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

[2021] AATA 3812

Guinane and Secretary, Department of Social Services (Social services second review) [2021] AATA 3812 (12 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/4128

Re:Mr Craig Guinane

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date of decision:               12 October 2021

Date of written reasons:         19 October 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success. The Tribunal, pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, dismisses the application.

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

Ms A E Burke AO, Member

Catchwords

SOCIAL SECURITY –– oral decision – start date – applicant already in receipt of DSP – no review lodged of ARO decision within 13 weeks – effect of item 8 section 147 of Administration Act– any favourable decision may only take effect from date review lodged – this date after Applicant in receipt of DSP – review therefore futile – application dismissed as no reasonable prospects of success.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases

Mitchell and Secretary, Department of Employment and Workplace Relations (2006) 92 ALD 201
Yang and Secretary, Department of Social Services [2018] AATA 3009

Secondary Materials
Guide to Social Security Law, Department of Social Services

REASONS FOR DECISION

Ms A E Burke AO, Member

19 October 2021

1. Mr Guinane (the Applicant) is seeking a second-tier review of the decision made by the Social Services and Child Support Division of this Tribunal (AAT1) of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (the Act).

2. Mr Guinane lodged a claim for the DSP on 2 May 2016, which Centrelink rejected on 20 June 2016, as he had not completed a program of support. On 18 August 2016, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Mr Guinane sought review of the decision by the ARO at AAT1, which affirmed the decision on 8 June 2021. Centrelink is the service provider for the then Department of Human Services, now Services Australia.

3. At the hearing of this dismissal application by videoconference on 12 October 2021, Mr Guinane was self-represented and Ms Olivia Hicks of the Australian Government Solicitor appeared for the Respondent.

4. The Tribunal made an oral decision to dismiss Mr Guanine’s application as it was futile. Mr Guinane subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These are those reasons.

   BACKGROUND

5. On 2 May 2016, Mr Guinane lodged a claim for the DSP which Centrelink rejected on 20 June 2016 as he had not actively participated in a program of support, pursuant to the requirements of section 94(2)(aa) of the Act.

6. On 18 August 2016, an ARO reviewed the decision not to grant Mr Guinane the DSP:

   Your total impairment rating is therefore 20 points.

   To demonstrate a continuing inability to work, you must either have a severe impairment, which is an impairment that has been given 20 points or more under a single Impairment Table, or you must have actively participated in a program of support in the 36 months prior to your claim being lodged on 2 May 2016.

   As none of your conditions have been assigned an impairment rating of 20 points under a single Table, I have found that you do not have a severe impairment.

   A program of support is a program designed to help you to prepare for, and find or maintain work, taking into account your medical conditions, level of impairment and individual needs. These programs are usually funded by the government.

   Active participation means participation for 18 months during the previous three years (there are some exceptions). However, none of the exceptions removes the need for the person to have at least commenced in a program of support during the three years before claiming the disability support pension. I note that you commenced a program of support with Max Employment Support Service on 28 June 2016, which was after the lodgement of your claim.

   A person can also be considered to have met the requirement to participate in a program of support if they were participating in a program at the time of their claim and their provider indicated that they were unable to improve their capacity for work through continued participation in the program.

   I am able to consider whether you became qualified for Disability Support Pension within the 13 week period after you lodged your claim as you commenced your program of support within the 13 week period after your claim was lodged.

   On 14 July 2016 Jasmine Sidarta from Max Employment completed an ‘Information about participation in a program of support’ form. Jasmine indicated in this form that you had not been provided with a program of support in the previous 3 years. Jasmine confirmed in our discussion on 18 August 2016 that she had met with you twice and at this time she believed that they would be able to improve your capacity for work through continued participation in your program.

   I have therefore found that you do not meet the program of support requirements.

