Brundish and Secretary, Department of Social Services (Social services second review) - [2017] AATA 1417

Brundish and Secretary, Department of Social Services (Social services second review) [2017] AATA 1417 (6 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3466
Re:Julie Brundish
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:6 September 2017
Place:Perth

The decision under review is affirmed.
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L M Gallagher, Member
CATCHWORDS
Social security – age pension – date of effect provisions – whether start date of payment correct – statutory interpretation – Tribunal’s discretion to otherwise order – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(6)
Social Security (Administration) Act 1999 (Cth) – s 37 – s 78 – s 85 – s 85A – s 107(1) –
s 107(3) – s 108 – s 109(2) – s 129(1)
CASES
Knott and Secretary, Department of Social Services [2015] AATA 266
Kotevski and Secretary, Department of Employment (social services second review) [2017] AATA 24
Menzies and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 521
Mitchell and Secretary, Department of Employment and Workplace Relations [2006] AATA 804
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144

Puga and Secretary, Department of Employment and Workplace Relations [2006] AATA 181
Rajic and Secretary, Department of Family and Community Services [2003] AATA 240
Totten and Secretary, Department of Social Services (Social services second review) [2016] AATA 240
Yeasmin and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 659
SECONDARY MATERIALS
Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014)
Social Security (Administration) Bill 1999 (Cth), Explanatory Memorandum (No 1)
REASONS FOR DECISION
L M Gallagher, Member
6 September 2017
INTRODUCTION

On 30 December 2014, Ms Brundish made and lodged a claim for age pension (T7, page 34 and T23, page 174).
On 25 January 2015, the Department of Human Services (‘the Department’) advised Ms Brundish by letter that her claim for age pension had been rejected (T9, page 69). Ms Brundish’s appeal rights were set out on the reverse side of the letter, including the 13 week period from the date of notification of the decision within which to seek review (T9, page 70).
On 6 November 2015, Ms Brundish advised the Department that she could not appeal its decision of 25 January 2015 at the time due to a medical condition (T23, page 177).
On 7 December 2015, Ms Brundish requested a review of the Department’s decision dated 25 January 2015 rejecting her claim for age pension (T23, page 179). On the same date, Ms Brundish lodged a further claim for age pension, which was accepted from that date (T23, page 180). Ms Brundish disagreed with this decision and requested a review.
On 19 January 2016, the Authorised Review Officer (‘ARO’) determined that Ms Brundish could be granted age pension from 6 November 2015, but not an earlier date (T17, page 124).
On 5 March 2016, Ms Brundish applied to the Administrative Appeals Tribunal (‘Tribunal’) for a first review of the ARO decision dated 19 January 2016, requesting that the date of grant of age pension be back dated to the date of her original claim for age pension, being 30 December 2014 (T19, page 133).
On 31 May 2016, the Administrative Appeals Tribunal Social Services and Child Support Division (‘AAT1’) (T3, page 5) affirmed the ARO decision dated 19 January 2016 (T17, page 124) to grant Ms Brundish age pension from 6 November 2015 (and not an earlier date).
On 3 July 2016, Ms Brundish applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 31 May 2016 (T2, page 3) on the basis that she does not agree that the correct decision was made (T2, page 4).
RELEVANT LEGISLATION
Subsection 129(1) of the Social Security (Administration) Act 1999 (Cth) (‘Administration Act’) provides that a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
It is not in dispute that Ms Brundish applied for review of the Department’s original decision dated 25 January 2015 more than 13 weeks after notice of this decision was given. As such, the applicable general rule relevant to the date of effect of determinations is that set out in subsection 107(3) of the Administration Act:
(3) If:
(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.
[emphasis added]
The exception to the general rule set out in paragraph 10 above is provided for in the introduction to clause 106 of the Social Security (Administration) Bill 1999 (Cth) (the ‘Bill’) Explanatory Memorandum (No 1) (later amended to section 107 of the Administration Act), which states, relevantly and in part:
Notified decision - review sought after 13 weeks

