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Published online by Cambridge University Press: 01 January 2025
The Social Security Appeals Tribunal (‘SSAT’) plays a significant role in the provision of administrative justice in Australia, deciding around 10 000 appeals each year. However there is little published information about its operation, especially as experienced by people who bring appeals. This article reports the results of a survey of SSAT users conducted in 2008. Participants were interviewed up to three times during the progress of their appeals. We found that while the majority of participants reported satisfaction with the SSAT and its processes, a small minority were very dissatisfied, not solely as a result of losing their appeals. We also found that the reasons for appealing were wide-ranging and included the desire for a respectful individual response or explanation that may not have been provided previously. Our analysis suggests that SSAT users value many features of the Tribunal, including multi-member panels, which require maintenance of current funding levels.
This research was supported by a Discovery Grant from the Australian Research Council, originally to Associate Professor Phillip Swain of the School of Social Work, University of Melbourne, and subsequently to Associate Professor Beth Gaze and Professor Belinda Fehlberg of the Law School, University of Melbourne. Dr Ruth Quibell was a Research Fellow on the project. We thank Dr Grainne McKeever and the anonymous referees for their comments on the article.
1 The term ‘tribunal user’ is used throughout in preference to ‘appellant’ to emphasise the article's focus on the broad experiences of people who have to engage with the tribunal, beyond a purely legal analysis. An analogous approach was adopted in Sir Andrew Leggatt, Tribunals for Users One System, One Service (2001) The National Archives <http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm>.
2 Commonwealth, Social Security Appeals Tribunal Annual Report 2007–2008, Parl Paper No 516 (2008) 22: 11 596 appeals lodged; Commonwealth, Social Security Appeals Tribunal Annual Report 2008–2009, Parl Paper No 376 (2009) 23: 13 429; Commonwealth, Social Security Appeals Tribunal Annual Report 2009–2010, Parl Paper No 327 (2010) 15: 11 203; Commonwealth, Social Security Appeals Tribunal Annual Report 2010–2011, Parl Paper No 39 (2012) 8: 9 849; Commonwealth, Social Security Appeals Tribunal Annual Report 2011–2012, Parl Paper No 283 (2012) 10: 9 988.
3 Leggatt, above n 1, [6].
4 See, eg, Michael, Adler, ‘A Social-Legal Approach to Administrative Justice’ (2003) 25 Law & Policy 323Google Scholar.
5 Michael, Lipsky, Street Level Bureaucracy: Dilemmas of the Individual in Public Services (Russell Sage Foundation, 1980), quoted in Vicki Lens, ‘Bureaucratic Disentitlement after Welfare Reform: Are Fair Hearings the Cure?’ (2005) 12 Georgetown Journal on Poverty Law & Policy 13, 13–14Google Scholar.
6 In 2011–12 there were 169 726 applications for merits review of Centrelink decisions in social security matters. These appeals involve review by an authorised review officer within Centrelink in the first instance and then a further application can be lodged after the first stage.
7 The project focused only on appeals relating to social security claims, which retains comparability with previous work on social security tribunals in Australia and the UK. The
different configuration of appeals in child support cases, often involving other affected parties, brings complexities that are not present in social security cases.
