Brockhurst and Secretary, Department of Social Services (Social services second review)
[2016] AATA 326
•20 May 2016
Brockhurst and Secretary, Department of Social Services (Social services second review) [2016] AATA 326 (20 May 2016)
Division
GENERAL DIVISION
File Number
2015/5943
Re
Angela Brockhurst
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Brigadier AG Warner, MemberDate 20 May 2016 Place Perth The substantive application is dismissed pursuant to sections 42A(4) and 42B of the Administrative Appeals Tribunal Act 1975.
..........................[sgd].................................
Deputy President Dr Christopher Kendall
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal of substantive application – whether Tribunal satisfied that substantive application has no reasonable prospect of success – whether Tribunal lacks jurisdiction to review merits of original decision – substantive application dismissed pursuant to sections 42B and 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Social Security (Administration) Act 1999 (Cth) – sections 129(3), 237
Administrative Appeals Tribunal Act 1975 (Cth) – sections 42A(4), 42B
Social Security Act 1991 (Cth) – section 23(12)
Fair Entitlements Guarantee Act2012 (Cth) – section 14(2)
Veterans’ Entitlements Act 1986 (Cth) – section 135
CASES
Browne and Secretary, Department of Employment [2015] AATA 978
Hyland and Repatriation Commission (Veterans’ Entitlements) [2015] AATA 927Paraponiaris and Secretary, Department of Employment [2015] AATA 895
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
20 May 2016
Provisions relating to the Pension Bonus Scheme are contained in Part 2.2A of the Social Security Act 1991 (the “Social Security Act”). Section 92C of the Social Security Act specifies that in order to receive a pension bonus, a person must be registered as a member of the scheme.
On 25 June 2014, Mrs Angela Brockhurst lodged an application for registration as a member of the Pension Bonus Scheme.
On 30 June 2014, Centrelink wrote to Mrs Brockhurst and requested further information relevant to her application. That letter was addressed to the postal address Mrs Brockhurst had provided to Centrelink for all correspondence.
That information was not provided. Mrs Brockhurst says she never received the letter requesting further information.
On 22 July 2014, Centrelink wrote to Mrs Brockhurst and advised that her application for registration for pension bonus had been rejected (the “Original Decision”) as she had not provided the information requested on 30 June 2014. That letter was addressed to the postal address Mrs Brockhurst had provided to Centrelink for all correspondence. Mrs Brockhurst says she never received this letter.
On 20 November 2014, Mrs Brockhurst wrote to Centrelink and provided tax information in support of her application for registration for pension bonus.
On 9 February 2015, Mrs Brockhurst requested review of the Original Decision, after being advised by Centrelink that the Original Decision had been mailed to her in July 2014.
On 11 March 2015, a Centrelink Authorised Review Officer (“ARO”) wrote to Mrs Brockhurst and explained that he could not review the Original Decision as he did not have any jurisdiction to do so. Specifically, the ARO explained that because Mrs Brockhurst had not requested a review of the Original Decision within 13 weeks from the date of notice of the Original Decision (as required by 129(3) of the Social Security (Administration) Act 1999 (the “Administration Act”)), nothing could be done to assist her as Centrelink had no authority to extend the statutorily required 13 week appeal period.
On 19 August 2015, Mrs Brockhurst filed an application with the Administrative Appeals Tribunal (Social Services and Child Support Division) (the “SSCSD”) requesting a review of the Original Decision to reject her pension application.
On 21 October 2015, the SSCSD decided that although it had considerable sympathy for Mrs Brockhurst and found her to be a most credible witness, the Tribunal did not have legal power to review the pension rejection because of the 13 week period specified in the Administration Act.
On 12 November 2015, Mrs Brockhurst applied to this Tribunal for a second tier review of the Original Decision of 22 July 2014 (the “Substantive Application”).
Before this Tribunal could make any determination in relation to the Substantive Application, the Secretary, Department of Social Services (the “Secretary”) filed an interlocutory application and then made oral submissions requesting that Mrs Brockhurst’s Substantive Application be dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”) (on the basis that the Tribunal has no jurisdiction to review the Original Decision) and section 42B (on the basis that the Substantive Application has “no reasonable prospect of success”).
