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

Lowth and Secretary, Department of Social Services (Social services second review) [2021] AATA 3626 (11 October 2021)
Division: GENERAL DIVISION
File Number: 2021/5488
Re:Anthony Lowth
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date of decision: 11 October 2021
Place:Brisbane

The Tribunal dismisses the application for review pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
..............[SGD]..................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – rate of payment – request for review of initial decision not made within 13 weeks – date of effect of a favourable decision
PRACTICE AND PROCEDURE – role of the Tribunal – application for dismissal of application for review – frivolous or vexatious or no prospects for success – no utility in review – favourable decision would have no practical benefit for the Applicant – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
CASES
Flahive and Comcare (Compensation) [2021] AATA 2444
McCarthy and Building Practitioners Board [2016] AATA 1029
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Shah and Child Support Registrar (Child Support) [2020] AATA 2644
Stanley and Minister for Foreign Affairs [2018] AATA 982
Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57

REASONS FOR DECISION
Member D Mitchell
11 October 2021
INTRODUCTION

On 10 August 2021, Mr Anthony Lowth (the Applicant) sought a second-tier review[1] of a decision made by the Social Services and Child Support Division (SSCSD)[2] on the same day.
[1] T Documents, T2, pages 4-8, Application for review.
[2] T Documents, T3, pages 12-16, Decision of the SSCSD.
BACKGROUND
The decision the Applicant is seeking to be reviewed relates to a decision made by the Respondent on 21 November 2018 to reduce his rate of disability support pension (DSP) on the basis that his received lump sum totally and permanently disabled (TPD) insurance payment of $27,166.67 (TPD superannuation lump sum) was assessed as annual income.[3]
[3] T Documents, T7, pages 76-77, Email correspondence with Policy Help Desk; T13, pages 91-96, Decision and Notes of Authorised Review Officer and T18, pages 119-125, Centrelink Contact Notes.
The Applicant’s rate of DSP was reduced on that basis for the period 20 November 2018 to 19 November 2019.
The Applicant was advised of this decision by letter dated 21 November 2018.[4] The Applicant was provided with further letters in relation to his rate of DSP on 30 April 2019, 16 May 2019, 16 July 2019 and 30 September 2019.[5] Each notice set out the following:
[4]     T Documents, T8, pages 78-80, Decision: Your Disability Support Pension.
[5]     T Documents, T17, pages 107-118, Centrelink letters to the Applicant for the period 21 November 2018 to 30 September 2019.
If you do not agree with a decision we have made
·     Contact us so that we can check the details and explain the decision.
·     Contact us and ask for a review of the decision. We will change it if it is wrong.
·     Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.
·     If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au
All of the above is free of charge.
If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.
There is no time limit for a view of a decision about money you owe us. However you may have to pay back the money while the decision is being review.
In November 2019, the Respondent assessed the second lump sum TPD superannuation payment as a super withdrawal and not as income.[6]
[6] Secretary’s Outline of Submissions, page 2, paragraph 12.
On 27 May 2021, the Applicant contacted the Respondent and queried his rate of DSP.[7] This is the date on which it has been accepted that the Applicant first sought review of the rate of DSP he received during the period 20 November 2018 and 19 November 2019.
[7] T Documents, T18, page 124, Centrelink Contact Notes.
On 16 June 2021, the Applicant sought formal review of the decision.[8] On the same day an authorised review officer (ARO) reviewed and affirmed the decision to pay the Applicant a reduced rate of DSP from 20 November 2018.[9] The ARO found that although the original decision was incorrect and that the TPD superannuation lump sum payment should not have been assessed as income, the Applicant could not be paid an increased rate of DSP for the period in question in circumstances where he did not seek review of that decision within 13 weeks of receiving notice of that decision.[10]
[8]     T Documents, T12, pages 88-90, Centrelink Contact Notes.
[9]     T Documents, T12, pages 88-90, Centrelink Contact Notes; T13, pages, 91-96, ARO decision and notes.
[10]    T Documents, T13, pages 91-96, ARO decision and notes.
The Applicant applied to the SSCSD[11] for further review and on 10 August 2021 the SSCSD affirmed the decision.[12] The SSCSD agreed with the findings of the ARO and drew the Applicant’s attention to the Compensation for Detriment caused by Defective Administration Scheme (CDDA Scheme).
[11] T Documents, T14, page 97, Request for statement.
[12] T Documents, T3, pages 12-16, Decision of the SSCSD.
On 10 August 2021, the Applicant applied to this Tribunal for further review.[13]
[13] T Documents, T2, pages 4-8, Application for review.
On 23 September 2021, the Respondent requested that the Tribunal conduct an Interlocutory Hearing to consider dismissing the Applicant’s application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application has no reasonable prospects of success. The Respondent provided written submissions in that regard, dated 28 September 2021.
A Telephone Interlocutory Dismissal Hearing was conducted in this matter on