8 Only two published studies in Australia incorporate data from tribunal appellants: Sue Tongue ‘Fairness in Administrative Decision-Making: The Immigration Review Tribunal Model’ (1996) 9 AIAL Forum 44, 46 cited a 1995 telephone survey of clients of the Immigration Review Tribunal, and reported that ‘[t]he majority of respondents (68%) believed that the Tribunal process is fair and just'. The Australian Law Reform Commission, Managing Justice: A Review of the Federal Justice System, Report No 89 (2000) incorporated views of some unsuccessful applicants who had appealed from the SSAT. Elsewhere, the experiences of appellants have been inferred from interviews with tribunal members and from other sources: see, eg, Jill Huck, ‘Sitting on the SSAT: Welfare/Community Members on the Social Security Appeals Tribunal’ (Paper presented at Australian Institute of Administrative Law One-Day Conference: Non-Legal Members on Review Bodies — Social Welfare Jurisdictions, Victoria, 22 November 1992); Beatrice Melita, ‘Structuring and Managing an Independent Review Body’ in Loula Rodopoulos (ed), Non-Legal Members on Review Bodies: Social Welfare Jurisdictions (Australian Institute of Administrative Law, 1992) 90; John Handley, ‘Internal Review and Alternative Dispute Resolution: The Hidden Face of Administrative Law — II’ in Kathryn Cole (ed), Administrative Law and Public Administration: Form vs Substance (Australian Institute of Administrative Law, 1996) 170; Hayley Katzen, ‘Procedural Fairness and Specialist Members of the Administrative Appeals Tribunal’ (1995) 2 Australian Journal of Administrative Law 169; Phillip A Swain, ‘Critical or Marginal — the Role of the Welfare Member in Administrative Review Tribunals’ (1999) 6(3) Australian Journal of Administrative Law 140.
9 Chamberlain et al, Legal Needs of Social Security Claimants (Australian Government Publishing Service, 1983) included 21 SSAT appellants in their case study approach to exploring the legal needs of social security claimants.
10 Les Blacklow, ‘Issues of Access and Equity in Tribunals’ (Paper presented at the 8th Annual AIJA Tribunals Conference: The Rise and Rise of Tribunals, Sydney, 9–10 June 2005) 11–12
does identify one important expectation of tribunal users which is that the SSAT should play a role in broader welfare reform and social change, and move away from the letter of the law. In its Annual Reports, the SSAT comments on the ways in which it meets its ‘Effectiveness Indicators': see AR 2006–07, 24–30; Chapter 5 in the ARs for 2007–08, 2008–09 and 2009–10; and AR 2010–11, 10–16. In addition, the Annual Reports from 2005–06 onwards contain comment on the results of a national questionnaire provided to all users, although little detailed information is published. See Annual Reports 2006–07, 59–60; 2007–08, 64–6; 2008–09, 67–9; 2009–10, 41–3. No comment on this survey was provided in the Annual Report 2010–11.
11 The Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) did not, for example, consider first-tier merits review tribunals.
12 Appeals in the AAT are inter partes and more formal than SSAT appeals, where the government agency (Centrelink) is not present and most appellants are unrepresented. As a result, the AAT acts more as a quasi-judicial body whose hearings are more adversarial and less inquisitorial than the SSAT.
13 Many empirical studies are referred to in Michael Adler and Jackie Gulland, Tribunal Users’ Experiences, Perceptions and Expectations: A Literature Review (8 June 2009) London Council on Tribunals <http://webarchive.nationalarchives.gov.uk/20090608183147/http://www.council-on-tribunals.gov.uk/docs/other_adler(2).pdf>; see also Martin Partington, Ed Kirton-Darling and Frances McClenaghan, Empirical Research on Tribunals: An Annotated Review of Research Published between 1992 and 2007 (1 November 2007) Administrative Justice and Tribunals Council <http://ajtc.justice.gov.uk/docs/EmpiricalResearch.pdf>. The key paper is Hazel Genn et al, Tribunals for Diverse Users, (Research Series 1/06, Department of Constitutional Affairs, January 2006) <http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/research/2006/01_2006.pdf>. Other key research includes: John Baldwin, Nicholas Wikeley and Richard Young, Judging Social Security: The Adjudication of Claims for Benefit in Britain (Clarendon Press, 1992); Coral Milton, ‘Appellants’ Perceptions of the Tribunal Process’ in Michael Adler and Anthony Bradley (eds), Justice, Discretion and Poverty: Supplementary Benefit Appeal Tribunals in Britain (Professional Books, 1975) 129; Michael Adler, Elizabeth Burns, and Rosemary Johnson, ‘The Conduct of Tribunal Hearings’ in Michael Adler and Anthony Bradley (eds), Justice, Discretion and Poverty: Supplementary Benefit Appeal Tribunals in Britain (Professional Books, 1975) 109; Michael Adler et al, Administrative Grievances: A Development Study (National Centre for Social Research, 2006); Michael Adler, ‘A Social Legal Approach to Administrative Justice’ (2003) 25 Law & Policy 323; Michael Adler ‘Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice’ (2006) 69 Modern Law Review 958.
