Under the income test, the maximum rate of pension is reduced by $1 for every $2 by which income as assessed exceeds the permissible income - section 28(2).

1.028 The Halving Principle. Section 29(2)(b) provides that for the purposes of determining rates of pension, the income of a husband or a wife shall generally be deemed to be half the total income of both unless for any special reason, in any particular case, the Director-General otherwise determines. The Department Pensions Manual gives little assistance to understanding when section 29(2) might be used. Instruction 8.1(b) of the Manual states that the halving principle is not to be applied where a husband and wife are estranged and permanently living apart though not legally separated. Section 29 itself only excepts the halving principle where they are living apart in pursuance of a written separation agreement, or of decree, judgment or order of a court - section 29(2) (a). The Manual also states `where there appears to be collusion or where the couple are more or less on friendly terms and the claimant is benefiting or is likely to benefit from the income of the spouse', then the halving principle is applied. Therefore, within the general discretion to determine rates, there are a number of more specific decisions exercisable, which in turn are made more particular, in practice, by the application of the Manual 'rules'.

1.029 If in the opinion of the Director-General a claimant or the spouse of a claimant has directly or indirectly deprived himself of income in order to qualify for or obtain a higher pension than that to which he would have been entitled, the amount the Director-General considers has been 'lost' shall be deemed to be income - sections 47 and 76.

1.030 Manual Instruction 5.19 makes it clear that sections 47 and 76 would only be relied on in very clear cases of deliberate deprivation - Instruction 5.19(i). The Department takes the view that claimants should not be subject to direction in respect of the arrangement of their financial circumstances.

WIDOW'S PENSION

Qualification for Widow's Pension

1.031 Cohabitation rule. The term 'widow' includes women in a number of circumstances, including a'dependent female'. A dependent female is defined in section 59 as a woman who for not less than three years prior to the death of a man was wholly

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or mainly maintained by him and although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis (see paragraphs 2.015 et seq. above).

1.032 The matters to be determined before a woman is qualified to receive a pension are widowhood, residence, age, and physical presence in Australia. Widows are classified into one of three categories, with different qualifications for each category.

Class A - A widow with at least one `qualifying child' i.e. a child under the age of 16 and in the custody, care and control of the widow, or a full-time student aged 16 to 24 and wholly or substantially dependent on the widow - section 60(1)(a).

Class B - A widow aged at least 50 who has no qualifying child, or a woman who was aged at least 45 when she ceased to receive a Class A widow's pension because she no longer had a qualifying child - section 60(1)(b)(i) and (ii).

For Class A and B purposes 'widow' also includes:

a woman who has been deserted by her husband without just cause for not less than six months;

a woman whose husband is in a mental hospital; a woman whose husband has been convicted of an offence and has been imprisoned

for not less than six months; a woman who is a divorcee.

Class C - A widow aged under 50 who has no 'qualifying' child and who within 26 weeks of her husband's death, in the opinion of the Director-General, is in necessitous circumstances - section 60(1) (c).

1.033 The Manual does not attempt to define necessitous circumstances, it simply states that the pension may be granted provided the widow's net income is under $10 per week (Instruction 15.9). However, that phrase has received consideration by the Administrative Appeals Tribunal in the context of an appeal under the Defence Force Retirement Benefits Act 1948. The decision in the relevant case Re Finlay-Maclarty and Defence Force Retirement and Death Benefit Authority (1979) 1 ALD 616, referred to the judgment of Kitto, J. in the High Court in Ballarat Trustees and Executors and Agency Company Limited v. Federal Commissioner of Taxation (1950) 80 CLR 350 at 354, where it was stated inter alia:

''. . a person is in necessitous circumstances if his financial resources are insufficient to enable him to obtain all that is necessary, not only for a bare existence, but for a modest standard of living in the Australian community .. . as distinguished from things which are merely desirable advantages. ''

The Tribunal did not suggest that those words were a final test but a useful first step in the consideration of an application for restoration of a pension under the relevant Act. In practice it would be a matter of deciding on the particular facts as to whether a person was in necessitous circumstances.

Rate of Pension (widow's)

1.034 Section 63 provides that the base figure for a widow's pension maybe increased if a widow has custody, care and control of a child under the age of 6 or an invalid child

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who, in the opinion of the Director-General, requires full time care and attention. The rate of pension is related to the rate of age and invalid pensions.

Wife's Pension

1.035 A wife of an age or invalid pensioner (not living apart from her husband or not herself receiving an age or invalid pension or a service pension under the Repatriation Act 1920) is qualified to receive a wife's pension. There is no residence qualification. Where a wife is unable to live with her husband in a matrimonial home by reason that she or her husband is an inmate of a benevolent home or because of an illness or infirmity of either of them, a wife is not taken to be living apart from her husband. A pension is not payable to a woman who is or whose husband is an inmate of a mental institution. Where the Director-General is satisfied that the living expenses of a wife and husband are greater than they would otherwise be by reason of inability to live together as a result of illness or infirmity and that inability is likely to continue indefinitely he may direct that the maximum rate of the wife's pension to be increased to a stipulated figure - section 32. The entitlement provisions in relation to a wife's pension are straightforward and not likely to give rise to many appeals. The rate of pension is tied to the rate of age and invalid pensions.

REVIEW OF PENSION (age, invalid, wife's and widow's)

1.036 In relation to age, invalid, wife's and widow's pensions, the Director-General has a discretion to vary, suspend or cancel the pensions on the following grounds - sections 46 and 75:

(a) having regard to the income of a pensioner;(b) by reason of failure of a pensioner to comply with requirements for giving notice

to the Director-General, being:(i) a requirement to furnish a statement relating to the income of the pensioner or

his spouse (if any);(ii) a requirement to inform the Director-General that income was received in

excess of a certain dollar figure per week;(iii) a requirement to inform the Director-General in the event of dissolution of

marriage, (re)marriage, ceasing to live with or apart from the spouse, death of spouse, child ceasing to be in custody, care, and control, a person ceasing to be wholly or substantially dependent on the pensioner or ceasing to receive a full-time education, or the pensioner becoming an inmate of a benevolent home;

(c) for any other reason.

Although paragraph (c) seems to grant to the Director-General a broad and unconfined discretion to affect a pension it is submitted that this paragraph is capable of interpretation by reference to other parts of the section and the Act as a whole.

1.037 Any other reason. The matters required to be communicated to the Director-General under items (a) and (b) in the preceding paragraph relate either directly or indirectly to income, and item (c) should arguably be read eiusdem generis with (a) and (b). The Secretariat was informed by an officer of the Department that in his experience item (c) had not been used at all and if it had, item (c) would have been used very rarely. It may be noted that Instruction 19.9 is limited to matters relating to notice only and does not attempt to define or give examples of when the phrase 'any other reason' might

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apply.

1.038 It may be suggested that the eiusdem generis rule is inapplicable because a class is not sufficiently ascertainable. However, guidance as to the nature and extent of the discretion can be inferred from the construction of the Act read as a whole - Padfield v.Minister of Agriculture, Fisheries and Food [1968] AC 997. The bases upon which a pension is determined, varied or cancelled are the entitlement and disentitlement provisions, and the words for any other reason', it is considered, would be limited to considerations relevant to those provisions.

1.039 Automatic Suspension. There are two provisions in the Act which automatically suspend a pension in certain circumstances - sections 48 and 77. There is no discretion in the Director-General to prevent suspension where an age, invalid or widow pensioner becomes a mental patient. When the pensioner ceases to be a mental patient the pension automatically revives. A pension is also deemed to be suspended if the pensioner receives a pension under the Tuberculosis Act 1948.

1.040 Where the Director-General is satisfied that a claimant, although qualified, is unfit to be entrusted with a pension and should in his own interest enter a benevolent home, the Director-General may direct that the pension not be granted until the claimant becomes an inmate - section 51. Similarly, if a pensioner is imprisoned following upon his conviction for an offence the Director-General may suspend or forfeit any instalment of pension falling due during the prison term. If the imprisoned pensioner has a wife or child dependent on him the Director-General may pay the whole or any part of the pension to the wife or some other person approved by the Director-General for the benefit of wife or child - section 52. The Manual indicates what matters the Department takes into account in deciding whether to exercise the discretion (and to what extent) in relation to payment to a wife or other person. The equivalent section in relation to widows pensions limits payment to a person approved by the Director-General for the benefit of the child.

UNEMPLOYMENT AND SICKNESS BENEFIT

Qualification for Unemployment Benefit

1.041 This is by far the most important area of the Social Services legislation in relation to review of decisions of the Director-General; 82.4% of appeals lodged with the SSAT's from 1 July 1976 to 30 June 1979 were in relation to unemployment benefit. The qualifications for an unemployment benefit are set out in section 107 of the Act:

(1) Subject to this Part, a person (not being a person in receipt of a pension under Part III or IV or a service pension under the Repatriation Act 1920 is qualified to receive an unemployment benefit in respect of a period (in this section referred to as the 'relevant period') if, and only if -

(a) the person had attained the age of 16 years before the commencement of the relevant period and, being a man, had not attained the age of 65 years, or, being a woman, had not attained the age of 60 years, before the end of the relevant period;

(b) the person resided in Australia throughout the relevant period and on the date on which he lodged his claim for the benefit and -

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(i) had resided in Australia for a period of not less than 12 months immediately preceding that date; or

(ii) satisfies the Director-General that he is likely to remain permanently in Australia; and

(c) the person satisfies the Director-General that -

(i) throughout the relevant period he was unemployed and was capable of undertaking, and was willing to undertake, paid work that, in the opinion of the Director-General, was suitable to be undertaken by the person; and

(ii) he had taken, during the relevant period, reasonable steps to obtain such work.

(2) Where, by reason of section 119, an unemployment benefit is payable only after the expiration of a particular period (in this sub-section referred to as the 'waiting period'), then, for the purposes of the application of sub-section (1) of this section in relation to a relevant period that immediately followed the waiting period, that sub-section has effect as if -

(a) the reference to the commencement of the relevant period in paragraph (a) of that sub-section were a reference to the commencement of the waiting period; and

(b) the references to the relevant period in paragraphs (b) and (c) of that sub-section were references to the period constituted by the aggregate of the waiting period and the relevant period.

(3) The Director-General may, in his discretion, treat a person as having been unemployed throughout a particular period for the purposes of sub-paragraph (i) of paragraph (c) of sub-section (1) notwithstanding that the person undertook paid work during the whole or a part of that period if the Director-General is of the opinion that, taking into account the nature and duration of the work and any other matters related to the work that he considers relevant, the work should be disregarded.

(4) A person is not qualified to receive an unemployment benefit in respect of a period unless;

(a) the person satisfies the Director-General that the person's unemployment during that period was not due to the person being, or having been, engaged in industrial action; and

(b) the Director-General is satisfied;

(i) that the person's unemployment during that period was not due to another person or persons being, or having been, engaged in industrial action; or

(ii) if the Director-General is satisfied that the person's unemployment during that period was due to another person or persons being, or having been involved in industrial action - that the first mentioned person was not, during that period, a member of a trade union of which the other person was a member, or of which any one or more of the other persons was or were a member or members, during that period.

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(5) Sub-section (4) does not disqualify a person from receiving unemployment benefit in respect of a period occurring after the cessation of the relevant industrial action.

(6) If the Director-General has determined in pursuance of section 132 that an instalment of an unemployment benefit in respect of a period is to be paid to a person before the expiration of that period, the person is qualified to receive that benefit in respect of that period if the person satisfies the Director-General that the person may reasonably be expected to fulfil the requirements of the preceding provisions of this section in respect of that period.

(7) In this section - 'industrial action' means -

(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, a result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work or on acceptance of, or offering for, work; or

(c) a failure or refusal by a person to attend for work or a failure or refusal to perform any work at all by a person who attends for work;

'trade union' includes any organisation or association of employees (whether corporate or unincorporate) that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment;'unemployment', in relation to a person, includes -

(a) unemployment of the person arising by reason of a person or persons being, or having been, engaged in industrial action;

(b) unemployment of the person resulting from the termination of his employment; and

(c) the person being, or having been, stood down or suspended from his employment or work.

(8) For the purposes of this section -

(a) conduct is capable of constituting industrial action notwithstanding that the conduct relates to part only of the duties that persons are required to perform in the course of their employment;

(b) a reference to industrial action shall be read as including a reference to a course of conduct consisting of a series of industrial actions; and

(c) if a trade union is divided into branches (whether or not the branches are themselves trade unions), the persons who are members of the respective branches shall all be deemed to be members of the first-mentioned trade union.

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1.042 Paragraphs (1)(a) and (b) would not seem to pose any problems as to justiciability as they would be readily dealt with on facts. Paragraph (1)(c) is a more difficult area.

1.043 The new sub-sections (2) - (8) introduce further eligibility criteria into section 107. Sub-section (3) was inserted to formalise the existing Department practice of ignoring for the purposes of benefit, certain activities of claimants which might strictly be regarded as 'employment'. There are no Manual Instructions yet issued in relation to sub-sections (3) - (8). Instructions 3.026 and 3.027 (on casual employment) currently state:

A claimant or beneficiary ceases to be unemployed if for any four consecutive benefit weeks his income in each week equals or exceeds the maximum rate of benefit plus allowable income for his classification. (See also instruction 2.002.)

A claimant or beneficiary is therefore not prevented from engaging in casual employment but he must continue to report to the District Employment Officer and lodge income statements, otherwise the claim will be rejected or benefit terminated.

Sub-sections (4) - (8) are provisions to preclude unemployment benefits to union members in certain circumstances. The effect of the operation of these sub-sections and their consequent treatment before a tribunal is very difficult to assess. The 'industrial action' provisions involve matters of high policy and have the potential for increasing further the number of appeals concerning 'work test' type cases.

1.044 The general words used in section 107 could be open to different interpretations depending on the facts of the case. An attempt has been made to fine down the general words to some extent in the Unemployment and Sickness Benefit Manual of Instruction (hereafter U and SB Manual) (Instructions 14.144 et seq.). The U and SB Manual adopts the approach of giving general tests, e.g. in relation to paragraph 1(c):

claimants have `made themselves unacceptable to employers', that principle being illustrated by fact situation examples such as by adopting dress which is clearly inappropriate to the type of employment sought;

claimants have 'placed themselves in the situation where they will remain, or are likely to remain, unemployed', by, for example, moving to a new location where there are few or no employment prospects.

The facts which would be relevant to an enquiry in the above examples would be: what sort of dress was adopted, what sort of employment was the person seeking, when did the person relocate, why, what sort of job prospects did he leave, what sort of job prospects were where he went etc.

1.045 The policies of the Department are reflected in the Manual of Instructions. These policies change and the Manual changes accordingly. However, as appears in Green v. Daniels (1977) 13 ALR 1 the Director-General is not concerned, in his administration of section 107, with the carrying out of any policy. 'No general discretions are conferred upon him; instead specific criteria are laid down in the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of the criteria refer' (ibid., at p.9). The Director-General, and the Tribunal in his stead, are therefore required to determine a situation by a consideration of the relevant objective facts. It is considered that Stephen J. adopted a restricted view of the word policy. Policy guidelines akin to what can be regarded as administrative

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rules could be expected to be differed from by the AAT when it regards the guidelines as legally questionable - see Rattray and the Commissioner for Superannuation, 12001 of 1979 (21 March 1980). However it can be expected that the AAT would be reluctant, as a general approach to 'interfere' with broad government policy especially if that policy had been subject to parliamentary scrutiny - see Drake and the Minister for Immigration and Ethnic Affairs No. 78/10017, 21 November 1978.

1.046 It would seem that this approach could also apply in relation to the existence of the conditions necessary for the exercise of the discretion as to postponement or cancellation of a benefit under section 120, which states:

120 (1)The Director-General may postpone for such period as he thinks fit the date from which an unemployment benefit shall be payable to a person, or may cancel the payment of an unemployment benefit to a person as the case requires -

(a) if that person's unemployment is due, either directly or indirectly, to his voluntary act which, in the opinion of the Director-General was without good and sufficient reason;

(b) if that person's unemployment is due to his misconduct as a worker;(c) if that person has refused or failed, without good and sufficient reason, to

accept an offer of employment which the Director-General considers to be suitable; or

(d) if in the opinion of the Director-General -

(i) that person is a seasonal or intermittent worker; and(ii) the income of that person is sufficient for the maintenance of himself and

the persons who are ordinarily maintained by him notwithstanding a period of temporary unemployment.

(2) A period of postponement fixed in relation to a person under sub-section (1) in the circumstances set out in paragraphs (a), (b) or (c) of that sub-section shall not be less than 6 weeks or more than 12 weeks.

1.047 There is an obligation under the Act on a claimant receiving unemployment benefit (and sickness benefit) to inform a Registrar of such things as: an increase in income, ceasing to pay rent (which would affect receipt of a supplementary allowance - for persons receiving sickness benefit only), entering hospital, changes in relation to dependants, commencement of employment, and marriage or death of spouse - section 130. Claimants are further required to notify a Registrar immediately upon commencing to engage in paid employment with an employer, or commencing to carry on a trade, business or profession on his own account or as a member of a partnership - section 130A.

1.048 There is also a general obligation on a beneficiary, if requested, to inform the Director-General of matters which go beyond the equivalent obligation in relation to age, invalid or widow's pension. Section 129 applying to both unemployment and sickness benefit provides that the beneficiary shall furnish, within such time as the Director-General specifies a statement in accordance with a form approved by the Director-General 'relating to any matter which might affect the payment to him of his benefit'. Situations can be envisaged where a person might omit reference to a matter in the statement which he honestly believed not to be relevant, but which the Director-General did. Also, it would seem that there may be a possibility that the form approved

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by the Director-General might seek information other than what could correctly be regarded as relating to 'any matter which might affect the payment of a benefit'.

1.049 Section 131 (1) states that:If –(a) having regard to the income of the beneficiary(b) by reason of the failure of a beneficiary to comply with section 129, 130, or 130A

[matters of notice mentioned above] or(c) for any other reason

the Director-General considers that the benefit which is being paid to a beneficiary should be cancelled or suspended, or that the rate of benefit which is being paid to the beneficiary is greater or less than it should be, the Director-General may cancel or suspend the benefit, or reduce or increase the rate of benefit accordingly.

1.050 It can be seen that the obligations on claimants for unemployment and sickness benefits are similar to, but more extensive than, for pensions. It is considered that the observations in relation to the words 'for any other reason' in paragraph 1.037 and 1.038 above apply also to interpretation of the same phrase in relation to unemployment and sickness benefits under paragraph 131(c).

Qualification for Sickness Benefit

1.051 A person not in receipt of an age, invalid, wife's, widow's, sheltered employment payment or a service pension under the Repatriation Act 1920 is qualified to receive a sickness benefit in respect of a period (referred to as the 'relevant period') if and only if:

(a) the person had attained the age of 16 years before the commencement of the relevant period and, being a man, had not attained the age of 65 years, or, being a woman, had not attained the age of 60 years, before the end of the relevant period;

(b) the person resided in Australia throughout the relevant period and on the date on which he lodged his claim for benefit and -(i) had resided in Australia for a period of not less than 12 months immediately

preceding that date; or (ii) satisfies the Director-General that he is likely to remain permanently in

Australia; and(c) the person satisfies the Director-General that, throughout the relevant period, he

was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he has thereby suffered a loss of salary, wages or other income.

1.052 The Department requires each application for sickness benefit to be accompanied by a medical certificate - section 1 17. This is accepted as satisfying the Director-General that the claimant is temporarily incapacitated for work by reason of sickness or accident.

Rate of Unemployment and Sickness Benefits

1.053 As in pensions, unemployment and sickness benefits are set at a basic rate with provision for increases in certain circumstances, for example, where a married claimant has a spouse who is dependent on the claimant but 'less than substantially dependent',

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the rate of payment to the claimant may be increased by such amount as the Director-General considers reasonable in the circumstances, not exceeding the amount which would apply if the spouse were substantially dependent - section 112(2)(b). In practice the 'income test' would be applied in those cases. There are other situations where the Director-General has a discretion to vary the rate of benefit, see for example sub-section 112(6).

1.054 A person shall not receive a rate of sickness benefit in excess of the wages or salary or other income per week which, in the opinion of the Director-General, that person had lost by reason of his incapacity - section 113.

1.055 Where a person receives a lump sum compensation payment in respect of incapacity, sickness benefit may be cancelled or the rate reduced and benefit already paid may be liable to be repaid - section 115E. Where the Director-General is satisfied that special circumstances exist, and it is appropriate to do so, he may disregard the whole or part of the compensation - section 115E. There are no Manual Instructions on section 115E; however the provision which it replaced, section 115(4), did have an instruction which stated that the following were types of cases in which special circumstances would warrant the exercise of the discretion (which was then a discretion to waive repayment):

the amount owing would have been recovered but for an error within the Department, and hardship would result if the claim is pressed;

the amount of compensation/damages awarded in respect of wages for the period of incapacity is much less than the actual loss of wages; and

the person receiving the award is a pensioner or person with little or no means and hardship would result if the claim is pressed.

1.056 Section 121 states that the Director-General may cancel the sickness benefit which is being paid to a person where that person:

(a) refuses or fails, when so required, to furnish to the Director-General the certificate of a legally qualified medical practitioner certifying as to such matters, and containing such information, as the Director-General requires;

(b) refuses or fails, when so required, to submit himself for examination by a legally qualified medical practitioner nominated by the Director-General for the purpose; or

(c) refuses or fails to take any action which the Director-General considers it reasonable for him to take in order to terminate, or reduce the extent of his incapacity.

1.057 Instruction 17.007 states that payment of sickness benefit is suspended immediately a medical certificate expires unless there is other satisfactory evidence of incapacity, and where the beneficiary fails to lodge a further medical certificate within 4 weeks after the expiration of the period covered by the previous certificate the benefit will be terminated. It appears that (a), (b) and (c) are all matters that are reasonably able to be determined 'objectively' in any given case.

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SPECIAL BENEFIT

Qualification for Special Benefit

1.058 Section 124 states that:The Director-General may, in his discretion, grant a special benefit under this Division to a person-

(a) who is not in receipt of a pension under Part III or IV, a benefit under Part IVAAA, an allowance under Part VIIA or a service pension under the Repatriation Act 1920-1973;

(b) who is not a person to whom an unemployment benefit or a sickness benefit is payable; and

(c) with respect to whom the Director-General is satisfied that, by reason of age, physical or mental disability or domestic circumstances or for any other reason, that person is unable to earn a sufficient livelihood for himself and his dependents (if any).

Note: Part III - age, invalid and wife's pensionPart IV - widow's pensionPart IVAAA - supporting parents benefitPart VIIA - sheltered employment allowances

The 1979 Act provides that a special benefit is not payable to a person who is not qualified to receive an unemployment benefit by reason of sub-section 107(4) (see paragraph 1 .041).

1.059 Because of the discretionary power in the Director-General regarding special benefit, the Departmental Instructions are very detailed to assist officers to determine eligibility. The range of persons who might receive special benefits is almost unlimited subject to the general qualification in section 124; special benefit may be paid (the following is not the full Manual list) in respect to the following categories of persons: persons newly discharged from gaol, dependents of persons on remand, persons aged 14 or 15 undergoing rehabilitation, males caring for sick wives, persons ineligible for another pension or benefit through lack of residence, former students, maternity cases, persons in need, and 'special and unusual cases' - see Instruction 21.031 U and SB Manual. The Departmental Instructions appear to go a little further than the Act regarding eligibility. Instruction 21.002 requires, besides the inability to 'earn a sufficient livelihood' because of a disability (section 124(c)), that the person 'will experience hardship if special benefit is not paid'.

1.060 The Manual further states (at 21.004):

The Director-General has decided that, in determining whether hardship is present, the discretion vested in him by the Act impels consideration of: whether the claimant has any money; if he is without any money, the circumstances which led to this situation; and the time that has elapsed since the claimant had money available to him.

1.061 It is difficult to give a precise meaning to the words 'for any other reason' in section 124(c). There is no clear genus which can be derived from the words 'age, physical or mental disability or domestic circumstances'. Nor may it be appropriate to adopt the approach earlier mentioned at paragraphs 1.037-1.038 above in relation to

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eligibility as section 124 is the only section which sets out the entitlement criteria and there are no specific disentitlement criteria, although sections 129, 130, 130A and 131 apply to this benefit, see paragraphs 1.047 et seq. above. The Director-General may therefore, make a special benefit payment to any person if for any reason that person 'is unable to earn a sufficient livelihood for himself and his dependents (if any)'.

1.062 Maintenance Guarantees. Under the Migration Regulations 1959, the Minister for Immigration and Ethnic Affairs may, in such circumstances as he thinks fit, require maintenance guarantees to be given in relation to persons seeking to enter or remain in Australia. A maintenance guarantee shall be given in such form and for such periods as the Minister determines - regulation 20(2). Where special benefit is paid to a person whose maintenance in Australia has been guaranteed, the guarantor becomes liable to repay the special benefit to the Commonwealth. If the guarantor is not in a position to honour his obligations, the Minister for Social Security has a discretionary power to write off the debt due to the Commonwealth - regulation 22(3). Amounts paid by the Commonwealth by way of age, invalid or widow's pensions or unemployment or sickness benefits, or rehabilitation payments shall not be recoverable by the Commonwealth - regulation 23(2). The right to effect recovery is therefore specifically limited, so far as the Department of Social Security is concerned, to special benefit payments.

1.063 During 1977-78 special benefit payments paid to 108 people in this category were written off. In determining eligibility for special benefit of people in this category a special income test applies. The unemployment benefit income test is first applied to the income of the claimant (and spouse). Any entitlement is then reduced by $1 for each $1 that the income of the maintenance guarantor(s) and their spouse(s) exceed the maximum pension plus permissible income - Instruction 21.032.

Rate of Special Benefit

1.064 The rate of a special benefit is as the Director-General determines, but may not exceed the rate of unemployment or sickness benefit which could be paid to that person if he were qualified to receive either of those benefits - section 125. In relation to this the unemployment and sickness benefit income test is generally applied. The exceptions are maintenance guarantees, children brought to Australia from South Vietnam and Cambodia, and cases where one person is caring for another person, e.g. his or her spouse.

Supplementary Allowance

1.065 This 'extra' benefit is available to age, invalid, wife's or widow's pensioners, supporting parents, or claimants who have little or no income apart from their pension or benefit. A similar payment may be paid where a sickness benefit has been payable for a continuous period of more than 6 weeks (Instruction 12.001). If the Director-General is satisfied that a person requires assistance by reason that that person or that person's husband or wife pays rent, and is entirely or substantially dependent upon the pension, or benefit, supplementary assistance is payable. The rate of supplementary assistance cannot exceed $5.00 per week (in any event the assistance cannot exceed the rent paid). As at 30 June 1978 there were about 366 000 persons receiving supplementary assistance. It is anticipated that there would be very few appeals arising in this area as the entitlement criteria are straightforward, disentitlement depends upon ceasing to be eligible for the `primary' payment, and the amount of money involved is very small.

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Family Allowance (child endowment)

1.066 A person who has custody, care and control of a child is qualified to receive an allowance in respect of each child, if that person and the child are permanent residents in Australia or intend to reside permanently therein; the rate of allowance is a stipulated dollar figure, increasing with the number of children - section 95. After 1 January 1979 endowment has not been granted in respect of a child in receipt of payments under a prescribed educational scheme (including TEAS, Aboriginal Study Grant, etc - section 95A). Family allowances are also payable to approved charitable, religious or government institutions for children residing therein - section 94(3). The allowance is paid to the mother except where the parents are living apart. If the father has custody, the allowance is paid to him.

1.067 At present family allowance is payable in periods which commence on the fifteenth day of one month and end on the fourteenth day of the next month. Payment is made for the whole period to the person or approved institution having the care of the child on the first day of the pay period. This could mean that a person or institution having the care of a child for the greater part of a period but not at the commencement of the period would receive nothing by way of allowance in respect of that period. The 1979 amendment now provides that where a child moves from one person to another or leaves an institution, entitlement will be decided on the basis of the number of days for which a child is in the care of the person or institution.

Supporting Parent's Benefit

1.068 A person qualifies for a supporting parent's benefit if he or she resides in Australia and has custody, care and control of a child over 6 months old and has not been living with the partner for at least 6 months. Until 1977 this benefit was payable only to women; men bringing up children on their own now qualify for assistance. A supporting parent's benefit is payable to unmarried mothers, separated wives (including de facto) and wives of prisoners and mental hospital patients. In the case of unmarried mothers it becomes payable 6 months after the child's birth; in other cases 6 months after the event which gave rise to eligibility, provided there is a child 6 months old. It is payable to a widowed or unmarried father, a father whose de facto wife dies or a divorced father, a separated husband (including de facto), husbands of prisoners and mental hospital patients after the 6 months period has expired and the child is 6 months old - section 83AAA. The parent's support of a child without the assistance of a partner is the essential qualification for supporting parent's benefit.

