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

[2017] AATA 2289

Li and Secretary, Department of Social Services (Social services second review) [2017] AATA 2289 (11 October 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2689

Re:Xiao Li

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:11 October 2017

Date of written reasons:        23 November 2017

Place:Brisbane

The Tribunal, pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), dismisses the application for review.

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

Senior Member T. Tavoularis

CATCHWORDS

DISMISSAL APPLICATION – disability support pension – prospects of success – whether application had no reasonable prospects of success – where Applicant successfully applied for DSP in September 2015 – where Applicant sought disability support pension back-pay from September 2014 – Social Security (Administration) Act 1999 (Cth) section 147 – date of effect – back-pay cannot be granted – application has no prospects of success – application for review dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42B, 43
Social Security (Administration) Act 1999 (Cth) ss 41, 42, 147, Sch 2 Pt 2 s 3(1), Sch 2 Pt 3 Div 2 s 11

CASES

Knott and Secretary, Department of Social Services

[2015] AATA 266

Secretary, Department of Employment and Workplace Relations and Mitchell

[2006] AATA 804

REASONS FOR DECISION

Senior Member T. Tavoularis

23 November 2017

INTRODUCTION

1. This decision relates to an application by the Respondent for the present application for review of its decision to be dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). For the following reasons, I find that the Respondent’s application should be granted and thus that the Applicant’s application for review should be dismissed pursuant to s 42B(1)(b) – it has no reasonable prospects of success.

   BACKGROUND

2. In a decision dated 25 May 2016, the Respondent found that the Applicant was entitled to receive the Disability Support Pension (“DSP”) from 28 September 2015, which is the date she lodged her claim for the DSP.[1] The Applicant was dissatisfied with this, believing she should have been entitled to the DSP from 22 September 2014, which is the date when she had previously applied for the DSP. I note that this prior claim was ultimately rejected by the Social Security and Child Support Division of the Tribunal (“AAT1”), and not appealed to this Tribunal.[2] For present purposes, the frame of reference is limited to the September 2015 claim for the DSP.

   [1] T Documents, T 6, pp 59-60.

   [2] T documents, T 4, pp 23-28.

3. The Applicant appealed the Respondent’s decision,[3] and it was reviewed by an Authorised Review Officer (“ARO”). In a decision dated 18 July 2016, the ARO affirmed the Respondent’s decision.[4]

   [3] T Documents, T 7, pp 61-62.

   [4] T Documents, T 8, pp 63-67.

4. On 17 November 2016 (some 17 and a half weeks after receiving the ARO’s decision), the Applicant appealed the ARO’s decision to AAT1.[5] In a decision dated 19 April 2017, AAT1 affirmed the ARO’s decision.[6]

   [5] T Documents, T 9, pp 68-75.

   [6] T Documents, T 1, pp 3-5.

5. On 28 April 2017, the Applicant applied to this Tribunal to appeal AAT1’s decision of 19 April 2017.[7]

   [7] T Documents, T 1, pp 1-5.

   THE ISSUES

6. The Respondent has clearly determined that the Applicant qualifies for the DSP. Neither the Applicant nor the Respondent sought to dispute that. Rather, this application relies on an assessment of when the DSP was first payable to the Applicant. The Applicant argues that she is entitled to payment from the date of her initial, unsuccessful, application for the DSP – 22 September 2014. Conversely the Respondent contends that it is only liable to pay the Applicant the DSP from the date of her second, successful application – 28 September 2015. It says this is the case because the relevant legislative framework constrains its liability to commence payment of the DSP strictly from the date of the second application, at the earliest.

7. In this context, the question of whether the Applicant has no reasonable prospects of success in this matter becomes: “does the Applicant have any reasonable prospects of convincing the Tribunal that she can be paid the DSP prior to 28 September 2015?” I will discuss below why I consider the answer to this question to be in the negative.

   CONSIDERATION

8. The focus must be on the September 2015 claim for the DSP. The Applicant lodged this claim with the Respondent on 28 September 2015. She was awarded the DSP from that date. The start date for that payment of the DSP is, under the law, deemed to be 28 September 2015. This is because, under the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), the DSP generally becomes payable from the day on which the claim is made, regardless of whether the person applying for it qualifies for the DSP before they lodge their claim.[8]

   [8] See the Administration Act, ss 41 and 42, Sch 2 Pt 2 s 3(1).

9. While Schedule 2 Part 3 Division 2 of the Administration Act provides some exceptions where the start day for payment may be backdated, including where the claimant was incapacitated,[9] the Applicant has not sought to rely on any of these exceptions, and, regardless, none of those exceptions appear to be relevant here. Outside of these statutory exceptions, there is no legal basis for the Applicant receiving the DSP before the date she lodged her application with the Respondent.

   [9] Administration Act, Sch 2 Pt 3 Div 2 s 11.

10. I apprehend that where the Applicant might be confused is that she sought review of the ARO’s decision by AAT1 on 17 November 2016. This was over seventeen weeks from the date of the ARO’s decision. Even if the ARO’s decision was sent by post and so took a week longer to get to the Applicant, she still would have been applying some sixteen weeks after receiving the decision.

11. The difficulty with that is that she should have lodged that review within thirteen weeks of July 2016, which was when she received the ARO’s decision. If she had lodged the application for review of the ARO’s decision within that thirteen-week period and if that review had been successful, then she theoretically may have been able to claim the DSP earlier than September 2015. However, because she missed the thirteen-week deadline, and because, in any event, that review application was not successful, she cannot get the DSP any earlier than September 2015.[10]

    [10] With respect to decisions made by the AAT1, s 147 item 8 of the Administration Act has this effect: where there are more than thirteen weeks between the receipt of an ARO decision and the lodging of an appeal with AAT1, it limits the date of effect of a decision in favour of the Applicant by AAT1 to the date the person first applied to AAT1 for review of the ARO decision. This is analogous to the former s 152 of the Administration Act (since repealed), and restricts the operation of s 43(6) of the AAT Act, which otherwise provides that the date of effect of a decision by the Tribunal is the date the original decision was made. See the discussion of this in Knott and Secretary, Department of Social Services [2015] AATA 266 at [15]-[20] per SM McCabe (as he then was), citing Secretary, Department of Employment and Workplace Relations and Mitchell [2006] AATA 804 at [59] per DP Jarvis.

12. Because the application to AAT1 was made on 17 November 2016, and on that date, the Applicant was already in receipt of the DSP, this matter has no reasonable prospects of success. Even if the Tribunal were to allow the Applicant to continue with her application, it is statutorily prevented from giving her the DSP before that time. The best possible result for the Applicant, were she to be allowed to further ventilate this application, is for her status not to change.

13. To be frank, the undeniable result of this position is that there is simply no means by which the Tribunal can provide to the Applicant the remedy she seeks. Thus there are no reasonable prospects of success for the Applicant before the Tribunal; it is simply not within my power to grant the Applicant the DSP from any time before 28 September 2015.

    DECISION

14. The application numbered 2017/2689 is therefore dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospects of success.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated: 23 November 2017

Date of hearing:	11 October 2017
Applicant:	In person
Advocate for the Respondent:	Ms Jasmine Forsyth