GJCN and Secretary, Department of Social Services (Social services second review)
[2019] AATA 802
•7 May 2019
GJCN and Secretary, Department of Social Services (Social services second review) [2019] AATA 802 (7 May 2019)
Division:GENERAL DIVISION
File Number: 2018/5025
Re:GJCN
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member R. Cameron
Date:7 May 2019
Place:Melbourne
The Tribunal determines that it has no jurisdiction to entertain this application.
[sgd]........................................................................
Senior Member R. Cameron
Catchwords
SOCIAL SECURITY – newstart allowance – disability support pension - jurisdiction question – whether telephone call with a customer service officer is a reviewable decision – no jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
JQCC and Secretary, Department of Social Services [2015] AATA 300
Thomas v Hollier [1984] HCA 35; (1984) 156 CLR 152Yan and Secretary, Department of Social Services [2014] AATA 294
Secondary Materials
J D Heydon, Cross on Evidence (LexisNexis, 9th ed. 2011)
REASONS FOR DECISION
Senior Member R. Cameron
7 May 2019
INTRODUCTION
This is an application for review of a decision made on 23 August 2018 by a Member of the Social Services & Child Support Division of this Tribunal (“AAT1”) that it had no jurisdiction to decide the matter because of limitations imposed upon it by reason of the provisions of s 142 of the Social Security (Administration) Act 1999 (“the Act”).
The Applicant has filed and served detailed submissions together with a tender bundle of documents that he relies on and a list of authorities in support. This material has been considered and taken into account by the Tribunal.
In the application, under the heading “Reasons for the Application”, it is asserted by the Applicant that the decision that AAT1 had no jurisdiction to decide the matter was wrong. The statement of grounds relied upon by the Applicant as establishing that the decision was wrong were difficult to follow. The same observation can be made about the Applicant’s submission to this Tribunal.
Nonetheless, several grounds can be distilled from the material. Those grounds will be expressed in language adopted by the Tribunal rather than the precise words used by the Applicant in the interests of both fairness due to the Applicant and with the intention in mind of satisfying the Tribunal’s objectives as articulated in the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
THE GROUNDS RELIED ON BY THE APPLICANT
One of the grounds submitted by the Applicant is that, as he calls it, the “substantive determination under review”[1] was a claim for the Disability Support Pension (“DSP”) which he contends was “deemed” to have been made on 19 September 2006[2] when he qualified for it. In his submissions he describes this as the “ultimate decision”.[3]
[1] Throughout his submission, the Applicant uses this term or the term "determination on review".
[2] This was the date that the Applicant obtained a “treating doctor’s report” (see pages 53-62 of the Applicant’s tender bundle of documents).
[3] See paragraph 30 of the Applicant’s Submissions.
It is consequently asserted by the Applicant that this constitutes a decision under s 12 of the Act. A corollary of this contention is that by reason of the fact that a “request for review” was applied for prior to 1 January 2008, the 13-week limitation period of the Act is not applicable.[4]
[4] Section 12 of the Act provides:
Deemed claim in certain cases
1. The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:
(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.
2. The person is taken to have made the claim for the new payment on the day specified in the Secretary’s determination. That day must not be earlier than:
(a) the day that is 13 weeks before the day on which the Secretary’s determination is made; or
(b) if the person became qualified for the new payment after the day referred to in paragraph (a)—the day on which the person became qualified for the new payment.
The Applicant asserts that “the review has been on foot since 5 September 2006.”[5] Additionally, he contends that a treating doctor’s report dated 19 September 2006 was lost and, by reason of this, it was never considered by the Respondent for the purposes of assessing whether he qualified for the DSP.
[5] Paragraph 32 of the Applicant’s Submissions. The facts relied on by the Applicant to contend that a review has been on foot since 5 September 2006 are canvassed in more detail later in these reasons.
SOME RELEVANT FACTS
Several relevant facts should be mentioned. These facts are not in dispute.
On 5 October 2005 the Applicant was granted a newstart allowance.
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”.[6]
[6] The report of Dr Tutton is document A1 in the T documents. On page 10 of the report Dr Tutton states: “Because of genuine medical problems the customer is unfit for any stressful work. As many people with similar problems can cope with restricted work I find that [the Applicant] is fit for full time low stress duties. During work [the Applicant] should not be required to adhere to tight schedules or have high responsibilities.”
