ROBERT LEMON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 267
[2013] AATA 267
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4334
Re
ROBERT LEMON
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 2 May 2013 Place Brisbane The Tribunal decides that:
(a)The decision under review is set aside;
(b)The date of the original decision is 4 January 2011; and
(c)The effective date for implementation of the decision dated 4 January 2011 is 7 December 2010.
....................[Sgd]....................................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Rate of pension payable – Self-employed – Date of decision – Date of effect – Decision set aside and substituted
PRACTICE AND PROCEDURE – Facts pertaining to previous decision – Previous decision remitted – Principle of finality – No issue of law identified – Functus Officio – No evidence produced – No determination made in regard to previous decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 33
Social Security (Administration) Act 1999 (Cth) ss 78, 109, 129, 181
CASES
Commissioner of Taxation v De Luxe Red and Yellow Cabs Cooperative (Trading) Society Ltd and Others (1998) 82 FCR 507; 98 ATC 4466
Lemon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 250
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Quinn and Australian Postal Commission [1992] AATA 668
Ridge v Baldwin [1964] AC 40
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
INTRODUCTION
This application by Robert Lemon is for review of a decision determined by the Social Security Appeals Tribunal (SSAT) on 6 September 2012. The SSAT considered the applicant’s appeal after an authorised review officer (ARO) made a determination on 18 July 2011 that the applicant was “self-employed” for the purpose of calculation of aged pension; and that the effective date of that self-employed status was 21 June 2011.
Mr Lemon had appealed to the SSAT, not against the finding that he was self-employed, but that the effective date of recognition of him being self-employed should date back to 2004. Mr Lemon now appeals to this Tribunal on the same grounds.
ISSUES
The questions for determination by this Tribunal are:
(1)Can a previous decision of this Tribunal with respect to the same facts relating to Mr Lemon, and dating back to 2004, be reconsidered as part of this appeal; and
(2)Is Mr Lemon to be regarded as being “self-employed” as a taxi driver? If so, what is the correct date of effect of Mr Lemon’s aged pension in that regard?
EVIDENCE
Background
There have been a number of applications by Mr Lemon for review of decisions which resulted in him accruing debts to the Commonwealth in respect to overpayments for aged pension. The decisions, the periods relevant to those decisions and the respective amounts are as follows:
Date
Period
Amount
8 August 2005
16 November 2004 – 13 June 2005
$6,128.93
21 May 2007
3 December 2005 – 18 May 2007
$14,631.78
1 November 2007
6 August 2007 – 21 August 2007
$829.83
The debts outlined above have been previously considered both by the department, the SSAT and this Tribunal. Indeed, a decision by this Tribunal dated 9 April 2010 remitted the matter back to Centrelink to reconsider whether there were special circumstances in Mr Lemon’s case as there was inadequate information at that time for the Tribunal to assess those circumstances.[1]
[1] Lemon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 250.
The present review before this Tribunal emanates from the decision of the SSAT, dated 6 September 2012, which reviewed a decision of an ARO dated 18 July 2011. That decision of an ARO had found that Mr Lemon was a self-employed taxi driver and not an employee of the taxi company and that that decision was to be effective from 21 June 2011. The SSAT determined on 6 September 2012 that the determination that Mr Lemon was “self-employed” was correct but that the effective date was 4 January 2011.
Oral Evidence at this Tribunal
Mr Lemon provided a detailed written statement, dated 20 December 2012, which was available at the Tribunal hearing. In addition, he addressed the Tribunal about his background as a farmer and the harsh life imposed upon him as a result of long periods of drought. He submitted that these were relevant to the present application as his circumstances dated back to 2004 and not to the 2010/11 financial year as had been determined by Centrelink and the SSAT.
Mr Lemon also submitted that fairness dictated that he be recompensed back to 2004. He referred to having served Australia during World War 2 and submitted a document entitled “Glass-Steagall for Australia!”, published by the Citizens Electoral Council. He submitted that his case should be reviewed with reference to those earlier years and that he had an entitlement to reimbursement as the relevant statutes were made subject to the constitutional principle of “peace, order and good government” of Australia.
