JOHN HASSETT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 463

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 463

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1335

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN HASSETT

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date 24 June 2009

Place Brisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – farm help income support – eligibility for farm help re-establishment grant – exclusionary provisions held to apply – decision under review affirmed

Farm Household Support Act 1992 (Cth), s 52A

Farm Help Re-establishment Scheme 1997 (Cth), cl 2.1A

Social Security (Administration) Act 1999 (Cth), ss 140,144

Administrative Appeals Tribunal Act 1975 (Cth), s 25

Re Strauss and Secretary Department of Family and Community Services [2005] AATA 608

REASONS FOR DECISION

24 June 2009 M J Carstairs, Senior Member

1.      John Hassett has been refused payment of a grant payable to eligible farmers upon the sale of their farm enterprises. 

2.      Mr Hassett ceased farming in 2007.  However, since 1999, he has been receiving disability support pension from Centrelink, and age pension since 2007.  In other words, when he claimed in 2007, Mr Hassett had been receiving social security payments for some eight years. 

3.      The legislative provisions are such that a person is not eligible for a re-establishment grant, if, for the equivalent of 12 months or more in the two years immediately before applying for the grant, that person receives a social security payment. 

4.      Accordingly, and on these grounds, Centrelink rejected Mr Hassett’s claim for the grant, citing that Mr Hassett had received 12 months’ cumulative Commonwealth income support payments in the previous two years[1].

[1]        T15.

5.      This outcome was affirmed on review by the Social Security Appeals Tribunal.  Since lodging his application to this Tribunal, Mr Hassett sought an exercise of ministerial discretion in relation to his application for Farm Help.  The Minister subsequently refused to exercise the discretion[2].

[2]        Annexure “B” to the Respondent’s Statement of Facts and Contentions.

LEGISLATION

6.      Mr Hassett’s case requires some consideration of the Farm Household Support Act 1992 (“the Act”) and the legislative instrument formulated under it – the Farm Help Re-establishment Scheme 1997 (“the Scheme”).  Under the Act, the Minister was empowered to formulate the latter Scheme, in writing, by way of disallowable instrument: s 52A(1). It is helpful to set out the relevant provision in the Act in full:

52A  Farm help re‑establishment grant scheme

(1)       The Minister may, by written instrument:

(a)       formulate a scheme:

(i)to encourage farmers who are unable to meet their living expenses to leave farming; and

(ii)       to achieve this end by providing payments to those farmers, to be made after 1 December 1997, by way of grant of financial assistance on the sale of farm enterprises; and

(b)       provide for the implementation and regulation of the scheme.

On and after the farm help scheme payment commencement day, the scheme is to be known as the farm help re‑establishment grant scheme and a grant is to be known as a re‑establishment grant.

7.       The Scheme as formulated – bearing in mind that the Minister had the power to determine aspects of qualification (s 52A(2)(a) and of payability (s 52A(2)(c)) – mandated as a qualification requirement that a person, in the two years prior to applying for the grant, not be ineligible for “farm help income support”.   

8.      There were several bases upon which one would be ineligible for farm help income support.  To find these, one had to return to the Scheme which provided that a person would not be eligible for farm help income support if receiving (amongst other things) a “social security pension” for a period of 12 months of the two years preceding the claim.

9.      Mr Hassett does not dispute that from 1999, until he became eligible for age pension in 2007, he was receiving disability support pension.  It is clearly the case that in that time he has suffered significant ill health which has led to repeated medical interventions and surgery.  This was amply attested to by his surgeon, who wrote supporting his claim.  But what cannot be ignored is that for the two years preceding the claim, Mr Hassett was a person rendered ineligible under the provisions spelled out in this legislative scheme, simply because he was receiving a social security pension.

10. On any reading of the provisions, there being no discretion available in the Act or the Scheme, Mr Hassett could not later become eligible for the grant. Indeed, Mr Hassett, in a written submission to the Social Security Appeals Tribunal had acknowledged that his receipt of disability support pension and age pension ruled him out under the exclusionary provisions in clause 2.1A(b)(i) of the Scheme[3].

[3]        T21 at p 88.

THE MINISTER’S DISCRETION

11.     However, the written submission to the Social Security Appeals Tribunal further urged the appropriateness of a favourable consideration of the claim, under section 2.1A(3) of the Scheme.

12.     That clause provided that:

..the Minister may allow a person who received a benefit or pension mentioned in subsection 12(1) of the Act to apply for a re-establishment grant if, in the 2 years before applying for the grant:

(a) the person was affected by an unforeseeable event; and

(b) the person applied for the benefit or pension because the event prevented the person engaging in farming work.

13.     As already stated, Mr Hassett has sought, and was refused, an exercise of the Ministerial discretion.  That refusal – even putting to one side the jurisdictional problem that the Minister’s refusal postdates Mr Hassett’s application to the Tribunal – is not reviewable by this Tribunal.  The powers available to the Minister are not powers that have been extended to the Tribunal.

14.     The reason for this is that the Tribunal’s jurisdiction is not at large, but comes by reference under other enactments[4].  With reference to the subject matter here, Mr Hassett’s claim for the grant comes to this Tribunal by way of powers extended under the Social Security (Administration) Act 1999 (“the Administration Act”). Section 140(1)(d) of the Administration Act provides for review of decisions of ”officers” under the Act.  Section s144 of the Administration Act specifically excludes from review the Minister’s decisions.

[4] Section 25 of the Administrative Appeals Tribunal Act 1975.

15.     If more were required than these clear statutory provisions, the analysis provided by the Tribunal’s President, Downes J, in Strauss and Secretary Department of Family and Community Services [2005] AATA 608 (dealing with an analogous issue – a power was exercisable by “the Secretary” under the Social Security Act) is apposite.  With reference to the Tribunal’s powers, which are the powers and discretions available to the original decision-maker, Downes J observed that it is fundamental that the Tribunal cannot exercise a power that the original decision maker did not have. “Officers” did not have the power to make the decisions reserved to the Minister under the Scheme and neither does this Tribunal.

16.     It is plain, therefore, that the Minister’s discretion under clause 2.1A(3) was not one exercisable by, nor reviewable by, this Tribunal.

DECISION

17.     Accordingly, I must affirm the decision under review, and conclude therefore that Mr Hassett was not eligible for payment of the farm help re-establishment grant.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:.........................[sgd].............................................
  Emily Clarke, Associate

Hearing on the papers
Date of Decision  24 June 2009
The Applicant   Self-represented      
Advocate for the Respondent        Mr J Guthrie