On 6 January 2010 the Applicant was granted a DSP.
The Applicant disagreed with the decision to pay him the DSP from 6 January 2010. He considered that he should have been entitled to the DSP from 19 September 2006. Indeed, the thrust of his argument is that rather than being placed on the Newstart allowance in 2006 as he was, he should have been given the DSP as and from that date, if not beforehand. This stance taken by the Applicant is apparent throughout the documentary evidence, generated over several years since January 2010, that was tendered before the Tribunal. The Respondent consistently disputed such stance as taken by the Applicant concerning the date that his entitlement to the DSP commenced.
The Applicant sought an internal review of the decision to pay him the DSP from 6 January 2010 and not 19 September 2006. The internal review was conducted by an authorised review officer who, by a decision made on 20 April 2010, decided that the decision to grant the DSP to the Applicant from 6 January 2010 was correct under s 13 of the Act.[7]
[7] The "Decision Statement" prepared by the internal reviewer and dated 20 April 2010 is document A2 of the T documents.
The Applicant was dissatisfied with the internal review decision and applied to the then Social Security Appeals Tribunal (“SST”) for a review of the authorised review officer’s decision of 20 April 2010. On 25 March 2011 the SST affirmed the decision of the authorised review officer.[8]
[8] The SST’s "Reasons for Decision" document A2 in the T documents.
On 29 January 2013 the Applicant applied to this Tribunal for a further review of the decision for his entitlement to the DSP to commence on 6 January 2010 rather than September 2006. The application to this Tribunal was lodged together with an application for an extension of time. On 7 March 2013 Senior Member Friedman refused the application for an extension of time.
Another application for an internal review of the decision not to grant a DSP from approximately September 2006 was made by the Applicant on 22 October 2014. The further application for an internal review was rejected by an authorised review officer on 4 November 2014 on the grounds that the decision had already been considered. Therefore, the authorised review officer was unable to carry out any further review due to a lack of jurisdiction.[9]
[9] The letter of 4 November 2014 and its reasons headed "Your Review Outcome" are referred to in their entirety for their full force and effect.
Following the decision of the authorised review officer of 4 November 2014 the Applicant made another application to the SST. The SST ruled against the Applicant on 23 January 2015, affirming the decision under review.
The decision of the SST of 23 January 2015, in which it was found that there was no jurisdiction to review the start date of the Applicant’s DSP, was the subject of yet another application for review lodged on 23 February 2015 with this Tribunal. Deputy President Forgie on 8 April 2015 found the Tribunal had no jurisdiction to hear that application and dismissed it.[10]
[10] JQCC and Secretary, Department of Social Services [2015] AATA 300.
THE APPLICANT’S CONTENTION CONCERNING A REVIEWABLE DECISION
In his bundle of documents lodged with the Tribunal for the purposes of this application, the Applicant referred to a screenshot of entries recorded in the Respondent’s database on 11 July 2006.[11] The entry for that date records that, presumably after receipt of the HSA report, an impairment rating of zero was applied to each of the conditions identified by Dr Tutton on the grounds that the Applicant then had a current capacity to work in excess of 30 hours per week. It is also recorded in that screenshot that the medical certificates that had been submitted, presumably on behalf of the Applicant, were not accepted. The Applicant contends that this is a decision for the purposes of the Act.
[11] The screenshot recording entries in the Respondent's database for this date is on page 2 of the Applicant’s tender bundle of documents.
Following the “decision” on 11 July 2006 not to apply an impairment rating under the Impairment Tables to the Applicant’s conditions identified in the HSA report, the Applicant contends that he sought a review of that “decision” in a telephone call with a customer service officer (“CSO”) of the Respondent on 5 September 2006. He relies upon a screenshot of a conversation between himself and a CSO of that date.[12]
[12] The screenshot of the conversation between the CSO and the Applicant of 5 September 2006 is on page 25 of the Applicant’s tender bundle of documents.
In short, the Applicant maintains that the application for review that he made on 5 September 2006 remained unresolved for several years, despite his requests.[13] He then claims that on 28 August 2017 he made a further request in writing for an authorised review officer to complete the review that he initially sought on 5 September 2006.[14]
[13] See paragraph 10 of the Applicant’s Submissions.
