Thurecht and Secretary, Department of Social Services (Social services second review)
[2015] AATA 504
•13 July 2015
Thurecht and Secretary, Department of Social Services (Social services second review) [2015] AATA 504 (13 July 2015)
Division GENERAL DIVISION File Number(s)
2015/1782
Re
Joan Thurecht
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 13 July 2015 Place Sydney The reviewable decision, being the decision of the Social Security Appeals Tribunal that it did not have jurisdiction to determine Ms Thurecht’s application for review, is affirmed.
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Deputy President J W Constance
Catchwords
SOCIAL SECURITY – application for review of the start date noted on concession card – whether reviewable decision – meaning of ‘decision’ – whether decision made under social security law
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 3(3)
Social Security Act 1991 (Cth) ss 23, 1061ZG, 1061ZUB
Social Security (Administration) Act 1999 (Cth) s 129
Cases
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Crompton v Repatriation Commission [1993] FCA 468
Director-General of Social Services v Chaney (1980) 31 ALR 571
Ward v Nicholls (1988) 16 ALD 353
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Ms Thurecht’s Commonwealth Seniors Health Card was cancelled on 22 July 2014 after she had spent more than six weeks overseas.
On 29 July 2014, Ms Thurecht contacted Centrelink to advise that she had returned to Australia. Her card was reinstated from that date and a new card issued which displayed the commencement date as 29 July 2014.
Ms Thurecht sought a review of the start date noted on her newly issued card. She argued that the card should have displayed the date on which she was originally issued with a Seniors Health Card; that is 9 October 2007.
An Authorised Review Officer of Centrelink affirmed the decision to issue Ms Thurecht with a new card from 29 July 2014. The Officer determined that as the card had been correctly cancelled, there was a break in Ms Thurecht’s entitlement. The correct start day was therefore the day in which she once more became entitled to the health card.
Ms Thurecht applied to the Social Security Appeals Tribunal for a review of this decision. Before the SSAT, Ms Thurecht accepted that the decision to cancel her card was correct. She sought, relevantly, to have the start date on her Seniors Health Card recorded as 9 October 2007, and for the address displayed on the card to be corrected.
The SSAT found that it did not have jurisdiction to decide Ms Thurecht’s request to review the start date and the address displayed on her card. Consequently, the start date displayed on Ms Thurecht’s current health card remained as 29 July 2014.
Ms Thurecht has applied to this Tribunal for a review of the SSAT’s decision. At a directions hearing before me on 11 June 2015, Ms Thurecht accepted that the decision to cancel her card was correct. The dispute surrounding the address displayed on Ms Thurecht’s card had been resolved by the Department. The only issue which Ms Thurecht now seeks to be corrected is the start date displayed on her health card.
For the reasons that follow, it will be determined that the Social Security Appeals Tribunal was correct in its conclusion that it did not have jurisdiction to review the conduct of Centrelink in displaying the start date on Ms Thurecht’s card as 29 July 2014. Such conduct does not constitute a “reviewable decision”.
LEGISLATION
The Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth) create a framework for the review of decisions made under social security legislation. A decision of an officer of Centrelink is subject to multiple tiers of merits review. Under the legislation as it stood before 1 July 2015, decisions were subject to review first by an Authorised Review Officer, secondly by the SSAT, and thirdly by this Tribunal.
Section 129 of the Act prescribes when an individual may apply for a review of a decision by an officer of Centrelink. Significantly, it provides at subsection (1):
... a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
A “decision” is defined in section 23 of the Social Security Act 1991 (Cth) as having the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth). Under that Act, a “decision” is defined in subsection 3(3) as including reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
The SSAT only has power to review a decision once it has been reviewed by an authorised review officer. Similarly, section 179 of the Administration Act provides that an application can only be made to this Tribunal if a decision has been reviewed by the SSAT and affirmed, varied or set aside.
Despite the fact that the SSAT neither affirmed, nor varied, nor set aside the decision under review, this Tribunal is not precluded from reviewing the SSAT decision. In Ward v Nicholls,[1] the Federal Court considered the situation of an application to this Tribunal for a review of a Veterans’ Review Board decision that it had no jurisdiction. Wilcox J stated: [2]
It would be a very odd situation ... if the appointed first instance reviewer, the Veterans’ Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal — which is set up by statute to review on their merits decisions of that Board — was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made. There would be a lacuna in the system of administrative review disappointing to those who had laboured to set up the comprehensive system which appears to be provided by the statute. I cannot think that this is right. I think that the true position is that the Veterans’ Review Board is always in the position of having to decide whether to affirm, to vary or to set aside the decision of the Commission, and that, whatever decision it makes, that decision is subject to review by the Administrative Appeals Tribunal.
[1] (1988) 16 ALD 353.
[2] (1988) 16 ALD 353, 361.
