Boswell and Secretary, Department of Social Services - [2017] AATA 1751

Boswell and Secretary, Department of Social Services [2017] AATA 1751 (6 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4906
Re:Stephen Boswell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:6 October 2017
Place:Brisbane

I order that the Application for Second Review before this Tribunal be dismissed under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospects of success.
........................[sgd].......................
Senior Member T. Tavoularis
PRACTICE AND PROCEDURE – Interlocutory Application for dismissal – no reasonable prospects of success – Original claim for DSP was rejected – Applicant did not request review in time – was subsequently successful in second claim for DSP – requested review of first claim some 20 months later - no capacity for back pay beyond grant of second claim – Application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Evidence Act 1995 (Cth), s 160
Social Security (Administration) Act 1999 (Cth), ss 11, 13, 16, 42, 107, 237, Schedule 2
Cases
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Spencer v Commonwealth of Australia [2010] HCA 28
Theo v Secretary, Department of Family and Community Services [2006] FCA 279
REASONS FOR DECISION
Senior Member T. Tavoularis
6 October 2017
INTRODUCTION

This is an interlocutory decision relating to Secretary’s[1] application for dismissal of this matter pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
[1] Secretary, Department of Social Services - the Respondent in the substantive proceeding.
It is the Secretary’s submission that Mr Boswell[2] has no prospects of success in respect of his Application for Second Review of Decision.
[2] The Applicant in the substantive proceedings.
Mr Boswell sought review of a decision by the Administrative Appeals Tribunal, Social Services and Child Support Division (“AAT1”) dated 20 July 2017. That decision essentially found that Mr Boswell was not eligible for payment of the Disability Support Pension (“DSP”) prior to 30 April 2015.
Mr Boswell disagrees with this decision and effectively wants to be back paid DSP from the date of his original claim for DSP, which was refused by Centrelink on 15 September 2014. Mr Boswell’s contended basis for the back payment of the DSP is:
“I do not agree with the decision in several ways.
Nor the process”.[3]
[3] See Application for Second Review of Decision – Reasons for the Application, received 15 August 2017.
BACKGROUND
For the sake of clarity, there were two separate applications or claims for DSP made by Mr Boswell. The first claim was lodged on 29 August 2014 and was then considered and rejected by Centrelink on 15 September 2014. Mr Boswell did not appeal Centrelink’s original rejection decision within the stipulated 13 week period. However, Mr Boswell contacted Centrelink a while later which resulted in a second claim for DSP being lodged at the start of May 2015. That second claim was successful and he was granted DSP with effect from 30 April 2015.
The essence of Mr Boswell’s present application for second review that is sought to be ventilated before this Tribunal is that the decision relating to when he became eligible for DSP is somehow incorrect. Mr Boswell contends that the decision is incorrect because Centrelink somehow erred in finding that he was only eligible from 30 April 2015. According to him, he should have been awarded the DSP on a backdated basis starting from the date of his first claim for DSP.
So for all intents and purposes, Mr Boswell seeks back pay for six or seven months’ worth of DSP. Mr Boswell thinks he is entitled to it. The Secretary does not and submits that there is no discretion for the Tribunal to find that he is. Accordingly, the Secretary submits that Mr Boswell has no prospects of success and seeks dismissal of the application pursuant to s 42B of the AAT Act. I agree with the Secretary and find that the application before the Tribunal should be dismissed. My reasons follow.
THE SEQUENCE OF EVENTS
It is important to lay out the sequence of events leading up to the present application for dismissal. In short order, this is what has transpired:
·the first (and unsuccessful) claim for DSP was lodged on 29 August 2014;
·that first claim was rejected by Centrelink on 15 September 2014;
·Mr Boswell did nothing about approaching Centrelink (or anyone else) about reviewing or challenging that decision within the mandatory 13 week period;
·Mr Boswell next made contact with Centrelink on 30 April 2015. That contact resulted in Mr Boswell deciding to make a second and fresh claim for DSP;
·the second claim for DSP was received by Centrelink in writing on 5 May 2015;
·on 12 June 2015 Centrelink granted the second claim for DSP with an effect date of 30 April 2015 (being the date when he first made contact with Centrelink about this claim). That decision was communicated to Mr Boswell;
·Mr Boswell, while apparently pleased with the component of that decision granting him DSP, was not happy with the commencement date of DSP payments to him;
·on 11 May 2016, some 20 months after the date of decision in the first DSP claim, Mr Boswell sought review of that decision;
·on 19 May 2016 an Authorized Review Officer affirmed Centrelink’s decision (which refused the first claim) and confirmed that Mr Boswell had correctly been paid DSP from 30 April 2015;
·one year later on 15 May 2017, Mr Boswell applied to the AAT1 for review of that decision;
·the application failed before the AAT1 which affirmed the decision under review;
·the Application for Second Review was received by this Tribunal on 15 August 2017.
·on 4 September 2017 the Secretary lodged an Application for dismissal of this matter.
