Adams and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1339
•3 June 2024
Adams and Secretary, Department of Social Services (Social services second review) [2024] AATA 1339 (3 June 2024)
Division:GENERAL DIVISION
File Number:2023/8311
Re:Shane Adams
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:3 June 2024
Place:Brisbane
The Tribunal dismisses the application for review pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................................[SGD]....................................
Member D Mitchell
CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION of the Tribunal – whether the General Division has jurisdiction to review a decision made by the Social Services and Child Support Division to dismiss an application for no jurisdiction pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the Tribunal has jurisdiction to review the assessment of a Job Capacity Assessor – no reviewable decision – no jurisdiction – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)CASES
Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33
Chen and Secretary Department of Social Services [2023] AATA 344
Director-General of Social Security v Hales [1983] FCA 81; (1983) 78 FLR 373
Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
Re Laird and Australian Broadcasting Tribunal (1979) AAT 78/122
Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147
REASONS FOR DECISION
Member D Mitchell
3 June 2024
INTRODUCTION
By way of an application dated 23 October 2023,[1] Shane Adams (the Applicant) sought a second-tier review of a decision made by the Social Services and Child Support Division (SSCSD) on or around 4 October 2023.[2] The decision of the SSCSD, dismissed the Applicant’s application for review of an Employment Services Assessment which referred the Applicant to a Disability Employment Service and made a recommendation as to the Applicant’s work capacity.
[1] T Documents, T1, pages 1-2, Application for review.
[2] T Documents, T2, pages 3-6, Decision of the SSCSD.
BACKGROUND
On 5 November 2021, the Applicant was transferred from parenting payment single to jobseeker payment (JSP).[3]
[3] T Documents, T26, page 87, Centrelink mainframe screens.
On 12 August 2022, the Applicant made a claim for the disability support pension (DSP). That claim was refused by the Respondent. The refusal was affirmed at both internal review by an authorised review officer and by the SSCSD upon further review.[4]
[4] Respondent’s Outline of Submissions, paragraphs 10-12.
On 21 March 2023, the Applicant was assessed by a Job Capacity Assessor as part of an Employment Services Assessment (ESAT). In their report of the same day, the assessor recommended that the Applicant be referred to a Disability Employment Services (DES) provider as they formed the opinion that he had a baseline work capacity of 8-14 hours per week and that with the intervention of a Disability Services Provider could achieve a work capacity of 15-22 hours per week within two years.[5]
[5] T Documents, T21, pages 55-58, Employment Services Report.
As a result, the Applicant was referred to a DES provider.[6]
[6] T Documents, T27, page 98, Centrelink document list.
On 31 March 2023, the Applicant signed a job plan with his DES provider.[7] The job plan (also referred to as an employment pathway plan) set out the Applicant’s mutual obligation requirements as follows:[8]
I agree to search for work by contacting 2 employer per month, including any to which my provider refers me. I agree to report and provide evidence of these job search contacts to my provider as directed by the 19th of each month. I am aware that I need to look for any suitable work, not just work that I would like to do.
I agree to attend an act appropriately during job interview/(s).
I agree to attend fortnightly Disability Employment Services appointments with Epic Employment Service Inc.
I agree to undertake a health maintenance program to manage my medical condition from 31/03/2023 to 30/06/2023.
[7] Supplementary T Documents, ST2, page 9, Job Plan Details.
[8] Supplementary T Documents, ST3, pages 10-14, Job Plan.
On 12 May 2023, the Applicant sought internal review of the ESAT findings from the assessment on 21 March 2023 regarding his work capacity. The Applicant outlined that the assessment had resulted in him being moved to DES with an assessed work capacity which he disputed based on the medical evidence he had provided.[9]
[9] T Documents, T22, page 60, Letter from Applicant.
