SPWX and Secretary, Department of Social Services (Social services second review)
[2022] AATA 2486
•11 July 2022
SPWX and Secretary, Department of Social Services (Social services second review) [2022] AATA 2486 (11 July 2022)
Division:GENERAL DIVISION
File Number(s): 2021/9004
Re:SPWX
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Ms A E Burke AO, Member
Date:11 July 2022
Place:Melbourne
The Tribunal does not have jurisdiction to consider the application lodged by the Applicant on 23 November 2021 which sought review of the decision to recover a debt from the Applicant in relation to her Child Care Rebate in the 2006-2007 and 2007-2008 financial years.
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Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – Child Care Rebate – overpayment – member of a couple – debt due to the Commonwealth – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink – whether special circumstances – with the application made in a reasonable time – jurisdictional question – determination no jurisdiction as no determination was made by the AAT1.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)Cases
Logan and Secretary, Department of Social Services [2020] AATA 102
Secondary Materials
AAT Guide to Social Services and Related Jurisdiction
REASONS FOR DECISION
Ms A E Burke AO, Member
11 July 2022
SPWX (the Applicant) is seeking review of several decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 15 November 2021. This decision pertains to her Child Care Rebate (CCR) for the 2006-2007 and 2007-2008 financial years (AAT1 decision 2021/M163205). The Member at AAT1 dismissed the application as it was not made within a reasonable timeframe under ss 29(4), (5) and (6) the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Given the complexity of this matter, the timeline which the Tribunal has set to finalise this historical debt, and the jurisdictional nature of the application, the parties consented to this matter being heard on the papers.
Background
On 20 January 2011, Centrelink decided to raise and recover a debt of $688.98 for overpayment of Child Care Rebate (CCR) for the 2007-2008 financial year, as it had determined SPWX was a member of a couple.
On 17 March 2011, Centrelink decided to raise and recover a debt of $2,124.39 for overpayment of CCR for the 2006-2007 financial year, as it had determined SPWX was a member of a couple.
On 28 April 2011, a Centrelink internal Authorised Review Officer (ARO) affirmed the decisions dated 20 January 2011 and 17 March 2011 in relation to the CCR debts.
On 28 July 2021, the Applicant applied to the AAT1 for review of the decision dated 28 April 2011. Following this application, on 18 August 2021, an ARO prepared a further statement of reasons for affirming the decisions of 28 April 2011.
On 15 November 2021, the AAT1 considered whether the application seeking review of the ARO decision dated 28 April 2011 was lodged within a reasonable time after the decision was made and, if not, whether there were any special circumstances justifying the Tribunal entertaining the application.
AAT1 dismissed the application finding:
The Tribunal therefore finds that the application for review was not lodged within a reasonable time after the decision was made and there are no special circumstances that justify the Tribunal entertaining the application.
The Tribunal is therefore not required to go further and determine the issues raised by the application for review.
Issue
Can the AAT2 review a dismissal decision of the AAT1 and, if not, can this division of the Tribunal (AAT2) remit an application to another division (AAT1)?
Legislation
Section 29 of the AAT Act articulates the manner of applying for review of a decision:
What happens if there is no prescribed time for making applications
(4) Where:
(a) no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or
(b) no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision;
and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6):
(c) in a case to which paragraph (a) applies—refuse to entertain an application for a review of the decision referred to in that paragraph; or
(d) in a case to which paragraph (b) applies—refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to.
(5) In forming an opinion for the purposes of subsection (4), the Tribunal shall have regard to:
(a) the time when the applicant became aware of the making of the decision; and
(b) in a case to which paragraph (4)(b) applies—the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision;
and may have regard to any other matters that it considers relevant.
(6) Notwithstanding subsection (4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so.
Section 128 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act) provides that an Applicant may seek a second-tier review of a decision of the AAT on first review made under s 43(1) of the AAT Act:
(1) Application may be made to the AAT for review (AAT second review ) of a decision made by the AAT under subsection 43(1) of the AAT Act on AAT first review.
(2) For the purposes of subsection (1), the decision on AAT first review is taken to be:
(a) if the AAT affirmed a decision--the decision as affirmed; and
(b) if the AAT varied a decision--the decision as varied; and
(c) if the AAT set a decision aside and substituted a new decision--the new decision; and
(d) if the AAT set a decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT--the directions or recommendations of the AAT.
Section 131 of the Act outlines the operation and implementation of a decision which is subject to AAT second review:
(1) The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in subsection 41(2) of the AAT Act to the decision to which the relevant proceeding relates were a reference to:
(a) if, on AAT first review, the AAT affirmed the original decision--the original decision; and
(b) otherwise--both the original decision and whichever of the following is applicable in relation to the AAT first review:
(i) the original decision as varied by the AAT;
(ii) the decision substituted by the AAT;
(iii) the decision made as a result of reconsideration by the Secretary in accordance with any directions or recommendations of the AAT.
(2) For the purposes of subsection (1), the original decision is the decision that was the subject of the AAT first review.