8 October 2021.
It should be noted that at all relevant times the Applicant was in receipt of DSP. By

27 May 2021, the Applicant was being paid the full rate of DSP.
ISSUES
The present issue before the Tribunal is whether the Tribunal should exercise its discretion to dismiss the Applicant’s application for review under section 42B(1) of the AAT Act.
THE ROLE OF THE TRIBUNAL
As Senior Member McCabe, as he was then known, pointed out in the decision of Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57 at [4]:
The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way. …
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal stands in the shoes of the original decision-maker and considers the matter afresh. The Tribunal considers the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) Affirming the decision under review;
(b) Varying the decision under review; or
(c) Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot however, make a decision that is outside of the law that is in place. Where no discretion is provided by the statute, the Tribunal cannot, regardless of its view on the matter, make a decision that is not correct at law.
SHOULD THE APPLICATIONS BE DISMISSED?
Section 42B(1) of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Whether an application for review is frivolous, vexatious, misconceived or lacking in substance has been considered by the Tribunal on numerous occasions. The Tribunal’s decision in Reddish and Civil Aviation Safety Authority [1999] AATA 721 (Reddish) sets out the principle that an application for review made to the Tribunal may be dismissed as being frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant.
The Tribunal at [33] said:
… The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. …
This view has continued to be applied in subsequent Tribunal decisions.[14]
[14] For example see: Rundle and Civil Aviation Safety Authority [2002] AATA 349; McCarthy and Building Practitioners Board [2016] AATA 1029; Stanley and Minister for Foreign Affairs [2018] AATA 982; Shah and Child Support Registrar (Child Support) [2020] AATA 2644 and Flahive and Comcare (Compensation) [2021] AATA 2444.
MATERIAL BEFORE THE TRIBUNAL
In making this present application to the Tribunal the Applicant sought that the matter be dealt with as quickly as possible as he was experiencing financial hardship and his bills were building up, with the main bill being a building bill of $9,000.[15] The Applicant outlined the circumstances of his financial position since the initial decision was made in 2018 and provided:[16]
I’m hoping that there is a compassionate grounds for Centrelinks decision to be overruled and the reduced pension I was placed on be back paid to so I can pay the builder by the end of the month 31/09/2021.
Centrelinks whole decision is based on a letter that I never received in the mail otherwise I would of [sic] appealed the decision way back when it happened and they are saying that they have no legal right to refund and back pay the money that was taken out of my pension for an error in classing the TPD payment as income because of a 13 week appeal time process which [I never knew] about back then.
[15] T Documents, T16, pages 100-103, Applicant’s email to the Tribunal requesting expedition.
[16] T Documents, T16, page 102, Applicant’s email to the Tribunal requesting expedition.
The SSCSD recorded in its decision at [21] that:[17]
[The Applicant] told the Tribunal that he relied on Centrelink to make the correct calculations. Therefore, [the Applicant] did not request a review of any of the notified rate decisions regarding the reduced rate of DSP payments. Indeed, by the time [the Applicant] raised the issue with Centrelink in 2021, his rate of DSP was no longer affected by Centrelink’s decision.
[17] T Documents, T3, page 16, Decision of the SSCSD.
In the ARO notes it is recorded that the ARO spoke to the Applicant on the telephone on

16 June 2021 and that:[18]
The customer stated that when his rate was reduced in 2018 he was not told that he could appeal the decision. He stated that he asked for a review in January or February this year and he was of the understanding that he had asked for both the current and historical rate decisions to be reviewed.
[18] T Documents, T13, page 95, ARO decision and notes.
The Centrelink Contact Notes record that the Applicant attended a Centrelink office on