These Reasons for decision relate to the Secretary’s interlocutory dismissal application.
ISSUES
The issues before this Tribunal in relation to the interlocutory dismissal application are whether Mrs Brockhurst’s Substantive Application should be dismissed pursuant to either or both of:
a)section 42B of the AAT Act; and/or
b)subsection 42A(4) of the AAT Act.
LEGISLATION
The Tribunal notes the following statutory provisions relevant to this matter.
Section 129(3) of the AAT Act provides:
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, low income supplement 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. (emphasis added)
Section 237 of the Administration Act relates to the mailing and receipt of written notice of a decision. It provides as follows:
Notice of decisions
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2)Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3)If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
Subsection 23(12) of the Social Security Act further strengthens this provision and provides:
(12) If:
(a)section 237 of the Administration Act applies to a notice of a decision under this Act …
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Section 42B of the AAT Act was amended by the Tribunals Amalgamation Act 2015, with effect from 1 July 2015. Section 42B now 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.
(2)If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3)The direction has effect despite any other provision of this Act or any other Act.
The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 states that the amendments were intended to modernise the language of section 42B and clarify the policy surrounding the grounds for dismissal. The proposed new grounds were considered to be similar to dismissal powers available to other bodies, and “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.”
In Paraponiaris and Secretary, Department of Employment [2015] AATA 895, Deputy President Alpins provides a very useful summary of the key principles relevant to the Tribunal’s powers under section 42B. In that regard, the Tribunal notes the following from that decision:
23.The exercise of the Tribunal’s power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, “must always be attended with caution” and “is not to be exercised lightly” (Spencer v Commonwealth (2010) 241 CLR 118 at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).
24.The requirement that the Tribunal be satisfied that the application “has no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).
25.Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” for the purposes of s 42(1)(b) – it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-[26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).
…
31.In considering whether it is satisfied that the application has no reasonable prospect of success for the purpose of s 42B(1)(b), the Tribunal should turn its mind to the ways in which it might disturb the decision under review in a manner favourable to the applicant upon exercising its powers under s 43 of the AAT Act, given that it is required to arrive at the correct or preferable decision.
32.The Tribunal’s power to dismiss an application within the terms of s 42B(1)(b) of the AAT Act is governed by the wider statutory context, particularly the Tribunal’s obligation, in carrying out its functions, to pursue the objective of providing a mechanism of review that has the qualities enumerated in s 2A of the AAT Act. I note that those qualities were recently expanded in the substituted provision contained in the Tribunals Amalgamation Act 2015 (Cth).
33.The Tribunal’s power to dismiss an application under s 42B(1)(b) reflects the fact that in such circumstances “it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing” (see Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [33]).
Section 42A(4) of the AAT Act provides that this 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”.
EVIDENCE
An accurate overview of the evidence in this matter was provided by the SSCSD, as follows:
15.Mrs Brockhurst and her daughter-in-law told to the tribunal that Mrs Brockhurst never received either the letter of 30 June 2014 requesting further information, or the letter of 22 July 2014 advising that her application for registration for pension bonus had been rejected. Mrs Brockhurst confirmed that her (then) husband received his letters concerning pension bonus but she did not. Mrs Brockhurst speculated that her letters may have been sent to her online but unfortunately she never accessed Centrelines online services and therefore did not receive the letters.
16.Mrs Brockhurst explained that she recalls setting up an online account with Centrelink but immediately had a problem with the password and the account being locked, and so she never used it. It is therefore quite possible that the letters in question were sent electronically to her online account but were never seen by her. Mrs Brockhurst confirmed that the postal address on the letters was correct, but she told the tribunal she is certain that she never received either letter and was therefore totally unaware of the rejection of her application for a pension bonus
17.Mrs Brockhurst also explained that she was very busy working during the period under review, as well as going through a difficult time leading to separation from her husband, all of which contributed to the delay in pursuing the matter with Centrelink. She also said she did not know that there were any time constraints. Mrs Brockhurst’s daughter-in-law pointed out that Mrs Brockhurst was living in Taroom at the time of the original decision, and the nearest Centrelink office to Taroom is Miles, some one and a half hour’s drive away. Mrs Brockhurst said she moved house to Cairns earlier this year, where she has suffered several bouts of serious and debilitating ill health.
