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

This matter concerned an appeal by Ms Brundish against a decision of the Department of Social Services regarding the date of effect for her age pension. The central dispute was whether Ms Brundish was entitled to receive her age pension from a date prior to 6 November 2015, specifically from the date of her initial claim on 30 December 2014. Ms Brundish contended that she did not realise she had to request a review of the initial rejection letter within 13 weeks, citing small print on the reverse of the letter and significant health issues that impaired her understanding and ability to challenge the decision. She sought to have the date of effect moved to her original claim date, relying on the discretion provided under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth), as interpreted in the case of *Totten and Secretary, Department of Social Services*. The Secretary argued that the decision could only take effect from the date the application for review was made, 6 November 2015, asserting that the Tribunal had no discretion to set an earlier date.

The Administrative Appeals Tribunal was required to determine the correct date of effect for Ms Brundish's age pension. This involved interpreting the relevant provisions of the *Social Security (Administration) Act 1999* (Cth), specifically subsection 107(3), which sets out the general rule for the date of effect when a review is sought more than 13 weeks after notification of a rejection. The Tribunal also had to consider the scope of its discretion under subsection 43(6) of the *Administrative Appeals Tribunal Act 1975* (Cth) to "otherwise order" regarding the commencement date of a decision.

The Tribunal noted that it was not disputed that Ms Brundish applied for a review of the initial rejection decision more than 13 weeks after receiving it. Consequently, the general rule under subsection 107(3) of the *Administration Act* applied, stipulating that the favourable determination takes effect on the day the application for review was made, which was 6 November 2015. While Ms Brundish sought to invoke the Tribunal's discretion under subsection 43(6) of the *AAT Act* to order an earlier date, the Tribunal found that this provision, when read in conjunction with subsection 43(6), meant that a decision takes effect from the day the decision under review had effect, "unless the Tribunal otherwise orders." However, the Tribunal's reasoning focused on the statutory framework for late reviews, which, as outlined in subsection 107(3) and its explanatory memorandum, specifically directs that the favourable determination takes effect on the day the review was sought. The Tribunal did not find that the circumstances warranted the exercise of discretion to depart from this statutory rule.

The Tribunal affirmed the decision that Ms Brundish's age pension would take effect from 6 November 2015.