Towle and Secretary, Department of Social Services (Social services second review)
[2023] AATA 1507
•31 March 2023
Towle and Secretary, Department of Social Services (Social services second review) [2023] AATA 1507 (31 March 2023)
Division: GENERAL DIVISION
File Number(s): 2022/1585
Re:Thomas Towle
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:31 March 2023
Date of written reasons: 18 April 2023
Place:Adelaide
WRITTEN REASONS FOR DECISION DATED 31 MARCH 2023 NAMELY:
The Applicant lodged an application for review of a decision of Member Lambden, dated 3 February 2022, who affirmed the decision of an Authorised Review Officer (“ARO”) dated 19 June 2019, 11 October 2021, and 12 October 2021. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal’s jurisdiction is limited to the review of the decisions of the ARO as affirmed by Member Lambden.
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Senior Member B J Illingworth
Catchwords
JURISDICTION – Rate of Disability Support Pension – Member of a Couple – Rate of Mobility Allowance – Tribunal’s Jurisdiction limited to matters before ARO and AAT1
REASONS FOR DECISION
Senior Member B J Illingworth
18 April 2023
At the conclusion of the hearing, the decision and reasons were provided orally. The Applicant has requested written reasons under s43(2A) of the Administrative Appeals Tribunal Act 1975.
The oral reasons for the decision have been transcribed. Minor amendments have been made to correct grammar or to render parts legible.
The transcript is annexed and provided to the Applicant and to the Respondent as the written reasons for the Tribunal’s decision.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
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Associate
Written reasons: 18 April 2023
Date of hearing: 31 March 2023
Applicant: Thomas Towle (Self-represented)
Representative for the Respondent: Christian Visser (Services Australia)
ORAL DECISION OF SENIOR MEMBER B J ILLINGWORTH [12.17PM]
SENIOR MEMBER: This is the decision that I have come to in relation to the question of jurisdiction of the Tribunal.
On 3 February 2022, Member Lambden of the Administrative Appeals Tribunal (“the AAT1”) affirmed three decisions made by an Authorised Review Officer of the Secretary, Department of Social Services (“the Respondent”) being decisions made on 19 June 2019, 11 October 2021, and 12 October 2021.
In the reasons for decision of the AAT1, under heading “background” the AAT1, in referencing those Authorised Review Officer decisions, said:
This review is about whether:
(1) Mr Towle’s rate of aged pension can be assessed on the basis that he is not to be treated as a member of a couple.
(2) Mr Towles mobility allowance can be restored from 24 June 2015 and is he eligible to be paid the higher rate of mobility allowance from 28 August 2018.
(3) Mr Towle should be paid the standard rate of mobility allowance from 16 December 2016.
The AAT1, affirmed the Authorised Review Officer’s decision, namely:
(1) To pay Mr Towle, the partnered rate of disability pension from 29 March 2019.
(2) To restore Mr Towles mobility allowance payments from 24 June 2015 and to pay him the higher rate of mobility allowance from 28 August 2018; and
(3) To reduce the rate of mobility allowance paid to Mr Towle to the lower rate from 16 September 2016.
On 25 February 2022, Mr Towle (“the Applicant”) by email, acknowledged receipt of the AAT1 decision and in reference to the AAT1 said:
However, there are matters which seem to have not been considered, or if considered, not dealt with correctly.
The Registry accepted that email as an application to review of the AAT1 decision. It became apparent when the matter was before the Conference Registrar that it may not be then amenable to continue the conciliation process because there was an issue as to the jurisdiction of the Tribunal as it appeared that the Applicant sought to broaden the issues in dispute beyond those considered by the AAT1. The matter is now before me on an interlocutory hearing to determine the jurisdiction of the Tribunal.
BACKGROUND
When this matter first came before me on 15 September 2022, the Applicant then raised a number of issues he had with Centrelink, including amongst other things the failure of Centrelink to make certain decisions which he had requested. It was rightly agreed by Counsel for the Respondent, Mr Visser, who has been of much assistance in this matter, that the Applicant should be given the opportunity to address those matters with Centrelink so that a decision could be made, and if the Applicant was dissatisfied bring such matter or matters for review, to the AAT1. If still dissatisfied, then, if necessary, the applications for review to the AAT2 could join with the current application for review, so that all of the issues that he had in dispute with Centrelink could be finalised and dealt with. That concession was rightly made.
Consistent with that approach, on about 6 October 2022, the Applicant requested a review by Centrelink of certain decisions and on 2 February 2023 an Authorised Review Officer made the following decision, which reads:
On 6 October 2022 he requested a formal review of the decision to pay you back payment of Disability Support Pension (“DSP”) from 28 August 2018 to 29 March 2019 only, rather than for the period 8 July 2016 to 27 August 2018 and the decision made not to pay you Mobility Allowance at the higher rate for the period 8 July 2016 to 27 August 2018.
Services Australia does not have the legal authority to undertake a formal review of these decisions. This is because these decisions have been previously reviewed by an Authorised Review Officer and the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). Accordingly, the review has been deleted.
However, you may wish to contact the Commonwealth Ombudsman about these decisions. Please see below for their contact details.
To understand that decision and what the Applicant was, it would appear, in fact requesting, can be understood by reference to the history of matters that have been dealt with by the Tribunal and are currently finalised.
First, on 20 September 2016, AAT1 Member Strathearn affirmed a decision of an Authorised Review Officer dated 26 July 2016. The finding of facts on that matter were as follows.