9 November 2018 to report that he would be receiving a TPD superannuation lump sum payment and that he was told that payment would be treated as income.[19] The Client Service Officer subsequently sought advice form their Policy Help Desk as to the treatment of the TPD superannuation lump sum payment and was advised that it would be treated as income.[20] The client services officer noted that they called the Applicant to advise of the outcome of this contact and of what his reduced rate of DSP was likely to be and that he was “not happy.”[21]
[19]    T Documents, T18, page 122, Centrelink Contact Notes.
[20]    T Documents, T7, pages 76-77, Email correspondence with Policy Help Desk.
[21]    T Documents, T18, page 122, Centrelink Contact Notes.
At the Telephone Interlocutory Dismissal Hearing the Applicant told the Tribunal that:
·He did not receive the letters in relation to the rate change of his DSP.
·He had not been told that there was an option to appeal the decision that his TPD superannuation lump sum was income, as such he was not aware of the requirement to seek review within 13 weeks of the decisions. If he had known that he could seek review he would have done so immediately.
·He was not told about his review rights until earlier this year when a decision was made to change his rate of DSP due to the 2020 TPD superannuation lump sum. At that time, he sought review immediately and the decision was changed so that the lump sum was not taken to be income. It was only then that he found out he could also seek review of the 2018 rate change decisions.
·He had tried to do the right thing and went to Centrelink and advised them before he received his first TPD superannuation lump sum. When he was there the client service officer told him that the payment would be treated as income and he questioned whether that was correct. He said he told the officer that he would not be able to survive and asked them what was he going to do. He said they told him basically that he had to “cop it sweet as the payment was considered to be income”.
·He has already almost exhausted his 2021 TPD superannuation lump sum because he paid all of his bills and debts and paid the builder for the work at his mother’s house.
·He is in a difficult situation because he needs to find somewhere to live and has no savings to help him.
·The 2018 decision has had ripple effects and if that decision had not have been made, that he may be in a different position now. He might have had savings in the bank which would help him to secure somewhere to live.
At Hearing the Applicant contended that:
·Centrelink has a duty of care to train their service officers correctly and as they did not in this case a mistake was made. For that reason, Centrelink should be liable for back pay and the 13 week rule should not apply.
·Given the effect the 2018 decision has had, that the 13 week rule should not apply on compassionate grounds.
·He lodged a CDDA claim soon after he received the decision of the SSCSD, however was told it could take years. That will not help him short term, he needs a rental now.
·He is pleading for his application to go to Hearing and be sorted out, what he wants is the back pay, he does not want compensation.
·He understands that back pay is governed by the 13 week rule however, it should not apply where service centre people are not trained properly.
The Respondent contended that the decision of the SSCSD to affirm the ARO’s decision was correct and that even if the Tribunal were to accept the that the Applicant’s TPD superannuation lump sum payment should not have been assessed as income (as conceded by the ARO), the date of effect of that decision would be the date the Applicant sought review of the original decision. That date being 27 May 2021.[22]
[22] Secretary’s Outline of Submissions, page 4, paragraphs 22-25.
The Respondent contended that the Applicant’s application is misconceived and has no reasonable prospects of success, as for the Applicant to be successful in the present application there would need to be evidence that he requested a review of the original decision (or any of the subsequent notices) within 13 weeks.[23]
[23] Secretary’s Outline of Submissions, pages 5-6, paragraph 31.
The Respondent contended that in circumstances where not only is such evidence absent but where the Applicant appears to accept no such reviews were requested, the present application has no reasonable prospects of success.[24]
[24] Secretary’s Outline of Submissions, page 6, paragraph 32.
The Respondent sought that an order be made dismissing the application pursuant to section 42B(1) of the AAT Act.[25]
[25] Secretary’s Outline of Submissions, page 6, paragraph 33.
CONSIDERATION
In most instances, where review rights exist under social security law there is no fixed time frame within which a person may seek either internal review of an initial decision or review by the SSCSD of an ARO decision. The point in time that such a request for review is made does however impact on the date of effect of a favourable determination resulting from such a review.
Section 109 of the Social Security Administration Act 1999 (Cth) (Administration Act) simply put, provides that where a request for review is not made within 13 weeks of the decision being made, the date of effect of any favourable determination arising from that review would be the date the request for review was made, rather than from the date that the reviewable decision was made. Relevantly, section 109 of the Administration Act 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.
(2) 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) more than 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 application for review was made.
…….
While the Applicant contended that he did not recall receiving the notices advising him of his rate of DSP the Tribunal notes that pursuant to section 237 of the Administration Act the original decision is taken to have been given to the Applicant.[26] Further, even should the Tribunal be satisfied that the Applicant did not receive the notices, section 23(12) of the Social Security Act 1991 (Cth) has effect to deem that notice was provided.
[26] This is on the basis that the notice of the decision was properly addressed, prepaid and posted to the Applicant on 21 November 2018.