The Applicant sought that an Authorised Review Officer (ARO) re-rate his assessed work capacity as 0-7 hours per week on the basis that the assessment of his work capacity was wrong as:[10]
1.It did not take account of the four reports/forms, from GPs and treating back specialists, which outline that I have no capacity to work, and need to protect my back from further harm by not working;
2.Instead, it assessed my work capacity at a level that is completely baseless – that is, an arbitrary level based on no evidence whatsoever that I have the capacity to work safely at that level;
3.This assessment process involved Services Australia's assessor, Julie, making the statement that she could only assess my work capacity as either being able to work full time or able to work part time – which I would understand to be an untruthful statement, followed up by Julie making the clearly untruthful statement that she could not rate my capacity to work as being any lower than 8-14 hours per week; and
4.It did not take account of the fact that the medical evidence was very clear (including on Services Australia's own SU415 Medical Certificate form) that the functional impact of my spinal disorder was long term (“more than 24 months” to “lifelong”) and that the spinal disorder was a degenerative disease.
[10] T Documents, T22, page 61, Letter from Applicant.
On 25 May 2023, the ARO outlined that they had undertaken a formal review of the decision to refer the Applicant to a DES as part of his mutual obligations for JSP and that as a result they had not changed the decision.[11] The ARO provided:[12]
It is important to note that the findings of the Employment Services Assessment report are not reviewable as they are opinions and not a decision made by an officer under social security law.
I have therefore, reviewed the decision to refer you to a Disability Employment Service to satisfy mutual obligation requirements. I have found based on the available information that the decision is correct.
[11] T Documents, T23, pages 62-67, ARO decision and notes.
[12] T Documents, T23, page 64, ARO decision and notes.
On 17 July 2023, the Applicant sought review of that decision by the SSCSD.[13] In a letter dated 10 July 2023 which was attached to the Applicant’s application for review, he outlined his position as follows:[14]
I do not dispute the decision to place me in DES whilst my Claim for DSP is yet to be granted, but I dispute the assessed work capacity that was created by the Assessment process, which has resulted in inappropriate Mutual Obligations being placed upon me.
[13] T Documents, T24, pages 68-81, Email from the Applicant to the SSCSD with attachments.
[14] T Documents, T24, page 74, Submission from the Applicant.
On or around 4 October 2023, the SSCSD dismissed the application pursuant to section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)[15] finding that:[16]
The assessor reached a conclusion about [the Applicant’s] work capacity. That conclusion does not bind subsequent decision-makers such as those who are required to consider whether [the Applicant] qualifies for the disability support pension. If those decision-makers are required to determination whether [the Applicant] has a continuing inability to work, they will consider all the relevant evidence including the medical evidence that [the Applicant] has provided, then reach their own independent conclusion on the matter. For those reasons, the assessor’s conclusion is not a decision for the purpose of subsection 3(3) of the AAT Act. The conclusion was not reviewable by the authorised review officer and it is not reviewable by the Tribunal. Subsection 42A(4) of the AAT Act states: “The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.” It is appropriate to dismiss [the Applicant’s] application for review pursuant to that provision.
[15] T Documents, T2, pages 3-6, SSCSD Decision.
[16] T Documents, T2, page 6, paragraph 9, SSCSD Decision.
By way of an application dated 23 October 2023, the Applicant sought a second-tier review of the SSCSD decision by the General Division of the Tribunal.[17] The Applicant outlined that the reason for his application was that in making its decision the SSCSD had:[18]
…. Ignored that I was seeking for a correct decision to be substituted by the AAT – based on not just the act of referring me to Disability Employment Service, but also the (work capacity) basis on which I was referred there by the decision maker.
[17] T Documents, T1, pages 1-2, Application for Review.
[18] T Documents, T1, page 2, Application for Review.
After a telephone conference the parties were directed by the Conference Registrar to provide submissions in relation to the Tribunal’s jurisdiction to consider the application and the matter was referred to be listed for an interlocutory hearing.
By way of submissions dated 24 January 2024, the Respondent contended that:[19]
·it was open to the Tribunal to find it did have jurisdiction to review the decision of the SSCSD, however;
·the Tribunal should dismiss the application on the basis that the review that the Applicant seeks does not fall within the definition of a decision for the purposes of section 3(3) of the AAT Act and as such the Tribunal does not have jurisdiction to consider the matter.
[19] Respondent’s Outline of Submissions, paragraph 8.
On 21 March 2024, the Applicant provided submissions setting out why he considered that the scheduling of an Interlocutory Hearing was wrong.
A Telephone Interlocutory Hearing was conducted in this matter on 11 April 2024.
