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

[2018] AATA 4576

Elliott and Secretary, Department of Social Services (Social services second review) [2018] AATA 4576 (7 November 2018)

Division:GENERAL DIVISION

File Number:           2018/2176

Re:Myrna Elliott

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:7 November 2018

Date of written reasons:        11 December 2018

Place:Sydney

For the reasons given orally at the conclusion of the interlocutory hearing of this matter, the Tribunal dismisses Ms Myrna Elliott’s application for review of the decision dated 29 March 2018, on the basis that it has no reasonable prospect of success, pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal of application for review – no reasonable prospect of success – social security – application for disability support pension – applicant applied for review more than 13 weeks after date of reviewable decision – if successful, date of effect of Tribunal’s decision would be the date of application for review – applicant already in receipt of disability support pension as at date of application for review – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Social Security (Administration) Act 1999 (Cth) s 147

REASONS FOR DECISION

Dr L Bygrave, Member

11 December 2018

1. On 24 April 2018, Ms Myrna Elliott applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision made by the Social Services and Child Support Division (SSCSD) of the Tribunal on 29 March 2018. The decision by the SSCSD affirmed a decision made by an authorised review officer of Centrelink on 7 May 2013 to reject Ms Elliott’s claim for disability support pension lodged on 18 June 2012.

2. The Secretary of the Department of Social Services provided submissions on 24 July 2018 requesting the Tribunal to dismiss Ms Elliott’s application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) because the matter has no reasonable prospect of success.

3. I heard the matter on 7 November 2018. Ms Elliott appeared at the interlocutory hearing and gave submissions by teleconference.

   CONSIDERATION

4. The decision made by the authorised review officer of Centrelink on 7 May 2013 (the ARO decision) set out Ms Elliott’s review rights, which included the statement:

   If you do not agree with this decision, you can ask for an independent review by the Social Security Appeals Tribunal… If you do not ask for the decision to be reviewed within 13 weeks of receiving this letter and the decision is changed, you may only receive your entitlement from the date that you requested the review. [emphasis in original]

5. Ms Elliott did not request a review of the ARO decision until 6 March 2018, a period of four years and 10 months after the ARO decision.

6. If the SSCSD (or subsequently, the General Division of the Tribunal) were to decide that Ms Elliott was qualified for disability support pension on 18 June 2012, the date of effect of that decision is subject to the provisions of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Item 8 of section 147 of the Administration Act provides that, as Ms Elliott applied for the SSCSD review more than 13 weeks after the ARO decision, the date of effect is governed by the date Ms Elliott asked for a review; that is, 6 March 2018. This means that, even if Ms Elliott was successful in her application, payments could only be made to her from 6 March 2018.

7. Ms Elliott confirmed to the Tribunal that she has been in receipt of disability support pension that has been backdated to 8 March 2016. This means that any decision of the Tribunal could have no practical effect because no arrears would be payable to Ms Elliott.

8. For these reasons, the Tribunal makes an order to dismiss Ms Elliott’s application for review of the decision dated 29 March 2018 in accordance with paragraph 42B(1)(b) of the AAT Act because it has no reasonable prospect of success.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 11 December 2018

Date of hearing:	7 November 2018
Applicant:	By telephone
Solicitors for the Respondent:	Ms K Dunlop, Department of Human Services