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

This matter concerned an application by the Secretary, Department of Social Services (the Respondent) to dismiss the Applicant's application for review of a decision concerning her entitlement to a Disability Support Pension (DSP). The Applicant had been awarded the DSP from 28 September 2015, the date she lodged her successful claim. However, she sought payment from 22 September 2014, the date of a previous, unsuccessful claim for the DSP. The Administrative Appeals Tribunal (the Tribunal) was asked to determine whether the Applicant had any reasonable prospects of success in convincing the Tribunal that she could be paid the DSP prior to 28 September 2015.

The Tribunal was required to consider the legislative framework governing the commencement date of DSP payments. Specifically, it needed to determine if the Social Security (Administration) Act 1999 (Cth) permitted payment of the DSP from a date earlier than the lodgement of the successful claim, notwithstanding the existence of a prior unsuccessful claim. The central legal issue was whether the Applicant could establish a right to back-payment of the DSP from her initial unsuccessful application date, or if the law mandated payment only from the date of the successful claim.

The Tribunal reasoned that under the Social Security (Administration) Act 1999 (Cth), DSP generally becomes payable from the day a claim is made. While certain statutory exceptions exist for backdating payments, such as incapacitation, the Applicant had not relied on these, nor did they appear relevant. The Tribunal noted that the Applicant's attempt to appeal a prior Authorised Review Officer's decision was lodged significantly outside the prescribed thirteen-week timeframe. This procedural failure, coupled with the fact that the prior claim was unsuccessful and not successfully appealed within the relevant timeframes, meant there was no legal basis for the Applicant to receive the DSP before 28 September 2015. Consequently, the Tribunal concluded that the Applicant's application had no reasonable prospects of success.

The Tribunal ordered that the Applicant's application for review be dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) on the grounds that it had no reasonable prospects of success.