GJCN and Secretary, Department of Social Services (Social services second review) - [2023] AATA 495

GJCN and Secretary, Department of Social Services (Social services second review) [2023] AATA 495 (17 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10085
Re:GJCN
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date of decision: 17 February 2023
Date of reasons: 24 March 2023
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 24 November 2022 to refuse to reinstate the Applicant’s application.
.......................[sgd].................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – newstart allowance – disability support pension – whether application for disability support pension should have been deemed – decision not to exempt from activity test – decision to require activity agreement – reinstatement refused as application futile – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Filsell and Comcare [2009] AATA 90
Frost and Secretary, Department of Social Security [1995] AATA 228
GJCN and Secretary, Department of Social Services [2019] AATA 802
John Patrick and Clare Bradley Kelly and Secretary, Department of Social Security [1995] AATA 302
Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148
Marsh and Secretary, Department of Social Security [1996] AATA 669
Martin and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 95
Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134
White and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1712
Yan and Secretary, Department of Social Services [2014] AATA 29
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REASONS FOR DECISION
Ms A E Burke AO, Member
24 March 2023
BACKGROUND

On 22 September 2005, GJCN (the Applicant) made a claim to Centrelink using the form ‘Claim for Payments for people with disabilities, illnesses or injuries’. On the form he marked the box indicating he was claiming Sickness Allowance (SA). Centrelink determined that GJCN was not eligible for SA as SA is a payment for people who had a job to return to, but he did not have a job. Instead, Centrelink granted GJCN Newstart Allowance (NSA) with effect from 25 August 2005 in accordance with s 12 of the Social Security (Administration) Act 1999 (the Administration Act).
From 1 August to 31 October 2005 and 16 February to 17 May 2006, GJCN provided medical certificates to Centrelink and he was exempted from the activity test for his NSA payments.
On 17 May 2006, GJCN submitted a medical certificate for the period 18 May to 17 August 2006 and again requested that he be exempted from the activity test for NSA.
On 16 June 2006, GJCN had a medical assessment with Health Services Australia (HSA). HSA assessed the functional impact of his medical conditions and assigned an impairment rating of zero. HSA also determined that he had a work capacity of 30 hours or more per week without any intervention.
On 11 July 2006, the Department decided not to accept GJCN’s medical certificate of 15 May 2006 based on HSA’s determination.
On 29 August 2006, GJCN entered into an activity agreement in which he agreed that from 29 August 2006 to 28 February 2007 he must undertake four job search contacts per fortnight and report them to Centrelink.
On 5 September 2006, GJCN contacted Centrelink to request a review of the HSA assessment as he disagreed that he could look for work.
On 20 September 2006, a Job Capacity Assessment (JCA) was conducted which found that GJCN had a temporary work capacity of 15-22 hours per week without intervention and 30+ hours per week with intervention. Accordingly, Centrelink declined to exempt him from the activity test.
On 2 November 2006, GJCN requested a cancellation of his NSA and Centrelink cancelled it from that date.
On 8 December 2020, GJCN wrote to the Department seeking review of the determination of 11 June 2006 not to accept his medical certificate to exempt him from mutual obligations and the determination of 29 August 2006 to ask him to enter into an activity agreement.
On 25 May 2021 an authorised review officer (ARO) affirmed both decisions. On 29 September 2021 the Social Services and Child Support Division of the AAT (AAT1) dismissed GJCN’s application for review of the ARO’s decision under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act), finding the decision was not reviewable. On 6 December 2021, on second-tier review, this division of the Tribunal (AAT2) also dismissed GJCN’s appeal of the AAT1 decision, determining that it had no jurisdiction to review the matter as the AAT1 had not affirmed, varied or set aside the decision of the ARO.
On 13 December 2021, GJCN again applied for review of the ARO decision at AAT1 which was also dismissed on 28 July 2022. On 15 August 2022, he applied for his application to be reinstated under section 42A(8) of the AAT Act.
On 24 November 2022 Senior Member Hewson considered GJCN’s reinstatement application and provided a considered, thoughtful and extensive background of the case and decided to refuse to reinstate GJCN’s application, determining at paragraphs 6-37:
On 25 May 2021, GJCN lodged an application with the SSCSD for AAT first review (AAT1) of decisions made by Centrelink on 11 July 2006, to refuse to accept a medical certificate and exempt him from the newstart allowance activity test, and a decision made on 29 August 2006, to require him to enter into an activity agreement, which were affirmed by an authorised review officer on 25 May 2021.
On 29 September 2021, following a hearing on 26 July 2021 at which GJCN gave affirmed evidence in addition to his written submissions, the tribunal, differently constituted, decided to dismiss GJCN’s application pursuant to subsection 42A(4) of the AAT Act as it concluded the decisions were not reviewable. GJCN was given written reasons for the decision.
GJCN subsequently lodged an application with the General Division of the AAT (AAT2). On 6 December 2021 the application was dismissed on the basis that the General Division did not have jurisdiction to review the matter.
It was GJCN’s evidence that he was advised to bring the matter back to the SSCSD. In disposing of the matter in the General Division Member Burke issued a direction as follows: As the Social Services and Child Support Division of the Administrative Appeals Tribunal has made no finding in this matter, the Tribunal had no authority to make a determination on the matter, no jurisdiction to remit the view that the Administrative Appeals Tribunal had jurisdiction to review the Authorised Review Officer’s decision of 25 May 2021.
On 13 December 2021, GJCN contacted the SSCSD and a new application in relation to the authorised review officer’s decision of 25 May 2021 was registered. The matter was constituted to the member who dismissed GJCN’s previous application. On 28 July 2022 the new application was dismissed for the same reasons as previously stated in relation to application.
