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

This matter concerned an application by Mr Anthony Lowth (the Applicant) to the Social Services and Child Support Division (SSCSD) for a second-tier review of a decision made by the Respondent, the Secretary of the Department of Social Services. The dispute centred on the rate of the Applicant's Disability Support Pension (DSP) between 20 November 2018 and 19 November 2019, which had been reduced due to a lump sum totally and permanently disabled (TPD) insurance payment being assessed as annual income. Although the Respondent later assessed this payment as a super withdrawal, not income, the Applicant's request for review of the original decision was made more than 13 weeks after he was notified of the reduction.

The primary legal issue before the Tribunal was whether the Applicant was entitled to an increased rate of DSP for the period in question, despite his review request being out of time. This involved determining the date of effect of a favourable determination under the *Social Security Administration Act 1999* (Cth) when a review is sought more than 13 weeks after the initial decision. The Tribunal also considered whether the Applicant had been properly notified of the original decision, and whether there was any utility in proceeding with the review given the time limitations.

The Tribunal applied section 109 of the *Social Security Administration Act 1999* (Cth), which stipulates that if a request for review is made more than 13 weeks after notice of the original decision, any favourable determination takes effect from the date the review request was made, not from the date of the original decision. Despite the Applicant's contention that he did not recall receiving the notices, the Tribunal found that, pursuant to section 237 of the Act, the original decision was deemed to have been given to the Applicant as the notice was properly addressed, prepaid, and posted. The Tribunal concluded that even if the Applicant had not received the notices, section 23(12) of the *Social Security Act 1991* (Cth) would deem notice to have been provided.

The Tribunal dismissed the Applicant's application for review. It found that while the original decision to assess the TPD payment as income was incorrect, the Applicant could not receive an increased DSP rate for the period from 20 November 2018 to 19 November 2019 because he failed to seek review within the prescribed 13-week timeframe. The Tribunal noted that the Applicant's entitlement, if any, would only commence from the date he requested the review, which was 27 May 2021.