The respondent submitted that the present application should be determined in terms of s 107(5) of the Social Security (Administration) Act 1999 (“the Act”), which provides that where an original decision rejecting a person’s claim is subsequently reviewed by the Secretary without a formal application under s 129, then, if a decision is made that the applicant’s claim should be granted, the effective date of the determination is to be the date of the original decision.
CONSIDERATION
The relevant statutory provisions of the Act are set out below:
78 Rate increase determination
If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:
(a) determine that the rate is to be increased to the rate provided for by the social security law; and
(b) specify the last‑mentioned rate in the determination.
109 Date of effect of favourable determination resulting from review
(1) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
181 Review by AAT limited to decisions reviewed by SSAT
The AAT may only review a decision that has been reviewed by the SSAT.
The SSAT decision set aside the decision of the ARO on the basis that the original decision was not correctly identified. The decision was in fact made on 4 January 2011 when Centrelink notified Mr Lemon that his age pension was changed with effect from 7 December 2010. The ARO noted also that there was evidence from the taxi company in the form of a letter dated 21 June 2011 indicating that the applicant was not an employee; that date was determined as being the effective date of recognising Mr Lemon as being self-employed. The SSAT, having determined that the original decision was that of 4 January 2011, also determined that earlier date of the original decision as being the effective date of recognising Mr Lemon as being self-employed. The SSAT’s determination of the effective date was made under s 109(2) of the Act.
The respondent submits that despite the date of the letter from Yellow Cabs being 21 June 2011, it does not dispute the decision that Mr Lemon should be regarded as being self-employed. However, the respondent states that the effective date of the decision should be the effective date shown in the decision made on 4 January 2011, which, the respondent says, is 6 December 2010.
I have examined the Centrelink electronic documents submitted with the T-documents and I agree that there is evidence that Mr Lemon complained about the decision of the 4 January 2011 on the very day of the decision. He refers in terms to wanting to have his status as an employee reconsidered with a view to “possible appeal”. It is clear that the staff at Centrelink undertook considerable work to review that decision seriously. The Secretary also concedes that the applicant’s contact with the department on that date, and subsequently, amounts to a request for a review under s 129 of the Act. I agree with that submission.
I note that the applicant has had the original decision reviewed by an ARO and subsequently by the SSAT. By s 181 of the Act, this Tribunal is therefore empowered to review that decision.
I now consider the issues for determination below.
Issue 1 – Can the facts covered by previous decision of this Tribunal and other decision makers dating back to 2004 be reconsidered as part of this appeal?
The question raised by the applicant in this issue is whether his circumstances dating back to 2004, and which have been considered by this Tribunal in its decision dated 9 April 2010, can be reconsidered for the purposes of the present application.
I note that the earlier decision of the Tribunal dated 9 April 2010 was ultimately remitted back to Centrelink for further consideration as to “special circumstances” as the Tribunal did not have adequate information on which to make a final determination at that time. A determination was subsequently made by Centrelink and Mr Lemon’s claim was rejected again. As far as I am aware, that decision has never again been reviewed.
The Secretary has submitted that those facts should not be re-litigated. He relies for that submission on the principle of finality and that it would be unreasonable to have parties re-litigate matters without good cause. He has referred me to the judgment of O’Connor J, a former president of this Tribunal, in Quinn and Australian Postal Commission [1992] AATA 668 at [31]-[32] (Quinn).