ISSUES
The issues before the Tribunal are:
(a)whether the Tribunal has jurisdiction to review a decision of the SSCSD to dismiss an application pursuant to section 42A(4) of the AAT Act; and if so
(b)whether assessment of a person’s work capacity is a reviewable decision for the purposes of section 3(3) of the AAT Act.
JURISDICTION OF THE TRIBUNAL
The role of the Tribunal is to undertake independent merits review of administrative decisions for which it has jurisdiction to hear and determine.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)Affirming the decision under review;
(b)Varying the decision under review; or
(c)Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot make a decision that is outside of the law that is in place. Concerns raised about the administration of social security laws that do not fall within the Tribunal’s jurisdiction are not matters for the Tribunal to determine.
Section 42A(4) of the AAT Act provides that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable.
‘Decision’ is defined in section 3(3) of the AAT Act and provides that unless the contrary intention appears, a reference to a ‘decision’ includes reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving suspending, revoking or refusing to give a certificate, direction approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.
In Director-General of Social Security v Hales [1983] FCA 81; (1983) 78 FLR 373
Lockhart J stated:
The definition of “decision” in sub-s.3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in sub-s.3(3) to determine definitively the meaning of the decision “decision”. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of the review of the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the definition of the word “decision”…it is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a “decision” susceptible of review under the Administrative Appeals Tribunal Act.
In Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33, the High Court considered the word decision. Mason CJ stated at [32]-[4]:
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss.(1), (2), (3) and (5) of s.3 point to a substantive determination. In this context the reference in s.3(2)(g) to "doing or refusing to do any other act or thing" (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s.16(1)(b) or in par.(e) of Sched.1 or par.(a) of Sched.2 to the ADJR Act any contrary implication. These exclusions from the ADJR Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.
If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the "conduct" of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of "conduct" than with the notion of "decision under an enactment".
[Emphasis added]
Section 25 of the AAT Act sets out the jurisdiction of the Tribunal as follows:
(1)Enactment may provide for applications for review of decisions
An enactment may provide that applications may be made to the Tribunal:
(a)for review of a decision made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…….
As explained by Senior Member Constance (as he then was) in Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147 at 149-150:
It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.
As such, the Tribunal is limited to reviewing decisions that it is given the jurisdiction to do so by a specific provision of an enactment. In the present matter, the enabling statute is the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Part 4 of the Administration Act deals with internal reviews of decisions and Part 4A deals with both first and second reviews by the Tribunal.
Section 129 of the Administration Act provides:
129 Application for review
(1)Subject to subsections (3) and (4), a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
(3) If:
(a)an officer makes a decision under the social security law in relation to pension bonus or essential medical equipment payment; and
(b) notice is given to the person concerned;
the person is not entitled to make an application under subsection (1) for review of the decision more than 13 weeks after the giving of the notice.
Section 135 of the Administration Act provides:
135Review of decisions following application under section 129
(1)Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the Chief Executive Centrelink or an authorised review officer must:
(a) review the decision; and
(b) do one of the following:
(i)affirm the decision;
(ii)vary the decision;
(iii)set the decision aside and substitute a new decision.
(2)In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.
(3)An authorised review officer may not review a decision relating to the exercise of the Secretary’s power under section 181 of this Act.
(5) If:
(a) a person sets aside a decision under subsection (1); and
(b)the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
Relevantly, section 142 of the Administration Act provides:
(1)Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a)a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b)a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
(4)For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:
(a)if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision —that decision as affirmed; and
(b)if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision —that decision as varied; and
(c)if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision —the new decision.
Section 179 of the Administration Act provides:
(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2)For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a)if an AAT first review affirms a decision —that decision as affirmed; or
(b)if an AAT first review varies a decision —that decision as varied; or
(c)if an AAT first review sets a decision aside and substitutes a new decision--the new decision; or
(d)if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT —the directions or recommendations of the AAT.
PARTIES’ JURISDICTION SUBMISSIONS
In the Applicant’s written submissions[20] and at the Interlocutory Hearing, he submitted that the ARO and SSCSD had not understood the decision he was seeking to be reviewed. He contended that the Tribunal has jurisdiction to consider his application.
[20] T Documents,T22 and T24, pages 60-61 and 74-84, Letters and submissions from Applicant.
