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

[2016] AATA 578

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2016/2652

General Division  )

Re: Lorraine Smith

Applicant

And: Secretary, Department of Social Services

Respondent

CORRIGENDUM

TRIBUNAL:              Deputy President Bernard J McCabe
  Senior Member Theodore Tavoularis

DATE:   25 August 2016

PLACE:                    Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

In paragraph 14 of the decision the second sentence should read:

“The back page of the notice correctly advised the applicant that she was required to ask for the decision to be reviewed if she disagreed with the decision.”

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Deputy President  Senior Member

Smith and Secretary, Department of Social Services (Social services second review) [2016] AATA 578 (05 August 2016)

Division	GENERAL DIVISION
File Number	2016/2652
Re	Lorraine Smith
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal	Deputy President Bernard J McCabe Senior Member Theodore Tavoularis
Date	05 August 2016
Place	Brisbane

We affirm the decision under review.

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Deputy President Bernard J McCabe  Senior Member Theodore Tavoularis

CATCHWORDS

SOCIAL WELFARE – Pension Bonus Scheme – administration – 13 week period to seek review – no jurisdiction to review decision outside of 13 week period – notice requirements satisfied – decision affirmed under review

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 126, 129, 237
Social Security Act 1991 (Cth) s 299
Public Governance, Performance and Accountability Act 2013 (Cth)

CASES

Secretary, Department of Family and Community Services v Rogers (2004) 104 FCR 272
Re Peura and Secretary, Department of Family & Community Services (2003) 78 ALD 570

SECONDARY MATERIALS

Scheme for Compensation for Detriment caused by Defective Administration

REASONS FOR DECISION

Deputy President Bernard J McCabe & Senior Member Theodore Tavoularis

05 August 2016

introduction

1. This is an application for a review of a decision of the Social Services and Child Support Division of the Administrative Appeal Tribunal (“the SSCSD”) dated 12 May 2016. On that date the SSCSD dismissed the application of Ms Lorraine Smith (“the applicant”) for want of jurisdiction.

   issues

2. There are two primary issues before the Tribunal. First, whether the Tribunal has jurisdiction to conduct this further review. If not, that is the end of the matter.

3. Were the applicant to establish the jurisdictional point, the second issue is whether the relevant notice was or was not defective in terms of adequately notifying the applicant of her rights of appeal following rejection of her application for eligibility to receive the Pension Bonus Scheme.

   facts

4. On 4 March 2014 the applicant lodged an application for registration as a member of the Pension Bonus Scheme with the Department of Human Services (“the Department”). On 8 May 2014 the Department rejected the application (“the original decision”). A letter was posted to the applicant notifying her of the decision. The applicant was notified of the original decision in accordance with s 237 of Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). On the back of the notice was a section titled “what to do if you think this decision is wrong.” This part of the notice stipulated:

   If you do not agree with this decision, please contact us and we will explain it. We will reconsider your case and change the decision if appropriate….

   Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any changes to that decision can only take effect from the date you ask.

5. On 11 September 2015 the applicant sought an internal review of that decision. On that date an Authorised Review Officer (“the ARO”) decided the Department did not have jurisdiction to review the decision.

6. The applicant applied to the SSCSD for a review of the decision of the ARO. On 12 May 2016 the SSCSD dismissed the application for want of jurisdiction.

   the jurisdictional issue

7. The applicant’s entitlement to seek a review of the original decision to reject her application for registration as a member of the Pension Bonus Scheme was subject to s 129 of the Administration Act. Subsection (3) provides:

   (3)  If:

   (a)  an officer makes a decision under the social security law in  

   
   

   relation to pension bonus, low income supplement or essential

   
   

   medical equipment payment; and

   (b)  notice is given to the person concerned;

   the person is not entitled to make an application under subsection (1) for review of the decision more than 13 weeks after the giving of the notice.

8. The letter sent to the applicant on 8 May 2014 notified her of the original decision. It was not disputed that the period between when the applicant received notice of the original decision and when an application for internal review was made was significantly greater than 13 weeks. Therefore, s 129(3) of the Administration Act precludes the applicant from making an application for review of the original decision as it was not made within the 13 week period.

