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

This matter concerned an application for review of a decision by the Secretary, Department of Social Services, regarding the commencement date for the applicant's Disability Support Pension (DSP). The applicant had lodged multiple claims for DSP between 2016 and 2020. While his 2020 claim was granted from 28 February 2020, an Authorised Review Officer (ARO) later varied this decision on 15 October 2020, to commence from 18 November 2019, the date of his November 2019 claim. The applicant sought further review, contending he should be paid from the date of his initial 2016 claim. The Secretary sought to have the application dismissed.

The Administrative Appeals Tribunal (AAT) was required to determine whether to exercise its discretion to dismiss the applicant's application for review under section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), on the basis that it had no reasonable prospects of success or was otherwise without utility. This involved considering the legal effect of the applicant's failure to seek review of earlier rejection decisions within the prescribed 13-week period.

The Tribunal considered section 107 of the Social Security Administration Act 1999 (Cth), which governs the date of effect of favourable determinations following a review. This section stipulates that if a review is requested more than 13 weeks after notification of an original rejection decision, any favourable determination will take effect from the date the review was requested, not the date of the original decision. The Tribunal noted that the applicant had not sought review of the 2016 rejection decision within 13 weeks, nor had he sought review of any subsequent rejection decisions within the relevant timeframes before seeking review of the favourable 2020 decision.

The Tribunal concluded that a favourable decision on the applicant's current application for review would have no practical benefit, as any revised commencement date could not predate the date of the review request, which was 16 June 2020. Therefore, the Tribunal found the application to be futile and dismissed it under section 42B(1) of the AAT Act.