7. On 8 January 2019, following a subsequent application, Mr Guinane was granted the DSP.

8. On 8 June 2021, the AAT1 affirmed the decision of the ARO to reject Mr Guinane’s DSP claim, stating:

   Having considered all the evidence before it, the tribunal finds that Mr Guinane's medical conditions attract a total impairment score of 10 points, less than the 20 point minimum required under the Act. Thus Mr Guinane does not satisfy paragraph 94(1)(b) of the Act and he was not qualified for disability support pension at the date of claim. The tribunal was not required to address the issue of whether Mr Guinane has a continuing inability to work.

9. On 22 June 2021, Mr Guinane sought a review of the AAT1 decision by the General  Division of this Tribunal (AAT2) as he disagreed with the decision, stating: “The decision is wrong and a different decision should have been in that some information was not taken into account, and I will be able to provide further evidence to prove that the decision was incorrect”.

   ISSUE IN CONTENTION

10. The issue for determination before the Tribunal is whether Mr Guinane’s application for review has any prospect of success.

    EVIDENCE

11. The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the AAT Act, referred to as the “T documents”. Mr Guinane provided oral evidence at the hearing.

    RELEVANT LEGISLATION

12. Section 147 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) outlines what is commonly referred to as the 13-week rule. Section 147 of the Administration Act modifies the application of the AAT Act, such that if an Applicant is properly notified of the decision under review and does not apply for review to the AAT1 within 13 weeks after that notice was given, section 43(6) of the AAT Act has effect as if the decision under review is taken to come into effect on the day the applicant applied for AAT first review.

    147 Application and modification of AAT Act

    For the purposes of AAT first review under this Division, a provision of the AAT Act listed in an item of the following table is disapplied or modified as set out in that item, in relation to the decision or matter under this Act set out in that item.

Application and modification of AAT Act
Item	Decision or matter	Provision of AAT Act	Application or modification of provision of AAT Act
8	Date of effect of decision on AAT first review, other than an AAT decision in relation to an employment pathway plan decision	Subsection 43(6) (AAT’s decision taken to be decision of decision‑maker)	The subsection has effect as if the decision under review had taken effect on the day a person applied for AAT first review of the decision, if: (a) the person is given written notice of the decision under the social security law; and (b) the person applies for AAT first review more than 13 weeks after the notice was given; and (c)  on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision; and (d) the effect of the AAT’s decision is: (i) to grant the person’s claim for a social security payment or a concession card; or (ii)  to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or (iii) to increase the rate of the person’s social security payment

CONTENTIONS

1. Mr Guinane contended that he should have been granted the DSP from the date of his original claim, 2 May 2016, as he was granted the DSP on 8 January 2019 on the basis of the same conditions, medical evidence and level of impairment. He argued he was entitled to full payment of arrears of the DSP from 2 May 2016 to 8 January 2019.

2. Mr Guinane submitted that he failed to appeal the ARO’s decision of 18 August 2016 as he was unaware of his right of review to the AAT and did not have the physical or mental capacity to pursue a review at that time.

3. Mr Guinane advised the Tribunal that during his DSP application he requested on numerous occasions that Centrelink refer him to a Centrelink doctor to assess his medical condition, but they refused to do so. Mr Guinane advised that when he was eventually seen by a Centrelink doctor, he was granted the DSP in 2019.

4. Mr Guinane strenuously argued that Centrelink had a moral obligation to inform him of his appeal rights, but they had failed to do so. Mr Guinane was adamant that his situation was fundamentally unfair, and he could not comprehend why he would not be entitled to back payments if his application for review was ultimately successful.

5. The Respondent contended that by operation of item 8 of section 147 of the Administration Act, Mr Guinane’s application for review was futile and should be dismissed under section 42B(1)(b) of the AAT Act, as it has no reasonable prospect of success.

6. The Respondent argued that Mr Guinane had been properly notified of the ARO’s decision to reject his DSP claim and informed of his further appeals rights in the letter of 18 August 2016.  The letter was posted to his home address which he nominated as his postal address on his DSP claim form.

7. The Respondent submitted that the ARO’s letter clearly advised Mr Guinane of his review rights and the necessity to seek a review within 13 weeks. The letter states:

   If you do not agree with this decision

   You can request an independent review by the Administrative Appeals Tribunal (AAT). If you do not agree with an AAT decision, you may be able to appeal further.