[14] The letter of 28 August 2017 from the Applicant to the Respondent (page 1 of the Applicant’s tender bundle of documents). The contention to the effect alleged is also to be found in paragraph 10 of the Applicant's Submissions.
The Applicant asserts that on or about 24 March 2018 an authorised review officer agreed to complete the review that had been requested initially on 5 September 2006. In making this claim the Applicant refers to a series of entries reproduced from what would appear to be the Respondent’s database headed “ARO Notes” at pages 86-92 of his tender bundle of documents that were received in evidence during the course of this hearing.[15]
[15] See paragraph 11 of the Applicant’s Submissions.
THE RESPONDENT’S CONTENTIONS
The Respondent contends that there is no decision for this Tribunal to review in the present application because the decision of the AAT1[16] was not a decision made to affirm, vary or set aside under s 43(1) of the AAT Act.
[16] See paragraph 1 of these Reasons for Decision.
In reaching this conclusion the Respondent relies upon a construction of the relevant sections of the Act concerning reviewable decisions. It contends that the decision of the Respondent on 11 July 2006 not to apply an impairment rating under the Impairment Tables was not, in any event, a decision within the meaning of Part 4 “Internal review of decisions” and Part 4A “Review by the AAT” of the Act.
CONSIDERATION
A useful starting point in a consideration of the Applicant’s case is whether or not, in the telephone conversation between the Applicant and a CSO of the Respondent on 5 September 2006, an application was made for review within the meaning of s 129 of the Act.[17] Critically, it must also be a question of whether in that telephone conversation a request was made for a review in the same terms as the Applicant now contends, namely that there should be a review of the decision to place him on newstart allowance rather than the DSP.
[17] The language of s 129 of the Act is referred to. It does not need to be reproduced in these reasons.
The precise words recorded in the screenshot of 5 September 2006 are referred to. They record that it was the CSO who telephoned the Applicant to discuss, amongst other things, medical certificates and options. The notes record that the Applicant stated that he and his general practitioner disagreed with the current assessment that he could look for work. Nowhere in the screenshot is there any reference to the Impairment Tables or their application to the Applicant’s conditions. There is no reference to any dissatisfaction on the part of the Applicant about applying an impairment rating of zero under the Impairment Tables to each of the Applicant’s conditions (this being, it will be recalled, the “decision” for which the Applicant purportedly seeks a review in this matter). There is no reference to the DSP. Had this been a decision which the Applicant was aggrieved with, one would have expected reference being made to it by the Applicant (as he is prone to do) in no uncertain terms and recorded by the CSO. It is telling that it was not.
The screenshot also further notes that the Applicant had been referred for a Job Capacity Assessment, with an appointment scheduled for 13 September 2006. Nowhere in the words recorded on the screenshot is there any reference to a review or, even giving the Applicant the benefit of the doubt as a layman, a request for reconsideration; or some other wording that would leave the reader to conclude that a request for review in the relevant sense contemplated by s129 of the Act had been made.
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.
There was also in evidence a copy of a letter from the Commonwealth Ombudsman of 7 May 2010.[18] The Applicant made a complaint to the Office of the Ombudsman. Once again, that complaint does not touch on the same subject matter that he sought to ventilate before the Tribunal in this application or in the hearing before AAT1. The contents of that letter are referred to in their entirety. Nowhere is there reference to a claim for a DSP between the years 2006 and early 2010. Indeed, it records that on 10 December 2007 the Applicant lodged a new claim for a Newstart allowance. This fact alone is also inconsistent with the claim now pursued in this application.
[18] The letter from the Commonwealth Ombudsman consists of four pages and is to be found at pages 32-38 of the Applicant's tender bundle of documents.
Other facts consistent with the finding that there was no application on foot by the Applicant for a DSP before 12 January 2010, or indeed, on 11 July 2006 can be found in the contents of the screenshot of 11 July 2006. The screenshot records that the officer concerned took action “regarding Newstart Allowance”, not that any steps recorded there related to an application for a DSP. There is no reference to any existing application on the part of the Applicant for a DSP. Were there such an application then on foot, one would have expected to have seen a reference to it in the screenshot concerned.
