The Estate of the Late Ashley Pauling; Secretary, Department of Social Services and (Social services second review)
[2018] AATA 870
•12 April 2018
The Estate of the Late Ashley Pauling; Secretary, Department of Social Services and (Social services second review) [2018] AATA 870 (12 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2618
Re:Secretary, Department of Social Services
APPLICANT
The Estate of the Late Ashley PaulingAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:12 April 2018
Place:Sydney
The Tribunal does not have jurisdiction to hear the matter under review unless and until an application is made to the Tribunal by the Estate of the Late Ashley Pauling pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975.
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Dr L Bygrave, Member
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – whether Tribunal has jurisdiction to review matter – death of party while proceedings on foot – application should be made under section 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the proceedings – no jurisdiction unless and until application made
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 30(1) & (1A)
Social Security (Administration) Act 1999 (Cth)
CASES
Andreatta and Commissioner for Superannuation [1991] AATA 532
REASONS FOR DECISION
Dr L Bygrave, Member
12 April 2018
INTRODUCTION
The respondent, the late Ashley Pauling, was born in 1984 and granted disability support pension from 19 February 2003 and pensioner education supplement from 26 August 2013.
The respondent filed a statement of claim with the Supreme Court of New South Wales on 11 December 2014 and, on 11 April 2016, the Department of Human Services (the Department) received notice that the respondent’s claim had been settled in the lump sum payment amount of $535,000.
On 5 May 2016, the Department wrote to the respondent advising that her lump sum payment resulted in a preclusion period from 6 October 2011 to 15 February 2017 and her disability support pension had been cancelled.
On 20 May 2016, the respondent completed a written form authorising Mr Justin Kelly as her nominee for the period 18 May 2016 to 18 May 2018.
Mr Kelly sought review of the Department’s decision and, on 22 September 2016, an authorised review officer from the Department affirmed the original decision.
On 25 November 2016, the respondent lodged a review with the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal and listed Mr Kelly as her representative.
Ms Ashley Pauling passed away on 18 December 2016.
On 28 March 2017, the SSCSD set aside the decision of the authorised review officer and, in substitution, decided that the preclusion period be halved meaning that approximately half of the amount was to be refunded to the Estate of the Late Ashley Pauling.
The Secretary applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 2 May 2017, submitting that the SSCSD had no jurisdiction to hear the matter absent a successful application by Mr Kelly that he be made a party to the proceeding in accordance with section 30(1A) of Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
On 14 March 2018, the Tribunal held an interlocutory hearing and the solicitor for the Secretary and Mr Kelly provided oral submissions. The Tribunal provided an opportunity for Mr Kelly and the Secretary to file further written submissions. Mr Kelly filed written submissions on 27 March 2018 and the Secretary filed submissions in reply on 3 April 2018.
RELEVANT LEGISLATION
These proceedings relate to whether the Tribunal has jurisdiction to hear the matter under review. The Tribunal has no general power to review decisions; it may only review decisions in relation to which jurisdiction has been conferred on it by enactment: section 25 of the AAT Act.
Relevant to this matter, the Social Security (Administration) Act 1999 (Cth) provides a mechanism for a person dissatisfied with the decision of an officer under the social security law, to apply to the Administrative Appeals Tribunal for review.
The Secretary contends that Mr Kelly was not a party to the SSCSD proceedings and cannot be a party to the current application for review to the General Division of the Tribunal in accordance with section 30(1) of the AAT Act because he has not successfully applied to be made a party to the proceedings under section 30(1A) of the AAT Act.
Sections 30(1) and (1A) of the AAT Act state:
Parties to proceedings before the Tribunal
…(1) Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b) the person who made the decision;
(c) if the Attorney-General intervenes in the proceeding under section 30A--the Attorney-General; and
(d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).
…
Person whose interests are affected may apply to be a party
(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
CONSIDERATION
The issue for consideration by the Tribunal is whether Mr Kelly is a party to the proceedings in accordance with the requirements of the AAT Act.
This issue was considered by the Tribunal in the matter of Andreatta and Commissioner for Superannuation (Andreatta),[1] which set out the following:
Where the statutory entitlement that is the subject of the proceeding does devolve upon the death of an applicant, then the person to whom the statutory entitlement devolves must make application pursuant to ss. 30(1A) AAT Act to be made a party to the proceeding. Unless and until such application is made the Tribunal will have no jurisdiction to review the decision. [emphasis added]
[1] [1991] AATA 532.
Mr Kelly submitted to the Tribunal that the Supreme Court of NSW granted letters of administration (which included an inventory of property) on 8 September 2017 to the late Ashley Pauling’s mother, Ms Wendy Halliday. Ms Halliday then authorised Mr Kelly in writing on 21 September 2017 to act on behalf of the estate of the late Ashley Pauling in the proceedings before the General Division of the Tribunal.
In written submissions filed on 27 March 2018, Mr Kelly contended that Ms Halliday, as the administrator of the estate of the late Ashley Pauling, was dealing with difficult and highly personal matters relating to her daughter and it was ‘an unreasonable imposition on the wellbeing of the Administrator’ to require her to become a party to the proceedings.
The Secretary’s submissions dated 2 February 2018 and 3 April 2018 contend that Mr Kelly does not have standing as a party in the proceedings before the General Division of the Tribunal. Further, the Secretary submits the appropriate person to make a section 30(1A) application to become a party to the proceeding is Ms Halliday because she is the administrator of the late Ashley Pauling’s estate.
CONCLUSION
While I have sympathy for the personal and difficult issues Ms Halliday is dealing with as the administrator of the estate of the late Ashley Pauling, having regard to the requirements of the AAT Act and Andreatta, I am not satisfied that Mr Kelly is a party to the proceedings in accordance with sections 30(1) and (1A) of the AAT Act. I further find that the Tribunal does not have jurisdiction to hear the matter under review unless and until an application is made to the Tribunal by the Estate of the Late Ashley Pauling pursuant to section 30(1A) of the AAT Act.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 12 April 2018
Date(s) of hearing: 14 March 2018 Date final submissions received: 27 March 2018 & 3 April 2018 Solicitors for the Applicant: Dr S Thompson, Department of Human Services Advocate for the Respondent: J Kelly
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