   You can contact the AAT by going to their website aat.gov.au where you can apply for a review online, or by calling them on 1800 228 333.

   All of the above are free of charge.

   It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.

8. The Respondent argued that as Mr Guinane applied to the AAT for review on 14 April 2021, he had not applied for review within 13 weeks after he was properly notified of the ARO’s decision. The Respondent contended, even allowing for the ordinary course of the post as required by section 237(3) of the Administration Act, Mr Guinane had applied for review over 4 years and 4 months outside of the 13 week-period.

9. Accordingly, the Respondent contended that as Mr Guinane had not applied for review within 13 weeks, item 8 of section 147 of the Administration Act was enlivened and he would only be entitled to receive back pay from the date he applied for review to the AAT1, being 14 April 2021, as the decision under review is taken to have come into effect on that day.

10. The Respondent argued that even if Mr Guinane received a favourable outcome from the AAT2 to grant him the DSP, he would receive no actual benefit in the form of backpay, as  he has been in receipt of the DSP for over two years by that time, since 8 January 2019.

11. The Respondent submitted that while the AAT1 had not considered item 8 of section 147 of the Administration Act, this section nevertheless applies. The Respondent referred to Deputy President Jarvis’ decision in Mitchell and Secretary, Department of Employment and Workplace Relations (2006) 92 ALD 201 at 213 [59] when considering the previous s 152(4), which is substantially in the same form as the current item 8 of section 147:

    Where (as in the present situation, by virtue of the AAT Act) this Tribunal stands in the shoes of the SSAT [now the AAT1], and has the same powers and discretions as the SSAT, and its decision is deemed to be that of the SSAT, the specific constraint in subsection 152(4) on the effective date of the deemed SSAT decision should, in my view, prevail over the discretion to order retrospectivity contained in subsection 43(6), which is a provision of general application. In resolving the apparent conflict between the two provisions, it is also significant that the specific provision, subsection 152(4), does not literally refer to the effective date of the SSAT decision, but refers in terms to how the social security law is to have effect.

12. The Respondent also referred to Senior Member Morris’ discussion of these provisions in Yang and Secretary, Department of Social Services [2018] AATA 3009. The Respondent submitted that Mr Yang’s circumstances were the same as that of Mr Guinane. Mr Yang also failed to apply to the AAT1 within 13 weeks of the ARO’s decision and was in receipt of DSP by the time he applied for review. The Respondent submitted Senior Member Morris found Mr Yang’s application for review to be futile because even if the Tribunal found in his favour, he could receive no benefit from any such decision due to the date he applied for review. The Tribunal at [23]-[26] therefore dismissed the application under s 42B(1)(b) of the AAT Act, being satisfied that it had no reasonable prospects of success:

    It is therefore evident to the Tribunal that Mr Yang did not apply to the SSAT within 13 weeks of the 12 February 2013 decision. In addition, Mr Yang did not apply for review by the Social Services and Child Support Division of the Tribunal of the ARO2 decision dated 3 March 2017, which stated that the ARO did not have jurisdiction to review the 12 February 2013 decision.

    The provisions of section 152(4) of the Administration Act (as then in force) applied in relation to the 12 February 2013 decision. Section 147 of the Administration Act (as in force at 3 March 2017) applies in relation to the 3 March 2017 decision.

    Mr Yang was granted DSP in 2017 with a start date of 21 April 2016. Because of the effect of section 152(4) of the Administration Act, any favourable decision in relation to his earlier claims could not, by force of law, take effect before 20 March 2017. As this is a date some 11 months after Mr Yang had commenced receiving DSP payments, the Tribunal finds that the review is futile. Even if the Tribunal were to find in his favour, Mr Yang can receive no benefit from any such decision because of the date he lodged his application for review. The Tribunal explained this to the Applicant at the conclusion of the hearing.

    DECISION

    The Tribunal dismissed the application under section 42B(1)(b) of the AAT Act, being satisfied that it has no reasonable prospects of success.

