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

[2023] AATA 150

Challis and Secretary, Department of Social Services (Social services second review) [2023] AATA 150 (7 February 2023)

File Number(s):      2021/4558

Re:Amanda Challis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member Lee Benjamin

Date:7 February 2023

Date of written reasons:        15 February 2023

Place:Brisbane

The General Division of the Administrative Appeals Tribunal has no jurisdiction to:

(a)review the Applicant’s Abstudy debt; and

(b)hear and determine the Applicant’s Parenting Payment - single debt.

..........................[SGD]...........................

Member Lee Benjamin

Catchwords

PRACTICE AND PROCEDURE – jurisdiction - Abstudy debt - Tribunal has no jurisdiction to hear the application

PRACTICE AND PROCEDURE – jurisdiction - Parenting Payment debt - Tribunal has no jurisdiction to hear the application

Legislation

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999

Student Assistance Act 1973

REASONS FOR DECISION

Member Lee Benjamin

15 February 2023

Introduction

1. On 1 July 2021, the Applicant lodged an application with the General Division of the Administrative Appeals Tribunal (“AAT2”) for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 21 June 2021 (“AAT1 Decision”).

2. The AA1 in the AA1 Decision:

   (a)Affirmed a decision of Services Australia (“the Agency”) to raise and recover a Newstart Allowance (“NSA”) debt of $3,160.56 for the period 11 May 2013 to 29 July 2013;

   (b)Affirmed a decision of the Agency to raise and recover a Family Tax Benefit (“FTB”) debt of $7,532.90 for the 2011/2012 financial year;

   (c)Declined to review a decision of the Agency to raise and recover an Abstudy debt (“the Abstudy debt”) on the basis the decision is not reviewable pursuant to section 312 of the Student Assistance Act 1973 (“Assistance Act”); and

   (d)Declined to review a decision of the Agency to raise and recover a Parenting Payment – single (“the PPS debt”) debt of $7,354.63 for the period 12 December 2012 to 10 May 20131 on the basis that the decision is not reviewable because it has not been the subject of review by an authorised review officer (“ARO”) pursuant to sections 138D and 138H of the Social Security (Administration) Act 1999 (“Administration Act”).

3. In light of the AAT1 Decision in relation to the Abstudy debt and the PPS debt, the Respondent requested an interlocutory hearing for the purpose of determining whether the AAT2 has jurisdiction to review these matters, to enable the parties to move forward with the conferencing process in relation to Applicant’s 1 July 2021 application to AAT2. 

4. The Respondent provided a submission to the AAT2 on jurisdictional issues arising from the AAT1 Decision in relation to the Abstudy debt and the PPS debt before AAT2 on 16 January 2023 (“the Secretary’s Submission”). On 7 February 2023, I convened a hearing to determine these matters. At the hearing, the Applicant was self-represented, while the Respondent was represented by Ms Michelle Cornish of Services Australia.

   ISSUES

5. The issues in determining the jurisdiction are:

   (a)whether the AAT2 can review the Abstudy debt, a decision that was appealed to the AAT1 outside of time, and a matter that has not been determined by the AAT1; and

   (b)whether the AAT2 can hear and determine the PPS debt, a decision that has not been reviewed by an ARO and a matter that has not been determined by the AAT1.

   Background

6. The Secretary’s Submission sets out the background to the matters as follows.

7. On 17 March 2014, the PPS debt was originally raised in the amount of $7,551.69 for the period 14 December 2012 to 10 May 2013 (T14/485).

8. On the same date, 17 March 2014, an Abstudy debt of $13,524.38 for the period 10 August 2011 to 10 July 2012 was raised by the Agency (T14/479).

9. On 11 July 2014, an ARO considered the PPS debt in the amount of $7,551.69, and affirmed the decision (T8/110). The ARO also reviewed and affirmed the Abstudy debt.