The Applicant explained that he was not seeking review of the ESAT and he does not dispute the decision to place him in DES whilst his claim for the DSP was being assessed, rather he disputes the work capacity component of the referral to DES.
The Applicant told the Tribunal that he had not agreed to go to DES, but rather people are forced to go as otherwise they may have their JSP suspended. He said that each time he gets a new DES consultant, they read through the ESAT and he has to go back through his medical and work history. He contended that the medical evidence makes it clear that his work capacity should be classified as 0-7 hours and as such he should not be required to look for work.
The Respondent acknowledged the interactions between section 25(1) and section 43(1) of the AAT Act and section 179 of the Administration Act to provide the General Division of the Tribunal with jurisdiction to review decisions of the SSCSD.[21] The Respondent submitted that the SSCSD decision in this matter was not a decision made pursuant to section 43(1) of the AAT Act which is required for a person to then make an application to the General Division pursuant to section 179(1) of the Administration Act.[22]
[21] Respondent’s Outline of Submissions, paragraphs 33-34.
[22] Respondent’s Outline of Submissions, paragraph 35.
The Respondent noted that previous Tribunal decisions have taken different views as to whether the General Division has jurisdiction to review the merits of an application where the SSCSD has dismissed an application for review pursuant to section 42A(4) of the AAT Act or pursuant to other provisions outside of section 43(1) of the AAT Act. The Respondent referred to relevant decisions.[23] The Respondent provided that:[24]
47.The Secretary contends that the weight of authorities suggest that it is open to this Tribunal to review the AAT1 decision; if this Tribunal disagrees with the AAT1 decision to find that the decision under review is not capable of being reviewed.
48.While the Secretary accepts that it is open to the Tribunal to review the Applicant’s application for further review; if the Tribunal finds that a person’s work capacity assessment is a reviewable decision; the Secretary contends that such an assessment is not a reviewable decision and therefore the Tribunal should dismiss Applicant’s application for further review pursuant to subsection 42A(4) of the AAT Act.
[23] Respondent’s Outline of Submissions, paragraphs 36-46.
[24] Respondent’s Outline of Submissions, paragraphs 47-48.
The Respondent contended that the assessment of a person’s work capacity is not a decision capable of administrative review and therefore the Applicant’s application for further review should be dismissed for lack of jurisdiction pursuant to section 42A(4) of the AAT Act.[25]
[25] Respondent’s Outline of Submissions, paragraph 49.
The Respondent noted that there is nothing in the qualifying legislation for JSP which specifies an assessment of a person’s work capacity is capable of merits review.[26] It set out the provisions of the Social Security Act 1991 (Cth) (the Act) and Administration Act and parts of the Social Security Guide in paragraphs 56-75 of the Outline of Submissions.[27] The Tribunal agrees with that analysis.
[26] Respondent’s Outline of Submissions, paragraph 55.
[27] Respondent’s Outline of Submissions, paragraphs 56-75.
The Respondent contended that:[28]
[28] Respondent’s Outline of Submissions, paragraphs 76-87.
76.In this case on 21 March 2023 the Applicant was assessed by a Job Capacity Assessor for an ESAT (T21, 55). The assessor found that the Applicant had a baseline work capacity of 8-14 hours per week (T21, 57) and recommended that the Applicant be referred to a DES provider (T21, 57-58). The assessor found that the Applicant with the intervention of a DES provider could achieve a work capacity of 15-22 hours per week within two years (T21, 57).
77.On 21 March 2023, based on the recommendation of the Assessor, the Applicant was referred to a DES provider (T27, 98).
78.On 31 March 2023 the Applicant signed a Job plan with his DES provider (ST2, 9). The requirements in that Job plan are mutual obligations that the Applicant must comply with in order to remain payable (ST3, 10).
79.In this case the Applicant is seeking further review of his work capacity assessment. The Secretary contends that this assessment is not a decision made under the social security law.
80.The Secretary contends that an ESAT is a report used to assist decision makers when making decisions about a person’s employment pathway plan requirements. The Secretary contends that the work capacity assessment contained in the ESAT is a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision in respect of a person’s employment pathway plan and is therefore not a decision capable of review.
