Brundish and Secretary, Department of Social Services (Social services second review) - [2017] AATA 180

Brundish and Secretary, Department of Social Services (Social services second review) [2017] AATA 180 (15 February 2017)
Division:GENERAL DIVISION
File Number: 2016/3466
Re:Julie Brundish
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member
Date:15 February 2017
Place:Perth

The Respondent’s request to dismiss the application under section 42B of the Administrative Appeals Tribunal Act 1975 is refused.
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Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – age pension – date of effect – Secretary’s request to dismiss application for review – Tribunal’s power to otherwise order – Tribunal not satisfied that application has no reasonable prospects of success – request for dismissal refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 42B – s 43(6)
Social Security (Administration) Act 1999 – s 107 – s 129 – s 147
CASES
Filsell and Comcare [2009] AATA 90
Knott and Secretary, Department of Social Services [2015] AATA 266
Mitchell and Secretary, Department of Employment and Workplace Relations [2006] AATA 804
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 280 ALR 18
Seymour and Secretary, Department of Social Services [2016] AATA 343
Totten and Secretary, Department of Social Services [2016] AATA 240
REASONS FOR DECISION
Brigadier AG Warner, Member
15 February 2017
INTRODUCTION

Ms Brundish seeks review of a decision made by the Administrative Appeals Tribunal Social Services & Child Support Division (AAT1) on 31 May 2016 (T3/5-8) affirming a decision of an Authorised Review Officer (ARO) to grant Ms Brundish the age pension from 6 November 2015 (T17/124-129).
The Secretary, Department of Social Services (the Secretary) requests a decision dismissing Ms Brundish’s application for review of the reviewable decision pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act), as the application does not have reasonable prospects for success.
An interlocutory hearing was conducted on 23 November 2016. Ms Brundish did not attend the hearing and was not represented.
BACKGROUND
Ms Brundish was born in 1942.
On 30 December 2014, Ms Brundish lodged a claim for age pension (T7/34 - 58).
On 25 January 2015, the Department of Social Services (the Department) sent Ms Brundish a letter advising that her claim for age pension had been rejected as the value of her assets was above the allowable limit (T9/69-70). At that time, Ms Brundish was advised of her rights to appeal the decision and specifically that:
… 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 botified and the decision can be changed, you may only receive your entitlement from the date you requested the review (T9/70).
On 6 November 2015, Ms Brundish contacted the Department regarding her claim for age pension. She advised the Department that her claim lodged in December 2014 had been rejected but that she could not appeal at the relevant time due to a medical condition (T23/177).
On 7 December 2015, Ms Brundish requested a review of the decision rejecting her claim for age pension dated 25 January 2015 (T23/179). On that same date, Ms Brundish lodged a new claim for age pension which was accepted from that date (T23/180).
On 19 January 2016, the ARO varied the determination and determined that Ms Brundish could be granted age pension from 6 November 2015, but not earlier than that day (T17/124-129).
On 5 March 2016, Ms Brundish requested a review of the ARO decision, asking that the date of grant of age pension be backdated to 30 December 2014, the date of the original claim (T19/133-158).
On 31 May 2016, the AAT1 affirmed the ARO’s decision on the basis that in law a more favourable decision could not be made by operation of s 107(3) of the Social Security (Administration) Act 1999 (the Administration Act).
On 3 July 2016, Ms Brundish applied to this Tribunal for review of the AAT1 decision. Ms Brundish stated her reason for the application as: “I don’t agree that the correct decision was made by the Administrative Appeals Tribunal” (T2/4).
ISSUE
The Tribunal must decide whether to dismiss Ms Brundish’s application for review of the AAT1 decision of 31 May 2016. In order to do so, the Tribunal must determine whether the substantive application has no reasonable prospects of success.
LEGISLATION
Tribunal’s power to dismiss an application
The Tribunal has the power under s 42B of the AAT Act to 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.
Legislation related to substantive application
Under s 129 of the Administration Act, a person affected by a decision of an officer under social security law may apply to the Secretary for review of that decision. Section 135 of the Administration Act provides that the review will be undertaken by the Secretary, the Chief Executive Centrelink or an ARO and that person is required to review the decision and either affirm, vary or set the decision aside and substitute a new decision.
Section 107 of the Administration Act provides for the date of effect of determinations. As Ms Brundish applied for review of the original decision some 40 weeks after notice of the original decision was given, subsection 107(3) of the Administration Act is applicable in this matter. Subsection 107(3) provides:
(3) If:
(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or concessional 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 applied 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.
The Tribunal’s power to ‘otherwise order’
In determining whether Ms Brundish’s application for review has no reasonable prospect of success, the Tribunal will be required to consider the application of subsection 43(6) of the AAT Act.
Subsection 43(6) of the 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.
Section 147 of the Administration Act at Item 8 modifies subsection 43(6) of the AAT Act in that for the purposes of an AAT 1 decision:
The subsections has effect as if the decision under review had taken effect on the day a person applied for AA first review of the decision, if:
(a) the person is given written notice of the decision under the social security law; and
(b)the person applies for AAT first review more than 13 weeks after the notice was given; and
(c)on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the AAT’s decision is:
(i)to grant the person’s claim for social security payment or a concession card; or
(ii)to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii)to increase the rate of the person’s social security payment.
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1 – T23, pp 1 – 183) (Exhibit 1);
·Secretary’s Written Submissions in Support of Application for Dismissal dated 22 September 2016 (Exhibit 2); and
·Applicant’s email dated 14 October 2016 (Exhibit 3).
In its consideration of the power available to the Tribunal under s 42B of the AAT Act, the Tribunal has regard to the considerations of Deputy President Jarvis in Filsell and Comcare [2009] AATA 90. Relevantly, DP Jarvis stated at [33]:
(d) … if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since 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.
(e) Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
At first review, the AAT1 findings of matters of fact included the following:
(a)When Centrelink assessed Ms Brundish’s 30 December 2014 application for age pension, her financial assets were overvalued;
(b)The correct value of Ms Brundish’s assets was under the assets limit; and
(c)Ms Brundish was qualified to receive age pension from 30 December (T3/8).
AAT1 also noted that the ARO wrote: “I appreciate that administrative error was involved in the determination of your age pension in December 2014 and apologise on behalf of the department. I have enclosed a compensation application form for you to complete and lodge as soon as possible”. AAT1 added that it did not have the authority to determine any compensation claim consequent to the ARO advice (T/8).
The evidence before the AAT1, and before this Tribunal, supports Ms Brundish’s claim that she was seriously ill during the period between her pension application in December 2014 and her request for review on 6 November 2015 (T19/133-158).
However, s 107 of the Administration Act does not provide for any discretion which could be enlivened by circumstances such as those experienced by Ms Brundish.