On 15 August 2022, GJCN asked for the application to be reinstated. On 12 October 2022 I conducted a hearing in relation to GJCN’s application for reinstatement.
I concluded that the only basis on which the application could be considered for reinstatement is under subsection 42A(10), if it was dismissed in error.
Having regard to the case law (see in particular the decision of Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383) I was satisfied the tribunal having come to an incorrect view of its jurisdiction in a matter, leading to its dismissal, is an error capable of attracting the operation of subsection 42A(10).
I considered whether the tribunal at AAT1 made an error in determining it did not have jurisdiction to review the authorised review officer’s decision of 25 May 2021 in relation to the original decisions made on 11 July 2006 and 29 August 2006.
The AAT has no general review powers. It may only review a decision where jurisdiction is conferred under an enactment and the decision is reviewable. So far as is relevant in this case, the AAT has jurisdiction to review decisions under the Social Security Act 1991 (the Social Security Act) and the Social Security (Administration) Act 1999 (the Administration Act); the enactments under which the decisions GJCN is seeking to have reviewed were made and which deal with review by the AAT.
The scope of the AAT’s jurisdiction is set out in Part 4A – Review by the AAT – of the Administration Act. Part 4A, Division 2 of that Act deals with AAT1. Section 142 outlines what are reviewable decisions, and section 144 sets out the decisions that are not reviewable.
Section 23 of the Social Security Act contains definitions of terms, including of “decision”, which is stated to have the same meaning as in section 3(3) of the AAT Act: 33(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing.
The decisions GJCN is seeking to have reviewed are decisions made under the Social Security Act. It is clear, then, that the AAT has jurisdiction under the enactments relevant to GJCN’s application for review. I was also satisfied that section 144 is not an impediment to the application for review lodged by GJCN. The issue, then, is whether the decisions GJCN is seeking to have reviewed are susceptible to review under the AAT Act.
In the social security context a reviewable decision is readily identifiable in the case of a reduction in the rate of a payment; the cancellation or suspension of a payment; or the rejection of a claim. In the decision of Director-General of Social Services v Hales (1983) 5 ALN No 116, however, Lockhart J stated: [The meaning of ‘decision’] must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the tribunal, and the manifold and diverse circumstances which attract the power of the decisionmaker, all call for a liberal approach to the definition of the word ‘decision’ … It is necessary to examine the Act which confers jurisdiction on the AAT and the administrative framework in which it operates to determine whether there is a ‘decision’ susceptible of review under the AAT Act. A pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities.
In GJCN’s case the decisions reviewed by the authorised review officer; to refuse to accept a medical certificate and to exempt him from the newstart allowance activity test and, subsequently, to require him to enter into an activity agreement, are in Part 2.12 (newstart allowance) of Chapter 2 of the Social Security Act (as it was at the relevant time).
The qualification and payability provisions for newstart allowance are in Division 1. The basic qualifications are in Subdivision A. Subdivision B (Activity Test), Subdivision BA (Exemption from the activity test – people incapacitated for work) and Subdivision C (Newstart Activity Agreements) modify the basic qualification requirements for newstart allowance.
Whereas GJCN was initially granted newstart allowance on the basis that he had a temporary incapacity for work1 , pursuant to section 593 and section 603C in Subdivision BA of the Social Security Act, the subsequent refusal to accept his medical certificate and exempt him from the activity test changed the conditions under which he was qualified for newstart allowance. I was satisfied that this change in condition; to refuse to exempt him from the activity test, thus requiring him to satisfy the activity test, including requiring him to enter into a newstart activity agreement (section 605 in Subdivison C) were decisions susceptible to review. In coming to this view I took into account the wide and inclusive definition of “decision” in the AAT Act. I was not persuaded that the decisions, which had a real practical impact on the requirements attending the payment of newstart allowance to GJCN, were a mere step along the way to an ultimate decision. I was satisfied, therefore, that the decisions GJCN is seeking to have reviewed are reviewable decisions in relation to which AAT1 has jurisdiction.
Having satisfied myself that the tribunal did have jurisdiction to review the decisions in this case, I concluded that GJCN’s application for review was dismissed in error. I considered whether it should be reinstated pursuant to subsection 42A(10) of the AAT Act.
Reinstatement of an application under subsection 42A(10) is not automatic. It requires me to exercise the discretion contained in the provision. There is no guidance in the AAT Act as to the way in which the discretion should be exercised. In Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204 DP Forgie considered the principles guiding the manner in which the discretion in subsection 42A(10) should be exercised, essentially: having regard to the efficiency of the review system; fairness to the parties; and the merit of the application. 1 This is evident from the “New Claim Action Sheet” which cites sections 593 and 603C and is consistent with the annotation on the claim form by a Centrelink officer who wrote “Newstart Allowance Incapacitated”.
To the extent that there is a reviewable decision before the tribunal, I was satisfied that it would not be unfair to either GJCN or the Secretary if the application in this case was reinstated. I was also satisfied that the efficiency of the review/case management system does not weigh strongly against reinstatement of the application if there is merit in the application.
I considered whether the application has merit.
In his submissions GJCN set out the decisions he sought from the tribunal, as follows:
·The Applicant seeks a decision to set aside the decision requiring the Applicant to satisfy the Activity Test on the basis they should have been exempted under 603BA and that the Applicant remained qualified for Newstart Allowance under section s593(1B) of the SSAct and had a pending claim for DSP. The Applicant seeks payment of his Newstart Allowance or Disability Support Pension (if he was qualified for that payment) be paid for the period 19 October 2006 through to 17 November 2007.
·The Applicant seeks a decision that the Applicant was qualified for DSP under s94 of the SSAct from 19 September 2006 or for the decision about qualification to be remitted back to the Respondent for a decision to be made about qualification in accordance with s94 of the SSAct.
