Odlum and Secretary, Department of Social Services

[2017] AATA 789

Odlum and Secretary, Department of Social Services [2017] AATA 789 (10 May 2017)

Division:GENERAL DIVISION

File Number:2016/5229           

Re:Judith Odlum  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:10 May 2017

Date of written reasons:        29 May 2017

Place:Sydney

The Tribunal dismisses the application for review by Judith Odlum under section 42B of the Administrative Appeals Tribunal Act 1975.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal of substantive application – whether Tribunal satisfied that application has no reasonable prospect of success – whether Tribunal has jurisdiction to review original decision – application dismissed          

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 42B

Social Security (Administration) Act 1999 ss 144(n), 192-195

WRITTEN REASONS FOR ORAL DECISION

Dr L Bygrave, Member

29 May 2017

INTRODUCTION

1. The decision of the Tribunal below and the reasons for the decision were delivered orally on 10 May 2017.

2. The matter under review is a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal on 26 August 2016 (SSCSD decision). The SSCSD decision affirmed a decision made by the Department of Human Services (the Department) on 19 September 2011 regarding the assessable value of a property part-owned by the applicant, Ms Judith Odlum, at 1 Damien Drive MacMasters Beach. The purpose of this property valuation was to determine Ms Odlum’s rate of disability support pension.

3. The Secretary requested the Tribunal dismiss Ms Odlum’s application for review under section 42B of the Administrative Appeals Tribunal Act 1975 (the Act) because the application has no reasonable prospects of success.

4. In making this decision to dismiss Ms Odlum’s application, the Tribunal had regard to the documents provided at T1–T21, ST1–ST17, Ms Odlum’s written submissions filed on 7 May 2017, Ms Odlum’s oral submissions at the hearing, and the Secretary’s written submissions filed on 22 December 2016 and 14 March 2017.

5. The issue is whether the General Division of the Tribunal has jurisdiction to review the SSCSD decision.

6. The facts of the matter as they have been set out in the Secretary’s submissions are that in September 2011, the Department instructed the Australian Valuation Office (AVO) to value the property at MacMasters Beach and the AVO valued that property at $1.2 million. On 19 September 2011, the Department applied the AVO valuation to Ms Odlum’s disability support pension rate assessment taking into account the net asset for the property at MacMasters Beach of $67,500. The change in the MacMasters Beach asset did not affect Ms Odlum’s rate of disability support pension.

7. The General Division of the Tribunal has limited powers in relation to reviewing matters that have been decided by the SSCSD under social security law. In accordance with the Social Security (Administration) Act 1999 (the Administration Act), the General Division of the Tribunal can only review decisions as they relate to determinations regarding pension rate increases, pension rate decreases, or determinations that suspend or cancel pensions.

8. Pursuant to subsection 144(n) of the Administration Act, the General Division of the Tribunal is unable to review decisions that seek information from third parties under sections 192 to 195 of the Administration Act. This means that the General Division of the Tribunal is unable to review the decision of the valuation of the AVO, which is effectively what Ms Odlum is seeking in applying for a review of the SSCSD decision.

9. The Tribunal notes the Secretary’s submissions, which state that at all relevant times the assessable value of Ms Odlum’s assets did not affect the rate of her disability support pension and she was paid the maximum pension rate under the income test. 

10. The Tribunal therefore dismisses the application for review by Ms Odlum under section 42B of the Administration Appeals Tribunal Act 1975 because it has no reasonable prospects of success.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

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

Associate

Dated: 29 May 2017

Date(s) of hearing:	10 May 2017
Applicant:	In person
Solicitors for the Respondent:	Ms H Musgrove, Department of Human Services