Polydorou v Secretary, Department of Social Services

In this case, Polydorou appealed against the decision of the Administrative Appeals Tribunal (AAT) affirming the decision of the Social Security Appeals Tribunal (SSAT) to cancel his disability support pension while he was overseas. Polydorou argued that the AAT erred in applying section 109(2) of the Social Security (Administration) Act 1999 (Cth) to find that a favourable determination made by the SSAT took effect from the date Polydorou applied for review. The court was required to decide whether the AAT had erred in applying the section 109(2) of the Administration Act and if so, whether the appeal should be dismissed or not.

The court found that there was no error on the part of the AAT. The court noted that there is no independent evidence that supports Polydorou's contention that he told an officer of Centrelink that he would be making a claim for back payments. The Centrelink record of contacts includes an entry for 31 January 2012, which is only three days after Polydorou’s return to Australia. That record contains only details of Polydorou’s second claim for DSP which was granted as a result of this claim. There is no record of any part of the conversation which may have had a bearing on the decision to cancel his earlier DSP payments. The court found that Polydorou’s earliest request for a review of the original decision was made on 20 December 2012 and that this is more than 13 weeks after the notice of the original decision. Therefore, section 109(2) of the Administration Act applies, which provides that the determination in favour of the applicant takes effect on the day on which the application for review was made. In Polydorou’s case, that is 20 December 2012. This means that the earliest date from which Polydorou can receive the DSP payments resulting from his original DSP claim is 20 December 2012.

The appeal was dismissed, and on or before 10 October 2014, if the respondent seeks an order against the applicant in respect of the costs of the appeal, the respondent is to file and serve an affidavit deposing to the amount it seeks to recover from the applicant by way of the costs of this appeal, and deposing to how that sum is calculated.