Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 1077

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1077

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5386

GENERAL ADMINISTRATIVE DIVISION		)
Re		William Pearson

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date17 December 2010

PlaceSydney

Decision The Tribunal does not have jurisdiction to review the decision made by Centrelink on 27 October 2009 to grant Mr Pearson the Aged pension payable from 16 September 2009.

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Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – where decision made by primary decision-maker following remittal by Social Security Appeals Tribunal – whether Administrative Appeals Tribunal has jurisdiction to review decision made on remittal – powers of AAT with respect to SSAT decisions

SOCIAL SECURITY - aged pension – date from which pension is payable

Administrative Appeals Tribunal Act 1975 (Cth) — s 35

Social Security (Administration) Act 1999 (Cth) — ss 149, 181

Mutual Life & Citizens’ Assurance Company Limited v Attorney-General (Queensland) & Anor (1961) 106 CLR 48

REASONS FOR DECISION

17 December 2010 Senior Member A K Britton           

1.      These reasons address a preliminary issue that has been raised by the respondent Secretary, namely whether the Tribunal has jurisdiction to review a decision made by Centrelink on 27 October 2009 to grant Mr Pearson, the applicant in these proceedings, the aged pension from 16 September 2009. While Mr Pearson does not challenge the decision to grant him the aged pension, he says that that part of the decision dealing with the date the pension was payable from,,was wrong in law and he ought be able to seek review of it. In short, he argues that Centrelink erred in making the decision it did and that it should have found that the aged pension was payable from the date of his original claim, which was made in December 2008. The respondent disagrees.

2.      I must emphasise that these reasons do not address the merits of the decision to grant a pension payable from 16 September 2009 or, Mr Pearson’s claims of maladministration on the part of various Centrelink officers, but rather the limited question of whether I have power to review the decision remitted to Centrelink by the SSAT.

3.      For the purposes of this decision on jurisdiction, I will take the claims made by Mr Pearson at their highest. That is, I will accept them to be true. Of those claims, some are irrelevant to the question I need to determine. However Mr Pearson’s claim that he provided Centrelink with information relating to his Commonwealth Bank account at an earlier date than is now contended might be relevant. As I understand it, Mr Pearson says that he gave that information to Centrelink in about June 2009, and also provided the same material at the SSAT proceedings. For present purposes, I accept those claims.  

4.      Both parties have provided written submissions in respect of this application and made brief oral submissions, and to the extent any are relevant, I have taken them into account.

5.      To put the submissions made by the parties in context, it is necessary to briefly set out the history in this matter. On 18 December 2008, Mr Pearson lodged a claim for the pension bonus scheme and the aged pension. On 12 May 2009, a Centrelink authorised review officer affirmed the decision to refuse Mr Pearson’s claims for both the aged pension and the pension bonus. Mr Pearson then sought review of both decisions by the Social Security Appeals Tribunal. On 7 October 2009, the SSAT made a decision in the following terms: firstly, to affirm the decision made by the authorised review officer to reject Mr Pearson’s pension bonus claim, and secondly, to set aside the decision to refuse Mr Pearson’s aged pension claim and direct Centrelink to reconsider the claim on the basis that Mr Pearson had now provided all necessary documents for the assessment of the claim.

6.      There is no issue that the AAT has power to review the first part of the SSAT’s decision, namely the decision as it relates to the pension bonus claim. The real issue is whether the AAT has power to review the second part of that decision and the subsequent decision made by Centrelink to grant Mr Pearson the aged pension, from what he contends is the wrong date.

7. The AAT’s power to review a decision of the SSAT is conferred by section 35 of the Administrative Appeals Tribunal Act 1975 and section 181 of the Social Security (Administration) Act 1999, which I will refer to in these reasons as the Administration Act. Section 149 of the Administration Act gives the SSAT the power to do the following things on review of a decision that has been the subject of an application: affirm the decision, vary the decision, and importantly, in paragraph (c), set the decision aside and, substitute a new decision or, alternatively, send the matter back to the Secretary or the CEO, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.

