Ekermawi and Secretary, Department of Families, Housing, Community Affairs and Indigenous Affairs

[2008] AATA 691

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 691

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2007/5623

GENERAL ADMINISTRATIVE DIVISION        )   

ReSamir EKERMAWI

Applicant

AndSecretary, Department of Families, Housing, Community Affairs and Indigenous Affairs

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date7 August 2008

PlaceSydney

DecisionThe decision under review is that the Administrative Appeals Tribunal has the power to review the SSAT decision of 24 October 2007 but that as part of that review it has no power to review the rejection of the applicant’s 2005 DSP claim.

....................[sgd]..........................

Professor GD Walker
  Deputy President

CATCHWORDS – Jurisdiction – Social Security – whether AAT has power to review previous decision of SSAT when application to AAT relates to a subsequent decision of the department – prior SSAT decision cannot form part of the current proceedings in the AAT – AAT has the power to review the SSAT decision of 24 October 2007 but that as part of that review it has no power to review the rejection of the applicant’s 2005 DSP claim.

…

RELEVANT ACT/S:

Social Security Act 1991 (Cth) (the Act): ss 94, 94A, 126, 135, 140, 179

Social Security (Administration Act 1999: ss 11, 36, 37, 63, 64,  129, 135, 136, 138, 140, 179

…

CITATIONS

Re Nisha and Secretary, Department of Family and Community Services [2003] 74 ALD 172

…

REASONS FOR DECISION

7 August 2008	Professor GD Walker, Deputy President
Basic facts

1. At the directions hearing, the applicant was represented by Mr Steven Cosgrove, solicitor, while the respondent was represented by Ms Hannelore Schuster. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents). The question to be determined is which decision is before the tribunal in the substantive application.

2.      In its statement of facts and contentions (SoFaC) the respondent set out a chronological statement of facts.  Mr Cosgrove had no instructions on whether the applicant accepted or disputed that summary and did not rely on the outline of the submissions filed by the applicant’s earlier legal representatives.  For interlocutory purposes I assume the correctness of the respondent’s factual summary.

3.      The applicant was originally granted disability support pension (DSP) on 20 March 1997 (T33/121).

4.      Centrelink first requested information about Mr Ekermawi’s income on the basis of data-matching with the Australian Taxation Office on 2 July 2004.  Further information about his involvement in Ausat Pty Ltd was requested in September and October 2004.

5.      On 22 November 2004 the applicant’s pension was suspended owing to his failure to respond to requests for information.  His last payment of DSP was transferred to him on 18 November 2004 and included payment for the period up to and including 16 November 2004.

6.      The decision to suspend the pension was reviewed by the Social Security Appeals Tribunal (SSAT) on 24 January 2005 (the 2005 SSAT decision).  The 2005 SSAT decision was that the request for individual tax returns and financial statements in relation to Ausat Pty Ltd was not unreasonable, that Mr Ekermawi was not unable to obtain the information and that he had no reasonable excuse for failing to comply with the request.  The decision to suspend the DSP was affirmed.  The applicant did not seek further review of that decision.

7.      On 2 February 2005 Mr Ekermawi’s DSP was cancelled.  No review of that decision was sought.

8.      On 2 March 2005, the applicant lodged a new claim for DSP (T4/21) (the 2005 claim).  He was again requested to provide information about Ausat Pty Ltd in order for his claim to be determined (T45/215).  On 1 April 2005 the applicant advised Centrelink he was unwilling to supply information about the company (T45/214).  Further requests for information were made on 1 April 2005 and 25 May 2005.

9.      On 25 May 2005 a decision was made to reject the applicant’s claim because he failed to provide the financial information requested (T45/208).  The applicant was advised of this decision by letter dated 4 July 2005.  On 17 July 2005, the original decision was reconsidered by the original decision maker but was unchanged (T45/208).

10.     On 15 August 2005, the applicant requested a review of the decision by an authorised review officer (ARO) (T45/210).

11.     On 21 October 2005, the applicant provided certain financial information to Centrelink, which was given to a complex assessment officer (CAO) for assessment (T45/206).

12.     On 16 February 2006, the CAO again requested the applicant provide the full company financial statements in relation to Ausat Pty Ltd to determine the effect on his eligibility under the income and assets test (T45/200, 203).

13.     On 8 June 2006, the CAO made a decision that she was unable to assess the applicant’s involvement in Ausat Pty Ltd because the applicant had failed to provide the requested information (T45/201).

14.     On 9 and 15 June 2006 Mr Ekermawi was advised that the decision to reject his claim had been reconsidered but was unchanged (T5/53; T6/54).

15.     On 4 July 2006 the decision regarding the 2005 claim was affirmed by an ARO, who noted that the applicant had failed to provide financial information including company financial statements, taxation returns, and share transfer documents (T7/57-60).