(3) The AAT Act applies in relation to an application for AAT second review of a decision as if references in subsections 41(4) and (5) of the AAT Act to the person who made the decision to which the relevant proceeding relates were references to each party to the relevant AAT first review.
Contentions
SPWX fundamentally contends that:
(a)she has no outstanding debts to Centrelink as she disputes the assertion that she was a member of couple at any time during the debt period;
(b)she was unaware of this CCR debt and had applied to the AAT1 at the suggestion of the AAT2 to consolidate all of her applications for review of debts; and
(c)special circumstances existed such that her application should be considered to have been lodged within a reasonable time as she is a survivor of domestic violence, having experienced domestic violence during the debt period.
SPWX is an unrepresented Applicant without legal qualifications. She made no contentions in respect of the jurisdictional nature of this application.
The Respondent contends that:
(a)The AAT2 has jurisdiction to review the AAT1’s decision. There is no time limit prescribed in the AAT Act for the review of a decision of a Centrelink ARO, so ss 29(4), (5) and (6) of the AAT Act must be considered.
(b)Section 29(4) requires consideration of whether the application to the AAT1 was sought within a ‘reasonable timeframe’. Due to the significant passage of time since the making of the decision, the Secretary submits the application was not filed within a reasonable timeframe, as the AAT1 found.
(c)Section 29(6) then requires consideration of whether there are ‘special circumstances’ that warrant the matter being entertained, even if a review were not sought within a reasonable timeframe. The Respondent submits there is no special circumstance in this case that would justify entertaining this application, as the AAT1 found.
(d)In the event that the AAT2 accepts that this application was lodged within a reasonable timeframe or there were special circumstances which justify entertaining the review, the Respondent submits in the alternative that the AAT2 should set aside the AAT1 decision and remit the matter back to the AAT1 for consideration of the application as a whole, with a direction that there are special circumstances under s 29(6), seeing as the substance of the application was not considered by the AAT1.
(e)The function of the AAT2 under s 128 of the Act on second review is to review a ‘decision’ of the AAT on AAT first review made under subsection 43(1) of the AAT Act. Where there has been in substance no ‘decision’ on AAT first review in relation to the application, the Respondent submits that the appropriate course is to remit the matter to the AAT1 for determination, as this Tribunal’s jurisdiction may not be enlivened without an AAT1 decision on the application.
Decision
The Tribunal determines that it does not have jurisdiction to review this application as the AAT1 has not affirmed, varied or set aside the decision. The Tribunal finds no jurisdiction has been enlivened as the AAT1 made no decision on SPXW’s application.
The Tribunal considers that no determination has been made by the AAT1 as it dismissed the matter because it found that the application for review was not lodged within a reasonable time and there were no special circumstances which could justify the Tribunal entertaining the application.
The AAT1 found that section 147 of the Social Security (Administration) Act1999 does not modify the application of subsections 29(4)-(6) of the AAT Act. The Tribunal considers this is not relevant to the current determination as SPXW is appealing a Child Care Rebate debt which is governed by the Act.
The AAT Guide to Social Services and Related Jurisdiction, clearly outlines:
2.1 Social security
There is no time limit for applying for first review of a decision made under the social
security law.
However, if you apply more than 13 weeks after written notice was given to you of
the DHS decision and we change the decision in your favour, our decision will take
effect on the date of your application to us.
Whilst it may appear that the simplest way forward would be to remit this matter to the AAT1, the Tribunal is not persuaded by the Respondent’s contention that the Tribunal has jurisdiction to do so. There are at least two signification impediments:
(a)the AAT1 is not a party to the dispute and therefore cannot be directed to do anything in respect of the proceedings; and
(b)the Tribunal is defined as one entity under the AAT Act; in essence a remittal from AAT2 to AAT1 would constitute an order from ourselves to ourselves.
Section 128 of the Act provides that an application may be made to the Tribunal for review of a decision of AAT1 where it has affirmed, varied or set aside that decision on review. The legislation is silent on whether an application can be made to the Tribunal for review of a decision of the AAT1 dismissing an application.
The Tribunal notes Senior Member B J Illingworth’s decision in the matter of Logan and Secretary, Department of Social Services [2020] AATA 102 but is not persuaded that the AAT2 has jurisdiction to direct the AAT1 under section 42D of the AAT Act.
The Tribunal does not have jurisdiction to review this application as no decision has been made. Whilst this will be of concern to SPXW given the protracted nature of her application and the significant debt involved, this decision does not preclude SPXW from applying for review of Centrelink’s determination of 10 January 2011 and 17 March 2011 and the subsequent ARO decision of 28 April 2011 in relation to her CCR debts for the 2006-2007 and 2007-2008 financial years. The Tribunal encourages SPXW to lodge a fresh application with the AAT1 to seek review of these decisions.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
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AssociateDated: 11 July 2022
Date of hearing: 6 July 2022 on the papers Applicant: Self-Represented Respondent representative: Mr Jonathon Hutton Respondent solicitors: Australian Government Solicitor
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