Brundish and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by Ms Brundish for review by the Administrative Appeals Tribunal (AAT) of a decision by the AAT first review (AAT1) which affirmed a delegate's decision. Ms Brundish had initially claimed an age pension on 30 December 2014, but her claim was rejected on 25 January 2015 due to her assets exceeding the allowable limit. She later requested a review of this decision on 7 December 2015, citing a medical condition that prevented her from appealing earlier. The delegate varied the determination, granting the pension from 6 November 2015, but not from the original claim date. AAT1 affirmed this decision, relying on section 107(3) of the *Social Security (Administration) Act 1999* (Administration Act), which limits the date of effect for late reviews. Ms Brundish then sought review of the AAT1 decision, stating her disagreement with the outcome.

The primary legal issue before the Tribunal was whether to dismiss Ms Brundish's application for review under section 42B of the *Administrative Appeals Tribunal Act 1975* (AAT Act) on the grounds that it had no reasonable prospects of success. To determine this, the Tribunal had to consider the application of section 107(3) of the Administration Act, which governed the date of effect for late reviews, and the Tribunal's own discretion under section 43(6) of the AAT Act to "otherwise order" regarding the effective date of a decision. The Secretary sought dismissal, arguing the application lacked merit due to the operation of section 107(3).

The Tribunal reasoned that while section 107(3) of the Administration Act generally dictates that a late review will take effect from the date of the review application, section 43(6) of the AAT Act grants the Tribunal a discretion to "otherwise order" the effective date of a decision. The Tribunal noted that AAT1 had found Ms Brundish's assets were overvalued and that she was qualified for the pension from her original claim date, and that administrative error was involved. Given these findings and the existence of the discretion under section 43(6), the Tribunal concluded that Ms Brundish's substantive application was not without reasonable prospects of success.

Consequently, the Tribunal was not satisfied that Ms Brundish's application had no reasonable prospects of success. Accordingly, the Secretary's request to dismiss the application under section 42B of the AAT Act was refused, allowing the substantive application to proceed.