81.As noted above, to qualify for a referral to a DES provider a person must have a work capacity assessment of at least 8 and not more than 30 hours per week with intervention. There is an exception to this qualifying criterion if a person is assessed as having a work capacity of 0-7 hours per week but a projected future work capacity of more than this is achievable in the future beyond two years with DES assistance. The ESAT is also used to inform the DES provider when making decisions about what supports and mutual obligations to include in a person’s employment pathway plan/Job plan.
82.The Applicant contends that he is seeking review of the work capacity assessment because the assessment has resulted in inappropriate mutual obligations being placed upon him. It is not clear which mutual obligations the Applicant is referring to. If the Applicant disagrees with the requirements contained in his Job plan, then the Secretary contends it is open to the Applicant to seek review of the Job plan by requesting that the plan be varied to address his concerns about those mutual obligations.
83.The Secretary notes that subsection 40V(2) of the Administration Act provides that the Employment Secretary may vary an employment pathway plan on the Employment Secretary’s own initiative or on request of the person. Subsection 40V(3) of the Administration Act provides that if a person requests the Employment Secretary to vary the plan then the Employment Secretary must either refuse to vary the plan, or vary the plan. Subsection 40V(4) of the Administration Act requires the Employment Secretary to notify the person of the decision either to vary or refuse to vary the plan.
84.The Secretary contends that the decision to vary or not vary is amenable to the internal review process at section 129 of the Administration Act. The subsequent internal review decision is also amenable to further review with this Tribunal provided that the application to the AAT1 is expressed as an employment pathway plan decision (pursuant to section 143 of the Administration Act).
85.The Secretary further notes that when the Tribunal reviews an employment pathway plan decision then the Tribunal’s powers are confined to either affirming the decision or setting aside the decision and remitting the matter back to the Agency for reconsideration with any directions or recommendations (pursuant to item 6, of section 147 of the Administration Act).
86.When making a decision in respect of whether or not the Applicant’s employment pathway plan/Job plan requirements should be varied, it would be open to the decision maker to rely on, or decline to rely on the work capacity assessment contained in the ESAT. As part of this process the Applicant can contend that little or no weight should be afforded to the work capacity assessment based on any evidence he wishes to put forward.
87.The Secretary submits that because a work capacity assessment is a step along the way to making an ultimate decision about the Applicant’s employment pathway plan/Job plan requirements, it is not a decision capable of administrative review and therefore the Tribunal should dismiss this matter pursuant to subsection 42A(4) of the AAT Act.
CONSIDERATION ON JURISDICTION
As set out above, the Tribunal has no general review powers, its jurisdiction does not extend to reviewing all decisions made by government agencies. The Tribunal’s jurisdiction is limited to reviewing a decision if it is given jurisdiction to do so by a specific provision of an enactment.[29]
[29] Re Laird and Australian Broadcasting Tribunal (1979) AAT 78/122; Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309 and Chen and Secretary, Department of Social Services [2023] AATA 344.
It is, as stated in Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 149 at 149-150, “…essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.”
As such, while the Tribunal acknowledges the Applicant’s continued dissatisfaction with the decision-making process in question and his assessed work capacity, it is the Administration Act that outlines the Tribunal’s jurisdiction to consider the matter.
The Tribunal has reviewed the previous decisions drawn to its attention in relation to its jurisdiction to undertake a second review where the SSCSD has made a decision pursuant to a provision other than section 43 of the AAT Act. The Tribunal agrees with the approach outlined by Deputy President Fogie in Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148:[30]
Mr Kerferd applied to this Tribunal for review of the SSAT’s decision. There is no question that it is a “decision” that finally determines a matter. It is a decision in the sense in which that word is used in s 25 of the AAT Act. It puts to an end Mr Kerferd’s quest to have someone consider whether or not the CSO’s refusal to take the information he proffered was correct.
Whether it is a decision made in the exercise of powers conferred by an enactment is more problematic. I know of no express power given under any enactment that authorises a decision of that sort. It could be thought that is an end of the matter because one of the criteria in s 25(1) of the AAT Act has not been satisfied. If it is not satisfied, s 25(2) cannot operate to give it power. It is not an end of the matter, though. There remains a decision that affects Mr Kerferd and of which he has sought review. There remains a decision of the SSAT saying that it has no jurisdiction to review that decision and a decision of the ARO to the same effect. If that is indeed the case, then this Tribunal has no jurisdiction. Should it be the case that it did have jurisdiction to review the decision and so did the ARO, it would normally follow in matters falling within the Tribunal’s social security jurisdiction that this Tribunal had jurisdiction too.
