Pham and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2047

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2047

ADMINISTRATIVE APPEALS TRIBUNAL)     Nº 2007/4805

)

GENERAL  ADMINISTRATIVE DIVISION  )

Re:CHARLES PHAM

Applicant

And:SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:5 December 2007

Place:Melbourne

Decision:For reasons given orally at the hearing, the Tribunal decides that it does not have jurisdiction to determine the application lodged by the applicant.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY – jurisdiction – decision of respondent not reviewed internally or by Social Security Appeals Tribunal – Tribunal does not have jurisdiction to determine the application lodged by the applicant

Social Security (Administration) Act 1999 ss 129, 135, 142, 179

Administrative Appeals Tribunal Act 1975 ss 25, 27

REASONS FOR DECISION

5 December 2007   G.D. Friedman, Senior Member

1.        An interlocutory hearing was held on 5 December 2007 to determine whether the Tribunal has jurisdiction to consider an application lodged on 3 October 2007 by Mr Charles Pham.

2.        Mr Pham stated in his application that he is seeking review of the decision by the Social Security Appeals Tribunal not to consider his appeal.

3.        Mr Pham referred to a letter to him from the SSAT dated 20 September 2007.  In that letter the SSAT advised Mr Pham that it could not consider his appeal as it was an appeal against Centrelink’s decision to reject his claim for compensation under Centrelink’s Detriment Caused by Defective Administration (CDDA) scheme.

4.        Mr Pham said that the refusal of the SSAT to consider his appeal was a decision of the SSAT and therefore reviewable by this Tribunal.

5.        Mr De Uray, on behalf of the Secretary, drew the Tribunal’s attention to a subsequent letter dated 26 October 2007 sent to Mr Pham by the SSAT in which the SSAT stated that the SSAT was unable to consider his claim because the CDDA decision had not been reviewed by an authorised review officer (ARO).

6.        Additionally, Mr De Uray said that the SSAT had not made a decision but had advised Mr Pham that he could not lodge an appeal because it had not been internally reviewed by an ARO.  Mr De Uray submitted that this does not constitute a decision that is reviewable by the Tribunal.

7. The Tribunal does not have the power to directly review Centrelink decisions. Social security legislation has a three-tier review process. First, decisions must be internally reviewed by an ARO according to ss 129(1) and 135(1) of the Social Security (Administration) Act 1999 (the Act). If a person is unhappy with the ARO decision, that person can seek review by the SSAT (s 142 of the Act). If still dissatisfied with the result a further application for review may be made to this Tribunal (s 179(1) of the Act and ss 25 and 27 of the Administrative Appeals Tribunal Act 1975).  

8.        It appears that Centrelink’s decision had not been subject to a formal internal review by an ARO, so the SSAT did not conduct a formal review.     In addition, the CDDA scheme is a uniform Australian Government administrative (non-statutory) scheme which enables Australian Government agencies to compensate individuals who have been adversely affected by defective action and who have no other avenues to seek redress.  It is not regulated by social security legislation or by any other legislation.  Therefore the Tribunal does not have jurisdiction to hear applications regarding defective administration claims.

DECISION

9.        For reasons given orally at the hearing, the Tribunal decides that it does not have jurisdiction to determine the application lodged by the applicant.

I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)    Mara Putnis

Associate

Date of hearing:  5 December 2007

Date of decision:  5 December 2007

Advocate for applicant:                Self‑represented

Advocate for respondent:            Mr De Uray, Centrelink