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

This matter concerned an appeal by an applicant against a decision of the Secretary of the Department of Social Services. The applicant sought parenting payment (PP) and contended that her assessable income had been incorrectly calculated by the respondent agency. Specifically, the applicant argued that a one-off trust distribution received in the 2018 financial year had been wrongly included in subsequent annual assessments for the purpose of calculating her PP entitlement. The Administrative Appeals Tribunal (AAT) was required to determine whether the respondent agency had erred in its ongoing assessment of the applicant's income and, if so, what the consequences of that error were, particularly in light of the time limits for seeking review.

The primary legal issue before the Tribunal was whether the respondent agency had correctly assessed the applicant's income for parenting payment purposes in the years following the initial assessment. The applicant argued that a trust distribution of $34,483 received in the 2018 financial year was a one-off event and should not have been factored into subsequent annual income assessments. The Tribunal also had to consider the impact of the applicant's delay in seeking a review of the respondent's decisions, as the notices of decision stipulated that reviews must be sought within 13 weeks, and late reviews might only result in entitlements being backdated to the date of the review request.

The Tribunal found that the applicant's contention was correct: the trust distribution income should have been assessed at $nil after the initial assessment period, which concluded on 19 August 2019. However, the Tribunal noted that the applicant did not seek a review of the decisions until 8 September 2020, which was well outside the 13-week timeframe stipulated in the notices of decision. Consequently, the respondent agency reassessed the trust distribution income to $nil only from 8 September 2020 and did not make further reassessments for the period between 19 August 2019 and that date. The Tribunal affirmed the reviewable decision, acknowledging the unfortunate circumstances and suggesting the applicant consider a customer compensation claim under the Compensation for Detriment caused by Defective Administration Scheme.