The Experience of using the Social Security Appeals Tribunal: Providing Individual Justice across Diversity
| Author | Belinda Fehlberg,Beth Gaze,Ruth Quibell |
| Published date | 01 March 2014 |
| DOI | 10.22145/flr.42.1.2 |
| Date | 01 March 2014 |
| Subject Matter | Article |
THE EXPERIENCE OF USING THE SOCIAL SECURITY
APPEALS TRIBUNAL: PROVIDING INDIVIDUAL
JUSTICE ACROSS DIVERSITY
Beth Gaze,* Ruth Quibell** and Belinda Fehlberg***
ABSTRACT
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.
INTRODUCTION
What is it like to appeal to the Social Security Appeals Tribunal ('SSAT')? To what
extent do SSAT tribunal users understand the issues in their cases, feel adequately
informed to prepare for their hearings and feel satisfied with the outcome?1 Given that
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*
Associate Professor, Law School, University of Melbourne, egaze@unimelb.edu.au.
** Research Fellow, Law School, University of Melbourne (2006–09).
*** Professor, Law School, University of Melbourne. 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
.
2
Federal Law Review
Volume 42
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over or around 10 000 appeals have been lodged in Centrelink matters in every year
since 2006,2 there is likely to be a wide variety of SSAT tribunal user experiences. But
little has been known until now about the experience of appealing from their
perspective. This is an important gap in our knowledge given that, as the 2001 Leggatt
Report in Britain cautioned:
It should never be forgotten that tribunals exist for users, and not the other way round …
they do not fulfil their function unless they are accessible by the people who want to use
them, and unless the users receive the help they need to prepare and present their cases.3
The SSAT's function of hearing appeals by individuals against unfavourable
decisions of government social security decision-makers inherently involves a vast
disparity of resources, knowledge, and capacity to deal with the law. The emphasis of
the Leggatt Report on the experiences of users is just as essential to ensuring justice in
Australia, where, unlike in the UK at that time, individuals are expected to deal with
the SSAT unrepresented.
For many people who rely wholly or partly on social security payments, important
aspects of their lives are dependent on unavoidable engagement with a large
bureaucratic organization. The nature and adequacy of the administrative justice4
provided to them must be of concern. While all social security users encounter the
legal system though the 'street-level bureaucrats'5 who give effect to the legal
structures by administering and deciding applications, only a small proportion go on
to deal with the appeals system.6 However, individuals' ability ultimately to secure
justice from the system depends on both good first instance decision-making, and
access to an appeals system that provides a fair and effective review of their case.
This article reports on Australian research into the experiences of individuals who
have appealed to the SSAT. We surveyed people who had appealed to the SSAT
against decisions of Centrelink in social security matters in Melbourne and Sydney in
2008 to investigate their experiences.7 We sought to explore from the tribunal user's
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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 323.
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, 13–14.
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
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The Experience of Using the Social Security Appeals Tribunal
3
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perspective how the Tribunal negotiates its way through the potentially conflicting
statutory objectives. This article examines three key issues to emerge from analysis of
the data: the diversity of tribunal users, their level of satisfaction with the SSAT
process, and what they felt they had to gain from engaging in that process. The
conclusion considers the broader implications of this research in light of the impact of
pressures for greater efficiency on the provision of administrative justice to tribunal
users, and argues that the objective of providing justice for individual users must be a
priority goal in the face of continuing financial pressure. First we provide a brief
outline of project aims and methodology.
AIMS OF THE RESEARCH
This research rests on an understanding of the critical importance of consumer or
citizen rights protections in social security matters, and the significance of user
perceptions of the appeal processes established to ensure those rights. Our aim is to
explore the range of experiences of people appealing to the SSAT. Previous empirical
academic research in Australia on the SSAT has focused mainly on the views of
tribunal members8 and has not collected data from large numbers of tribunal users.9
Surveys conducted by the SSAT for quality assurance purposes, at least to the extent
they are published, provide data on user satisfaction but do not, for the most part,
attempt to unpack the experiences and motivations of users.10 There has generally
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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...
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