The solution to the dilemma lies in looking not to the decision that was made by the SSAT regarding jurisdiction but to the decision that it found it did not have jurisdiction to review. If first the ARO, then the SSAT and finally the Tribunal had jurisdiction to review it, then the Tribunal can set aside the decision that the SSAT had no jurisdiction.
[Emphasis added]
[30] Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148 at [37]-[39].
The Respondent set out the provisions of the Act and Administration Act and parts of the Social Security Guide that apply to eligibility for JSP as follows:[31]
56. Section 593 of the Act sets out the qualification requirements to receive JSP:
[31] Respondent’s Outline of Submissions, paragraphs 56-75.
593 Qualification for jobseeker payment
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a jobseeker payment in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
(ii)subsection (1A) applies in relation to the person for the period; and
(b) throughout the period the person satisfies subsection (1AC); and
(g) throughout the period the person:
(i) is at least 22 years of age and has not reached the pension age; and
(ii) is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(i) the person was not in receipt of a youth allowance during the period
…
(1AC) A person satisfies this subsection if:
(a) the following apply:
(i) the person satisfies the employment pathway plan requirements;
(ii) the person satisfies the Employment Secretary that the person is willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person; or
(b) the following apply:
(i) the person is, under Subdivision C of Division 2A of Part 3 of the Administration Act, not required to satisfy the employment pathway plan requirements;
(ii) the person satisfies the Employment Secretary that the person would otherwise be willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person.
Note 1: For satisfies the employment pathway plan requirements, see subsection 23(1).
Note 2: See Division 2B of Part 3 of the Administration Act for the circumstances in which paid work is unsuitable to be done by a person.
57. Subsection 23(1) of the Act notes a person satisfies the employment pathway plan requirements by entering into an employment pathway plan.
58. Section 40A of the Administration Act provides that the Employment Secretary may require a person to enter into an employment pathway plan if an employment pathway plan is not in force in relation to a person who is receiving or has made a claim for JSP. The same provision also provides that the Employment Secretary may require the person to enter in a new plan if there is already an existing one.
59. Sections 40D and 40F set out the relevant matters that a delegate of the Employment Secretary must consider when developing an employment pathway plan. Subsection 40F(b) of the Administration Act notes that impact of any disability, illness, mental condition or physical condition of the person on the person’s ability to work, to look for work or to participate in training activities is a relevant matter in addition to other matters.
60. Section 40V of the Administration Act provides that the Employment Secretary may vary an employment pathway plan that is in force in relation to a person after discussion with the person and after taking into account the matters mentioned in 40D and 40F of the Administration Act. Section 40V of the Administration Act also allows a person to seek to have their employment pathway plan varied. If a person seeks to have the plan varied, then the Secretary must either refuse to vary the plan or vary the plan.
61. Section 42AC of the Administration Act provides that a person commits a mutual obligation failure if among other failures, a person declines to enter into an employment pathway plan after being invited to do so; or fails to comply with the requirements contained in an employment pathway plan.
62.Section 140A of the Administration Act defines employment pathway plan decisions as:
For the purposes of this Act, an employment pathway plan decision is:
(a) a decision of the Employment Secretary under subsection 40A(3) to notify a person of the requirement to enter into an employment pathway plan, where the notification does not give the person the option of entering into the plan under section 40E; or
(b) a decision of the Employment Secretary under subsection 40D(4) to approve requirements in an employment pathway plan; or
(c) a decision of the Employment Secretary under subsection 40V(1) to vary an employment pathway plan; or
(d) a decision of the Employment Secretary under paragraph 40V(3)(b) to refuse to vary an employment pathway plan.
63. Section 143 of the Administration Act requires that Tribunal may only carry out an AAT first review of an employment pathway plan decision if the application for AAT first review is expressed to be for that decision.
