Sheather and Secretary, Department of Social Services (Social services second review)

Sheather and Secretary, Department of Social Services (Social services second review) [2021] AATA 3798 (18 October 2021)
Division: GENERAL DIVISION
File Number: 2021/1520
Re:Paul Sheather
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date of decision: 18 October 2021
Place:Brisbane

The Tribunal dismisses the application for review pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
................[SGD]........................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – date of effect of disability support pension – request for review of initial rejection decision not made within 13 weeks – date of effect of a favourable decision
PRACTICE AND PROCEDURE – role of the Tribunal – application for dismissal of application for review – frivolous or vexatious or no prospects for success – no utility in review – favourable decision would have no practical benefit for the Applicant – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
CASES
Flahive and Comcare (Compensation) [2021] AATA 2444
McCarthy and Building Practitioners Board [2016] AATA 1029
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Shah and Child Support Registrar (Child Support) [2020] AATA 2644
Stanley and Minister for Foreign Affairs [2018] AATA 982
Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57

REASONS FOR DECISION
Member D Mitchell
18 October 2021
INTRODUCTION

By way of application dated 5 March 2021, Mr Paul Sheather (the Applicant) sought a second-tier review[1] of a decision made by the Social Services and Child Support Division (SSCSD)[2] on 23 February 2021.
[1] T-Documents, T1, pages 1-2, Application for review.
[2] T-Documents, T2, pages 3-7, Decision of the SSCSD.
The decision the Applicant is seeking to be reviewed relates to the commencement date on which his grant of disability support pension (DSP) could be paid.
BACKGROUND
The Applicant lodged claims for DSP on 3 February 2016[3] (the 2016 claim), 26 September 2018[4] (the 2018 claim), 3 April 2019[5] (the April 2019 claim), 18 November 2019[6] (the November 2019 claim) and 28 February 2020[7] (the 2020 claim).
[3]     Supplementary T-Documents, ST1, pages 1-34, Claim for DSP – 2016 claim.
[4]     Supplementary T-Documents, ST8, pages 43-74, Claim for DSP – 2018 claim.
[5]     Supplementary T-Documents, ST10, pages 77-107, Claim for DSP – April 2019 claim.
[6]     T-Documents, T4, pages 23-32, Claim for DSP – November 2019 claim.
[7]     T-Documents, T8, pages 55-65, Claim for DSP – 2020 claim.
On 17 May 2016, the Respondent rejected the Applicant’s 2016 claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[8]
[8] Supplementary T-Documents, ST2, pages 35-36, Rejection of claim for DSP – 2016 claim.
On 7 October 2018, the Respondent rejected the Applicant’s 2018 claim for DSP on the basis that he did not provide sufficient medical evidence to assess his claim.[9]
[9] Supplementary T-Documents, ST9, pages 75-76, Rejection of claim for DSP – 2018 claim.
On 20 May 2019, the Respondent rejected the Applicant’s April 2019 claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[10]
[10] Supplementary T-Documents, ST11, pages 108-109, Rejection of claim for DSP – April 2019 claim.
On 5 December 2019, the Respondent rejected the Applicant’s November 2019 claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[11]
[11] T-Documents, T19, pages 130-131, Rejection of claim for DSP – November 2019 claim.
On 28 April 2020, the Respondent granted the Applicant’s 2020 claim for DSP commencing from the date of his application (being 28 February 2020).[12]
[12] T-Documents, T19, pages 134-135, Letter granting DSP from 28 February 2020 – 2020 claim.
On 16 June 2020, the Applicant sought review of the decision to grant his 2020 claim for DSP on the basis that he was seeking to be back paid the DSP from the date he submitted his 2016 claim.[13]
[13] T-Documents, T18, page 119, Centrelink Mainframe notes.
On 15 October 2020, an Authorised Review Officer (ARO) varied the decision of

28 April 2020 such that the Applicant was eligible for DSP from 18 November 2019 (being the date the Applicant made his November 2019 claim).[14] The ARO found that the Applicant’s 2020 claim for DSP could be taken to be a request for review of the refusal decision made on 5 December 2019 and as it was made within 13 weeks of the refusal decision, the Applicant could be back paid to the date of the November 2019 claim. The ARO was satisfied that the Applicant was eligible to be granted the DSP from

