Christopher McHattie and Secretary, Department of Social Services
[2014] AATA 246
[2014] AATA 246
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0233
Re
Christopher McHattie
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 28 April 2014 Place Sydney The Tribunal sets aside the decision of the Social Security Appeals Tribunal, and in place of that decision, decides that Mr McHattie was qualified to receive the disability support pension when he made his claim for the pension on 23 March 2012.
The date of effect of this decision is 18 September 2012.
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Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY — Disability support pension ― Date of effect of decision of Social Security Appeals Tribunal — Date of effect of decision of Administrative Appeals Tribunal
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 43(6)
Social Security (Administration) Act 1990 (Cth) – ss 152(4); 152(5)
CASES
Secretary, Department of Employment and Workplace Relations v Mitchell [2006] AATA 804
REASONS FOR DECISION
Senior Member A K Britton
28 April 2014
On 18 April 2012, a Centrelink Authorised Review Officer (ARO) refused Mr Christopher McHattie’s claim for disability support pension (DSP). Mr McHattie unsuccessfully challenged that decision in the Social Security Appeals Tribunal (SSAT) and now seeks review by the Administrative Appeals Tribunal (AAT).
The respondent Secretary concedes that Mr McHattie qualified for DSP when he lodged his claim on 23 March 2012 and that the AAT should set aside the decision of the SSAT and, in substitution of that decision, decide that Mr McHattie was qualified to receive DSP when he lodged his claim for DSP.
The sole issue in dispute between the parties is the start date for payment of DSP. Mr McHattie contends that the correct date is the date he made his claim, 23 March 2012; the Secretary contends that the correct date is 18 September 2012, the day Mr McHattie lodged an application for review by the SSAT of the ARO’s decision. The answer to this question turns on the interpretation of the provisions governing the “date of effect” of decisions made under the social security law.
Statutory Framework
Section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) deals with the date of effect of a decision made by the AAT and provides:
Tribunal’s decision taken to be the decision of decision-maker
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. [emphasis added]
The Secretary contends that in these circumstances, consistent with Re Secretary, Department of Employment and Workplace Relations v Mitchell [2006] AATA 804, s 152 of the Social Security (Administration) Act 1990 (Cth) (the Administration Act) ought be applied and the date of effect of the AAT’s decision should be taken to be the date Mr McHattie applied for review of the decision of the ARO, 18 September 2012, which was more than 13 weeks after he was notified of the decision of the ARO (23 May 2012).
Subsections 152(4) and (5) of the Administration Act provide:
(4) If:
(a)a person is given written notice of a decision under the social security law; and
(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the decision of the SSAT is:
(i) to grant the person's claim for a 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;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
(5) The SSAT may declare:
(a)that subsection (3) does not apply to a decision by the SSAT on a review; and
(b)that subsections (1) and (2) apply instead.
In Mitchell the decision under review was a decision made by the SSAT to set aside a decision of an ARO to cancel Mr Mitchell’s pension. The SSAT decided to set aside the cancellation decision and to order the reinstatement of Mr Mitchell’s pension from the date of the “erroneous suspension”. Mr Mitchell applied for review of the ARO’s decision two years after being notified of that decision. The SSAT, in deciding that its decision was to take effect from the date of the “erroneous suspension”, had ignored s 152(4) of the Administration Act.
In Mitchell DP Jarvis examined the relationship between s 152(4) of the Administration Act and s 43(6) of the AAT Act (at [57] – [59]):
[57] The apparent purpose of the restriction on retrospectivity by virtue of subsection 152(4) of the Administration Act, and of a corresponding restriction in subsection 109(2) in relation to decisions of an ARO, is to limit the total liability of the Secretary if a person delays pursuing his or her claim for longer than the periods of 13 weeks referred to in those subsections. Further, the subsections have the effect of requiring persons who are making claims to pursue their rights of review promptly. In the case of applications for arrears of pension, where the pension is later reinstated as occurred in the present case, the subsections operate in the same way as a statute of limitations, and effectively bar the claimant from entitlement.
[58] The constraint in subsection 152(4) of the Administration Act 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.
[59] 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. In this case the decision under review is the decision of the SSAT (s 179(2) of the Administration Act). The decision of the AAT is deemed to be a decision of “that person”, namely the SSAT (S 43(6) of the AAT Act). By the operation of s 43(6), the tribunal’s decision, unless otherwise ordered, has effect “on and from the day on which the [SSAT] decision has or had effect.”
Had in this case the SSAT decided to set aside the decision of the ARO, by the operation of s 152(4) of the Administration Act that decision would be taken to have had effect on the date on which Mr McHattie applied to the SSAT for review because he made that application more than 13 weeks after being notified of the ARO’s decision.
I cannot agree with the analysis of DP Jarvis that s 152(4) of the Administration Act operates to deprive the AAT of the discretion conferred by s 43(6) of the AAT Act to “otherwise order” and to determine the date of effect of any decision it makes on review. Section 152 concerns the date of effect of a decision of the SSAT; s 43(6) concerns the date of effect of a decision of the AAT. While as the Deputy President points out, a decision of the AAT is deemed to be a decision of SSAT, it does not mean that s 152(4) of the Administration Act governs the date of effect of a decision made by the AAT.
The AAT Act does not provide guidance on the factors that should be taken into account in deciding whether the power “to otherwise order” should be exercised. In my opinion having regard to the restriction on retrospectivity contained in s 152 of the Administration Act and in the absence of any compelling circumstances justifying a departure from that restriction, I have decided that this is not an appropriate case to “otherwise order” that the date of effect of the decision should be, as Mr McHattie contends, the date he made his claim for DSP. Therefore I cannot agree with Mr McHattie’s contention that the date of effect of this decision on review is the date he made his claim for DSP.
Decision
The Tribunal sets aside the decision of the SSAT, and in place of that decision, decides that Mr McHattie was qualified to receive the DSP when he made his claim for the pension on 23 March 2012.
The date of effect of this decision is 18 September 2012.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................................................................
Associate
Dated 28 April 2014
Date(s) of hearing 31 March 2014 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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