1.069 A benefit shall not be granted to a person who is a supporting parent if the Director-General considers that it is reasonable that the supporting parent should have taken action to obtain maintenance from the person or persons who are the father(s) or mother(s), as the case may be, of the child(ren) in relation to whom the first-mentioned person is the supporting parent, and that the person has not taken such action to obtain maintenance as the Director-General considers reasonable - section 83AAD.

1.070 The Manual at 29.10 states that what constitutes reasonable action will depend upon the circumstances of each individual case, and gives examples:

An unmarried mother will not be required to take action for maintenance from the father of her child if she does not know his name or does not know his whereabouts.

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A woman separated from her husband is not expected to take action for maintenance if the husband is outside Australia.

Where serious matrimonial problems would arise for that father/mother (or where some equivalent justification exists) disclosure of his/her identity should not be insisted upon. In such circumstances maintenance action should also not be insisted upon.

Where some years have elapsed since the child was born and no maintenance action has been taken by the father/mother, he/she should not be required to take action at this stage.

1.071 The benefit ceases when the parent no longer has the custody, care and control of a child. There is an obligation to inform the Director-General of the cessation of living apart from the spouse, and the commencement of a de facto relationship. Benefit is payable at the same rate, and subject to the same income test as that applicable to a Class A widow.

Funeral Benefit

1.072 A person (whether a pensioner or not) who pays for the funeral of a pensioner is entitled to a funeral benefit of $20 - section 83C. A pensioner who pays an amount in respect of the costs of the funeral of a spouse, a child or another pensioner (subject to the income test as indicated in the following paragraph) is entitled to a funeral benefit of $40 - section 83B.

1.073 A pensioner may not receive a funeral benefit if his income exceeds a prescribed amount. That prescribed amount may be increased in certain circumstances, i.e. where a person has custody, care and control of a child. A further increase in the prescribed amount is possible if the person is unmarried and the child is an invalid and, in the opinion of the Director-General, requires full-time care and attention - section 83CA(4)(a)(ii).

1.074 A payment of a benefit under section 83C shall be made to the person who paid for the funeral, or if the Director-General so directs, to a person specified by the DirectorGeneral - section 83C(2).

1.075 A payment of a benefit to either a pensioner or another person shall not be made unless an application for benefit is made within 6 months of the death, or within such longer period after the death as the Director-General, in special circumstances, allows - section 83E. During 1977-78 about 50 000 payments of funeral benefit were made.

Double Orphan's Pension

1.076 A double orphan is a child both of whose parents are dead or one of whose parents is deceased and the other cannot be traced. Qualification is also extended where the other parent has been convicted of an offence and sentenced to imprisonment for not less than 10 years and is serving that term, or the other parent is in a mental hospital and the Director-General is satisfied that he will require treatment in that hospital or a similar hospital for an indefinite period. A person who has the custody, care and control of a double orphan is entitled to receive a double orphan's pension in

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addition to family allowance. Payment may also be made to approved charitable, religious or government institutions caring for orphans. Payment ceases if the whereabouts of the other parent becomes known to the person in receipt of the payment, or the other parent is released from prison or a mental hospital or the child is adopted. The rate of payment is a stipulated dollar figure.

Rehabilitation

1.077 The Director-General may provide treatment and training for a person suffering from a mental or physical disability. The persons who may be assisted are persons, including pensioners and persons receiving unemployment or sickness benefit, who would be likely to derive substantial benefit from that treatment and training. The treatment and training may include medical, psychiatric and physical training, occupational therapy etc; plus the payment of tuition fees and the provision of amenities incidental to treatment or training - section 135. The Director-General has discretion as to who is to receive treatment and training - section 135A(1).

1.078 The disability must be of such a nature as to be likely to continue for a period of not less than 26 weeks, and to be likely to be a substantial handicap to the person undertaking employment, household duties or the leading of an nndependent or semi-independent life in his own home - section 135A(2). While a person is receiving treatment any other payments under the Act continue - section 135B. While a person is receiving training any other payments under the Act are suspended. An allowance is payable to a person undertaking training - section 135D. Thus, although the Director-General is to determine who is to receive training, once a person receives training the Director-General has no discretion as to the payment of a training allowance. The rate of that allowance is determined by the Director-General having regard to the amounts calculated with respect to adult males by the Australian Bureau of Statistics as the amounts of the weighted average minimum weekly pay rates as prescribed in awards, determinations and collective agreements. The Director-General has a discretion as to the award and rate of a living away from home allowance - section 135D(4).

1.079 Section 135D(5) provides that the Director-General shall exercise his powers under the section on training allowances in accordance with any directions of the Minister. This is the only section in the Act which provides for Ministerial direction in relation to a specific payment. Section 7 provides that there shall be a Director-General of Social Services who shall, subject to any direction of the Minister, have the general administration of the Act. As well as treatment and training, the Director-General has discretion in the provision of such artificial replacements, aids or appliances as are necessary (presumably in the opinion of the Director-General) to that person's requirements, as well as books and equipment - sections 135K and 135L.

1.080 Section 135M provides that the Director-General may, having regard to the age and mental and physical capacity of a person who is a claimant, and to the facilities available to that person for suitable treatment for physical rehabilitation and suitable training for a vocation, refuse to grant a payment to that person or cancel or suspend that person's payment, unless that person receives such treatment or training. This section therefore extends the entitlement criteria to an application for, or continual receipt of, a payment in respect of an invalid, widow's pension, or a supporting parent's benefit - see definition of 'pension' in section 134.

1.081 Similarly, section 135N provides that if in the opinion of the Director-General a

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claimant for an unemployment or sickness benefit should, inter alia, submit himself for medical examination, undertake a course in vocational training or do any work suitable to be done by him, the Director-General may cancel or refuse to grant that payment unless that person complies with those requirements.

1.082 The period of treatment or training continues for as long as the Director-General determines - section 135Q. A person may become liable for repayment of costs incurred for training or treatment if he receives compensation or if the Director-General is of the opinion that that person is entitled to recover compensation from another person. Section 1 35R(1 B) states that where the Director-General is satisfied that special circumstances exist by reason of which a person liable to repay an amount should be released in whole or in part from the liability, the Director-General may release that person accordingly.

1.083 The Director-General may make loans under section 135RA to enable recipients to purchase tools, plant and equipment etc. or to meet other expenses in connection with their engaging in a vocation at home. The terms and conditions of the loans are as determined by the Director-General. The maximum loan is $400.00. Loans bear interest at 4.5% per annum.

1.084 Vocational training for certain widows. Certain widows and women receiving supporting parent's benefits are able to receive vocational training at the discretion of the Director-General, if he is of the opinion they would derive substantial benefit from the training - section 135T.

Sheltered Employment Allowance

1.085 A disabled person who is engaged in sheltered employment is qualified to receive a sheltered employment allowance. A'disabled person' is an invalid or a person deemed by the Director-General to be incapacitated. A person may be deemed to be incapacitated where he is engaged in a sheltered workshop and is permanently incapacitated (but less than 85%), or is temporarily incapacitated for work and the Director-General is of the opinion that, if that person ceased to be provided with such employment, his physical or mental condition would become such that he would - become permanently incapacitated for work and qualified to receive an invalid pension - section 133C.

1.086 Any pension or benefit payment otherwise payable under the Act will normally be suspended while the person receives the allowance. Where the Director-General is satisfied that it is in the person's interests that that other payment should be made instead of the allowance, he may make that other payment.

1.087 The maximum rate of sheltered employment allowance is the maximum rate of invalid pension. A person receiving an allowance also receives payment equivalent to any additional benefits such as wife's pension and additional payments for children, that would be payable if the recipient were an invalid pensioner. An allowance is not payable if the person receives a service pension under the Repatriation Act or an allowance under section 9 of the Tuberculosis Act 1948.

1.088 Section 133M on power to suspend or cancel an allowance is in the same terms as sections 46 and 75 and the observations in respect to those sections are relevant to section 133M - see paragraph 1.036 et seq. above.

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Handicapped Child Allowance

1.089 A person who has the custody, care and control of a severely handicapped child (a child with a disability who needs, and is likely to need, constant care and attention) and provides, in the child's home, constant care and attention in respect to that child, is qualified to receive an allowance - section 105J.

1.090 In respect to a child who is handicapped, but not severely, the Director-General may grant an allowance if he is satisfied the person provides only marginally less care and attention than would be required if the child were severely handicapped and is by reason of the provision of that care and attention, subjected to severe financial hardship - section 105JA.

1.091 Where a child is or has been absent from his home and the Director-General is satisfied that the absence is or was of a temporary nature, he may direct that the entitlement of a person is not affected by that absence - section 105KA. If during an absence the child was in an institution and a benefit was payable in relation to that child under the National Health Act 1953 or the Handicapped Persons Assistance Act 1974, section 105KA will not be applicable. In any case a payment under either of those Acts will be deducted from the handicapped child allowance payable under section 105J or 105JA - section 105M. Section 105QB provides that an allowance ceases to be payable to a person if the child ceases to be in the custody, care and control of that person, or the child becomes an inmate of an institution.

1.092 The rate of allowance for a severely handicapped child is a stipulated dollar figure - section 105L(a). In respect to a handicapped child the rate is at the discretion of the Director-General but may not exceed the amount for a severely handicapped child.

1.093 Section 105QA on power to cancel or suspend an allowance is in similar terms to sections 46, 75 and 133M and the observations in respect to those sections are relevant to cancellation of a handicapped child payment (see paragraph 1.036 et seq. above). Section 105QA(2) provides that where the Director-General has reason to believe an inquiry may reveal reasons for the cancellation of a payment he may suspend the allowance during the course of the inquiry. The Act does not give guidance as to how or as to what matters are to be considered in such an inquiry. It is submitted that considerations involved in the exercise of the discretion under sections 105J and 105JA would be relevant to an inquiry under that sub-section.

CLAIMS AND PAYMENTS

Claims

1.094 There are two requirements in relation to claims which are common to all payments (excluding funeral and rehabilitation):

that the claim be in writing in accordance with a form approved by the Director-General;

that the claim be supported by such declaration as is approved by the Director-General - sections 37, 66, 83AAG, 98, 105D, 1058, 116 and 126.

1.095 It is required in claims for age, invalid, widow's, supporting parent's,

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unemployment, sickness and special payments that the claim be lodged with the relevant Registrar. The four first-mentioned payments are required to be lodged with the Registrar whose office is nearest the place of residence of the claimant or in the case of a claimant who is outside Australia, at a place approved by the Director-General. The three last-mentioned payments shall be lodged with a Registrar 'or as prescribed'. There is no relevant prescription at present.

1.096 Lodgment with the State Director of Social Services is required in family allowance, orphan's and handicapped child payments. Funeral, family allowance, orphan's and handicapped child claims may be granted an extension of time 'in special circumstances'. Unless there are special circumstances a claimant has 6 months to claim from the time from which entitlement arose. Similarly, a sickness benefit claimant has 13 weeks from the date of his incapacity to claim and this period can be extended. The Manual does not give examples of when special circumstances might exist.

1.097 In relation to widow's pension, unemployment and sickness benefits a claim 'shall be investigated in the prescribed manner' - sections 67 and 118. There is no existing prescription.

1.098 A claim for a sickness benefit shall, unless the Director-General in special circumstances otherwise directs, be supported by a medical certificate certifying such matters and containing such information as the Director-General requires. The Director-General may direct that a sickness benefit be deferred until the claimant has been medically examined - section 117(1) and (2).

Payment

1.099 Payments for age, invalid, wife's, widow's, supporting parent's payments and family allowances are paid to the claimant, or to a person on behalf of the claimant (who is appointed by the claimant in a form approved by the Director-General), and all payments are paid in such manner as the Director-General determines - sections 40, 69, 83AAG, 99, 105D, 105R, 123, 128 and 133H.

1.100 By the 1979 amendment to section 50, if an inmate of a benevolent home becomes an age, invalid or wife's pensioner or if an age, invalid or wife's pensioner becomes an inmate of a benevolent home, his pension, so long as he remains an inmate, shall be dealt with as follows: in the case of a male pensioner, a portion of the pension shall go to his wife, a portion to the benevolent home, and the balance to himself. The portions are calculated mathematically and do not rely on discretions as to their amounts. A similar amendment was also passed, mutatis mutandis, to section 80 dealing with class B widows on becoming inmates of benevolent homes and vice versa.

1.101 The following payments are automatically indexed twice yearly on the basis of the percentage increase in the consumer price index between the preceding half-years: age, invalid, wife's and widow's pensions, sheltered employment allowances, supporting parent's benefit, unemployment benefit for persons aged 18 or more with dependants, and for married persons aged 16 or 17, and sickness benefit for all persons aged 18 or more and married persons aged 16 or 17.

1.102 As at 30 November 1979 the basic single rate of age and invalid pensions, the sheltered employment allowance, the unemployment benefit for persons aged 18 or more with dependents, and the sickness benefit for all persons aged 18 or more was

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$57.90 a week. The rate of widow's pension and supporting parents benefit was also $57.90. The combined married rate of pension or benefit was $96.50. The pension payable to a person over 70 is free of means testing.

1.103 Where the Director-General is satisfied for any reason that it is desirable that all or part of the payment should be made to another person on behalf of the claimant, the Director-General may authorise payment accordingly - sections 43, 72, 83AAG, 100, 105D, 105R and 133R. This power does not apply to payments in relation to unemployment, sickness or special benefits.

1.104 If a person receiving an age, invalid, wife's, widow's or supporting parent's payment is imprisoned following conviction, and that person has a wife or child dependent on him, the Director-General may authorise the whole or any part of a payment to the wife or child - sections 52, 82 and 83AAG.

1.105 If payments to age, invalid, wife's, widow's or supporting parent's, pensioners or beneficiaries are in cash, and a cash payment is not collected within 6 weeks after due date for payment, such a payment may be forfeited. However the Director-General may waive that forfeiture if he is satisfied that there were reasonable grounds for failure to collect - sections 42, 71 and 83AAG. In fact there are no cash payments currently being made by the Department. Fortnightly instalments are specifically provided for in some payments - age, invalid, wife's and widow's. Family allowances, orphan's and handicapped child allowances are paid monthly. All other payments are in practice made fortnightly, although the Act states that the payments may be made in respect of such periods and at such times as the Director-General from time to time determines.

Reciprocal Agreements and Payments Overseas

1.106 An amendment to the Social Services Act in 1973 enabled Australians receiving age, invalid, widow's, wife's and supporting parent's benefits to be paid overseas. The right to portability of pensions under this amendment is not dependent on the negotiation of reciprocal agreements. Regardless, therefore, of the country of destination, pensioners leaving Australia on or after 8 May 1973, either permanently or temporarily, are entitled to continue to receive their Australian social service pensions in any country in the world under substantially the same conditions as if they were residing in Australia.

1.107 A pension shall not be granted to a claimant who has ceased to reside in Australia after has has lodged his claim unless the circumstances are such that the date the pension would be paid is not later than the day he ceases to reside in Australia - section 83ACA.

1.108 A former resident who returns to Australia, and lodges a claim within 12 months, will not be paid for any subsequent period during which he is outside Australia unless the Director-General is satisfied that the leaving arose from circumstances which could not reasonably have been foreseen. In such a case the Director-General by instrument in writing may determine that the provision providing for non-payment is not to apply - section 83ACA(2). This sub-section is designed to preclude the possibility of a former resident returning to Australia merely for the purpose of obtaining an Australian pension and then taking it overseas as soon as possible.

1.109 The introduction of general portability of pensions considerably reduced the

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significance of the reciprocal agreements with Britain and New Zealand for pensioners leaving Australia permanently, in that the British and New Zealand pension otherwise payable is reduced by any Australian pension payable. In most cases this means that for pensioners who left Australia after May 1973, the Australian pension is paid to the exclusion of British or New Zealand pensions.

1.110 As the right of appeal attaches to an adverse decision there is potential for appeals being lodged by persons overseas. It is suggested that such appeals are likely to be rare and it is suggested in any case the conduct of such appeals should take place in Australia.

Conclusion

1.111 As can been by the above there is a great number of powers vested in the Director-General (and his delegates) under the Social Services Act. It has been seen that these powers range from what might be regarded as relatively simple decisions on the existence of a fact (e.g. age of a claimant) to very difficult decisions such as whether persons are living in a de facto relationship or have taken reasonable steps to find work.

1.112 It has been stated that the majority of appeals can be expected to concern either de facto or work test issues. Many decision-making powers exercised by the Director-General and his delegates can be expected rarely, if ever, to give rise to a dispute of sufficient importance to warrant an appeal. The Council has previously adopted the view that the expected frequency of appeals is not of overriding importance in determining whether a right of appeal should be recommended. On this basis it would be possible for the Council to recommend that the jurisdiction of an external review body should extend to all decisions made pursuant to the legislation except certain specified decisions.

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APPENDIX 5 - PART 2THE MAGNITUDE AND GEOGRAPHY OF DECISION MAKING AND

APPEALS

2.001 This Part considers the magnitude and geography of the existing social security decision-making process, and the effects that those factors have on any appeals system.

2.002 In 1977-78 there were 17 804 appeals lodged with the Social Security Appeals Tribunals. This number decreased to 9312 in 1978-79, and to 7197 in the calendar year 1979.

2.003 The number of persons receiving pensions (age, invalid, wife's, widow's, sheltered employment and supporting parent's) and benefits (unemployment, sickness and special) from the Department at 30 June 1979 was about 2 187 000 - an increase of about 4% and 7.5% respectively over the figures relating to pensions and benefits as at 30 June 1978. Since 1969 the number of pensioners has increased by almost 100% to 1 829 000 while the number of persons in receipt of benefit payments has increased by close to 1150% to about 358 000 primarily because of the large growth in the number of unemployment beneficiaries. The total number of persons receiving social security payments is larger than the 2 187 000 mentioned above, as payments such as family allowance and rehabilitation payments are not included.

2.004 As mentioned in Part 1, (see paragraph 1.041 above) the great majority of appeals to the SSATs were concerned with the refusal and termination of unemployment benefit. The issues most common in such appeals are whether the claimant passed the work test or was involved in a de facto relationship. During 1978-79 an estimated 1 078 000 claims were received for unemployment benefit of which an estimated 810 500 were granted. Although the number of grants of benefit in 1978-79 was about 70 000 less than 1977-78, the average number of people on benefit at the end of each week during the year increased during 1978-79. This increase reflects the increase in the duration of benefit during 1978-79.

2.005 Exhibit 2.1 below for age, invalid, wife's and widow's pensions for 1977-78 and 1978-79 indicates the volume of decision making in those areas. These figures do not include variations, or changes from one benefit to another.

EXHIBIT 2.1Primary decisions for pensions

1 July 1977-30 June 1978 All States and TerritoriesClaims Pensions ClaimsLodged Cancelled Rejected

Age 142 955 6 868 7 075Invalid 48 786 4 758 13 345Wife's 26 513 5 643 4 133Widow's 32 267 14 265 4 795

250 521 31 534 29 348

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1 July 1978-30 June 1979 All States and TerritoriesClaims Pensions ClaimsLodged Cancelled Rejected

Age 115 356 7 596 5 894Invalid 49 456 5 683 13 211Wife's 26 815 6 264 4 342Widows 27 150 17 080 3 919

218 777 36 623 27 366

Exhibit 2.2 is for supporting parent's, funeral benefits, family allowances, handicapped child and double orphan's pensions for the years 1977-78 and 1978-79.

EXHIBIT 2.2Primary Decisions for other Payments1 July 1977-30 June 1978 All States and Territories

Claims Payment ClaimsLodged Cancelled Rejected

Supporting Parents 28 255 17 124 7 082Funeral 57 806 Not applicable 7 977Family 710 605 251 295 2 167Handicapped Child 5 624 3 061 558Double Orphans 1 229 823 171

803 519 272 303 17 955

1 July 1978-30 June 1979 All States and TerritoriesClaims Payment ClaimsLodged Cancelled Rejected

Supporting Parents 34 051 (est) 20 717 5 741Funeral 54 688 Not applicable 7 530 (est)Family 673 931 270 796 2 103Handicapped Child 5 477 2 223 497Double Orphans 1 255 1 392 184

769 402 295 128 16 055

There are no equivalently detailed figures for unemployment, sickness or special benefits.

2.006 In the year 1978-79 there was a significant increase in the volume of work handled by the Department. This resulted mainly from the growth in the pensioner and unemployment beneficiary population, but also reflected the introduction of more regular and systematic reviews of entitlement. The number of staff rose from 9991 at 30 June 1978 to 11368 at 30 June 1979. The Department has offices in all States and mainland Territories and has embarked on a large scale program to further decentralise. The geographical distribution of offices can be seen on the following page - Exhibit 2.3. Such a distribution of offices makes it very difficult to achieve consistency in decision making unless there is adequate central co-ordination of aims and methods. Another factor related to the wide distribution of offices, which may increase the chances of inconsistencies, is the attitude of regional office managers to, e.g. the value of pre-grant interviews, the policing of provisions, and the training of local officers. The distance

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between such offices and central offices and the distances between regional offices themselves must tend to isolate (the average distance between offices in Western Australia, Northern Territory and Queensland is 200-300 km) and create individual images in the eyes of the claimants. Offices do gain reputations for being 'tough' or 'easy' etc.

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TABLE 3Department of Social Security Offices

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2.007 The characteristics of regional offices are a product of many factors. Offices which have a great number of claims to process would necessarily find less time to devote to fact finding. Counter staff who have a continual line of claimants before them are placed under pressure both to get through the work and to satisfy the expectations of the people they serve. Numbers of clients from different ethnic backgrounds also tend to slow down the process due to the officers' inability to assist because of language and cultural differences and, in turn, the claimant's inability to assist the office on his own behalf. The introduction of Migrant Liaison Officers will no doubt alleviate some problems in this regard.

2.008 Apart from the practical problems mentioned above, there are inherent difficulties in the administration of the social services legislation which are exacerbated by the wide distribution of DSS offices. The Act has been. written so as to provide for discretions in many areas. The words of the statute are general words with wide meaning. This allows flexibility for the administration of the Act but must increase the possibility of inconsistency in application of provisions. The Manuals, designed to assist officers in the application of the Act, can go only so far, and they, like the Act, are open to different interpretations. Some guidelines in the Manuals might not help at all, e.g. what does 'more or less on friendly terms' mean in any given case (Pensions Manual 8.1(b)). As indicated in Part 1, the Manual is silent on some matters which are required to be determined when dealing with claims for payments. Many persons actually implementing the provisions of the Act are young and relatively inexperienced - see Part 3 paragraphs 3.004-3.005. This again must increase the chances of inconsistency and incorrectness of decision making.

2.009 At present the SSATs handle the volume of appeals by using very informal methods. The view has been expressed by tribunal members that if the SSATs were to be given the power to decide, as opposed to recommend, then the current procedures could no longer be regarded as adequate (see paragraph 3.136 below). SSATs do not travel to any great extent to hear cases. The appropriation for travel for all tribunals in the financial year 1979-80 was $3600.

2.010 With the 1977 proposal now brought into force, appeals go to the AAT in cases where the SSAT has recommended action which the Director-General has rejected. The number of such cases for 1978-79 was 238, with cases arising in all States and Territories except Queensland and the Northern Territory. In 1977-78 the figure was 579 with cases in all States and Territories. The spread of DSS offices as illustrated in the map (Exhibit 2.3 referred in paragraph 2.006 above) shows that an appeal can come from anywhere in Australia. The distances involved are immense. The possibility of appeals from remote areas of Australia pose problems for any tribunal.

2.011 Exhibit 2.4 below sets out the numbers of appeals and the way in which they were dealt with, for all years since the SSATs were established.

EXHIBIT 2.4Statistics on Appeals 1975-79

The following statistics relate to four periods: 10 February 1975 (when the SSATS were instituted) to30 June 1976, and for the following three financial years. It was not until part way

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through the year 1976-77 that separate statistics were kept on cases where recommendations of SSATs were not accepted by DSS. For ease of comparison statistics for 1975-76 and 1976-77 are set out in one table, 1977-78 and 1978-79 in another.

The tables give numbers where the significant point is the volume of work. Percentages are used where the significant point is analysis of the work.

'Appeals finalised' means the number of appeals (whether or not lodged during the year in question) which were finally disposed of whether with or without an SSAT decision. 'Upheld by DSS prior to SSAT' covers appeals where the Department changed the decision appealed in favour of the claimant before the appeals were considered by the SSATs as a percentage of Appeals Finalised. 'Upheld after SSAT' covers appeals in which SSATS made favourable recommendations which were upheld by the Department as a percentage of Appeals Finalised. 'Total upheld' is also a percentage of Appeals Finalised.

The four later columns examine the disposal of appeals by SSATs and the way in which they were treated by DSS. The percentage figure given for 'Upheld by SSAT but dismissed by DSS' is a percentage of the number upheld by SSATS and nota percentage of the appeals decided.

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EXHIBIT 2.41975-76 and 1976-77(1975-76 figures cover the period 10.2.75-30.6.76 and are in italics)

Appeals Finalised Work of SSATsAppeals No. of Upheld Upheld Total Appeals Upheld Upheld byLodged Appeals by DSS by upheld decided by SSAT SSAT butwith final- prior SSAT (%) (No.) (%o) dismissedSSATs ised to SSAT (%) by DSS(No.) (%) (%) (No.)

N.S.W. 2 701 3 634 68.7 6.5 75.2 8024 801 4 215 70.5 7.4 77.9 901

Qld 4 871 4 788 42.4 4.6 47.0 2 3543 826 3 938 51.4 11.5 52.9 1 582

SA. 1 216 1376 37.4 13.2 50.6 7051524 1295 41.5 8.9 50.4 661

Tas. 494 534 27.7 8.7 36.4 338401 407 49.4 3.7 53.1 190 (NOT AVAILABLE)

Vic. 5 330 5 655 40.8 6.9 47.7 3 2675 811 5 841 64.3 4.0 68.3 1 957

WA. 1880 1822 39.6 7.3 46.9 9531641 1509 41.7 4,7 46.4 833

A.C.T. 173 217 39.1 38.8 77.9 46226 167 49.7 18.6 68.3 70

N.T. 42 64 54.7 18.1 72.8 1781 47 36.2 24.8 61.0 24

Australia 16 708 18 090 46.4 6.8 53.2 8 48218 311 17 426 58.7 4.8 63.5 6 217

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EXHIBIT 2.5 (CONT.)1977-78 and 1978-79(1977-78 figures are in italics)

Appeals Finalised Work of SSATsAppeals No. of Upheld Upheld Total Appeals Upheld Upheld byLodged Appeals by DSS by upheld decided by SSAT SSAT butwith final- prior SSAT (%) (No.) (%) dismissedSSATS ised to SSA T (%) by DSS(No.) (%) (%) (No.)

N.S.W. 1760 2186 36.3 19.6 55.9 1 218 44.4 153 28.33 44 7 3 091 44.4 12.3 56.7 1 392 46.1 323 50.3

Qld 2 904 3 045 31.3 12.4 43.7 1 786 21.2 - -5 729 5 871 31.5 7.3 38.8 3 608 13.8 78 15.6

SA. 1033 1090 31.7 19.0 50.7 678 37.0 37 14.71534 1493 32.3 16.0 48.3 913 32.2 60 20.4

Tas. 350 366 17.2 12.0 29.2 285 16.5 3 6.4440 448 23.2 6.5 29.7 324 10.8 6 17.1

Vic. 2 241 2 395 22.1 11.9 34.0 1 803 17.3 28 9.04 049 4 674 26.7 7.2 33.9 3 421 13.1 91 20.3

WA. 876 958 37.8 14.0 51.8 474 30.6 14 9.71705 1776 40.7 7.8 48.5 968 14.8 4 2.8

A.C.T. 85 99 48.5 7.2 55.7 42 33.3 3 21.5130 120 44.2 7.5 51.7 55 38.2 15 71.4

N.T. 63 61 34.4 15.2 59.6 32 40.6 - -50 49 28.6 14.3 42.9 22 36.4 2 25.0

Australia 9 312 10 200 30.5 14.6 45.1 6 318 26.9 238 14.017 084 17 522 33.4 8.9 42.3 10 523 19.6 579 28.1

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APPENDIX 5 - PART 3CURRENT PROCEDURES FOR DECISION MAKING AND REVIEW

3.001 This part presents the results of the Secretariat's research and states the procedures relating to the relevant legislation in use as at 31 January 1980. Procedures which have now been replaced or which are proposed for the future are discussed where, in the light of current procedures and the proposals for reform made in the Council's Report, it appears to be desirable.