18.Mrs Brockhurst added that it seems unfair that she is being "punished” for not supplying information or challenging the original decision earlier, when she didn't receive the relevant letters and so was unaware of the problem.
…
21.Mrs Brockhurst wrote to Centrelink on 20 November 2014, enclosing income tax assessment notices for herself and her former husband, and these documents were received by Centrelink on 25 November 2014. …
Before this Tribunal, Mrs Brockhurst was represented by her daughter in law, Carmela Brockhurst. The Tribunal found both Mrs Brockhurst and Angela Brockhurst to be honest and credible witnesses. Both women were, quite rightly, concerned that if Mrs Brockhurst were found not to be entitled to the pension bonus because Mrs Brockhurst was late in filing required documents in circumstances where she claims never to have received a letter requesting said documents, this would have severe financial consequences for her.
Before this Tribunal, Mrs Brockhurst was referred to the Centrelink letter of 30 June 2014 (requesting further information) and the Original Decision of 22 July 2014 (advising that her application for registration for pension bonus had been rejected because no further documentation had been received). Mrs Brockhurst agreed that the address on both letters was the address she had provided Centrelink for correspondence purposes. She stressed, however, that she had not received either letter.
CONSIDERATION
Did Mrs Brockhurst receive notice of the Original Decision?
A primary issue before this Tribunal was whether Mrs Brockhurst received notice of the Original Decision.
The Tribunal finds no reason not to believe Mrs Brockhurst when she says never received the letters in question. There are a number of explanations for why she didn’t. Mrs Brockhurst lived in a remote region and mail delivery is less than ideal.
The question is whether the Tribunal can assist Mrs Brockhurst in these circumstances.
Regrettably the answer to that question is no.
The effect of section 237 of the Administration Act is clear. Centrelink mailed the letters in question to the address provided by Mrs Brockhurst and, in those circumstances, she is deemed to have been “given” notice of the Original Decision. Further, even though the Tribunal believes Mrs Brockhurst when she says that she never received the Original Decision, the effect of subsection 23(12) of the Social Security Act is such that notice of the Original Decision is taken to have been given even when the Tribunal is satisfied that the Original Decision was not received.
Should the Substantive Application be dismissed pursuant to section 42B of the AAT Act?
The Tribunal finds that Mrs Brockhurst is deemed to have received notice of the Original decision on 22 July 2014. The evidence shows that Mrs Brockhurst wrote to Centrelink on 20 November 2014, enclosing income tax assessment notices for herself and her former husband. Unfortunately, these documents were received by Centrelink on 25 November 2014 – long after the 13 week period required by section 129(3) of the Administration Act.
This then requires an analysis of whether Mrs Brockhurst’s Substantive Application should be dismissed – in effect because, as the Tribunal has no discretion to extend the 13 week time period within which to appeal the Original Decision, the Substantive Application has no prospect of success because there is nothing the Tribunal can do to alter the Original Decision.
The Tribunal has recently had an opportunity to analyse a situation akin to this one in its decision in Browne and Secretary, Department of Employment [2015] AATA 978, which relied on the decision of Deputy President Alpins in Paraponiaris and Secretary, Department of Employment [2015] AATA 895.
Browne derived from an application for review ( “Mr Browne’s substantive application”) of a decision of the Secretary, Department of Employment that Mr William Browne was not eligible for an advance under the Fair Entitlements Guarantee Act2012 (Cth) (the “FEG Act”), as affirmed on internal review (s 40(12)(a) of the FEG Act).
The Secretary applied for Mr Browne’s substantive application to be dismissed pursuant to section 42B(1)(b) of the AAT Act on the basis that Mr Browne’s substantive application had no reasonable prospect of success.
