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

[2022] AATA 4343

Inguanzo and Secretary, Department of Social Services (Social services second review) [2022] AATA 4343 (5 December 2022)

Division:GENERAL DIVISION

File Number:2022/4273          

Re:Pepi Inguanzo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Deputy President J Sosso

Date:5 December 2022

Date of Written Reasons:      14 December 2022

Place:Brisbane

The application for review is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Deputy President J Sosso

Catchwords

PRACTICE AND PROCEDURE – social security – disability support pension – decision reviewed by a Subject Matter Expert – decision not reviewed by an Authorised Review Officer – no jurisdiction to review decision

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Mizra and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309

REASONS FOR DECISION

Deputy President J Sosso

14 December 2022

INTRODUCTION

1. Mr Pepi Inguanzo (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) which, on 14 April 2022, affirmed a decision of a Subject Matter Expert (SME) to reject the Applicant’s claim for the Disability Support Pension (DSP).

2. The following facts are not contested:

   (a)on 17 March 2021, the Applicant lodged a claim for the DSP;

   (b)on 2 May 2021, Services Australia (the Agency) rejected the Applicant’s claim;

   (c)on 27 August 2021, the Applicant requested a review of the 2 May 2021 rejection decision;

   (d)on 3 December 2021, a SME undertook a reassessment of the Applicant’s claim and affirmed the 2 May 2021 decision;

   (e)the Applicant subsequently contacted the Agency and was provided with contact details of the Tribunal to follow up;

   (f)on 6 January 2022, the Applicant lodged an application for first review to AAT1;

   (g)on 14 April 2022, AAT1 affirmed the decision to reject the Applicant’s DSP claim (2022/B167577);

   (h)on 12 May 2022, the Applicant sought a review of the AAT1 decision in the General and other Division of the Tribunal (AAT2); and

   (i)at no stage did an Authorised Review Officer (ARO) review the initial Agency decision to reject the Applicant’s DSP claim.

3. The Secretary, Department of Social Services (the Respondent) submitted that AAT2 did not have jurisdiction to review the 14 April 2022 AAT1 decision because the Applicant’s claim had not been reviewed and determined by an ARO.

4. The sole issue before the Tribunal is whether it has jurisdiction to hear and determine the Applicant’s review application.

   STATUTORY FRAMEWORK FOR REVIEW

5. It was submitted by the Respondent, and the Tribunal accepts, that AAT2 has no general review power and is limited to reviewing decisions which are rendered reviewable by force of enabling legislation or subordinate legislation. This proposition necessarily flows from the operation of s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In addition, the Tribunal’s attention was also drawn to the decision of Mizra and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309 where the following pertinent observations were made:

   “7. Mr Mirza raised certain further issues in his Statement of Facts, Issues and Contentions (Ex A1). It appears from this statement that Mr Mirza contends that Centrelink provided inaccurate and negligent advice, and that as a result he suffered economic loss in that he had relinquished his UK pension and certain associated benefits. He further claims that Centrelink did not have his authority to complete or process an income and assets form used in conjunction with the claim for age pension form. He relies on the above matters as a defence to the Commonwealth’s claim for the debt that had been raised against him, and in addition, seeks damages from Centrelink.

   8. This tribunal has no jurisdiction to determine the matters referred to in the preceding paragraph, (except incidentally to the extent that they may be relevant to whether they constitute special circumstances for the purposes of s 1237AAD of the Act, whereby if certain statutory conditions precedent are satisfied, the Secretary, and this tribunal standing in the shoes of the Secretary, has a discretion to waive all or part of a debt). This tribunal has no inherent jurisdiction, and may only exercise the jurisdiction conferred on it by an enactment: Re Laird and Australian Broadcasting Tribunal AAT 78/122, 10 May 1979. Whilst the Social Security Act has conferred jurisdiction to determine the specific issues referred to in para 5(a) to (c) above, there is no enactment that has conferred on the tribunal jurisdiction to determine the contentions to which I referred in the preceding paragraph (except, potentially, incidentally under s 1237AAD, as mentioned above). If Mr Mirza wishes to pursue the matters referred to in the preceding paragraph he will need to do so in some forum in Australia that has jurisdiction over such matters.”