9. The applicant sought to rely on s 126 of the Administration Act to overcome the failure to seek a review within the 13 week period. Section 126 of the Administration Act permits, in certain circumstances, internal review of decisions without regard to the 13 week limitation period canvassed in s 129(3) of the Administration Act. The operational ambit of s 126 of the Administration Act is strictly limited to internal reviews initiated by the Secretary of the Department of Social Services (“the Secretary”). We cannot find that s 126 of the Administration Act has any application to the facts presently before us.

10. We further find that s 142 of the Administration Act excludes the jurisdiction of this Tribunal from reviewing the decision of the ARO to refuse the application for registration as a member of the Pension Bonus Scheme. Section 142 of the Administration Act provides that an application may be made with the SSCSD for a review of a decision of an ARO to affirm, vary, or set aside and substitute a decision under ss 126 or 135 of the Administration Act. The decision of the ARO on 11 September 2015 was none of these. Rather the ARO that decided the Department did not have jurisdiction to review the decision and refused the application.

11. We consequently find it was appropriate for the SSCSD to dismiss that application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that the original decision is not reviewable by this Tribunal.

    notice requirements

12. For completeness, we have considered whether the relevant notice was or was not deficient in terms of its purpose and whether it adequately notified the Applicant of her rights of appeal.

13. The applicant contends that the notice dated 8 May 2014 advising her of the 13 week period “did not clearly and accurately advise Lorraine about highly relevant conditions attaching to her review rights…”.

14. The front page of the notice advised the applicant of the original decision. The back page of the notice correctly advised the applicant that she was required to ask for the decision to be reviewed within 13 weeks of receiving the notice. However, the notice went on to say “any changes to that decision can only take effect from the date you ask [for a review of the original decision]”. This is misleading, as an application for review outside of the 13 week period not only precludes the applicant from receiving arrears but also precludes her right of review.

15. The representative for the Secretary conceded that it was open to the Tribunal to find that the notice was inaccurate insofar as setting out the applicant’s rights of review. However, it was contended this did not make the notice of the decision defective for the purposes of s 237 of the Administration Act. The front page of the notice correctly and clearly advised the applicant of the original decision; and the notice was sent to the correct address.

16. The requisite contents of a valid notice under of s 299 of the Social Security Act 1991 (Cth) were considered by the Federal Court in Secretary, Department of Family and Community Services v Rogers (2004) 104 FCR 272. It was held at [31] that:

    A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice.

17. It was held in Rogers at [35] that there is no requirement that a notice contain sufficient information, or reasons for the decision, for it to be comprehensible by the recipient under s 299 of the Social Security Act 1991 (Cth). Rather it is sufficient that the recipient be informed of decision-making and its contents.

18. Cooper J held at [37] in Re Peura and Secretary, Department of Family & Community Services (2003) 78 ALD 570 that the requirements of a valid notice of a decision are as follows:

    •    the Tribunal should identify the decision of which notice is to be given;

    •    the letters should be construed objectively;

    •    the letters should be intelligible, that is they should inform the recipient of the making of the decision and the content of it;

    •    where the rate of pension is changed as a result of changed circumstances or the manner in which those circumstances are assessed, merely advising the recipient of the rate of his or her pension only constitutes advice of the effect of the decision; and

    •    the letters need not advise the reasons for the decision.

19. We are satisfied that the notice was effective for the purpose of s 237 of the Administration Act. Each of the requirements set out in Peura have been complied with. The applicant is correct in her contention that the notice was misleading insofar as failing to advise her that her right of review would cease after 13 weeks. However, this shortcoming does not prevent the notice from being deemed effective.

20. It may be that a more appropriate avenue for the applicant would be under the Scheme for Compensation for Detriment caused by Defective Administration (“the CDDA Scheme”) established under the Public Governance, Performance and Accountability Act 2013 (Cth). However, the Tribunal has no jurisdiction to make such an award under the CDDA Scheme.

    decision

21. We conclude that this Tribunal does not have jurisdiction to review this application, and affirm the decision under review.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe and Senior Member Theodore Tavoularis

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Associate

Dated 05 August 2016

Date of hearing	24 June 2016
Date final submissions received	24 June 2016
Advocate for the Applicant	Mr M Smith
Solicitors for the Respondent	Department of Human Services