Benevoli and Secretary, Department of Family and Community Services

[2002] AATA 693

DECISION AND REASONS FOR DECISION [2002] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/212

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      JOHN BENEVOLI  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Associate Professor SD Hotop, Deputy President       

Date26 July 2002

Place             Perth

DecisionThe Tribunal is satisfied that the application for review of the decision is frivolous. The application is accordingly dismissed pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

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Deputy President

CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – activity test – Centrelink officer made decision requiring applicant to remain on intensive assistance with a certain Job Network member in order to satisfy activity test – Authorised Review Officer affirmed that decision – Social Security Appeals Tribunal ("SSAT") set aside that decision and substituted decision that applicant not required to attend intensive assistance program with abovementioned Job Network member but may be required to attend such a program with a different Job Network member – applicant applied to Tribunal for review of SSAT's decision – whether the application for review frivolous – whether Tribunal has power to make decision more favourable to applicant than decision under review.
Administrative Appeals Tribunal Act 1975 ss25, 42B (1), 43(1)
Social Security (Administration) Act 1999 s179
Re Bergen and Secretary, Department of Social Security (1994) 36 ALD 717
Lees v Comcare (1999) 29 AAR 350

REASONS FOR DECISION  26 July 2002            Associate Professor SD Hotop, Deputy President  1.          On 18 June 2002 an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 18 April 2002 was lodged with the Tribunal by the applicant. 2.   In the decision under review the SSAT set aside a decision of an officer of Centrelink dated 22 January 2002, as affirmed by an Authorised Review Officer of Centrelink on 6 February 2002, requiring the applicant "to remain on intensive assistance with PVS Workfind in order to satisfy the activity test" for the purposes of qualifying for Newstart Allowance.  In substitution for that decision the SSAT decided that "although [the applicant] may be required to undergo intensive assistance in order to satisfy the activity test this should not be with PVS Workfind".  The SSAT added:  "This means the appeal is successful". 3.      Notwithstanding that his appeal to the SSAT was successful, the applicant has applied to the Tribunal for review of that decision on the basis that he wishes to be wholly exempted from the activity test, and not merely excused from participating in an intensive assistance program with a particular Job Network member (namely, PVS Workfind). 4. It appears from the decision of the SSAT which is under review that the only matter which was before the SSAT for determination was the matter of whether or not the applicant should be excused from participating in an intensive assistance program with PVS Workfind for the purposes of satisfying the activity test for qualification for Newstart Allowance, and the SSAT determined that matter favourably to the applicant. The much broader matter of whether or not the applicant should be wholly exempted from the activity test was not before the SSAT and, accordingly, the SSAT made no determination on that matter. 5. Pursuant to s25 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and s179 of the Social Security (Administration) Act 1999 the Tribunal has jurisdiction to review the decision of the SSAT in this case, and pursuant to s43(1) of the AAT Act it has the power to affirm or vary that decision or set it aside and either substitute a decision therefor or remit the matter for reconsideration in accordance with directions or recommendations. In exercising its abovementioned jurisdiction and powers, however, the Tribunal is limited to reviewing the decision of the SSAT only and may not exercise general decision-making power. Accordingly, as the matter of whether or not the applicant should be wholly exempted from the activity test was not considered and determined by the SSAT in the decision under review, the Tribunal, for the purpose of reviewing that decision, has no power to consider and determine that matter: see Lees v Comcare (1999) 29AAR 350. 6. It follows that, as regards the only matter that the Tribunal may appropriately consider and determine in reviewing the SSAT's decision - namely, whether or not the applicant should be excused from participating in an intensive assistance program with PVS Workfind - the most favourable decision that the Tribunal is empowered to make, from the applicant's standpoint, is that the applicant should be so excused. That was what the SSAT decided in the decision under review. Accordingly, in this case the Tribunal is unable to make a decision that would provide any greater benefit to the applicant than was provided to him by the decision of the SSAT which is sought by the applicant to be reviewed. The applicant's application for review is therefore frivolous in the sense that it is futile and cannot serve any useful purpose and, on that ground, should be dismissed pursuant to s42B(1)(a) of the AAT Act: see Re Bergen and Secretary, Department of Social Security (1994) 36ALD 717.

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  Deputy President