McGrath and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2422
•1 December 2017
McGrath and Secretary, Department of Social Services (Social services second review) [2017] AATA 2422 (1 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1129
Re:Anne McGrath
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:1 December 2017
Place:Canberra
In accordance with s 42A(4) of the Administrative Appeals Tribunal Act 1975 the Tribunal dismisses the application.
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Bill Stefaniak AM RFD, Senior Member
Catchwords
SOCIAL SECURITY – payment of Family Tax Benefit – claim made outside of claim period – special circumstances – appeal dismissed – AAT1 decision not one which sets aside, varies, affirms the reviewable decision – powers of the Tribunal – intention of legislation – no jurisdiction – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (the AAT Act)
A New Tax System (Family Assistance) (Administration) Act 1999Cases
Donna Nicholson and Secretary DSS (2016) AATA 630
Sulo MGB Australia Pty Ltd and CEO of Customs (2016) AATA 263Secondary Materials
Tribunals Amalgamation Bill 2014 Explanatory Memorandum
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
1 December 2017
This is a review of a decision of the AAT1 dated 13 February 2017 to dismiss an application for review brought by Ms Anne McGrath, the Applicant regarding the decision of the Secretary, Department of Social Services (the Secretary), the Respondent, that Ms McGrath could not be paid Family Tax Benefit (FTB) for the financial years 2011/2012, 2012/2013 and 2013/2014.
At the hearing and after discussion, there did not seem to be any doubt in the minds of the parties nor in the mind of this Tribunal that the decisions of the AAT1 in relation to the years 2011/2012 and 2012/2013 were correct as both returns were clearly lodged outside the two year statutory time period allowed. The decision to reject the claim for the 2013/2014 year remains in dispute as it was lodged on 28 April 2016 which was within the two year period after the relevant income year (i.e. by 30 June 2016).
Both parties ably set out the relevant sections of the relevant Acts in their Statements of Facts, Issues and Contentions filed with the Tribunal and the Tribunal will not replicate those sections here but merely refer to the relevant sections in this judgment.
The Tribunal heard the matter on 4 October 2017 and the Secretary raised the preliminary point that this Tribunal did not have jurisdiction to hear the matter. The Tribunal heard argument on this point and then adjourned, giving the parties until 15 November 2017 to file any further arguments and case law they wished to put before the Tribunal in relation to the matter. Both parties availed themselves of the opportunity to do so.
It was accepted by all concerned that in relation to the 2013/2014 claim, the Family Assistance Law in force at the time and as at the date of this hearing requires that if a claim is made after the first income year after the relevant income year (in this case in 2015/2016), then the decision maker must be satisfied that there are special circumstances that prevented the claimant from making the claim before the end of the first income year (2014/2015) (see s 10(2) of A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).
On 19 May 2016 the Department rejected the Claim for FTB for the 2013/2014 year and this was upheld by an Authorised Review Officer on 5 July 2016 who concluded that there were no special circumstances that prevented Ms McGrath from lodging the 2013/2014 claim for FTB by 30 June 2015.
On 28 October, some 2 weeks outside the 13 week period allowed for application to review, Ms McGrath appealed to the AAT1 for a review of the decision.
Section 111A of the Administration Act allows a 13 week period for a person to seek a review by the AAT1. It provides for certain types of decisions, namely payments of FTB by instalments and the raising of a debt under Division 2 of Part 4 of the Administration Act, to be exempt. In all other matters, if a person sought a review outside the prescribed 13 week period, the AAT would need to determine that there were special circumstances that prevented the person from making an application for AAT first review within that prescribed period.
On 12 February 2017 the AAT1 dismissed the application for review as it found at para 19 of its decision…. “While the tribunal found the reasons (advanced by Ms McGrath for the delay in lodging an appeal) to be understandable, it was not persuaded that they were such as constituted special circumstances and so could not extend the 13 week time limit on that ground. The tribunal was therefore unable to conduct the review requested by Ms McGrath.”
RELEVANT LEGISLATION
The Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Administration Act are the pieces of legislation governing these claims.
CONTENTIONS
The Secretary contends that notwithstanding Ms McGrath’s contentions, the Tribunal cannot deal with this matter because it does not have jurisdiction to proceed to review the AAT1’s decision.