Making the Primary Decision

3.002 This discussion of primary procedures is not comprehensive. It relates, in general, only to those aspects which have a special bearing on review mechanisms.

3.003 The most important decision is the primary decision. Where social security payments are a person's sole source of income, an incorrect decision (even though subsequently rectified) can have substantial deleterious effects. Absence of income might mean that a person cannot eat or may lose his or her home, so multiplying the problems of surviving in society. The characteristics of the decision makers and the procedures they operate affect the likelihood of the correct or preferable decision being made, the attainment of which is the primary aim of decision making, and thereby affect the number of appeals.

The Decision Makers

3.004 The volume of decisions and the decentralisation of DSS require extensive delegation pursuant to section 12 of the Act. Over the years there has been a steady movement pushing delegations down to lower levels. At present, determining officers are: Clerk Class 6 - age, invalid, wife's and widow's pensions. Clerk Class 4 - family allowance and double orphan's pensions, unemployment, sickness and special benefits, handicapped child allowance.

Determining officers are assisted by other officers generally of one grade lower who assemble the material for decision, conduct interviews, review the file and prepare a 'draft' decision. These assistants will be called 'assessors' here, though the specific title of an officer may vary with the area of decision.

3.005 In a Department as large and decentralised as DSS, there are wide variations in the social security experience of assessors and determining officers. Officers of class 4 level and below tend to be inexperienced. Thus, in one regional office with a traditionally high turnover of staff, clerks class 2/3 (U and SB assessors) were aged 18-24 years and had an average 3 months experience. Clerks class 4 (U and SB determining officers) were aged 20-25 years and had an average 12 months experience. A more stable suburban regional office had class 2/3 clerks aged 20-25 with an average3 years experience and class 4 clerks aged 24-30 with an average 5 years experience. A country regional office had officers with an average 18 months to 2½ years experience in its clerks class 2/3 and an average 4 to 6 years experience for class 4 officers. This comparative lack of experience naturally tends towards making decisions which lack the mature reflection which would be found in more senior officers or in members of tribunals.

3.006 Senior officers of DSS consulted by the Secretariat who discussed classification of assessors and determining officers were of the view that the present classifications of officers in unemployment and sickness benefits areas were too low, and that there would be an improvement in decision making, that is, more correct or preferable

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decisions would be made, were the classifications raised. Raising classifications would not, in the opinion of those officers, increase the rate of decision making. Justification for raising classifications is the inherent complexity of the task and responsibility of determining officers. The added cost may be set off against the benefits of more correct decision making and savings in payments to people not entitled to payment. Further, if raising classifications were to result in more correct or preferable decisions being made, there would be a consequent reduction in the number of appeals. While improved primary decision making is an aim of an appeal system and the number of erroneous decisions affects the determination of the appropriate appeal process, it would not be appropriate for the Council to make any recommendation on classification of officers.

3.007 It was generally accepted by DSS officers consulted that the decentralisation of the Department contributed to improved decision making by improving access of claimants to decision makers and, through that, increasing the fund of knowledge upon which decisions are made. This too promotes more correct or preferable decisions and therefore fewer appeals.

3.008 Identifying the characteristics of the decision makers is more difficult in relation to unemployment benefit. The DSS Unemployment and Sickness Benefits Assessors Manual (hereafter the U and SB Manual) provides:

14.101 Officers of the Department of Social Security should not, except in response to an appeal decision (i.e. after receiving a tribunal recommendation) reverse any assessment of eligibility made by CES officers based on work testing of applicants (or beneficiaries). This does not prevent an officer discussing the matter with the CES. Where it would be appropriate to change a work test assessment in the situation mentioned the decision to do so should be taken only by an officer with the necessary delegation i.e. in general S.A.D. (Benefits) and above. [Senior Assistant Directors (Benefits) are senior officers in State Headquarters ranging in classification from class 8 in Tasmania to level 1 of the Second Division in New South Wales and Victoria].

14.1 13 Where the CES concludes that a person is not seeking work he will report the matter to the Department of Social Security on a form SU44.

14.1 14 The Registrar will take immediate action to reject or terminate benefit where the CES reports that a person is ineligible for benefit due to failure to comply with the work test. It is the function of the Employment Office Manager to decide where the work test has been breached and the Registrar will accept the matter as reported by him.

(The 'work test' is the application of sections 107(1)(c) and 107(4) of the Act). It is unlawful for the respository of a statutory authority to exercise his authority 'under dictation', that is, to make a decision, which ought to have been based on the exercise of independent judgment, but which is dictated by a person not entrusted with the power to decide (see generally R. v. Anderson, ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177). Without there being a delegation to CES officers under section 12 of the Act (which would in turn require changes to existing procedures), therefore, actions taken by DSS officers pursuant to the above instructions may be unlawful. The validity of such decisions may affect the Council's conclusions as to the review structure to be proposed.

Procedures for Decision Making

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3.009 These are not identical for all areas of decisions, though there are many common features.

Age, Invalid, and Widow's Pensions

3.010 There is ordinarily an interview with an assessor before it is decided whether to grant a pension. The interview normally takes place at the DSS regional office, though home visits for interviews may be made where necessary. An interview is supplementary to the form of application for pensions and is intended to verify the information in the application and to investigate in more detail certain aspects such as income. The claimant is not normally put on oath or affirmation, though there is power to do so if necessary (section 16 of the Social Services Act). The information supplied by the claimant is reduced to writing and signed by both claimant and interviewing officer. The Pensions Manual prescribes that 'interviews are not to be conducted in a court room atmosphere and, while the claimant does not need "professional" support, he may take any person he chooses to the pension interview' (Instruction 2.1(c). The file on the claimant is passed on to the determining officer who checks for omissions, inconsistencies, or matters on which further information may be necessary, and, where appropriate, makes a decision. There will be occasions where the case is specially complex and it is passed up to a more senior officer for decision. In practice decisions are notified as decisions of the manager of the DSS regional office. The decision is in law that of the officer in his particular official capacity; it is not a decision as alter ego of the Director-General or regional manager (Re a Reference under section 11 of the Ombudsman Act, ex parte Director-General of Social Services (1979) 2 ALD 86 at pp. 94-96. Such a decision, if signed as made on behalf of the Director-General or any other officer, is invalid.

3.011 Review of a pension under section 14 of the Act arises from the annual income statements furnished by claimants, or from information derived from external sources. Where further information is required, it is normally obtained by a field officer visiting the claimant. Field officers are clerical assistants in the range of grades 4 to 7 ($9941-$13 268 as at 31 January 1980) and sometimes higher. The field officer's report is added to the claimant's file which is examined by an assessor before a decision is made by the determining officer.

3.012 Although there are instructions devised by the various State Headquarters governing the actions and attitudes of field officers, these are not always adhered to (the case of a Brisbane woman reported to the Senate [Commonwealth Parliamentary Debates (Senate), 8 May 1979, pp. 1702-1708] is one of a large number of complaints on this subject). One DSS officer of a regional office observed that the field officers in the rural part of his area 'love to catch people out' but those in the urban part of his area have a different orientation to their work. The nature of field officers' work is such that they are likely to be criticised no matter how carefully they perform their work. It has not been established that DSS field officers do not, by and large, perform their difficult task conscientiously and with proper regard to the people with whom they are dealing.

3.013 A record of interview with the claimant is taken down by the field officer, and the claimant is asked to sign it as correct. Many such interview records are either too brief or are so obviously phrased in the words of the field officer and not of the claimant that their evidential value before SSATs (if not DSS officers) is reduced. This variation of procedure and attitude tends towards an uneven quality of primary decisions.

Unemployment Benefit

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3.014 The procedure for making decisions on unemployment benefit has been different from pensions. Until recently, interviews upon the grant of the benefit were not routine in DSS. The procedure was changed. following the Myers Inquiry - Inquiry into Unemployment Benefit Policy and Administration, Dr D.M. Myers (Canberra, AGPS, July 1977) - see paragraph 5.6.3 of that Report. Now, almost all regional offices conduct pregrant interviews in almost 100% of claims, with post-grant interviews in the remainder where the claimant is not within a reasonable distance of a DSS office. The procedure is for a claimant first to register with CES and there complete an application for unemployment benefit. He is interviewed by CES as part of the work test at this point (see paragraphs 3.008 above and 3.020-3.024 below). In particular, CES will assess whether the claimant has moved to an area remote from employment opportunities and thereby shown that he is not taking reasonable steps to find work. The claimant is subsequently interviewed by a DSS assessor and lodges his first income statement/application for payment.

3.015 Pre-grant Interviews. The DSS interview is intended to ensure that all information necessary to make a decision has been obtained and to investigate further whether the claimant has left his or her previous employment voluntarily or owing to misconduct as a worker. The U and SB Manual states that a further purpose of pre-grant interviews is 'to satisfy any enquiries the claimant might have' (Instruction 1.251). The interview provides an opportunity for the services provided by DSS to be explained and for the claimant's rights and responsibilities to be spelt out. Interviewers are required to give each claimant a standard form (see Exhibit 3.1 on the following page) on rights and responsibilities.

3.016 The conduct of pre-grant interviews varies widely. A major element in the variation appears to be the importance the manager of the regional office places on the interviews. Officers consulted by the Secretariat indicated the range of time spent in the interviews. At three New South Wales offices the time was 2 to 3 minutes, except where an issue of postponement under section 120 arose. The manager of one of those offices admitted that such mechanical interviews were not satisfactory. In South Australia and Queensland usual times of 10 to 15 minutes were stated by DSS officers. Perfunctory or badly conducted interviews are likely to contribute to the alienation of claimants from DSS which it is one of the aims of interviews to prevent.

3.017 Varying assessments of the success of pre-grant interviews were given by officers. Most were of the opinion that the interviews were desirable and effective in reducing complaints and appeals because the claimant knew his responsibilities. In one South Australian office, pre-grant interviews were said to have resulted in 'more educated appeals' because claimants were more familiar with their rights. The only positive effect ascribed at one New South Wales office was that it saved follow-up letters. One Queensland officer stated as an advantage that 30% of claimants did not appear at the interview time, from which he concluded that interviews had helped eliminate potential payments to unentitled people. On the other hand, a Tasmanian officer doubted the efficacy of interviews in eliminating fraud but thought they were good for public relations and passing on information and understanding of the system to claimants.

3.018 Two sides on the desirability of pre-grant interviews are represented by Professor Ronald Sackville and a senior DSS officer. Professor Sackville in the Poverty Commission's Second Main Report: Law and Poverty in Australia (AGPS, 1975) p.174, stated in relation to pensions interviewing that 'the major problem created by the interviewing procedure is simply the delay, duplication and inconvenience caused by insisting on a personal interview in all . . . cases'. He suggested having interviews only in doubtful cases. A DSS officer, on the other hand,

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saw the major problem of not interviewing as being that the assessors and determining officers never saw the claimant and so could distance themselves from the claimant and view him or her as a cipher, especially where that officer was not called upon personally to defend the decision. While the criticisms of Professor Sackville might be accurate, they can to a large extent be overcome by administrative arrangements for interviewing. They are submitted, in any event, to be outweighed by the advantage that the interview, if properly conducted, provides an excellent vehicle for educating claimants as to their rights and responsibilities in the social security system, so enabling claimants to avoid, inter alia, falling unwittingly into disentitlement.

3.019 Pre-grant interviews are functionally related to notification of reasons for decisions and rights of appeal. The pre-grant interviews provide preventive information; notification of decisions provides remedial information. In discussion with the Committee on Administrative Discretions (the Bland Committee), DSS submitted that there were problems with notifying in advance the matters to be satisfied by the claimant (minutes of discussion on 9 May 1972 p.9). The Department's experience has, however, demonstrated that these can be overcome. Better information available to claimants and decision makers should mean that more correct or preferable decisions are made and thereby the number of appeals is reduced.

3.020 CES Procedures and Work Testing. Information relating to the work test may be transmitted to DSS by a formal work test report (form SU44) or by a liaison form '225'. Only formal adverse SU44s fall within DSS Instruction 14.101 (see paragraph 3.008 above). Work testing may take place after the initial interview for grant of benefit, upon lodgment of an income statement, or following a job contact arising from CES action.

EXHIBIT 3.1: SHEET HANDED OUT AT PRE-GRANT INTERVIEWS FOR UNEMPLOYMENT BENEFIT

This example is from Adelaide

Unemployment Benefit Information Sheet

IF you are granted unemployment benefit, THEN

You will receive your first cheque by mail. You will have to make arrangements with your bank to have it cashed.

ALL 'APPLICATION FOR CONTINUATION OF UNEMPLOYMENT' forms will be forwarded with your cheque and you must lodge them at the Commonwealth Employment Service, ON THE DATE shown on the form.

Failure to lodge the form on this date will delay payment. If lodgment is delayed more than 2 days, without good reason, payment may be stopped for 2 weeks.

So that you understand your obligations regarding unemployment benefit, you are strongly advised to read BOTH SIDES of your Application for Continuation of Unemployment Benefit form. Failure to advise required information could result in a fine.

Persons making false or misleading statements to obtain Benefit could face heavier fines or even imprisonment.

To remain eligible for unemployment benefit, you must seek work on your own behalf, as well as comply with Commonwealth Employment Service requirements.

Whilst receiving unemployment benefit, you may be visited at home by a Social Security Officer. These are routine visits to:

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(i) review your claim for benefit, and(ii) to ensure you receive the correct benefit.

You are also reminded that if you are dissatisfied with any decision made by the Department you should immediately contact the Review Officer in the office which handled your claim who will review the decision made.

An Interpreter Service is available by prior arrangement if required. A Social Worker or Welfare Officer is available in the following offices: Elizabeth,

Port Pirie, Morphett Vale, Berri, Glenelg and Port Adelaide, should you require this service.

J A MUNCHENBERGA/g DIRECTOR

3.021 Following the recommendation of the Myers Inquiry (Report paragraph 5.3.67), CES Instructions are that no formal adverse work test report by form SU44 is to be sent to DSS unless the claimant has been called in to be interviewed on the information which might give rise to the report and given an opportunity to rebut or explain that information (paragraphs 32-34). Some CES offices always call in the claimant for a special interview while others note his or her card so that there is an interview when the next income statement/application for payment is lodged. Where the claimant presents further information, that information should be recorded on the form and the claimant's signature obtained. If a claimant fails to attend the interview with CES an SU44 may be transmitted with appropriate notation. The interviewer has no power to issue a formal adverse SU44; only the office manager or senior executive officer has that authority (Instructions, paragraph 35).

3.022 There is variation among offices on when a formal adverse SU44 is issued. Much depends on the attitude of the office manager towards work testing. It was generally accepted in offices visited that there was no work testing where the claimant uses CES's 'self-service' job boards (as distinct from CES 'matching', i.e. where CES selects a job for a claimant). Though a number of officers affirmed in principle the right to work test self service usage, none had ever done so. The reasons given for this abstention were that work testing on self-service was impracticable and that use of self-service indicated a reasonable attempt to find work and satisfied the work test even though the claimant may have turned down an offer of a job so found. Secondly, most CES offices have accepted the requirements of SSATs and now only '44' where, in their view, there are clear facts to sustain the decision on appeal. In a number of offices in Victoria the position was stated that a formal adverse SU44 will only be transmitted where the claimant agrees to the facts. More often officers said they would '44' where there is a conflict of evidence but only where there are very good grounds for disbelieving the claimant, e.g. because he has a history of rejecting jobs. Some officers consulted indicated that they would transmit a formal adverse SU44 when, on the balance of probabilities, it was more likely than not that the claimant's account was incorrect.

3.023 This variation in issuing formal adverse SU44s is compounded by inconsistency in the form used for setting out conflicting stories of employer and claimant or unsubstantiated adverse information. CES Instructions paragraph 35 state that SU44s are to be used only for adverse work tests, but there is some evidence that this is not being followed universally. 'Non-adverse' SU44s or the liaison form 225 are used in various ways. There is evidence from appeals heard by the New South Wales SSATs that some DSS officers subsume all SU44s containing any adverse material to SU44s formally designated as adverse by CES, and so apply Instruction 14.101 to them incorrectly. It is DSS and CES intention that non-adverse SU44s which contain some adverse material, as well as 225s containing adverse

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information, should not be acted upon automatically but should be subjected to a further investigation by DSS officers. If the forms are relied upon exclusively and payment refused or cancelled without investigation then the primary decisions could well be erroneous, and there might well be a failure of natural justice.

3.024 One of the problems of the partnership between DSS and CES is that claimants are often confused as to the role of the two agencies. This was noted by the Norgard Committee (The Review of the Commonwealth Employment Service, Canberra, AGPS, July 1977 - Report paragraphs 2.4-2.6) and led it to propose a change in the role of the CES aimed partly at removing or reducing that confusion (see paragraphs 2.36-2.38 of the Report). The same confusion was found by the Market Research Report by Max Stollznow Research Pty Ltd for the CES Community Project Western Suburbs Sydney (1979) (see especially the report pp. 49 and 69). Although that report did not relate to review of social security decisions, but to employer and CES client views of the CES, the material in the report provides a strong basis for the inference, supported by agencies dealing with the unemployed, that the confusion of CES and DSS roles can discourage claimants from pursuing their complaints. The confusion is made worse by the way in which internal review of unemployment benefit decisions is handled (see paragraphs 3.075-3.077 below). Both cases before SSATs and the research of Mr G. Brewer ('Rough Justice', Brotherhood of St Laurence, Melbourne, 1978) suggest that the divided responsibility for unemployment benefit and its resultant confusion have given rise to erroneous decisions.

3.025 Reviews. Review of unemployment benefit does not exist in the same sense as for pensions, since the benefit is a fortnightly one. Claimants are required to apply for continuation of payment on a form containing an income statement which is to be lodged personally at the local CES office. Failure to lodge an income statement results automatically in suspension of payment (since the form lodged becomes the basis for computer input stimulating despatch of a cheque) and ultimately in cancellation. A review may, however, be undertaken at other times following receipt of information suggesting disentitlement. Most commonly that information would come from CES in the form of a work test report. Unemployment benefit may also be reviewed where external information suggests that a claimant is no longer eligible (e.g. is in employment) or eligible only at a reduced rate (e.g. a spouse has left the matrimonial home). Enquiries following such information are generally made by field officers making visits to the home and friends or acquaintances of the claimant.

3.026 There are also regular reviews by field officers undertaken at varying intervals following a numerical formula in Benefits Branch Instruction 1979/66. These reviews are required to take priority over other field officer work (Director-General's telex to State Directors of 23 March 1979). The criteria taken into account in determining review frequency are the length of time at the current address and length of time in jobs during the past 2 years, work prospects of claimant and spouse, and the assessor's rating of review frequency. Frequent changes of address and job are weighted numerically to lead to more frequent reviews. A series of random sample questionnaires also being administered by DSS may give rise to decisions cancelling or varying the rate of benefit.

Sickness Benefit

3.027 DSS is moving towards pre-grant interviews for this benefit. These naturally take place in the claimant's home or hospital. Interviews for sickness benefit are more labour intensive than interviews for unemployment benefit and also require different skills in an interviewer. For these reasons interviewing had fallen short of 100% in the regional offices visited. In the absence of interviews, decisions are made on the basis of the application form and medical certificate in support of the

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application. Gaps in information are filled by written enquiry or field officer visits depending upon their nature. Like unemployment benefit, sickness benefit is periodical and an application for continuation of payment coupled with a further medical certificate is required when the period provided for in the previous certificate expires. Reviews arising from external information are conducted similarly to other payments.

Special Benefit

3.028 Pre-grant interviews of all applications are undertaken except where the applicant is being transferred from another benefit because she is pregnant. Grant of special benefit is in that case made upon production of a medical certificate. Because special benefit is designed for hardship cases, the aim is to interview the claimant and furnish payment the same day, i.e. payment is commenced before the claim has been fully checked. There are two general exceptions to this 'same day' service: where the applicant has given up his or her job to care for a relative, and where benefit is being sought in substitution for a migrant's maintenance from a guarantor (Migration Regulation 22, see Part 1, paragraphs 1.062-1.063 above). Reviews are undertaken both on a regular basis and as a result of external information. The process of review is similar to other social security payments.

Family Allowance (Child Endowment)

3.029 The grant process is conducted entirely on paper. The application form provides the necessary information for birth and other records to be checked. Investigations generally occur only where the application is lodged out of time and it is necessary to establish special circumstances before the grant will be backdated. Investigations are conducted by correspondence. Reviews are undertaken automatically when a child turns 16 years or where information is received that a child is no longer in Australia. Correspondence is the vehicle for review.

NOTIFICATION OF THE PRIMARY DECISIONIncidence of Notification

3.030 DSS instructions are that every adverse decision is to be notified in writing to the claimant concerned. This is largely but not completely achieved, the extent of notification varying among the States and types of payment.

3.031 In principle, all adverse decisions are notified to the claimant in writing, as well as orally where the decision is clear at the time of an interview. Written notification is made either by typed letter or computer-printed statement. Cessation of payment because of failure to lodge an income statement/application or medical certificate/application for payment is not normally notified. There may be other common situations where decisions are not in fact notified. Thus, despite CES Instruction 10.105(c), SSATs experience suggests that where a CES office refuses to accept a late-lodged income statement, DSS might only be notified that no statement was lodged and not of the reason for the failure to lodge. In such cases no payment would be made and the incident would not be recognised as one of making an adverse decision.

3.032 In a Department as large and decentralised as DSS it is not possible to ensure that instructions on notification are always followed. The problem is how to reduce or eliminate the incidence of non-notification. The survey in `Rough Justice' (op. cit.) found that no notification was given in a large percentage of cases (p. 49), though it should be noted that 17.9% of the sample were cases of termination for failure to

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lodge an income state me nt/application for payment. A significant incidence of non-notification was also noted in the Report of the Law Council of Australia's Committee on the Underprivileged and the Law, 'Social Security Appeals' (1977), p. 3. At one regional office the Secretariat was informed that there was no notification of decisions not to pay unemployment or sickness benefit at the full rate. A DSS survey of the work of Review Officers (hereafter ROs) revealed that 3% of all RO contacts in the period surveyed concerned cessations of payment for non-lodgment of income statements/applications or medical certificates as distinct from non-arrival of cheques. To this must be added the similarly sized flow of appeals on this ground lodged directly with SSATs. Assuming that the survey figure accurately reflects the full picture (and information from the DSS Canberra Office [which was not in the survey] suggests a greater figure) it would appear that at least 500 complaints per annum arise on this ground. The Secretariat has been informed that a new computer system, to be introduced, should overcome the problem of non-notification.

3.033 In a number of situations the Act specifies the date on which a termination is to take place. Where notification of postponement, termination or suspension of payment is given, the decision relates to the entire fortnightly period within which the decision is made. If the decision is made on day 1, then it has effect from that day. If the decision is made on days 2-14, it has retrospective effect back to day 1 unless it is specifically decided otherwise. As far as the Secretariat is aware, advance notification of a decision is given only for cancellations of payments for cohabitation, and also in Western Australia for postponement of unemployment benefit on the ground that the claimant left his or her previous job voluntarily. The CES instruction to allow a claimant to rebut information suggesting that an adverse work test report should be made (see paragraph 3.021 above) might also be regarded as an advance notification of decision.

Notification of Reasons

3.034 Notification should state the reasons for the decision. Social Security Appeals System: Principles and Procedures (1979), the DSS instructions relating to appeals ('Appeals Procedures'), prescribes that 'full reasons' are to be given inter alia, for refusals to grant, postponements, suspensions, terminations, changes of rate of payment and payment at less than the maximum rate (Instruction 1.2). Despite this instruction, in the experience of SSATs and on the basis of notifications seen by the Secretariat, reasons which are given tend to be uninformative. (See also 'Rough Justice' [op. cit] pp. 46-50.)

One DSS State Director, responding to a draft of the Council's First Consultative Paper, stated that opaque reasons are 'strenuously discouraged'. However, it is apparent from discussion with DSS officers that reasons considered to be 'full' by DSS officers fall short of what was considered adequate by the Law Council Committee in its Report (op. cit., p.3) or the Administrative Review Council in its Second Consultative Paper (paragraph 12). Standard letters in New South Wales concerning 'voluntary unemployment', for example, merely recite that in the opinion of the Department the claimant is voluntarily unemployed. Greater detail is provided by computer produced notices in pension matters where the amount of payment is varied because of the claimant's income. Two examples of notification are set out in Exhibits 3.2 and 3.3 on the following pages. Computer production, therefore, does not necessarily prevent adequate reasons being given with notification. Reasons such as those in the standard New South Wales letter relating to voluntary unemployment are inadequate, since they not only provide no real information, but also leave the claimant with a grievance that he has not been told why his reason for ceasing work was unacceptable. A number of DSS officers consulted agreed that statements of reasons could be improved.

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3.035 Reasons such as would satisfy section 13 of the Administrative Decisions (Judicial Review) Act 1977 are not here suggested, but greater detail than that provided at present could be given by computer without storing a massive library of alternative sentences with a complex alpha-numeric key (this was the view expressed in responses by DSS's ADP officers to the proposals in a draft of paragraph 12 of the Council's First Consultative Paper). If individual treatment is necessary to give adequate reasons, it could be provided. In the view of one senior DSS officer consulted, better reasons would not require significant extra staff, but only better training, experience, and encouragement by the regional manager. The experience of DSS Review Officers and of officers at the equivalent stage of review in the United Kingdom Supplementary Benefits Commission supports the proposition that better reasons reduce the number of dissatisfied claimants and accordingly reduce the incidence of lodgment of inappropriate appeals.

3.036 Written reasons may on occasions be supplemented by oral statements of reasons. Oral reasons are not a substitute for written reasons, though they are a valuable supplement to the latter.

3.037 The Department has informed the Secretariat that it is now working on means of overcoming the defects set out above.

Notification of Rights

3.038 Before the inception of the SSATs, there was no routine notification of appeal rights under section 15 of the Act (see R.W. Hughes 'The Social Security Appeals System' (1975) 2 Social Security Quarterly 8). Notification of adverse decisions is now to contain a statement of the claimant's rights both to seek review by a Review Officer (see below and paragraph 3.039) and to appeal to an SSAT (Appeals Procedures, Instruction 1.4). The standard notice of rights set out in the Instructions (form TRIM no longer appears to be used. Notifications by letter contain the notice of rights as one paragraph. The paragraph follows the text contained in the Director-General's memorandum of 21 April 1978 on the establishment of ROs:

If you are not satisfied with this decision you now have the right to put your case before a Review Officer, a senior officer of the Department of Social Security who has not previously handled your case and will be pleased to make an independent review of the decision in the light of any facts you put to him. The Review Officer for this Office is Mr (telephone) and you can, if you so desire, either call and put your case to him in person, or write to him and ask

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EXHIBIT 3.2: STANDARD LETTER IN NEW SOUTH WALES NOTIFYING POSTPONEMENT OF

UNEMPLOYMENT BENEFIT FOR VOLUNTARY UNEMPLOYMENT

Dear

With reference to your claim for unemployment benefit, you are advised that Section 120 of the Social Services Act provides that:

'The Director-General may postpone for such a period as he thinks fit the date from which an unemployment benefit shall be payable to a person, or may cancel the payment of an unemployment benefit to a person, as the case requires:

(a) if that person's unemployment is due, either directly or indirectly, to his voluntary act which, in the opinion of the Director-General, was without good and sufficient reason;

(b) if that person's unemployment is due to his misconduct as a worker;(c) if that person has refused or failed, without good and sufficient reason, to

accept an offer of employment which the Director-General considers to be suitable.'

An investigation of your claim for unemployment benefit has shown that you ceased work voluntarily. The reasons given by you for leaving the position have been given careful consideration, but the view is taken that you are voluntarily unemployed without good and sufficient reason. As you fall within the above mentioned category it has been decided to postpone payment of your unemployment benefit for a period of weeks, from ……… to …………

Payment of benefit will commence from ………. subject to continued eligibility and registration with the Commonwealth Employment Service.

