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

This matter concerned an appeal by Mr Fogg against a decision by the Secretary, Department of Social Services, regarding the calculation of a preclusion period for social security payments. The central dispute revolved around whether the Administrative Appeals Tribunal (AAT) had the jurisdiction to revisit and potentially vary the preclusion period calculation, even if no specific submissions were made on that point during earlier proceedings.

The legal issues before the court were whether the AAT had the jurisdiction to review the calculation of a lump sum preclusion period, and if so, whether it was appropriate to do so in this instance. The court also considered the application of section 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth), which allows the Tribunal to limit the scope of its review, and the overarching obligation of the Tribunal to ensure a decision under review is the "correct or preferable" one.

The court reasoned that the AAT, in conducting an administrative review on the merits, stands in the shoes of the original decision-maker and has the power to affirm, vary, or set aside the decision under review. It held that the Tribunal's role is to determine the objectively correct decision, not merely whether an administrator acted reasonably. Therefore, the Tribunal was not bound by the submissions made (or not made) in earlier proceedings and retained jurisdiction to consider the correct calculation of the preclusion period. The court affirmed that while section 25(4A) permits limiting the scope of review, this power must be exercised in a way that upholds procedural fairness and the Tribunal's obligation to reach the correct or preferable decision.

The court varied the decision under review, indicating that the preclusion period calculation was indeed subject to review and correction by the Tribunal.