    CONSIDERATION

13. The Tribunal found Mr Guinane had been properly notified of the ARO’s decision to reject his DSP claim and his further review rights in the letter of 18 August 2016. The Tribunal notes that Mr Guinane does not dispute that he received the letter but is adamant that Centrelink had fallen short of their moral obligations by failing to verbally advise him of his further review rights.

14. The Tribunal found Mr Guinane failed to lodge a claim within 13 weeks of the receipt of the letter containing the ARO’s decision. The Tribunal found Mr Guinane had lodged his appeal more than four years after the ARO rejected his original DSP claim and some two years after he was granted the DSP.

15. The Tribunal therefore found that in accordance with item 8 of section 147 of the Administration Act, Mr Guinane would be barred from receiving backpay, even if his claim was successful, and determined to dismiss the application on the basis of there being no reasonable prospects of success.

16. The Tribunal was sympathetic to Mr Guinane’s argument about the fundamental injustice of his situation, however,  the Tribunal determined it would be futile to entertain Mr Guinane’s appeal as it would be putting Mr Guinane, the Respondent, the Tribunal and ultimately the taxpayer through a costly process which, regardless of the outcome, would result in no financial benefit to Mr Guinane.

17. Additionally, the Tribunal was mindful that any substantive hearing would be stressful for Mr Guinane on many levels, particularly as it would require him to remember and recount his functional capacity as it was in August 2016 during the qualification period. The Tribunal determined it was an unnecessary burden to place on Mr Guinane to undertake such a hearing as regardless of the outcome, the Tribunal would have no capacity to award Mr Guinane any arrears in respect of his DSP due to the application of item 8 of section 147 of the Administration Act.

18. While the Tribunal did not explore in detail the merits of Mr Guinane’s claim for DSP on 2 May 2016, it did discuss with Mr Guinane that his DSP claim had been rejected on the basis of his failure to complete a  program of support and not due to his medical conditions. The ARO’s notes of 18 August 2016 record their discussion with Mr Guinane:

    18.08.16 rang and spoke to customer as follows:

    ·     explained who I was and why I was calling

    ·     talked about why his claim had not been successful

    ·     he knew that it was because he had not completed a POS

    ·     he was working prior to lodging his claim

    ·     he said that he demanded to see a Centrelink doctor as he can’t do what he was previously doing and the Assessor was not medically qualified

    ·     spoke at some length about the Tables and 20 point impairment rating

    ·      he is going to see his neurologist who will give him a letter to say he can no longer undertake his job

    ·     I explained that this was the purpose of POS, to be reskilled for alternative work

    ·     Explained that I was going to affirm the decision

    ·     Talked about the further appeal and reclaim options particularly regarding POS and being exited prior to a claim

    ·     Customer was not happy with the decision

    ·     I said that I would send him a copy of Tables 2 and 3

19. The Tribunal explained to Mr Guinane that it is not the Tribunal’s task to make a clinical assessment of a person’s illness or disability, as medical practitioners are required to do. The Tribunal’s task is to decide whether particular descriptors are satisfied as stipulated in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The grant of a DSP is not on the basis that a person has a particular diagnosed condition, but on an assessment of functional limitations a diagnosed condition has on an individual which results in them having a continuing inability to work.  Therefore, the purpose of the Impairment Tables, which are a legislative instrument to which the Tribunal must have regard, is to assess that inability to work, which is done by setting out functional abilities.  This may not be a perfect measure of a person’s functional impairment, but it is the one that the Tribunal is obliged to follow.

1. The Tribunal further explained to Mr Guinane that the granting of DSP is also assessed on an individual’s inability to continue to undertake any form of employment. The Tribunal also notes for completeness the Guide to Social Security Law at section 3.6.3.05 outlines the equal importance of impairment and continuing inability to work in determining eligibility for the DSP:

   The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.

   Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance.

   Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied.

   Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.

