Oughton and Secretary, Department of Social Services (Social services second review) - [2023] AATA 719

Oughton and Secretary, Department of Social Services (Social services second review) [2023] AATA 719 (6 April 2023)
Division:GENERAL DIVISION
File Number(s): 2021/8252
Re:Robert Oughton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:6 April 2023
Place:Adelaide

The decision under review is set aside and the matter is remitted to the Secretary for reconsideration in accordance with the directions that:
(a)At the time of his claim, Mr Oughton met the requirements of s 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth); and
(b)Mr Oughton was not provided a written notice of the decision under s138 of the Social Security (Administration) Act 1999 (Cth).

................[sgnd].................................
Senior Member K Millar
Catchwords
SOCIAL SECURITY – disability support pensions – claim for disability support pensions rejected – applicant meets 94(1) (a) (b) and (c) of the Social Security Act 1991 (Cth) – date of effect of decision – decision of the authorised review officer does not meet the requirements of s 138 of Social Security (Administration Act) 1991 (Cth) – date of effect provisions in the Social Security (Administration Act) 1991 (Cth) do not apply – date of effect is the date of claim – decision under review is set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act1958 (Cth)
Acts Interpretation Act1901 (Cth)
Cases
Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179
Azarcon v Minister for Immigration and Multicultural Affairs [1999] FCA 145
Comcare v Lees [1997] FCA 1415
Commonwealth v Pharmacy Guild of Australia (1989) ALR 65
Hawkins v Comcare [1999] FCR 482
Knott and Secretary, Department of Social Services [2015] AATA 266
Li v Attorney General for NSW [2019] NSWCA 95
Lohdi v Attorney-General (Cth) [2020] FCA 1383
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Ethnic Affairs v Yusuf [2001] HCA 30
Montenegro v Secretary, Department of education [2020] FCAFC 210
Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 1342
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543
Soldatow v Australia Council [1991] FCA 160
Soulemezias v Dudley (Holdings) Pty Ltd (1987) NSWLR 247
Stephens v Attorney-General [2021] FCA 204
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member K Millar
6 April 2023
INTRODUCTION