14 Genn et al, Tribunals for Diverse Users, above n 13. This study was funded directly by the UK government, and involved 14 researchers including a team of interviewers who attended tribunal hearing venues and personally interviewed participants. Such resources for research are unimaginable in Australia.
15 More recently, Genn and Thomas have conducted experimental research to test the importance of a range of factors in decision-making by the UK social security tribunal: Hazel Genn and Cheryl Thomas, ‘Tribunal Decision-Making: An Empirical Study’ (Discussion Paper, University College London Judicial Institute, 2013). The factors the research examined include: the influence of adding further information, the effect of oral hearings compared to decisions on the papers only, and the importance of multi-member panels and of disciplinary differences among tribunal members. The research, which focuses on the decision-maker, will be considered in more detail in a subsequent article concerning tribunal members’ perceptions of the role of the SSAT.
16 Social Security (Administration) Act 1999 (Cth) s 160A (which replaced ss 161(2) and (7) in 2010). In 2010, the Act was amended to allow the Secretary to make oral or written submissions with the permission of the Principal Member, or to be directed by the Principal Member to make submissions: s 163A.
17 Social Security (Administration) Act 1999 (Cth) s 141 (emphasis added). This formula was also added as the objective of the AAT in the Administrative Appeals Tribunal Act 1975 (Cth) s 2A, inserted by the Administrative Appeals Tribunal Amendment Act 2005 (Cth).
18 See, eg, Michael Adler, ‘Tribunal Reform', above n 13, 958.
19 For further discussion of the process of appealing see Phillip Swain and Christine Bigby, ‘Social Security and Welfare Rights’ in Phillip Swain and Simon Rice (eds), In the Shadow of the Law: The Legal Context of Social Work Practice (Federation Press, 2009) 339.
20 Social Security (Administration) Act 1999 (Cth) ss 157(3), 158(1). If any documents on the file are considered relevant to the review, then natural justice would require that they are disclosed to the tribunal user.
21 Commonwealth Auditor-General, Performance Audit: Centrelink's Role in the Process of Appeal to the Social Security Appeals Tribunal and to the Administrative Appeals Tribunal (Audit Report), Parl Paper No 332 (2010) 56–66.
22 See, eg, Social Security Appeals Tribunal Annual Report 2010–2011, above n 2, 9.
23 Nick Wikeley, ‘Burying Bell: Managing the Judicialisation of Social Security Tribunals’ (2000) 63 Modern Law Review 475, noted at 476 that 1998 changes reducing the number of members on tribunals and abolishing the traditional lay membership of social security tribunals represented the ‘culmination of a trend over the past three decades towards growing legalism and judicialisation in the welfare state, but which now exist within an increasingly managerial environment'. This trend also included the ‘fall of inquisitorialism’ at 494, in part due to the legislated need to ‘opt in’ for a tribunal hearing.
24 See Leggatt, above n 1.
25 Tribunals, Courts and Enforcement Act 2007 (UK).
26 Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing, 2009) 192–4.
27 Judicialisation of the social security tribunals in the UK accelerated with the 2007 changes. In the absence of a doctrine of strict separation of powers like that which constrains the exercise of Commonwealth judicial power, it is recognised in the UK that tribunals perform a judicial function: identifying the issues in dispute, applying the law to the facts it finds and deciding a person's entitlement under statute: Mark Elliott and Robert Thomas, ‘Tribunal Justice and Proportionate Dispute Resolution’ (2012) 71(2) Cambridge Law Journal 297, 298.