64. Item 6 of section 147 of the AAT Act modifies subsection 43(1) of the AAT Act in respect of employment pathway plan decisions. Item 6 modifies subsection 43(1) of the AAT Act by omitting the Tribunal’s power to ‘exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’ and by omitting the power to vary the decision, and by omitting the power to set aside and substitute the decision. This means that on Tribunal review of an employment pathway plan decision, the Tribunal is restricted to affirming the decision under review or setting aside the decision and remitting the matter for reconsideration with directions or recommendations.
65. The Social Security Guide (the Guide) at 3.11.2 notes that a Job plan is an 'employment pathway plan' for the purposes of social security law.
66. The Guide at 3.11.2 explains that JSP recipient’s mutual obligation requirements will be recorded in their Job plans, and that all JSP recipients without an exemption from their mutual obligation requirements will need to have a Job plan created when they claim payment.
67. The Guide notes at 3.11.7 that a job seeker with an assessed capacity to work 0 to 7 or 8 to 14 hours a week can meet their mutual obligation requirements by attending a quarterly interview with Services Australia to discuss their participation and meeting the terms of their Job plan. The job seeker through their quarterly contact can also volunteer to accept a referral to a suitable program of assistance recommended by an ESAT, but cannot be penalised for not accepting a referral.
68. The Guide notes at 3.11.1.10 that the number of job searches generally expected to be undertaken by job seekers in DES is dependent on their capacity.
69. TheDisability Employment Services Eligibility Referral and Commencement Guidelines notes that for a job seeker to be eligible to be referred to a DES provider the person must have, among other requirements, a future work capacity with intervention of at least eight hours per week, and not a future work capacity with intervention of thirty hours per week.
70. It further notes that Job seekers with a “Capacity for work within 2 years with Intervention: 0-7 hours per week” in the ‘Work Capacity’ field of the ESAT/JCA are generally ineligible for DES. However, a job seeker with 0-7 hours work capacity is eligible for DES if they:
·are assessed as being able to work more than eight hours, and
·are suitable to be placed in Ongoing Support, and
·have an accompanying note in the ‘Recommendation’ field of the ESAt/JCA Report stating “The client can achieve 8+ hours per week with DES Ongoing Support”.
71. The Disability Employment Services Eligibility Referral and Commencement Guidelines under the heading ‘Work Capacity’ notes that a job seeker’s capacity for work is normally determined by an ESAT or Job Capacity Assessment based on available certified medical evidence.
72.The Disability Employment Services Job plan and Scheduling Mutual Obligations Requirements Guidelines sets out the requirements for what is to be included in a Job plan for a participant in a DES. This guide notes that a Job plan’s contents are discussed and agreed, based on each participant’s individual circumstances and the support they need to move from welfare to work. The Guidelines note that usually a Job plan includes frequency of provider appointments, job search requirements, education and skills training and other activities to improve the participant’s employability.
73. The Guideline further note that providers are required to include approved activities in the participant’s Job plan that will enable the participant to meet their mutual obligation requirements. The Guideline state that at all times during a participant’s period of servicing, the number of job searches a participant is required to undertake each month must be specified in the participant’s Job plan.
74. The Guideline in respect of job search activities note that job search requirements are determined by providers based on a participant’s circumstances and local labour market conditions and that the majority of participants will usually be required to undertake 20 job searches per month.
75. Finally, the Guideline provides a list of persons who are not required to undertake job searches:
·Principal Carer Parents undertaking 30 hours per fortnight of paid work, approved study or voluntary work or a combination of these,
·Participants with a Partial Capacity to Work of 15 to 29 hours per week undertaking 30 hours of paid work, approved study or voluntary work or a combination of these,
·Participants 55 years of age and over undertaking 30 hours of paid work, approved study or voluntary work or a combination of these,
·Participants undertaking drug and alcohol rehabilitation in a residential program,
·Pregnant Participants in their final trimester,
·Self-Employment Assistance Participants and Prospective Participants while participating in Small Business Training,
·Self-Employment Assistance Participants in receipt of Parenting Payment (Single) or the Disability Support Pension who remain on their current payment while participating in Small Business Coaching and actively working on their small business,
·Early School Leavers who are meeting their Mutual Obligation Requirements through full-time education or a combination of part-time study and part-time work of 25 hours per week (15 hours for those with part-time Mutual Obligation Requirements).