The AAT1 determined, and the Secretary submits, that as the Ms Brundish contacted the Department on 6 November 2015, being over 40 weeks since the notice was given, the determination embodying the original decision can only take effect on 6 November 2015, being the day on which the application for review was made and the date the Ms Brundish contacted the Department.
By email dated 14 October 2016, Ms Brundish cited the case of Totten and Secretary, Department of Social Services [2016] AATA 240 in support of her application, stating that “This use of the AAT Second Review level Discretionary Powers has set a precedent. I request the right for my application to proceed to Level 2”. (Exhibit 3)
The Secretary’ relevant submissions on the Tribunal’s general power to ‘otherwise order’ pursuant to subsection 43(6) of the AAT Act and the specific power contained in s 107 of the Administration Act, together with the applicability of Totten to Ms Brundish’s application, are set out below:
4.13The Secretary submits 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: D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (8th Edition, 2014) at 4.40. Pearce and Geddes considered that there is no reason that such an approach should be limited to conflict within a single enactment, noting that “if there is an express as distinct from general, conferral of power, the application of the maxim should not turn on whether the conferral is in the one or in separate instruments”. Chief Justice French concluded in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 280 ALR 18 at [50] that the maxim’s application “must always be dependent upon the particular text, context and purpose of the statute to be construed.”
4.14This approach is consistent with a number of decisions of this Tribunal. In particular, SM McCabe (now DP McCabe) considered the discretion in section 43(6) of the AAT Act in Knott and Secretary, Department of Social Services [2015] AATA 266 and provided at [20]:
I am satisfied s 43(6) of the AAT Act must be read subject to the restrictions in s109 and 152 of the Administration Act. The provisions in the Administration Act reflect a policy requiring the recipients of social security benefits to exercise their rights of review in a timely way. Those provisions operate as a statute of limitations, as DP Jarvis explained in Mitchell (at [57]). It would be odd if parliament did not intend that policy to apply to reviews of social security decisions by this Tribunal. I think the words of the Administration Act ought to be interpreted broadly to give effect to that policy, which necessarily qualifies the operation of s 43(6) of the AAT Act.
4.15The Secretary relies on the decision of Mitchell and Secretary, Department of Employment and Workplace Relations [2006] AATA 804 and DP Jarvis’ consideration from [58] - [62]:
The constraint in subsection 152(4) of the Administration Act [footnote omitted] on the operative date of a decision of the SSAT is in conflict with the discretion in subsection 43(6) to give the deemed decision of the person whose decision is being reviewed a retrospective effect. However, it is a well-established principle of statutory interpretation that a specific section will override an inconsistent general section, especially where the general section is contained in a separate earlier Act which is of general application: D. C. Pearce and R. S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) at [4.32], [7.18], [7.21] and [7.26] - [7.31]. In applying that principle, I am mindful that in the case of the Administration Act, Parliament has made provision for appeals to this Tribunal, and has made certain specific amendments to the AAT Act. However, the Administration Act did not amend subsections 43(1) or (6) of the AAT Act
Where (as in the present situation, by virtue of the AAT Act) this Tribunal stands in the shoes of the SSAT, and has the same powers and discretions as the SSAT, and its decision is deemed to be that of the SSAT, the specific constraint in subsection 152(4) on the effective date of the deemed SSAT decision should, in my view, prevail over the discretion to order retrospectivity contained in subsection 43(6), which is a provision of general application. In resolving the apparent conflict between the two provisions, it is also significant that the specific provision, subsection 152(4), does not literally refer to the effective date of the SSAT decision, but refers in terms to how the social security law is to have effect.
My above conclusion is, I think, also consistent with the role of this Tribunal in conducting merits review. If the SSAT had decided to set aside the suspension decision for the reasons I have referred to above, that decision would have been correct, but by virtue of subsection 152(4) of the Administration Act could not have had an effective date earlier than the (belated) date when Mr Mitchell had applied to the SSAT for review of the ARO’s decision. It would not be appropriate for this Tribunal to interfere with what in those circumstances would have been a correct decision, by giving that decision a retrospective operation
As mentioned above, I have also concluded that Mr Mitchell’s DSP should not have been cancelled on 27 May 2003. That decision was set aside by the ARO, but because of the operation of subsection 109(2) of the Administration Act, the pension could only be reinstated as from the date when Mr Mitchell's application for review was received by the ARO, namely 8 October 2003. Neither the SSAT nor this Tribunal has power to give the decision of the ARO an earlier operation, or otherwise overcome the effect of subsection 109(2).
It follows from my above conclusions that I am not empowered to make any order that would result in Mr Mitchell being entitled to recover the arrears of the DSP for the periods from 11 March to 27 May 2003, or from 27 May to 7 October 2003, notwithstanding my view that Centrelink should not have made either the suspension decision or the cancellation decision.
4.16At odds with the decisions in Knott and Mitchell is the decision of SM Taylor in Totten and Secretary, Department of Social Services (Social services second review) [2016] AATA 240. SM Taylor considered that it was open for the Tribunal to exercise the discretion to ‘otherwise order’ on the basis the Applicant 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. SM Taylor provided at [36] - [37] that:
“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.
The various provisions “date of effect” provisions in SSAA 1999, and the uniqueness of the “otherwise order” power 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.”
Senior Member Taylor then found certain considerations existed relevant to the exercise of the ‘otherwise order' discretion including:
(a) the claimant’s social security qualification, and the payability of the payment or pension, at the date relevant to the exercise of the “otherwise order” discretion;
(b) the information provided by and to the claimant - both in relation to their claim qualifications, the basis of any decisions, and the potential review processes;
(c) the comparative responsibility for any erroneous decisions made in relation to the claim;
(d) the length of any delay in invoking a relevant review process, and the reasons for the delay, including the comparative responsibility for the delay in reviewing the decision; and
(e) the personal circumstances of the claimant, including both the financial hardship involved in the delayed recognition and acceptance of their claim, and any known disadvantage they may have had in pursuing the claim.
SM Taylor stated, at [68], that the factors taken on their own would not necessarily be decisive in favour of making an “otherwise order” in relation to an application.
4.17SM Cotter in Seymour and Secretary, Department of Social Services (Social services second review) [2016] AATA 343 considered Totten and stated the decision was clearly at odds with other decisions, such as that of Mitchell, in which DP Jarvis effectively ruled that s 43(6) did not give a discretion at large. SM Cotter did not exercise the discretion available under subsection 43(6) of the AAT Act, although the Secretary notes that SM Cotter was given a different task in that he had the benefit of section 109E(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 which afforded him a further discretion to consider whether special circumstances existed to change the date of effect.