Mr Oughton lodged two applications for Disability Support Pension. The first application was lodged on 15 May 2020, and the second was lodged on 9 June 2021.
Mr Oughton’s first application was unsuccessful, and he sought an internal review of this decision. An Authorised Review Officer (“ARO”) affirmed the decision to refuse to grant Disability Support Pension on 25 September 2020. Mr Oughton then applied to the Social Services and Child Support Division of the Tribunal (“AAT1”), but the application was dismissed as he withdrew his application on 14 December 2020.
Mr Oughton again applied for review at AAT1 on 5 August 2021. The AAT1 affirmed the decision to reject his application for a Disability Support Pension on 1 October 2021. Mr Oughton applied for a second review of the decision on 24 November 2021.
On 9 June 2021, Mr Oughton again applied for a Disability Support Pension, which was granted on 23 July 2021.
The Secretary concedes that at the time Mr Oughton applied for a Disability Support Pension, on 15 May 2020, he met the requirements in paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (“the Act”).
However, the Secretary submits that because Mr Oughton lodged an application for review more than 13 weeks after the ARO decision, he can only be granted a Disability Support Pension from the date he lodged his application for review. As he applied for a review after the date his second application for a Disability Support Pension was granted, the Secretary sought dismissal of this matter on the basis that the decision could have no practical effect.
As it is conceded Mr Oughton met the requirements in paragraphs 94(1)(a), (b) and (c) of the Act, the remaining issue is the date of effect of a favourable decision.
For the reasons that follow, the Tribunal has found that the notice provided to Mr Oughton of the decision to refuse his pension was not valid and as a result time had not commenced to apply for a review of this decision.
This means that subject to meeting any other requirements for a Disability Support Pension, Mr Oughton’s payment should be paid from the date of his application, or any earlier date allowed by the legislation.
APPLICATION FOR DISMISSAL
The Secretary sought dismissal of the application under s 42B of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) on the basis that the application was frivolous in the sense that a decision by the Tribunal would be of no practical benefit to Mr Oughton.
At the first interlocutory hearing of this matter, it became apparent Mr Oughton had previously lodged an application for review at AAT1 on 30 September 2020, within the 13 week period, however it was dismissed after being withdrawn at hearing. Mr Oughton argued he had not withdrawn his application. The Tribunal obtained a record of the hearing which clearly showed he had withdrawn his application, it finds that Mr Oughton lodged his application for review to AAT1 on 5 August 2021.
As there remained a question about whether the notice of the decision was valid for the purpose of determining the date of effect of any favourable decision the Tribunal declined to dismiss the application.
LEGISLATIVE PROVISIONS
Section 43(6) of the AAT Act provides that in general, the decision has effect from the date the decision under review has or had effect.
This provision is modified by Item 8 of section 147 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). This states that the decision under review takes effect on the day the person applied for AAT first review if:
(a)the person is given written notice of the decision under social security law; and
(b)the person applies for AAT first review more than 13 weeks after the notice was given; and
(c)on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the AAT’s decision is:
(i)to grant the person’s claim for a social security payment or a concession card; or
(ii)to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be, or
(iii)to increase the rate of the person’s social security payment.
In Knott and Secretary, Department of Social Services[1], the Tribunal found section 147 of the Administration Act applies to a second review of the decision. For the purposes of this matter, the Tribunal has accepted this applies. Therefore, if Mr Oughton received a valid notice of the decision but lodged his application for review more than 13 weeks after the notice was given, the date of effect of the decision is the date he lodged his application for first review.
[1] [2015] AATA 266.
Turning then to the requirements for a notice of the decision under social security law, for the purposes of item (a), section 136 of the Administration Act requires a decision on internal review to be given in a written notice to the applicant.
Section 138 of the Administration Act sets out the requirements for the notice, and states:
(1) If a person (the decision‑maker) gives another person notice under section 136, the notice must include:
(a) a statement to the effect that the other person may, subject to the social security law and the AAT Act, apply to the AAT for review of the decision‑maker’s decision; and
(b) a statement about the decision‑maker’s decision that:
(i) sets out the reasons for the decision; and
(ii) sets out the findings by the decision‑maker on material questions of fact; and
(iii)refers to the evidence or other material on which those findings were based.
(2) A contravention of subsection (1) in relation to notice of a decision does not affect the validity of the decision.
(3) Paragraph (1)(a) does not apply in relation to a decision that is not reviewable by the AAT (see section 144).
The effect of this provision is that the decision is valid if a written notice in accordance with the Administration Act is not provided to the person, however the person’s time in which to lodge an application to AAT1 has not commenced.
As it applies in this case, this means that the decision to refuse Mr Oughton’s claim for a Disability Support Pension is a valid decision, however if the notice does not comply with subsection 138(1) of the Administration Act, he was not given a written notice for the purposes of section 147 of the Administration Act.
If Mr Oughton has not been given a valid notice, a decision takes effect from the date he lodged his application for a Disability Support Pension, or any earlier time specified in the legislation.
DID MR OUGHTON RECIEVE A VALID NOTICE?
The written notice provided to Mr Oughton advised he could apply to the AAT for a review of the decision, and paragraph 138(1)(a) of the Administration Act is met. This leaves for consideration whether the written statement provided to Mr Oughton met the requirements of section 138(1)(b) of the Administration Act.
In looking at the requirements for reasons for a decision, in the context of similar legislative requirements in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“AD(JR) Act”), Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith[2] explains what is required from a decision-maker in providing reasons for a decision:
[It]… requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect, 'Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.'