18 November 2019.[15]
[14] T-Documents, T13, pages 86-92, Decision and notes of the ARO.
[15] T-Documents, T13, pages 86-92, Decision and notes of the ARO.
In noting the Applicant’s concerns in relation to a lack of assistance being provided to him in relation to the DSP application process, the ARO drew the Applicant’s attention to the Compensation for Detriment caused by Defective Administration Scheme (CDDA Scheme).[16]
[16] T-Documents, T13, pages 88, Notes of the ARO.
Each of the letters advising the Applicant of the decision made in relation to his claims for DSP provided the following information:[17]
[17]    Supplementary T-Documents, ST2, page 36, Rejection of claim for DSP – 2016 claim; ST9, page 76, Rejection of claim for DSP – 2018 claim; ST11, page 109, Rejection of claim for DSP – April 2019 claim and T-Documents, T19, page 131, Rejection of claim for DSP – November 2019 claim; T19, page 135, Letter granting DSP from 28 February 2020 – 2020 claim and T13, pages 86 - 87 Decision of the ARO.
If you do not agree with a decision we have made
·     Contact us so that we can check the details and explain the decision.
·     Contact us and ask for a review of the decision. We will change it if it is wrong.
·     Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.
·     If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au
All of the above is free of charge.
If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.
There is no time limit for a view of a decision about money you owe us. However you may have to pay back the money while the decision is being review.
The Applicant applied to the SSCSD[18] for further review of the ARO decision. On

23 February 2021 the SSCSD affirmed the decision.[19]
[18] T-Documents, T14, page 93-98, Request for review of decision by the SSCSD.
[19] T-Documents, T2, pages 3-7, Decision of the SSCSD.
The Tribunal received the Applicant’s application for further review on 12 March 2021.[20]
[20] T-Documents, T1, pages 1-2, Application for review.
On 17 August 2021, the Respondent provided written submissions requesting that the Tribunal conduct an Interlocutory Hearing to consider dismissing the Applicant’s application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application has no reasonable prospects of success.[21]
[21] Secretary’s Statement of Facts & Contentions dated 17 August 2021.
A telephone Interlocutory Dismissal Hearing was conducted in this matter on