The Tribunal accepts that analysis and further notes that section 40F of the Administration Act in full sets out that employment pathway plan matters in relation to a person are the following:
(a) the person's education, experience, skills and age;
(b) the impact of any disability, illness, mental condition or physical condition of the person on the person's ability to work, to look for work or to participate in training activities;
(c) the state of the labour market and the transport or other options available to the person in accessing that market;
(d) the participation opportunities available to the person;
(e) the family and caring responsibilities of the person;
(f) the length of travel time required to comply with requirements in an employment pathway plan;
(g) the financial costs (such as travel costs) of complying with requirements in an employment pathway plan, and the person's capacity to pay for such costs.
In considering the legislative basis on which JSP is granted and that eligibility is ongoing, the Tribunal finds that there is no express legislative basis for a decision to be made in relation to a person’s work capacity. It is clear from the references to the Social Security Guide set out in paragraph 44 above that ESAT and job capacity assessments are undertaken by the Respondent as part of the assessment processes for a number of different social security benefits and are not of themselves decisions.
The Tribunal understands that the Applicant is not seeking review per say of the ESAT, nor does he disagree with being referred to a DES provider, rather he is seeking review of the work capacity that was provided as part of the DES provider referral. Based on the legislative pathway outlined above the Tribunal finds that the provision of the ESAT or opinion with regards to the Applicant’s work capacity is not binding on the DES provider or the decision that puts in place the job plan and mutual obligations outlined therein.
The Tribunal agrees with the Respondent’s submissions that the findings of a Job Capacity Assessor as part of an ESAT are recommendations or opinions they are not required to be followed or accepted as part of the ultimate decision with regards to eligibility for payment or in this case the setting of an employment pathway plan (of which a job plan constitutes). The Tribunal finds that they are a step along the way of a decision-making process.
As such the Tribunal finds that an assessment or opinion of a person’s work capacity in this instance does not form a decision for the purposes of section 3(3) of the AAT Act and, therefore, is not reviewable by the Tribunal. It does not constitute a decision to which section 25 of the AAT Act applies to commence the enlivenment of the Tribunal’s jurisdiction.
The ARO clearly provided that they formed the view that the Respondent did not have jurisdiction to review the work capacity assessment provided by the ESAT. As such the evidence before the Tribunal demonstrates that a review of that assessment was not undertaken in accordance with section 135 of the Administration Act.
Based on the Tribunal’s findings set out above, the Tribunal agrees that there was no jurisdiction for the SSCSD to review the ARO decision in relation to the work capacity assessment as a decision had not been made by the ARO to either affirm, vary or set aside and substitute a new decision as required to enliven the review rights provided by section 142 of the Administration Act.
It, therefore, logically flows that this Tribunal does not have jurisdiction to consider this application. The Tribunal’s jurisdiction to undertake a second review has not been enlivened by section 179 of the Administration Act in circumstances where the SSCSD did not have jurisdiction to consider the matter on first review.
It is noted that section 179 of the Administration Act operates to enliven the Tribunal’s jurisdiction for second review where the SSCSD makes a decision pursuant to section 43(1) of the AAT Act. Where the SSCSD correctly made a decision pursuant to section 42A(4) of the AAT Act the Tribunal considers such a decision not to be a decision capable of second review.
For those reasons, the Tribunal finds, that there is no reviewable decision before it and as such, it does not have jurisdiction to hear the application. The Tribunal notes that based on its findings above, if it had of found that it had jurisdiction to undertake a second-tier review, it would have also found that the Tribunal did not have jurisdiction to review the matter the Applicant sought to have reviewed. Consequently, the Tribunal dismisses the application pursuant to section 42A(4) of the AAT Act.
The Tribunal accepts the Respondent’s submissions in relation to the potential decision the Applicant may seek to have reviewed. It is the decision putting in place the job plan (or employment pathway plan) that the Applicant may consider seeking review of if he considers that it imposed unreasonable obligations on him as a result of the work capacity assessment.
DECISION
The Tribunal finds that it does not have jurisdiction to consider this application.
Consequently, pursuant to section 42A(4) of the AAT Act, the Applicant’s application for review is dismissed.
| I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell |
.........................[SGD]............................
Associate
Dated: 3 June 2024
Date of hearing:
11 April 2024
Applicant: By phone Solicitors for the Respondent: Mr Samuel Harvey
Services Australia
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