Subclause 106(3) provides that if a person requests a review under clause 127 of a decision to reject the person’s claim for a social security payment or a concession card more than 13 weeks after being notified in writing of the decision and a favourable decision results, then the favourable determination giving effect to the favourable decision takes effect on the day that the person sought the review.
[emphasis added]
As to the Tribunal’s power to ‘otherwise order,’ subsection 43(6) of the Administrative Appeals Tribunal Act (1975) (Cth) (‘AAT Act’) provides that:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
ISSUE FOR DETERMINATION
The issue for review is whether Ms Brundish is able to receive age pension from a date prior to 6 November 2015.
EVIDENCE AND PARTIES’ CONTENTIONS
The matter was heard in Perth on 13 July 2017. Ms Brundish appeared in person and was self-represented. Ms Brundish’s daughter was in attendance as a support person. The Secretary was represented by Mr Burgess from Sparke Helmore Lawyers.
The Tribunal received the T documents into evidence (R1).
The Tribunal is satisfied that all relevant evidence was before the Tribunal and that both parties were provided an opportunity to address it, either orally or in writing.
Ms Brundish said that while she agrees with the Secretary that the Department sent her a letter dated 25 January 2015 advising her that her claim for age pension had been rejected, she definitely did not realise that she had to ask for review within 13 weeks of receiving the rejection letter. Ms Brundish said that the information about her review rights was on the rear of the letter in very small print and there was no indication on the front of the letter to turn over the letter for information on the appeals process. Ms Brundish said that she was told about the review process on 6 November 2015.
Ms Brundish asked the Tribunal to exercise the discretion contained in subsection 43(6) of the AAT Act, as exercised by Senior Member Taylor SC in the decision of Totten and Secretary, Department of Social Services (Social services second review) [2016] AATA 240 (‘Totten’), which she says would have the effect of moving the date of effect of her grant of age pension from 6 November 2015 to the date of her initial claim, being 30 December 2014. Ms Brundish said there are a number of good reasons to follow the Totten decision, being:
(a)the original decision maker made a fundamental error when assessing her claim for age pension, one that she did not realise at the time and that she was qualified at the time of claim;
(b)the Department’s mistake (referred to at subparagraph 18(a) above) cannot be fixed by her claiming compensation under the Compensation for Detriment caused by Defective Administration scheme;
(c)she had numerous and very significant health issues at the time, involving her pancreas in particular, that prevented her from understanding that she had to seek a review of the original decision within 13 weeks and left her in no state to challenge it; and
(d)the information about asking for a review was in very small print on the back of the letter advising of the original decision and with no indication on the front of the letter to turn to the back, so she did not see it.
The Secretary’s position is that the ARO’s determination dated 19 January 2016 embodying the original decision can only take effect on 6 November 2015, being the day on which the application for review was made, and that the Tribunal has no discretion to find a different date of effect.
Mr Burgess said on behalf of the Secretary that the Secretary’s position (at paragraph 19 above) is consistent with a number of decisions of this Tribunal and the law surrounding subsection 107(3) of the Administration Act is well established. Mr Burgess relied on a number of Tribunal decisions in this regard.[1]
[1] Senior Member Nicoletti in Kotevski and Secretary, Department of Employment (Social services second review) [2017] AATA 24 at [27] - [28]; Senior Member Isenberg in Menzies and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 521 at [18]; Justice Buchanan in Yeasmin and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 659 at [8]; and Member Way in Puga and Secretary, Department of Employment and Workplace Relations [2006] AATA 181 at [24] – [25].
Mr Burgess contended for the Secretary that subsection 107(3) of the Administration Act is intended to sharply distinguish between applications for review made within the 13 week period specified and those made outside it (referring to the decision of Deputy President Estcourt in Rajic and Secretary, Family and Community Services [2003] AATA 240 at [11] – [12]).