10. On 15 April 2016, the Agency initiated a review and amended the PPS debt amount to $7,354.63 and the debt period to 12 December 2013 to 10 May 2013 (T14/496; T13/317).

11. On 10 November 2020 the Applicant sought review of the ARO decision to the AAT1 (T11/127).

12. On 21 June 2021 the AAT1 found (at paragraph [30] T2/11):

    The Tribunal does not have jurisdiction to review the parenting payment debt referred to in paragraph 24 because the decision of 15 April 2016 has not been the subject of a review by an ARO.

13. The AAT1 also found that the decision of the Abstudy debt was not reviewable, noting (at paragraph [29] T2/11):

    The Tribunal does not have jurisdiction to review the ABSTUDY debt referred to in paragraph 23 because, pursuant to section 312 of the Assistance Act, the application for review by the Tribunal was made on 10 November 2020 which is more than 3 months after the decision by the ARO. For reasons set out in paragraphs 66 to 68 of these Reasons the Tribunal finds that special circumstances do not exist that would justify the Tribunal allowing a longer period.

    Consideration

14. The Respondent contends, and I agree, that AAT2 has no general power of review, rather it is section 25 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) which enables an enactment to provide for the review of decisions made under that or another enactment. The three issues to be considered are therefore:

    (a)whether the relevant enactment confers jurisdiction;

    (b)whether a decision has been taken; and

    (c)whether that decision has been taken under the enactment conferring jurisdiction.

15. Section 129 of the 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.

16. Section 135 of the Administration Act provides that if a person applies under section 129 for review of a decision, the Secretary, the Chief Executive Centrelink or an authorised review officer must:

    (a)review the decision; and

    (b)do one of the following:

    (i)affirm the decision;

    (ii)vary the decision;

    (iii)set the decision aside and substitute a new decision.

17. Section 142 of the Administration Act provides that if a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer under section 126 or 135 and the decision has been affirmed, varied or set aside, then a person whose interests are affected by the decision may apply to the AAT1 for review of that decision.

18. Section 43 of the AAT Act provides that for the purposes of reviewing a decision, the Tribunal may exercise all of the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

    (a)affirming the decision under review;

    (b)varying the decision under review; or

    (c)setting aside the decision under review and:

    (i)making a decision in substitution for the decision so set aside; or

    (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

19. Subsection 179 of the Administration Act provides that if a decision has been reviewed by the AAT1 and the decision has been affirmed, varied or set aside under subsection 43(1) of the AAT Act, then an application may be made to the AAT2 for review of the decision.

20. Based on my view of the AAT1 Decision, the AAT1 has not reviewed either the Abstudy debt or the PPS debt. The AAT1 has not affirmed, varied or set aside those decisions and therefore, in my view, there is no decision in relation to the PPS or Abstudy debt that can be reviewed pursuant to section 179 if the Administration Act by the AAT2.

21. More specifically, in relation to the Abstudy debt, as required under section 312 of the Assistance Act, the Applicant did not apply for review to the AAT1 within three months of the ARO decision. In fact, the application was some six years after the ARO decision. The AAT1 was satisfied on the evidence that a longer period should not be allowed in the special circumstances of the case.

22. In my view, it is apparent that the AAT1 declined to extend time for the Applicant’s review of the Abstudy decision. Accordingly, there is no decision of the AAT1 before AAT2 to review.

23. In relation to the PPS debt, following an Agency initiated review of the debt, there was no further review of that decision by an ARO pursuant to section 142 of the Administration Act, and therefore, as found by the AAT1, no power for the AAT1 to review that decision. Accordingly, in my view, there is nothing for AAT2 to hear and determine in relation to the Applicant’s PPS debt.

    Decision

    I find that the AAT2 has no jurisdiction to:

    (a)review the Applicant’s Abstudy debt; and

    (b)hear and determine the Applicant’s PPS debt.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

...........................[SGD]...........................

Associate

Dated: 15 February 2023

Date(s) of hearing:	7 February 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Michelle Cornish, Services Australia