Ferguson and Secretary, Department of Social Services (Social services second review) - [2023] AATA 3011

Ferguson and Secretary, Department of Social Services (Social services second review) [2023] AATA 3011 (21 September 2023)
Division: GENERAL DIVISION
File Number: 2022/9287
Re:Ray Ferguson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date of decision: 21 September 2023
Place:Brisbane

The Tribunal dismisses the application for review pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...................[SGD].....................
Member D Mitchell

CATCHWORDS
SOCIAL SECURITY – Essential Medical Equipment Payment (EMEP) – date of effect of granting of claim for EMEP where previous payment cancelled
PRACTICE AND PROCEDURE – role of the Tribunal – application for dismissal of application for review – frivolous or vexatious or no prospects for success – no utility in review – favourable decision would have no practical benefit for the Applicant – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Flahive and Comcare (Compensation) [2021] AATA 2444
McCarthy and Building Practitioners Board [2016] AATA 1029
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Shah and Child Support Registrar (Child Support) [2020] AATA 2644
Stanley and Minister for Foreign Affairs [2018] AATA 982
Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57

REASONS FOR DECISION
Member D Mitchell
21 September 2023
INTRODUCTION

On 9 November 2021, Mr Ray Ferguson (the Applicant) by email sought a second-tier review of a decision[1] made by the Social Services and Child Support Division (SSCSD) on 7 November 2022.[2]
[1] T-Documents, T1, pages 1-6, Application for Review.
[2] T-Documents, T2, pages 7-9, Decision of the SSCSD.
The SSCSD decision affirmed a decision of the Respondent that the start date of the Applicant’s essential medical equipment payment (EMEP) was 11 April 2022, being the day on which he made his claim.[3]
[3] T-Documents, T2, pages 7-9, Decision of the SSCSD.
BACKGROUND
The Applicant’s wife, Mrs Ruby Ferguson received the yearly EMEP payment on

11 July 2017 and 26 June 2018 in relation to his medical equipment.[4]
[4] T-Documents, T10, page 62, Centrelink records.
On 7 May 2019, the Respondent sent a notice to Mrs Ferguson advising that her future EMEP had been cancelled on the basis that she no longer resided at the address attached to her EMEP.[5]
[5] T-Documents, T5, page 29, Letter from Centrelink: Your Essential Medical Equipment Payment has been cancelled.
On 11 April 2022 the Applicant lodged a claim for EMEP.[6] He also on that day contacted Centrelink and said he would like to be considered for back dating at his current address as he was never advised he was required to reclaim when his address changed.[7]
[6] T-Documents, T6, pages 31-38, Essential Medical Equipment Payment claim form.
[7] T-Documents, T9, page 53, Centrelink notes.
On 20 April 2022, the Respondent granted the Applicant’s claim for EMEP from