Aside from the aforementioned comments on his Application for Second Review, Mr Boswell has not filed any further written submissions.
At the interlocutory hearing for dismissal, I sought to glean from Mr Boswell – to the best extent possible – what his contentions were. This interlocutory hearing proceeded amongst considerable acrimony expressed by Mr Boswell towards the Secretary and its derivate entities and processes. Much of that acrimony was misplaced and virtually all of it irrelevant. He informed the interlocutory hearing before me – as he did at the AAT1 review – that he was an experienced man (in terms of life experience) but otherwise possessed of a delicate physical and mental constitution such that “an ambulance was on standby”. Be that as it may, he seemed ready, willing and able to proceed with the interlocutory hearing and did so.
MR BOSWELL’S CONTENTIONS
As best as I understood Mr Boswell’s oral contentions, they could be reduced to these items:
(a) he missed the 13 weeks because of ill health
He says he simply missed the 13 week period to seek review of the first (and unsuccessful) DSP claim because of difficulties confronting him as a result of his asserted medical and other maladies during this period. The contention seems to be that his health issues prevented him from prioritising his affairs such that he could have reminded himself to meet the 13 week deadline which expired on 22 December 2014. He sought to rely on whatever medical evidence he filed in support of the first DSP application and seemed quite indignant, indeed furious, with the Secretary’s department for not accepting that medical evidence as determinative (in his favour) of both this and the substantive application.
To be fair to Mr Boswell, he conceded that he most probably did receive the letter of 15 September 2014. I note that the second page of that covering letter says this:
“If you disagree with a decision, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.”[4]
[4] See Secretary’s written submissions dated 4/9/2017, “page 143” of Annexure “B”, a copy of which was provided to Mr Boswell prior to this hearing.
Given Mr Boswell’s concession about receiving this letter and the absence of any probative or other medical evidence supporting this contention (a), I do not afford any weight to it.
(b) lodging a medical certificate constituted request for review
Mr Boswell then said he thought he had acted within the 13 week period because of his provision of a certain medical certificate from a Dr Rasbid Ali apparently declaring him unfit for work “from 29/9/14 to 31/12/14”. As best as I understood the contention, it seemed to be that this medical certificate either (1) served to explain the medical reason behind the Mr Boswell’s failure to act within the 13 week period or, in the alternative, (2) it somehow constituted “notice” of his intention to review or challenge the first (and unsuccessful) application for DSP. In terms of the former contention, I cannot reasonably accept a simply worded medical certificate from a general practitioner declaring Mr Boswell unfit for duty is in any way probative of any medical reason for his failure to act within the 13 week period. The latter contention must also fail primarily because of what Mr Boswell is told in the letter (dated 15 September 2015): “If you disagree with a decision, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision”. The letter asks Mr Boswell to “contact” Centrelink. It does not ask him to provide them with a medical certificate or anything of the sort.
Accordingly, the medical certificate cannot constitute notice of his intention to challenge or review the first (and unsuccessful) decision refusing the DSP. I therefore afford no weight to this contention (b).
(c) he did contact Centrelink requesting review
At the interlocutory hearing, Mr Boswell contended, for the first time, that he did contact Centrelink with an intention to review or challenge the first decision refusing his DSP claim. This contention seemed to arise at the hearing consequent upon Mr Boswell being faced with the reality that his contentions (a) and (b) did not resonate well with the Tribunal. The contention need only be given short compass because the Secretary’s representative confirmed no such oral or other contact had been recorded either during the 13 week period or at any time thereafter (until 30 April 2015). I note that Centrelink generally has a practice of recording or logging all forms of contact with clients. I accept the evidence of the Secretary and afford no weight to this contention (c).
THE SECRETARY’S CONTENTIONS
(a)The deemed start day for payments
According to sections 11(1) and 16 of the Social Security (Administration) Act 1999 (“the Administration Act”), it is a requirement that a person making a claim for a social security payment must lodge a written claim with Centrelink. The Secretary concedes that Mr Boswell met this initial requirement for both of his claims for DSP. Both of the DSP claims were ultimately made in writing and otherwise met the requirements of Division 1 of Part 3 of that Act.
For the purposes of the start date for a social security payment, section 13(1) of the Administration Act prescribes that if the Department is contacted by a person in relation to a claim for a social security payment (for example by phone), and they are determined to be qualified for the payment at that time, and the person subsequently lodges a claim (in writing) within 14 days, then the person is taken to have made the claim on the first date the person contact the Department.
In this case Centrelink found that Mr Boswell was not qualified to receive the DSP in 2014 when he lodged his first claim. Mr Boswell then contacted Centrelink by telephone on

