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

This matter concerned an appeal by Mr Talbot against a decision of the Secretary of the Department of Social Services regarding the date of effect for arrears of his age pension. Mr Talbot sought arrears dating back to 10 December 2016, the date he first advised Centrelink of a change in his superannuation balance. The dispute centred on whether the favourable determination should take effect from the date he initially notified Centrelink of the change, or from a later date determined by subsequent interactions and reviews.

The Administrative Appeals Tribunal was required to determine several legal issues. These included whether Mr Talbot had requested a review of the relevant decision before 23 August 2018, identifying the specific decision he sought to review and the date of that request. The Tribunal also needed to consider whether Mr Talbot was entitled to an increased rate of age pension earlier than 4 July 2018. Furthermore, if a review request was not made prior to 23 August 2018, the Tribunal had to assess whether its discretionary power under section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) allowed it to backdate the decision to a date earlier than that prescribed by the Social Security (Administration) Act 1999 (Cth), and if so, whether that discretion should be exercised.

The Tribunal considered various provisions of the Social Security (Administration) Act 1999 (Cth) concerning the date of effect of favourable determinations. Section 109 outlines the general rules for when a favourable determination takes effect, distinguishing between reviews requested within 13 weeks of notification and those made later. Section 110(1) provides that if a favourable determination is made following a person informing the Department of an event or change of circumstances, the determination takes effect on the later of the date the person informed the Department or the date the event or change occurred. The Tribunal also noted section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth), which grants the Tribunal a discretion to order otherwise regarding the effective date of its decisions.

The Tribunal affirmed the decision under review. It found that Mr Talbot's request for review was made on 23 August 2018, which was more than 13 weeks after the last relevant rate notice issued on 14 August 2018. Consequently, under section 109(2) of the Administration Act, the favourable determination took effect from the date of the review request, 23 August 2018. The Tribunal determined that section 110(1) was not applicable as the favourable determination was not made solely because Mr Talbot informed the Department of an event or change of circumstances, but rather as a result of a review process. The Tribunal also concluded that its discretion under section 43(6) of the AAT Act should not be exercised to backdate the payment to 10 December 2016, as the legislative framework provided a clear mechanism for determining the effective date of favourable determinations following a review.