Subsection 14(1) of the FEG Act provides that to be effective for the purposes of the FEG Act, a claim for an advance must be made in a form approved by the Secretary, be accompanied by any documents required by the Secretary and be made in accordance with subsection (2). Under subsection 14(2), a claim for an advance must be made before the end of 12 months after the person's employment with the employer ends or an “insolvency event” happens to the employer — whichever is later.
Mr Browne’s employment with his former employer ended on 17 October 2011.
For the purposes of the FEG Act, an “insolvency event” occurred in relation to Mr Browne’s former employer on 20 May 2014, when a liquidator was appointed to that company.
On 19 May 2015, the Secretary received a claim from Mr Browne for an advance under the FEG Act. The claim form was not accompanied by a document required by the Secretary, being the certified documentary evidence that Mr Browne was an Australian citizen at the time his employment ended. That evidence was ultimately provided but not until 7 June 2015 – after the 12 month time limit imposed by the FEG Act.
On 22 May 2015, a delegate of the Secretary made a decision under subsection 15(1) of the FEG Act that Mr Browne was not eligible for an advance.
The basis on which the delegate decided that Mr Browne was not eligible for an advance was that he had not made an “effective claim” in accordance with section 14 and paragraph 10(1)(h) of the FEG Act. Specifically, he had not provided certified copies of the necessary documents by the statutorily required date.
On 7 June 2015, Mr Browne applied for internal review of this decision under section 38 of the FEG Act.
On 24 June 2015, pursuant to section 39 of the FEG Act, a delegate of the Secretary affirmed the original decision.
The Secretary contended before this Tribunal that the FEG Act contains strict requirements for the making of an effective claim for advance and that Mr Browne did not make an effective claim within the statutory timeframe. As there is no discretion in relation to these requirements, it was contended that Mr Browne’s application should be dismissed pursuant to section 42B(1)(b) of the AAT Act on the basis that the application had no reasonable prospect of success. This was regardless of any sympathy the Secretary or the Tribunal had for Mr Browne in these circumstances.
In deciding whether to dismiss the substantive application on the basis of 42B of the AAT Act, the Tribunal found as follows:
40.As noted above, subsection 14(1) of the FEG Act makes it clear that a claim will not be effective unless it is accompanied by any required documents and is made within the statutory timeframe. While Mr Browne did make a claim within the effective period, it was not effective legally as it was not accompanied by the required certified documentation to support Mr Browne’s claim that he was an Australian citizen at the time his employment ended.
41.The Tribunal finds that Mr Browne did provide a certified copy of his Certificate of Australian Citizenship on 7 June 2015. Unfortunately, as this occurred after 20 May 2015, it could not have the effect of rendering his claim effective. This is the clear effect of the statute, as unfair as that might sometimes seem.
42.In relation to this issue, the Tribunal is guided by the words of Deputy President Alpins in Paraponiaris (above), in which she writes:
52.It is necessary to ascertain “the ordinary and grammatical sense of the statutory words” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue; (2009) 239 CLR 27 at 31 [sic] per French CJ; (emphasis added). Section 14 is to be read as a whole. The use of tenses in s 14(1) is quite deliberate – the expressions “be in a form approved” and “be accompanied by any documents required” are to be read in the context of the expression “be made” in para (c) of s 14(1) and the temporal requirement in s 14(2) (emphasis added). To be an effective claim, a claim must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents….
54.I cannot discern any source of a power or discretion, whether express or implied, and whether in the terms of s 14, other provisions of the Act or some other legislation, by which the Secretary might depart from those requirements in the case of a particular claimant.
55Furthermore, I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended and thus give rise to a real issue as to whether an “effective claim” might be said to have been made for the purposes of s 14 in some other way (whether by Mr Paraponiaris’ subsequent correspondence or otherwise), leaving aside the question of whether the application could be said to have a real prospect of success in that regard in any event.
56.Moreover, the Tribunal’s powers of review under s 43(1) of the AAT Act do not afford any discrete source of power or discretion by which Mr Paraponiaris might somehow be relieved from the consequences of his claim’s failure to satisfy the terms of s 14(1)(b).
