Rosehart and Secretary, Department of Families , Housing, Community Services and Indigenous Affairs
[2013] AATA 155
•21 March 2013
[2013] AATA 155
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4566
Re
MITCH ROSEHART
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 21 March 2013 Place Brisbane The Tribunal affirms the decision under review.
....................[Sgd].................................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Portability provisions – Accrued portability rights under earlier provisions – Amendments to portability provisions apply – Decision under review affirmed
PRACTICE AND PROCEDURE – Jurisdiction – Review of previous decisions – Operation of sections 142 and 179 of the Social Security (Administration) Act 1999 (Cth) – No jurisdiction to review previous decisions
PRACTICE AND PROCEDURE – Application for dismissal as frivolous or vexatious – Claim long ceased to exist – Devoid of any practical effect – Question of law to be tested – Application refused
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 5
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (Cth)
Social Security Act 1947 (Cth)
Social Security Act 1991 (Cth) ss 1213A, 1217, 1218AA, 1218AAASocial Security (Administration) Act 1999 (Cth) ss 142, 179
CASES
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Mathieson v Burton (1971) 124 CLR 1
Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Secretary, Department of Health and Ageing (2006) 90 ALD 457
Re Williams and Australian Electoral Commission and Another (1995) 38 ALD 366
Rosehart and Secretary, Department of Employment and Workplace Relations [2006] AATA 417Rosehart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 699
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
INTRODUCTION
The applicant in this matter, Mr Mitch Rosehart, has appealed a decision of the Social Security Appeals Tribunal (SSAT) in relation to a claim for the period 13 November 2010 to 28 March 2011 when he was overseas in the Philippines. He was in receipt of disability support pension (DSP) at all relevant times but the respondent department determined that as he was away from Australia for more than 13 weeks he was not entitled to continue to receive that pension in excess of the first 13 weeks’ absence and until he returned to Australia. After he sought reconsideration of the original decision by a departmental officer as well as a further review by an authorised review officer (ARO), there was a residual period of 1 March 2011 to 28 March 2011 for which he continued to be denied DSP. He then submitted that there were medical reasons why he was delayed from leaving the Philippines. Ultimately, he was paid DSP for the full period for which he was away, the original 13 weeks plus an extended period.
In his appeal before the SSAT, Mr Rosehart referred also to two previous claims he made when he was absent from Australia for a period in 2004 and 2005 (see Administrative Appeals Tribunal (AAT) decision of 12 May 2006)[1] and for a period in 2008 and 2009 (see AAT decision 11 September 2009)[2]. Both of these decisions have been fully argued previously and resulted in rejection of the applicant’s claims by both the SSAT and the AAT. The applicant now seeks to have those earlier decisions reopened and reconsidered as he has been successful in the claim for his most recent absence from Australia in 2011.
[1] Rosehart and Secretary, Department of Employment and Workplace Relations [2006] AATA 417.
[2] Rosehart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 699.
ISSUES
Mr Rosehart’s contentions result in three issues requiring determination. These are:
(1)For the period 13 November 2010 to 28 March 2011, for which the applicant has subsequently been paid the full amount of DSP for the whole of the period he has been absent from Australia (including the period in excess of 13 weeks), has Mr Rosehart been paid DSP for the entire period of his overseas absence? If not, is there an entitlement to any additional payment?
(2)In relation to the earlier decisions by the AAT of 12 May 2006 and 11 September 2009, can these decisions be further reviewed as submitted by Mr Rosehart? and
(3)Should the application be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth)?
THE CLAIMS AND THE EVIDENCE
Mr Rosehart is now 59 years of age and was first granted DSP over 20 years ago on 25 April 1991. That approval was made under the former Act; the Social Security Act 1947 (Cth).
Mr Rosehart has a number of medical conditions. A medical report, dated 10 February 2001,[3] which provided medical and other information relevant to Mr Rosehart’s claim for DSP at that time, cites mood disorders (anxiety, depression and panic attacks) as well as a spondylothesis, severe back pain, irregular heart beats and joint pain. In the lengthy attachment accompanying the applicant’s application for review in the Administrative Appeals Tribunal,[4] the applicant refers to a report by Dr Tabart which refers to him suffering a “severe asthmatic attack” in 2005 and which the doctor says can be regarded as a “serious medical illness”. The applicant has referred to this evidence to support the reopening of the earlier decisions of this Tribunal in 2006 and 2009.