An application for continuation of unemployment benefit will be sent to you each fortnight. Providing these are returned to the Commonwealth Employment Office at which you are registered on the date shown at the top of the form, entitlement to unemployment benefit will continue for the period of your postponement ensuring that payment can be made to you as soon as possible after the expiration of this period.

If you are not satisfied with this decision, you now have the right to put your case before a Review Officer, a senior officer of the Department of Social Security who has not previously handled your case and will be pleased to make an independent review of the decision in the light of any facts you put to him. The Review Officer for this office is Mr ………… (telephone …………… ) and you can, if you so desire, either call and put your case to him in person, or write to him and ask him to review the case on grounds stated in your letter. In either event, he will let you have a quick decision and explanation. If you are still dissatisfied with the decision given by the Review Officer, it will be open to you then to ask that the matter be referred to a Social Security Appeals Tribunal.

Yours faithfully,

(R. DOWELL)Director

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EXHIBIT 3.3: COPY OF SAMPLE COMPUTER NOTIFICATION FROM N.S.W.

DEAR MADAM,

THE RATE OF YOUR AGE PENSION HAS BEEN REDUCED BECAUSE YOUR INCOME HAS INCREASED. YOUR FORTNIGHTLY RATE HAS BEEN VARIED FROM $106.40 TO $104.90 FROM 26 APRIL 1979. SUPPLEMENTARY ASSISTANCE IS ONLY PAYABLE TO THOSE PERSONS WHO PAY RENT OR FOR LODGINGS AND WHOSE TOTAL INCOME IS WITHIN CERTAIN LIMITS. YOU ARE NOT ENTITLED TO SUPPLEMENTARY ASSISTANCE BECAUSE YOUR INCOME EXCEEDS THE PER-MISSIBLE LIMIT.

AGE PENSION IS PAYABLE SUBJECT TO AN INCOME TEST BUT SPECIAL PROVISION HAS BEEN MADE TO ENSURE THAT SINGLE PENSIONERS AGED 70 YEARS AND OVER ARE PAID A MINIMUM PENSION OF $102.90 A FORTNIGHT. UNDER THE INCOME TEST YOU QUALIFY FOR THE HIGHER RATE OF $104.90.

YOU ARE ALSO IN RECEIPT OF FRINGE BENEFITS, E.G. PENSIONER HEALTH BENEFIT, WHICH IS SUBJECT TO AN INCOME TEST.

IF OVER ANY 8 CONSECUTIVE WEEKS YOUR AVERAGE INCOME INCREASES YOU MUST NOTIFY THE DEPARTMENT WITHIN 14 DAYS OF THE END OF THAT PERIOD.

IF YOU WOULD LIKE MORE DETAILS ABOUT THIS ASSESSMENT, OR WE CAN HELP YOU IN ANY OTHER ASPECT OF SOCIAL WELFARE, PLEASE GET IN CONTACT WITH US AT THE ABOVE ADDRESS.

PLEASE REFER TO THE BACK OF THIS ADVICE. THE REVIEW OFFICER REFERRED TO CAN BE CONTACTED ON THE TELEPHONE NUMBER SHOWN ABOVE.

YOURS FAITHFULLY,

REGIONAL MANAGER

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him to review the case on grounds stated in your letter. In either event, he will let you have a quick decision and explanation. If you are still dissatisfied with the decision given by the Review Officer, it will be open to you then to ask that the matter be referred to a Social Security Appeals Tribunal.

3.039 Computer produced notifications for pensions contain the following notice of rights in small print on the reverse side:

This notice of your entitlement under the Social Services Act has been prepared after a careful study of your claim, and having regard to the conditions of eligibility set out in the law. If you consider that the notice does not adequately state the reasons for the decision on your entitlement, you may write to this office and ask for a statement setting out the reasons in more detail, alternatively, you may call at this office and ask to see the Review Officer, who will re-examine your case. If you are still dissatisfied with the decision on your entitlement, you may lodge an appeal with the Appeals Tribunal for your state. Appeal forms and an explanatory leaflet on the appeals system are available from any office of this Department. To assist in the preparation of your appeal, you may request copies of any document which you have supplied to the Department or any statement made to an officer of the Department. Please bring this notice with you when making inquiries in person.

3.040 Appeals Procedures Instruction 1.4 requires notification of the claimant's right to 'request copies of a document he has supplied to the Department [or] of any statement he has made to an officer of the Department, to assist him in preparing his appeal'. This appears in the printed notice for pensions but not in the standard paragraph for notification by letter (both of which are reproduced above). Notice of rights is also required by Appeals Procedures Instructions 1.7 and 1.8 to draw attention to the availability of appeal forms and an appeal brochure (the Appeals Brochure is Attachment 3.1); neither is drawn to attention in letter notifications. A subtle variation between the printed and letter notices is that the former states 'you may lodge an appeal' whereas the latter states 'it will be open to you . . . to ask that the matter be referred to an SSAT'.

3.041 Notices of rights are, by instruction, to give the name and telephone number of the Review Officer (Appeals Procedures Instruction 2.3). Neither the RO's name nor his number is given with a computer produced notification (this is to be remedied by DSS); the only name is that of the regional manager though he would seldom be the decision maker (as to the lawfulness of this practice see Re a Reference under s.11 of the Ombudsman Act, ex parte Director-General of Social Services (1979) 2 ALD 83) and the telephone number is that of the determining officer.

3.042 The name of the RO is not generally given in Queensland or in a number of offices visited in other States. For a period in South Australia, the pensions RO's name was not notified because the Department was engaged in its first review of pension entitlements for 5 years, and the flood of contacts in response to notices of rights containing the RO's name had overwhelmed him. Various reasons have been advanced for not giving the RO's name:

variability in who may be acting as RO makes a name unhelpful; publication of a name can result in pestering through a home telephone; claimants might regard the RO as a general contact on other matters to the

detriment of his duties; staff are reluctant to be identified

While these reasons might have their substance, it must be carefully considered whether they can outweigh the need to facilitate access to the RO. There would appear to be a correlation (supported by the South Australian experience noted

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above) between the naming of an RO and contact being made. Provision of a name provides greater individualisation, and it may be expected to create greater confidence in the mind of the claimant. Intervention of the RO is one of the quickest and most cost effective ways of dealing with potential appeals, and steps to encourage claimant contact with him or her should be promoted.

3.043 Notice of a right of appeal to a tribunal can be given in a number of ways with varying effect on the likelihood of claimants availing themselves of their rights. In one DSS office visited, appeal forms were sent out with all adverse decisions along with a notice of rights. In some other offices visited, forms were provided as a matter of course with adverse RO decisions. In most offices visited, claimants were simply told that appeal forms were available. In one office, appeal advice was given by the RO only as a last resort, with details being provided only if the claimant should show an interest in appealing. One RO consulted stated that he did not explain appeal rights unless requested since they were set out in the written notice of rights. It may be noted that the Myers Inquiry was of the view that rights of appeal should also be explained at the pre-grant interview (Report, op. cit., para. 5.3.59). The unemployment benefit information sheet (Exhibit 3.1) contains that advice.

3.044 There is a different notice of rights which could be, but often is not, given in notifying either the primary decision maker's or the RO's decision. Unemployment and sickness benefits are periodical benefits; a claimant to whom payment has been refused or terminated is entitled to apply again at once for benefit and can be paid or restored if the reason leading to the adverse decision is overcome, e.g. for unemployment benefit by agreeing in future to accept jobs further afield. Notification of this right could be given as a matter of course.

Internal Reconsideration

3.045 This may take place at two stages, first upon complaint to a regional office of DSS and later, where the claimant appeals to an SSAT, either wholly or partly at the State Headquarters Specialist Benefits Unit. Because of U and SB Manual Instruction 14.101, the first stage of reconsideration is of limited utility for matters involving CES work tests. There is, however, provision for reconsideration within CES.

Review Officers

3.046 These officers were progressively introduced into DSS following a memorandum from the Director-General to State Directors on 21 April 1978. A further Instruction on 28 August 1978 made their institution compulsory. A March 1979 survey by DSS showed that there were still some offices without an RO facility, and one regional office visited by the Secretariat in late April 1979 did not have an RO for pensions.

3.047 DSS instructions are that ROs are to be senior officers whose role is to provide a full explanation of the reason for, and an immediate and independent review of, the decision in question. Appeals Instruction 2.4 states the role of the RO thus:

2.4. If the client contacts the Review Officer either by telephone or at the counter, the Review Officer fully explains the reasons for the determination. The Review Officer has the power, where appropriate, to review the determination under discussion and if the client provides new evidence, or it is evident that the original decision was incorrect, the Review Officer may vary the original determination. In this way the client's query, complaint etc. may be satisfied. However, if the client remains dissatisfied with the determination the Review Officer should explain the appeals system and provide any necessary assistance in the preparation and

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completion of a formal appeal which will be considered by the Social Security Appeals Tribunal. Under no circumstances should the Review Officer attempt to dissuade a client from lodging an appeal.

Statistics on RO work in New South Wales, Tasmania, Victoria, Western Australia, and Brisbane (unemployment, sickness and special benefits) appear in Attachment 3.2. Statistics cannot be taken at face value in this area since there is no clear understanding of what constitutes an RO contact, vetting of claimants seeking to speak with the RO is practised in some offices, and figures have not been kept in detail other than in Brisbane (U and SB) and New South Wales. Statistics have been kept in South Australia, but they are too limited to be useful.

3.048 Who are ROs? No additional staff is provided to regional offices for fulfilling the RO function, though for a period there was a full-time RO for Tasmania and one for unemployment and sickness benefits in the Brisbane Office. In both cases, the arrangement was temporary pending further decentralisation.

3.049 The function of RO is attached to different substantive positions in different offices. Exhibit 3.4 illustrates the variation by correlating numbers of officers according to their substantive positions and their areas of RO activity (exhibit based on information received from State Directors in May 1979):

EXHIBIT 3.4Substantive Positions Occupied by Review Officers

Substantive Position Area of RO ActivityPensions U & SB Both

Regional Manager 31 4 30Second-in-Charge 1 1 7Pensions Determining Officer 5 43 27U & SB Determining Officer 15 11 -

Although all ROs are supposed to be at least class 6 officers, the classification of the position to which the RO function is attached varies as follows (includes RO activity for family allowances):

class 8 - 25 officers class 7 - 42 officers class 6 - 114 officers class 5 - 14 officers class 4 - 1 officers

Since the RO function is attached to a particular position in each office, the function will be undertaken by whoever fills that position at any given time. Where the person substantively appointed to the position is absent, a more junior officer will be appointed to the position on an acting basis. This will usually be for a short period, but for a number of reasons there could be an officer acting in that substantive position for months or even years. The actual classification of the RO is therefore often lower than the above list indicates. An extreme example of this devolving 'down' of the RO function is that at one time in New South Wales the RO in one office was a clerk class 2/3 in a class 5 position.

3.050 If all the persons performing the RO function were drawn from officers appointed substantively at least as class 6 officers (as distinct from acting in class 6 positions), their relative seniority in the Department and their resulting experience

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would be reasonably assured. For this level of seniority to be achieved, either the substantive position to which the RO function is attached would have to be raised to class 7, or the RO function would have to devolve to a more senior officer when the substantive officer is absent. The problem is that a large number of regional offices at present have no officers higher than class 6, though many of these are being upgraded to class 7 as a result of the Scott-Addie Report (op. cit.).

3.051 Time Spent on RO Activity. The numbers of RO contacts in New South Wales as set out in Attachment 3.2 show that RO activity is a very small part of an officer's work. In New South Wales the largest percentage of time taken up by RO work was in Lismore (12% of a single full-time position), and only there and in Sydney, Canberra, Parramatta and Wollongong regional offices did the percentage exceed 5%. The average over the whole State was 2.75%. As a result of the small percentage of time spent by officers on RO work and the changes in personnel in fact fulfilling that function, there appears to be a lack of professionalism coupled with a feeling among many ROs that this work is an irritating diversion from their primary employment (DSS survey of ROs, March 1979, and views expressed by ROs to the Council's Secretariat). This has consequences for the attainment of the object of the RO concept and, particularly, for the way in which ROs fit into the review system as a whole.

3.052 Procedures of ROs. In most regional offices visited, it was said that the majority of RO contacts were by telephone rather than personal visit to the office. The only precise figures available are those for unemployment and sickness benefits at'the Brisbane office (see Attachment 3.2), where 69.7% of contacts were by telephone, 9.9% by letter, and 20.4% by personal attendance. This relative absence of personal attendance does not appear to be related to any objective element common to the offices visited and applies to country, suburban, and small area city offices.

3.053 A large percentage of RO contacts related to explanations of decisions rather than challenges to decisions. Several offices visited reported the impression that more than half the claimants asking for the RO seek explanations, while in others a figure of 10% or less was advanced. In Brisbane, 48.8% of contacts on unemployment sickness and special benefits were inquiries i.e. explanations. Based on discussions held with ROs, it would appear that pensions and family allowance contacts tend to be inquiries, while benefits contacts tend to be challenges to the decisions concerned.

3.054 The involvement of ROs in explanation of decisions as distinct from appeals has been a source of dissatisfaction. A survey made by DSS found resentment at the necessity for the RO to be involved in explanations. The RO at one office visited by the Secretariat expressed this view and stated that it is appropriate that the determining officer should undertake explanations. As appears from the following paragraph, there are a number of offices where explanation work has been hived off from the RO to counter officers in the first instance and, where necessary, determining officers.

3.055 Vetting RO Contacts. A distinction has to be made between contacts where the claimant asks particularly to see or speak to the RO and those where he simply makes contact generally, with a complaint or enquiry. Apart from Tasmania, telephone contacts, where the claimant asks to speak to the RO appear always to be passed on straight to the RO. It is otherwise with personal attendances. Most offices visited by the Secretariat vetted personal contacts by ascertaining whether the claimant required an explanation of the decision or wished to challenge it. Explanations were dealt with by the counter staff and not by the determining officer

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unless the counter officer was unable to handle the matter, e.g. because of its complexity. Where the claimant wished to challenge the decision, he was normally brought directly in contact with the RO. In some offices visited, however, there was further vetting. All contacts whether enquiries or challenges, were handled first by counter staff. If a counter officer could not handle a contact, e.g. because the complexity of the decision prevented adequate explanation or because the facts put forward by the claimant in challenging a decision conflicted with those on the file, the matter was passed on to the determining officer or assessor, and only found its way to the RO where there was a challenge on which the determining officer or assessor could not satisfy the claimant. The view expressed in one of those offices was that any other means of handling the contact would involve a waste of time because the determining officer would know the file and the RO would not. This vetting process runs counter to the purposes of the RO concept as defined by Appeals Procedures Instruction 2.4.

3.056 It is perhaps inevitable that, where the claimant does not expressly ask for the RO, his business will be handled first by the counter staff and then by the determining officer or assessor. This may, however, result in depriving claimants of the important services of the RO if they do not know their rights or cannot express their claims. The manager of one Melbourne regional office pointed out that many of the claimants in the area were illiterate or did not understand their rights, and that most RO contacts came either through the DSS social worker or from local welfare organisations.

3.057 Procedures for Handling Contacts by RO. ROs attempt to provide a decision the same day, but this is not always possible. The claimant explains his complaint, the RO then reads the file to ascertain the basis for the decision made and explains it. The claimant is then able to advance further material relevant to the matter. Depending on the problem, the RO either gives a decision then or indicates when a decision may be expected. In some cases there may be a delay of several days before the RO makes his decision for it may be necessary to follow up or double-check information. Delayed decisions are given in writing with more detailed reasons than are given for primary decisions, and are accompanied by a statement of appeal rights. Decisions given orally are often not confirmed in writing, though reasons are given and appeal rights explained.

3.058 The Effect of ROs - Do they Reduce Appeals? DSS has taken the view that the institution of ROs has resulted in the substantial drop of appeals which appears in Exhibit 3.5 (see answer by Director-General to Senate Estimates Committee C, Commonwealth Parliamentary Debates (Senate), Estimates Committees A, B, and C, 18 September 1979, p. 94). There is, however, reason to doubt this view and it would be safer to conclude that the activity of ROs has had only a limited effect on the flow of appeals.

3.059 Conditions having a particular effect on appeals have changed substantially during the period since ROs first began to be introduced; 71.6% of appeals in New South Wales, 88.8% in Queensland, 67.9% in South Australia, 72% in Tasmania, 76.5% in Victoria, and 73.9% in Western Australia in 1978-79 were on unemployment benefit matters. Many of those appeals related to 'work tests' (see paragraph 3.020 et seq. above), but the number of adverse work test reports transmitted to DSS by form SU44 has decreased. It is not known what percentage of unemployment benefit appeals relate to work testing, but in Queensland during November 1977 to March 1978, 49.7% of unemployment benefit appeals (996 out of 1938) were work test appeals (figure taken from submission to Public Service Board in support of increased staffing for Specialist Benefits Unit). Attachment 3.3 sets out the figures on adverse SU44s and then graphs them against the flow of appeals to SSATs in the

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six States. The correlation suggests that the decrease in appeals may owe much to the decrease in adverse SU44s. ROs cannot reverse a CES assessment in terms of U and SB Instruction 14.101. Exhibit 3.6 indicates that appeals in other areas have increased in accordance with the general growth in claimant population, but unemployment benefit appeals have dropped substantially. There is a clear statistical conclusion that the drop in appeals is a drop in unemployment benefit appeals. Had RO activity been the cause of the overall drop in appeals, this would have been reflected in a drop of appeals in non-unemployment benefit areas. The fact that the drop is concentrated in unemployment benefit appeals - which ROs are not permitted to influence (save by explaining the reasons for the decision) - plus the drop in adverse SU44s makes it very difficult to agree with the DSS view cited above. On the information available the ROs can be seen as having had an uncertain though still possibly significant effect on appeals. The significance of such activity will become clearer as further experience of RO activity is gained. It may be inferred from Attachment 3.2 that if all challenges went first to the RO (and if the RO could also reverse SU44 assessments), well over half of the potential appeals would not proceed beyond that point. One important question is, however, to what extent claimants failing before the RO would be discouraged from appealing as distinct from accepting that the RO's decision was the correct or preferable decision (see further, paragraphs 3.080-3.084 below).

3.060 The Effect of ROs - Decisions. Attachment 3.2 shows a varying rate of concession by ROs where decisions are challenged: 45.9% in New South Wales, 34.8% in Victoria, and 52% in Brisbane (unemployment, sickness and special benefit). That Attachment also indicates only a small percentage of RO cases being appealed: 16.2% in New South Wales, 5.0% in Tasmania, and 5.1% in Western Australia. However, only in New South Wales and Tasmania can the latter figure be regarded as reasonably accurate, since the Western Australian figure is only of those cases where an appeal was lodged immediately after RO contact - it does not include claimants who subsequently decided to appeal.

3.061 The Effect of ROs - Do Appellants go to them? Statistics were kept in Brisbane between 21 April and 12 October 1979 of the number of appellants seen by the RO and the total number of U and SB appeals lodged; 45.2% of appellants had previously contacted the RO. The New South Wales figures also enable one to estimate the percentage of appeals in which the RO is bypassed - 66.1 % of all appeals. This figure is determined by comparing the number of appeals in respect of decisions of individual regional offices in the period subject to the RO statistics with the number of cases appearing in the RO statistics as ones where appeals were lodged. Reasons which may lead a claimant to bypass the RO would appear from discussion with ROs to include those of distrust of DSS and knowledge of appeal rights. Distrust may result from identification of the RO with the determining officer or a feeling that there is 'no change' to be obtained from the regional office or from DSS as a whole. Knowledge of rights might well lead claimants to think first of tribunals, and many welfare organisations appear to encourage their clients to go directly to the SSAT. No empirical study has, however, been made of the reasons for bypassing ROs and further discussion would be speculative.

3.062 Total 'challenge handling' in New South Wales (RO contacts + appeals - RO decisions appealed) from May 1978 to September 1979 was 4774 on an annual basis, compared with 3447 appeals in the preceding 12 months (July 1977-June 1978 [the two periods overlap by May and June]). In theory, institution of ROs should result in an apparent if not actual increase of challenge handling compared with the number of appeals previously. There is no information of the extent to which an actual increase in challenge handling has occurred. There is an apparent increase in New South Wales, but it is uncertain what proportion of challenges handled by ROs would

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otherwise have become appeals. Are the claimants included in the apparent 'challenge handling' increase new 'complainers' or not? An empirical study might be in order here. The available data does not provide an answer to this question.

3.063 Conclusion. One RO consulted by the Secretariat defined the criteria for a good RO as being, and being seen to be: apart from and independent of DSS decision making; expert in social security; empathetic with people who seek the RO's decision.

These criteria might often not be met at present.

3.064 Because RO work is such a small part of the substantive position to which it is attached, the aptitude of an officer to provide the quality of RO service sought cannot be expected to be a major element in appointing a person to that position. Because the person actually functioning as RO varies so much, the development of expertise is limited and this increases the chance that a claimant might not receive the desired service. Where the name of the RO is not advised to claimants, the effectiveness of the RO concept is lessened. Filters placed between claimant and RO also reduce the chances of attaining the object of the concept and may further alienate claimants from the Department. It might also be added that since ROs are part of the office which made the original decision, there are pressures on them which might also be contrary to the object of the RO concept. The fact that such little time is spent on RO activity makes it more likelv that the function will be seen as a sideline. again tendina against the obiective of the RO concept.

3.065 The views of ROs ascertained by DSS's survey support the proposition that some of the above criteria are not being met in a significant number of offices. Few ROs consulted by the Secretariat appeared to lack expertise or empathy, but the need to be and appear to be apart from and independent of decision making was met only by the two full-time ROs and, to a lesser extent, by regional managers who were ROs. It should be noted that if RO contact is a practical prerequisite to external review, time spent on RO work would be trebled (on the basis of the New South Wales statistics which indicate that two-thirds of appellants bypass the RO). This might reduce the risk of the criteria for a good RO not being met. However. the existence of this risk to some decree might well be a concomitant of seeking to have an RO in every office.

Specialist Benefits Units

3.066 Where a claimant is not satisfied with a decision (whether or not the RO has considered it) he may lodge an appeal to an SSAT. This appeal is first reconsidered within DSS. Reconsideration is controlled by a Specialist Benefit Unit (hereafter `SBU`) in each State. The Victorian procedure for reconsideration differs from that in other States.

3.067 In Victoria, when an appeal is received, it is notified to the SBU in State Headquarters. The SBU then notifies the relevant regional office which forwards the claimant's file. All reconsideration of the appeal tends to be made by the SBU but, where the subject matter of an appeal has not already been considered by an RO, the Council has been informed by the Director-General that the matter is to be referred to the RO in the claimant's regional office (minutes of meeting of Director-General with Council, 10 August 1978). Further investigations are undertaken and evidence obtained, but this is not done personally by SBU officers, nor is the claimant normally seen by SBU officers prior to the Department's submission being prepared. The SBU may redetermine the claim. If there is not complete concession, a submission is

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prepared and (with the file) sent on to the SSAT. The SBU submission sets out the basis of the appeal and the facts as found by the SBU, refutes the claimant's allectations, and sets out brief reasoning supporting the conclusion.

3.068 The Victorian system avoids the failings previously encountered in a number of instances (inadequate reinvestigation, redetermination and submission) and the Victorian SSATs have found that submissions under this system are of a higher general quality than previously. The process promotes achievement of the other roles performed by SBUs (see oara4raoh 3.073 below) and avoids inconsistencies among ultimate decisions. A number of DSS officers consulted criticised the Victorian process on the basis that it was desirable that determining officers should be required to prepare submissions on their own cases, because if so required, they would be made to think more carefully and would be educated by the process. It was also suggested that further investigation would have to be made locally anyway, so that centralised reconsideration might often involve double handling.

3.069 In other States, the SBU acts as a final co-ordinator or'keyhole' through which all submissions to the SSATs must flow. The appeal used first to be referred back to the regional office and usually the original determining officer, but it is now common for the RO to reconsider the matter. Investigations are conducted at this point and a submission prepared. This comes to the SBU which redetermines the matter or settles a submission for the SSAT. In all SBU processes, particularly difficult cases may be seen by more senior officers. One problem with this process is that reconsideration is largely confined to the original determining officer or the RO as the case may be. 'Checking the file' by senior officers is in principle less likely to result in weaknesses of the case being revealed than is review in toto by the SBU.

3.070 Prior to the introduction of the SBU system, the submission prepared by the determining officer at local level was passed up through the chain, in some States to the Senior Assistant Director (Benefits) or the State Director. It was checked at each level with an eye to its completeness, and whether the claim should be redetermined or an order for further investigation made. In some States, prior to the introduction of an SBU, the submission usually rose no higher than the Assistant Director for the relevant benefit. In other States every submission was considered by a single officer who fulfilled the role of a 'keyhole'. Under the old system, the submissions varied in quality and informativeness. This variation in turn affected the quality of SSAT review.

3.071 At present there are few face-to-face interviews at the pre-SSAT reconsideration stage. While such interviews are given to some extent throughout the country (particularly where a matter has not previously been to a RO), only in Western Australia does it appear that interviews have been conducted regularly in the past. There, the Executive Officer Appeals (Unemployment Benefit) estimated that he interviewed 10% to 15% of appellants, usually where there was a cohabitation question or conflicting allegations. These interviews resulted in many appeals being conceded. The RO will often have spoken to the claimant face to face but this may not be as effective as an interview held at a later stage.

Appeals Conceded Prior to SSAT Consideration

3.072 Where an appeal is lodged and the decision changed prior to the matter's being considered by an SSAT, the new decision is transmitted by DSS to the claimant. Appeal Procedures Instruction 3.20 states that this process 'should at no time be described as `upholding an appeal', particularly in correspondence with the client, it is to be called a lapse of appeal'. Where the decision is changed, the file still proceeds to the SSAT which has a responsibility to ensure that the decision is wholly

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in favour of the claimant or, if not, to consider the case as if the appeal was from the varied decision. The function of checking these appeals is left to the DSS Tribunal member. It is difficult to determine whether a varied decision is wholly in favour of the claimant since checking is wholly from the file and the Tribunal member is hard pressed by his other duties. One DSS Tribunal member felt that the exercise was of very limited value.

3.073 SBUs fulfil other functions beyond reconsidering decisions appealed to SSATs. They are organised into three sub-sections in the larger States: policy and standards, appeals and representations, and benefits control (i.e. detection and prosecution of fraud). A detailed statement of the functions of these sub-sections is set out in Attachment 3.4.

CES Role in Review

3.074 U and SB Instruction 14.101 governs the review of 'work test' decisions (see para. 3.020 above). The appropriate procedure was outlined by the Acting Director-General in a letter to the Council's President dated 12 October 1977:

Procedures have been agreed upon which will ensure that in these cases the reasons for the appeal are discussed with the appropriate Employment Officer and that efforts are made to resolve the situation. If the Employment Officer is prepared to amend his decision a new determination will be made so that in effect the appeal will be conceded at that stage.

On the other hand, where the Employment Officer is not prepared to vary his decision, the appeal will be sent to the Appeals Tribunal from the Department with a statement of the position and giving the comments of the relevant Employment Officer. Where the Director agrees with the recommendation of the Tribunal that an appeal should be upheld he may approve that recommendation.

3.075 In practice, a claimant may or may not have been advised that he or she should approach CES to have a decision changed before coming to the RO. Where no such advice was given, the claimant will be told that DSS cannot help until he or she has seen CES, and that he or she should return to the RO if the CES will not alter the adverse decision. Upon the claimant's return, the RO can do little but advise the claimant of his or her right of appeal to an SSAT. Advice of the role of CES shortens this journey by one step. Because the RO role is seen to be largely, if not wholly futile in work test cases, it is the practice of a number of DSS offices to send out appeal forms to claimants with the adverse primary decision, or advise claimants of their appeal rights and provide them with appeal forms when they first attend on the RO.

3.076 The extent to which CES officers are prepared to change their decisions varies. In one office visited, where a large number of adverse SU44s were issued, a high percentage of decisions were changed on review. It would be logical to expect that where a CES office issues adverse SU44s only upon very clear facts, there would be few alterations of decisions. Where adverse SU44s are issued on less certain grounds, however, decisions should in theory be changed more frequently. The relationship of local DSS and CES offices also affects the level of CES concession. Where the relationship is close, telephone discussion between the RO and CES officer is often fruitful of change. One DSS office visited did not appear to apply Instruction 14.101 at all but the RO took it into his own hands to determine, after consultation with CES, whether the decision should be changed.