As to the Tribunal’s discretion ‘to otherwise order’ in subsection 43(6) of the AAT Act, Mr Burgess contended for the Secretary that there is conflict between the general power to otherwise order contained in that subsection and the specific power contained in section 107 of the Administration Act. Mr Burgess submitted the following arguments in support of this contention:
(a)Mr Burgess said that it is a well-established principle of statutory interpretation that where a general power is conferred without limitations or qualifications but a special power is expressed to be subject to some limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power (that is, the general power to ‘otherwise order’ contained in subsection 43(6) of the AAT Act, which deals with various types of applications spanning across its various divisions cannot be exercised to do which is the subject of the specific power contained in section 107 of the Administration Act). Mr Burgess said that to do so would be illogical in that it would not consider the temporal ‘date of effect’ decision that would otherwise apply to the decision maker (relying upon the decisions of Deputy President Jarvis in Mitchell and Secretary, Department of Employment and Workplace Relations [2006] AATA 804 at [58] to [62] and (then) Senior Member McCabe in Knott and Secretary, Department of Social Services [2015] AATA 266 at [20].
(b)Mr Burgess said this maxim (at subparagraph 22(a) above) was not limited to conflict within a single enactment (relying upon Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at 4.40) and its application was always dependent upon the particular text, context and purpose of the statute to be construed (relying upon the decision of Chief Justice French in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [50].
Turning to the Totten decision, Mr Burgess said that Totten “was not a section 107 case” and section 109 of the Administration Act (which provides for the date of effect of a favourable determination resulting from a review) as applicable in that case “is not cut and dry like section 107.”
Mr Burgess said that in Totten, Senior Member Taylor considered that it was open for the Tribunal to exercise the discretion to ‘otherwise order’ on the basis that Mr Totten was qualified at the time of his application and therefore the decision should be ordered to take effect from the date of the original application. Mr Burgess then referred the Tribunal to paragraphs 36 and 37 of the Totten decision, which state:
36. “The availability of the Tribunal’s power to “otherwise order” in relation to the date of effect of its decision setting aside or varying a reviewable decision is one thing. The circumstances that suffice to make the exercise of that power an appropriate decision in any particular case, are another.
37. The various provisions [sic] “date of effect” provisions in SSAA 1999, and the uniqueness of the “otherwise order” conferred by AAT Act s 43(6) (in its potential application to the SSAA review jurisdiction) suggest that it would only be appropriate to exercise the discretion for good reason, and one consistent with the overall purposes and objectives of the legislation – meaning by that expression both SSAA 1999 and the AAT Act. The mere fact that the decision under review was either wrong or, in the Tribunal’s opinion not the preferable outcome, is necessarily a threshold condition for the exercise of the discretion, but ordinarily it would not be likely to provide a sufficient basis for its exercise.
…
68. None of these factors, taken on their own, would necessarily be decisive in favour of making an “otherwise order” in relation to Jesse’s application.
[emphasis added]
Mr Burgess contended for the Secretary that:
(a)This matter can be distinguished from Totten on the basis that the delay in Ms Brundish’s request for review in this matter was from the original decision of the Department. Mr Totten’s delay in the request for review in Totten was from the SSAT review application. Mr Burgess submitted that on that basis, the case authorities considered (at paragraph 20 above) should be considered analogous to Ms Brundish’s matter.
(b)The decision under review, being the ARO’s determination dated 19 January 2016 granting Ms Brundish’s age pension with a date of effect of 6 November 2015 was not wrong and was the correct and preferable outcome. Therefore, the ‘threshold condition’ for the exercise of the discretion cannot be invoked in this matter.
CONSIDERATION