28 Following consultation under the Public Bodies Act 2011 (UK), the Ministry of Justice recommended that the Administrative Justice and Tribunals Council be abolished. The
Public Administration Select Committee recommended against abolition: Public Administration Committee, Future Oversight of Administrative Justice: The Proposed Abolition of the Administrative Justice and Tribunals Council (13 March 2012) Parliament UK <http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpubadm/1621/162102.htm>. This did not change the government's intention: Ministry of Justice, Government Response to the Public Administration Select Committee Report on the Future Oversight of the Administrative Justice System (10 May 2012) UK Government <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217297/response-pasc-report-administrative-justice.pdf>. Given the relatively low savings from this measure, it appears that the removal of independent oversight may be an underlying aim. The Council was abolished by an executive order on 19 August 2013: The Administrative Justice and Tribunals Council, Promoting Fairness and Redress (19 August 2013) <http://ajtc.justice.gov.uk/>; See also Michael Adler, ‘The Rise and Fall of Administrative Justice: A Cautionary Tale’ (2012) 8 Socio-Legal Review 28.
29 Email from Dr Grainne McKeever to Beth Gaze, 27 May 2013.
30 Hazel Genn and Yvette Genn, The Effectiveness of Representation in Tribunals (Lord Chancellor's Department, 1989).
31 N Wikeley, (UK Upper Tribunal Judge. Administrative Appeals Chamber) personal communication, 17 Jan 2011. See also n 37 below.
32 Genn et al, Tribunals for Diverse Users, above n 13, 227.
33 Genn and Genn, The Effectiveness of Representation in Tribunals, above n 30.
34 Genn et al, Tribunals for Diverse Users, above n 13, 265.
35 Michael Adler, Tribunals Ain't what they Used to Be Ministry of Justice <http://ajtc.justice.gov.uk/adjust/articles/AdlerTribunalsUsedToBe.pdf>. See also Adler, ‘Tribunal Reform', above n 13, 980–1; Michael Adler ‘Can Tribunals Deliver Justice in the Absence of Representation?’ (Paper presented at the Legal Services Research Centre Conference, Greenwich, 2008); Michael Adler, ‘The Potential and Limits of Self-Representation at Tribunals’ (Research Report No RES-000-23-0853, Economic and Social Research Council, 8 December 2008).
36 Michael Adler, ‘Do Citizens Need Representation when They Challenge the Welfare State?’ (Paper presented at the Norwegian Social Security Conference, Oslo, 3–4 December 2009) 10.
37 In 2011 it was reported that of all applicants who appealed a decision 46 per cent were successful and 54 per cent were not, but of those who received assistance in their appeal, 70 per cent were successful compared with 41 per cent of those who did not have help: Helen Barnes, Paul Sissons and Helen Stevens, Employment and Support Allowance: Findings from a Follow-up Survey with Customers Ministry of Justice <http://research.dwp.gov.uk/asd/asd5/rports2011-2012/rrep745.pdf> 27–9. Help was not defined in the report, but is likely to have included advice as well as representation.
38 See discussion of representation below at nn 68–9 and text accompanying nn 64–70.
39 Vicki Lens, ‘Confronting Government after Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings’ (2009) 43 Law & Society Review 563, 573 described the hearing as being a rehearing by state level welfare officers of decisions of local level welfare officers, taking place in a room of the same welfare office where the first decision was made. In Vicki Lens, ‘Judge or Bureaucrat? How Administrative Law Judges Exercise Discretion in Welfare Bureaucracies’ (2012) 86 Social Service Review 269, 271 she noted that although the role of administrative law judges in welfare review hearings is ostensibly a professional one, in more than half of the states:
…they are part of the state welfare bureaucracy that has regulatory and supervisory oversight of local welfare agencies … Judges and bureaucrats are part of the same welfare apparatus, although they have different roles. Through their daily interactions with bureaucratic officials, judges may be ‘captured’ by the agency.
The contrast with the claims to independence and quasi-judicial status of social security review tribunals in Australia and the UK is clear.
