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

[2023] AATA 2985

Haas and Secretary, Department of Social Services (Social services second review) [2023] AATA 2985 (21 August 2023)

Division:GENERAL DIVISION

File Number:2023/1606          

Re:Denise Haas  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:21 August 2023

Date of written reasons:        18 September 2023

Place:Brisbane

The Tribunal sets aside the reviewable decision and in substitution decides that:

(a)the Applicant’s claim for disability support pension dated 3 October 2018 granted by the Respondent upon reconsideration in accordance with the remittal and direction of the Social Services & Child Support Division dated 28 June 2022 is not affected by item 8 of section 147 of the Social Security (Administration) Act 1999 (Cth); and

(b)the Applicant can be back paid arears of disability support pension from
3 October 2018, being the date of claim.

.........................[SGD]........................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – date of effect of decision to grant DSP – where the Respondent concedes the application – decision under review is set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Member D Mitchell

Provided Orally:       21 August 2023
Written reasons:      18 September 2023

INTRODUCTION

1. On 3 October 2018, Ms Denise Haas (the Applicant) made a claim for the disability support pension (DSP). On 19 November 2018, the Applicant’s claim was rejected.  The Applicant sought review of that decision and on 20 March 2019, an Authorised Review Officer (ARO) affirmed the decision.

2. On 7 March 2022, the Applicant sought a first-tier review of that decision by the Social Services & Child Support Division of the Tribunal (SSCSD). 

3. On 28 June 2022, the SSCSD set aside the Respondent’s decision to reject the Applicant’s claim for the DSP and remitted the matter to the Respondent for reconsideration in accordance with the direction that the Applicant satisfied the requirements of sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act). The SSCSD found that subject to all other requirements of the Act being met, the Applicant was eligible to receive the DSP from the date of her claim.

4. On 25 July 2022, in implementing the decision of the SSCSD the Respondent decided to grant the Applicant the DSP from 7 March 2022, being the date that the Applicant sought review of the decision to refuse her claim for the DSP, rather than the date on which she made her claim for the DSP as she did not seek review of the decision within 13 weeks of receiving it.

5. The Applicant sought review of that decision and on 28 October 2018, an ARO affirmed the decision.

6. On 31 October 2022, the Applicant sought a first-tier review of that decision by the SSCSD. 

7. On 16 February 2023, the SSCSD affirmed the decision. 

8. The Applicant sought a second-tier review of that decision by the General Division of this Tribunal by way of an application dated 14 March 2023.

9. In June 2023, the Respondent wrote to the Applicant with proposed terms of agreement. The Respondent had conceded its previous position and sought the Applicant’s agreement to request that the Tribunal make a decision in her application pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The proposed terms of agreement provided that the date upon which the Applicant was eligible to be paid the DSP is 3 October 2018, being the date of her claim, rather than 7 March 2022.

10. The proposed terms of agreement were not signed by the Applicant.

11. On 21 August 2023, the Tribunal conducted a Directions Hearing to discuss the progression of the application.  Both the Applicant and Respondent participated in the Directions Hearing by telephone.

12. At the Directions Hearing, the Applicant explained that she had not signed the proposed terms of agreement for a number of reasons, predominately because the Respondent had not provided her with any information in relation to what the arrears payment would be and she did not trust the Respondent to take the required steps to have the agreement finalised. As such, the Applicant did not want to sign the consent agreement first and return it to the Respondent for their signature and submission to the Tribunal.

13. The Applicant expressed frustration with the Respondent and the process that she had undertaken to date in relation to her claim for the DSP. The Applicant told the Tribunal that the Respondent had admitted fault and that she wanted the Tribunal to chastise Centrelink and tell them to put forward how much arrears they think they should pay her within a certain amount of time and if she agrees then they can reach an agreement. She said that she was not trusting at all and wanted the figures within a time frame.

14. The issue before the Tribunal is whether the Applicant is eligible to be paid the DSP from the date of her claim.  The calculation of any resulting arrears is not a matter before the Tribunal. The Tribunal outlined that in this matter it did not have jurisdiction in relation to the calculation of any arrears payments that may be due to the Applicant, when they would be paid or in relation to making findings regarding the conduct of the Respondent’s officers.