I understood from my discussions with GJCN that he is seeking to establish that he made a claim for disability support pension in September 2005 which has not yet been determined. He asserted that a contact with Centrelink on 5 September 2006 was a request for a review in relation to his claim. He also asserted that he should be deemed under section 12 of the Administration Act (as it was prior to July 2008 amendments) to have made a claim for disability support pension and transferred to that payment from the date he states he first became qualified on 19 September 2006.
These and related arguments have been raised by GJCN in other proceedings before the AAT.
30. In January 2011 GJCN applied to the then Social Security Appeals Tribunal (SSAT; predecessor of the SSCSD) for review of the decision made on 23 February 2010 to grant his claim for disability support pension, lodged on 12 January 2010, from 6 January 2010. GJCN was seeking to have the start date of his pension backdated to 17 May 2006. The decision was affirmed by the SSAT on 17 March 2011. In January 2013 GJCN lodged an application to the General Division of the AAT for review of the SSAT decision, along with an 2 This date seems to be based on a medical certificate received by GJCN from Centrelink under FOI and submitted to the tribunal. The medical certificate is dated 19 September 2006 but was signed by GJCN on 2 April 2009 and is stamped as having been received by the Cheltenham office of Centrelink on 20 April 2009. 3 Review number 2011/M237783 application for an extension of time to lodge the application. The application for an extension of time was refused.
In January 2014 GJCN lodged a further application for review by the SSAT, for review of a Centrelink decision that it did not have jurisdiction to review the start date of his disability support pension4 . The SSAT affirmed the decision, concluding that it did not have jurisdiction to review the decision to pay disability support pension from 6 January 2010 and not an earlier date as that decision had already been reviewed by the SSAT, differently constituted. GJCN subsequently lodged an application with the General Division of the AAT and on 8 April 2015 DP Forgie found the AAT had no jurisdiction to hear the application and dismissed it.
In April 2018 GJCN lodged a new application for review by the SSCSD of the AAT of a decision of an authorised review officer that it did not have jurisdiction to undertake a review of an assessment in June 2006 related to GJCN’s newstart allowance as there was no reviewable decision. At the hearing in 2018 GJCN clarified that he was not seeking review of the assessment in 2006, rather he was seeking review of the outcome of a request for review on 5 September 2006, which he said was a request to be transferred from newstart allowance to disability support pension. The tribunal in 2018 did not accept that GJCN’s contact on 5 September 2006 was a request to be transferred to disability support pension or that a decision had been made. That being the case the tribunal decided there was no reviewable decision before it and decided it did not have jurisdiction to decide the matter.
GJCN lodged an application for review of this decision by the General Division of the AAT. On 7 May 2019 the General Division decided it did not have jurisdiction to review the matter. In considering the issues raised by GJCN Senior Member Cameron concluded that GJCN’s contact with Centrelink on 5 September 2006 was not a request for review and on that basis alone was satisfied there was no reviewable decision.
I concluded there is arguable merit in GJCN’s application, in relation to the decisions of 11 July 2006 and 29 August 2006, reviewed by an authorised review officer on 25 May 2021. It is clear, however, from GJCN’s evidence, including his written submissions, that he is seeking to reagitate issues previously put before the AAT. The decision of Cheung v Administrative Appeals Tribunal [2009] FCA 241 describes the discretion available to the tribunal to treat conclusions from a previous decision as being determinative of an issue and decline to revisit it:
Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course (Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374 at 390).
I was not persuaded by GJCN’s detailed submissions, in any case, that the outcomes he is seeking (set out at paragraph 28) are available upon review of the decision of 11 July 2006 to refuse to accept a medical certificate and exempt him from the newstart allowance activity test and the decision on 29 August 2006 to require him to enter into a newstart activity agreement. As noted in the decision of Lees v Comcare [1999] FCA 753, the powers of the AAT are for the purpose of reviewing a reviewable decision and are not powers that may be exercised at large. In Repatriation Commission v O’Brien [1985] 58 ALR 119 the High Court concluded the AAT had erred in reviewing a decision preceding the decision before it. The effect of O’Brien is, essentially, that unless a preceding decision is properly before the tribunal, it is assumed to be correct in reviewing a decision that follows from it. In determining GJCN’s application, in the event it was reinstated, the AAT would, therefore, be limited to consideration of the specific decisions reviewed by the authorised review officer, set out above. Determination of those matters would not, in my view, enliven the tribunal’s jurisdiction in relation to other decisions or issues which had not been subject of internal review or where there was no jurisdiction for such a review (see, for example, Re YWZJ and Commissioner of Taxation [2010] AAT 190). I note that some elements of the outcome sought by GJCN would, in effect, require the making of an original decision.
The most favourable outcome that would be available to GJCN in my view is a decision to set aside the decision of 11 July 2006 not to exempt him from the activity test and to set aside the decision requiring him to enter into a newstart activity agreement which, 16 years later, would have no practical benefit. Neither of these decisions would, in my view, allow another decision maker to make a finding in relation to the claim made by GJCN in September 2005; whether that claim should be regarded as a claim for disability support pension; whether it is a claim yet to be determined; whether GJCN was qualified for disability support pension in 2006; whether he could be deemed under section 12 of the Administration Act to have made a claim for disability support pension and be transferred from newstart allowance.
I concluded that a favourable decision on review in 2022 of the decision of 11 July 2006 to refuse to accept a medical certificate and exempt GJCN from the newstart allowance activity test and a decision made on 29 August 2006 to require him to enter into an activity agreement would have no utility and would be a wasteful use of AAT resources.

On 9 December 2022, GJCN requested a review of the AAT1 determination of 24 November 2022 not to reinstate his application.