11 April 2022 and determined that would be his payment anniversary date.[8] In considering the Applicant’s claim the Respondent’s records show the following:[9]
Customer asked about getting back payed for past EMEP periods. Customer was never current on EMEP – his partner was getting the EMEP payment with customer as the equipment user but payment stopped when they moved in 2019 – cannot back pay s it needs to be a new claim, taken from date of receipt of hew claim. Date of recipe to f this claim is 11/4/2022 – anniversary will be 11/4/2023.
[8] T-Documents, T8, page 48-49, Correspondence.
[9] T-Documents, T9, page 54, Centrelink notes.
On 3 June 2022, the Applicant sought review of the EMEP decision seeking to be paid EMEP from when he changed his address in 2019.[10]
[10] T-Documents, T9, page 55, Centrelink notes.
On 27 July 2022, the Authorised Review Officer (ARO) affirmed the decision to pay the Applicant’s EMEP from 11 April 2022 and not an earlier date.[11]
[11] T-Documents, T7, pages 42-45, Decision and notes of the Authorised Review Officer.
On 18 August 2022, the Applicant applied to the SSCSD for review. On 7 November 2022, the SSCSD affirmed the decision.[12] The SSCSD limited itself to considering the correct start date of the Applicant’s claim for EMEP made on 11 April 2022.[13] The SSCSD noted:[14]
During the hearing on 23 September 2022, [the Applicant] explained that he was aggrieved because he had previously received EMEP but he had subsequently learned the payment had been cancelled and he had not received it for a number of years. [The Applicant] believed that he remained entitled to the payment, and should be back paid for payment he had missed out on because he had not been notified he would no longer be paid.
Given the brevity of the authorised review officer’s decision, it is not clear whether the authorised review officer had fully appreciated the issue [the Applicant] wished to have resolved before proceeding to treat the review as a simple matter of identifying the start date for a payment. It was however clear from [the Applicant’s] position and his written submission that he wished to have the circumstances of a previous cancellation reconsidered.
[12]    T-Documents, T2, pages 7-9, Decision of the SSCSD.
[13]    T-Documents, T2, page 9, paragraph 11, Decision of the SSCSD.
[14]    T-Documents, T2, page 8, paragraphs 4-5, Decision of the SSCSD.
On 9 November 2021, by email, the Applicant sought a second-tier review of that decision.[15]
[15] T-Documents, T1, pages 1-6, Application for Review.
A Directions Hearing was conducted in this matter on 11 September 2023 to discuss the progression of the application. The parties appeared by telephone.
On 8 September 2023, the Respondent provided written submissions requesting that the Tribunal consider dismissing the Applicant’s application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application has no reasonable prospects of success.[16] The Respondent provided:[17]
The Secretary submits that the current application has no reasonable prospects of success as well as no meaningful practical benefit to the Applicant. The Secretary contends there is no evidence that the Applicant meets the relevant qualification criteria of being in a ‘class of persons’ so as to enable an earlier EMEP start date. The Secretary also notes that there would be no practical benefit to the Applicant even if the claim were granted from an earlier date, as he had already received the yearly instalment of EMEP payable for the respective 2022 income year.
…
The Secretary submits that this application is limited to only the start day of the Applicant’s 11 April 2022 EMEP claim. The Secretary further observes that the 7 May 2019 decision to cancel Mrs Ferguson’s EMEP is a separate decision that is not currently before the Tribunal and this decision has its own separate appeal rights, as outlined in the specific notice dated 7 May 2019.
[16] Respondent’s Submissions.
[17] Respondent’s Submissions, page 5, paragraphs 29 and 31.
At the Directions Hearing the Applicant expressed frustration in relation to his application. He told the Tribunal that he felt everyone had missed the point in what he was seeking.
Having reviewed the material before it and hearing the Applicant’s submissions the Tribunal understood that the Applicant was not seeking review of the decision made on 20 April 2022 to pay him EMEP from 11 April 2022. As confirmed by the Applicant, what he is seeking and what he considers he has been seeking from the start of this process in early 2022 is review of the decision to cancel his EMEP prior to that date. The Applicant is seeking to have the EMEP payments he did not receive in the 2019, 2020 and 2021 years restored.
The Applicant told the Tribunal that he had received EMEP in 2017 and 2018 paid into his wife’s bank account and did not realise that those payments had stopped. He said he was not aware when he updated his address details with Centrelink that, that information did not also apply to his EMEP.
The Applicant told the Tribunal that he was told that he had to reapply for EMEP and that the reasons the payments had stopped was because no one had told him that he had to complete new forms when he moved house. He said that he and his wife did not get notification that the EMEP was being cancelled. He said that he was never asked for updated information.
The Tribunal discussed with the Applicant that its jurisdiction was limited to considering the reviewable decision before it of which at this point of time is the decision to grant him EMEP from 11 April 2022 of which he agrees is not the decision or issue he is seeking review of.
ISSUES
The present issue before the Tribunal is whether the Tribunal should exercise its discretion to dismiss the Applicant’s application for review under section 42B(1) of the AAT Act.
THE ROLE OF THE TRIBUNAL
Senior Member McCabe (as he was then was) pointed out in the decision of Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57 at [4] that:
The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way. …
The Tribunal’s role is to undertake independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal stands in the shoes of the original decision-maker and considers the matter afresh. The Tribunal considers the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all 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 direction or recommendations of the Tribunal.
The Tribunal cannot, however, make a decision that is outside of the law that is in place. Where no discretion is provided by the statute, the Tribunal cannot, regardless of its view on the matter, make a decision that is not correct at law.
In this case the Tribunal’s jurisdiction is limited to considering the reviewable decision which dealt with the decision surrounding the Applicant’s 11 April 2022 claim for EMEP. This remains to be the case even in circumstances where the Applicant was in fact intending to seek review of a decision to cancel EMEP.
SHOULD THE APPLICATIONS BE DISMISSED?
Section 42B(1) of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Whether an application for review is frivolous, vexatious, misconceived or lacking in substance has been considered by the Tribunal on numerous occasions. The Tribunal’s decision in Reddish and Civil Aviation Safety Authority [1999] AATA 721 (Reddish) sets out the principle that an application for review made to the Tribunal may be dismissed as being frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant.
The Tribunal, in Reddish, at [33] said:
… The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. …
This view has continued to be applied in subsequent Tribunal decisions.[18]
[18] For example, see: Rundle and Civil Aviation Safety Authority [2002] AATA 349; McCarthy and Building Practitioners Board [2016] AATA 1029; Stanley and Minister for Foreign Affairs [2018] AATA 982; Shah and Child Support Registrar (Child Support) [2020] AATA 2644 and Flahive and Comcare (Compensation) [2021] AATA 2444.
CONSIDERATION
The Tribunal understands the Applicant’s position to be that since early 2022 when he was advised that EMEP was not being paid and he made a new claim that was granted, he has been seeking reinstatement of those payments for 2019, 2020 and 2021. The Applicant told the Tribunal he is not unhappy with the decision made on 20 April 2022 to grant him EMEP from 11 April 2022 and into the future. It is the decision in relation to the payments not received since the last payment in 2018 that he is seeking review of.
The Tribunal told the Applicant that the decision to cancel EMEP on 7 May 2019 was not before it.
The Applicant is understandably frustrated with his situation regarding the EMEP for the 2019, 2020 and 2021 years. He asked the Tribunal why it was that throughout the review process which has been ongoing since mid-2022 no one had advised him that he needed to seek review of the cancellation decision. The Applicant asked what his options were to continue to seek EMEP for those years.
It was suggested that review may be sought of the decision to cancel the EMEP dated