6. In this matter, the enabling statute is the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Part 4 of the Administration Act sets out, in considerable detail, the process of internal review of specified administrative decisions. Part 4A, then, deals with both first tier (AAT1) and second tier (AAT2) reviews by this Tribunal.

7. Relevantly, s 142 of the Administration Act provides as follows:

   “(1)Subject to section 144, application may be made to the AAT for review (AAT first review) of:

   (a)a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or

   (b)   a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.

   (4)   For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:

   (a)    if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision--that decision as affirmed; and

   (b)   if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision--that decision as varied; and

   (c)   if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision--the new decision.”

8. Reference can also be made to s 235 of the Administration Act which makes provision for the appointment of ARO’s:

   “The Secretary may, in writing, authorise an officer to perform duties as an authorised review officer for the purposes of the social security law.”

9. It will be noted that AAT1 is given jurisdiction to review decisions of the Respondent, the Chief Executive Centrelink or an ARO. There is no reference in s 142 to decisions of an SME. In short, whilst an SME, for the purposes of DSP claims, has, it would appear, bureaucratic authority to conduct quality checks of initial Agency decisions, this officer has not been granted statutory recognition and, specifically, has not been inserted into the statutory scheme of review.

10. Review of Agency decisions is rendered even more complex due to the fact that not only is there an extensive list of administrative decisions that are not subject to review by the Tribunal, but there are other social security statutes that have other review procedures. Specifically, it would appear that in child support matters, a SME may have some statutory authority. This situation is only mentioned because it would appear an unfortunate, but perhaps, explicable, misunderstanding of the statutory authority of a SME arose in this instance, resulting in a cascading series of errors.

11. It would appear that a SME performs a useful role from a customer viewpoint. A SME, based on information provided to the Tribunal by the Respondent, is tasked with giving an individual who does not understand an Agency decision, an independent explanation. However, a SME does not have jurisdiction or authority to undertake a formal review of an initial Agency decision, as contemplated by s 235.

    CONSIDERATION

12. It is not contested that the 2 May 2021 Agency decision to reject the Applicant’s claim for the DSP has not been reconsidered by an ARO. 

13. It is also not contested that the “reviewable decision” that AAT1 considered was the 3 December 2021 decision of the SME and that the SME in question had not been appointed an ARO for the purposes of s 235.

14. It follows from this that AAT1 did not have jurisdiction to undertake a review as there had not been a reconsideration of the initial Agency decision by an ARO.

15. As AAT1 lacked jurisdiction to review the decision of the SME, likewise, AAT2 also lacks jurisdiction to undertake a review. The Tribunal’s review powers are only enlivened by the terms of enabling legislation other than the AAT Act. In this matter, the nature and scope of the review function of the Tribunal is governed by the terms of Part 4A of the Administration Act.

16. Reference can be made to s 179 of the Administration Act:

    “(1) Application may be made to the AAT for review ( AAT second review ) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

    (2)   For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:

    (a)   if an AAT first review affirms a decision--that decision as affirmed; or

    (b)   if an AAT first review varies a decision--that decision as varied; or

    (c)   if an AAT first review sets a decision aside and substitutes a new decision--the new decision; or

    (d)   if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT--the directions or recommendations of the AAT.”

17. It will be noted that s 179 of the Administration Act, and also, s 43(1) of the AAT Act, are drafted on the assumption that AAT1 had jurisdiction and has made a reviewable decision. In this matter, AAT1 did not have jurisdiction and its decision is one that cannot be affirmed, varied or set aside by AAT2.

18. Accordingly, the Tribunal is satisfied that the decision of AAT1 is not reviewable by AAT2 as AAT1 did not have jurisdiction to make the determination of 14 April 2022.

19. The appropriate course of action is for the Applicant to request a review of the 2 May 2021 decision by an ARO. Once that process is completed, the statutory scheme of review mandated by the Administration Act can then be activated should the ARO affirm the Agency’s decision of 2 May 2021.

    DECISION

20. The application for review is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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

Associate

Dated: 14 December 2022

Date of directions hearings:	14 November 2022 and 2 December 2022
Applicant:	By phone
Solicitor for the Applicant:	Mr Samuel Harvey Services Australia