3.077 Officers at most levels in DSS and CES, asked by the Secretariat for their view of the roles of DSS and CES in work test appeals, regarded the present situation as

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unsatisfactory. The division of responsibility increases confusion as to the roles of the two agencies and has a discouraging effect on claimants even when their challenge is sound. Divided responsibility reduces the likelihood that internal review will fulfil its proper functions. Instruction 14.101 (irrespective of its lawfulness) also goes against the purposes of internal review because it tends to force decisions into external review which could properly be resolved internally.

Social Security Appeals Tribunals

3.078 Procedures of SSATs will be discussed in a number of sections. Firstly, the mechanism for invoking review will be outlined. Secondly, delay in reaching finality and continuation of social security payment pending finalisation of an appeal will be discussed. Thirdly, the constitution of the Tribunals will be considered in detail. Fourthly, the powers and procedures of SSATs will be set out. Fifthly, reconsideration within DSS of the recommendations of SSATs will be described. Finally, an assessment of the `external' review process will be made.

Mechanism for Invoking Review

3.079 Appeals Procedures Instructions 2.1 and 2.2 provide:

2.1. Appeals forms (form TR1.4) should be available at all inquiry counters. The appeals leaflet (see paragraph 1.8) contains a 'tear off' request for the appeals form. Clients should be encouraged to use the appeals form, but there is no strict requirement to do so.

2.2 Appeals may be lodged as follows:(a) by telephone;(b) by personal attendance at an inquiry counter;(c) by letter; and(d) on an appeals form.

In categories (c) and (d) the letter or the appeals form will be accepted as an appeal without further action on the part of the client being requested. The new appeals leaflet (see Attachment 3.1) does not have a 'tear off' appeal form.

3.080 The introduction to Instruction 2 provides that 'the only prerequisite to lodging an appeal, from the client's point of view, is dissatisfaction with a determination'. As a result, there is a small but continuing number of matters coming to SSATs which are not really challenges to decisions at all. It is better that non-appeals should be erroneously regarded as appeals rather than that proper appeals not be recognised.

3.081 It is relevant that one form of advice of appeal rights widely used in DSS no longer states that claimants have a right to appeal to an SSAT but only that if dissatisfied with the RO's decision, they may ask that he refer the matter to an SSAT (see the notifications reproduced in paragraphs 3.038 and 3.039 above). The present system involves two positive stimuli to bring a matter before an SSAT (one only, if the RO is bypassed contrary to the object of that concept's institution), and it is important that claimants should be aware that it is their right to proceed to an SSAT and should not be left with the impression that appeal is in the gift of the Department.

3.082 A number of respondents to the Council's Consultative Papers expressed concern that ROs might dissuade claimants from appealing to an SSAT. There are many shades of dissuasion, particularly when claimants are unlikely to be assertive of their rights. While it would be seldom if ever that blatantly improper advice against

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appeal would be proffered by a DSS officer (there is no benefit to him or her in doing so, as one senior DSS officer put it), dissuasion can occur by:

expressing an opinion as to the likelihood of success before the Tribunal; raising matters of opinion into findings of fact; presenting Instructions in Manuals as equivalent to enactments (failure to

distinguish between the two is not uncommon in DSS as in other Departments); stating the reasons for the decision erroneously.

3.083 It may have occurred by inadvertence, but the change in phrasing of the introduction to Appeals Procedures Instruction 2 from 'it is wrong' to dissuade persons from appealing, to 'Officers . . . should not' so dissuade persons could influence officers to be bolder in expressing views which might have the effect of dissuading claimants from appealing. Instruction 2.4 of the present Appeals Procedures reduces but does not wipe out the effect of the above statement when it provides that 'Under no circumstances should the Review Officer attempt to dissuade a client from lodging an appeal'. The departmental emphasis on ROs as a means of 'filtering out' appeals might also have an effect in leading officers to paint a picture to claimants which would tend to dissuade them from appealing.

3.084 Explanation of the reasons for decisions is closely linked to challenge of decisions; a claimant might decide to appeal only after the reasons have been explained. If the reasons are not explained by the officer who made the decision concerned, but by a more junior counter officer, then there is a danger that claimants inadvertently may be dissuaded from appealing by inaccurate presentation of the reasons. This is an area where particular care is necessary.

Delay in Finalising Appeals and Continuation of Payment

Delay

3.085 Exhibit 3.7 sets out the average time taken from lodging of appeals to their being finalised.

EXHIBIT 3.7Average Time Taken to Finalise Appeals

(in days)

PeriodQuarter ended State

NS.W. Vic. Qld SA. WA. Tas. N.T. A.C.T.9.77 73.9 74 41.7 63.2 45.75 2915 170.5 115.0712.77 68.2 47 34.0 55.9 37.74 24.57 141.3 99453.78 7542 50.73 39 50.2 41.72 26.58 96.7

84.426.78 91.6 34.10 33.3 51.6 46.29 19.22 854

79.779.78 75.63 28.16 284 54.5 55.62 21 97.9

92.1512.78 7021 25.66 37 52.5 43.22 27.19 106.1

63.653.79 56 38.8 47.3 36.1 57.48 25.58 39.9 566.79 63.01 41.78 27 31.4 43.9 23.8 41.7

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80.33

Finalisation might occur immediately (where the Department concedes the claim without SSAT consideration), or within a few weeks (where the SSAT rejects the appeal), or some weeks (where a recommendation is accepted at State headquarters) to months (where DSS central office is called in to decide whether to accept or reject an SSATs recommendation favourable to the claimant) later. Average figures are therefore misleading; a few cases have taken almost a year to finalise and this distorts the average. Exhibit 3.7 does, however, yield some conclusions.

3.086 Leaving aside the New South Wales SSAT (a large percentage of whose favourable decisions are referred to DSS Central Office for consideration), the delay is generally 6 weeks or less. That is a period which is undesirably long for impecunious claimants, but represents fairly rapid decision making given the physical requirements of obtaining files, checking information, preparing submissions, and consideration by the Tribunal and, where necessary, reconsideration by DSS. The frequency of holding telephone or attended hearings with claimants does not appear to add more than a week to the delay (save in New South Wales and the A.C.T. where the Tribunal's reluctance to reject an appeal without hearing from the claimant often adds 2 weeks to the time during which the matter is before the Tribunal).

3.087 There are three stages in the appeal process. Firstly, preparation of the case for the SSAT by DSS; secondly, time before the Tribunal; and thirdly, reconsideration of the Tribunal's favourable recommendation by DSS. DSS aims at completing preparation of the case within 3 weeks of lodgment of an appeal and actual periods in the States are approaching or have reached that time. An SSAT can review a case on the file the day after it is received from DSS. However, the mode of operation of all Tribunals means that a decision whether to hear the claimant cannot be made until the file is received from DSS, thus adding at least a week to delay where there is to be a hearing. As is stated in paragraph 3.107 et seq. below, the mode of SSAT fact finding causes delays which a process more committed to hearings might avoid by enabling fact finding to be organised in advance of DSS completing preparation of the case. Finally, delay caused by DSS reconsideration of SSAT recommendations is inevitable given the present powers of the SSATs but would be eliminated by conferring on SSATs a power of decision (though other delays while appeals are before the Tribunals might be engendered thereby). There would appear, therefore, to be room for expediting finalisation of appeals, particularly by changing the role of the Tribunals.

Continuation of Payment

3.088 Appeals Procedures Instruction 1.9 provides as follows:

1.9. In certain circumstances payment of pension, supporting parent's benefit, sheltered employment allowance or handicapped child's allowance may be continued pending the hearing of an appeal. Where the payment is to be reduced or cancelled as a result of a decision which is based on the formulation of an opinion or in the exercise of a discretion payment may continue at the existing rate if an appeal is lodged within 14 days of the date of the advice to the pensioner/beneficiary/allowee.

Instruction 1.10 states that claimants should be advised of the power to continue payment when a decision falling within Instruction 1.9 is notified; 1.10 is inconsistent with 1.9 in that it states that payment 'will' continue whereas 1.9 uses 'may'. The procedural instructions (Instruction 75/8199 of 16 September 1975) make it clear that payment is continued whenever an appeal is lodged within 14 days in respect of a decision falling within Instruction 1.9 above. There are, however, likely to be variations in appreciation of the situations in which the conditions of 1.9 are met.

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Thus, Instruction 75/6908 of 11 September 1975 provides that there is to be continuation of payment where the adverse decision is based on cohabitation, but not when cohabitation is admitted. Where payment is not continued pending finalisation of an appeal, there is special need for proceedings to be dealt with swiftly.

3.089 There are five social security payments (other than funeral benefit) which are not covered by Instruction 1.9: family allowance, unemployment, sickness and special benefits, and rehabilitation allowance. Family allowance is not a subsistence income so that continuation of payment might not be so important, but the amount of the allowance and the fact that it replaced tax deductions for dependent children suggests that it is nonetheless an important income for the underprivileged. Unemployment and sickness benefits are excluded from the continuation provision because they are short-term payments for which eligibility must be continually established. It was considered that to extend the scheme to them would be to encourage appeals merely in order to remain on benefit. Special benefit is discretionary and it was considered that continuation would be inappropriate because there would be cancellation of payment only when the circumstances giving rise to the grant had changed. Rehabilitation training allowances are subsistence payments, though it would ordinarily be the case that people in receipt of an allowance would otherwise have been eligible for another social security payment, e.g. invalid's pension. The Department automatically assesses persons whose rehabilitation training allowance is reduced or cancelled for another pension or benefit for which he or she is eligible.

3.090 Two questions arise. Firstly, should the power to continue cancelled, suspended or reduced payments be restricted as to payments which may be the subject of continuation? Secondly, should there be a power to make interim decisions which would, inter alia, authorise commencement of payment (this is currently beyond the Appeals Procedures Instruction)? (Both questions are considered in paragraphs 5.017-5.019 of the Council's Report.)

3.091 Reference is made to Canada where automatic continuation of payment is provided in certain circumstances (see Part 4, paragraph 4.038). Reliance upon discretionary powers to continue payment or to make interim decisions to commence payment is an alternative to automatic payments pending finalisation of appeals. Discretionary powers enable consideration to be given to the particular situation of the appellant and his or her need for payment.

Organisation and Constitution of SSATs

Structure

3.092 SSATs were established as a result of Ministerial decision and commenced operation on 10 February 1975. They have no legislative basis and their 'constitution' is the Appeals Procedures Instructions already referred to. There is an SSAT in each State and in the two internal Territories. They have no national organisation, though meetings of Tribunal members have been held. Within each State or Territory there is a Chairman of the Tribunal, though there may be several SSATs in the State operating with different chairmen. A permanent division of members into Tribunals occurs in New South Wales, Victoria, and Western Australia. In Queensland, the Tribunal is made up ad hoc of members available on a given day and selected by the Chairman. Though there are members for two full Tribunals in South Australia one of the members seldom sits, so ad hoc Tribunals are formed. Tasmania and the Territories have only one Tribunal each.

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Constitution

3.093 An SSAT is constituted by a full-time officer seconded from DSS and two part-time members; one with experience in each of the legal and welfare fields. There is no instruction as to who is to be Chairman of the State or individual Tribunals; Tribunals elect their own Chairmen. Initially, the Departmental member was elected Chairman in Queensland and Western Australia, and a lawyer was elected in other States and the Territories. When the Western Australian Chairman retired, the Tribunal elected one of its lawyer members Chairman. The Departmental member remains the Chairman of the Queensland Tribunal.

3.094 Originally, members were simply appointed to the Tribunals for no fixed term. Accordingly, members held office at pleasure of the Minister, though there was no case of dismissal. More recently, members have been appointed for, or placed upon, 2 year terms. Processes of appointment have been formalised and it is now customary for local law societies to be consulted and assist in selecting legal Tribunal members. Departmental members have in a number of cases returned to the Department on promotion, in two cases to head the appeals sub-section of the Specialist Benefits Unit of the State.

3.095 The presence on the Tribunal of a full-time DSS officer has led to controversy. It has been variously argued that his presence means that justice is not seen to be done, that he is biased against appellants, and that it is only through his presence that the Tribunal can come to grips with the difficulties of the social security jurisdiction.

3.096 The Departmental member is in a position to influence the other Tribunal members, though the experience of the Tribunals is that influence has operated both ways. The possibility of the DSS member influencing the other members is greater if the DSS member is the Chairman.

3.097 The Law Council of Australia's Report on Social Security Appeals (op. cit.) noted the lower proportion of cases in which the Queensland and Western Australian Tribunals (both then under DSS Chairmen) recommended favourably to the appellant and in which their favourable recommendations were rejected by DSS, compared with other Tribunals with legal Chairmen (see p.11 of the Report). The Committee traced this difference to the influence of the Chairmen (ibid.), accepting the findings of Professor Mossman (Review' Procedures in Essays on Law and Poverty: Bail and Social Security (AGPS, 1977), p.77) that the Queensland and Western Australian Tribunals perceived their role as one of correcting errors within the framework of the Act and Manuals of Instructions rather than ensuring that the Act is administered fairly and properly. This was seen to reduce their factual independence from DSS.

3.098 While the above observations may have been correct, the views of Tribunal members as well as the observations of the Secretariat agree that the DSS members maintain an independent position and have not seen their role as being to persuade other members to uphold the Department's decisions. Just as a member with social welfare experience brings an understanding of how a claimant came to act in the way he or she did, the Departmental member brings an understanding of how the determining officer came to act in the way he or she did. Consequently, the way in which a DSS member may approach an issue or fact situation differs from that of other members. On the other hand, the mere fact that the Tribunal includes a Departmental member does give the impression of injustice and is undesirable for this reason.

3.099 Presence of a DSS member might be appropriate despite the appearance of

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injustice, if it were necessary for the proper functioning of the Tribunal. This is doubtful. In so far as the DSS member is there to impart information on the rules and processes of DSS, this information might well be given as well by a Departmental advocate or, if all aspects of adversary procedure are to be avoided, by an officer acting as Tribunal clerk in the same manner as Justices' Clerks in England, i.e. the clerk would offer advice as to relevant matters but leave it to the Tribunal to discuss and determine the result. This is more or less the present role of the CES liaison officer (see paragraph 3.11 5 below).

3.100 The presence of legal and social welfare expertise is generally seen to be desirable on social security tribunals (see the constitution of Tribunals in the United Kingdom, Canada, and New Zealand - Part 4, paragraphs 4.020, 4.040, 4.045 and 4.072 below). Because issues often turn on value judgments, a multi-member tribunal is seen to be valuable. Because there are issues of law of some complexity arising, legal expertise is important. Because appellants in social security appeals are likely to be of a very different class from legal and DSS members of the Tribunal and live in situations which often are beyond the experience of those members, there is need for a member with an affinity for and understanding of the situation of claimants. Apart from substituting a 'general' member for the DSS member, the only suggestion made to the Secretariat for a variation of membership was that on occasions it may be enough that the Tribunal consist of one person, though persons suggesting this differed both on whether that person should be a lawyer or a 'social worker', and on when there should be one-member tribunals.

Administration

3.101 The full-time DSS member is responsible for the administration of the Tribunal. Originally, the Tribunals were staffed to enable them to undertake fact finding by inquiry or correspondence as well as to monitor the progress of cases and maintain files on appeals. At the beginning of 1977 there were twenty-one staff members for the Tribunals throughout Australia. In September 1977 the division of functions between Tribunals and DSS was changed and most of the staff brought back into the Department proper. There has been some later increase in SSAT staff which at 31 December 1979 numbered nineteen plus the full-time members. In general today, all investigation of facts is undertaken by DSS staff at the request of the Tribunals. Only a very brief file is kept by the Tribunals on each case, so obviating the need to maintain staff for filing. This represents a shift of responsibility for work rather than an elimination of work and reduction in staff.

3.102 It may be that the accuracy with which the Tribunals find facts has not been changed by this shift of responsibility, but in limiting the ability of the Tribunals to conduct their own investigation of the facts, DSS has reduced the independence of the Tribunals.

The Powers of SSATs

3.103 The SSATs are not established by enactment. They have no legal power to decide the cases coming before them. In the absence of such power, the Tribunals can only make recommendations and so are exposed to the danger of becoming little more than another level in the process of 'passing up' decisions through the Department.

3.104 The Tribunals have been given one de facto right to decide. Appeals Procedures Instruction 3.1 2 authorises SSATs to advise claimants of their decisions where they decide to recommend dismissal of appeals. SSAT recommendations that appeals be allowed are considered by DSS, which has the ultimate power of decision

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(for a further discussion of this reconsideration see paragraphs 3.130-3.135 below). The percentage of cases where DSS rejects SSATs' recommendations favourable to claimants has varied from time to time and from tribunal to tribunal. Statistics on rejection of recommendations appear in Part 2 exhibit 2.4 referred to in paragraph 2.011 above. Overall, these statistics indicate that favourable SSAT recommendations have been substantially accepted by DSS, though rates of rejection as high as those in 1978 and for the New South Wales and Australian Capital Territory Tribunals, cast doubt on the effectiveness of the Tribunals within the Departmental context and give substance to views that SSATs are merely another level in 'passing up' decisions. These factors again suggest the absence of independence of SSATs from the Department.

3.105 The variations among Tribunals can be seen as reflecting the assessment made by Mossman of the goals set by the various SSATs for themselves (see paragraph 3.097 above) and the further element that, once it is clear that the Director-General will not accept a favourable recommendation in a particular type of case, many Tribunals cease to make recommendations of that type. Once more independence is shown to be compromised. With the introduction, as from 1 April 1980, of limited jurisdiction for the AAT (see paragraph 1.001 of the Council's Report), it may be expected that those Tribunals will reverse their practice and make favourable recommendations in the knowledge that the Director-General's decision is not final. The variation in percentage of recommendations rejected might also be related to the practice of some SSATs of hearing every claimant (see paragraphs: 3.108 to 3.110 below). Where the file does not reveal all that is understood by the SSAT as a result of a hearing (as is generally the case), it might be that DSS would reject the recommendation on a supposed inconsistency with the facts. The marked reduction in rejections in the December 1978 quarter and since then is significant. Continuation of this lower level of rejection cannot be assumed.

Procedures of SSATs

Documentation

3.106 The Tribunal Chairman has before him the full DSS file on the claimant, while the other members have only selected documents. In Western Australia and South Australia, the other members have the appeal form, the Departments submission, and other relevant documents taken from the DSS file. In other States only the appeal form and DSS submission are provided to other members. Only two copies of the appeal form are available to the Queensland Tribunal members, so that one member does not have it before him (although it can be passed to him to: see). Where a member requests, or where it appears to be valuable for reaching a decision, the DSS file will be passed to other members. It is usual for the Chairman to read out extracts from the file relevant to the case in hand.

Consideration of Appeals

3.107 The manner in which Tribunals are to consider appeals is not prescribed by the Appeals Procedures, though Instruction 4.3 sets out some parameters as follows:

4.3. The procedures of the Appeals Tribunals are entirely at the discretion of the Tribunals themselves. However, the following points should be noted:

(a) The Tribunal is not required to hold a hearing in any particular case unless the claimant insists on such a hearing.

(b) Where a hearing is conducted, it is at the discretion of the Tribunal as to who is permitted to attend the hearing. (See also paragraph 4.9 below.)

(c) The Department and the claimant may be represented before the Tribunal at

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hearings, but not by a legal practitioner. (See also (d) below.)(d) If a Member of Parliament (State, Federal or Territorial) wishes to represent a

constituent before the Tribunal he should be permitted to do so even if he is a legal practitioner.

(e) Normally an appeal should be lodged within 6 months of the date of the determination under appeal. However, the Tribunal has the discretion to decide to hear an appeal lodged outside the six months period if it regards the reasons for the late lodgment to be reasonable.

(f) The Tribunal attempts to ensure that a 'court room atmosphere' does not exist at hearings.

(g) Where for reasons such as illness or conflict of interests, one member of the Tribunal is unable to participate in a particular case, the Tribunal operates as usual with the two remaining members. If, in such cases, the Tribunal members cannot agree on a common recommendation, the views of both members will be forwarded to the Director-General.

The Tribunals fall into three general patterns of procedure: New South Wales and the Australian Capital Territory, Queensland and other Tribunals. The conduct of attended hearings of all Tribunals but that of the Northern Territory (which has not been observed) is discussed in paragraphs 3.108 to 3.114 below.

3.108 N.S.W and A.C.T. The New South Wales and A.C.T. Tribunals have distinct stages in their consideration of appeals. First, the file is reviewed and a decision is made on how to contact the claimant and what to tell him or her. All claimants are written to and invited to contact the Tribunal by telephone (reverse charges) or attend for a hearing on a specified day and time, usually 10 days later. At one stage the Tribunals used to set out the full case put by DSS in its submission, but it was found that this was too daunting to claimants and so now only a truncated statement of the case is made. The Tribunals might at this stage initiate further investigation of the facts either by using DSS officers or, less frequently, by making their own inquiries.

3.109 When the claimant contacts the Tribunal by telephone, the full case against him or her is explained and the claimant is invited to comment upon and rebut it. The conversation is normally in a question and answer form. The telephone call may take place when all the Tribunal is together, in which case it is heard by the whole Tribunal per conference telephone. Where the call is at another time, it will be received by the DSS member or, in his absence, by an officer of the Tribunal's staff, and the content of the conversation will be reported to the whole Tribunal. An estimated 80% of claimants respond to the Tribunals' letters.

3.110 Having received the claimant's response, the Tribunal may discuss and decide the appeal immediately or at the next meeting (where none was in session when the call was received) or instigate further investigation of the facts. Where the claimant does not respond to the Tribunal's letter, the Tribunal allows a further week to elapse after the nominated day before disposing of the appeal on the record. There are occasions where the Tribunal will persevere in its attempts to obtain the claimant's views, for it is generally reluctant to decide on the record alone.

3.111 Queensland. Appeals are considered by the Tribunal almost the day after they are received from DSS. The Tribunal's procedures are the most heavily file oriented of all the SSATs, and attended hearings are comparatively few. Consideration of an appeal commences with the Chairman setting out in brief the claimant's contacts with DSS appearing on the file, and the transaction subject to appeal. The Tribunal proceeds immediately to discuss the merits of the appeal. In the course of discussion it may become apparent that the facts need further investigation or that there should be a hearing, and consideration of the appeal is then adjourned. The situations in which the Tribunal will hold an attended or telephone hearing are discussed in

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paragraph 3.1 20 below.

3.112 Other Tribunals. Proceedings in the other Tribunals fall between the New South Wales and Queensland models. Like Queensland, the Tribunals do not automatically write to claimants to seek their submissions and the decision whether to give a hearing to the claimant (whether attended or telephone) is made in the course of considering the DSS file. Unlike Queensland, the Tribunals do not advert to the whole of the DSS file as a matter of course, but only where the claimant's history may be relevant to the decision, e.g. there may be pattern of CES telegrams or courier messages failing to reach him or her. Like the New South Wales Tribunal, the Tribunals are reluctant to decide on the record alone, though they do not see a hearing as necessary for every case.

3.113 Generally. All Tribunals work towards their decisions by discussion. Because there is no adversary element in the procedure, the issues are not well defined and discussion can often be ill directed and time consuming. Because in many Tribunals every member does not have all the relevant information, discussion can often be disjointed and sporadic as members read pages on a file being handed round. Because there is no personal input from DSS and claimant, the time taken to reach a decision is often extended as information is sought separately and consecutively on various points.

3.114 Some Tribunals do not always seek further information where there might be uncertainty as to the facts. The potential dangers of this practice are alleviated by the relevant Tribunal's notifying their decision (where it is contrary to the claimant) with the advice that should the claimant have further material to place before the Tribunal, it would reconsider its decision. This was done in South Australia and Victoria prior to their change of approach to hearings. On occasions, the Queensland Tribunal dismisses an appeal where there is a conflict of evidence without advising the claimant that he may submit further material, so leaving it to his or her initiative to come forward. The approach in the above instances may be compared with that of the New South Wales and Australian Capital Territory Tribunals where an onus of proof is in effect imposed on the Department and the Tribunals recommend in favour of the claimant where there is uncertainty or conflict on the facts but the claimant has submitted enough to make his claim tenable. On the other hand, the presence of an argued DSS submission tends to place a practical onus on the claimant. The Act imposes no general onus of proof, though the phrasing of particular provisions may place the onus of proving particular matters on either the claimant or the Department.

CES Liaison Officer

3.115 One recent innovation has been the institution of a CES liaison officer for each Tribunal. The liaison officer acts as a 'resource person to provide information for the Tribunal on the way in which CES operates and the employment aspects of unemployment benefit appeals. The liaison officer also performs functions analogous to the appeals sub-section of the SBU. He examines the case, seeks further information from CES regional offices, discusses the case with regional managers, and may concede the appeal by withdrawing an adverse SU44. Alternatively, the regional manager may withdraw the SU44 after discussion with the liaison officer. Originally, the liaison officers in the larger States were engaged full time with the Tribunals, but the drop in adverse SU44s has meant that there has been less for them to do and, save in New South Wales, the liaison function now accounts for only a small part of the relevant officer's work. DSS, CES and the Tribunals all regard the presence of liaison officers as valuable and are of the view that they have contributed to an improvement in Tribunal decision making.

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Claimant's Input to Appeal Decision

I3.116The claimant's input to an SSAT varies from State to State and case to case, but is always very limited. Input arises in tour ways: Information given or documents provided to DSS or CES prior to the adverse

decision being made, primarily by filling forms and answering questions addressed by DSS or CES officers by questionnaire, interview, or field officer inquiry. The information given is reduced to writing by an officer, and the claimant may or may not sign the statement as correct. The purpose of the questions and the consequence of the answers may often not be known to the claimant.

Information given or documents provided to DSS or CES after notification of an impending or actual adverse decision. Here the claimant has some knowledge of the case against him or her and of the consequences of any information provided. Information is reduced to writing by a DSS or CES officer and is usually signed as correct by the claimant.

The appeal form submitted by the claimant. This identifies the decision appealed against and the reasons for appealing. Many appeal forms seen by the Secretariat were inadequate in that reasons were either not advanced or inadequately stated. The completed form is often no more than a statement of a wish to appeal; it is neither a pleading nor an expression of the case which the claimant wishes to develop and the material in support of the case. Unless there is a telephone or attended hearing, this is the last opportunity the claimant has in practice to influence the outcome of the appeal.

Telephone or attended interview (see paragraphs 3.1 20 to 3.1 27 below).

Support for the claimant from a welfare group will result in better input.

Claimant's Access to Material

3.117 The preceding paragraph sets out the situations in which a claimant may have input into the appellate decision. The effectiveness of his input is determined in large measure by the understanding he or she has of the case to be met and his or her access to both the basis of the decision (the Manuals of Instructions) and the material upon which the decision was taken. The Manuals are not public, though they would have to be made public under the Freedom of Information Bill 1978 clause 7(1)(a) upon that legislation being enacted.

3.118 Not all relevant documents are made available to the claimant automatically (c.f. AAT Act Section 37). Access to documents is defined by Appeals Procedures Instruction 5 which provides:

In keeping with the principle of equality before the Appeals Tribunals, any issue relevant to a determination should be brought to the appellant's notice so that he may have the opportunity of presenting his case. Consequently if any document relevant to the case is not made available to the appellant by the Department, the Appeals Tribunal may - if it so desires - give the appellant the opportunity to give his case on the particular question raised in that document.

5.1. The appellant has the right to receive a copy of any document he has produced or any statement he has made to the Department, e.g. a claim form, medical certificate and statement before an officer of the Department.

5.2. If any information was obtained by the Department and it contains details which may be distressing to the client, this should not be disclosed, but the facts should be drawn to the Tribunal's notice in the Departmental statement mentioned in paragraphs 3.8 and 3.18.

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5.3. As the Appeals Tribunals do not process appeals which are strictly of a medical nature it is not proposed that medical reports obtained from Australian Government Medical Officers should be made available to clients.

5.4. Attention is also drawn to paragraph 1.3 above care should be taken to protect persons who inform the Department of a de facto marriage relationship, employment of clients etc. That is, the names of such people should not be disclosed. In any event, the information provided by such people should be verified before any action is taken which might affect entitlement. If at all possible the client should be given the opportunity to refute the allegations of informants. In reaching its decision on such matters the Tribunal will take into account the views of the client, the informant and any reports on the issues which are prepared by departmental Social Workers or Field Officers.

