RLMS and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 1846
•18 September 2025
RLMS and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1846 (18 September 2025)
Applicant/s: RLMS
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/3231
Tribunal:Senior Member T Simon (second review)
Place:Sydney
Date:18 September 2025
Decision:The substantive application made on 23 May 2024 is dismissed.
Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement.
18 September 2025
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
SOCIAL SECURITY –– disability support pension –– applicant died –– son has made an application to continue with the application – whether entitled to apply for review of the decision at the time the substantive application was made –– executor or administrator – substantive decision dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 (22 April 2025)
Statement of Reasons
This application is for second review of a decision made by Services Australia (Centrelink) on 7 January 2024 to reject a disability support pension claim.
On 22 March 2024, the applicant sought first review of the decision with the then Administrative Appeals Tribunal. On 16 May 2024, the Tribunal affirmed the decision under review.
On 23 May 2024, the applicant applied to the Tribunal for second review of the decision.
The applicant died on 17 June 2024.On 26 July 2024, Services Australia sent an email to the Tribunal stating that they had been informed by the applicant’s father that the applicant had died, and that the applicant’s son is managing her affairs.
From 14 October 2024, the Administrative Appeals Tribunal (ART) became the Administrative Review Tribunal and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth), applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal.
On 8 July 2025 the Tribunal made an order inviting any person wanting to continue with the substantive application to apply pursuant to s 84 of the Administrative Review Tribunal Act 2024 (Cth).
The applicant’s son subsequently made an application to continue with the substantive second review application. On 22 August 2025, the Tribunal made further directions for the exchange of documents and listed the application for the applicant’s son to continue with the review application for hearing on 25 August 2025.
In these reasons, for ease of reference and for the purposes of publication, the Tribunal shall refer to the applicant’s son as the son.
The son and a representative for the respondent appeared at the hearing on 25 August 2025. The Tribunal made directions for further submissions to be provided after the hearing. Centrelink provided further submissions on 8 September 2025.
Background
At the hearing, the respondent confirmed that a report had now come to their attention which indicated that the applicant may have met one of the qualifying requirements for the disability support pension. The cause of the applicant’s death is recorded on the death certificate as being from ‘toxicity of mixed drugs including paracetamol and duloxetine.’ d) The death certificate also notes the son to be the applicant’s sole child which was confirmed by the son at the hearing. The son also indicated at the hearing that the applicant’s was also survived by her parents.
At the hearing, the son informed the Tribunal that the due to the stress of her financial situation his mother had died by suicide. He stated that as a result he felt compelled to apply to continue to the substantive application.
In an email provided by the son on 4 August 2025, he states that he paid for the costs of his mother to relocate to live with her parents, her funeral costs, and the cost to relocate her dog to be in his care.
Consideration
Should the applicant’s son continue with the substantive application?
Section 84 of the Administrative Review Tribunal Act relevantly provides:
84 If applicant dies or is bankrupt, wound up or in liquidation or administration
When this section applies
(1) This section applies in relation to a proceeding in the Tribunal in relation to an application (the substantive application) for review of a decision if:
(a) the applicant:
(i) dies; or
(ii) becomes bankrupt; or
(iii) is wound up or otherwise ceases to exist; or
(iv) becomes subject to any form of liquidation or administration (however described); and
(b) the Tribunal considers that the applicant cannot continue with the substantive application because of the event mentioned in paragraph (a).
Another person may apply to continue with substantive application
(2) The following persons may apply to the Tribunal to continue with the substantive application:
(a) a legal personal representative, executor, administrator, liquidator or trustee of the applicant for the substantive application;
(b) a person who would have been entitled to apply for review of the decision at the time the substantive application was made.
(3) If a person applies to continue with the substantive application, the Tribunal may, on request or on its own initiative, give such orders as appear to the Tribunal to be appropriate in the circumstances.
Tribunal may dismiss substantive application
(4) The Tribunal may dismiss the substantive application if:
(a) the Tribunal considers that there is no person mentioned in subsection (2) who can continue with the substantive application; or
(b) no application to continue with the substantive application is made within 3 months after the Tribunal becomes aware of the event mentioned in paragraph (1)(a).
The applicant’s son provided a death certificate which records that the applicant had died on 17 June 2024. Accordingly, subsection 84(1) is engaged. In circumstances where it has been established that an applicant has died, it is clear that for the purposes of subsection 84(1)(b) the applicant cannot not proceed.
Subsection 84(2) provides two categories of persons who can make an application to continue with the substantive application.
Is the applicant’s son an executor or administrator (s84(2)(a))
Where someone has died, paragraph 84(2)(a) allows an executor or administrator to apply to continue with an application. At the hearing, the applicant’s son confirmed that his mother had not left a will. He had made enquiries about applying for letters of administration but had decided not to apply as it was too costly. The applicant is not a legal personal representative of the applicant, a liquidator or trustee of the applicant (those categories being generally relevant to circumstances when a person becomes bankrupt, is wound up, or is subject to any form of liquidation or administration). On that basis, the applicant’s son is not one of the entities listed in subsection 84(2)(a).
Is the applicant’s son a person who would have been entitled to apply for review of the decision at the time the substantive application was made?