7 May 2019. This may however be complicated by the fact that the Respondent’s records show that the EMEP made in 2017 and 2018 were made to his wife in relation to a CPAP machine used by the Applicant.   As such review rights in relation to the cancellation decision are more likely to lie with Mrs Ferguson. The Tribunal notes that the Applicant expressed dissatisfaction with the documents provided by the Respondent, a view that was also expressed in the SSCSD decision of 7 November 2022.[19] Senior Member Kennedy noted that he had sought further records from the Respondent in relation to:[20]
All records relevant to any previous claims, grants, cancellations and notices of cancellation of Essential Medical Equipment Payment in respect of medical equipment used by [the Applicant], including any records held on Mrs Ruby Ferguson’s [redacted] customer record.
[19]    T-Documents, T2, page 8, paragraph 4, Decision of SSCSD.
[20]    T-Documents, T2, page 8, paragraph 6, Decision of SSCSD.
Senior Member Kennedy further noted that the documents received did not adequately address that request. It may be that documents in relation to the initial claim for EMEP and payments made in relation to it will shed more light on how and why the EMEP made in 2017 and 2018 were not only paid to Mrs Ferguson’s bank account (consistent with what the Applicant says he instructed to occur) but were also recorded by the Respondent as being paid to Mrs Ferguson in relation to the Applicant.
As the Applicant submitted that he considers the non-payment of the EMEP for the 2019, 2020 and 2021 years to have results from deficient actions taken by officers of the Respondent, the possibility that he may want to consider exploring making a claim under the Compensation for Detriment cause by Defective Administration Scheme (CDDA Scheme) was also raised. The Respondent undertook to provide information to the Applicant in relation to the CDDA Scheme and how it can be accessed.
The jurisdiction of this Tribunal does not extend to considering the cancelation of the EMEP or the review process or potential misunderstanding by the Respondent in relation to what the Applicant was seeking review of and how that has fed into the review process to date.
The Tribunal is limited to considering the start date of the Applicant’s EMEP in relation to his claim made on 11 April 2022. To that extent due to the operation of item 3(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) the starting point is that the start day in relation to the Applicant’s EMEP is the day on which his claim was made. The Tribunal is not aware that any of the exemptions to that rule apply to the Applicant and in circumstances where they might they would be of no utility as the EMEP is an annual payment and making a 13 week adjustment to the start date would not assist the Applicant.
There is no general discretion available to the Tribunal to commence the Applicant’s EMEP start day prior to the date on which he made his claim. The Tribunal notes that section 917B of the Social Security Act 1991 (Cth) provides that a person is qualified for EMEP if they satisfy the relevant claim criteria on an EMEP test day, with that test day being the day in the income year referred to in the claim on which the claim for payment is made or the anniversary of that day. In the Applicant’s case that means the start day for his EMEP is

11 April 2022.
As such the Tribunal considers that the Applicant’s present application is frivolous. The Tribunal finds that the application is manifestly groundless. It is clear that this Tribunal would be unable to make a decision that would be of any practical benefit to the Applicant.
Consequently, the Tribunal considers in line with the principles set out in Reddish referred to in paragraphs 25 and 26 above that it is appropriate to exercise the discretion provided by section 42B(1)(a) of the AAT Act. The Tribunal, therefore, dismisses the Applicant’s application for review on the basis that it is frivolous. There is no utility in the matter remaining on foot.
In making this decision the Tribunal has had regard to the objectives of the Tribunal to provide a mechanism of review that is accessible, fair, just, economical, informal, quick and is proportionate.[21]
[21] Section 2A of the AAT Act.
The Tribunal notes its decision is also consistent with the submissions made by the Applicant that he was satisfied with the decision to grant his 11 April 2022 application for EMEP and that what he was seeking review of was the payments not received in 2019, 2020 and 2021. The Tribunal accepts that the Applicant has been making his best endeavours to have the payment period between 26 June 2018 (when the last EMEP was made)[22] and 22 April 2022 (being the date on which the EMEP was made in relation to his 11 April 2022 claim)[23] reviewed. As outlined above it is open to the Applicant and his wife to consider pursuing a review of the cancellation decision made on 7 May 2019 and/or to purse the CDDA Scheme as an avenue of inquiry.
[22] T-Documents, T9, page 62, Centrelink documents.
[23] T-Documents, T9, page 63, Centrelink documents.
DECISION
Pursuant to section 42B(1)(a) of the AAT Act the application for review is dismissed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

......................[SGD]...........................
Associate
Dated: 21 September 2023

Date of hearing: 11 September 2023

Applicant: By telephone

Advocate for the Respondent: Mr Andrew Summers

Solicitors for the Respondent: Services Australia

Date of hearing:	11 September 2023
Applicant:	By telephone
Advocate for the Respondent:	Mr Andrew Summers
Solicitors for the Respondent:	Services Australia