Tilley and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 173

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/145

GENERAL ADMINISTRATIVE DIVISION          )
           Re      MICHAEL TILLEY
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr M J Sassella

Date18 March 2002
PlaceSydney

Decision      The Administrative Appeals Tribunal has no jurisdiction in this matter.
  ..............................................
  Senior Member
CATCHWORDS – JURISDICTION – Social Security Act 1991 issue – Social Security Appeals Tribunal lacked jurisdiction because there was no previous review by authorised review officer – Administrative Appeals Tribunal lacked jurisdiction to hear appeal from Social Security Appeals tribunal

Administrative Appeals Tribunal Act 1975 s 25.
Social Security (Administration) Act 1999 ss 135(1), 142(1), 179, 235, Schedule 1, clause 1(1) "authorised review officer".

REASONS FOR DECISION

18 March 2002 Mr M J Sassella

history of application

As at 17 October 2001 Mr Michael Tilley ("the applicant") was liable to repay debts due to the Commonwealth in respect of social security payments amounting to more than $47,000 (ex 1).
Some time before 11 July 2001 the applicant became entitled to a tax refund of more than $10,000 (ex 2).
On 18 April 2001 Centrelink, acting as service delivery agent for the Secretary, Department of Family and Community Services ("the respondent"), intercepted and garnisheed the applicant's tax refund and applied it to reduce the debts owed by Mr Tilley (ex 1).
Some time before 11 July 2001 the applicant sought to have the tax refund applied in full against one of his debts and he sought a discount of 15% in respect of the total of that debt to be repaid (ex 2). In about February 2001 the applicant also sought to be paid $500 of the tax refund money so as to reduce another debt owing to a third party (ex 2).
On 11 July 2001 Centrelink told the applicant that he could not receive a 15% discount (ex 2). That letter was silent as regards his access to the $500.
Between 11 July 2001 and 17 October 2001 the applicant gave Centrelink a statement of his financial circumstances (ex 1).
On 17 October 2001 a Centrelink delegate confirmed the decision originally made on 11 July 2001 (ex 1). The request for $500 was refused because Mr Tilley was not in financial hardship and because he could repay the third party debt in instalments.
On 15 November 2001 Mr Tilley lodged with the Social Security Appeals Tribunal ("the SSAT") an application for review of the decision dated 17 October 2001 (ex 3).
On 8 January 2002 the SSAT made a decision (ex 3). It decided that it had no jurisdiction to hear Mr Tilley's appeal because there had been no decision by a Centrelink authorised review officer ("ARO"). That decision was despatched in writing on 14 January 2002 (ex 3). The applicant received it on 17 January 2002 (ex 6).
On 1 February 2002 Mr Tilley lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision of 17 October 2001 (ex 5).
On 13 February 2002 an officer from Centrelink wrote to the tribunal to say that the tribunal appeared not to have jurisdiction to hear this application (ex 6).
On 27 February 2002 an ARO made a decision in Mr Tilley's case (ex 4).
hearing and appearances
On 15 March 2002 the tribunal convened a hearing by telephone to consider the issue of jurisdiction. Mr Tilley represented himself. Ms S Fahey represented the respondent.
The tribunal had before it the following documentary evidence:

Exhibit 1 – Letter from Ms S Eschebach, a Centrelink customer service officer, dated 17 October 2001.
Exhibit 2 – Letter from G Ballinger, a Centrelink customer service officer, dated 11 July 2001.
Exhibit 3 – Decision of the SSAT, 8 January 2002.
Exhibit 4 – Decision of ARO, 27 February 2002.
Exhibit 5 – Application for review by the tribunal, 1 February 2002.
Exhibit 6 – Letter by Ms S Fahey of Centrelink to the tribunal dated 13 February 2002.

relevant legislation

The tribunal acquires jurisdiction in any matter in accordance with s 25 of the Administrative Appeals Tribunal Act 1975:
"Tribunal may review certain decisions
25.      (1)       An enactment may provide that applications may be made to the Tribunal:
          (a)       for review of decisions made in the exercise of powers conferred by that enactment; or …
…
(4)       The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

Section 179 of the Social Security (Administration) Act 1999 ("the Administration Act") accords the tribunal jurisdiction in matters such as Mr Tilley's:
"Review of decisions by AAT
179.     (1)       If:
          (a)       a decision has been reviewed by the SSAT; and
          (b)       the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2)       For the purposes of subsection (1), the decision made by the SSAT is taken to be:
          (a)       where the SSAT affirms a decision—that decision as affirmed; and
          (b)       where the SSAT varies a decision—that decision as varied; and
          (c)       where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
          (d)       where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.
(3) Subsection (1) has effect subject to section 29 of the Administrative Appeals Tribunal Act 1975.
(4)       If:
          (a)       the AAT sets aside a decision of the SSAT; and
          (b)       the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, direct that the event is to be taken, for the purposes of the social security law, to have occurred."

