Roszko and Secretary, Department of Health (Social services second review)

[2018] AATA 3786

Roszko and Secretary, Department of Health (Social services second review) [2018] AATA 3786 (11 October 2018)

Division:GENERAL DIVISION

File Number:           2018/2481

Re:Rosemary Roszko

APPLICANT

AndSecretary, Department of Health

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:11 October 2018

Place:Adelaide

Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975, the application for review is dismissed.

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Senior Member B J Illingworth

CATCHWORDS

PRACTICE AND PROCEDURE – Dismissal application – Jurisdiction – s 42A(4) Administrative Appeals Tribunal Act 1975 – Whether decision reviewable – Assessment of entitlement to aged pension – Whether aged care accommodation fee overpayment reviewable – Application for review dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 42A(4), s 42B(2)

Social Security (Administration) Act 1999, s 109

REASONS FOR DECISION

Senior Member B J Illingworth

11 October 2018

INTRODUCTION

1. The decision under review is that of the Administrative Appeals Tribunal (Social Services and Child Support Division) (“AAT1”) made on 28 February 2018, which set aside a decision of an Authorised Review Officer (“ARO”) dated 10 August 2017. The AAT1 decided that for the purpose of the Applicant’s assessment of entitlement to aged pension, she should be treated as living separately and apart from her husband, since the date of her admission to an aged care facility on 8 August 2016. Further, that the date from which that assessment generally applied was 19 August 2016.

2. The AAT1 remitted the matter to the Secretary to determine the payment of arrears in accordance with s 109 of the Social Security (Administration) Act 1999 (“the Act”).

3. The Applicant suffers from dementia, and from 8 August 2016 has resided in a residential care facility. She was represented before the Tribunal by her brother Mr Trevor James Williams. The Respondent was represented by Mr Oliver Morris and Mr Joshua Stewart, FOI and Litigation Branch, Department of Human Services.

4. The Respondent has applied to the Tribunal to dismiss the application for review pursuant to either s 42A(4) or s 42B(2) of the Administrative Appeals Tribunal Act 1975 (“ the Act”) depending on the basis upon which the Applicant is seeking a review of the decision of the AAT1. It was not clear whether the Applicant was in fact seeking to review the decision in respect of the basis upon which the Applicant’s aged pension was to be calculated, the date from which that calculation was to operate, or whether there was another basis for the application, namely, the overpayment of aged care accommodation fees.

   BACKGROUND

5. Prior to the Applicant’s admission into residential care on 8 August 2016 she and her husband lived together. It is not in dispute that they were members of a couple for the purposes of social security assessment.

6. On 8 August 2016, the Applicant entered an aged care facility and it was accepted that she would never return home to live with her husband.

7. An application for assessment of assets and income was lodged for the purpose of assessing the Applicant’s residential aged care fees. On 19 August 2016, Centrelink determined that for the purposes of calculating the Applicant’s rate of aged pension, she was to be assessed as a member of a couple, albeit an illness separated couple, hence, the Applicant’s rate of aged pension was to be calculated taking into account the combined annual income of she and her husband. A Notice of same date was issued to the Applicant to that effect.

8. On 1 June 2017, the Applicant’s representative asked Centrelink that the Applicant be assessed as “living separately and apart” namely she be treated as a person who is not a member of a couple for social services purposes. Centrelink agreed to make a determination in those terms to take effect from 1 June 2017. The Applicant’s aged pension was to increase.

9. On 20 July 2017, Centrelink reversed its determination to the effect that the Applicant was to be assessed as a member of a couple albeit an illness separated couple.

10. On 28 July 2017, the Applicant through her representative applied for review of the 20 July 2017 decision.

11. On 10 August 2017, the ARO decided that the Applicant was to be treated as a person who is not a member of a couple, which resulted in a reassessment of, and increase in the Applicant’s rate of age pension. The ARO decided this decision take effect from 1 June 2017, being the date of the request for reassessment.

12. On 24 November 2017 the Applicant lodged an application for review of the ARO’s decision. That application provided reasons for the Applicant’s disagreement with the decision as follows[1]:

    …incorrectly assessed as “illness separated” from 08/08/16 instead of being correctly assessed as living separate and apart”. Since corrected but only with effect from 01/06/17.

    [1] T3 p 15.

    ISSSUE FOR DETERMINATION

13. The issue before the AAT1 was:

    (a)the Applicant’s appropriate classification for aged pension assessment namely whether the applicant was;

    (i)a member of a couple albeit an illness separated couple; or

    (ii)a single person for Social Security purposes; and

    (b)the date from which the assessment commenced to operate.