3.119 Claimants other than those advised by computer form are not routinely told of their right to have access to the documents set out in Instruction 5, and it appears that documents are seldom requested. In fact, Instruction 5 grants access to only part of the documentation contrary to the claimant, and even that part is significantly limited by the restriction of 'distressing' material or material which may identify an informer. Suppression of 'distressing' material might on occasions negate the purpose of releasing documents, and might more often result in inaccurate statements of the reasons for decisions being provided to claimants in an endeavour to keep that material secret. It would usually be possible for documents, which either contain 'distressing' material or reveal an informer, to be summarised or 'blue pencilled' and the resulting document released (c.f. AAT Act Section 35). This is not done. The claimant, therefore, may be severely limited in his or her ability in practice to meet the case against him or her.

Incidence of Hearings

3.120 As was stated in paragraph 3.108 above, the New South Wales and A.C.T. Tribunals attempt to provide a telephone or attended hearing to every claimant. The incidence of hearings in other Tribunals varies. The following is a table of the situations in which hearings will be granted by Tribunals: where the claimant so requests - all Tribunals, cf. Appeals Procedures Instruction

4.3(a) which refers to hearings being provided where the claimant 'insists'; where it is apparent that the claimant lacks sufficient education or literacy for the

appeal form to be relied on - all Tribunals; cohabitation appeals - all Tribunals, but Queensland only when it appears from the

file to be desirable; where an allegation of fact by OSS has been expressly differed from by the

claimant - South Australia, Tasmania, Victoria and Western Australia; where the Tribunal is uncertain of the facts after reading the file material - South

Australia and Victoria; where there is any suggestion at all that the applicant might have a good case -

South Australia; Where the result of the case turns upon findings of fact - Victoria.

3.121 In reply to a question without notice in 1978, the Minister for Social Security stated, 'I will be happy to see that more publicity is given to the fact that a personal attendance [at an SSATJ may be requested. If further publicity is required to do this I will see that the Department gives attention to it' (Commonwealth Parliamentary Debates (Senate), 24 May 1978, p.1723.) The DSS pamphlet on appeals is not as definite as the Minister's statement: 'In most cases people do not have to go to a meeting of the Tribunal. If it is necessary you may put your case in person to the Tribunal'. Appeals Procedures contain no instruction for ROs to inform claimants of their right of personal attendance on the Tribunal. It is not known to what extent ROs do so advise.

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3.122 The issuing of invitations to attend a Tribunal in person is constrained by a number of factors, e.g. the availability of time for the Tribunal to conduct hearings and complete its workload of cases, the place of residence of the claimant and the availability of funds to pay country claimants' costs of attending. The Director-General has informed the Council that he would instruct SSATs not to hesitate to offer a telephone or attended hearing should the Tribunal wish to do so (Minutes of meeting of Director-General with Council 10 August 1978 p.7). Most Tribunals have experienced a steady increase in the number of appeals in which telephone or attended hearings have been given. That this has not involved an increase in resources may be attributed to the lower total number of appeals which have been lodged recently.

Costs of Attending Hearings

3.123 Payment of the reasonable cost of a claimant's attending a Tribunal may be made in the discretion of the Department. Costs are reimbursed or travel warrants are provided in advance for suburban, intra - or interstate travel (Appeals Procedures Instruction 4.5). Overnight accommodation may also be paid (Instruction 4.SB). The Departmental member of the Tribunal holds a delegation to authorise travel and accommodation reimbursements or warrants other than for interstate travel. A full report of the circumstances where interstate travel is necessary must be prepared for consideration and determination at Central Office (Instruction 4.5E).

Travel by Tribunals

3.124 Instruction 4.11 provides:

4.11. When the Tribunal finds it necessary to hold a hearing in any case it considers the respective costs of (a) bringing the appellant to the Tribunal, or (b) taking the Tribunal to the appellant. As far as is practicable, the Tribunal chooses the more economical method. However, the Tribunal still retains the discretion to travel where there would be hardship for the appellant in coming to the Tribunal, e.g. where the appellant has difficulty in travelling because of an incapacity.

All mainland State Tribunals have used this facility on occasions. The Victorian Tribunal experimented by sending the Chairman of one of its Tribunals to a number of country centres to take evidence and report back to the other members. This was found to be unsatisfactory.

3.125 In 1978-79 no travel costs were incurred by the A.C.T., Queensland, and Northern Territory Tribunals, i.e. no claimant was assisted to attend a hearing and the Tribunals did not travel to another centre to hear any appeal. A total of $1674.44 was spent by the other Tribunals, accounted for by the New South Wales Tribunal (43.3% of total cost), South Australia (21.5%), Victoria (16.1%), Tasmania (14.5%), and Western Australia (4.6%). This does not include telephone charges incurred in telephone hearings.

Conduct of Attended Hearings

3.126 Attended hearings proceed in much the same way in all Tribunals. The claimant is brought into the Tribunal room and introduced to the members. The members' positions on the Tribunal are explained. The claimant is seated on one side of the Tribunal table with the members seated on the other side or spread around on two or three of the sides. The chairman then explains the role of the Tribunal and its powers. He outlines the issues involved and the case against the claimant. The claimant is then requested to tell the Tribunal his or her side of the matter.

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Depending on the competence and articulateness of the claimant, the Tribunal may either leave the claimant to put his or her case and simply ask questions to test what has been said or to fill in gaps, or it may turn the hearing into an informal 'chat' in which the relevant information is obtained from the appellant in an unforced way. Relevance is never strictly enforced, in the hope that the claimant will 'open up' and provide the Tribunal with the necessary material. Questions directed by the Tribunal vary from prompting or inquiry to cross-examination. Where the claimant is inarticulate, it is generally the social worker member who takes the lead in speaking to the claimant. Again, where the claimant has little hope of success, it most often falls to the social worker to explain the situation and reconcile him or her to it. The atmosphere engendered is a 'supportive' one.

3.127 The parameters within which hearings are conducted may be summed up as ranging from a 'discussion with questions' of a 'nice' conciliatory tone on the one hand, to an 'interview/discussion' which subjects the claimant to inquisitorial examination on the other. There is no hint of a court-like process, and the demands of the hearings attended by the Secretariat were generally less severe than those of many Small Claims Tribunals hearings (see G.D.S. Taylor, 'Special Procedures Governing Small Claims in Australia' in 2 Access to Justice (Guiffre, Milan, 1979), pp.641-648).

Use of Manuals of Instructions by SSATs

3.128 The approach of the Tribunals varies. The Queensland and Western Australian Tribunals generally use the Manuals along with the Act as the basis for their decisions. Although there are occasions where they (as would senior public servants) depart from the relevant Instruction, their general approach emphasises the character of these Tribunals as internal to DSS. The South Australian Tribunal regards the manuals as 'stronger than guides', from which the Tribunal may depart where there is some special reason so to do. The Victorian and A.C.T. Tribunals base themselves upon the Act and regard themselves as in no way obliged to apply Instructions in the Manuals. The New South Wales Tribunal regards itself as not even bound by the thrust of the policies embodied in the Manuals. It was observed, however, that that Tribunal tended to advert to and cite the Manuals in decisions where their content supported the conclusion the Tribunal wished to reach. One DSS officer described the New South Wales Tribunal's approach to policy as 'uneducated', but supported the Tribunal's view that the Manual was not binding upon it.

3.129 While SSATs remain subject to being overruled by DSS, their disregard of the Manuals has its value. However, any tribunal with power of decision must form a considered and constructive approach to the Manuals. A tribunal with power of decision would be in the position to determine policy within the limits of the legislation. As is mentioned in Part 1, paragraph 1.045, the Administrative Appeals Tribunal can be expected to be reluctant to interfere with broad government policy, especially if that policy has been subject to Parliamentary scrutiny.

DSS Reconsideration of SSAT Recommendations

3.130 Where a Tribunal decides to recommend favourably to the claimant, it prepares a recommendation with reasons for the State Director of Social Services. The Tribunal also notifies the claimant that it has made a recommendation to the Department, though '[the] Tribunal should not inform the appellant of the substance of their recommendation for the reasons that some appellants wrongfully gain the impression that their appeal has been upheld and such action can only raise the appellant's hopes and, subsequently if the recommendation is not approved, cause distress' (Appeals Procedures Instruction 3.13). If the State Director agrees with the

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Tribunal, the Tribunal is so advised and it notifies the claimant of the outcome of the appeal. Where 'because of special circumstances or the action recommended would involve a departure from departmental procedures and instructions' (Instruction 3.14), the State Director decides that the recommendation should be rejected, the file must be sent to DSS Central Office. Only the Director-General or a Deputy Director-General are permitted to reject Tribunal recommendations, though senior officers in Central Office may approve recommendations. The Central Office decision with reasons is notified to the State Director with copy to the Tribunal. The Tribunal then informs the claimant.

3.131 Where the State Director decides not to accept a Tribunal recommendation, he is instructed to discuss the merits of the case with the Tribunal before sending the file to Central Office. That Instruction has not been commonly applied. When the Instruction was issued to State Directors by letter of 1 7 November 1976, the purpose of discussion was said to be to 'assist in lessening gaps between the views of Tribunal members and departmental officers'. The Instruction has, however, been seen by some Tribunal members as a veiled attempt to influence members to change their recommendations and to accept departmental practices of which the Tribunals might disapprove. In so far as discussions might go beyond fleshing out reasons for the differing views on the merits, the view of members can be appreciated. The concept of discussion of differences is indicative of the place of SSATs as internal and not external review.

3.132 Instruction 3.14 implies that OSS is not to reject a Tribunal recommendation merely because the Department differs from the Tribunal's appreciation of the facts. This has not always been adhered to. In South Australia in 1978, Tribunal recommendations were rejected at State level where it was considered that the determining officer had adequately considered the matter and the Tribunal view was in the nature of second-guessing. This type of local variation should no longer exist, but it cannot be said that there are no cases where Tribunal recommendations are being rejected because of a differing appreciation of the facts.

Rejection of Appeals for New Reasons

3.133 On many occasions, Tribunal recommendations have been rejected by DSS on the basis of grounds other than those on which the primary decision or SSAT recommendations were made. Shifting to another ground of decision can also occur when DSS is reconsidering a decision prior to the Tribunal hearing. When an appeal comes before a Tribunal, it may also appear from the file that the claimant is not entitled to payment for a reason other than that on which the primary decision was based. In the latter two situations, the claimant is not informed of the new jeopardy unless he is in any case to be given a hearing. However, the practice of the Tribunals is that where they themselves notice a further ground of dis-entitlement, they do not base their decision on it.

3.134 Where the change of ground for dis-entitlement is made after the hearing, there is no opportunity for the claimant to be heard. Current procedure is that where it appears that an appeal which has been subject to a favourable SSAT recommendation should be dismissed on a new ground, a decision is not made but the matter is referred back to the Tribunal, drawing attention to the new ground. This enables the claimant to be heard.

3.135 It would be contrary to natural justice for either the Department, in reviewing Tribunal recommendations, or the Tribunals to decide an appeal adversely to the claimant upon a ground not previously notified to the claimant.

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Assessment of the SSATS

3.136 The Director-General has expressed the view that while the existing SSAT procedures leave much to be desired in point of absolute legal standards, it is only because of their abbreviation of standards that they are able to cope with the number of appeals flowing to them, and the abbreviation of procedures itself is only possible because the Tribunals are advisory (letter to Director of Research, of 7 February 1980). This observation is correct to the point that Tribunal members also accept that if the SSATs had power of decision they would have to be more rigorous in their fact finding. It does not necessarily follow, however, that more rigorous procedures should not be introduced or that to do so would unreasonably increase the resources committed to appeals (though there would be a significant increase). Professor Mossman, in 'Decision Making by Welfare Tribunals: the Australian Experience' (1979) 31 University of Toronto Law Journal 218, would appear to agree with the Director-General in his assessment, though she also criticises Tribunal procedures. Her view is that the absence of these elements of procedural fairness appeared to be less serious in the Australian tribunals due to the presence of a lawyer. 'Less serious' they might be, but serious none the less.

3.137 Of greater moment is the absence of factual, let alone legal, independence of SSATs from the Department. This has been noted in a number of paragraphs above. It would appear that the Director-General himself sees the SSATs as internal to the Department, for he has informed the Council that (letter to Director of Research, of 7 February 1980)

We are able to live with this situation [the abbreviated procedures and weak fact finding of SSATs] simply because the tribunals' reports are not legal determinations but administrative advisings helping the Director-General to come to the final decision under the provisions of the Social Services Act. (emphasis added)

Advisory bodies which include some non-departmental members may be appropriate in some areas of some government agencies. It will be apparent from observations elsewhere in this paper that there are strong grounds for the view that the grant of social security payments is not an area where advisory bodies are appropriate as the final means of review of departmental decisions.

Defects in SSAT Procedures

3.138 In reply to the Council's first survey of Tribunal procedures in 1976, the Chairman of the New South Wales SSAT identified five defects in procedures which prevented claimants obtaining a fair hearing: lack of full information as to the case to be met; lack of an opportunity to answer the Department's case; use of anonymous hearsay evidence against the claimant; lack of access to documents in DSS files;

the claimant's main disadvantage is that he does not understand the issues, he has no knowledge of the Department's instructions or policy and he does not know his rights. He does not know how to present arguments or facts which would assist his case and he is not permitted to have legal representation.

3.139 The various Tribunals' procedures for providing telephone or attended hearings, and the conduct of those hearings, are aimed at meeting the above disadvantages. While they mitigate the disadvantages suffered by the claimants, they cannot provide a hearing sufficient to meet either the standards of justice applied in other areas of tribunal review or those applied to social security appeals by tribunals in the United Kingdom, Canada or New Zealand. They are defective and only a

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radical reworking of the existing system can cure those defects. In particular, evidence before the Tribunals is unbalanced. If a hearing is not provided, the Tribunal has from the Department a set of material in support of the decision and a reasoned submission, which is met by a typically unreasoned and bald statement of the claimant on the appeal form. Where a hearing is provided, there is an oral statement (which is effectively untested save by likelihood and internal consistency) with the advantages of immediacy and the opportunity to establish a rapport with the Tribunal, opposed by the written DSS material referred to in the preceding sentence. Several SSAT members have remarked upon the difficulties in which these imbalances place the Tribunals. Because of these imbalances, there is no reasonable assurance of justice being given in any particular case.

3.140 The position of the Tribunals in fact finding is particularly weak where there is no hearing. Upon the Secretariat's observation of Tribunal meetings it appears that members are obliged to try to imagine arguments which a claimant might have wished to advance had he or she been able to take advantage of a hearing. Written material is often tested against hypothetical scenarios of the events in question, based upon typical patterns of behaviour and any indications which may appear from the file itself. Because the fact-finding processes available to the Tribunals are unlikely to bring assurance that the facts so found are correct, conclusions are drawn from the material available even though the Tribunal concerned might recognise the likelihood of some of the conclusions being incorrect.

3.141 Four cases illustrate the ways in which the abbreviated SSAT procedures apply to cases. The first case involved cancellation of unemployment benefit for failure to respond to a CES telegram requiring the claimant to attend for a job interview with a prospective employer. The claimant's case was that he had never received the telegram. The Tribunal made inquiries of Australia Post which had confirmed that the telegram was delivered. Delivery was to a box in the foyer of a Housing Commission complex. The social welfare member of the Tribunal outlined the conditions in those complexes, the frequency of mail boxes being broken into and mail being stolen. Her view was that there was no certainty of delivery so the claimant should be given the benefit of the doubt. There was disagreement in the Tribunal on this point. The Tribunal then examined the claimant's file to see if there were other instances of non-response (there were none) and finally adjourned consideration until further information had been attained from the claimant as to his efforts to find work. In this case, the Tribunal refused to decide on a factual issue where there was real doubt and attempted to find another issue upon which the appeal could be resolved.

3.142 The second case involved cancellation of unemployment benefit for lack of reasonable attempts to find work. The claimant (who lived in the country) was invited to attend a hearing by the SSAT. He did not make contact, but his mother rang to discuss her son's attempts to find work. She was unable to provide details; he had not kept a written record of his attempts. It was pointed out to her that without detailed information, the Tribunal could not recommend against the Department. The claimant’s attendance had been sought because it was considered that, with questioning, the claimant might be able to give sufficient details of his work efforts for an assessment to be made. The Tribunal did not persevere with its request that the claimant attend the Tribunal, and dismissed the appeal with the note to the claimant that if he was able to produce further evidence the Tribunal would reconsider the matter. In this case, the Tribunal recognised that it could not reach a clear conclusion without a hearing, but did not press the claimant to attend; consequently, the decision was made without adequate information, though a reasonable opportunity was given the claimant. This type of situation would be likely to arise regularly even were social security tribunals to operate with oral hearings

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being scheduled for every appeal.

3.143 The third case was also one of cancellation of unemployment benefit, this time for refusal of a job. The job was as a dark room attendant. The claimant's reasons for refusing the job were that her parents were shifting house, that her car was unregistered, and that she was pregnant. The appeal was upheld on the grounds that the job offer was unsuitable because of the danger to the foetus from radiation in the dark room. This danger was raised by one member but was not further investigated by the Tribunal; the assumption was untested, though some level of testing would not have been difficult.

3.144 In the fourth case, the claimant had been refused unemployment benefit. He had come to the area in question some time prior to the events leading to the appeal and had been self-employed there. He had then moved to Darwin. When he returned, he was refused benefit. One member suspected that the claimant was self-employed attempting to gain benefit between jobs; he doubted the claimant's veracity and drew attention to inconsistencies in his story. The Tribunal was divided on this point with one member for, one against, and the third having doubts. It was decided to adjourn the case and ask DSS to make field officer inquiries. This course of action was preferred to offering the claimant a hearing because of the credibility issue, it being felt that a field officer would be more likely to arrive at the truth by enquiry of neighbours etc. This case emphasises the milieu in which SSATs operate which is very different from courts or traditional tribunals. The absence of normal fact-finding processes and of cross-examination makes cases such as this difficult to resolve with confidence in the decision.

The Effect of the SSATs

3.145 In terms of the aims of administrative review, the SSATs have had a number of beneficial effects in some measure. Firstly, they have led to the alteration of about half of the decisions appealed (see Exhibit 2.4 referred to in paragraph 3.104 above). It must be assumed that an improvement in individual justice results from those alterations. Secondly, their decisions appear often to have led to changes in approaches to decision making. It is apparent from discussion with officers in DSS and CES regional offices that in a number of offices, it is assessed before adverse decisions are made whether the decisions would be sustainable on appeal. Assuming that SSAT decisions are likely to be the correct or preferable decisions and assuming that the officers concerned accurately understand the principles used by the SSATs and can apply them to cases in hand, this should result in more correct or preferable decisions being made and an increase in justice. It is not known how widespread is the above approach but the effect might well be significant. Thirdly, SSAT decisions have brought to light practices and policies which might be unlawful, unjust, or not be conducive to the making of correct or preferable decisions. Changes to DSS and CES policies and practices have been made as a result. Fourthly, in the view of a number of DSS officers, standards of work have improved though this effect cannot be attributed solely to the SSATs.

3.146 The breadth of the above effects depends in large measure upon the frequency with which DSS alters primary decisions in the course of preparing appeals for the Tribunals, and the frequency with which SSAT decisions are rejected by the Department. These are indicative of the decision-making power wielded by the SSATs in point of fact. It is significant that Tribunals whose decisions are frequently rejected feel that they have not been effective (one member described the appeal system as a 'sham'). One senior DSS officer in a State where the Tribunal has been overruled frequently shared that view. On the other hand, where SSATs very seldom disagree with the Department, Departmental officers' opinions of the Tribunals are

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often low. The effect of the Tribunals, therefore, is partly related to the extent to which they are the decision makers, and the extent to which they exercise judgment independently of the Department. It might also be suggested that where a Tribunal's reasons for its decisions are articulated in such a way as to command respect, the Tribunal's authority is enhanced.

Conclusion

3.147 The various criticisms of the SSATs made in this section are interrelated. They are: the absence of independence from DSS (paragraphs 3.097, 3.104, 3.105 and

3.131) the constitution including a DSS officer (paragraph 3.098) the procedures involving lack of hearing (paragraph 3.106 et seq.) the absence of rigorous fact finding (paragraphs 3.113 and 3.140) SSATs comparative lack of authority (paragraphs 3.130 and 3.137).

The Myers Inquiry (Report, op. cit, paragraph 5.3.64) summed-up the problems of the Tribunals thus:

While the tribunals operate as informally as possible in an open, fair and impartial manner, and no doubt bring another perspective to a client's grievance, the reality of the situation is that the appeal is still adjudged by Caesar. The Inquiry views this as far from satisfactory, and believes that not only must justice be done, it must be seen to be done also.

The Inquiry's solution was to propose (paragraph 5.3.70):

... that the Director-General should decide an appeal on his department's assessment and if the appeal cannot be allowed, then the matter should proceed to an independent tribunal. In the present scheme of government arrangements, the Administrative Appeals Tribunal is the final arbiter on appeals against decisions made by Commonwealth public servants. Accordingly, the Inquiry recommends that the present Social Security Appeals Tribunals be replaced by the Administrative Appeals Tribunal or that they be constituted as statutory entities under the authority of the Administrative Appeals Tribunal.

The Inquiry's conclusion is strongly supported.

Medical Appeals

3.148 Applicants for and recipients of social security payments (other than those under Part VIII of the Social Services Act (Rehabilitation)) against whom an adverse decision is made based on a recommendation by a Commonwealth Medical Officer, may appeal against the decision. The relevant instructions are in the Appeals Procedures Part 6.

3.149 Medical appeals are not handled by the SSATs. When an appeal is made, the determining officer forwards the appeal, along with all the medical material on the file, to the State Director of Health. The Director may recommend whether the appeal should be upheld or not. If he recommends that it not be upheld, or if the DSS determining officer decides not to follow the Director's recommendation that the appeal be upheld, the matter is referred to an external medical practitioner (who is usually a specialist) chosen by the Director of Health on the basis of the expertise and knowledge required to consider the particular case. The external medical practitioner reconsiders the case, usually following physical examination of the claimant, and reports to the Director of Health. The Director forwards the report to

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the determining officer together with his own comments. A recommendation is made by the determining officer to the Senior Assistant Director (Benefits) in DSS State Headquarters, and a decision is made on the appeal. This process cannot be described as involving a 'medical tribunal' (the description used in the DSS Annual Report for 1977-78, p.2) but only a second opinion. It lacks the characteristics of a satisfactory external review process. In 1978-79, 2744 'appeals' were lodged against medical assessments, 11 28 were allowed, 1094 were rejected, and 273 lapsed (figures provided by DSS).

Advice and Assistance

3.150 There is no formal provision for advice and assistance in the present social security appeal system. There is, however, a large number of social welfare organisations on local, State, and national bases which provide assistance. Those organisations do not appear to be sufficiently widespread to enable more than a small proportion of claimants to enjoy advice and assistance.

3.151 Advice and assistance can contribute to the review process at every stage, from the time of claiming payments through the RO stage, to the SSATs. The present official avenues for advice and assistance are through DSS social workers, the help counter officers or assessors give as a courtesy, and the assistance which ROs are directed to afford to claimants wishing to appeal (Appeals Procedures Instruction 2.4.), namely, to 'provide any necessary assistance in the preparation and completion of a formal appeal'. Provision of advice and assistance by all the above officers is desirable, but cannot substitute for advice and assistance oriented towards commitment to the claimant's interest.

3.152 One hundred and one of the 134 DSS regional offices have social workers and/or social welfare officers (Exhibit 3.8). However, those officers seldom number more than three in any office and are so heavily committed to their main function of attending to the social welfare needs of their clients that their ability to provide advice and assistance is limited. They necessarily have an orientation more committed to claimants' interest than other DSS officers, so that they appear to be more trusted by claimants.

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EXHIBIT 3.8Distribution of Social Workers and Welfare Officers in DSS Regional

Offices as at July1979ACT NSW NT QLD SA TAS VIC WA

TOTAL3 SW 2W0 1 = 13 SW 1 = 12 SW 3W0 1 = 12 SW 1 WO 3 1 1 3 = 82 SW 9 7 3 = 191 SW 1 WO 4 18 = 221 SW 1 18 2 5 2 5 6 5 = 441 WO 1 2 1 = 4No officers 1 15 2 5 3 0 2 6 = 34TOTAL 2 46 4 21 15 5 30 11 =134

Social Workers can and do provide advice and assistance as part of their general welfare responsibilities.

3.153 Apart from the RO for Brisbane office (unemployment and sickness benefits) who frequently provided assistance, ROs are not often asked for their assistance in preparing appeals. Where requested, the assistance is given. It appears from discussion with ROs that they assist mainly by ensuring that the decision being appealed against is accurately described, and that arguments put to the RO are not inadvertently omitted from the appeal form. This falls short of advising on how to put and emphasise the various arguments advanced, but it is hard for an officer who has made a conscientious decision adverse to a claimant properly to fulfil such a function and be accepted by the claimant as acting fairly. ROs appear to be conscious of their position as independent decision makers on review who must remain objective and fair to both claimant and Department when providing assistance for an appeal. Thus, one RO sent a claimant who had requested assistance to another officer because she was convinced that the claimant was not entitled to payment and doubted her ability to do justice to the claimant's appeal statement. RO assistance is valuable, but it cannot involve a full commitment to claimants' positions. It is the absence of knowledgeable commitment to claimants in assisting the preparation of the claimants' cases for appeal which exacerbates many of the inadequacies and inefficiencies of current SSAT procedures.

3.154 Claimants are entitled to be represented before SSATs but not by legal practitioners (unless the practitioner happens also to be the claimant's Member of Parliament - as happened once) (Appeals Procedures Instruction 4.3(c) and (d)). In practice, few claimants are represented before Tribunals and, if they are, representation tends to be by relations and friends. Relations and friends usually know no more of the issues than does the claimant, so that form of representation may provide the claimant with a sturdier formulation of his or her case, but often not

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with a knowledgeable presentation. Welfare organisations in a number of capital cities have built up small but knowledgeable nuclei of advisers, e.g. the Unemployment Rights Service (run by a social worker with legal qualifications) and the Action and Resource Centre (run by persons who are or have been in receipt of social security payments and have developed a self-help system) both in Melbourne. The United Kingdom evidence is that representation, particularly by knowledgeable social workers, makes it much more likely that the claimant will succeed (see Part 4, Exhibit 4.2). This is not because tribunal members lose their objectivity, as one respondent to the Council's First Consultative Paper suggested, but because, often for the first time, all the relevant material available to the claimant is put forward in an organised and relevant fashion. Representation by knowledgeable persons from social welfare organisations would in the generality of cases overcome many of the defects in SSAT procedures identified by the New South Wales Tribunal Chairman (see paragraph 3.138 above), but would not overcome the inherent defect that there is no provision for testing the evidence nor would it provide a balance in the evidential positions of the Department and the claimant (see paragraphs 3.139 to 3.144 above).

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ATTACHMENT 3.2Statistics on Review Officer Work

These statistics relate only to New South Wales, Tasmania, Victoria, Western Australia and Brisbane (Unemployment, Sickness, Special Benefit).

Statistics for South Australia are insufficiently detailed to shed light on Review Officer work for the purposes of this paper. Statistics are not kept generally in Queensland. The statistics are derived from information received from DSS.