30 April 2015 and indicated his intention to lodge a new (second) claim. He subsequently lodged a written application for DSP on 5 May 2015. On 12 June 2017 Centrelink determined that he was qualified for DSP in relation to that second claim. Pursuant to the rules in section 13(1) of the Administration Act, Centrelink deemed that the first notification in relation to the second claim was 30 April 2015.
Section 13(1) of the Administration Act is complemented by section 42 of the Administration Act, which provides that the start date in relation to a social security payment is the day worked out in accordance with Schedule 2. According to clause 3 of Schedule 2 the general rule is that if a person makes a claim for social security payment and they were qualified to receive that payment, on the day which the claim is made then the person’s start date for payment is the day on which the claim was made. For present purposes Mr Boswell’s start day was 30 April 2015. He was not entitled to receive DSP payments prior to this date.
(b)Mr Boswell received notification of the decision refusing the first claim
Despite Mr Boswell’s contention to the contrary, there seems little doubt the letter of

15 September 2014 containing the decision to refuse the first application for DSP was sent by Centrelink and received by Mr Boswell. The point is resolved by section 237 of the Administration Act. That section provides that where a notice of decision is sent to the postal address of the person last known to the Secretary,[5] the notice is taken to have been given to the person at the time it would have been delivered in the ordinary course of the post unless the contrary is proved. This section is augmented by section 160 of the Evidence Act 1995, which relevantly provides this presumption: a postal article sent by prepaid post to an address in Australia is received on the fourth working day after having been posted.
[5] The Secretary of the Department of Social Services, from which Centrelink derives.
The combined effect of both of these provisions is that Mr Boswell was deemed to have received notice of Centrelink’s decision to reject his first DSP claim on 19 September 2014, being the fourth working day after Centrelink posted it on 15 September 2014. Therefore, the 13 week period within which Mr Boswell could apply for review of the decision of 15 September 2014 expired on 19 December 2014.
Mr Boswell contended that he did not receive the notice of decision letter dated

15 September 2014 because his first application for DSP lodged on 29 August 2014 did not record either a permanent address or a postal address respectively.[6] He further contended that the only address he provided to Centrelink at that time was that he lived in a “shed in back yard” which appears at question 122 on his first application for DSP.[7]
[6] See Secretary’s Submissions, Annexure “A”, DSP claim received 29.8.2014 (page 4 of 30).
[7] Ibid, see page 20 of 30.
These two contentions go nowhere because the rules spelt out above in the Administration Act clearly state that notice of decisions only need be sent to the ‘postal address of the person last known to the Secretary’. In the absence of Mr Boswell updating Centrelink with a new valid postal or residential address Centrelink was entitled to assume the last known address was still correct.
Centrelink’s records clearly indicate that at the relevant time (ie. 15 September 2014)