CONTENTIONS
GCJN
GCJN provided a comprehensive written submission in his appeal to the Tribunal in which he sought:
…a decision to set aside the decision that they should have been exempted from the Activity Test under 603BA and that the Applicant remained qualified for Newstart Allowance under section s593(1B) of the SSAct and had a pending claim for DSP as the legally correct decision.
The Applicant seeks payment of his Newstart Allowance or Disability Support Pension (if he was qualified for that payment) be paid for the period 19 October 2006 through to 17 November 2007.
The Applicant seeks a decision that he was qualified for DSP under s94 of the SSAct from 19 September 2006.
GCJN submitted that the circumstances of the decisions he is seeking review of were as follows:
(a)There was no claim form lodged for NSA around 22 September 2005 (and certainly not within 14 days of the claim that was made on 22 September 2005) when a claim for NSA was granted under s 593 of the Administration Act on the New Claim Action Sheet. There was also no other claim form lodged such as the Looking for Work SU489 claim form which was used to claim NSA by job seekers around this time.
(b)Centrelink clearly tells people that they will be exempted from the activity test while their claim for disability support pension (DSP) is being decided:
Depending on your circumstances, you may be eligible for Newstart Allowance or Youth Allowance pending the outcome of the Disability Support Pension assessment. You will not be required to satisfy your Mutual Obligation Requirements for these payments while your claim for Disability Support Pension is being assessed. Mutual Obligation Requirements means Activity Test or participation requirements under the Social Security Act 1991.
(c)A decision was made about his impairment rating, referring to Table 11.2, Table 21 and Table 8 of Schedule 1B – Tables for the assessment of work-related impairment for disability support pension in the Social Security Act 1991 (the Act) as it was in force at the time. The Applicant was told his medical certificates would not be accepted in this decision.
(d)He signed an activity agreement on 29 August 2006 so as not to risk being left with no income while being incapacitated and forced into financial hardship.
(e)He requested a review of the decisions of 11 July 2006 not to exempt him from the activity test and the activity agreement which he was required to sign on 29 August 2006. In his review application on 5 September 2006, he was told by Centrelink to take a TDR (Treating Doctor’s Report) and other medical information to another assessment, the JCA, which he did on 20 September 2006. The JCA found his medical conditions were “verified medically”, referring to Chronic Fatigue Syndrome (CFS), Irritable Bowel Syndrome (IBS) and Attention Deficit Hyperactivity Disorder (ADHD).
(f)He tried to provide medical certificates to the Cheltenham Centrelink office, but they were handed back to him over the desk by the manager.
(g)The reason for his referral to the JCA was stated as “change of circumstances”. The JCA found he had a current work capacity of 0-7 hours, and he was not fit to participate in any programs for three months, as stated in the assessment summary. In error, Centrelink told him that he had a current work capacity of 30 hours after the JCA assessment.
(h)He was told by Centrelink to attend ‘looking for work’ programs. He attended and tried to explain that there had been a mistake as he was unwell. He was forced to cancel his income support or continue to be harassed by repeated telephone calls and texts from the Job Network Agency Max Network (the same agency that did the JCA on 20 September 2006), demanding he attend their programs or cancel his payments.
(i)The Secretary has retrospectively stated that he was not fit for work.
(j)In a 7 August 2012 letter regarding his application for compensation, Centrelink advised him that “because there was evidence of a “review” of your entitlements in 2006, there was legislative warrant to transfer your payment from NSA to Disability Support Pension if the central issue of your medical qualification at that time could be established”.
(k)The Commonwealth Ombudsman stated in a letter of 7 May 2010 that “had the JCA report been completed correctly and the subsequent assessment of [GJCN’s] case been properly based on a consideration of all his circumstances known and recorded at the time, he would have been granted an incapacity exemption for the period 19 August 2006 to 16 November 2006”.
(l)The Secretary reviewed the decisions and affirmed them on 25 May 2021 (15 years after the review application was first made on 5 September 2005).
(m)He received no payment (income support payment, compensation, or otherwise) for the period 19 October 2006 to 17 November 2007.
(n)He has several permanent medical conditions which have been recorded in medical reports supplied to Centrelink which were fully diagnosed, treated and stabilised since 19 September 2006. Those medical conditions listed for the purposes of disability and inability to work include CFS, IBS and ADHD. Some of these conditions, namely IBS and ADHD, had been known to Services Australia to be fully diagnosed, treated and stabilised and permanent since the Health Services Australia (HSA) assessment dated 16 June 2006. The additional condition of CFS has been reported since 19 September 2006.
(o)He was granted DSP from 6 January 2010 based on being assessed as having a 20 point impairment rating under table 20 on 23 February 2010 which was granted based on a separate claim which was lodged in 2010. The Secretary repeatedly exempted him from the activity test from 18 November 2007 to 6 January 2010 due to medical incapacity for the same medical conditions known to be permanent since 19 September 2006.
GCJN contended, based on his view of events and interpretation of the legislation, that:
(a) The telephone call on 5 September 2006 between himself and Centrelink includes reference to a request for review in accordance with s 129 of the Administration Act and in a manner in accordance with Marsh and Secretary, Department of Social Security [1996] AATA 669. This telephone call conversation contained a review application.
(b) The Secretary was hence required to review these decisions under s 135 of the Administration Act at this time in 2005 but did not complete the review until 25 May 2021.
(c) At the time he was granted NSA under s 593 of the Act after his claim made on 22 September 2005, there is no evidence of a decision having been made under ss 15 or 13, deemed claiming provisions of the Administration Act. The possibility that a claim for SA was not appropriate or incorrect and therefore GJCN was granted NSA instead would have required that the Applicant was already in receipt of a payment to be transferred to NSA under deemed claiming provision s 12 of the Administration Act but he was not already on a payment. Deemed claiming provisions s13(d) or s15(4)(d) of the Administration Act require a later claim, a written claim lodged in accordance with s16(1)(a). As there is no evidence of a written claim for NSA (in a form approved by the Secretary which is a claim form SU489) these deemed claiming provisions did not apply to granting him NSA at that time.