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NEW SOUTH WALESReview Officer Contact Statistics for May 1978 to September 1979

Office No. of RO Contacts

Av. Time (minutes)

% of contacts

where claim conceded

% of contacts

later appealed to

SSAT

% of SSAT appeals

previously reviewed by

ROState Total 5011 30 45.9 16.2 33.9State Hdqts 253 38 41.5 15.0 5.9Albury 48 36 70.8 23.0 28.5Armidale 78 44 37.2 17.9 28.9Bankstown 129 29 55.8 5.4 11.4Bathurst 11 30 36.4 18.1 New OfficeBlacktown 57 25 33.3 12.3 45.4Bondi Junction 119 31 56.7 13.3 38.1Broken Hill 27 30 40.7 22.3 New OfficeBurwood 63 34 47.6 28.5 15.4Campbelltown 10 24 40.0 50.0 New OfficeCamperdown 16 31 50.0 12.6 New OfficeCanberra 290 29 56.6 8.9 26.0Caringbah 84 23 62.0 29.7 70.4Cessnock New OfficeChatswood 19 37 26.3 21.0 New OfficeCharlestown 17 17 17.7 0.0 New OfficeCoffs Harbour 124 29 34.7 45.2 71.8Crows Nest 152 37 48.0 23.7 63.1Dee Why 105 36 41.0 28.6 80.0Dubbo 117 26 49.6 12.8 New OfficeFairfield 46 21 50.0 13.0 New OfficeGosford 179 32 43.0 6.2 33.3Goulburn 41 40 31.7 14.6 46.1Grafton 27 21 48.1 29.7 New OfficeGriffith 233 32 36.5 9.0 33.3Hornsby 125 18 61.6 17.6 59.0Hurstville 126 57 34.9 64.7 77.0Kempsey 81 26 19.8 22.2 8.0Lismore 476 39 54.5 6.7 62.8Lithgow 95 25 62.1 6.3 17.4Liverpool 56 33 55.4 10.7 36.4Maitland 109 35 17.4 4.6 40.0Manly 122 50 29.5 13.9 42.4Maroubra 57 40 26.3 26.3 16.2Marrickville 3 40 66.7 0.0 New OfficeMayfield 24 20 62.6 14.6 New OfficeMoree 14 30 71.4 28.6 New OfficeMt Druitt 26 31 42.3 7.7 New OfficeNewcastle 79 30 35.4 19.0 14.3Nowra 117 38 47.0 17.1 54.8Orange 78 16 38.5 19.2 34.6Parramatta 291 23 42.3 33.3 94.7Penrith 18 20 55.6 27.7 New OfficePt Macquarie 19 47 42.1 37.6 New OfficeRedfern 7 30 42.9 0.0 New OfficeRyde 44 29 75.0 11.4 36.4Tamworth 33 41 72.7 12.1 New OfficeTaree 40 21 37.6 7.4 -The Entrance 55 10 71.0 7.2 50.0Wagga 100 36 46.0 10.0 43.7Wollongong 571 15 45.0 6.5 97.2

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VICTORIAReview Officer Contacts from May 1978 to September 1979

Regional Office No. of Contacts No. of Claims Conceded

% of Claims Conceded

Average 34.8State Headquarters 24 11 45.8Ballarat 43 21 48.8Bendigo 106 48 45.3Box Hill 205 92 44.9Camberwell 40 23 57.5Cheltenham 13 7 53.8Dandenong 155 34 21.9Footscray 66 24 36.4Frankston 37 14 37.8Geelong 254 106 41.7Glenroy 115 19 16.5Greensborough 14 10 71.4Hamilton 75 30 40.0Hastings 92 46 50.0Horsham 0 0 0Mildura 23 4 17.4Moonee Ponds 235 43 18.3Morwell 60 7 11.7Northcote 55 18 32.7Oakleigh 57 24 42.1Prahran 79 20 25.3Preston 30 12 40.0Richmond 43 14 32.6St Kilda 116 44 37.9Sale 52 28 53.8Shepparton 43 17 39.5Sunshine 63 39 61.9Wangaratta 125 10 8.0Warrnambool 30 13 43.3Waverley 4 3 75.0Werribee 36 15 41.7

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BRISBANE OFFICEReview Officer (Unemployment, Sickness and Special Benefit) Contact Statistics from January to October

1979

Period No. of Contacts

% of Contacts which were Enquiries

Mode of

Phone

Contact

LetterInterview

No. Appeals Prev. Lodged with SSAT & Reviewed later by RO

No. Conceded by Ro

% Contacts Conceded

No. of Challenges Conceded

% of Challenges Conceded

1.1 to 26.1

311 201 26 84 18 143 46.0

27.1 to 16.2

335 223 34 78 14 184 54.9

17.2 to 23.3

421 39.2 306 34 81 31 128 44.6

24.3 to 27.4

247 51.0 180 19 48 12 76 57.1

28.4 to 25.5

254 46.6 179 30 45 20 89 57.1

26.5 to 22.6

236 47.7 169 27 40 19 76 53.5

23.6 to 20.7

212 47.2 146 26 40 10 55 45.1

21.7 to17.8

154 51.4 108 20 26 19 55 58.5

18.8 to 14.9

229 47.4 161 19 49 8 61 47.5

15.9 to 12.10

168 59.9 117 20 31 12 42 53.0

N.B.

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1. Only after 17 February 1979 were statistics kept on which contacts were enquiries and which were challenges.2. It appears from comparing percentages of contacts “conceded” and all challenges conceded that enquiries were all

included within the heading of “conceded” previous to 17 February 1979.3. “Appeals previously lodged with SSAT reviewed later consists only of appeals which bypassed the RO. i.e. Which were on

matters not previously considered by the RO.

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WESTERN AUSTRALIAReview Officer Contacts from July 1978 to September 1979

Sept 1978

Dec 1978

Quarters

Mar 1979

Ended

June 1979

Sept 1979

Av. %

No. of Cases seen by RO 645 801 819 1182 660 100.0

Decision Changed by RO

202 242 276 357 173 30.4

Decision Stands

443 561 543 825 487 69.6

Appeals lodged after decision

28 43 47 31 57 5.1

N.B. The number of appeals lodged are those lodged immediately after RO contact and do not include appeals lodged later.

TASMANIAReview Officer Contacts from October 1978 to September 1979

Number of Contacts: - 696Number of Claims conceded - 124Number of claimants appealing to SSAT after RO review - 35Number of appeals lodged with SSAT - 160

N.B.

1. The Review Officer covers all Tasmanian regional offices.2. Most pensions contacts are inquiries. Hence, the number of challenges to

decisions would have been substantially less than the number of contacts shown.

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ATTACHMENT 3.3Adverse Work Test Reports (SU.44)

By State and Month

NSW VIC QLD SA WA TASJuly 1978 1017 252 754 261 485 124Aug 1229 294 790 187 407 89Sept 1061 236 672 100 276 69Oct 856 135 557 171 372 89Nov 819 126 470 187 280 94Dec 507 55 158 75 209 49Jan 1979 633 52 337 103 298 145Feb 588 312 368 249 236 147March 771 96 392 235 168 151April 599 96 281 98 145 76May 586 66 549 142 161 64June 451 65 461 83 NA 63July NA 85 516 143 NA 39Aug 401 93 609 110 186 12Sept 466 156 555 121 275 31Oct

Due to labour difficulties in CES figures for those months are not available.

NovDec

N.B. Records on adverse work test reports were not assembled by CES prior to July 1978.

The following graphs attempt to trace the effect of SU44s on appeals. The line for SU44s is adjusted to take account of the gap between issuing an SU44 and lodging an appeal with an SSAT. Thus, the figure appearing for December 1978 represents appeals lodged in October to December but SU44s issued in September to November.

SSAT Lodgements by Quarter June 1978-December 1979

1978 June Sept DecNSW 899 479 456VIC 1028 830 537QLD 1440 1170 748SA 403 329 257WA 376 235 227TAS 140 124 88

1979 Mar June Sept DecNSW 466 359 324 374VIC 446 428 461 443QLD 530 456 448 434SA 203 244 194 178WA 240 174 201 169TAS 72 66 93 68

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137

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ATTACHMENT 3.4NEW SOUTH WALES SPECIALIST BENEFITS UNIT

[Statement of functions provided by the Director of Social Services in New South Wales]

(a) Policy and Standards Sub-sectionFunctions

(i) Policy1. Maintain liaison with central administration on matters of benefits policy; and

collaborate in joint studies on complex legislative provisions and policies.2. Undertake projects and surveys aimed at evaluating the adequacy,

comprehensiveness and cost effectiveness of benefits policy and practice in meeting community needs.

3. Provide an advisory service within the Department, and to other Commonwealth and State Departments and other organisations, on the application and interpretation of benefits policy.

4. Issue internal instructions on the implementation of new legislative provisions and other more complex benefit matters.

(ii) Standards1. Monitor the quality of performance throughout the State to ensure that

consistency of understanding and correctness of application of benefits policy is achieved and maintained.

2. Review, by means of regular surveys, the technical procedures being used in benefits casework to ensure that satisfactory service is being provided to the community.

3. Set standards for benefits casework.

(b) Appeals and Representations Sub-sectionFunctions

(i) Appeals1. Examine and submit recommendations on those cases where appeals have

been lodged against decisions or determinations made under the Social Services Act.

2. Examine and analyse the pattern of appeals to identify situations in which appeals are particularly self-evident and recommend appropriate remedial action.

3. Provide management with appraisals on those appeals where current benefits philosophy and policy is being challenged, and where decisions may result in follow-on effects of considerable proportions and importance.

(ii) Representations1. Research and prepare detailed replies to Ministerial and Parliamentary

representations and other high level Departmental correspondence and requests.

2. Examine and prepare detailed replies to requests for information from the office of the Commonwealth Ombudsman and the Administrative Appeals Tribunal.

(c) Benefits Control Sub-sectionFunctions

1. Undertake the investigatioin of all cases involving offences against the Social Services Act and recommend as to whether prosecution proceedings should be

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instituted or not.2. Examine other benefit matters with a legal content and obtain appropriate

legal opinion where necessary.3. Liaise with other Sections, Deputy Crown Solicitior’s Office, Commonwealth

Police and others to enure that investigations are achieving effective results.

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APPENDIX 5 - PART 4CHARACTERISTICS OF SOME OVERSEAS SYSTEMS

Introduction

4.001 As part of the program of research on proposals for a social security appeals system, a study was made of overseas systems. It was thought that such a study, limited to jurisdictions which had a similar social welfare system (including philosophy and legislation), would assist the Council in its consideration of general principles as well as bring to light the manner in which certain basic problems as to the procedures of social welfare tribunals had been dealt with in those jurisdictions. The systems of Great Britain, Canada and New Zealand were identified as being especially relevant.

4.002 Although those countries have different emphases in their social welfare appeals processes it was possible to deduce from those systems a significant uniformity in basic approach and structure in the relevant legislation and the appeal processes themselves.

4.003 A major point to be noted is that each of the three countries considered has had, for some time, a completely independent specialist review body determining appeals from the relevant government departments administering social welfare legislation.

4.004 The Summary at the end of this Part lists the characteristics of a social welfare tribunal and the procedures it might be expected to adopt, if an 'average' tribunal were to be created.

BRITISH SYSTEM

Introduction

4.005 Social Welfare in Britain is based on the twin concepts of social insurance and national assistance. Social insurance entails legal entitlement arising from contribution. National assistance has as its objective the provision of subsistence needs and is not concerned at all with the question of contribution.

4.006 In relation to national insurance, claims are determined in the first instance by an insurance officer, who is appointed by the Secretary of State for Health and Social Security. He decides the application entirely on documents sent to him by the claimant and branches of the Departments of Social Services or Employment. His duties may be regarded as administrative in that he is not adjudicating between the contentions of the claimant and Departments. When he finds it impossible to determine a case he may refer it to a National Insurance Tribunal for determination (see below para. 4.025). Benefits under national insurance legislation cover such things as retirement benefits, widows' pensions, sickness, invalidity, unemployment and maternity benefits and death grants.

4.007 A supplementary benefit is payable under the Supplementary Benefits Act 1976 (the Act) to people in Great Britain, aged 16 or over, whose resources are less than their requirements. Most people who get supplementary benefit are in one of the following groups: people over pension age (65 for a man, 60 for a woman); people who cannot work because of sickness or disability; people who are unemployed and

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registered for work; single parents and people who stay home to look after elderly or disabled relatives.

4.008 The Supplementary Benefits Commission, under the authority of the Act, administers the scheme and has certain discretionary powers under the Act. These powers include the power to adjust the amount of benefit where there are exceptional circumstances and to award lump sum payments for exceptional needs. The Supplementary Benefit Appeal Tribunals were set up under the Ministry of Social Security Act 1966. A tribunal may confirm a decision 'or substitute therefor any determination ich the Commission could have made' - section 18(3).

4.009 In relation to the appeals processes in each system, marked differences exist. tional Insurance Tribunals are relatively formal bodies and can be equated with lower arts, although the adversarial process is less marked. However, in the decision-making ) process the modus operandi of the National Insurance Tribunals and the Courts is very similar - application of precedents in the form of published case law, with determination legal entitlement based upon statutory rules. The area of discretion is thus fairly defined.

4.010 In contrast the Supplementary Benefit Appeal Tribunals have wide discretionary forms. They are also more informal than the National Insurance Tribunals both ) procedurally and, particularly, in the decision-making sense. The informality can generally be attributed to the lack of precise legal entitlement under the supplementary benefits scheme. The informality of procedures is evident in private hearings, general lack of legal presentation and a failure to give comprehensive reasoned decisions based upon published principles or precedents. There is a general similarity between the supplementary assistance scheme and appeals structure and the existing Australian Social security scheme and appeals structure.

4.011 The existence and extent of discretion in the British supplementary benefits system has been a matter for much argument. The Beveridge Report on Social Insurance and Allied Services (1942) Cmnd. 6404, which laid the foundations of the present system, did not envisage that national assistance would form a major part of the whole system of social welfare. In fact the level of national insurance benefits has been set consistently below the subsistence standards established by the national assistance and pplementary benefits schemes. As a result the national minimum level of income has been provided not through social insurance as proposed by Beveridge, but by the means-tested national assistance and supplementary benefits.

Supplementary Benefits

4.012 The National Assistance scheme was reorganised in 1966 to become the supplementary benefits system. The basis for the system is set out in Section 4 of the Ministry of Social Security Act 1966:

Every person in Great Britain of or over the age of 16 whose resources are insufficient to meet his requirements shall be entitled, subject to the provisions of this Act, to benefit as follows, that is to say,

(a) if he has attained pensionable age, to a supplementary pension(b) if he has not attained pensionable age, to a supplementary allowance

and, in a case falling within section 6 or 7 of this Act, to such a benefit as is mentioned therein.

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4.013 Section 4 can be regarded as the high water mark of legal entitlement; other sections in the Act move the basic floor of entitlement by exercise of discretionary power, eiher upward or (in the case of supplementary allowance) downward according to the existence of 'exceptional circumstances' which make such a movement 'appropriate' (paragraph 4(1) Schedule 2).

4.014 Further discretionary modifications are to be found in Sections 7 (single payments to meet exceptional needs), 11 (power to impose conditions that recipient be registered for unemployment), 13 (overriding discretion in cases of urgency) and 14 payment in kind 'by reason of exceptional circumstances'). In addition it is left to the Supplementary Benefits Commission to determine what a person's 'requirements' are and whether, under Section 4(1), his resources are insufficient to meet them. The area of discretion implicit in such general criteria as requirements and sufficiency is clearly very large.

4.015 In relation to the 'implementation' of these discretions, the Commission had issued a manual of instructions on administrative rules and directions to departmental officials as to how the various discretionary powers outlined above were to be exercised and as to how questions of requirements, resources and sufficiency were to be determined. This code became the subject of much criticism; for example, on the subject of exceptional needs arising from emergencies, the code simply stated that 'the Commission's officers will be anxious to help in the task of relief' and that in particular the Commission could 'make use of its overriding discretion to make payments in cases of urgency to people who would normally be excluded from receiving supplementary benefit, e.g. because they are in full-time work.' (Supplementary Benefits Handbook: (April 1971) Page 2).

4.016 In 1977 the Department set up a small team to rewrite the code in clear simple language, separating questions of entitlement from questions of procedure, so that the revised code could be a simple procedural guide and everything connected with policy on entitlement to supplementary benefit could be published in the Handbook, or in some other readily accessible form. Those two documents would assist staff and claimants who should both be able to refer to a common source of policy with no grounds for suspicion by claimants that secret instructions exist to thwart claims for benefit.

Operation of Supplementary Benefit Appeal Tribunals

4.017 At present there is a right of appeal against:(a) the amount of an award, the refusal of benefit;(b) refusal to review an existing award;(c) payment of benefit to a person other than the claimant;(d) payment of the whole or part of benefit in goods or services;(e) recovery of the whole or part of any benefit paid on an urgent basis to a

person in employment;(f) recovery of supplementary benefit when a claimant was receiving more

than one benefit;(g) a requirement to register for employment as a condition of receipt of

benefit. Appeals Tribunals can also consider:(h) a report by the Commission seeking a direction that supplementary benefit

should be paid subject to a condition that the person attends a re-establishment or other training course;

(i) whether, as a result of misrepresentation or failure to disclose a material fact, benefit has been overpaid and, if so, the amount that is recoverable.

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4.018 At present the method of inquiry is characterised by an absence of what might loosely be called 'legalism'. Legal representation is rare; in a substantial proportion of cases the claimant himself does not appear.

4.019 The appeal is by way of rehearing and there are no formal pleadings. Procedures are very informal and can easily fall into a round table type discussion in which the members of the tribunal, the claimant (if present) and the departmental presenting officer freely participate.

4.020 Each tribunal consists of a Chairman and two other members. The Chairman is not required to be legally qualified and no policy has been pursued of trying to secure the appointment of legally qualified chairmen. In regard to the other two members; one is a person nominated by the local County Association of Trades Councils, the other from a panel appointed by the Secretary of State as persons with knowledge of the problems encountered by claimants. When a claimant does not appear and is not represented, hearings are normally very perfunctory. The procedural rules in general leave the procedure in connection with the consideration and determination of any matter to be determined by the Appeal Tribunal in such manner as the chairman determines. There are currently about 300 chairmen and 2000 members appointed to these tribunals.

4.021 The claimant is entitled to be present, to be heard, to call persons to give evidence and to put questions to any other interested person present and to any person who gives evidence. He may be accompanied by not more than two persons, either or both of whom may represent him at the hearing. Hearings are not open to the public although the rules (Supplementary Benefit (Appeal Tribunal) 1971) do allow attendance of not more than two persons who are genuinely engaged in research connected with appeals to Appeals Tribunals or who have other good and sufficient reasons for being present. Tribunals must record every determination and provide a statement of the reasons therefor in writing. Exhibit 4.1 shows results of appeals to Supplementary Benefit Appeal Tribunals for the calendar years 1973-77.

EXHIBIT 4.1SBAT Appeals 1973-77

With- Revised Cases Decisions Decisionsdrawn and not heard revised confirmedor not heard by by by by

Year Appeals admitted tribunals tribunals tribunals tribunals1973 50 752 8 686 17 580 24 486 4 854 19 6321974 55 743 9 289 20 843 25 61 1 4 493 21 1 181975 68 975 12 029 24 187 32 759 6 568 26 1911976 101 112 22 131 23 856 55 125 10 450 44 6751977 1 14 734 23 531 28 307 62 896 12 071 50 825

4.022 Exhibit 4.2 Shows for 1977 the number of appeal hearings at which the appellant was present, accompanied or represepted, and the proportion of tribunal decisions in favour of appellants.

EXHIBIT 4.2SBAT cases where Appellant represented

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FAVOURABLE DECISIONSAccompanied Appeals Appellant Appellant Appellant Appellantand/or heard attended absent attended absentrepresented (i) (ii) (iii) (iv) (v)

(as % of (as % ofCol. (ii)) Col. (iii))

Solicitors 302 255 47 104(41) 8(17)Social or welfare workers 2287 2055 233 1048(51)

112(48)Friends or relatives 9507 7606 1901 2398(32) 627(33)Claimants', unions, tradeunion or voluntaryorganisations 2207 2009 198 844(42) 69(35)Neither accompaniednor represented 48592 18074 30518 4714(26)

2081(7)

Exhibits are taken from the Supplementary Benefits Commission Annual Report 1977.

The success rate was highest where the appellant both attended the hearing and was represented by somebody with a professional qualification or relevant experience. It was lowest where the appellant was neither present nor represented. About two-thirds of those accompanying or representing appellants were classified as 'friends or relatives' and, while some (it is not known how many) may have been able to provide skilled representation, others probably lent moral support but did not participate actively in the hearing. It is therefore not possible to say precisely what proportion of appellants were represented in any real sense and what proportion were merely accompanied by a friend. It is worth noting, however, that in the 1901 cases where a friend or relative appeared in the appellant's absence and presumably spoke on his behalf, the proportion of favourable decisions was as high as 33%, compared with only 7% where the appellant was neither present nor represented. The exhibit as a whole suggests that, while it is generally to the appellant's advantage to attend the hearing himself, if he cannot do so it is well worth trying to get somebody else to attend.

4.023 In the Supplementary Benefits Commission's Report for 1976 the Commission expressed support for development of facilities for advice, assistance and representation for appellants.

Review of Decisions

4.024 Under the Act the Supplementary Benefit Appeal Tribunals' decisions are normally conclusive for all purposes. The Supplementary Benefits Commission has limited powers under which it can review its own decisions - if the Commission is satisfied that the decision was taken in ignorance of a material fact or on the basis of a mistake as to fact or law. As from 1 January 1978 both an appellant and the Commission have a right of appeal against a decision by a tribunal to the High Court on a point of law. The Court will be able either to substitute its own decision for that of the tribunal or refer the case back to the tribunal with directions for the appeal to be reheard. It is understood that appellants are informed of this right of appeal when the tribunal's decision is notified to them, and are advised that if they wish to consider appealing they should seek the advice of a solicitor. Legal aid may be available for the purpose and for the conduct of any proceedings.

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National Insurance Tribunals

4.025 National Insurance Tribunals consist of a chairman (nearly always a barrister or solicitor) and two members, one representative of employers and the other of employed persons. Unlike Supplementary Benefit Appeal Tribunals, National Insurance Tribunals generally conduct hearings in public. Often there is no attendance by either the claimant or the insurance officer (i.e. the government officer who makes the initial decision and who also prepares the case and appears as the respondent on appeals).

4.026 It is the duty of the insurance officer to forward to the tribunal before the hearing, full written submissions on the decision he has made, together with copies of information upon which his decision was based. This expedites the hearing (i.e. tribunal already has a good idea of the issues). The Tribunal may also seek a report from a local referee. The claimant although entitled to be, will most likely not be represented. Procedures are informal though the decision itself is very formal. This is partly because of the emphasis which is put on the written case which is submitted by the insurance officer beforehand, partly because of the effect of the precedent decisions of the National Insurance Commissioners has (see below) and partly because of the detail of the legal rules of the jurisdiction itself.

Review of Decisions

4.027 The National Insurance Commissioners constitute an appeal tribunal from the local insurance tribunal decisions. There is no further appeal from the Commissioners' decisions on questions of law, as is provided generally in the Tribunals and Enquiries Act 1971. This was the result of a direct recommendation to that effect by the Committee on Tribunals and Enquiries (the Franks Committee), (1957) Cmnd. 218, which was impressed by the high legal standing of the Commissioners.

4.028 In relation to procedure; Commissioners often ask the Insurance Officer's representative (a senior legal officer from the department appears in his stead) to obtain any additional information that is required. Commissioners also use other fact finding methods, e.g. they write to employers for information, use assessors or obtain an extra report from a specialist at the close of the hearing.

4.029 Legal representation is not uncommon, as points of law are often raised. Only when a case appears to the Commissioners to be clear-cut or completely unarguable is a hearing refused. In cases involving difficult questions of law, the Chief National Insurance Commissioner or an appointed deputy may direct that the appeal shall be heard by a tribunal of three Commissioners.

4.030 Selected decisions of Commissioners are printed and published as a series of reports, and they are binding on insurance officers and local appeals tribunals. It has already been noted that this has effectively helped to establish the national insurance jurisdictions as being fairly formal in respect to their decisions, notwithstanding informal procedural methods.

4.031 The supplementary benefits machinery has received more criticism than the National Insurance Tribunals. Undoubtedly the discretionary nature of the jurisdiction has been a contributing cause and it has been suggested that their reputation has not been assisted by their sitting behind closed doors. Legal representation or representation of any kind has been rare. By contrast National Insurance Tribunals composed as they are at Commissioner level of experienced barristers (at least 10 years experience) have received more praise than criticism.

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CANADIAN SYSTEM

Introduction

4.032 In Canada the responsibility for social welfare is divided between the Provinces (including Territories) and the Federal Government. The Federal Government has exclusive jurisdiction in unemployment insurance matters and major involvement in Old Age Security matters. General Assistance for persons in need is provided mainly under Provincial assistance programs.

4.033 The Federal Canada Assistance Plan Act 1966 (hereafter CAP) provided for a single administrative framework for the Federal Government to share with the Provinces the costs of assistance. The CAP authorised the Federal Government to assume 50% of the costs of the assistance. The provincial departments of public welfare set rates of assistance and conditions of eligibility. The CAP encouraged Provinces to implement an appeal system which would allow any person aggrieved by a decision affecting either the granting of assistance or the actual amount of assistance to require a review of such a decision. Each Province now has its own appeal system to deal with all areas of assistance under its control. Although there are differences among the appeals systems adopted by the Provinces a general overview is provided below reflecting the most common features. The Federal unemployment appeal system is considered separately.

Provincial Social Security Appeals Systems

4.034 Most Provinces (including Territories) specify in legislation that applicants are to be informed of the reasons for rejection of their applications and of their right of appeal. The Provinces which do not have specific legislative provisions requiring such notification have clear policies to the same effect.

4.035 Appeals may be made to Social Assistance Boards with respect to granting, suspending or varying a benefit. A person who is dissatisfied with delay in the processing of an application or with the treatment received by welfare staff is generally considered to have a complaint rather than an appeal and may complain to whom he wishes. Some Provinces provide that an appeal per se may rest on such dissatisfaction.

4.036 In all Provinces a person may be represented. Quebec allows for representation by a lawyer; in two other provinces the representative is specifically referred to as 'lawyer or counsel'.

4.037 In all but one Province, there are provisions for accessibility. An appellant may be awarded expenses resulting from the appeal hearing. Provinces have varying degrees of assistance; some limited to travelling expenses, others allowing for witnesses expenses, loss of wages etc.

4.038 Generally, assistance pending the hearing of an appeal is given to the applicant only if he is in receipt of a benefit at the time of appeal. This is provided for either by express provisions in legislation or adopted as a matter of policy. Assistance ranges from provisions for retrospective payments where the applicant satisfies the statutory criteria for such assistance, to such payments being made at the discretion of the Board. Only one Province does not provide for any assistance. Saskatchewan, on the other hand, provides 'client advocates' in each region.

4.039 The Provinces differ as to the appeal structures they have adopted;

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nevertheless a basic feature is that there is (at least) a two-tier structure not including review by the Courts. Exhibit 4.3 on the following page indicates the various approaches adopted, where they are known.

4.040 Because of the different approaches in relation to appeal structures adopted by the Provinces, it is only possible to give a general view of the composition of the sundry review boards. The independent review authorities comprising the second tier of review as set out in the Exhibit consist with few exceptions of three members, none of whom may be public servants. Terms of appointment are for a stipulated period (3 years). Some Provinces have no eligibility criteria for Board members, others specifically allow a recipient of a benefit to be a member.

4.041 The differing appeal structures contain a wide range of time limits for review, e.g. in Prince Edward Island, Ministerial review must be completed within 7 days; after that, if the appeal is continued, the Appeal Board has 30 days to reach a decision. In Newfoundland the applicant has 60 days within which to appeal against an adverse decision (to the Regional Administrative Review Committee) - a further appeal to the Appeals Board must be lodged within 30 days. In contrast in Saskatchewan where, although on the information available it is not clear how soon one has to appeal, the Regulations provide that decisions of the Social Services Appeal Board should be arrived at within 3 days after receipt of a notice of appeal.

4.042 Apart from statistics in relation to appeals appearing in the relevant annual reports, there is no general requirement for publication of appeal decisions. Some Provinces do distribute copies of decisions, with names deleted, to interested parties and agencies.

4.043 The costs of the Appeals Board are part of the relevant Provincial Department of Social Services' budget.

4.044 In Alberta, local Appeal Committees have the authority to countermand any departmental policy not specifically stated in the relevant Act and Regulations. The Committees may make recommendations for the information and consideration of the Department as a supplement to their decision. There is no known express power in other Provinces to allow this function to be performed.

Federal Unemployment Insurance Appeal System

Board of Referees

4.045 The first level of appeal against an adverse decision of the Unemployment Insurance Commission (the statutory body responsible for the unemployment insurance scheme in Canada) (hereafter UIC) is to a Board of Referees, established under the Unemployment Insurance Act 1971. Each Board is composed of a Chairman, appointed by the Governor in Council, a representative of 'employers or representatives of employers' and a representative of 'insured persons or representatives of insured persons'. The constitution of the Boards resembles that of the British National Insurance Tribunals.

4.046 There are comprehensive Regulations governing the procedure of the Board. The following is a brief summary.

4.047 An appellant may be accompanied by a spouse, parent, union agent, lawyer or any other representative whom he may have asked to 'plead his case'. The Board may question the appellant and the Chairman or the decision maker may summon a person whose presence he deems useful. Evidence does not have to be given under

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oath. When the appellant is not present the questioning is replaced by an analysis and discussion of the decision maker's submission among the three referees. Proceedings are not normally

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recorded. If facts came to light at the hearing which the decision maker did not or would not have taken into account, the Chairman may refer the matter back to Unemployment Insurance Commission.