[3] Exhibit 1, T-document 19, pp. 225-228.
[4] Exhibit 1, T-document 1, pp. 1-10, esp. pp. 9-10.
CONSIDERATION
I consider each of the issues for determination itemised earlier.
Issue 1
This issue is concerned with whether there can be any effective reconsideration of the SSAT decision for the period ending 28 March 2011. On the evidence presented to me, Mr Rosehart has been fully paid for that period and he presented no evidence and no argument to the contrary at the hearing of this matter. I find that Mr Rosehart has been fully paid for the whole of the period for which he appealed to the SSAT, covering his absence overseas from 30 November 2010 to 29 March 2011. He therefore cannot succeed on this issue.
Issue 2
This issue deals again with the applicant’s claim to have decisions reviewed from earlier years. This is an overlapping claim on the basis that the earlier decisions entitled the applicant to portability of accrued rights under the Social Security Act 1947 (Cth), the statute in existence at the time of Mr Rosehart’s initial approval to be granted DSP.
The applicant has made a claim to reopen two earlier decisions, one in 2006 and one in 2009, where he had been absent overseas on previous occasions but was unsuccessful in having his DSP payable for part of each of those absences. The respondent submits that Mr Rosehart has attempted to have those decisions reviewed in conjunction with the SSAT’s most recent decision in respect of the period of absence overseas from 13 November 2010 to 28 March 2011. The respondent further submits that the latest decision of the SSAT, dated 11 September 2012 (and released to the applicant on 13 September 2012), does not permit a review of the earlier decisions by virtue of ss 142 and 179 of the Social Security (Administration) Act 1999 (Cth) (the 1999 Act).
Section 142 of the 1999 Act allows a decision made by the Secretary, the chief executive of Centrelink or an authorised review officer to be reviewed by the SSAT where an application is made by a person whose interests are affected by that decision. The latest decision of the SSAT did not include any reference to the matters considered in the two earlier decisions and, as a consequence, the Secretary’s submission that those earlier decisions are not included within the scope of the “decision” referred to in s 142 for the purposes of the present appeal is correct. With both of those earlier decisions having been appealed and decided upon by the AAT some years ago, any period for review has long expired.
Section 179 of the 1999 Act defines the jurisdiction of this Tribunal in respect of review of decisions of the SSAT. That section provides that this Tribunal can review decisions where the SSAT has considered a matter and has made a decision to affirm, vary or set aside an administrative decision under review. Therefore, it appears that the only decision which this Tribunal can presently review is the decision of the SSAT in respect of Mr Rosehart dated 11 September 2012.
I find that the earlier completed decisions of this Tribunal in relation to the applicant’s absences overseas in 2005 and 2006 and in 2008 and 2009 are not competent for review within the decision which was determined by the SSAT as it is not within the statutory jurisdiction of this Tribunal.
The respondent submits, in addition, that both of those decisions are functus officio (Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Secretary, Department of Health and Ageing (2006) 90 ALD 457). The respondent further submits that any claim to treat the applicant as “severely impaired” under s 1218AAA of the Social Security Act 1991 (Cth) (the Act) in the future cannot be considered by this Tribunal as that provision was not in operation at the time of the current decision being reviewed. This was not a matter upon which evidence was considered by the SSAT and nor was any evidence specifically put to this Tribunal.
The portability criteria under which the applicant was entitled to be considered at earlier times are contained in ss 1217 and 1218AA of the Act.
Section 1217 of the Act was inserted by amendments which commenced on 20 September 2000. At that date, if a person was absent and had not returned to Australia for a continuous period of 26 weeks or more after that date, the former section 1213A continued to apply to such a person. There was clearly an accrued right for such a person as at 20 September 2000. It is to be noted that the Government, in 2004, sought to amend those provisions again and the Parliament passed further amendments which further confined the entitlement of a person who was entitled to the benefit of an accrued right of the 2000 amendments; those accrued rights ceased in 2004. By Act No. 122 of 2003,[5] certain amendments were made which commenced operation in 2004. The effect of those amendments was to delete any distinction between persons on DSP who were formerly categorised as either “severely disabled” or a person “other than severely disabled”. All such recipients of DSP were merely referred to as “any persons”. Importantly, s 1217 then prescribed, after the commencement of those amendments, that any person who is not severely disabled could only retain portability of Social Security payments for 13 weeks rather than the previous 26 week time frame. Additionally, the amendments, and the effect of not categorising persons as either “severely disabled” or not severely disabled, meant that a person who had been classed as “severely disabled” had their portability reduced from an “unlimited period” to 13 weeks also.