(d) There is no evidence of a decision to grant or reject a claim for SA.
(e) Section 16 of the Administration Act describes how to make a claim in subsection 16(3) which states “Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection”. That claim form in this instance, which was approved by the Secretary, was lodged on 22 September 2005 and is a claim form of type SA317b which coversDSP.
(f) He never made a claim for NSA and no claim was ever lodged for NSA in accordance with s 16(1)(a) of the Administration Act as he was unwell, was not looking for work and was not capable of working.
(g) The decision to grant him NSA was an error of the Department, made due to the misapplication of s 593 of the Act and the claim should have been granted under s 593(1B) instead. This is an error of a type addressed in Frost and Secretary, Department of Social Security [1995] AATA 228 and John Patrick and Clare Bradley Kelly and Secretary, Department of Social Security [1995 AATA 302 which stated about Frost at [10] that “the concept of review should not enter the arena, the error in that application having been entirely that of the department”.
(h) The decision requiring him to enter into an activity agreement (for the purposes of a claim for NSA) compounded this error. This is because the subdivision does not apply to a person with a pending claim for DSP under s 603BA of the Act (in reference to s 603C) had the decision not been an error with respect to s 593 and he had been qualified under s 593(1B).
(i) The decision requiring GJCN to undergo a medical examination (under s 64 of the Administration Act) would have been made correctly on the basis that he had a pending claim for DSP (s 64)(1)(a) of the Administration Act) or was in receipt of NSA (s 64(a)(f)).
(j) Centrelink made a decision about his impairment rating on 11 July 2006, referring to the recent medical assessment. Though the medical assessment is not a reviewable decision by the AAT, the decision made based on the medical assessment is reviewable as it refers to a decision made under Schedule 1B of the Act (the Impairment Tables) which is the decision that was reviewed by the ARO on 25 May 2021.
(k) Despite giving a rating of zero for each impairment, the decision made on 11 July 2006 refers to tables 11.2, 21 and 8. Schedule 1B describes the Impairment Tables as: “These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered”.
(l) Centrelink were making a decision about his eligibility for DSP. Impairment ratings were calculated, and impairment tables were referred to. Had the initial claim been processed correctly on 22 September 2005, the medical assessment would have been for DSP and not NSA. The subsequent decision about the activity test and requirement to enter into an activity agreement which was made under s 604(1) of the Act was wrong as ss 593(1B)(d) and 593(1B)(e) applied to his claim, qualifying him for NSA under s593(1B) which states:
(d) the person made a claim for disability support pension at or before the start of the period and the claim was not determined before the end of the period; and
(e) the Secretary is satisfied that throughout the period the person suffered from a medical condition that had a significant adverse effect on the person’s ability to work
(m) He would therefore have been exempted from the activity test under section 603BA as he had a pending claim for DSP.
(n) The Applicant was not required to sign the activity agreement on 29 August 2006 according to s 605(2B) which states: “Subsections (1) and (2) do not apply to a person who is qualified for a newstart allowance only under subsection 593(1B)”.
(o) While the decision is under review, the Secretary may continue the payment for NSA according to s 131 of the Administration Act. This includes the period where further error was made about GJCN’s work capacity as it was recorded incorrectly as 30 hours. He would have been exempted from the activity test based on a work capacity of 0-7 hours had there not been an error. This error is another error such as that discussed in the cases of Frost and Secretary, Department of Social Security [1995] AATA 228 and John Patrick and Clare Bradley Kelly and Secretary, Department of Social Security [1995] AATA 302.
(p) If the Tribunal were to find that there was no error made with the initial claim, then the decision under review needs to consider the deemed claiming provision of s 12 of the Administration Act and the amendment to this section. There was a review applied for by the Applicant prior to 1 January 2008 in accordance with s 12 amendment (2)(b) and Martin and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 95, and the facts and evidence support that the Applicant was qualified for DSP at this time.
Services Australia
The Respondent submitted that the AAT2’s jurisdiction is limited to reviewing whether the 24 November 2022 AAT1 decision to refuse to reinstate GJCN’s application was correct.
The Respondent contends that the AAT1 on 24 November 2022 was correct to refuse reinstatement for the following reasons:
(a)While the July 2022 AAT1 decision may have dismissed the application in error, consistent with the written reasons of 2022 November AAT1 decision, the AAT1 was correct to determine that there was no practical utility in reinstating the application because the application has no merits. The Respondent relied upon DP Forgie’s determination in White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712:
If an error is established within the meaning of s 42A(10), reinstatement is not automatic. Reinstatement is a matter for the Tribunal’s discretion but s 42A(10) does not give any guidance as to the way in which the Tribunal should exercise that discretion. I consider that the principles that guide the discretion given to the Tribunal to reinstate an application under s 42A(9) are relevant. That section provides that the Tribunal may reinstate an application dismissed “... if it considers it appropriate to do so ... and give such directions as appear to it to be appropriate in the circumstances.”[20] No express guidance is given in the AAT Act as to the manner in which the Tribunal’s discretion should be exercised but principles have been developed in related contexts in the Tribunal and the courts.