40 Lens, above n 5, 23–4. Lens analysed statistical data on the effect of fair hearings in relation to work activation policies for recipients of Temporary Assistance to Needy Families (TANF) payments in three states.
41 Vicki Lens, ‘In the Fair Hearing Room: Resistance and Confrontation in the Welfare Bureaucracy’ (2007) 32 Law and Social Inquiry 309.
42 Ibid 311.
43 Vicki Lens, ‘Contesting the Bureaucracy: Examining Administrative Appeals’ (2011) 20 Social & Legal Studies 421, 422.
44 All interviews were conducted by Dr Ruth Quibell for consistency. The questionnaires are too lengthy for publication with this article, but are available on request from the authors.
45 We sought to obtain copies of tribunal decisions in the participants’ cases to check whether their understanding of the issues was similar to the Tribunal's. However both the Tribunal and Centrelink were unwilling to provide copies of decisions to us because of the statutory confidentiality requirements, even where the applicant provided a consent form. As a result, we had to rely on appellants sending us a copy of their decision, so the data set is much smaller, and has not been used in this paper.
46 One participant did not take part in a second interview about the hearing as the appeal was heard ‘on the papers'.
47 The Australia-wide data is available from the Centrelink and SSAT Annual Reports, however only very limited data is provided on many aspects. For example, no data is published by the SSAT on characteristics of people appealing such as age, indigenous or non-English speaking background.
48 A breakdown of social security recipients by sex is not given in the Centrelink Annual Report, so we cannot tell whether this gender pattern in appeals corresponds with the gender proportions of social security beneficiaries generally.
49 Some implicit information on the age groups of our participants can be inferred from the benefits and payments that are the subject of the appeals, such as Age Pension, Parenting Payment, Austudy, Youth Allowance, etc.
50 Our recruitment material was translated into the most common community languages in each state as indicated by the SSAT's use of interpreters in the previous reporting year (Arabic and Greek respectively), and contact through an interpreter was offered.
51 Newstart Allowance is the (Orwellian) name in Australia for unemployment payments. Parenting Payment is for sole and low income parents, while Disability Support Pension covers people whose permanent disabilities prevent them working. Family Tax Benefit is paid to families with children. Other benefits that appeared less frequently in our sample were Pension Bonus, Rent Assistance and Carer Allowance (five or six cases each), Baby Bonus and Parenting Payment (four cases each), and one or two instances of Austudy, Bereavement Allowance, Disability Education Supplement, Emergency Payment, Farm Help and Carer Payment. Our sample did not include any cases of Sickness Allowance, which covers short term disability due to illness.
52 Social Security Appeals Tribunal Annual Report 2007–2008, above n 2, 26.
53 Ibid 104. The table in Appendix 9 of the report shows variable success rates in appeals across different payment types, ranging from 45.7 per cent in sickness allowance matters to under 20 per cent in some less common cases.
54 Social Security (Administration) Act 1999 (Cth) s 42P.
55 Debt appeals varied widely in the amount of money at stake, with the size of the debt ranging from a few hundred dollars to tens of thousands of dollars. In four cases both a cancellation and debt was involved.
56 In Genn et al's 2006 study (Genn et al, Tribunals for Diverse Users, above n 13), substantial resources were devoted to having researchers present at tribunal locations to personally seek participation and interview tribunal users, particularly to ensure participation by minority group members.
57 For a study of opinions on feedback from appeal decisions to the agency see Robin Creyke and John McMillan, ‘Executive Perceptions of Administrative Law — An Empirical Study’ (2002) 9 Australian Journal of Administrative Law 163. See also Administrative Justice and Tribunals Council, Right First Time (2011) <http://ajtc.justice.gov.uk/docs/AJTC_Right_first_time_web(7).pdf>.
58 Administrative Justice and Tribunals Council, above n 57, canvassed the arguments for improving first instance decision-making rather than relying on tribunal review to repair any problems.