The second category of person who may apply is contained in paragraph 84(2)(b). It allows for ‘a person who would have been entitled to apply for review of the decision at the time the substantive application was made.’ Previously, s84 (2)(b) had allowed for ‘a person whose interests are affected by the decision’ to make an application to continue with the substantive application.
Section 17 of the Administrative Review Tribunal Act provides for who can apply to the Tribunal for review of the decision:
Who can apply
(1) A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.
Note 1: For which decisions are reviewable decisions, see section 12.
Note 2: For when an organisation's or association's interests are taken to be affected, see section 15.
Note 3: Section 173 provides a right of appeal to the Federal Court if the Tribunal decides that a person's interests are not affected by a reviewable decision.
…
The substantive application was for review of the decision as to whether the applicant should have been granted a disability support pension claim.
Section 60 of the Social Security (Administration) Act 1999:
(1) A social security payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Section 58 of the Social Security (Administration) Act provides:
58 Payment of social security payment after death
(1) If:
(a) an amount representing a social security payment (other than
pension bonus, pension bonus bereavement payment or a
student start-up loan) is payable to a person; and
(b) the person dies; and
(c) another person applies to receive the amount; and
(d) the application is made:
(i) within 26 weeks after the death; or
(ii) within such further period as is allowed by the Secretary
in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the
Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of a social security payment under
subsection (1), the Commonwealth has no further liability to any
person in respect of that amount.
The applicant was never granted the claim for disability support pension and so a social security payment was not payable to the applicant.
The respondent conceded that based on the new information that had come to their attention which indicated that the applicant may have met the requirement for 20 points against a relevant table, that there may be some merit in the substantive review. If on second review the applicant was entitled to a disability support pension, then the respondent also conceded that while any arrears are inalienable under section 60 of the Social Security (Administration) Act, any arrears amounts could be paid to the applicant’s estate.
In the decision of JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 (22 April 2025), the Tribunal, constituted by Justice Kyrou, President set out the following in relation to the applications of sections 58 and 60.[1]
The logical starting point is the subject matter of the application for review. It was not in respect of payment of age pension in the future, that is, for any period post-dating the deceased’s death. Rather, it was in relation to the correctness of the amount of age pension payable for a period preceding the deceased’s death. If, on the correct application of the SSA Act the deceased was underpaid age pension for any such period, a debt for the underpaid amount was accruing in her favour which she was capable of recovering prior to her death. Upon her death, that debt devolved to her deceased estate in accordance with the succession laws of the State or Territory in which the estate is being administered. Unless it would be inconsistent with a provision of the SSA Act, the SS Act, or any other Commonwealth law for him to do so, the applicant (as executor of the deceased’s estate) has legal authority under the applicable State or Territory succession laws to collect that debt on behalf of the estate.
There is nothing in the SSA Act, the SS Act or any other relevant Commonwealth law that displaces State or Territory succession laws in relation to an age pension. Section 58 of the SSA Act does not do so. It simply confers a wide power on the Secretary to determine who is to receive an amount due, irrespective of whether that person is an executor or other legal personal representative of the estate of a deceased benefit recipient. Such a power is particularly helpful for deceased estates with no assets other than amounts payable by the Secretary or where the assets are of limited value and would not justify the costs of applying for probate or letters of administration. Similar considerations apply to s 91 of the SS Act. Further, the fact that s 59 of the SSA Act provides for the payment of a pension bonus or a pension bonus bereavement payment to a deceased’s legal personal representative is not inconsistent with my analysis, as those types of payment are of a limited and specific kind.
[1] At [63] – [64]
As stated above, the son is neither an executor nor an administrator for the purposes of paragraph 84(2)(a).
The right for another person to make an application under section 58 occurs only after the applicant dies. The applicant made the substantive review application before she died. Any interest the son may have in relation to section 58 could have only accrued after the applicant died and not at the time she made the application. The son was not entitled to apply for review of the decision to reject the application for disability support pension at the time the substantive application was made by his mother. He was not at the time his mother made the second review application to the Tribunal, a person whose interests were affected by the reviewable decision.
Accordingly, the applicant’s son was not a person who would have been entitled to apply for review of the decision at the time the substantive application was made and does not satisfy the requirement under section 84(2)(b) of the Administrative Review Tribunal Act.
Conclusion
The applicant’s son is not a person who can apply to continue with the substantive application pursuant to section 84(2) of the Administrative Review Tribunal Act.
Subsection 84(3) of the Administrative Review Tribunal Act provides that if a person applies to continue with the substantive application, the Tribunal may make such orders as appear to the Tribunal to be appropriate in the circumstances. Paragraph 84 (4) (a) allows the Tribunal to dismiss the substantive application if it considers that there is no person mentioned in subsection 84(2) who can continue with the substantive application. Paragraph 84 (4) (b) applies where no application has been made to continue with the application for a within 3 months of the Tribunal becoming aware of the applicant’s death.
An application was made by the applicant son in this case and the Tribunal has found that he is not a person who can apply to continue with the application pursuant to either paragraph (a) or (b) of subsection 84(2). There is no evidence of any other person who can continue with the application. It is appropriate in the circumstances to dismiss the substantive application and make the following order:
The substantive application made on 23 May 2024 is dismissed.
Date(s) of hearing: 25 August 2025 Applicant: Applicant’s son Solicitors for the Respondent: B Zhou, Government Lawyer
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