43.On the evidence, Mr Browne’s claim was not effective as the required certified documentation was filed late. It is clear that the Act does not permit the Secretary any discretion to extend the time period for making an effective claim. Under paragraph 10(1)(h) of the Act, a person will only be eligible for an advance if the Secretary is satisfied that, in addition to all the other requirements of subsection (1), an effective claim has been made. If the Secretary is not satisfied that the claim is effective in accordance with section 14, the Secretary cannot be satisfied that the person is eligible for an advance.
44.In the circumstances, the Secretary, or the Tribunal standing in the Secretary’s shoes, is simply not empowered to accept a claim for an advance after the expiry of the statutory timeframe, regardless of whether a claimant is able to supply the required documentation after that date or has provided some but not all of the documentation within time. While this might seem inherently unfair, this is what the statute mandates. There is no flexibility in this regard. To again quote Deputy President Alpins, unfortunately for Mr Browne, “the legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between the objects expressed in s 3 of the Act, which are countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees.”
In the present matter, section 129(3) of the Administration Act strictly limits the ability of an applicant like Mrs Brockhurst to seek review of a decision. Specifically, once notice of a decision is given to an applicant, she has 13 weeks to appeal that decision. In the circumstances, Mrs Brockhurst had 13 weeks from 22 July to notify Centrelink that she disagreed with the Original decision. Unfortunately, she made no contact with Centrelink until 20 November 2014 – long after the expiry of the 13 week period.
Unfortunately, the Administration Act offers this Tribunal no discretion to extend the 13 week notice period. There is thus nothing the Tribunal can do to assist Mrs Brockhurst once it is found that she was deemed to have been “given” the Original Decision on 22 July 2014. This is regardless of how unjust the Tribunal finds this situation and regardless of the quite significant financial consequences this will have on Mrs Brockhurst’s financial future.
In the circumstances, the Tribunal finds that Mrs Brockhurst’s Substantial Application has no reasonable prospect of success as there is nothing the Tribunal can do to alter the Original Decision and ultimately assist her.
The Secretary’s section 42B dismissal is thus successful.
Should the Substantive Application be dismissed pursuant to section 24A(4) of the AAT Act?
Having found that Mrs Brockhurst’s Substantive Application should be dismissed pursuant to section 42B of the AAT Act, the Tribunal is not required to determine whether her Substantive Application can also be dismissed pursuant to section 42A(4) of the AAT Act on the basis that the decision to deny her pension bonus is a non-reviewable decision.
For the sake of completeness, however, the Tribunal offers the following analysis of that question.
The SSCSD found that it had no jurisdiction to review the decision. Relevantly, the SSCSD found as follows:
10.The substantive issue in this case is whether or not Mrs Brockhurst is entitled to receive the pension bonus, but a preliminary issue concerns whether or not the tribunal has the power to review the original decision.
24.Despite the circumstances outlined by Mrs Brockhurst to the tribunal, neither the Act nor the Administration Act provides any discretion for a review of Mrs Brockhurst’s application as she no longer had a right to seek internal review of the original decision to reject her claim for pension bonus. … Therefore the application under review is dismissed, without the tribunal being able to consider the merits of the substantive issue in this case.
In its Further Statement of facts, Issues and Contentions dated 4 March 2016, the Secretary directed the Tribunal to the decision of AAT Senior Member Fice in Hyland and Repatriation Commission (Veterans’ Entitlements) [2015] AATA 927 (“Hyland”).
In Hyland, the Tribunal was asked to determine the effect of the statutory time limit in section s135 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”) within the context of a 42A(4) dismissal.
In that case, Mr Hyland lodged an application with the Department of Veterans’ Affairs seeking an increase in his Disability Pension for previously accepted disabilities. A delegate of the Repatriation Commission notified Mr Hyland that his application for increased disability pension was unsuccessful. Dissatisfied with that decision, Mr Hyland lodged an application seeking review of that decision by the Veterans’ Review Board. The VRB decided that his application for review was not submitted within the required time limit. It was, in fact, only one day late. For that reason, it affirmed the Repatriation Commission’s decision.
