VCGF by way of executor to the estate and Secretary, Department of Social Services (Practice and procedure)

[2025] ARTA 130

VCGF by way of executor to the estate and Secretary, Department of Social Services (Practice and procedure) [2025] ARTA 130 (20 February 2025)

Applicant/s:  RE VCGF by way of executor to the estate

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/6802

Tribunal:Senior Member J. Longo (second review)

Place:Melbourne

Date:20 February 2025

Date of written reasons:     25 February 2025

Decision:Pursuant to section 97 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal dismisses the application.

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Senior Member J. Longo

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

Statement of Reasons

Catchwords

SOCIAL SECURITY – jurisdiction – eligibility for second review – whether a remittal decision can be subject to a second review – no decision by authorised review officer – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Social Security (Administration) Act 1999

BACKGROUND

1. This matter relates to an age pension debt of the late VCGF. The debt was first raised in 2010. Mr [F.] (the Applicant), VCGF’s son, has been involved in the proceedings since they commenced.

2. VCGF began receiving age pension in 1984. In August 1999, VCGF’s husband died and her rate of age pension was subsequently adjusted. In August 2010, Centrelink raised an overpayment of $10,115.67 on basis that the incorrect of UK pension had been taken into account for the period for the period between 9 November 1999 to 18 June 2009. The overpayment was reviewed by an authorised review officer of Centrelink on 5 October 2010. Resultingly, part of the debt, from 16 September 2004 to 18 June 2009, was waived. The remainder of the debt, from 9 November 1999 to 15 September 2004, remained outstanding.

3. VCGF sought review of the decision with the former Social Security Appeals Tribunal (the SSAT). The Applicant addressed the SSAT on VCGF’s behalf. On 24 December 2010, the SSAT set aside and remitted the matter, directing that the debt should be recalculated. However, the recalculation of the debt did not occur, and the Respondent continued to recover repayments from VCGF’s pension.

4. VCGF passed away in August 2022. On 25 January 2023, Centrelink contacted the Applicant to recover the debt from VCGF’s estate. On 22 May 2023, the Applicant, as executor to the estate of VCGF, applied to the Department of Finance for a waiver of the debt. In the response to the Applicant, on 28 June 2024, the Department of Finance advised that Centrelink had completed a recalculation of the debt in June 2024 and as other remedies still remained, they did not consider the waiver of the debt. On 11 July 2024, the Applicant applied, as executor of VCGF’s estate, for review of the decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT).

5. On 15 August 2024, the AAT dismissed the Applicant’s application on the basis that it did not have jurisdiction under section 42(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) to review Centrelink’s June 2024 recalculation decision, as the decision had not been internally reviewed. On 30 August 2024, the Applicant applied for a second review of the decision to dismiss the application.

6. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.

7. On 29 January 2025, an authorised review officer of Centrelink made a decision affirming the debt of $7,411 for the period 9 November 1999 to 15 September 2004. The authorised review officer noted that $2,623 of the debt remained outstanding.

8. Prior to the hearing, the Respondent submitted written submissions. As part of these submissions, the Respondent submitted that section 129 of the Social Security (Administration) Act 1999 (the Administration Act) provides for when a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision. Once reviewed, a decision can then be reviewed by the Tribunal.

9. The Respondent submitted that as there was no authorised review officer review decision at the time of the application for first review by the Applicant on 15 August 2024. Therefore, the AAT on first review had no jurisdiction to review the decision and correctly dismissed the application on 30 August 2024. It was further submitted that as the AAT on first review did not affirm, vary or set aside the decision, the Tribunal on second review has no jurisdiction to review the substantive decision.

10. I agree that the Tribunal does not have jurisdiction to review the decision and made an oral decision to dismiss the application on this basis on 20 February 2025. I find that without a decision to affirm, vary or set aside being made on first review relating to the debt, the Tribunal does not have jurisdiction to review the application. Accordingly, the application was dismissed under section 97 of the Administrative Review Tribunal Act 2024 (Cth).

11. As noted by the Respondent on 20 February 2025, an authorised review officer review decision was completed on 29 January 2025. This decision provides further review rights to the Applicant as executor to the late VCGF’s estate, which were explained to the Applicant by the Respondent’s representative at the hearing.