[5] Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (Cth).
Section 1218AA was also included within that amending Act. It referred to a person who was severely disabled and allowed a person in that category to have unlimited portability; but there were strict qualifying conditions introduced. Such a person must satisfy the definition of being “severely disabled” and must be receiving DSP. In addition, the person must be terminally ill; the absence of the person from Australia must be a permanent absence; and the purpose of the person’s absence must be to be near a family member or to return to that person’s country of origin. All of those requirements are cumulative. There is no evidence before the Tribunal which indicates Mr Rosehart satisfies those requirements. Therefore, there is no saving provision which entitles him to recourse to any accrued right which existed earlier under the 1947 Act.
In addition to that reason, the commencement of those amendments in 2004 are required to commence on the commencement date (s 5 of the Acts Interpretation Act 1901 (Cth)(as amended)). The High Court has also indicated that where such amendments indicate the repeal of a former provision and as a result an individual’s rights might then become more limited, then such limitation is lawful (see Mathieson v Burton (1971) 124 CLR 1).
The claim by Mr Rosehart that his entitlement cannot be altered is not correct in this case. It is not that his entitlement to DSP has been altered. It is that one of the conditions to be able to be entitled to then carry the benefits of DSP while he lives overseas has been restricted by the Parliament. Looking at the amendments since 2000, various governments and the Parliament appear to have been concerned about the number of people who took their pension entitlements and lived overseas for extended periods. Parliament has simply seen that that was a practise that requires some further regulation. The limitation which was introduced by the 2004 amendments does not deny entitlement to DSP but merely specifies that it will not be payable when somebody is not living in Australia for a period longer than 13 weeks, unless of course, they can satisfy the new statutory requirements for being “severely disabled” contained in the Act.
I therefore find the applicant cannot succeed under Issue 2.
Issue 3
The respondent has submitted that there is an issue about whether the applicant’s claim should be struck out under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) as being a claim which is frivolous. The respondent referred me to Re Williams and Australian Electoral Commission and Another (1995) 38 ALD 366 (Williams). There, at [39], the Tribunal, consisting of President Mathews J and Deputy Presidents Beaumont and Hill JJ, held a matter could be dismissed where the basis of a person’s claim had long ceased to exist and, in any event, any outcome from the application before the Tribunal would be “devoid of any practical effect”.
In a technical sense Mr Rosehart’s application would seem to fall within the parameters set out in the Williams case. However, I would not make an order under s 42B in this case as, despite the fact that the outcome of the claim made against the SSAT decision would be “devoid of any practical effect”, Mr Rosehart raised the additional question pertaining to matters already determined some years in the past and sought to test the legal question of whether there were any residual rights available to him. However, as determined above, the applicant cannot succeed in that claim.
In relation to those older claims, it must also be said however that there must always be a point where there is finality to matters litigated and it is not the intention of the Parliament that matters can be resurrected many years after the event and without any legal merit. In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Kenny J, at [24], identified four classes of cases to be considered in re-opening a matter:
(1) fresh evidence (Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2);
(2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness);
(3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and
(4) mistaken apprehension of the law (UTA at 478).
There is no reason why the above categories might not also be matters which are relevant to merits review, such as cases before this Tribunal. I am not aware of any evidence which would bring the applicant’s claims within any of those categories. In any event, Kenny J in the above case went on to say, at [24], that:
… the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478…
From the evidence presented, the interests of justice are not better served by allowing reconsideration of the applicant’s submission as the post 2004 amendments would apply to both of the decisions which Mr Rosehart has referred to and therefore he could not succeed even if reconsidered. Those matters must now be regarded as finalised. Issue 3 therefore must fail also.
DECISION
The decision under review is therefore affirmed.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD ....................[Sgd]..................................
Associate
Dated 21 March 2013
Date of hearing 23 January 2013 Applicant In person Advocate for Respondent Ms Karen Hamilton
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