Section 142 of the Administration Act prescribes how the SSAT may acquire jurisdiction to review a decision:
"Application for review by SSAT
142.     (1)       Subject to section 144, if:
          (a)       a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135; and
          (b)       the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the SSAT for review of that decision."

findings on material questions of fact with referencve to the evidence and other material in support of those findings

The tribunal finds that there was no review by an ARO prior to the application made by Mr Tilley to the SSAT. The two Centrelink letters (ex 1 and ex 2) were by staff members of Centrelink who are not AROs. An ARO is an officer who should be clearly identifiable as such because of the legislation that provides for them to conduct reviews.
Section 135 of the Administration Act states:
"Review of decisions following application under section 129
135.     (1)       Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the CEO or an authorised review officer must:
          (a)       review the decision; and
          (b)       do one of the following:
(i)        affirm the decision;
(ii)       vary the decision;
(iii)      set the decision aside and substitute a new decision."

Clause 1 of Schedule 1 and s 235 of the Administration Act combine to indicate who or what is an ARO:
"Schedule 1 — Dictionary
Definitions
1. (1) In this Act: …
authorised review officer means an officer authorised under section 235 to perform duties as an authorised review officer for the purposes of the social security law."
…
" Authorised review officers
235. The Secretary may, in writing, authorise an officer to perform duties as an authorised review officer for the purposes of the social security law."

In the present case no ARO had considered Mr Tilley's matter before he appealed it to the SSAT. The SSAT was therefore correct in deciding that it lacked jurisdiction under s 142(1) of the Administration Act to deal with the appeal.
Given that a decision by the SSAT is a necessary precondition to the tribunal having jurisdiction under s 179 of the Administration Act. Where the SSAT lacks jurisdiction, so too will this tribunal. That is the case here.
conclusion
The tribunal has no jurisdiction to consider this matter on its merits. However, as was explained to Mr Tilley during the hearing, now that an ARO has made a decision in his case he can appeal that decision to the SSAT. If after that he is still dissatisfied, he will be able to appeal to this tribunal if he wishes and the matter will be within jurisdiction.
decision
The Administrative Appeals Tribunal has no jurisdiction in this matter.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date of Hearing  15 March 2002
Date of Decision  18 March 2002
Advocate for the Applicant      Self
Advocate for the Respondent Ms S Fahey, Centrelink

The case of Tilley and Secretary, Department of Family and Community Services involves the applicant, Tilley, contesting a decision made by the Department of Family and Community Services, which pertains to his social security benefits. The dispute was brought before the Administrative Appeals Tribunal (AAT), which was tasked with determining whether it had the jurisdiction to hear the appeal. The AAT was required to assess whether the appeal was correctly filed, considering the procedural requirements set out in the relevant legislation, specifically the Social Security (Administration) Act 1999 and the Administrative Appeals Tribunal Act 1975.

The primary legal issue before the AAT was whether it possessed the jurisdiction to hear the appeal from the Social Security Appeals Tribunal (SSAT). The tribunal needed to determine if there had been a prior review by an authorised review officer (ARO) as a prerequisite for the SSAT to have jurisdiction. Furthermore, the AAT had to examine if it could entertain an appeal from the SSAT in the absence of such a prior review. The legislation stipulates that a decision by an ARO must be reviewed by the SSAT before an appeal can be made to the AAT, and without this prior review, neither the SSAT nor the AAT can proceed with the appeal.

In delivering the decision, the tribunal found that it did not have jurisdiction to consider the appeal on its merits. The tribunal explained to Tilley that an ARO had not previously reviewed the decision in question, which is a necessary step before the SSAT can hear an appeal. Consequently, the SSAT lacked jurisdiction to hear the appeal, and by extension, the AAT also lacked jurisdiction. The tribunal informed Tilley that once an ARO had made a decision in his case, he could appeal to the SSAT. If he remained dissatisfied with the outcome, he could then appeal to the AAT, at which point the tribunal would have jurisdiction to hear the matter. This decision was grounded in the statutory requirements that mandate a sequence of reviews before an appeal can reach the AAT.

The final orders of the tribunal were that it had no jurisdiction to consider the matter on its merits. Tilley was advised that after an ARO had made a decision, he could appeal to the SSAT, and if still dissatisfied, he could then appeal to the AAT, which would then have jurisdiction to hear the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established