Mr Hyland then appeared before Senior Member Fice who analysed section 135 of the VE Act within the context of a section 42A(4) dismissal request.
Relevantly, Senior Member Fice found as follows:
4.Section 135 of the Veterans’ Entitlements Act 1986 (the VE Act) deals with the review of decisions of the Repatriation Commission by the VRB. In so far as it is relevant to Mr Hyland’s case, it provides:
(1)Where a person:
(a)...
(b)who has made application for a pension, or for an increased pension, in accordance with section 15; or
(c)...
is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A (1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.
...
(5)An application under subsection (1),(2) or (3) to the Board to review a decision of the Commission:
(a)assessing a rate of pension or increased rate of pension;
(b)...
(c)refusing to increase the rate of a pension;
(d)...
(e)...
may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34 (2), but not otherwise. (emphasis added)
5.I should point out that s. 135(5) makes it plain that unless an application is lodged with the VRB within three months after service of the original decision on a veteran, the right to have that decision reviewed is lost. There is no discretion in any of the sections in Division 3 of the VE Act, which deals with review by the VRB of original decisions, to extend the three month limitation period.
6.While not disputed by either party, I should further note that the authorities clearly establish that the Tribunal has jurisdiction to review all aspects of a decision made by an intermediate tribunal (in this instance, the VRB), including legal questions such as those relating to jurisdiction. Wilcox J in Ward v Nicholls (1988) 20 FCR 18 said, at 27:
It would be a very odd situation... if the appointed first instance reviewer, the Veterans’ Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal – which is set up by statute to review on their merits decisions of that Board – was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made... I cannot think that this is right. I think that the true position is that... whatever decision it [the VRB] makes, that decision is subject to review by the Administrative Appeals Tribunal.
Having found that Mr Hyland was indeed one day late in filing his application for review, Senior Member Fice commented further (at paragraph 19) in relation to the three month time limit in section 135(5) of the VE Act:
… the three-month time limitation set out in s. 135(5) of the VE Act has nothing to do with rules of evidence. It is a substantive provision in an Act conferring power on the Tribunal to review a decision and it binds the Tribunal. Applying that limitation period has nothing to do with according an applicant substantial justice without regard to legal technicalities. The Tribunal must apply the law.
In concluding, Senior Member Fice found as follows:
20.While it seems harsh that Mr Hyland is precluded from having the Tribunal conduct a merits review of the VRB decision because he was one day out of time in lodging his application to the VRB, the VE Act is uncompromising in setting the time limit at three months. Not only is there no provision for the exercise of discretion to grant an extension of time, but the Act expressly states that an application cannot be made if it is out of time. This Tribunal is bound by that provision.
21.Although it is clear that the VRB decision contains erroneous reasoning, its conclusion was essentially correct. It did not have jurisdiction to embark upon a merits review of the original decision. Similarly, this Tribunal does not have jurisdiction to review the merits of the original decision. Mr Hyland’s application must be dismissed pursuant to s. 42A (4) of the AAT Act.
Applying this analysis to Mrs Brockhurst’s situation, the Tribunal also finds that in relation to her the Tribunal does not have jurisdiction to review the merits of the Original Decision. The effect of section 129(3) of the Administration Act is that the Tribunal has no discretion to assist Mrs Brockhurst by altering the Original Decision. There is no power of review in these circumstances as the legislation strips the Tribunal of any right to alter the decision made.
Accordingly, Mrs Brockhurst’s application must also be dismissed pursuant to s. 42A(4) of the AAT Act.
CONCLUSION
For the reasons outlined above, Mrs Brockhurst’s Substantive Application to this Tribunal of 12 November 2015 is dismissed pursuant to sections 42A(4) and 42B of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
...................[sgd D Brodie]...................................
Administrative Assistant
Dated 20 May 2016
Date of hearing 12 May 2016 Representative of the Applicant Ms Carmela Brockhurst Representative of the Respondent
Mr C Bishop
Department of Human Services
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