[2] [1983] FCA 179.
[3] Ibid.
This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only.[3]
The formulation used in section 138 of the Administration Act is also used in other legislation. This includes the Administrative Appeals Tribunal Act1975 (Cth) (“AAT Act”) the Migration Act 1958 (Cth) (“Migration Act”), and the Acts Interpretation Act1901 (Cth) (“AIA Act”).
The Migration Act 1958 (Cth)
Sections 368 and 430 of the Migration Act also set out requirements for written reasons. These provisions require that a written statement (among other things) sets out the decision of the Tribunal on review,[4] sets out the reasons for the decision,[5] sets out the findings on material questions of facts,[6] and refers to the evidence or other material on which the findings of fact were based.[7]
[4] Sections 368(1)(a) and 430(1)(a) of the Migration Act.
[5] Ibid, sections 368(1)(b) and 430(1)(b).
[6] Ibid, sections 368(1)(c) and 430(1)(c).
[7] Ibid, ss 368(1)(d) and 430(1)(d)).
These provisions mirror those in section 138(1)(b) of the Administration Act.
In Minister for Immigration and Ethnic Affairs v Yusuf (“Yusuf”)[8] the High Court held:
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. (emphasis added)
[8] [2001] HCA 30.
In Azarcon v Minister for Immigration and Multicultural Affairs[9], the Full Court of the Federal Court stated:
In the present case, in the absence of findings of fact and some exposition of its reasoning process, it cannot be ascertained from the published statement whether the Tribunal has made its own assessment as required by subsubpara (C). In that respect it has failed to comply with the procedure required by s368(1) of the Act.
[9] [1999] FCA 145.
In addressing the precursor provision to section 430 of the Migration Act, in same terms, Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs[10] said:
Legislation such as s.166E(1) of the Migration Act does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the Tribunal set out in "short and measured, but specific terms its findings in connection with" matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal[1987] FCA 301; (1987) 16 FCR 465 (FCA/Wilcox J), at 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal(1989) 22 FCR 437 (FCA/FC), at 444. As Wilcox J observed in Our Town v ABT (at 481), it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal(1982) 59 FLR 132 (FCA/FC), at 157, per Sheppard J.[11]
[10] [1996] FCA 1342.
[11] Ibid at [34].
The Secretary submits that a consideration of the Migration Act does not assist in construing the obligation of an ARO in the Administration Act because:
· The context of a decision of an ARO is different from the Migration Act and a higher standard of reasons could be expected under the Migration Act.
· The consequences of a decision made under the Migration Act may be more severe, such as the cancellation of a person’s visa. The consequences of a decision under the Social Security legislation are less severe, for example in this case Mr Oughton can apply again for a Disability Support Pension.
· A higher standard of reasons is expected from the Tribunal than an ARO because the Tribunal finally determines facts. An ARO decision is subject of further de novo review.
The Secretary relies on the NSW Court of Appeal decision in Li v Attorney General for NSW[12] (“Li”). This case concerns an appeal about a sentence imposed on Mr Li, and an application made by Mr Li for an inquiry into his sentence under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).
[12] [2019] NSWCA 95.
The Secretary refers to a passage within this decision that states “[t]he standard of reasons required even of courts making judicial decisions can vary markedly with context.”[13] The paragraphs preceding this quote, and the decision referred to in Li address the general principal that there is no free-stranding common law duty to give reasons for a decision. This is consistent with extensive caselaw that in the absence of a statutory requirement, there is no common law obligation to provide reasons for an administrative decision.[14]
[13] Li v Attorney General for NSW [2019] NSAWCA 95 at [60].
[14] Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
This is not the case in this matter, as there is a specific statutory obligation to give the reasons for a decision, and the statute sets out what is required for these reasons.[15] Li does not assist the Tribunal in determining what is required by section 138 of the Administration Act.
[15] This may be contrasted with the requirement to merely give a notice of a decision, without an obligation for reasons such as in Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447 at [34].
The Tribunal rejects the argument that the consequences of a decision made under the social security legislation are less severe. While Mr Oughton may apply again for a Disability Support Pension, in other circumstances a person can be left with no income, potentially resulting in homelessness and severe hardship.
The Tribunal also rejects the argument that a higher standard of reasons is to be expected under the Migration Act than in the Administration Act because there is another level of review that looks at the matter afresh. While on review, the Tribunal is making its own assessment of the facts and is not looking for legal error, identical wording is used in both Acts. A person who disagrees with a decision under social security law is equally entitled to have a decision in writing that allows a real consideration of an application for review, and an ability to review the material used by the ARO in making the decision.
In the context of this matter, the ARO is not required to set out a finding in relation to each contention made by Mr Oughton but is required to specify the facts that are regarded as material. While it is unnecessary for a decision of an ARO to be of sufficient detail to allow an error of law to be identified, the person who receives the decision must be able to identify why the ARO made the decision by reference to the evidence on which the decision was made and the connection of this evidence to the facts the ARO found.
Other legislation
The three elements required by section 138 of the Administration Act and by sections 368 and 430 of the Migration Act are also used in other Acts. These provisions are not materially different from the Migration Act.[16] These include subsection 43(2B) of the AAT Act, section 25D of the AIA Act and subsection 13(1) of the AD(JR) Act.
[16] See, for example, Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543 at [56], Stephens v Attorney-General [2021] FCA204 at [32], Lohdi v Attorney-General (Cth) [2020] FCA 1383 at [86].
The emphasis of cases on these equivalent provisions is to allow the parties to understand why the decision was made,[17] or to disclose a course of reasoning.[18]
[17] Hawkins v Comcare [1999] FCR 482 at [14].
[18] Montenegro v Secretary, Department of Education [2020] FCAFC 210, Soldatow v Australia Council [1991] FCA 160 at [3].
Reasons required under this formulation are said to enhance accountability for statutory decision making,[19] and enable the public to have confidence that a decision is made appropriately and fairly.[20] It imposes an intellectual discipline making it more likely the decision will not be arbitrary or capricious.[21]
[19] Minister for Home Affairs v Omar [2019] FCAFC 188.
[20] Commonwealth v Pharmacy Guild of Australia (1989) ALR 65 at [88], cited in Comcare v Lees.
[21] Soulemezias v Dudley (Holdings) Pty Ltd (1987) NSWLR 247 at [279].
As summarised by Finkelstein J in Comcare v Lees:
In determining whether the obligation to give reasons has been discharged a number of principles must be born in mind. First as Shepherd J said in Bisley Investments Corporation Ltd v Australian Broadcasting Tribunal(1982) 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood: Ansett Transport at 48 ALR 507. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301; (1987) 77 ALR 577. The reasons must disclose the reasoning processes of the Tribunal: Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through "with a fine appellate toothcomb to find error": Minister for Immigration and Ethnic Affairs v Liang[1996] HCA 6; (1996) 185 CLR 259 at 291; Broussard v Minister for Immigration, Local Government and Ethnic Affairs(1989) 98 ALR 180 at 187.[22]
[22] [1997] FCA 1415.