I have determined that there are not adequate grounds for taking account of the circumstances dating back to 2004 in respect of this matter for the following reasons:
(1)I am not satisfied that the applicant’s submissions demonstrate any issue of law that the Tribunal can consider in relation to the relevant statutory provisions and any purported constitutional ground;
(2)There was no evidence of any detail presented about the amounts and circumstances which relate to the debts arising from 2004 other than the assertions referred to above;
(3)The principle finality is an important one. It would be unfair on parties, even a government agency such as Centrelink, to have to re-litigate matters because of every issue of sensitivity to any applicant;
(4)In any event, those earlier matters should be regarded as being “functus officio”; that is, a matter has been finalised as a result of a person discharging their duty in a particular matter (see Butterworth Concise Australian Legal Dictionary (3rd edition)). While an administrative decision is not necessarily “functus officio” by virtue of the fact a decision has been finalised (see Ridge v Baldwin [1964] AC 40), it would depend on whether a Tribunal has discharged its statutory function (see Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 693).
The question is therefore whether the enabling statute indicates an intention about the scope of the role of a particular Tribunal. In this case, the Administrative Appeals Tribunal Act 1975 (Cth) provides that an application for review must be authorised by a statute (see s 25). As referred to by O’Connor J (as she then was), at [31] in Quinn, s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) provides for flexibility to control its own process and the requirements of fairness, expedition and proper consideration of all the facts will be relevant in a Tribunal determining whether to allow re-litigation. However, also in Quinn it was said, at [32], that “the Tribunal should not generally allow re-litigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters or actually decided and for grounds for the determination”; and
(5)This Tribunal is empowered to review decisions under an enactment. Section 181 of the Act makes it clear that a social security decision can only be reviewed by this Tribunal if it has already been reviewed by the SSAT. Given that there was insufficient information to make a determination in this Tribunal in its decision dated 9 April 2010, and no specific detail or submission which related directly to the circumstances existing earlier than 4 January 2011 was proved by substantive evidence, and certainly not to the required standard of proof, I therefore decline to make any finding about that earlier period.
Issue 2 – Is Mr Lemon to be regarded as being “self-employed” as a taxi driver? If so, what is the correct date of effect of Mr Lemon’s aged pension in that regard?
In relation to the correct date of effect for the rate of aged pension while regarding him as being a self-employed taxi driver, I make the following findings of fact:
(1)Mr Lemon had been a farmer for many years until 2012;
(2)He had endured many years of hardship through drought in his farming business;
(3)Mr Lemon continued to try to run his farm by supplementing it with income as a taxi driver as far as possible; and
(4)He has been on the aged pension since 12 June 2002.
I now make the following findings in relation to the legal aspects which are relevant to the increased rate of pension as a self-employed taxi driver:
(1)I find that the date of the original decision is 4 January 2011;
(2)An enquiry with a view to appeal was also made on 4 January 2011 and therefore Mr Lemon is taken to have made an application for review under s 129 of the Act on 4 January 2011;
(3)The decision of the ARO is to be regarded as an answer to the request for review by the applicant on 4 January 2011;
(4)I find the decision of the SSAT is correct in its finding that the original decision was made on 4 January 2011; and
(5)The applicant is “self-employed”. This is evidenced by the letter from Yellow Cabs dated 21 June 2011. There is also authority for this finding in the decision of the Full Court of the Federal Court in Commissioner of Taxation v De Luxe Red and Yellow Cabs Cooperative (Trading) Society Ltd and Others (1998) 82 FCR 507; 98 ATC 4466.
(6)I find that the decision of the SSAT that the effective date is 4 January 2011 is not correct. Despite the evidence by Yellow Cabs (letter dated 21 June 2011), there was in the original decision of 4 January 2011 reference to an effective date, which is 7 December 2010. That should therefore be the effective date of Mr Lemon’s age pension based on his self-employed status.
(7)By virtue of s 78 of the Act, the rate of age pension as a self-employed taxi driver is therefore to be increased for Mr Lemon with effect from 7 December 2010.
DECISION
The Tribunal decides that:
(a)The decision under review is set aside;
(b)The date of the original decision is 4 January 2011; and
(c)The effective date for implementation of the decision dated 4 January 2011 is 7 December 2010.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD ........................[Sgd]................................................
Associate
Dated 2 May 2013
Date of hearing 6 March 2013 Applicant In person Solicitors for the Respondent Mr Joe Guthrie, departmental advocate
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