59 The Principal Member of the SSAT in Social Security Appeals Tribunal Annual Report 2009–2010, above n 2, 1, has noted the persistence of Centrelink decisions taken ‘without sufficient thought or explanation being provided to the person concerned'. It was estimated that at least 10 per cent of Centrelink appeals to the tribunal were motivated by the applicant's desire to ‘receive a full and considered written decision with adequate reasons'.
60 Genn et al, Tribunals for Diverse Users, above n 13, 122.
61 William L F Felshiner, Richard L Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…’ (1980–1) 15 Law & Society Review 631 identified these as stages in the process of recognising an issue as a potential legal claim about which action can be taken.
62 H Dean, Social Security and Social Control (Routledge, 1991) 149.
63 Lens, above n 43.
64 Dean, above n 62, 151; see also Adler above n 36.
65 Dean, above n 62, 156.
66 Social Security Administration Act 1999 (Cth) s 138. Despite the statutory right to review by an authorised review officer (ARO) and it being a pre-condition to SSAT review, the Commonwealth Ombudsman recently criticised Centrelink's adopted practice of directing such requests to the original decision maker (ODM) and treating this as a cancellation of the request for ARO review. The practice was not supported by informed agreement, and placed an extra barrier in the path of those seeking to access ARO and SSAT review (Allan Asher, Centrelink: the Right of Review — Having Choices, Making Choices (Commonwealth Ombudsman, 2011)).
67 Adler et al, Administrative Grievances, above n 13: ‘Evidence from studies… suggest[s] that where people do not get satisfaction from their first attempt at complaining they are unlikely to take the matter further'.
68 The Tribunal sends a ‘General Information’ sheet (Social Security Appeals Tribunal, Centrelink Reviews: General Information <http://www.ssat.gov.au/Documents/General%20information%20-%20Centrelink.pdf>) to users when acknowledging receipt of their appeal, and another information sheet on ‘Hearings’ (Social Security Appeals Tribunal, Centrelink Reviews: Hearings <http://www.ssat.gov.au/Documents/Hearings%20-%20Centrelink.pdf>) when notifying the date of the hearing. The former states that most people do not have legal assistance at their hearing, that legal assistance may be available free from community legal services, and that the user can contact the tribunal for details of local agencies, while the latter states that ‘[y]ou do not need to know the law or be legally represented at the hearing'.
69 Although it was not an aim of the research, it became apparent that many tribunal users were not aware of the ‘Resource Sheet’ prepared by the SSAT and available on its web page (Social Security Appeals Tribunal, Help with your Review <http://www.ssat.gov.au/applying-for-a-review/HelpWithYourReview>). The Victorian section, for example, lists 16 community legal services, as well as Social Security Rights Victoria (part of the National Welfare Rights Network) and Victoria Legal Aid, but without any comment about what sort of services the organisations offer or how to choose which one to approach. Most places listed provide free legal support, such as Community Legal Centres and Legal Aid. However, these resources are not easy to find, and the Tribunal's web page on preparing for a hearing (Social Security Appeals Tribunal, Hearing Preparation <http://www.ssat.gov.au/steps-in-a-review/review-of-a-decision-made-by-centrelink/pre-hearing>) does not mention getting advice from an organisation as part of the preparation process. Only one tribunal user in our study mentioned this list and said that he planned to use it to help prepare his case. This suggests that there may be scope for the Tribunal and the services listed to explore further how to make this information more accessible to tribunal users in preparing their cases. There is no acknowledgment in the ‘Self Representation’ section, which refers to the list, that specialist social security advice is likely to be more valuable than non-specialist legal advice, or identification of service that provide it.
70 See discussion of representation in the UK above at text accompanying nn 30–7.
71 We attempted to conduct all second interviews during the period after the hearing but before the tribunal user had received their decision. Since the tribunal is required to provide written reasons for decisions within 14 days of the hearing, this is quite a brief window, and could not be managed in 29 cases, where either decisions were sent very quickly, or participants were difficult to contact during the critical period.