I would add to these two principles, a third. That is whether the application, if reinstated, would have merits. That does not require an exhaustive consideration of the merits but it does require a consideration of whether the application would have any chance of success if reinstated. To reinstate an application in circumstances in which there can be no chance at all of its being successful is to give false hope to an applicant as well as to waste the resources of both parties let alone of the Tribunal
(b)The Respondent understands that GJCN is seeking a review of the decisions not to exempt him from the activity test and ask him to enter into an activity agreement because he wants his DSP to be granted from sometime in 2006. The November 2022 AAT1 decision relevantly stated:
I understood from my discussions with GJCN that he is seeking to establish that he made a claim for disability support pension in September 2005 which has not yet been determined. He asserted that a contact with Centrelink on 5 September 2006 was a request for a review in relation to his claim. He also asserted that he should be deemed under section 12 of the Administration Act (as it was prior to July 2008 amendments) to have made a claim for disability support pension and transferred to that payment from the date he states he first became qualified on 19 September 2006.
(c)The original decisions have no connection to GJCN’s DSP claim; and a review of the original decisions is not going to result in any transfer or backdating to DSP.
(d)A review of the original decisions is also not going to result in any arrears of NSA to GJCN. Even if the AAT2 were to accept GJCN’s contention that the Department should have accepted the medical certificates and exempted him from entering into an activity agreement and set aside the original decisions, the effect of that would be that NSA was payable to GJCN. However, GJCN continued to receive NSA until 2 November 2006 despite the original decisions, until he requested that his NSA be cancelled.
(e)As the NSA cancellation decision has not been reviewed by an ARO or AAT1, the cancellation cannot be set aside as part of this application for review.
(f)The AAT1 in November 2022 relevantly found:
I was not persuaded by GJCN’s detailed submissions, in any case, that the outcomes he is seeking (set out at paragraph 28) are available upon review of the decision of 11 July 2006 to refuse to accept a medical certificate and exempt him from the newstart allowance activity test and the decision on 29 August 2006 to require him to enter into a newstart activity agreement. As noted in the decision of Lees v Comcare [1999] FCA 753, the powers of the AAT are for the purpose of reviewing a reviewable decision and are not powers that may be exercised at large. In Repatriation Commission v O’Brien [1985] 58 ALR 119 the High Court concluded the AAT had erred in reviewing a decision preceding the decision before it. The effect of O’Brien is, essentially, that unless a preceding decision is properly before the tribunal, it is assumed to be correct in reviewing a decision that follows from it. In determining GJCN’s application, in the event it was reinstated, the AAT would, therefore, be limited to consideration of the specific decisions reviewed by the authorised review officer, set out above. Determination of those matters would not, in my view, enliven the tribunal’s jurisdiction in relation to other decisions or issues which had not been subject of internal review or where there was no jurisdiction for such a review (see, for example, Re YWZJ and Commissioner of Taxation [2010] AAT 190). I note that some elements of the outcome sought by GJCN would, in effect, require the making of an original decision.The most favourable outcome that would be available to GJCN in my view is a decision to set aside the decision of 11 July 2006 not to exempt him from the activity test and to set aside the decision requiring him to enter into a newstart activity agreement which, 16 years later, would have no practical benefit. Neither of these decisions would, in my view, allow another decision maker to make a finding in relation to the claim made by GJCN in September 2005; whether that claim should be regarded as a claim for disability support pension; whether it is a claim yet to be determined; whether GJCN was qualified for disability support pension in 2006; whether he could be deemed under section 12 of the Administration Act to have made a claim for disability support pension and be transferred from newstart allowance.
I concluded that a favourable decision on review in 2022 of the decision of 11 July 2006 to refuse to accept a medical certificate and exempt GJCN from the newstart allowance activity test and a decision made on 29 August 2006 to require him to enter into an activity agreement would have no utility and would be a wasteful use of AAT resources.
(g)Therefore, there would be no practical benefit or utility to the Applicant in reinstating the application. To do so would cause prejudice to the Respondent by requiring him to incur costs in defending a claim that is without merit.
The Respondent contends that the AAT2 does not have jurisdiction to review GJCN’s substantive application.
The Respondent observes that GJCN has only requested review of the November 2022 AAT1 decision where the AAT1 did not consider the application on its merits. Specifically, the AAT1 did not affirm, vary or set aside the ARO decision, pursuant to subsections 179(1) of the Administration Act and subsection 43(1) of the AAT Act. Jurisdiction of the AAT2 is therefore not enlivened.
Consistent with authorities, the AAT1’s review of the substantive decision is condition precedent to a second-tier review. The AAT2’s jurisdiction to consider the original decisions is not enlivened unless and until the AAT1 had considered the original decisions on their merits.
CONCLUSION

The Tribunal concurs with the AAT1 determination of 24 November 2022 that the decision to dismiss GJCN’s application as the Tribunal did not have jurisdiction to review it was incorrect. The Tribunal finds the ARO’s determination of 25 May 2021 affirming the decisions of 11 June 2006 not to accept GJCN’s medical certificate to exempt him from the activity test and 29 August 2006 to require him to enter into an activity agreement was a reviewable decision and not merely “a step along the way” in the decision-making process.
However, the Tribunal finds its jurisdiction to consider the original decisions which are the subject of the ARO decision is not enlivened unless and until the AAT1 considers the original decisions on their merits, making a determination to affirm, vary or set aside as numerous authorities outline.
In Yan and Secretary, Department of Social Services [2014] AATA 294, DP Tamberlin stated at [8] and [17]:
The position therefore is that this Tribunal can only review a decision which has been reviewed by the SSAT and been affirmed, varied or set aside or sent back to the Secretary.
…
I note that in several previous decisions of the Tribunal it has been held that this Tribunal does not have jurisdiction in relation to applications which have not been reviewed by the [AAT1]...
In Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134, Member McCabe observed at [8]-[9]:
…The Tribunal may not intervene at some earlier point and take over the review before the appeal process before the SSAT has been completed…
It does not matter whether the presiding member of the Tribunal has sympathy for the applicant, or believes the applicant has a good case. The Tribunal (and the applicant and respondent) must follow the process set out in the Social Security (Administration) Act 1999. Since the SSAT had not reached a decision when the application to the Tribunal was filed, the Tribunal has no jurisdiction or power to deal with the case, regardless of its merits. That is the law.
In Kerferd and Secretary, Department of Families, Housing, Community Services and Community Affairs [2009] AATA 148, DP Forgie stated at [48] that:
Whether or not the Tribunal can go on to review the decision should it find that the ARO and the SSAT had jurisdiction to do so is another question altogether. It would be a decision that had not been reviewed by either the ARO or the SSAT and so the foundation on which the Tribunal’s statutory powers are built would not exist
The Tribunal in this case only has the jurisdiction to deal with the AAT1 determination of 24 November 2022 not to reinstate the application because it was futile.
The Tribunal concurs with the AAT1 finding that GJCN’s applicant has merit but no practical outcome or utility. The Tribunal may well be persuaded that GJCN’s medical certificate should have been accepted and he should have been exempted from the activity test but the Tribunal does not find this would have led to GJCN receiving any form of retrospective benefit and cannot lead to him being granted DSP from 19 September 2006 when he contends that he first became qualified. The Tribunal concurs with the findings of the AAT1 on 24 November 2022 at [38]:
Ultimately, having regard to the evidence available to me, including GJCN’s submissions and evidence, I concluded while there is arguable merit in the application, there is no utility in the matter proceeding as a favourable outcome would not have any practical benefit for GJCN. As discussed above, I concluded the outcomes sought by GJCN, in relation to the claim in September 2005 for example, could not be achieved through determination of the matters before the tribunal. In the circumstances I decided it is not appropriate to reinstate the application
The Tribunal concurs with GJCN’s assertion that he did not apply for NSA on 22 September 2005, however there is no evidence before the Tribunal to indicate whether he ever appealed Centrelink’s decision to grant him NSA.
The Tribunal does not concur with GJCN’s contention in his written submission that he would have qualified for the DSP from 19 September 2006 had he been exempted from the activity test. The Tribunal does not find that had GJCN been exempted from the activity test, his “pending” DSP application would have been reviewed, resulting in him receiving the DSP. GJCN is simply ‘flogging a dead horse’ which will not achieve his desired end, or indeed result in any form of redress.
The Tribunal finds that whilst GJCN has continually asserted that he qualified for DSP from 19 September 2006, there is no evidence to support this claim. The Tribunal notes the Centrelink record of 5 September 2006 which states:
Phoned cus to discuss med certs, lfw, better assessment and options cus states that GP and self disagrees with current assessment that he can look for work. Cus has already been referred for JCA by JNM with appointment on 130906. Advised cus will send TDR or he can come into CSC to pick one up so that he can gather more medical info from his GP. Cus was also advised that he should bring med report pr specialist results with him to the JCA if possible. Advised cus he has no current med certs in system.
The Tribunal notes CJCN has already sought to prosecute the argument that his phone call with Centrelink on 5 September 2006 was a request for review of his DSP claim. However, as noted by the AAT1, the AAT has already found that this is not the case so there is no ability for this issue to be revisited as the decision has already been made by the AAT. As the AAT1 stated in its 24 November 2022 decision at [33]:
GJCN lodged an application for review of this decision by the General Division of the AAT. On 7 May 2019 the General Division decided it did not have jurisdiction to review the matter. In considering the issues raised by GJCN Senior Member Cameron concluded that GJCN’s contact with Centrelink on 5 September 2006 was not a request for review and on that basis alone was satisfied there was no reviewable decision.
Senior Member Cameron found in his decision of GJCN and Secretary, Department of Social Services [2019] AATA 802 at [29]-[31]:
It is just not possible from reading the contents of the screenshot recording the conversation concerned on 5 September 2006 to construe it as amounting to an application for review. On this ground alone, there is no reviewable decision within the meaning of Part 4 “Internal review of decisions” and Part 4A “Review by the AAT” of the Act; and therefore the Tribunal does not have any jurisdiction to entertain this application.
Another reason why the Tribunal is unable to accept the Applicant’s contention arises from the decision of the authorised review officer of 20 April 2010. The Decision Statement which contains the reasons is instructive in several respects.
The authorised review officer made a finding of fact that the Applicant only contacted the Department about claiming the DSP on 6 January 2010. This finding accords with the evidence before the Tribunal. He made a further finding of fact that on 12 January 2010 the Applicant lodged a claim for the DSP. There is no evidence before the Tribunal that an application was lodged for the DSP any earlier and certainly not in or about September 2006. The Applicant in the course of this proceeding did not at any time direct the Tribunal or tender in evidence any application for the DSP made in or about September 2006. If no claim for the DSP had been made by the Applicant before 12 January 2010 this then prompts the question how could he have sought a review of any decision concerning such a claim on 5 September 2006? He could not have. This is further evidence of the fact that there was no reviewable decision made at any relevant time for the purposes of this application. If there is no reviewable decision the Tribunal does not have any jurisdiction.
The Tribunal finds there is no evidence to support CJCN’s assertion that his DSP claim was pending as he had been assessed by HSA. Senior Member Cameron’s record of the relevant facts in his 2019 determination clearly indicates that the HSA assessment was in respect of GJCN’s medical certificate seeking exemption form the activity test for his NSA payment and not any deemed or lodged DSP claim. Senior Member Cameron summarised at [10]-[11]:
On 18 May 2006 the Department of Human Services (“the Department”) served on the Applicant a notice requiring his attendance for a medical assessment to be conducted by Health Services Australia (“HSA”). This notice was served as a result of the Applicant lodging medical certificates with the Department for the purpose of seeking an exemption from the newstart participation requirements.