13 October 2021.
ISSUES
The present issue before the Tribunal is whether the Tribunal should exercise its discretion to dismiss the Applicant’s application for review under section 42B(1) of the AAT Act.
THE ROLE OF THE TRIBUNAL
Senior Member McCabe (as he was then was) pointed out in the decision of Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57 at [4] that:
The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way. …
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal stands in the shoes of the original decision-maker and considers the matter afresh. The Tribunal considers the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) Affirming the decision under review;
(b) Varying the decision under review; or
(c) Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot however, make a decision that is outside of the law that is in place. Where no discretion is provided by the statute, the Tribunal cannot, regardless of its view on the matter, make a decision that is not correct at law.
SHOULD THE APPLICATIONS BE DISMISSED?
Section 42B(1) of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Whether an application for review is frivolous, vexatious, misconceived or lacking in substance has been considered by the Tribunal on numerous occasions. The Tribunal’s decision in Reddish and Civil Aviation Safety Authority [1999] AATA 721 (Reddish) sets out the principle that an application for review made to the Tribunal may be dismissed as being frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant.
The Tribunal, in Reddish, at [33] said:
… The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. …
This view has continued to be applied in subsequent Tribunal decisions.[22]
[22] For example see: Rundle and Civil Aviation Safety Authority [2002] AATA 349; McCarthy and Building Practitioners Board [2016] AATA 1029; Stanley and Minister for Foreign Affairs [2018] AATA 982; Shah and Child Support Registrar (Child Support) [2020] AATA 2644 and Flahive and Comcare (Compensation) [2021] AATA 2444.
MATERIAL BEFORE THE TRIBUNAL
Centrelink Mainframe notes provide that on 16 June 2020 the Applicant sought review of the decision to grant the 2020 claim from 28 February 2020 and that he was seeking to be back paid DSP from the date of the 2016 claim. The file note provided:[23]
Why does the customer want the decision quality checked?
Customer feels he should be entiltled to be compensated / back paid for Disability payment. Customer believes the granting of his DSP was granted with the same Medical information that was valid and current five years ago when prvious DSP claim were rejected. Customer believes passed claims asked if : customer required assisteance in gathering medical information. : customer states this assisstance was never given. Customer feel he should back paid from the original claim date [SIC]
[23] T-Documents, T18, page 119, Centrelink Mainframe file notes.
On 15 October 2020, finding that the Applicant was eligible for DSP from 18 November 2019 (being the date of his November 2019 claim) and varying the decision of 28 April 2020 accordingly, the ARO provided:[24]
As I advised you by telephone on 15 October 2020, I have decided to change the decision. I have decided that you are eligible for DSP from 18 November 2019, the date of your previous claim for the payment that was rejected on 5 December 2019 due to your medical conditions not being considered as fully treated and stabilised at that time.
I will arrange for Services Australia to pay you a back payment of DSP for the period      18 November 2019 to 27 February 2020, taking into account the Newstart Allowance you received in the same period.
I have made this decision because you provided medical information within 13 weeks of 5 December 2019 that was used to determine your eligibility for DSP from 28 February 2020 as per Section 94 of the Social Security Act 1991 (the Act)…
This medical information supported and expanded upon previous reports regarding your chronic lumbar pain by Dr Robin Kaye dated 1 November 2019 and Physiotherapist Amos Paterson dated 14 November 2019.
Your DSP claim submitted on 28 February 2020 was an application for review as per Section 107 of the Social Security Administration Act 1999 (the Admin Act) of the 5 December 2019 decision to reject your former DSP claim of 18 November 2019.
I do not agree that you have provided sufficient medical evidence to show your chronic lumbar pain was fully diagnosed, treated and stabilised before your claim of      18 November 2019. You are not entitled to a back payment of DSP from before that date.
This means your appeal was partially successful.
[24]    T-Documents, T13, pages 86-87, Decision and notes of the ARO.
In seeking review of the ARO decision by the SSCSD the Applicant’s reason for making the application for review were outlined as follows:[25]
Hi, I believe that the start date for the approval should be back dated to the first application that I checked the tick box on the application to the question "Do you require assistance in getting the medical information required". I spent several years desperately trying to get Centrelink to enlighten me to what medical information they require, (and in 3 states I might add), had they done this I would have been able to provide the medical information required for a successful application years earlier. It was not until Centerlink's application process went online that I was actually able to find the information required to meet Centerlink's criteria. [SIC]
[25] T-Documents, T14, page 94, Application for review of decision by the SSCSD.
In making this present application to the Tribunal the Applicant’s reasons for making the application for review were outlined as follows:[26]
Because it’s wrong.
If Centrelink had have given me the required information when requested I would have been able to supply the correct information for an approval on my 3-02-2016 application.
[26] T-Documents, T1, page 2, Application for Review.
The Centrelink Mainframe notes before the Tribunal indicate that the Applicant’s contact with the Respondent between 17 May 2016 and 16 August 2016 related to his Newstart Allowance.[27] There is no evidence in the Centrelink Mainframe notes before the Tribunal that the Applicant sought review of the 2016 claim prior to 16 June 2020, or for that matter that he sought review of the decision to reject his 2018 or April 2019 claims.
[27] Secretary’s Statement of Facts & Contentions, Attachment A.
At the Telephone Interlocutory Dismissal Hearing the Applicant told the Tribunal that:
·He went into a Centrelink office after he received the decision refusing his 2016 claim and was told that he needed 20 points and to resubmit a new claim.
·Shortly, after that time he was in a large amount of pain and on pain medication up until he had his surgery. He was not in a position to be able to fill out forms.
·He had ticked the box indicating that he needed help completing the forms and no one ever got back to him or told him what details he needed to meet the 20 point requirement. This was despite going to three different Centrelink offices.
·He did not submit a request for review of the decision to refuse his 2016 claim as he understood that he needed to show 20 points and resubmit.
·He believes that he met the eligibility requirements for DSP at the time of his 2016 claim, however said it was hard to know that at the time as no one would help him to understand the requirements.
·He only started to understand the 20 point criteria after the DSP application forms went online.
·He had tried unsuccessfully to get assistance to understand and meet the DSP requirements.
·He was aware of the CDDA Scheme and has the paper work but understands that it is better for the Tribunal process to be finished before deciding whether he wants to pursue that pathway.
·He has no view on the operation of section 107 of the Administration Act.
The Respondent contended that there is no evidence to suggest that the Applicant sought review of the decision to reject the 2016 claim within 13 weeks of him being given notice of the decision. The Respondent contended that as such the earliest date that a favourable determination to grant the Applicant DSP could take effect was from 16 June 2020, being the date on which the Applicant is considered to have sought review of the decision to reject his 2016 claim.[28]
[28] Secretary’s Statement of Facts & Contentions, page 4, paragraphs 23-24.
The Respondent contended that as a result, as 16 June 2020 post-dates 18 November 2019, being the date the Applicant was granted DSP, no arrears would be payable. The Respondent contended that in this situation it is a futile exercise to consider whether the Applicant’s request for review could result in a favourable determination (that he was qualified for DSP at the 2016 claim) in circumstances where no arrears would be payable.[29]
[29] Secretary’s Statement of Facts & Contentions, page 4, paragraphs 24-25.
The Respondent contended that the Applicant’s application is misconceived and has no reasonable prospects of success, as for the Applicant to be successful in the present application there would need to be evidence that he requested a review of the original decision to reject the 2016 claim earlier than 16 June 2020 irrespective of whether he met the qualification criteria for DSP at the date of the 2016 claim or not.[30]
[30] Secretary’s Statement of Facts & Contentions, page 6, paragraph 32.
The Respondent sought that an order be made dismissing the application pursuant to section 42B(1) of the AAT Act.[31]
[31] Secretary’s Statement of Facts & Contentions, page 6, paragraph 34.
CONSIDERATION
In most instances, where review rights exist under social security law there is no fixed time frame within which a person may seek either internal review of an initial decision or review by the SSCSD of an ARO decision. The point in time that such a request for review is made does however, impact on the date of effect of a favourable determination resulting from such a review.