4.048 The Board has power to confirm, rescind or amend a decision. The Act requires written decisions. The Board's decision should be based on legal reasoning applying standards taken from the Act, the Regulations and case law. The UIC has adopted a form which includes the elements of the decision, being normally:

an indication of the sections of the Act applicable; a description of the evidence - letters from appellant, statements during hearing,

information gained by telephone in the course of proceedings etc; a summary of the facts; an assessment of the facts in the light of the law, and a decision confirming

rescinding or amending the decision.

4.049 An appeal may be lodged with an Umpire against a decision of the Board. Exhibit 4.4 indicates the number of appeals to the Board of Referees during the period 1968 to March 1975 and Exhibit 4.5 shows the distribution of appeals heard in 1974 according to the question at issue.

EXHIBIT 4.4Appeals to Boards of Referees

January 1968 to March 1975 inclusive

Year Number of Appeals1968 16 5241969 (estimated) 13 5001970 (estimated) 12 2501971 15 3061972 26 2211973 45 2891974 40 7581975 (first quarter) 10 831

EXHIBIT 4.5Issues on Appeal to Boards of Referees - 1974

Issue Applicable Section % of AppealsAvailability of the claimant sec. 25(a) 48Voluntary leaving sec. 41(1), 16Job Search reg.145(9) 9Antedate reg.150 5Misconduct sec. 41(1) 3Not employed sec. 17 & 21 2.5Job refused sec. 40(a) & (b) 2Capacity for work sec. 25(a) 1.5Labour dispute sec. 44 1.5Formalities in submitting claim sec. 53 1.5Miscellaneous 10

100Of the 40 758 appeals heard in 1974, 5824 were upheld by the Boards of Referees

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(14.3%). Exhibit 4.6 indicates the success rate for appeals against UIC since 1968.

EXHIBIT 4.6Success Rate of Appeals to Boards of Referees

1968 9.6%1969 9.4% (approx.)1970 9.2% (approx.)1971 10.7%1972 1 1.8%1973 15.2%1974 14.3%1975 (first quarter) 16.2%

The Exhibits are taken from Canada Law Reform Commission, Unemployment Insurance Benefits: a Study of Administrative Procedure in the Unemployment Insurance Commission (Ottawa, 1977).

Umpire

4.050 The office of the Umpire constitutes the second tier of appeal in unemployment insurance cases. The Umpire can be regarded as injecting a specifically legal contribution into the appeal process. The right of appeal to an Umpire is conditional; it is contingent on one of the following conditions being fulfilled: the decision of the Board of Referees must be merely a majority and not unanimous, or the Chairman must grant leave to appeal against a unanimous decision. A right of appeal in a majority decision applies only to questions on which the minority member has disassociated himself from his colleagues.

4.051 Decisions of Boards are usually unanimous (about 95% in 1975) and as a result the ie vast majority of claimants whose appeals are dismissed by the Board of Referees must obtain leave from the Chairman before they can appeal to the Umpire. Section 91 of the 1971 Act stipulates that the Chairman can grant leave only 'if it appears to him that there is a principle of importance involved in the case or if there are other special circumstances by reason of which leave to appeal ought to be granted'. In 1974 all Umpires were judges, although the possibility of appointing persons other than judges exists.

4.052 Regulations set a limit of 60 days for the UIC to make up the appeal papers and forward them to the Umpires' office. Benefits paid to a claimant in accordance with a decision of the Board are in principle considered as having been duly paid, whatever the outcome of the appeal. The Registrar of the Umpire writes for the Umpire a summary of facts and legal questions arising from them. When the legal questions are complex he gives an account of current thinking and Umpires' case law on the subject. If he thinks a particular solution is called for on the basis of the file, he indicates this, without prejudice to any new elements which might emerge as a result of the statements of the parties of the hearing. The Registrar's summary and the UIC file is then forwarded to the Umpire.

4.053 Procedures for hearing the appeal are at the discretion of the Umpire. The 'basic' section states:

An Umpire is not bound by any legal or technical rules of evidence in conducting hearings for the purposes of the Act and all appeals shall be dealt with by him as informally and expeditiously as the circumstances and considerations of fairness will

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permit. (Unemployment Insurance Act, section 93(1).

Hearings are not compulsory; they are held if the affected or interested party so requests (in which case the Umpire must accede). Where no hearing is applied for, the Umpire is empowered to render a decision on the basis of the documents filed. In 1974 about one third of appeals were decided without hearing.

4.054 Hearings, when they are held, have a judicial flavour. It has been the practice of Umpires to sit in the courtroom of the Federal Court. The judicial effect is strengthened by the presence of the Registrar of the Umpire's Office, the Deputy Registrar (whose functions are those of the Clerk of the Court in a Court of law) and an usher. In most cases a claimant is represented by a lawyer, union representative or 'peoples advocate' from an organisation helping the unemployed.

4.055 The examination of the appeal follows a procedure broadly similar to the corresponding phase before a court of law, with the statements and cross-examination of the appellant, the respondent and their respective witnesses, the 'summing up' of the issues by the Umpire, the pleadings and answers of both parties.

4.056 The Umpire's written decision may hold one of the following conclusions with regard to each question raised by the appeal: upholding, rescinding or amending the Board's decision, or sending the case back to the Board. Reference has already been made to payments made if the Umpire rescinds the Board's decisions in favour of the UIC. When the Umpire rescinds a decision of the Board and substitutes a decision in the claimant's favour, the latter's rights are reinstated with effect from the date of the initial decision which had been upheld by the Board. The most common reason a case is sent back to the Board is that new facts have appeared on the file after the Board's decision. Two other common grounds are the Board's failure to rule on questions brought to its attention in the submission and inadequacy of the evidence obtained by the Board in support of its decision.

Review by the Federal Court

4.057 By the Federal Court Act 1971 jurisdiction is conferred on the Federal Court as far as federal administrative authorities are concerned. Theoretically, therefore, as far as unemployment insurance benefits are concerned, the three major holders of decision making powers - the Unemployment Insurance Commisision, the Board of Referees and the Umpire - are subject to the power of review and supervision exercised by the Federal Court. To these three authorities must be added the Chairmen of the Board of Referees, who enjoy decision making power with regard to the right of claimants and employers to appeal to the Umpire. In practical terms, it should come as no surprise that the Federal Court had not up to 1975 been required to review a decision of the UIC; from the claimant's standpoint, appeal to the Board of Referees is obviously simpler, quicker and less expensive than any recourse to the Federal Court. Since its creation, however, the Court has heard appeals against a decision by a Board of Referees and against several decisions by the Umpires (up to end of 1974).

4.058 The review by the Federal Court of decisions of the UIC, the Boards of Referees and the Chairmen of Boards of Referees is based entirely on the Common Law tradition of judicial review and on the Federal Court Act. In the case of the Umpires, however, the Unemployment Insurance Act itself expressly provides for the intervention of the Federal Court. This intervention is presented as a departure from the principle that the Umpire's decision is final.

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NEW ZEALAND SYSTEM

Introduction

4.059 The principal New Zealand Act dealing with Social Services is the Social Security Act 1964. Under that Act benefits are payable in respect to the following: Superannuation, Age, Widows, Domestic Purposes, Orphans, Family, Invalids, Miners, Sickness, Unemployment and Emergency Benefits, Dependent Children, Death and Additional Benefit.

4.060 On 1 May 1974 the Social Security Appeal Authority ('Tribunal' or'Authority') was created by amendment to the principal Act. That Tribunal has power to determine appeals against any decision or determination of the Social Security Commission in respect of the above payments. The Tribunal does not have power to review decisions in relation to appeals on medical grounds for Invalid or Miners' benefits.

Social Security Appeal Authority

4.061 Before an appeal may lie to the Tribunal a person affected by a decision must, within 3 months of the communication of the decision, apply to the Commission for a review of the decision, and the Commission must have given its decision following that review.

4.062 The following is a summary of the procedural provisions together with discussions to their practical application.

4.063 Applications for appeal must be in writing and lodged with the Authority within 3 months of notification of the Commission's decision. The Authority may allow for later lodgments. The notice is required to state with particularity the grounds of appeal and the relief sought. A copy of the notice is sent by the Authority to the Commission which is required, as soon as possible, to send to the Authority all relevant documents including a report setting out the considerations to which regard was had in making the decision or determination. A copy of the above information is provided to every party to the appeal.

4.064 A day for hearing is set by the Tribunal 'unless it considers that the appeal can be properly determined without a hearing'.

4.065 Sittings of the Authority are required to be held in private and in such places as it considers convenient having regard to the nature of the matters to be decided. However the Authority may, in any case if it considers that the interests of the parties to the appeal and of all other persons concerned will not be adversely affected, order that the sitting or any part of it shall be held in public.

4.066 At the hearing the Commission and any party may be represented by Counsel, departmental officer, or duly authorised representative. The number of appellants represented by counsel is small; likewise the Commission is seldom represented by counsel. New Zealand's legal aid scheme covers proceedings before the Tribunal and many of the appellants who are represented by counsel have legal aid. The Authority prefers the appellant to appear, and reasonable expenses of attendance of the appellant ire met by the Commission.

4.067 A large number of appeals is dealt with on the papers presented by the Department, with written submissions by appellants or solicitors acting on their

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behalf. The Department is usually represented by a senior officer able to respond to any queries the Tribunal may have. When it is known by the Tribunal that an appellant will be represented by counsel, or substantial questions of law are involved, the Authority expects the Commission to be represented by legal counsel.

4.068 The Act provides that the procedure of the Authority shall, subject to the Act, be such as the Authority determines. The appeal is by way of rehearing but where a question of fact is involved in any appeal the evidence taken before or received by the Commission bearing on the subject shall be brought before the Tribunal in a particular way: as to evidence given orally, by the production of a copy of the notes of the Commission or other material as the Tribunal thinks appropriate; as to evidence by affadavit and other exhibits, by the production thereof.

4.069 The Tribunal may rehear the whole or any part of the evidence, and shall rehear the evidence of any witness if it has reason to believe that any note of the evidence of that witness made by the Commission is, or may be, incomplete in any material manner.

4.070 The procedure before the Tribunal is kept as informal as possible where appellants are not represented. Where counsel appear, ordinary court procedure is followed strictly. When an appellant appears the Tribunal ensures he has adequate opportunity and encouragement to place before it all matters which are relevant to enable a decision to be reached. Evidence is given on oath by appellants and witnesess (if any) with cross-examination and re-examination, if considered necessary.

4.071 The Tribunal is not bound by the rules of evidence and may receive any statement document etc which in its opinion may assist it to deal with the matter. The Tribunal has power to confirm, modify or reverse the decision appealed against. It also may refer a matter back to the Commission for further consideration and give directions as it thinks fit as to that reconsideration.

4.072 A Tribunal is constituted by three members, one being the Chairman, but two are sufficient for a sitting; there is no prescription of qualifications for members or Chairmen. Appeals lie to the Supreme Court on questions of law only. On determination of the appeal the Authority is required to send to the Commission and the appellant a memorandum of the decision and the reasons for the decision.

4.073 The numbers of appeals lodged with the Authority on a calendar year basis since its introduction has been as follows:

1974 (commenced May 1974) 641975 1431976 1961977 1541978 1321979 (est.) 90

4.074 Exhibit 4.7 indicates the number of cases up to 14 December 1979 actually determined by the Tribunal in respect of selected types of benefit over the the same period (i.e. May 1974-December 1979):

EXHIBIT 4.7Cases determined by Tribunal

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Type of Benefit No. Major IssueUnemployment 60 Work test (41)Sickness 30Supporting Parents 50 de facto (28)Family Allowance 25Age, Invalid, Widows 64 SuperannuationSpecial 46

4.075 In addition about 160 appeals were heard in relation to Family benefit capitalisation. To promote family welfare, the Family Benefits (Home Ownership) Act 1964 enables family benefit to be capitalised to help, for example, to buy a house, or pay for additions or alterations to the family home. To be enabled to capitalise the family benefit the applicant has to satisfy an income test. About 120 of the 160 appeals involved an income test.

4.076 The average number of cases lodged with the Tribunal in New Zealand per year has been 130. This figure appears to be low. This may be explained by the small numbers, compared to Australian standards, involved overall (average number of unemployment benefits in 1978-79 was18 045; sickness 8336; the number of invalids and widows at 31 March 1979 was 28 445) plus the fact that Departmental review is compulsory before a person may proceed to independent review by the Tribunal. Of the 173 appeals dealt with from March 1978 to March 1979, 27 were withdrawn, 52 were upheld and 54 were dismissed, none were returned to the Commission for reconsideration, and 40 remained outstanding. The withdrawal rate for 1978 was therefore about 17.5%; success and failure rate each about 30%; and the remaining precentage of appeals (22.5%) were outstanding. Exhibit 4.8 sets out the Tribunal's decisions for the last 5 years (excludes cases outstanding):

EXHIBIT 4.8Cases received Allowed Dismissed

1975 73 9 (12.6°/a) 23 (31 %)1976 166 31 (18.5%) 84 (50.5%)1977 183 35 (19°/a) 71 (49%)1978 138 33 (24.6%) 84 (60°/a)1979 124 52 (42%) 54 (43.5%)

Tables collated from information supplied by New Zealand Department of Justice, and from the Annual Report of the New Zealand Department of Social Welfare for year ended 31 March 1979.

Summary of overseas systems

4.077 It can be seen that there are basic similarities in relation to the existing social security appeals systems in the three countries considered. Below is a brief identification of the most common attributes in the various appeals systems.

4.078 The typical tribunal is constituted by three members and proceeds by way of rehearing. It deals with a large number of cases and has wide discretion as to its procedures. In particular it: has power to inform itself as it thinks fit (including power to call witnesses and

question them); hears appeals in private;

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has power to set aside, vary, revoke or refer the decision back to the decision maker;

has power to decide in the absence of the parties; gives written reasons for its decision; is subject to appeal on a point of law.

The parties are entitled: to be represented (but will probably not be in practice); to present witnesses.

The party appealing will often not appear in person at the hearing.

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APPENDIX 5 - PART 5Costs and Benefits of Review

Introduction

5.001 This paper considers the costs and benefits of instituting a general right of review by the Administrative Appeals Tribunal of decisions by DSS which are contested by social security claimants. A review process of this kind will necessarily cost more than the present process if the defects of the latter are to be remedied. Any system of review must be an effective and not disproportionate use of resources.

5.002 In its Second Annual Report the Council observed (paragraph 9):

The improvement in administrative justice which is the principal object of a system of review is not secured without cost, a factor which becomes apparent as the system of review develops. The costs may be set off to an extent by savings achieved by improved procedures. Although the question whether a particular reform should be implemented or not is ultimately, of course, a matter for Government, Council recognises that the benefits for the citizen and to the operation of government which a particular reform would secure should bear some reasonable relationship to the costs of implementing the reform.

5.003 The review system assumed in this paper may be expected to bring about a material improvement upon the standard of decisions under the current appeal process and to have some advantageous impact on Departmental processes. As a consequence it would provide significant tangible and intangible benefits to both the claimants concerned and the community as a whole which, it is suggested, would far outweigh the costs concerned.

5.004 It is not possible to apply a cost benefit analysis in the strict sense to administrative review for a number of reasons, particularly because many of the benefits are not capable of being reduced to monetary terms. Furthermore, in the present case, some costs and benefits, though in principle able to be expressed or indicated quantitatively, cannot, with the resources available to the Council, be estimated with any precision. Thus, for example, the cost to DSS of existing review processes has not been ascertained in the past and cannot at this stage be ascertained by the work of the Council alone. This does not mean that a systematic attempt to isolate the relevant costs and benefits of the proposed process should not be undertaken. Within the limits of the resources and information available to it, the Secretariat has done that. The balancing of costs and benefits is made between costs to the Commonwealth budget, and benefits to the community (including the applicant) and the Department.

5.005 A draft of this paper has been considered by officers of the Public Service Board and their comments have been taken into account. Advice has been received upon the degree of precision with which a statement of costs and benefits should be made, and on the cost categories identified in this section and their possible magnitude. They have advised that further precision as to costs within the DSS would not be possible. Hence, where necessary, calculations have been made on the basis of assumptions as to the likely situation. Those assumptions are in turn based on what are considered to be reasonable estimates. Exact costing, even in relation to AAT costs, is not possible and would, in any event, not ensure that the right decision on the desirable review process is made.

5.006 Number of Cases and Time Involved. In 1979, 7197 appeals were lodged with

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SSATs. Many of these were conceded by the Department prior to hearing; the Tribunals gave decisions in 4250 cases. The figures for lodgments with the Tribunal in each quarter of 1979 indicate that the level of appeals has now stabilised and it is taken that this number would continue into the future. Taking the New South Wales figures on Review Officer contacts as being the most accurate, namely, that 66.1 % of appeals have not been previously seen by a Review Officer and that 16.2% of claimants contacting Review Officers go on to appeal to an SSAT, and assuming that all those who have in the past appealed without seeing a Review Officer would see a Review Officer under the proposed system, the total number of lodgments with the Tribunal under the proposed system may be calculated to be 3211. (7197 - 66.1 % of 7197 (1 - 0.162) = 3211]. To these must be added the medical appeals which are not at present subject to the SSATs. It is assumed that 50% of the 1094 persons who still were subject to adverse decisions following review by an external practitioner, would appeal to the AAT. This makes a total of 3758 lodgments. Assuming that 10% of applications to the Tribunal are conceded by the Department before the hearing, and that a further 5% lapse for other reasons, the number of hearings per annum would be approximately 3200.

5.007 It is further assumed that under the new and limited AAT jurisdiction introduced in April 1980, 150 cases per annum will go to the AAT (the Director-General's estimate is lower). Not all of these will involve important questions of principle. Many (e.g. cohabitation cases after the initial ones) will turn only on their facts. It is estimated that under the scheme at present being considered by the Council some 100 cases per annum would go to a presidential bench of the AAT as involving important principles of wide application.

5.008 It is estimated that the 3200 hearings will be heard as follows: 60% consisting of parties only, taking ½ to 1 hour each; 25% consisting of parties plus one witness only, taking 45 minutes to 1½ hours; 10% consisting of parties plus three or more witnesses, taking 1½ hours to a full

day; 5% consisting of parties plus three or more witnesses, taking 1½ hours to a full

day.

It is estimated that the cases involving important principles of wide application would take 1 to 2 days to hear. The time taken in hearings depends more on the issues than on the number of witnesses, hence the wide variation between minimum and maximum estimations. The percentage above assumes that there will be no cases where the applicant does not either attend or telephone. There will be a percentage of cases where there is no hearing or claimant input. The shorter time involved in those cases would offset any underestimation in the times set out above. It should be noted, however, that AAT experience is that the times for cases with witnesses are not underestimated. Members of SSATs consulted also indicate that the percentages and times set out above are reasonable estimates given the nature of current cases and the kind of procedures the AAT is likely to adopt. Finally, it is estimated that 90% of hearings would give rise to immediate decisions (the delivering of which would add 20 minutes to the time for rehearing) and the other 10% would involve reserved written decisions which would in each case add 1 day of members' time to complete.

5.009 To estimate the number of hearing and decision days occupied, three hypotheses have been analysed. The first is that two-thirds of hearings are at the lower figure set out above, and one-third at the higher. The second is that one-third of hearings are at the lower figure and two-thirds at the higher. The third hypothesis

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is that all hearings are at the higher figure. The number of hearing and decision days are estimated to be:

hypothesis 1 - 1 076hypothesis 2 - 1 231hypothesis 3 - 1 385

If it is assumed that half of the AAT benches will have three members and that a full-time member would be involved in 200 hearing days per annum, then it may be calculated that the proposed jurisdiction would involve the equivalent of eleven full-time members on the first hypothesis, thirteen on the second and 14 on the third.

5.010 Immediate Tangible Costs of the Administrative Appeals Tribunal. A number of the relevant elements are 'in-out' costs, that is, the amount at present spent for particular goods or services for the SSATs may be taken for present purposes to provide the equivalent goods or services for the Administrative Appeals Tribunal. These elements are registry staff, accommodation for hearing rooms and registry staff and general administration of the Tribunals.

5.011 The first element of added cost is remuneration of Tribunal members. Recent implementation of the 1977 proposal has necessitated provision for futher members in the AAT to hear the estimated 150 cases. Because not all of these cases will be heard by presidential benches it is estimated that the 100 cases on important principles of wide application which are expected to arise under the scheme being considered by the Council (and which would be heard by presidential benches) would cost roughly the same amount as the 150 cases under the 1977 proposal. This is regarded as an "in-out" cost. The relevant cost comparison is therefore between the existing payment to SSAT members ($113 000 in 1979-80) and payment for the eleven to fourteen equivalent full-time members involved in the non-important cases. The AAT members are assumed to be six senior members and five other members, six and seven and seven and seven on the three hypotheses of paragraph 5.009 above. Their fees would represent an additional outlay (on the 1979 Remuneration Tribunal fee levels) of between about $277 000 and $381 000 (plus 'on costs', e.g. superannuation) over that of the SSAT members.

5.012 New members for tribunals involve new support staff. There would probably be a cost difference of between about $137 000 and $163 000 (plus 'on-costs') between the SSATs and the AAT (counting two support staff for each Senior Member).

5.013 Following implementation of the 1977 proposal additional registry, staff and other costs are being incurred both by SSATs and by the AAT. Under a scheme providing general rights of independent review, all registry costs would fall on the AAT. The additional costs to the AAT are likely to be less than those incurred by the SSATs, and hence some saving can be expected.

5.014 When a full caseload develops following implementation of the 1977 proposal, extensive AAT travelling is likely to be involved. Were the AAT to have the entire jurisdiction there would be a significant saving in travel costs, since the AAT's workload would so increase that it would have a sufficient range of members in each capital city to handle almost all cases by using local members. It is assumed that there would be no new travel involved if a general jurisdiction were given to the AAT, as compared with existing SSAT travel.

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5.015 In conclusion, the immediate net added cost in operating the AAT in the social security jurisdiction proposed in this Report would appear to be in the order of $400 000 to $550 000 (plus 'on-costs') depending on the length of hearings.

5.016 Immediate Tangible Costs of the Applicant. For present purposes the only relevant costs under this heading are the additional expenses of witnesses which are paid by the Commonwealth and the costs of advice and assistance provided by the Commonwealth. The use of witnesses may be gauged by the above estimates as to the percentage of cases in which various numbers of witnesses would appear. No money estimate can be made of this cost without knowing who those witnesses would be and the extent to which they would fall within the categories for payment of expenses under section 67 of the AAT Act which were outlined in Re Sullivan and Delegate of Secretary Department of Transport (No. 3) (AAT No. 77/14004, November 1979).

5.017 It is expected that cases coming to the AAT under its recently conferred social security jurisdiction will often involve legal aid. There are assumed to be fewer cases likely to involve important principles of wide application (for which legal aid is generally likely to be necessary) under the proposed scheme, but it may be expected that the saving indicated thereby would be at least offset by the use of legal aid in other cases. There might well, therefore, be some additional costs involved in the proposed system, but these are not considered likely to be great.

5.018 Immediate Tangible Costs of the Respondent. The proposed system involves presentation of the Department's case. The cost of this is expected by the Secretariat roughly to balance the saving achieved by elimination of the DSS member on SSATs, and may be regarded as an 'in-out' cost. Given the Administrative Review Section already established within the Department, the Secretariat does not expect that the Department would seek outside legal representation in many cases. Moreover, such cases are considered to be as likely to arise under the present system as under the Council's proposed system. Outside representation is, therefore, considered likely to be at most a marginal additional cost.

5.019 The cost elements of internal reconsideration, collection of material for the appeal, support staff, accommodation and administration may be treated together. An increase in these costs would arise to the extent that the demands of a more rigorous Tribunal and a larger number of cases require additional work which more than offsets the savings arising from the increased Review Officer activity reducing the number of appeals lodged, and from elimination of the need for review by very senior officers following favourable SSAT recommendations. There would probably be some increase in cost in this area, but there is insufficient data available to the Secretariat to enable even a rough estimate to be made.

5.020 In considering the cost of travel of officers involved in hearings, it is assumed that the Department would not use its specialist Central Office appeals staff to present simple cases, these latter being dealt with by State Offices. Travel for simple cases would therefore be minimal and no significant increase might be expected from the proposed scheme. The cases in which the Department would wish to use Central Office staff are probably those involving important principles. Since it is intended to use the Central Office staff for AAT cases under the scheme which is now in force, the cost of their travelling to deal with important cases under the Council's proposal can probably be regarded as an 'in-out' cost.

5.021 Some increase in costs of witnesses produced by the Department will be associated with the proposed scheme. As with applicants' costs, an estimate cannot be made at this stage. Were the Department to produce all relevant persons for oral

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testimony in every case it would appear at first that this item of cost would be greatly enlarged and with it the total cost of hearings (which would be longer). It may be assumed, however, that cost efficient administration would mean that such a situation would not arise. As with the taxation appeal process, DSS could be expected to weigh the cost of hearings or further review against the value of claims. Hence, if DSS habitually called many witnesses there would be expected to be fewer cases brought to hearing.

5.022 Secondary Tangible Costs of the Respondent. A major cost of the new review process might arise from primary decision makers and Review Officers taking longer over their decisions, e.g. by seeking more information than hitherto. If, for instance, 5% more time were to be taken on every primary decision, the cost in delayed decisions or new manpower could be substantial. The question is whether increased time would be spent on every decision rather than on some only, or only on decisions brought to the attention of the Review Officer. This is a factor which cannot be calculated in advance, but it is not uncontrollable. For efficient administration there comes a point where extra effort to prevent a few incorrect primary decisions is wasteful. DSS may be expected to be conscious of where this point is approached and take steps to concentrate extra effort on cases where it is warranted, e.g. RO decisions. This manner of proceeding is illustrated by the customs jurisdiction of the AAT where, in cases where duty is'paid under protest' (an essential prerequisite to lodging an appeal), primary procedures continue as before but the relevant file is removed to Central Office and the decision checked for accuracy. Thus while the proposed scheme for general AAT review is expected to lead to some added cost to DSS, no information is available upon which a useful estimate of that cost could be made.

5.023 Intangible Effects. In many ways intangible effects are the most important. While the aims of administrative review include making correct decisions and improving primary decision making, one very important aim is that administrative review expresses society's view that decision making by Government which affects individuals should not in principle operate without adequate external checks. The particular characteristics of a social security system make this purpose especially weighty. This was recognised by the Minister for Social Security when she expressed her belief (Commonwealth Parliamentary Debates (Senate). 27 September 1979. p.1027):

. . . that people who wish to appeal under the Social Services Act should have the same degree of redress against determinations that are made as people who are working under any Act of the Commonwealth Government.

5.024 Furthermore the strongly perceived need for external review of adverse social security decisions suggests that there would be a very considerable benefit to society in introducing the proposed system. It would give practical effect to the view that underprivileged members of society (who predominantly make up the class of social security claimants) should have their statutory entitlement to payment properly safes guarded.

5.025 This general interest of society is reflected in the benefits to be obtained by claimants under the proposed review system. External review of adverse decisions by a properly constituted tribunal gives claimants confidence that society recognises their worth and that they will be justly treated. It avoids the demoralisation of claimants where payments might be refused or terminated without adequate reasons being given and without a sufficient means of having that decision assessed independently. The benefits for claimants of the proposed review system are,

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therefore, substantial.

5.026 Conclusion on Costs and Benefits. No strict cost benefit analysis of a general right of AAT review can be made. The only cost figures derivable are in relation to the AAT - costs in the order of $400 000 to $550 000 over and above the costs involved under the scheme which is now in force, plus 'on costs'. The costs to DSS cannot be calculated at this stage but are likely to be significant.

5.027 Whether the cost of a general system of AAT review is justified is a question for the Government. The order of cost of the proposed system may be compared with the total outlays of DSS in Social Services Act payment, namely $6762 million in 1978-79. The cost appears to be insignificant in comparison and to be a small price for assuring proper review of such a vast Government program.

5.028 The number of changed decisions arising from the proposed review process will be small compared with the total number of decisions made. This is not an argument in favour of maintaining an unsatisfactory review process. Furthermore it provides no guidance as to the scope and scale of an appropriate system. Social security payments are individually of great importance and merit a fully satisfactory review system.

5.029 It is suggested that the benefits to the administration and the community to be derived from a general scheme of AAT review greatly outweigh the direct and secondary costs to the administration; and hence that any question of the cost effectiveness of the proposed system be resolved in favour of its institution.

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