This review concerns the AAT1’s decision dated 31 May 2016 to affirm the ARO decision dated 16 January 2017 to grant Ms Brundish age pension from 6 November 2015, being the accepted date that Ms Brundish contacted the Department to request a review.
Ms Brundish seeks a decision from this Tribunal with the effect of backdating the date of grant of her age pension to the date or her original claim, being 30 December 2014, on the basis that she had been ill at the time and hence unable to lodge an appeal and she was qualified at the date of claim in any event. Ms Brundish relies on the Totten decision in submitting that the Tribunal has the power in the present matter to ‘otherwise order’ under subsection 43(6) of the AAT Act that her age pension be granted with a date of effect of 30 December 2014.
Mr Burgess, for the Secretary, essentially argues that:
(a)As a well-established principle of statutory interpretation, it would be illogical for the Tribunal to exercise the general power in subsection 43(6) of the AAT Act to ‘otherwise order’ that the date of effect is a date other than the day on which the decision under review has or had effect given the conflict with the specific (and temporal) power in section 107 of the Administration Act and the clear distinction in subsection 107(3) of the Administration Act between applications for review made within the specified 13 week period and those made outside it.
(b)The delay in Ms Brundish’s request for review was from the original decision of the Department, whereas the delay in Totten was from the SSAT review application.
(c)Totten states that a necessary threshold condition of the exercise of the discretion ‘to otherwise order’ was that the decision under review was wrong. That threshold condition is not invoked in this matter because the decision under review granted Ms Brundish age pension.
(d)Ms Brundish’s application is distinguishable from Mr Totten’s because the basis of the delay in Ms Brundish’s request for review in this matter was from the original decision of the Department. Mr Totten’s delay in the request for review in Totten was from the SSAT review application.
In considering the above, the Tribunal notes that the matters set out in paragraphs 1 to 8 above are not in dispute between the parties, nor is the fact that Ms Brundish’s application for review was made more than 13 weeks after notice of the decision was given.
As such, subsection 107(3) of the Administration Act applied the general rule that the date of effect of the grant of age pension be 6 November 2015 (the day on which the application for review was made). There is no discretion provided for in the Administration Act itself for the date of effect to be any other day in circumstances where the application for review was made more than 13 weeks after notice of the decision was given. The Tribunal acknowledges the body of decisions brought to its attention by the Secretary (see paragraph 20 above) in this regard.
The Tribunal notes that the Totten decision, in exercising the discretion under subsection 43(6) of the Administration Act to back date the date of effect of the grant of Mr Totten’s carer payment from 24 October 2014 (the date of application for review to the SSAT) to 1 November 2013 (the date of original claim).
It is here the Tribunal must pause to consider the underlying purposes of the provisions in question. It is settled that the general rule contained in section 107 and section 109 of the Administration Act is that an appeal against a decision relating to pensions or benefits must be lodged within 13 weeks and there are no exceptions to the rule expressed in that Act. The case law says, regardless of the particular circumstances, section 107 and section 109 of the Administration Act only allows a claim to be back dated where a request for review has been made within 13 weeks. If an appeal is lodged more than 13 weeks after notice of the original decision is given, then the date of effect is the date on which the application for review is made.
However, the difference between sections 107 and section 109 lies in the specific wording in circumstances where more than 13 weeks has lapsed prior to the application for review being lodged.
Subsection 107(3) of the Administration Act states that if an application for review of the original decision rejecting a person’s claim for a social security payment is made more than 13 weeks after notice of the original decision is given, and a decision that the claim be granted is made as a result of the application for review, then the determination embodying the last-mentioned decision (i.e., the decision granting the claim) takes effect on the day on which the application for review was made.

