Benge and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3281
•10 September 2021
Benge and Secretary, Department of Social Services (Social services second review) [2021] AATA 3281 (10 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5070
Re:Mark Benge
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:10 September 2021
Place:Sydney
The Tribunal does not have jurisdiction to consider the applicant’s medical eligibility for the disability support pension.
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal can consider applicant’s medical eligibility for disability support pension (DSP) – considered by authorised review officer – not considered by SSCSD – SSCSD set aside decision under review and remitted with direction – Tribunal limited to reviewing direction – no jurisdiction to review applicant’s medical eligibility for disability support pension
LEGISLATION
Social Security (Administration) Act 1999 (Cth) s 179
CASES
Re Aslanidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Haywood [2010] AATA 641
REASONS FOR DECISION
Senior Member A Poljak
10 September 2021
Mr Benge, the applicant, received a lump sum payment in respect of injuries he sustained and as a result, Centrelink determined that he was precluded from receiving a social security payment for the period 23 August 2014 until 26 January 2024.
The applicant applied for jobseeker payment on 28 January 2021 and disability support pension (DSP) on 17 February 2021. Centrelink once again applied the preclusion period and rejected both claims. The decisions were affirmed by an authorised review officer (ARO) on 16 March 2021.
3.On 12 May 2021, the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) reviewed the decision of the ARO and decided as follows:
The decision under review is set aside and the matter remitted to Centrelink to determine Mr Benge’s claims for jobseeker payment and disability support pension on the basis that the preclusion period ended on 12 May 2021.
While the ARO considered, albeit it briefly, the applicant’s medical entitlement for the DSP, the SSCSD did not. It only considered the compensation preclusion period that applied to the applicant and remitted the questions of the applicant’s eligibility for jobseeker payment and DSP back to Centrelink for determination.
The applicant is understandably confused and frustrated that he received a favourable decision by the SSCSD in respect of the preclusion period but his claim for DSP remains undetermined.
The applicant seeks review in this Tribunal of the SSCSD decision in respect of his medical eligibility for the DSP. This plainly raises issues as to the Tribunal’s jurisdiction in reviewing a matter which has been remitted for determination, giving rise to these interlocutory proceedings.
Section 179 of the Social Security (Administration) Act 1999 (Cth) 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. [Emphasis added]
In accordance with s 179(2)(d), where the SSCSD decision is to remit a matter for reconsideration in accordance with a direction, the Tribunal is restricted to reviewing the direction made by the SSCSD (Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Haywood [2010] AATA 641 at [8]; Re Aslanidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429 at [12]-[31]).
Following that principle, I would be restricted to considering the direction that the compensation preclusion period ended on 12 May 2021 and that the claims for jobseeker payment and DSP be reconsidered by Centrelink.
The Tribunal does not have jurisdiction to consider the applicant’s medical eligibility for the DSP, which is the only matter the applicant seeks review. There is no utility to review the directions or recommendations made by the SSCSD and as such, it would be futile for the matter to proceed further.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 10 September 2021
Date of interlocutory hearing: 6 September 2021 Applicant: Self-represented Solicitors for the Respondent: Ms K Dunlop, Services Australia
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