15. At the Directions Hearing, the Respondent outlined that it had changed its position in relation to the date from which the Applicant was entitled to receive the DSP due to a recent decision of the SSCSD in a different matter. The Respondent provided the Tribunal with a copy of that decision. 

16. The Respondent submitted that while item 8 of section 147 of the Social Security Act 1999 (Cth) (Administration Act) would typically limit a person’s arrears payments depending on when they sought review of its decision by the Tribunal, it accepts the interpretation that item 8 of section 147 of the Administration Act does not apply where the SSCSD remits the matter to the Respondent rather than substituting a decision of its own.

17. The Respondent agreed to provide the Applicant with a printout of her DSP payment summary screen from 2018 and provide information in relation to the rates of payment from that time. The Respondent acknowledged that should the Applicant disagree with its arrears calculation she can seek review of that decision.

18. The Tribunal sought the parties views in relation to it making an oral decision giving effect to the proposed terms of agreement if it was satisfied that it was appropriate to do so. Both parties agreed to the matter being finalised in such a manner.  

19. For the reasons set out below, the Tribunal proceeded to provide an oral decision and pursuant to section 43(1)(c)(i) of the AAT Act set aside the decision of the SSCSD dated
    16 February 2023 and in substitution decided that:

    (a)the Applicant’s claim for the DSP dated 3 October 2018 granted by the Respondent upon reconsideration in accordance with the remittal and direction of the SSCSD dated 28 June 2022 is not affected by item 8 of section 147 of the Administration Act; and

    (b)the Applicant can be back paid arears of DSP from 3 October 2018, being the date of her claim.

20. On 24 August 2023, pursuant to section 43(2A) of the AAT Act, the Applicant requested that the Tribunal provide written reasons.

    REASONS FOR DECISION

21. Section 43(6) of the AAT Act has effect so that the date on which a decision of the SSCSD comes into effect would ordinarily be the date on which the original decision would have taken effect unless the Tribunal expressly determines otherwise. That general rule is however modified by section 147 of the Administration Act for the purpose of first-tier Tribunal reviews.

22. Specifically, item 8 of section 147 of the Administration Act provides:

    Subdivision C—AAT first review: relationship with AAT Act

    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

1. The Tribunal has reviewed the recent decision of the SSCSD referred to it by the Respondent. That decision considered the date of effect of a decision of the SSCSD where that decision was made pursuant to section 43(1)(c)(ii) of the AAT Act to set aside the Respondent’s decision under review and remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

2. The SSCSD in that instance, having analysed the operation of section 147 of the Administration Act formed the view that there is no express limitation under item 8 of section 147 of the Administration Act that applies in situations where it has made a decision other than to vary a decision or to set aside and made a decision in substitution.

3. Based on the Tribunal’s reading of item 8 of section 147 of the Administration Act as set out above and noting the text of item 8(c) specifically does not make reference to a decision made pursuant to section 43(1)(c)(ii) of the AAT Act to set aside a decision and remit the matter with directions or recommendations, the Tribunal accepts the Respondent’s concession in relation to the Applicant’s application as being consistent with the Act.

4. Consequently, with the agreement of the parties, the Tribunal finds that the Applicant is eligible to be paid the DSP from 3 October 2018, being the date, she made her claim.

   DECISION

5. Accordingly, the Tribunal sets aside the reviewable decision and in substitution decides that:

   (a)the Applicant’s claim for the DSP dated 3 October 2018 granted by the Respondent upon reconsideration in accordance with the remittal and direction of the SSCSD dated 28 June 2022 is not affected by item 8 of section 147 of the Administration Act; and

   (b)the Applicant can be back paid arears of the DSP from 3 October 2018, being the date of her claim.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

................................[SGD]...................................

Associate

Dated: 18 September 2023

Date of hearing:	21 August 2023
Applicant:	By Telephone
Advocate for the Respondent:	Andrew Summers
Solicitors for the Respondent:	Services Australia