The Tribunal notes that the general rule in subsection 107(3) of the Administration Act applies to determinations made under section 37 of the Administration Act (subsection 107(1) of the Administration Act), being claims for social security payments or allowances.
Subsection 109(2) of the Administration Act, in contrast, provides that if an application for review of the original decision in relation to a person’s claim for a social security payment is made more than 13 weeks after notice of the original decision is given, and the favourable determination is made as a result of the application for review, the favourable determination takes effect on the day on which the application for review was made.
“Favourable determination” for the purpose of section 109 of the Administration Act is defined in section 108 of the Administration Act to mean “a determination under section 78, 85 or 85A,” being:
(a)a rate increase determination (section 78 of the Administration Act);
(b)a determination regarding resumption of payment after cancellation or suspension (section 85 of the Administration Act); or
(c)a rate increase determination following rate reduction for non-compliance with a notice relating to rent assistance (section 85A of the Administration Act).
It is clear from paragraphs 33 to 37 above that the determination granting the claim in subsection 107(3) of the Administration Act, which by subsection 107(3) of the Administration Act relates only to social security payments or allowances would demand considerations quite different to a favourable determination under subsection 109(2) of the Administration Act with respect to a rate increase, resumption of payment or a rate increase following a rate reduction relating to rent assistance. In either case, the Tribunal considers that the general rule relates to quite specific circumstances and types of determinations, each having its own threshold set of criteria with respect to qualification, eligibility and the like.
The Tribunal considers that given the distinctions set out in paragraphs 33 to 38 above, it is not necessarily required to determine whether the Totten decision was correct in applying the general discretion in subsection 43(6) of the AAT Act and hence whether, in light of Totten, that general discretion should also be applied in this case. The Tribunal also notes that irrespective of these distinctions, the Tribunal is not bound by the Totten decision, a decision of this Tribunal, in any event.
The Tribunal does however, make the following comments having considered the parties’ arguments with regards to the Totten decision:
(a)Ms Brundish submitted that the Tribunal ought to “follow the Totten decision”, which in the Tribunal’s view is really in substance a submission that the Tribunal ought to exercise the discretion under subsection 43(6) of the AAT Act.
(b)This is because, to “follow the Totten decision” does not automatically give the result that the discretion ‘to otherwise order’ will be exercised. Rather, (noting the extract at paragraph 24 above) the Totten decision says that, just because the discretion to ‘otherwise order’ may be available (which this Tribunal does not necessarily concede), whether the circumstances to exercise that discretion are suffice is another matter and is only appropriately done ‘for good reason’ and when consistent with the overall purposes and objectives of the legislation.
(c)Therefore, for this Tribunal to find (as it does) that there is no discretion in Ms Brundish’s case to back date the date of effect of her grant of age pension to a date earlier than 6 November 2015, given:
(i)the Administration Act’s broader objective of timely applications for review (given its strict demarcation between applications lodged inside and outside the 13 week period);
(ii)principles of statutory interpretation highlighted by the Secretary and set out at paragraph 22 above; and
(iii)the Tribunal’s comments made at paragraph 38 above,
this finding can and does comfortably sit alongside the Tribunal’s comments in Totten as extracted at paragraph 24 above and summarised at subparagraph 40(b) above.
(d)Given the matters discussed at paragraphs 30 to sub-paragraph 40(b) above, the Tribunal finds that nothing can turn on Ms Brundish’s reasons for why the Tribunal ought to exercise the discretion under subsection 43(6) of the AAT Act (refer to paragraph 18 above). Similarly, nothing turns on the distinction drawn by Mr Burgess (at paragraph 25 above) between the stages of the review process during which the delay took place.
For the reasons stated above, the Tribunal finds that it has no discretion to back date the date of effect of the grant of Ms Brundish’s age pension and that Ms Brundish is unable to receive age pension from a date prior to 6 November 2015.
DECISION
The decision of the AAT1 dated 31 May 2016, which affirmed a decision of the Department of Human Services to grant Ms Brundish age pension from 6 November 2015, and not an earlier date, is affirmed.

I certify that the preceding 42 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

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Administrative Assistant – Legal
Dated: 6 September 2017

Date(s) of hearing: 13 July 2017

Applicant:

Representative for the Respondent:

In person

Mr A Burgess

Solicitors for the Respondent: Sparke Helmore