O'Halloran, Maree --- "Single member hearings at the Social Security Appeals Tribunal" [2011] SocSecRpr 1; (2011) 13(1) Social Security Reporter, Article 1

• Single member hearings at the Social Security Appeals Tribunal

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Single member hearings at the Social Security Appeals Tribunal

In April 2010 the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2009 Measures) Act 2010 (Act No 38 of 2010), amended the Social Security (Administration) Act 1999 to make clear that the Social Security Appeals Tribunal (SSAT) may be constituted by a single member for the purposes of the review of a decision.

At the time of the legislation’s passage, the then Principal Member of the SSAT advised the National Welfare Rights Network (NWRN) that single member hearings would be held only in exceptional circumstances. However, in October 2010 the new Principal Member advised NWRN that the policy was set to change. The SSAT now exercises the power to hold single member hearings for all SSAT panels, except in limited circumstances.

Of concern is the likelihood that this change in policy is merely a cost-cutting exercise and that the loss of multi member panels will result in reduced quality of decision-making. The change in policy is unlikely to lead to fairer or more accessible decisions, and arguably no quicker decisions. The move puts economic considerations above all other objectives which, bearing in mind the nature of the SSAT’s broader purpose, is inappropriate.

Historically SSAT hearings have been conducted by members with a mix of expertise, from welfare, legal, health and government backgrounds. The result has been a diversity of backgrounds, perspective and expertise brought to bear in the decision making process. The reduction to a sole member being from a single background will result in a loss of expertise for applicants. One of the great strengths of the SSAT has been that multi member hearings allow members to discuss the issues and evidence before coming to a decision. It has been a true ‘tribunal’ in every sense of the word.

The change may lead to a perceived reduction in the accountability of the decision maker at the SSAT as they will no longer have to justify their decision to their peers, including those whose background is from a different discipline.

Of particular concern is the application of single member panels in matters where the credibility of the applicant is in question. An example would be where the issue relates to whether a person is a member of a couple, or where prosecution action is being considered. It is also not appropriate in complex cases, which are legion in this jurisdiction.

The reduction to single member panels also means a loss of opportunity for members, especially part-time members, to draw on the expertise and experience of the full-time members. Multi member panels provide an important forum of peer support, cross fertilisation of ideas and quality control via supervision. They also increase equity and consistency in decision making.

Part of the justification for going to single member hearings has been the exercise of single member hearings in the Administrative Appeals Tribunal (AAT). This comparison does not acknowledge the significant differences between these jurisdictions. The AAT has lengthy pre-hearing conference and alternative dispute resolution processes where other tribunal staff are involved in reviewing the case, focusing on the issues in dispute, testing the evidence and helping the parties prepare their matter for hearing. All this provides a significant background for the AAT member hearing the matter.

AAT members also have access to taped transcripts to review evidence or submissions and they have associates with whom to discuss the case. The single SSAT member does not have access to these processes or support in social security matters. Further, the AAT hearing can be a day or longer. By contrast the SSAT panel has only an hour or in some instances two hours, to gather the facts and ensure that the questions which need to be asked and answered are addressed.

NWRN has written to the Attorney-General seeking reconsideration of the general use of single member SSAT panels and has made media comments about the issue.

At the very least, if the SSAT is to hold single member hearings as a matter of course, we would suggest that the SSAT consider nominating criteria for matters where two members would be appropriate. In our view these cases should include all ‘member of a couple’ decisions, debt matters where prosecution action is being considered and administrative error decisions where the integrity of the applicant is in question.

The SSAT’s role is to seek the correct and preferable decision, and it is the opinion of welfare rights advocates that a panel smaller than two people is less likely to arrive at the correct and preferable decision. Single member panels have the potential to give the impression of less fairness to applicants and thereby engender more appeals to the AAT for a perceived fairer hearing.

Maree O'Halloran

President National Welfare Rights Network