14. The AAT1 decision was that the ARO correctly classified the Applicant as a single person, but the commencement date for that assessment was 19 August 2016. For the purpose of this decision I do not need to detail the reasoning of the AAT1 in coming to that decision.

15. In the course of the AAT1 review the Applicant raised a further complaint namely, that in consequence of the original decision by Centrelink that the Applicant’s aged pension be calculated on the basis that she was to be assessed as a member of a couple, albeit an illness separated couple, the incorrect rate of pension was used to calculate the Applicant’s obligation to pay aged care fees, and that an overpayment  totalling $2,591.61 for accommodation payment, had been wrongly paid to Eldercare. This sum, it was said, was an overpayment of aged care accommodation fees and should be reimbursed to the Applicant.

16. It soon became apparent that it was the question of reimbursement of the overpayment of fees to Eldercare that the Applicant sought to agitate before the Tribunal, not the decision of the AAT1. The Applicant’s representative said the AAT1 was correct in the characterisation of the Applicant’s status for the purpose of the assessment of her aged care pension, as was the date from which that assessment was to operate.

17. The AAT1 decision with respect to the overpayment of Eldercare accommodation fees reads at paragraphs 13 and 14 as follows[2]:

    13. The application for review in the Tribunal was lodged on 24 November 2017, requesting arrears from 8 August 2016. It has been added in written submissions that Mrs Roszko also seeks compensation for payment of aged care fees she would not have been liable for had the correct assessment been made at the time of her admission into residential care.

    14. I have explained to Mrs Roszko’s representatives that as I am undertaking this review in the Social Security and Child Support Division of the Tribunal, I do not have jurisdiction to review decisions made about aged care fees, notwithstanding I recognise that the rate of age pension and the aged care fee assessment are closely related and both are dealt with by authorised review officers within Centrelink. A review of a decision about an aged care fee assessment must proceed in the General Division of the Tribunal. I understand that Registry staff have now assisted Mr Williams and Mr Roszko to identify the administrative process that may lead to a review in the General Division of the Tribunal about this issue.

    [2] T2, p 8.

18. It also became apparent to the Tribunal in the course of argument, that insofar as the AAT1 at paragraph 14 referred to the review of the decision about aged care fee assessment proceeding in the General Division of the Tribunal, the Applicant’s representative understood that he had a right to bring this application to decide the question of reimbursement for accommodation payment before the General Division of the Tribunal which he has now done.

19. However the AAT1 decision under heading “Other matters” said[3]:

    40. Mr Williams provided the Tribunal with correspondence between himself and Centrelink pertaining to the scheme operated by Centrelink for Compensation for Detriment due to Defective Administration (CDDA). As discussed with Mr Williams at hearing, typically Centrelink will not progress a claim under that scheme until review in the Tribunal has been completed. As mentioned to Mr Williams at the hearing, the Tribunal has no jurisdiction or role in relation to claims made under that scheme, but he remains entitled (on behalf of Mrs Roszko) to pursue a claim under that scheme directly with Centrelink.

    [3] T2, p 11.

20. Until the Applicant’s position was clarified, the Respondent was unsure as to the basis of the application currently before the Tribunal. Once clarified the Respondent argued that the application ought be dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) on the basis that there was no reviewable decision before the Tribunal and hence pursuant to s 42A(4) of the AAT Act, the Tribunal has no jurisdiction and the application should be dismissed. Further, the Respondent argued that any issue of reimbursement of overpayment to Eldercare and the scheme operated by Centrelink for Compensation for Detriment Caused by Defective Administration was not a decision that could be reviewed to the General Division of the Tribunal in any event.

    CONCLUSION

21. The decision of the AAT1 was limited to the classification under which the Applicant fell for the purpose of determining her entitlement to the aged care pension and the date from which that entitlement commenced.

22. No decision was made by the AAT1 which was capable of review to the Tribunal with respect to the overpayment to Eldercare as a consequence of the incorrect assessment of the Applicant’s aged care pension assessment.

23. There is no reviewable decision currently before the Tribunal.

    DECISION

24. Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975, the application for review is dismissed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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Associate

Dated: 11 October 2018

Date of interlocutory hearing:	4 September 2018
Advocate for the Applicant:	Mr Trevor Williams
Advocates for the Respondent:	Mr Oliver Morris & Mr Joshua Stewart
Solicitors for the Respondent:	Department of Human Services