Brkic and Department of Family and Community Services
[2000] AATA 426
•17 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 426
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/522
GENERAL ADMINISTRATIVE DIVISION )
Re JANJA BRKIC
Applicant
And SECRETARY, DEPARTMENT OF FAMILY OF COMMUNITY SERVICES
Respondent
DECISION
Tribunal Deputy President A M Blow OAM, QC.,
Date17 May 2000
PlaceSydney
Decision The application for review and the application for extension of time are dismissed.
[Sgd A M Blow]
Deputy President
CATCHWORDS
Social Security – age pension – whether retrospective decision possible – no chance of decision favourable to applicant.
Social Security Act 1991 – ss.45, 46, 48(3), 80(3)
REASONS FOR DECISION
31 May 2000 Deputy President A M Blow OAM, QC.,
On 4 April 2000 the applicant applied to this Tribunal for the review of a decision made by a delegate of the respondent which had been affirmed by the Social Security Appeals Tribunal ("the SSAT") on 8 February 2000. The SSAT decision was mailed to the applicant on 18 February 2000. The application to this Tribunal was thus lodged outside the period of 28 days limited for such applications by s.29(2) of the Administrative Appeals Tribunal Act 1975. The applicant therefore made an application for an extension of that time limit under s.29(7) of that Act. The respondent opposed that application. On 17 May 2000 I conducted a hearing of the application for the extension of time, and decided to reject that application. As a result, I decided also to dismiss the application that was lodged on 4 April 2000. I said at the conclusion of the hearing that I would publish my reasons, and am now doing so.
In 1991 the applicant was receiving an age pension. On 23 May 1991 a delegate of the Secretary of the Department of Social Security decided to cancel that pension because the value of the applicant's assets was so great that she was no longer entitled to receive it. On 21 June 1991 the applicant requested a review of that decision. That review was never completed, apparently because the applicant refused to let a valuer enter a property.
On 9 May 1994 the applicant lodged a fresh claim for an age pension. On 3 June 1994 a delegate of the Secretary of the Department of Social Security rejected that claim.
On 9 June 1998 the applicant lodged a fresh claim for an age pension. A delegate of the respondent decided to grant her an age pension, with effect from that date or the first pension payday after that date. The applicant was unhappy with that decision because she was not paid any arrears. On 13 January 1999 she requested a review of that decision, seeking arrears from 23 May 1991, or alternatively 9 May 1994. The decision under review was affirmed by another delegate of the respondent, an authorised review officer, and, as I have said the Social Security Appeals Tribunal.
In my view the application made by the applicant on 21 June 1991 for the review of the decision of 23 May 1991 should be regarded as abandoned. These proceedings relate only to the review request made on 13 January 1999.
It might be possible to regard that request as inter alia, a request for a review of the decisions of 23 May 1991 and 3 June 1994. If so, the delegate who made a determination in response that request could not have made a determination that would have been of any benefit to the applicant, because of the provisions of s.80(3) of the Social Security Act 1991 ("the Act"). That sub-section reads as follows:
"if:
(a)a decision (in this subsection called the "previous decision") is made in relation to a person's age pension; and
(b)a notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review."
Because of that section, the delegate could not have granted the applicant an age pension with effect from any date earlier than 13 January 1999. As she has been in receipt of an age pension since 9 June 1998, any such decision would have been of no benefit to her.
It is therefore necessary to consider whether, as a result of the applicant lodging her claim of 9 June 1998, the respondent and his delegates had any discretion to grant her an age pension with effect from some earlier date. Sections 53 and 54(1) of the Act provide as follows:-
"53. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for an age pension; and
(b) the pension is payable.54(1). Subject to subsections (2), (3) and (4), a determination under section 53 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination."
Sub-sections 54(2), (3) and (4) are all irrelevant. They relate to decisions rejecting claims for age pensions, but the decision of 9 June 1998 was a decision granting an age pension.
Although s.54(1) empowers the Secretary and his delegates to make a determination granting an age pension with effect from an earlier day than the day of that determination, the discretion of the Secretary and his delegates is restricted by the operation of ss.45 and 46 of the Act. The relevant parts of those provisions read as follows:
"45. An age pension is not payable to a person before the person's provisional commencement day (identified under section 46).
46(1) Subject to sub-sections (2), (3) and (4), a person's provisional commencement day is the day on which the person claims the age pension."The provisions of 46(2), (3) and (4) are all irrelevant. They respectively relate to the situation where there has been a claim for the wrong sort of pension, benefit or payment, followed by a claim for an age pension; the situation where a person has lodged a claim for age pension before becoming qualified to receive it; and the situation where no claim is required because the person in question is already receiving some other sort of pension, payment or allowance, and reaches the age at which he or she becomes entitled to an age pension.
The result of all this is that, when the applicant lodged her pension claim on 9 June 1998, the respondent and his delegates did not have the power to grant her pension with effect from any earlier date. In those circumstances there was no chance that this Tribunal would make a decision backdating the commencement date of her age pension to any earlier date. There was therefore no point in granting in granting her an extension of time. The only appropriate course was to dismiss her application for an extension of time and the principal application that she lodged on 4 April 2000.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM, QC.,
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 17 May 2000
Date of Reasons 31 May 2000
Counsel for the Applicant Applicant appeared in person.
Representative for the Respondent Mr G Lozynsky (Centrelink)
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