While the review of a decision of an ARO includes a review of the findings of fact, in setting out requirements for reasons in identical terms to the Migration Act and in similar terms to other legislation regarding administrative decisions making, s 138 of the Administration Act has a similar purpose. This is to provide an explanation to a person affected by a decision, improving accountability and imposing an intellectual discipline in decision making to reduce the risk of decisions made arbitrarily or capriciously.
Having considered equivalent provisions, at a minimum a person receiving a decision from an ARO should be able to understand the decision that was made, why the ARO came to the conclusion on the facts that he or she did, and understand with some specificity the material on which the findings are based.
Did the decision of the ARO comply with section 138 of the Administration Act?
In this matter, the ARO set out ultimate questions of fact, being the conclusions reached in the terms of the legislation, specifically “You do not have an Impairment rating under the Impairment Tables”. However, there is a paucity of material on intermediate questions of fact. To the extent the reasons are given, these are:
Reasons for the outcome
To qualify for Disability Support Pension you must have medical conditions with a total impairment rating of 20 points. Impairment ratings assessed under the Impairment Tables apply to conditions that are fully diagnosed, treated and stabilised.
I have found your infected right venous ulcer is diagnosed but not fully treated and stabilised. This means there is no impairment rating.
I have found your chronic back pain is not fully diagnosed, treated and stabilised. This means there is no impairment rating.
As you do not have an impairment rating of 20 points, you are not qualified for Disability Support Pension. This means the decision to reject your claim for Disability Support Pension was correct.
Returning to the purpose of the need for reasons, a consistent theme is that the person can fairly determine why the decision was made, and inform an applicant of any prospects for appeal, in this case to the Tribunal. Stating a conclusion in the terms of the statutory test that a condition is not fully diagnosed, treated and stabilised does not expose any reasoning that leads to that conclusion.
As a result, Mr Oughton did not have a fair chance be able to determine from these reasons why the decision was not in his favour. In particular:
·     There is no connection made between the information considered in making the decision and the ultimate decision.
·     Reasons are not provided on why his infected right venous ulcer is considered diagnosed but not fully treated and stabilised.
·     Reasons are not provided on why his chronic back pain condition was not considered fully diagnosed, treated or stabilised.
·     He would not know why other conditions he listed in his application were not considered at all.
These reasons do not provide sufficient information to allow Mr Oughton to decide whether to apply for a review of the decision, make a new application for a pension, or remain on his existing payment. They do not meet subparagraphs 138(1)(b)(i) or (ii) of the Administration Act.
In looking at subparagraph 138(1)(b)(iii) of the Administration Act, the decision-maker must refer to the evidence or other material on which those findings were made.
In full, the ARO states:
Information considered
In making this decision I considered:
·     Your claim for Disability Support Pension with supporting medical evidence.
·     The information you provided during our discussion.
·     Records maintained by us.
In making a reference to “records maintained by us”, it is not possible to determine what information has been considered in making the decision. It is not articulated how the information that was considered leads to the “Reasons for the outcome”.
The Tribunal considers that the reasons provide by the ARO do not meet the requirements in section 138 of the Administration Act and that a notice of the decision has not been provided to Mr Oughton under section 147 of the Act.
As a result, the time in which he is required to lodge an application for review has not commenced. That he had lodged a previous application for review does not detract from the statutory obligation to provide a written notice that sets out the matters required by section 138 of the Administration Act.
In these circumstances, section 147 of the Administration Act does not apply. As section 147 of the Administration Act does not apply, subsection 43(6) of the AAT Act results in the decision to set aside the decision of AAT1 taking effect on and from the day on which the decision under review had effect.
The Secretary concedes Mr Oughton met paragraphs 94(1)(a), (b) and (c) of the Act on the date of his claim.
The Tribunal will remit the matter for reconsideration in accordance with the directions that at the time of his claim, Mr Oughton met paragraphs 94(1)(a), (b) and (c) of the Act and that he was not provided a written notice of the decision under section138 of the Administration Act.
DECISION
The decision under review is set aside and the matter is remitted to the Secretary for reconsideration in accordance with the directions that:
(c)At the time of his claim, Mr Oughton met the requirements of paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth); and
(d)Mr Oughton was not provided a written notice of the decision under section 138 of the Social Security (Administration) Act 1999 (Cth).

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

...............[sgnd].........................
Legal Associate

Dated: 6 April 2023
Date of Hearing: 1 February 2023

Advocate for the Applicant: Self-represented

Advocate for the Respondent:
Ms Nadia Markov

Services Australia