CONSIDERATION
Whilst this Tribunal agrees with the logic behind the contentions of Ms McGrath, that it should be able to hear this matter on review, unfortunately, upon closely considering the law in this matter, the Tribunal agrees with the submissions of the Secretary.
Those submission said, in a nutshell, that this Tribunal did not have jurisdiction as the AAT1 dismissed Ms McGrath’s application for review, rather than affirming it, varying it, setting it aside and substituting a new decision, or setting it aside and sending it back for reconsideration in accordance with any directions or recommendations of the AAT1. This Tribunal only had legislative power to review the above type of decisions and nothing else.
It is hard to say whether this is a legislative oversight or not, because the legislature could clearly have, in its Tribunals Amalgamation Bill 2014, included a provision allowing an appeal to the AAT2 in relation to any decision made by the AAT1, (which would thus include an appeal from a decision to dismiss a matter) and not just from a decision by the AAT1 to affirm, vary, set aside and substitute, or set aside with directions and recommendations.
Whilst s 142 of the Administration Act has now been superseded, that provision, which gave this Tribunal the authority to review decisions of the old Social Security Appeals Tribunal (SSAT) in relation to FTBs, has been replaced in near identical terms by the current s 128 of the same Act.
Specifically, paragraph 1124 of the Explanatory Memorandum to the 2014 Bill relevantly states: “the new definitions of ‘AAT first review’ and ‘AAT second review’ would facilitate the maintenance of the existing two-tiered review process in respect of certain family assistance matters, but with this process occurring within the amalgamated Tribunal... There would be no change to the types of decision that may be reviewed” [emphasis added].
Paragraph 1619 says the same thing when explaining the new s 128(1). Thus, the intent of the legislature is quite clear. It replicates the old section and does not give this Tribunal the power to review a dismissal.
This Tribunal is a creature of statute. It is not a court. It does not have an inherent jurisdiction like a court. If it is not given jurisdiction to do a certain thing by statute it is prevented from doing anything as it does not have jurisdiction.
Accordingly, as the AAT1 dismissed what it regarded in the circumstances as an out of time application for review of a decision of the ARO, rather than affirming, varying or setting aside the decision of the ARO, the AAT2 (this Tribunal) cannot touch that decision even if it is wrong, because we do not have the jurisdiction to do so.
It should be said however that this Tribunal, and indeed the AAT1 as well, frequently looks at applications for leave to appeal out of time and either grants them or dismisses them and there would seem to be nothing to stop a party from applying again for leave to appeal out of time to the AAT1. This happens on occasions, especially if some fresh evidence became available, or the situation changes in some way.
It may be that Ms McGrath may like to apply to the AAT1 again for leave to appeal out of time.
I note the cases referred to by the Secretary are all pre-2014, but as the law has not in any material way changed they are all relevant and are authority for the above proposition. Unfortunately for Ms McGrath, the cases she cites do not assist her as they are all cases where either a decision was affirmed or set aside, or in the case of Sulo MGB Australia Pty Ltd and CEO of Customs (2016) AATA 263, not a decision that was capable of being reviewed by the AAT1.
It is not necessary for this Tribunal to look at the substantive issues and this Tribunal has not heard any evidence from the parties in relation to the substantive points and is not in a position to comment on whether the original decision of the Department/ARO was the correct or preferable decision or not. Nor has it heard any evidence on the reasons for the delay in appealing to the AAT1.
The Tribunal does note however in relation to the delay in appealing to the AAT1, that at least on the basis of the facts as presented in written evidence on file, the AAT1 may be correct in its comments and findings in para 16 through to 18 of its decision. Again this Tribunal has not heard further oral evidence on that point but commends its decision in Donna Nicholson and Secretary DSS (2016) AATA 630 to the parties as it examines what constitutes “special circumstances” (paras 34 to 61 inclusive) and thus may be of some assistance to the parties in relation to this issue.
However, this is largely academic to this Tribunal as it cannot review the decision to dismiss the Ms McGrath’s application for review due to a lack of jurisdiction to do so.
I certify that the preceding 25 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member.
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Associate
Dated: 1 December 2017
Date(s) of hearing: 4 October 2017 Date final submissions received: 9 November 2017 Advocate for the Applicant: Mr Stephen McAneney Solicitors for the Respondent: Department of Human Services
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