This statement was approved by the Full Court of the Federal Court in Crompton v Repatriation Commission[3]. Bearing these authorities in mind, I am satisfied that this Tribunal is not precluded by the SSAT’s decision that it did not have jurisdiction from reviewing Ms Thurecht’s application. Nevertheless, that does not absolve this Tribunal of the need to consider and determine the question of jurisdiction itself. It is to that question that I now turn.
[3] [1993] FCA 468.
CONSIDERATION
As noted above, the SSAT only has power to review a “decision”. A “decision” is defined in the Administrative Appeals Tribunal Act to include a number of activities. The meaning of the word ‘decision’ itself, however, is not expounded by this definition, and has been the subject of interpretation by the courts and this Tribunal on a number of occasions.
Significantly, the Federal Court in Director-General of Social Services v Chaney stated with respect to the definition in the Administrative Appeals Tribunal Act 1975 that:[4]
Section 3(3) of the Act defines a reference in the Act to a "decision" as including a reference to a litany of activities of both a positive and negative nature culminating in "doing or refusing to do any other act or thing". The provisions of s.3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference to a "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the nature of effective action rather than intermediate "decision" on the path to such action, provide some indication that a reference to "decision" in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect is, however, slight.
[4] (1980) 31 ALR 571, 591.
In considering the term as contained within the Administrative Decisions (Judicial Review) Act 1977 (Cth), Mason CJ stated in Australian Broadcasting Tribunal v Bond[5] that the requirement that a decision be made under an enactment indicates:
... a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision.. ... the examples of decision ... are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J, “a determination effectively resolving an actual substantive issue”. ...
...
... a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
[5] [1990] HCA 33, paras [30, 32].
It is important to note that a person can apply for the review of a decision by an officer of Centrelink only where that decision is made under social security law.[6] As in the Administrative Decisions (Judicial Review) Act 1977, a decision is reviewable only when it is made under a relevant enactment. The reasoning of Mason CJ above in Bond is therefore apposite to Ms Thurecht’s case: “A reviewable decision is one for which provision is made by or under statute”. In this case, the relevant statutes concerning the Seniors Health Card are the Social Security Act and the Administration Act.
[6] Social Security (Administration) Act 1999 (Cth) s129; “social security law” is defined in s 23(17) of the Social Security Act as a reference to the Social Security Act, the Administration Act and any other Act that is expressed to form part of the social security law.
There is no provision in either the Social Security Act or the Administration Act for a decision to be made as to the start date to be displayed on a particular individual’s Seniors Health Card. Eligibility for a Seniors Health Card is governed by section 1061ZG of the Social Security Act. The Administration Act, in its provisions concerning concession cards,[7] provides for the Secretary to determine a claim for the card,[8] and confers power on the Secretary to cancel a card if a person becomes ineligible.[9] There is, however, no provision for the Secretary to make a determination with respect to the specific date to be displayed on a particular health card. Any such decision therefore cannot properly be said to have been made under an enactment.
[7] Defined to include the Seniors Health Card: Social Security Act 1991 (Cth) s23
[8] Social Security (Administration) Act 1999 (Cth), s 36
[9] Social Security (Administration) Act 1999 (Cth), s 86; see also Social Security Act 1991 (Cth) s 1061ZUB.
Ultimately, the inclusion of a later date on the card of Ms Thurecht was a consequence of two separate decisions by Centrelink. First, to cancel her card, and secondly, to re-instate that card once she informed Centrelink that she had returned to Australia. Ms Thurecht, however, does not dispute the correctness of either decision. She accepts that the law, as it stood at the time of the cancellation and reinstatement of her card, was correctly applied.
The only ‘decision’ which Ms Thurecht now seeks to have reviewed is that relating to the start date displayed on her card. I accept that this is an important issue for Ms Thurecht. It could have implications should the medical practice on which she attends question why she was given a discount on occasions prior to the date displayed. I understand also that the fact that Centrelink backdated the date on the card in near identical circumstances on two previous occasions makes the failure to do so appear perverse to Ms Thurecht.
Nonetheless, this Tribunal and the SSAT can only review a decision. A decision has been referred to by the Federal Court as the “ultimate or operative determination”.[10] The ultimate or operative determinations by Centrelink were those decisions pertaining to Ms Thurecht’s entitlement to a Seniors Health Card. The listing of a later date on her re-instated card was an administrative consequence that flowed from those substantive decisions.
[10] Director-General of Social Services v Chaney (1980) 31 ALR 571, 591
I am not satisfied that the inclusion of a later date on Ms Thurecht’s health card was a reviewable decision. As such, I agree with the decision of the Social Security Appeals Tribunal that it did not have jurisdiction to determine the application for review.
DECISION
The reviewable decision, being the decision of the Social Security Appeals Tribunal dated 20 March 2015 that it did not have jurisdiction to hear Ms Thurecht’s application for review, will be affirmed.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ..................................[sgd]......................................
Associate
Dated 13 July 2015
Date(s) of hearing On the papers Date final submissions received 29 June 2015 Applicant In person Solicitors for the Respondent A McLeod; Department of Human Services
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