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

[2022] AATA 1778

Kuziak and Secretary, Department of Social Services (Social services second review) [2022] AATA 1778 (3 June 2022)

Division:GENERAL DIVISION

File Number(s):      2022/3548

Re:Stefan Kuziak

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:3 June 2022

Date of written reasons:        8 June 2022

Place:Sydney

The Secretary’s application for dismissal of the proceedings before the Tribunal is granted.

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

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – claim for disability support pension – dismissal application pursuant to s 42B(1)(b) – no reasonable prospect of success – no substantive claim made within relevant time period – request for review of decision not made within 13 weeks – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Freedom of Information Act 1982 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth) ss 11, 109

REASONS FOR DECISION

Chris Puplick AM, Senior Member

8 June 2022

1. This matter is an application by the Secretary, Department of Social Services (the Applicant)[1] to dismiss a claim by Mr Stefan Kuziak (the Respondent)[2] who made an initial application to have his Disability Support Pension (DSP) payments backdated and to be paid arrears to that date.

   [1] The Secretary has made an application for dismissal of Mr Kuziak’s application for review and therefore in these proceedings, is referred to as the Applicant.

   [2] While Mr Kuziak is the applicant in his application for review of his Disability Support Pension decision, he is the Respondent in the Secretary’s dismissal application.

2. This statement of reasons is given in fuller explanation of the decision of the Tribunal, announced orally on 3 May 2022 to grant that dismissal application.

3. The DSP is paid pursuant to the provisions of the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

4. The relevant facts may be set out briefly:

   ·In January 1991 the Respondent suffered a workplace accident.

   ·Sometime in 1992 he received a compensation payment of some $75,000.00. Under the Act, receipt of such compensation payment results in an applicant being “precluded” from receipt of further designated social security payments for a specified time, in this case a period of two years.

   ·On two occasions (dates not known) the Respondent attended the offices of the Department of Social Services (in one of its various manifestations over the years) in Blacktown intending to make an application for the DSP. It was his evidence, accepted by the Social Services and Child Support Division of this Tribunal (AAT1) and by this Tribunal, that he was spoken to by an officer of the Department and advised that, for some unexplained reasons, he was not eligible for the DSP and so he left the offices without making any formal claim for such payment.

   ·On 6 May 2003 the Respondent made contact, by telephone, with the Department and was advised that he could make an application for the DSP but that this should be made by 5 August 2003 and if granted, payment would be retrospective to 6 May 2003.[3] No such application was made by the Respondent.

   ·On 20 November 2006 the Respondent did submit an application for the DSP, and this was assessed and granted on 23 January 2007, backdated to the date of application.

   [3] Attachment B to the Secretary’s Submissions on Dismissal Application (Submissions).

5. A long period of time then elapsed before the Respondent returned to seek further consideration of his DSP payments:

   ·On 17 March 2021 the Respondent requested the Department to reconsider the arrangements related to his DSP which, he claimed, should have been paid at a date earlier than November 2006. He did not specify exactly what date he had in mind but suggested a date in 1994.[4]

   ·On 10 January 2022 this application was considered and rejected by an Authorised Review Officer (ARO) of the Department.

   ·On 14 April 2022 the Respondent sought a further review of this decision which however was affirmed by a decision of the AAT1.

   ·On 2 May 2022 the Respondent sought to have the AAT1 decision reviewed. In his application he gave as his reason:

   “The review has not been correctly assessed. The pension has been not made in 2006 for disability support pension. The payment is related to community treatment order in that took place in 2006. I asked my case manager to organise Centrelink payments for this reason.”[5]

   ·On 12 May 2022 the Applicant applied to this Tribunal for the application to be dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

   ·On 3 June the dismissal application was heard by the Tribunal with both parties appearing by telephone.

   [4] Tribunal documents (T-documents) at 49.

   [5] Corrected text from original. T-documents at 2.

6. In the interim, the Respondent lodged an application for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme) which is a scheme administered by the Commonwealth Department of Finance to recompense people for any losses suffered as a result of proven failure by a Commonwealth agency to act in accordance with the law. The details of this application are not directly relevant in these proceedings.

7. The Respondent also sought from the Applicant all papers relevant to his claim from 1 January 1991 to 30 December 2021 under the provisions of the Freedom of Information Act 1982 (Cth). The Tribunal understands from the evidence given by the Respondent that these papers were received by him.

   THE BASIS OF THE DISMISSAL APPLICATION

8. Paragraph 42B(1)(b) of the AAT Act provides (emphasis added):

   42B  Power of Tribunal if a proceeding is frivolous, vexatious etc.

   (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  has no reasonable prospect of success; or

   (c)  is otherwise an abuse of the process of the Tribunal.

9. The gravamen of the Applicant’s application is simple. Section 11 of the Administration Act provides:

   General rule

   (1)  Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:

   (a)  a social security payment; or

   (b)  a concession card;

   must make a claim for the payment or card in accordance with this Division.[6]

   [6] Subsections (2) and (3) are not relevant in this application.

10. Subsection 109(1) of that Act further provides:

    Date of effect of favourable determination resulting from review

    (1)  If:

    (a)  a decision (the original decision) is made in relation to a person's social security payment; and

    (b)  a notice is given to the person informing the person of the original decision; and

    (c)  within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

    (d)  the favourable determination is made as a result of the application for review;

    the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

11. The Applicant asserts that:

    (a)the Respondent did not make a claim for DSP at any time prior to 20 November 2006;

    (b)the Respondent did not, within the prescribed 13-week period, make any application for a review of the decision granting the DSP as from 20 November 2006;

    (c)hence at any hearing on the merits of his application to be paid DSP prior to November 2006 the Respondent would be bound to fail; and

    (d)it follows that the application should be dismissed as having no reasonable prospects of success.

12. The logic of the Applicant’s case is irrefutable.

13. In his oral evidence to the Tribunal the Respondent was asked directly if he had made any application for the DSP prior to November 2006 or had sought any review of the decision to grant him the DSP within the 13-week period after being notified of the decision to pay him. He answered very clearly that he had made no such applications. There is no documentary evidence which suggests that this is anything other than the case.

14. The Respondent is also under some sort of misapprehension that the issuance of a community treatment order, which was made on 21 May 2007,[7] has any relevance in these proceedings.

    [7] T-documents at 48.

15. Social security payments may only be made in accordance with the provisions of the legislation which specifies that payment is dependent upon application. In the event that no application has been made, no payment can be made. It is as simple as that.

16. Although both the AAT1 and this Tribunal may sympathise with the Respondent if he was in fact misadvised by departmental officers in 1994 and 1997 as he claims, there is nothing further that this Tribunal can do to rectify any past alleged departmental failures. The Respondent has apparently already commenced proceedings to pursue whatever rights he might have under the CDDA scheme.

    DECISION

17. The Secretary’s application for dismissal of the proceedings before the Tribunal is granted.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 8 June 2022

Date(s) of hearing:	3 June 2022
Applicant:	In person
Solicitors for the Respondent:	Mr T Chang, Services Australia