Having regard to the Secretary’s submissions and the considerations detailed at [4.17] above, the Tribunal notes the following considerations relevant to Ms Brundish in the present interlocutory proceedings:
(a)The difficult and serious medical conditions affecting Ms Brundish at the relevant time;
(b)In assessing Ms Brundish’s application for age pension, Centrelink overvalued her financial assets while the correct value was under the assets limit;
(c)Ms Brundish was qualified to receive age pension from 30 December 2014;
(d)The ARO appreciated that administrative error was involved in the determination of Ms Brundish’s application, apologised on behalf of the Department, and invited her to lodge an application for compensation as soon as possible.
The Tribunal is of the view that should Ms Brundish’s substantive application proceed to hearing, the Tribunal could consider that the general discretion in s 43(6) of the AAT Act is available to it. In these circumstances, the Tribunal is not satisfied that Ms Brundish’s application has no reasonable prospects of success.
CONCLUSION
Having regard to the material before it, the Tribunal is not satisfied that Ms Brundish’s substantive application has no reasonable prospects of success. It follows that the Secretary’s request to dismiss it under s 42B of the AAT Act is refused.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant
Dated: 15 February 2017

Date of hearing:
Applicant:

23 November 2017

Did not appear

Representative for the
Respondent: Ms J Vetter

Solicitors for the Respondent:

Sparke Helmore Lawyers