72 E Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988) 220, cited in Genn et al, Tribunals for Diverse Users, above n 13, 193.
73 Administratively, the tribunal schedules almost all cases for a one hour allocated time slot.
74 Thirty-two participants expressed dissatisfaction in response to one or more of the following questions: discomfort at the hearing (Q2b), not saying what they wanted to at the hearing (Q4), facts being excluded (Q5b), the presence of unfairness, bias, or lack of respect shown (Q10a), dissatisfaction with Tribunal general staff (Q11b), and unhappiness with Tribunal composition (Q12b).
75 Genn et al, Tribunals for Diverse Users, above n 13, 244–5.
76 Dean, above n 62, 151.
77 Social Security Appeals Tribunal Annual Report 2007–2008, above n 2, 97. The SSAT adjusted the method it used for calculating success rates of appeals in Centrelink cases for the 2007–-08 Annual Report. In 2006–07 only 25.3 per cent of decisions were successful or partly successful, significantly lower than the 2007–08 rate of almost 36 per cent. From 2007–08 decision outcomes were calculated as a proportion of cases decided on substantive issues, rather than as previously, of all cases lodged, which included cases that were withdrawn or where it was decided that there was no jurisdiction to hear the case.
78 The tribunal's written decision in her case revealed that her debt arising from overpayment of Family Tax Benefit and Rent Assistance as a result of variations in shared care between herself and her ex-partner had been sent back for recalculation, making her appeal at least partly successful.
79 The Tribunal advised her that Centrelink would accept a statutory declaration as evidence, and advised her on how to resolve her concerns through a claim under the scheme for compensation for defective administration (CDDA, see below n 86). This tribunal user commented that ‘SSAT helps me even if I lose'.
80 Genn et al, Tribunals for Diverse Users, above n 13, 245.
81 As in other similar research, the meaning of ‘fair’ was left to Tribunal Users to define: Genn et al, Tribunals for Diverse Users, above n 13; Chamberlain et al, above n 9, 63–4).
82 This is a point made by Milton in her study of Social Security Tribunal Users in the United Kingdom: Milton, above n 13, 132.
83 This is a different group from the 12 participants referred to under ‘Negative Experiences’ above, who were very dissatisfied at the post hearing interview, and included four successful and one partly successful participants. The 11 participants referred to here include those who were dissatisfied or very dissatisfied after the hearing and remained dissatisfied at the third interview.
84 Genn et al, Tribunals for Diverse Users, above n 13, 239. Representation, use of an interpreter and ethnicity had some influence but were not statistically significant.
85 Social Security (Administration) Act 1991 (Cth) s 179. See also Administrative Appeals Tribunal Act 1975 (Cth). Proceedings in the AAT tend to be more formal and less inquisitorial than the SSAT, but appeals by unrepresented applicants are not uncommon. See generally Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing, 2009).
86 CDDA is an administrative scheme established to allow Australian Government agencies to provide compensation where there is a moral rather than a legal obligation to do so: see Department of Finance (Cth), The Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) <http://www.finance.gov.au/financial-framework/discretionary-compensation/cdda-scheme.html>. Payments are discretionary and are available where ‘an agency's unreasonable failure to comply with its own administrative procedures, institute appropriate administrative procedures, or give proper advice ‘causes loss'. Common examples of CDDA payments being made are when a person incurs expenses or loses eligibility for a benefit because of incorrect agency advice; a penalty or debt is wrongly imposed; personal property is damaged or documents are lost by an agency; or a computer error results in a delayed payment or unreasonable delay in approving an application': see Commonwealth Ombudsman, Fact Sheet 9 <http://www.ombudsman.gov.au/docs/fact-sheets/FactSheet9_CDDA.pdf>.
87 A notice is always sent out with the decision which advises tribunal users that they have a further right of appeal to the Administrative Appeals Tribunal (AAT).