8. While the SSAT did not refer to the power under which it made its orders, it is plain that they were made under s 149(c)(ii), in that it set the decision aside — that is, the decision in respect of the aged pension — and sent the matter back to the Secretary with a number of recommendations. The Secretary was directed that the claim for aged pension must be reconsidered in accordance with the following:

Mr Pearson has provided all of the necessary documents in order for his aged pension claim to be assessed.

9.      That order should be read in the context of paragraph 29 of the SSAT’s decision, which sets out a number of findings in relation to Mr Pearson’s qualification for the pension.

10.     There is no issue that after the SSAT decision was handed down, Mr Pearson made an application to this Tribunal, and that application was made within time. The AAT’s power to review a decision is found in Part 4 of the Administration Act, relevantly section 179, and it provides:

If:

(a)       a decision has been reviewed by the SSAT; and

(b)       the decision has been affirmed, varied, or set aside by the SSAT,

an application may be made to the AAT for review of that decision.

11.     Subsection (2) of s 179 goes on to clarify the class of decisions made by the SSAT that are reviewable by this Tribunal and is in the following terms:

For the purposes of subsection (1), the decision made by the SSAT is taken to be:

(a)       where the SSAT affirms a decision, that decision as affirmed;

(b)       where the SSAT varies a decision, that decision as affirmed;

(c)       where the SSAT sets a decision aside and substitutes a new decision, the new decision; and

(d)       where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendation of the SSAT, the directions or recommendations of the SSAT.

12.     In respect of the pension bonus decision, the decision made by the SSAT was to affirm that decision. Consequently, that is the decision to be reviewed by this tribunal. However, in respect of the disputed aged pension decision, the decision falls within paragraph (d). Therefore, the only part of that decision that is reviewable are the directions or the recommendations made by the SSAT. Had the SSAT affirmed the decision not to grant the pension or, varied it, or set it aside and substituted a new decision, that decision would have been reviewable. However, as the SSAT went on to remit the matter to Centrelink with directions or recommendations, only the directions or recommendations made by the SSAT are reviewable.

13. That view is reinforced by s 181 of the Administration Act, which provides that:

Review by the AAT is limited to decisions reviewed by the SSAT.

14. I understand Mr Pearson’s argument that because of what he sees as the “review labyrinth”, he has effectively been denied the right to have his complaint dealt with in full. The gravaman of his complaint from day one has been that he was not granted the aged pension at the appropriate date, and that both the SSAT and Centrelink failed to have regard to the fact that he provided all requested information in the time frame as required. He may be correct. However, that does not assist his position in this case. The statute establishing the Administrative Appeals Tribunal Act circumscribes my power to deal with an application for review. I have no power to inquire at large into matters that might be of interest, but for which I have no power to review. In fact, the tribunal has a clear duty to decline to hear such matters, as made clear by the High Court in the Mutual Life & Citizens’ Assurance Company Limited v Attorney-General (Queensland) & Anor (1961) 106 CLR 48.

15.     I understand Mr Pearson’s complaint. I understand his view that this effectively elevates the decision of the SSAT to the status of a High Court decision in that it is not reviewable. However, absent power conferred by statute to review the subsequent decision made by Centrelink, I do not have the power to do so.

16.     The respondent, in its submissions, contends that there is no utility to review the directions or recommendations made by the SSAT. The respondent points to the power of the Tribunal to limit the matters which it might consider in proceedings. I do not disagree that the Tribunal has that power. However, the only issue I am determining today is whether the Tribunal has jurisdiction to consider the matters which Mr Pearson seeks review of. It is plain from the Act that the Tribunal does have the jurisdiction to review the directions or recommendations made by the SSAT, regardless of whether or not that review may be of limited utility. 

17.     For these reasons I conclude that I am unable to review the decision made by Centrelink to grant Mr Person the aged pension payable from 16 September 2009. 

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed...........................................................................
  Associate to Senior Member Britton

Date of Hearing:  17 December 2010
Date of Decision:  17 December 2010
Date Written Reasons provided:    31 January 2011
The applicant was self-represented.
Solicitor for the Respondent          Sparke Helmore