Mr Boswell’s last known (valid postal or residential) address was a street address in North Mackay[8], where the letter was posted. Appendix J to the Submissions filed by the Secretary show the sequence of Mr Boswell’s recorded addresses for the period from 30 December 1998 (when he first registered with Centrelink) to 20 March 2015 (when he last updated his address, it is assumed this is still his current address).[9]
[8] Exact address has been redacted due to publication restraints.
[9]
The legislation leaves me no discretion but to find that Mr Boswell was deemed to have received the notice of decision to reject his first DSP claim at the address Centrelink posted it to, on or before 19 September 2014.
(c)What can be done about the first DSP claim?
Mr Boswell was duly advised of the decision to reject his first claim for DSP by the letter dated 15 September 2014. Applying the postal rule (for receipt purposes), he had until 19 December 2014 to request a review of that decision to meet the 13 week appeal or review period. He did not do so. He only requested a review of that rejection decision on 11 May 2016.
The Secretary’s contention is that any determination relating to the review of the decision to reject Mr Boswell’s first claim for DSP could only have effect from 11 May 2016. This contention is based on section 107(3) of the Administration Act which, inter alia, provides that where a request for review of a decision is lodged more than 13 weeks after a person is given notice of that decision, the decision arising from the review will take effect on the day the application for review was made.
Even if Mr Boswell was successful in the appeal of his first DSP claim, any decision to grant him the DSP in relation to that claim could only take effect from 11 May 2016.
The Secretary further contends that because Mr Boswell’s second claim for DSP was successful and granted with effect from 30 April 2015, so “… pursuing further review of the decision to reject his original DSP claim is of no practical benefit to him”.[10] Mr Boswell would not be entitled to receive two claims worth of DSP at the same time.
[10] See Secretary’s submissions at [25].
DISMISSAL OF THE SUBSTANTIVE APPLICATION
Section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides as follows:
“42B - Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.”
The precedent from authorities is that the power to dismiss must not be randomly or arbitrarily exercised. A decision-maker must be satisfied that an application is futile before exercising the power to dismiss. Ascertaining the futility of an application involves “… a consideration of the merits in the sense that it requires a finding that the application cannot succeed.”[11]
[11] Theo v Secretary, Department of Family and Community Services [2006] FCA 279 at [29] and [44] per Spender J, quoting: French J in Duncan v Fayle [2004] FCA 723 at [22].
Consideration must also be given to understanding the applicable threshold of poor and unconvincing prospects or merits of a given application. The threshold is not to be found in concepts such as “obviously untenable” or “manifestly groundless” or “utter hopelessness”. For an application (or other proceeding) to have a “reasonable prospect” of success, those prospects must be identifiable or “real” as opposed to “fanciful”.[12] The power to dismiss may be exercised “… if and only if, [the decision maker is] satisfied that there is ‘no reasonable prospect of success’”.[13]
[12] See Spencer v Commonwealth of Australia [2010] HCA 28 at [22] per French CJ and Gummow J, and at [56] per Hayne, Crennan, Kiefel and Bell JJ.
[13] Spencer v Commonwealth of Australia [2010] HCA 28 at [60] per Hayne, Crennan, Kiefel and Bell JJ.
Perhaps of most relevance to the application now before me are the comments of the Tribunal in Reddish and Civil Aviation Safety Authority [1999] AATA 721:
“…. an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone’s time and money for [the application for second review] to be allowed to remain on foot”. [14]
[14] Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [33] per DP Blow.

In the matter before me, there is no practical benefit to Mr Boswell for this review to remain on foot when, at best, I would find that he was eligible for DSP under his first claim but pursuant to the applicable legislative provisions he could only receive DSP payments in relation to that claim from 11 May 2016. Mr Boswell has already been receiving DSP from 30 April 2015 as a result of his second claim.
CONCLUSION
As outlined above, any application for second review of the September 2014 decision refusing the first claim for DSP (were it to be successful) could only have effect from
11 May 2016. Crucially, Mr Boswell’s second claim for DSP was successful and he has been receiving DSP payments effective from 30 April 2015. Ultimately, I find Mr Boswell could only be paid DSP from 30 April 2015 and not from any earlier date.
I am of the view that this matter has no reasonable prospects of success and should be dismissed pursuant to section 42B(1)(b) of the AAT Act. The Tribunal is precluded from making a decision that would be of any practical benefit to Mr Boswell in this matter and continuing with the review would be a waste of time and money.
ORDER
I order that the Application for Second Review filed with this Tribunal on 15 August 2017, be dismissed pursuant to section 42B(1)(b) of the AAT Act.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.........................[sgd]............................
Associate
Dated: 6 October 2017

Date of interlocutory hearing: 25 September 2017

Applicant: By phone

Solicitors for the Respondent: M. Underhill, DHS - FOI and Litigation Team

See Secretary’s Submissions, Annexure “J” which shows the sequence of addresses as advised by

Mr Boswell to Centrelink from 30 December 1998 to 20 March 2015.

Date of interlocutory hearing:	25 September 2017
Applicant:	By phone
Solicitors for the Respondent:	M. Underhill, DHS - FOI and Litigation Team