2. The Tribunal notes the decision of Deputy President Jarvis in Mitchell at 212-213 [56]-[58], [62], where he observed that like Mr Guniane, Mr Mitchell was already in receipt of the DSP and any decision would have no practical utility and would not result in any entitlement to arrears for DSP:

   In cases where an application is lodged with the SSAT more than 13 weeks after the applicant has been given written notice of the ARO’s decision, subsection 152(4) of the Administration Act provides that the social security law has effect as if the decision under review (being in this case the ARO’s decision) had taken effect on the day of lodgement of the application. In the present case, that date is 15 February 2006, being the date of Mr Mitchell’s (belated) application to the SSAT. By then Mr Mitchell was already receiving the DSP, and so the setting aside of any decision made nearly 3 years earlier to suspend his DSP would not have any practical utility, and would not produce any entitlement to arrears or DSP.

   The apparent purpose of the restriction on retrospectivity by virtue of subsection 152(4) of the Administration Act, and of a corresponding restriction in subsection 109(2) in relation to decisions of an ARO, is to limit the total liability of the Secretary if a person delays pursuing his or her claim for longer than the periods of 13 weeks referred to in those subsections. Further, the subsections have the effect of requiring persons who are making claims to pursue their rights of review promptly. In the case of applications for arrears of pension, where the pension is later reinstated as occurred in the present case, the subsections operate in the same way as a statute of limitations, and effectively bar the claimant from entitlement.

   The constraint in subsection 152(4) of the Administration Act on the operative date of a decision of the SSAT is in conflict with the discretion in subsection 43(6) to give the deemed decision of the person whose decision is being reviewed a retrospective effect. However, it is a well-established principle of statutory interpretation that a specific section will override an inconsistent general section, especially where the general section is contained in a separate earlier Act which is of general application: D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) at [4.32], [7.18], [7.21] and [7.26] – [7.31]. In applying that principle, I am mindful that in the case of the Administration Act, Parliament has made provision for appeals to this Tribunal, and has made certain specific amendments to the AAT Act. However, the Administration Act did not amend subsections 43(1) or (6) of the AAT Act.

   ……

   It follows from my above conclusions that I am not empowered to make any order that would result in Mr Mitchell being entitled to recover the arrears of the DSP for the periods from 11 March to 27 May 2003, or from 27 May to 7 October 2003, notwithstanding my view that Centrelink should not have made either the suspension decision or the cancellation decision.

3. The Tribunal dismissed Mr Guinane’s application in accordance with section 42B(1)(b) of the AAT Act, being satisfied that it has no reasonable prospects of success. The Tribunal found that given the effect of item 8 of section 147 of the Administrative Act, and as Mr Guinane has been receiving DSP payments for two years, a review would be futile, as even if the Tribunal were to find in his favour, Mr Guniane can receive no benefit from such a decision because of the date he lodged his application for review.

   POSSIBLE RECOURSE FOR THE APPLICANT

4. The Tribunal addressed the prospect of Mr Guinane seeking redress by making a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA), which is administered by the Department of Finance. Defective administration is defined as:

   a specific and unreasonable lapse in complying with existing administrative procedures; or

   an unreasonable failure to institute appropriate administrative procedures; or

   an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or

   giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.

5. Mr Guinane advised the Tribunal that he was aware he could pursue CDDA as an avenue to seek compensation and advised he had obtained the relevant information needed to lodge a claim under the CDDA scheme.

6. The Tribunal   explained to Mr Guinane that he could only pursue a claim for CDDA as an avenue of last resort, when all other avenues of redress have been exhausted.

7. 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 advised Mr Guinane that it had no jurisdiction in respect of perceived defective administrative matters of the Department and had no jurisdiction over the administration of the CDDA scheme.

8. Whilst the Tribunal advised Mr Guinane that it had no way of assessing whether a claim under the CDDA would be successful, it nevertheless encouraged him to lodge an application. The Tribunal concurred with Mr Guinane that this was the only means he had to seek redress for his perceived injustice as the legislation prevents him from obtaining any back payment for DSP.

   DECISION

9. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

   The Tribunal, pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, dismisses the application.

41.     I certify that the preceding 40(forty) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member

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

Associate
Dated: 19 October 2021

Date of hearing:

12 October 2021

Applicant:

Self-Represented

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Olivia Hicks

Australian Government Solicitor