On 24 December 2015, you provided to the Department your partner’s details, advising that you became partner to Mrs Yah Van Chang on 27 June 2013;
On 24 December 2015, a decision was made to assess you as partnered and to continue to pay you the single rate of DSP;
A request for information was sent to you on 30 June 2016;
You returned the request for information to the Department on 6 July 2016, you did not provide the Department with all the requested information;
Your entitlement to DSP was suspended on 8 July 2016.
After the finding of Member Strathearn and the decision she then made, the Applicant applied to the AAT2, and on 28 April 2017, Senior Member Dunn affirmed that decision under review. The Applicant appealed the matter to the Federal Court and Justice Charlesworth on 28 March 2018, and subsequently the Full Court of the Federal Court on 20 August 2018 dismissed the appeal. On 20 March 2019, the Applicant was refused leave to appeal to the High Court.
Separately and secondly, on 4 September 2019, Member Cullimore of the AAT1 set aside a decision of an Authorised Review Officer dated 19 June 2019, which affirmed the Centrelink decision to cancel the Applicant’s DSP. The decision of Member Cullimore was as follows:
The Tribunal sets aside the decision to cancel payment of a DSP to Mr Towle and substitutes a new decision:
that he should now be paid any arrears which are owing to him from 28 August 2018 up to the date of grant to him of the aged pension (29 March 2019);
that those arrears should be paid at the partnered rate of DSP taking into account the combined income of himself and Ms Chang.
13. The Respondent applied to the General & Other Division of the Tribunal (“AAT2”) to review that decision of Member Cullimore, but subsequently withdrew that application for review. The Applicant did not seek to review that decision, and hence, the decision of Member Cullimore stands unchallenged and final.
14. Those decisions to which I have referred are final and binding decisions and informs any subsequent decision maker about those decisions made and their impact upon what will follow. There is no right or entitlement to now unilaterally re-agitate those decisions at a subsequent hearing before the Tribunal.
15. However, if the Applicant now seeks to dispute the decision of Member Cullimore, there is currently no application for review of that decision before me, but I have indicated to him this morning that he may seek to make an application for an extension of time within which to review that decision to the AAT2, which would require him to provide, amongst other things, an explanation for the delay in bringing of the application, the prospects of success and matters which address the interests of justice in hearing the application for review. That might include, for example, fresh evidence. But that of course means that if the extension of time is granted, the decision of Member Cullimore is considered afresh and one outcome may be the setting aside of the Member Cullimore’s decision and the reinstatement of the decision of the Authorised Review Officer, which may significantly impact upon the Applicant and may, for example, result in him incurring a debt with Centrelink.
16. I have discussed that at length this morning with the Applicant and urged him to obtain some advice about whether or not he ought to pursue that course. These are matters that the Applicant will no doubt take into account when considering whether or not to make an application for extension of time to review the decision of Member Cullimore or allow it to remain final.
17. Insofar as the Authorised Review Officer, in the decision of 2 February 2023 to which I have referred, said:
On 6 October 2022, you requested a formal review of the decision to pay you back payment of the DSP from 28 August 2018 to 29 March 2019 only, rather than for the period 8 July 2016 to 27 August 2018…
This would require a review of the decision of Member Cullimore in relation to the former and the decision of Member Strathearn and the Federal Court and Court of Appeal decisions in relation to the latter.
I again say, those matters currently remain final. Insofar as the Authorised Review Officer referred to the Applicant not being entitled to mobility allowance at a higher rate for the period 8 July 2016 to 27 August 2018, that was a period when the Applicant was not, by virtue of earlier suspension, in receipt of any payment such as DSP or Job Seeker and therefore was not eligible for mobility allowance. In any event, there has not been an AAT1 decision in relation to a review of that decision of the Authorised Review Officer and therefore that matter is not now before the AAT2 upon review.
19. It appears from the Applicant’s detailed written argument he has initially sought to agitate afresh, matters that were the subject of those finalised decisions, or wants to raise fresh evidence which it is said impact upon the finalised decisions and which in turn may, or may not, impact upon the decision that is currently under review. He has argued therefore the Tribunal should now revisit those finalised decisions and invites the Tribunal to decide the matter afresh. For example, the Applicant has raised the Federal Court Robo Debt decisions to challenge the calculation of his entitlement and thereby re-agitate decisions that were the subject of finalised matters.
20. That request with respect is misconceived in relation to a decision by Member Strathearn as affirmed on appeal. If there is fresh evidence that impacts upon the decision of Member Cullimore, then that question of fresh evidence can be raised on an application for extension of time should the Applicant decide to pursue that course. But those matters are not otherwise before me, and are not relevant on the application of the review that is currently before me. Hence, the AAT2 jurisdiction is currently limited to the matters dealt with on review by the AAT1. It is not within the power of the AAT2 to broaden the net of consideration to matters that were not before Member Lambden for review. Hence in this matter, the AAT1 identified the three matters that were the subject of the Authorised Review Officer decision. Those matters were considered by the AAT1, and the decision of the Authorised Review Officer was, in respect of each, affirmed.
DECISION
21. Therefore, in this application for review, it is the decision of the Authorised Review Officer on those three occasions which were affirmed by the AAT1, that founds the jurisdiction of the matter now before the AAT2 and limits the matters to be considered on review. That is my decision.
END OF ORAL DECISION [12.41PM]
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