88 Issues around implementation and delay pending the decision to appeal were considered by the Auditor-General in its Performance Audit: Centrelink's Role in the Process of Appeal to the Social Security Appeals Tribunal and to the Administrative Appeals Tribunal, above n 21.
89 Because such research is potentially expensive, it would require government funding. However it is preferable for it to be conducted independently, in the same way as the UK government has funded extensive research by Professor Genn into experiences in the civil legal system.
90 Centrelink is the agency that has by far most complaints to the Commonwealth Ombudsman: see Commonwealth, Commonwealth Ombudsman Annual Report 2007–2008, Parl Paper No 412 (2008), ch 7, for the year in which our research was undertaken. This may not be surprising in view of the scope of its activities, number of clients and the number and nature of decisions being made. In a 2011 report, the Ombudsman reviewed Centrelink's handling of the appeals process, especially regarding authorised review officer decisions, and recommended improvements: Asher, above n 66.
91 The Tribunal publishes an information sheet for Tribunal users listing places where they can access support in preparing for their appeal (above n 69), most of which provide free legal support, such as Community Legal Centres and Legal Aid Offices. However, only one participant mentioned this list and said that he planned to use it to help prepare his case. While it was not our goal to explore whether Tribunal users receive or make use of the Tribunal's information sheet, it appeared that many did not, and that this approach to providing assistance to tribunal users may need to be reconsidered.
92 Adler, above n 35 and 36.
93 For example, there could be a brochure attached to the decision that outlined the usual process and time scale, and who they should contact if nothing happened.
94 The extent to which review tribunal decisions provide guidance to executive decision makers has been the subject of study by Robin Creyke and John McMillan ‘Executive Perceptions of Administrative Law: An Empirical Study’ (2002) 9 Australian Journal of Administrative Law 163–90. See also Nicholas Wikeley and Richard Young, ‘The Administration of Benefits in Britain: Adjudication Officers and the Influence of Social Security Appeal Tribunals’ (1992) Public Law 238. The UK Administrative Justice and Tribunals Council Report Right First Time (above n 57) emphasised the importance of improving first instance decision-making rather than relying on appeal processes to fix up sub-optimal processes, and the Commonwealth Ombudsman recommended in 2011 that Centrelink ‘analyse the role of further information in decisions changed on review and consider options for improving the collection of relevant information at first instance': Asher, above n 66, 32.
95 The data appears in ch 4 of each Annual Report. Note that the 2011–12 Annual Report appears to reverse the data for error of fact/error of law. We have used reversed numbers to be consistent with data from other years.
96 Social Security (Administration) Act 1991 (Cth) s 163A, inserted by Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Miscellaneous Measures) Act 2010 (Cth).
97 When the child support jurisdiction was added in 2007, it was intended that all tribunal members should hear both social security and child support matters. This would have required part time sessional members to be expert in two different areas of law, one of which is complex and technical, and the other involving acrimonious disputes between two parties. It has since been acknowledged that only a subset of members should be required to sit in child support matters: Social Security Appeals Tribunal Annual Report 2010–2011, above n 2, 18.
98 Ibid 1, 10. This is noted as being a ‘very significant increase in the productivity of members': at 18. This change was authorised by Social Security (Administration) Act 1999 (Cth) s 162(1).
99 Member qualifications have been reported in Annual Reports only from 2010–11, but member work experience is not reported.
100 Phillip Swain, ‘Critical or marginal? The Role of the Welfare Member in Administrative Review Tribunals’ (1999) 6 Australian Journal of Administrative Law 140; Lucy Mayes and Phillip Swain, ‘Continuing Debates as to Social Security Appeals in Australia and Britain: Dancing to the Same Tune?’ (2005) 12 Australian Journal of Administrative Law 185–204; cf Nick Wikeley and Richard Young ‘The Marginalisation of Lay Members in Social Security Appeal Tribunals’ (1992) 2 Journal of Social Welfare & Family Law 127.
101 Genn and Thomas, above n 15. Data on Australian tribunal member attitudes was collected as another part of our study, and will be analysed in a subsequent article.