16.     The applicant requested an SSAT review of the decision to reject the 2005 claim on 26 July 2006 (T8/62).

17. On 7 September 2006, the SSAT affirmed the decision to reject the applicant’s DSP claim made on 2 March 2005 (the 2006 SSAT decision) (T8/61-71). In making its decision, the SSAT agreed that Centrelink had not been provided with “financial records that clearly, completely and authoritatively set out the net asset position” of Ausat Pty Ltd, such that Centrelink could not make a determination whether DSP was payable to the applicant. The tribunal determined that the decision to reject the claim was reasonable as Mr Ekermawi’s persistent failure to comply with a request made the payment not payable, pursuant to s 63(4) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

18.     On 6 November 2006, more than 2 years since first being requested to provide information about his financial affairs, the applicant provided financial information to Centrelink in the form of a spreadsheet of the company’s financial position from 2000/2001 to 2004/2005 (T11/74).

19.     On 15 December 2006 Mr Ekermawi provided a treating doctor’s report completed by Dr Diddee (T12/79-85).

20.     Centrelink officers treated the provision of information and the lodgement of a treating doctor’s report as a new claim for DSP (the 2006 claim).

21.     On 22 November 2006, a CAO assessment was undertaken as part of a review of the applicant’s entitlement for DSP until cancellation of his payment in 2004 (T1/77).  The review looked at the period during which the applicant had a one third share in the company Ausat Pty Ltd, being 12 January 2001 to 20 December 2004 (T11/74).

22.     On 21 December 2006, the applicant contacted Centrelink and was advised that when all the information requested by Centrelink was provided, his new claim for DSP would be assessed.  The applicant informed the officer that he expected to be back paid until 2004.  The officer informed the applicant that if he was not happy with the start date of his new DSP claim then he could consider a fresh appeal (T14/88).

23.     On 28 December 2006, a Job Capacity Assessment was conducted by C Bruce, registered nurse of Advanced Personnel Management (T15/89).  The applicant was assessed as having a total impairment rating of 20 points (spinal function 10 points, function of the lower limbs 10 points) (T15/90-91).  The applicant was assessed as having a capacity to work, both with and without intervention, at 15-22 hours per week in light semi-skilled employment (T15/92).

24. On 10 January 2007 a decision was made to reject Mr Ekermawi’s claim for DSP because he was not considered to have a “continuing inability to work” as defined in s 94 of the Social Security Act 1991 (Cth) (the Act) (T10/73; T45/192). He was advised of this decision by letter dated 15 January 2007 (T18, 98).

25.     On 16 January 2007, the applicant requested a review of the decision to reject the 2006 claim (T19/100).

26.     On 6 February 2007, the original decision was affirmed (T24/106).  The applicant was informed by letter dated 6 February 2007 (T26/108).  On the same day, the matter was referred to an ARO.

27.     On 2 March 2007, an ARO affirmed the decision to assess the applicant’s 2006 claim based on the provisions of the Act as it stood in November 2006 (T28/110).  In making his decision, the ARO stated:

…

In particular you have referred to a document you received titled “Changes to Disability Support Pension (DSP) for people on DSP”.  The letter clearly advised that people who were receiving Disability Support Pension on 10 May 2005 would have their entitlement reviewed, however the assessment would be under the rules under which the initial assessment was made.  A letter dated 2 February 2005 was sent to you advising that your entitlement had been cancelled.

Your objection to the Centrelink decision to assess you under the post July 1 2006 rules is based on your belief that the “grandfathered” rules should apply to you.  Customers remain eligible for the grandfathered group for as long as they remain eligible for Disability Support Pension.  The cancellation of your Disability Support Pension was affirmed, you were not qualified for Disability Support Pension on the nominated date therefore the provisions do not apply to you.  Entitlement for Disability Support Pension is not determined solely by medical issues, you did not provide requested information therefore your entitlement was lost.

…

28.     The applicant subsequently again requested a review by the SSAT, apparently on the basis that the 2005 claim should be determined by the SSAT.

29.     On 24 April 2007, the SSAT decided that it had no jurisdiction to review the appeal before it (the 2007 SSAT decision”) (T34/131).  The SSAT noted that Mr Ekermawi claimed the ARO decision of 2 March 2007 was made in error “because the application for a disability support pension which was lodged on 2 March 2005 was never properly determined” (para 8).  The tribunal found that it had no jurisdiction to determine the rejection of his 2005 claim because that decision had been the subject of the 2006 SSAT decision, which had affirmed the rejection.  The tribunal noted “that Mr Ekermawi’s remedy was to lodge an appeal to the Administrative Appeals Tribunal arising from the Tribunal’s decision of 7 September 2006, and not to lodge a further application to the Tribunal on the same issues” (T34/134, para 19).

30.     On 10 May 2007, the applicant requested a further review of his DSP claim, apparently on the basis of having provided further medical information in April 2007 (T35/135; T36/136).

31.     On 3 September 2007, an ARO again affirmed the decision to reject the applicant’s claim for disability support pension made in 2006 (T40/143-149).  In making her decision, the ARO noted that a job capacity assessor had assessed the applicant’s capacity for work in suitable employment of 15 to 22 hours per week.

32.     The ARO further noted the applicant’s argument that he should be assessed under the rules prior to 1 July 2006.  She decided that as he was not in receipt of DSP payments on 10 May 2005, and an ARO had already affirmed the decision (on 2 March 2007) that he should be assessed under the post 1 July 2006 legislation, that decision could not be reviewed further (T40/147).