Section 107 of the Social Security Administration Act 1999 (Cth) (Administration Act) simply put, provides that where a decision is made rejecting a person’s claim for social security payments or a concession card and a request for review of that decision is not made within 13 weeks of the decision being made, the date of effect of any favourable determination arising from that review would be the date the request for review was made, rather than from the date that the reviewable decision was made. Relevantly, section 107 of the Administration Act provides:
Subdivision A—Determinations relating to claims
107 General rule
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
(2) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b) the person is given a notice informing him or her 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) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and
(b) the person is given a notice informing him or her 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) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the application for review was made.
……
The Applicant was honest and frank in relation to his submissions to the Tribunal at the telephone Interlocutory Hearing. It is clear to the Tribunal that the Applicant had a difficult time both medically and with dealing with the DSP application process over the period between his 2016 claim and when he was eventually granted the DSP.
The Applicant’s evidence that he had not sought review of the decision to refuse his 2016 claim before being granted the DSP in 2020 is reflective of the documentary evidence before the Tribunal. As such it is clear that the Applicant did not seek a review of the 2016 decision within 13 weeks of having received the decision or at a time earlier than 16 June 2020 (being when he sought review of the decision to grant him DSP from 28 February 2020).
Consequently, given the operation of section 107(3) of the Administration Act, even if the Tribunal was to find that the Applicant was eligible for DSP at the time of making his 2016 claim the date of effect of such a decision would be 20 June 2020. By this time the Applicant had been granted the DSP from 18 November 2018. There is no facility available for back pay to be issued to the Applicant in relation to the period of 3 February 2016 to 17 November 2019.
The Tribunal acknowledges the Applicant’s submissions that despite seeking assistance from the Respondent in relation to the DSP application process that he did not receive the assistance he needed. The Tribunal notes that the service provided by the Respondent is not a matter for this Tribunal to comment on or review and even if it were, the behaviour of the Respondent’s Client Service Officers or its internal processes do not impact upon the operation of section 107 of the Administration Act.
There is no discretion available to the Tribunal that would affect the operation of section 107(3) of the Administration Act. As such the Tribunal has not engaged in an analysis of the Applicant’s prospects of success in relation to his eligibility for DSP at the time of his 2016 claim, the point is moot given that no practical effect would result from a favourable decision.
The Tribunal considers that the Applicant’s present application is frivolous. The Tribunal finds that the application is manifestly groundless. It is clear that this Tribunal would be unable to make a decision that would be of any practical benefit to the Applicant.
Consequently, the Tribunal considers in line with the principles set out in Reddish referred to in paragraphs 24 and 25 above that it is appropriate to exercise the discretion provided by section 42B(1)(a) of the AAT Act. The Tribunal, therefore, dismisses the Applicant’s application for review on the basis that it is frivolous. There is no utility in the matter remaining on foot.
In making this decision the Tribunal has had regard to the objectives of the Tribunal to provide a mechanism of review that is accessible, fair, just, economical, informal and quick and is proportionate.[32]
[32] Section 2A of the AAT Act.
The Tribunal notes that the CDDA Scheme was discussed at the telephone Interlocutory Dismissal Hearing and that it may be an option open to the Applicant to pursue that avenue of inquiry.
DECISION
Pursuant to section 42B(1)(a) of the AAT Act the application for review is dismissed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................[SGD]..............................
Associate
Dated: 18 October 2021

Date of hearing: 13 October 2021

Applicant: By telephone

Advocate for the Respondent: Mr Christopher Murphy

Solicitors for the Respondent: Services Australia

[2021] AATA 3798

18 October 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	13 October 2021
Applicant:	By telephone
Advocate for the Respondent:	Mr Christopher Murphy
Solicitors for the Respondent:	Services Australia