AAT accused of ‘intimidating’ robo-debt victims out of appealing

When Ben lodged his tax return in 2018, he expected to receive around $6500. What he didn’t expect was a letter from MyGov telling him he owed Centrelink thousands of dollars, and that the debt would be automatically taken from his return. 

A year later, Ben — who asked his last name be withheld, fearing the Department of Human Services (DHS) could target him — lodged an appeal with the Administrative Appeals Tribunal (AAT). The AAT referred Ben to its “early case assessment officer”, who would phone to discuss his application. 

During the last financial year the AAT’s early case assessment officer contacted 769 people appealing their Centrelink debt, a tribunal spokesperson told Inq. The AAT has been trialing the service in Queensland since July 2017, with the aim of expanding to other states.

According to an AAT spokesperson, 3174 applications were lodged at the Brisbane registry in the last financial year (note: this isn’t the number of applications lodged at the tribunal per se, as applications are sometimes transferred between registries). 

An AAT spokesperson told Inq that the trial was “designed to assess the key issues concerning an application, and to prepare self-represented applicants for the next stage of the process”. 

But it’s clear from the AAT’s most recent annual report that the service is one effort to reduce the tribunal’s growing caseload. It is described as one of a “range of case management measures to support effective and efficient review processes … particularly in light of the increased number of applications for review”. 

And it’s working. According to the AAT’s 2018/2019 report, “approximately half of the applicants contacted during the outreach stage elected not to proceed with their application, having discussed their matter in full with a case assessment registrar”. It’s a figure sparking concern amongst lawyers, academics and caseworkers.

Ben told Inq that having spoken to the officer — who, he learnt, worked from home — he could understand why those contacted could be discouraged from pursuing their appeal. 

“He was discouraging. He calls up and says, ‘I’m a lawyer working for these people and you must provide [more evidence, bank statements], otherwise we are going to find against you,” Ben said. “It was quite intimidating, really. Even the fact that he was demanding all these documents without even hearing what I was going to say.”

Despite the warning, Ben pursued the case and succeeded. The deciding member found he was “not satisfied that [Ben] has the debt as calculated by Centrelink” and set it aside to be recalculated by the DHS. In the meantime, the amount has been refunded to Ben.

The DHS recently revealed it would no longer solely rely on “income averaging” to raise robo-debt — a method that experts alleged for years has seen thousands of welfare recipients overcharged and wrongly accused. The department will also review some existing debts.

Minister for Government Services Stuart Robert’s office refused to comment on whether the DHS would review the debt of applicants who the AAT’s case officer deterred from appealing on the presumption that Centrelink had correctly calculated the amount owing.

A volunteer robo-debt caseworker — whose name has been withheld to protect her identity — told Inq she has heard from at least eight applicants who were allegedly contacted by the AAT’s case assessment officer and discouraged from appealing. 

They described the phone calls as confusing, intimidating and upsetting. They thought the officer was advising them as their lawyer; they claimed the officer jumped between documents confusingly and tried to pick apart minor points; they were left in tears after the officer allegedly said they should think of the Centrelink debt as a loan that needs repaying. 

Inq understands that at least two withdrew their application after being told they would probably fail. The rest proceeded, and most had their debt set aside or significantly reduced.

One of these applicants — who asked Inq to keep them anonymous — is proceeding with the appeal on behalf of her daughter, despite warnings from the early case officer that she “won’t be able to go very far with this”. 

She said the AAT’s lawyer was intimidating and “certainly trying to talk me out of [appealing]”.

“It was very much like ‘I’m a solicitor and you are a nobody and I say you have no case’. You are supposed to be independent and you have already told me I have no case to answer to,” she told Inq of the phone call.

“I feel as though the AAT hearing is no longer [going to be] independent. It’s like you are going to a murder trial and them saying you clearly committed the murder.”

The volunteer caseworker told Inq that, based on what she had heard, she could understand why around half of those contacted by the assessment officer withdrew their cases.

“People are already daunted going into the AAT because they think the tribunal is like a court hearing. They think they are going head-to-head with Centrelink,” she said.

“[The case officer] is a lawyer. He claims to be independent. He claims to be calling on behalf of the tribunal. He is giving himself credibility and authority, and then proceeds to tell them their case is hopeless and they should withdraw.”

“He is exploiting the knowledge and power imbalance and approaching it with an air of authority … and, I believe, with an agenda of talking as many people out of proceeding as possible.”

The AAT said that each call with the early case officer is recorded for quality assurance purposes. In response to Inq’s question as to whether there has been an internal or external review of the service, an AAT spokesperson said “the AAT monitors this trial on a weekly basis”. 

“In the case of this outreach trial, we have refined a number of aspects of the trial in consultation with welfare rights and legal organisations,” the spokesperson added later.

Terry Carney, social security law expert and longest-serving former AAT member, told Inq the fact that around 50% of Centrelink applicants contacted by case officer were dropping their appeals was potentially quite concerning.

“It is to me a high figure and causes me to wonder if there are enough straightforward cases to warrant such a high figure,” Carney said.

“There are two hypotheses that might account for the number [of applicants withdrawing]. The less serious hypothesis is that it is because [applicants] recognise they don’t have any merit to their claim. I think however that it is a bit more likely that the number is due to some lack of time, lack of professionalism, and absence of evaluation of how this triaging is being done.”

“My point about triaging and case management is that it is a riskier feature of tribunal work, and it really does have to be placed in the hands of very experienced triagers or case managers and that may or not be the case in this instance.”

“What worries me is that there is no indication that any kind of rigorous internal evaluation — much less what is being required in this case, being an independent external evaluation — is being conducted.” 

Have you or anyone you know had experience dealing with the AAT? Send your comments to boss@crikey.com.au. Please include your full name for publication.