33.     On 13 September 2007, the applicant requested a further review by the SSAT of the latest ARO decision (T42/155).

34.     On 4 October 2007, the applicant lodged a TDR from Dr Diddee (T43/156).

35.     On 24 October 2007, the SSAT affirmed the decision of Centrelink made 15 January 2007 to reject the applicant’s claim for DSP made in 2006 (T2/3-9).  The tribunal assessed the applicant’s total impairment rating at 10 points (back pain 10 points under Table 5.2, knee pain Nil points under Table 4). In addition, the “Tribunal considered that Mr Ekermawi has a significant capacity to work in non-manual employment … The Tribunal was satisfied that he could do this greater than 15 hours per week” (at [37]).

36.     On 20 November 2007, the applicant applied to this tribunal for review of the October 2007 SSAT decision (T1/1).

Applicable legislation

37. The relevant legislation is contained in the Act and the Administration Act.

38. Section 11 of the Administration Act requires a person who wants to be granted a social security payment (which included DSP) to lodge a claim. Section 36 requires the Secretary to determine a claim for social security payment by either granting or rejecting the claim. Section 37 provides that a claim can be granted only if the Secretary is satisfied that the person is qualified for the payment and the payment is payable.

39. Sections 63 and 64 of the Administration Act provide that the Secretary can require a person who has made a claim for a social security payment to give information to the Secretary. The effect of not providing the requested information, without reasonable excuse, is that the payment the person has claimed is not payable (s 64(4)).

40.     Section 129 allows a person affected by a decision made by an officer under the social security law to apply to the Secretary for review of the decision.

41.     Following a s 129 request s 135 requires the Secretary, the CEO or an authorised review officer to review the decision and affirm, set aside or vary that decision.  Section 136 sets out the notice requirements for review decisions.

42.     Pursuant to s 138, the notice of decision must specify that the person has further rights of review by the SSAT.

43.     Section 140 empowers the SSAT to review decisions made by an officer under the social security law, provided that that decision has first been reviewed by the Secretary, CEO or an authorised review officer under ss 126 or 135.

44. Pursuant to s 179 of the Administration Act, that the AAT can review a decision provided that it has been reviewed by the SSAT and that a decision was made to either affirm, vary or set aside the decision.

Consideration

45. In his oral submissions Mr Cosgrove contended that the only issue before the tribunal was the applicant’s 2005 claim, and that raised the question of whether the post-2006 legislation applies to his claim. As the respondent in November 2006 had considered the 2005 claim, the present application falls within s 94, not s 94A of the Act.

46. As the applicant was not in receipt of DSP in May 2005, s 94A could not apply to him. That would enable the old rules, which required an applicant to be able to work 30 hours per week or more, to be the relevant criterion, not the later 15 hours per week standard.

47.     It would appear, however, that the SSAT’s 7 September 2006 decision merged the original and ARO decisions.  By affirming the rejection of the 2005 claim, it had effectively disposed of all claims the applicant could raise in relation to 2005 claim.  Thus the SSAT’s 2006 decision effectively became the operative one in relation to the 2005 claim.  The respondent takes the position that the applicant might still apply to this tribunal in relation to the SSAT decisions of 7 September 2006 and 24 April 2007, but that applications for extensions of time would be needed.  It is not necessary for me to comment on the applicant's rights in that regard, but I accept the respondent’s submission that those prior SSAT decisions cannot form part of the current proceedings.

48.     In Re Nisha and Secretary, Department of Family and Community Services [2003] 74 ALD 172, the tribunal had to consider the situation where decisions by officers and an ARO were made in relation to the same subject matter as had previously been determined by both the SSAT and this tribunal. On a second SSAT application it was decided that the purported decisions by the original decision-maker and ARO after this tribunal’s decision were not reviewable by the SSAT as they were not made here under ss 126 or 135 of the Act. The tribunal accepted the SSAT’s conclusions.

49.     After the 7 September 2006 SSAT decision, the applicant was no longer a DSP recipient or claimant, as his claim had been rejected.  The only basis on which an officer or ARO could make a determination about the applicant’s DSP eligibility was on the basis of a fresh claim.

50.     Although no claim form has been found, the respondent was operating on the basis that a claim had been made by the applicant on or about 6 November 2006 when he supplied the necessary information.  The point is in any event moot because at all stages the applicant has been found not to be qualified for DSP.  Even if the formal requirements for a claim were not complied with in November 2006, it does not necessarily follow that the later SSAT reviews can thereby be categorised as relating to the 2005 claim.

51.     The decision under review is the SSAT decision of 24 October 2007 and this tribunal has the power to review it.  I conclude, however, that in doing so this tribunal has no power to review the decision to reject the applicant’s DSP claim made in 2005.  The review is thus confined to considering whether the applicant was qualified for DSP in 2006, not whether the March 2005 application was correctly rejected.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ..................[sgd]........................................................
               Renee Wallace, Associate

Date/s of Hearing:  11 July 2008
Date of Decision:  7 August 2008
Solicitor for the Applicant:                  Mr S Cosgrove
Solicitor for the Respondent:             Ms H Schuster