Based on the material before it, the Tribunal accepts that the Applicant did question why the TPD superannuation lump sum payment would be considered income, however that was on 9 November 2018, prior to a decision being made by the Respondent. A decision was not made by the Respondent in relation to the Applicant’s rate of DSP until after the Applicant reported he had received the payment on 20 November 2018.
There is no record in the material before the Tribunal of the Applicant having sought a review of the DSP rate decisions for the period 20 November 2018 to 19 November 2019 because as the Applicant told the Tribunal he did not know he could seek a review prior to May 2021.
Having considered the material before the Tribunal and the submissions made by the Applicant and Respondent, in the absence of any corroborating evidence to the contrary and noting the Applicant’s concession, the Tribunal subsequently finds that the Applicant did not request review of the decisions relating to his rate of DSP during the periods

20 November 2018 and 19 November 2019 until 27 May 2021.
Consequently, given the operation of section 109 of the Administration Act, even if the Tribunal was to find that the Applicant’s rate of DSP should not have been reduced during the period 20 November 2018 to 19 November 2019 (as the ARO did) the date of effect of such a decision would be 27 May 2021, by which time the Applicant was receiving the full rate of DSP. There is no facility available for back pay to be issued to the Applicant in relation to the payment period of 20 November 2018 to 19 November 2019.
The Tribunal acknowledges the Applicant’s request that the Tribunal consider the matter on a compassionate basis. The Tribunal considers that the Applicant has at all times been fully open and honest in the information he has provided to the Tribunal. It is clear that the Applicant has tried to do the right thing in reporting changes in his circumstances to Centrelink and that he has demonstrated that when he has been aware of opportunities to seek review of a decision he has done so promptly. Unfortunately though, ignorance of the law is not a remedy to the circumstances that result.
While the Tribunal notes the Applicant’s financial difficulties and that the ARO conceded that the 2018 DSP rate decision was wrong, there is no discretion available to the Tribunal that would affect the operation of section 109 of the Administration Act. As such the Tribunal has not engaged in an analysis of the Applicant’s prospects of success in his application, as the point is moot given that no practical effect would result from a favourable decision.
As such, the Tribunal considers that the Applicant’s present application is frivolous. The Tribunal finds that the application is manifestly groundless, to the point of being hopeless. It is clear that this Tribunal would be unable to make a decision that would be of any practical benefit to the Applicant.
Consequently, the Tribunal considers in line with the principles set out in Reddish referred to in paragraphs 20 and 21 above that it is appropriate to exercise the discretion provided by section 42B(1)(a) of the AAT Act. The Tribunal therefore dismisses the Applicant’s application for review on the basis that it is frivolous. There is no utility in the matter remaining on foot.
In making this decision the Tribunal has had regard to the Applicant’s request for this application to be dealt with as swiftly as possible so that he could work out what his next steps would be and the objectives of the Tribunal to provide a mechanism of review that is accessible, fair, just, economical, informal and quick and is proportionate.[27]
[27] Section 2A of the AAT Act.
The Tribunal notes that the CDDA Scheme was discussed at the Telephone Interlocutory Dismissal Hearing and that it may be an option open to the Applicant to continue to pursue that avenue of inquiry.
DECISION
Pursuant to section 42B(1)(a) of the AAT Act the application for review is dismissed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................[SGD]..........................
Associate
Dated: 11 October 2021

Date of hearing: 8 October 2021

Applicant: By phone

Advocate for the Respondent: Mr Christopher Murphy

Solicitors for the Respondent: Services Australia

[2021] AATA 3626

11 October 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	8 October 2021
Applicant:	By phone
Advocate for the Respondent:	Mr Christopher Murphy
Solicitors for the Respondent:	Services Australia