At all times the Applicant has demonstrated a capacity to be very alive to advancing and protecting his interests. One would have expected when the authorised review officer conducted his review in 2010 of the decision to pay the Applicant the DSP from 6 January 2010 and not 19 September 2006, that if (as the Applicant now contends), “a request for review” of the “decision” of 11 July 2006 was made in the telephone conversation of 5 September 2006, he would have made submissions to the authorised review officer in those terms. He did not.[19] The failure to make this submission to the authorised review officer in April 2010 in the same terms constitutes an admission by conduct. It was an occasion where it was more reasonably probable that the Applicant would have submitted to the officer, as he does in this application, that a request for review had been made on 5 September 2006. The failure to do so then is evidence of an admission by conduct that there was no reviewable “decision” nor a request for a review on 5 September 2006, as he now alleges.[20]
[19] One also has to question why the Applicant did not follow up this oral request with an email.
[20] See J D Heydon, Cross on Evidence (LexisNexis, 9th ed. 2011) at [33435] “Admissions by conduct” and the authorities referred to therein. By way of example see: Thomas v Hollier (1984) 156 CLR 152 at 157 where Gibbs CJ observed that the failure to answer a letter may amount to an admission if there are circumstances which render it more reasonably probable that a man who denied the assertions made against him in the letter would answer those assertions than he would not. It just seems inconceivable in this application that the Applicant did not make the same submission to the authorised review officer in April 2010 as he did in the course of this hearing.
Another matter that arises from the Decision Statement of 20 April 2010 by the authorised review officer is the fact that once again there is no reference to the “decision” on 11 July 2006 not to apply an impairment rating under the Impairment Tables to the Applicant’s conditions as identified in the HSA report (this being the decision that the Applicant asserts he sought review of). There is also no reference in that Decision Statement to any application for review of such a decision having been made on 5 September 2006 in the telephone conversation with the CSO, as the Applicant now contends took place.
The Tribunal cannot accept the Applicant’s contention that on or about 24 March 2018 an authorised review officer agreed to complete the review that had been requested initially on 5 September 2006. An examination of the pages of the “ARO Notes” relied upon by the Applicant in support of this contention does not enable one to reach that conclusion. The Applicant was given ample opportunity to state his case. When that case was stated it was given careful examination by the Tribunal. At best, the entries contained in the ARO Notes reveal that the officer of the Respondent had reached a conclusion that there was “No Jurisdiction”. Nowhere in those notes is there any agreement to complete a review. Quite the contrary: the notes reveal that the relevant officer believed that they could not review the decision not to pay the Applicant the DSP prior to 6 January 2010.
For the sake of completeness, the Tribunal should record that it does not find, and does not have the jurisdiction to so find, that the Applicant was deemed to have been entitled to a DSP on 19 September 2006 within the meaning of s 12 of the Act.
This then also prompts a consideration of exactly when the Tribunal’s jurisdiction to entertain an application for review is enlivened. Section 142 of the Act provides that an application can be made to this Tribunal for a review of a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer or a decision under the Act made personally by the Secretary or the Chief Executive Centrelink. The “decision” relied upon by the Applicant of 11 July 2006 cannot fall within the definition of a reviewable decision in s 142 of the Act as it is not a decision of the Secretary, the Chief Executive Officer Centrelink or an authorised review officer. Also, for the avoidance of any doubt, the decisions of AAT1 and of the authorised review officer of 24 March 2018[21] that there was no jurisdiction are not decisions to affirm, vary or set aside which this Tribunal has the power to entertain.
[21] Document A5 in the T documents.
The Respondent referred to several authorities in its Outline of Submissions. It is instructive to refer to one of them. That is the decision of Deputy President Tamberlin in Yan and Secretary, Department of Social Services.[22] The contents of that decision are referred to in its entirety however the Deputy President observed:
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.
[22] [2014] AATA 294.
Whichever “decision”, step or other act relied is upon by the Applicant in this proceeding, none of them can be categorised as a decision which has been reviewed and affirmed, varied or set aside or sent back to the Secretary.
Therefore, on a true and proper construction of s 142 of the Act when applied to the facts in this matter, the Tribunal does not have any jurisdiction to entertain this application because there is no reviewable decision.
DECISION
The Tribunal determines that it has no jurisdiction to entertain this application.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron
[sgd]........................................................................
Associate
Dated: 7 May 2019
Date of hearing: 29 November 2018 Applicant: By phone Advocate for the Respondent: James Henderson Solicitors for the Respondent: Department of Human Services, Freedom of Information and Litigation Branch
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