On 16 June 2006 Dr Tutton completed a report following an examination of the Applicant. This report identified that the Applicant suffered from irritable bowel syndrome, migraine headaches and attention deficit hyperactivity disorder. The conclusion expressed by Dr Tutton in the report was that none of the medical conditions complained of by the Applicant warranted the application of any points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). Dr Tutton also expressed an opinion that the Applicant had the capacity to undertake full-time work of more than 30 hours per week in what was described as “low stress duties”. The report of Dr Tutton dated 16 June 2006 is hereinafter referred to as the “HSA report”
Whilst sympathetic to GJCN’s health conditions during this protracted period, the Tribunal does not find the evidence supports his contention that he had submitted a claim for DSP or that he qualified for the DSP from 19 September 2006. The evidence of HSA indicates CGJN’s functional impairment had been assessed as zero. The Tribunal finds that GJCN has become stuck in his belief that if he had been exempted from the activity test then he would have been eligible for DSP. The Tribunal finds that the evidence does not support this long-held belief and to allow the matter to proceed would not just prejudice the Respondent, but it would be a great disservice to GJCN. The Tribunal concurs with the AAT1 24 November 2022 finding:
The most favourable outcome that would be available to GJCN in my view is a decision to set aside the decision of 11 July 2006 not to exempt him from the activity test and to set aside the decision requiring him to enter into a newstart activity agreement which, 16 years later, would have no practical benefit. Neither of these decisions would, in my view, allow another decision maker to make a finding in relation to the claim made by GJCN in September 2005; whether that claim should be regarded as a claim for disability support pension; whether it is a claim yet to be determined; whether GJCN was qualified for disability support pension in 2006; whether he could be deemed under section 12 of the Administration Act to have made a claim for disability support pension and be transferred from newstart allowance.
I concluded that a favourable decision on review in 2022 of the decision of 11 July 2006 to refuse to accept a medical certificate and exempt GJCN from the newstart allowance activity test and a decision made on 29 August 2006 to require him to enter into an activity agreement would have no utility and would be a wasteful use of AAT resources
The Tribunal was perplexed that after the numerous iterations of GJCN’s applications for review that at the conclusion of the hearing the Respondent suggested the Applicant could consider yet again seeking review of the original decision by an ARO. The Tribunal was of the opinion that this was not a helpful suggestion as the Tribunal is acutely aware of having made the same suggestion at the conclusion of the hearing of the Applicant’s matter in 2021. Whilst cognisant that this matter was concluded by the oral decision to affirm the AAT1’s decision to refuse to reinstate the Applicant’s application, in a bid to assist GJCN to resolve his underlying concerns, the Tribunal requested the Respondent ascertain:
Whether the Applicant ever applied for review by an Authorised Review Officer (ARO) of the decision to grant him New Start Allowance on 25 August 2005, and if so, the outcome of that review; and
Whether a review was ever conducted by an ARO of the decision to grant the Applicant New Start Allowance instead of the Disability Support Pension on the basis of the Applicant's request on 5 September 2006, and if so, the outcome of that review.
The Tribunal has found that GJCN has already prosecuted his claim in respect of the phone call of 5 September 2006, but the Tribunal has no evidence before it in respect of whether he sought review of Centrelink placing him on NSA. The Tribunal considers this is the only line of appeal still open to GJCN.
For completeness, the Tribunal reiterates the suggestion that GJCN can pursue a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA). The CDDA is an avenue of last resort when there is no other avenue of redress available. It is administered by the Department of Finance. Applications under the CDDA Scheme are discretionary, they are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable.
The Tribunal has no jurisdiction in respect of perceived defective administrative actions of the Department and has no jurisdiction over the administration of the CDDA scheme.
Whilst the Tribunal notes that GJCN has already applied once for a payment under CCDA, the recent determinations of the AAT1 and now affirmed by the AAT2, may provide additional material on which GJCN can pursue a claim. Whilst the Tribunal has no way of assessing if a CDDA application might be successful, it nevertheless encourages him to lodge an application, given the finding that there was merit in his appeal of the decision not to exempt him from the activity test.
The Tribunal also notes the Commonwealth Ombudsman’s letter of 7 May 2010 which indicated they found there had been detrimental action undertaken by Centrelink in administering GJCN’s claim as the Ombudsman requested Centrelink reconsider its decision regarding GJCN’s CDDA claim. The Ombudsman’s letter states:
We believe that had all the evidence been properly considered, GJCN would have been granted an exemption for the period 19 August 2006 to 16 November 2006 and he would not have been referred to a JNM.
…
It is our view that had the JCA report been completed correctly, and the subsequent assessment of GJCN’s case been properly based on a consideration of all his circumstances known and recorded at the time, he would have been granted an incapacity exemption for the period 19 August 2006 to 18 November 2006. GJCN would then not have experienced the participation failure, nor concluded that his only way of avoiding further failures was surrendering his NSA payment.
The Tribunal notes the CCDA authorised officer letter of 7 August 2012 also found there had been detrimental action undertaken by Centrelink in administering GJCN’s claim:
As you know, an offer was made to you in June 2010, in the sum of […] in respect of your loss of Newstart Allowance (NSA) in the period 19 October 2006 to 17 November 2007…
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 24 November 2022 to refuse the reinstate the Applicant’s application.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

...........[sgd]............................
Associate
Dated: 24 March 2023

Date of hearing:

17 February 2023

Applicant:

Self-represented – by telephone

Advocate for the Respondent:

Ms Aarabi Raveendiran

Solicitors for the Respondent:

Services Australia

Date of hearing:	17 February 2023
Applicant:	Self-represented – by telephone
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia