Virgo and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1275

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1275  

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600375

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KENNETH MAXWELL VIRGO

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date1 May 2007

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – no reviewable decision – no jurisdiction

Administrative Appeals Tribunal Act 1975 s 25
Social Security (Administration) Act 1999 s 179(1)

Social Security Act 1991

REASONS FOR DECISION

1 May 2007   Senior Member L Hastwell

1.      On 20 November 2006 Mr Kenneth Virgo (the applicant) lodged an application for a review of a decision made by the respondent (the Department) to impose a preclusion period on his partner’s entitlement to Disability Support Pension (DSP) arising out of her receipt of a lump sum compensation payment.

2.      Mr Virgo’s partner had also independently applied for review of the decision to impose a compensation preclusion period on her entitlement to DSP.  She was successful upon review and the decision of the original Authorized Review Officer was varied by the Social Security Appeals Tribunal (SSAT) on 25 October 2006.  She was paid arrears of DSP for the period for which the preclusion had been previously imposed.

3.      The applicant claims that his position with respect to his own DSP and Rental Assistance was affected by the preclusion period imposed on his partner and he asks the Tribunal to review the decision.  No decision has ever been made with respect to his own DSP, or of his own entitlement to Rental Assistance.

4.      The applicant’s partner has been successful in her application for review of the decision to impose a preclusion period and she is not the applicant in the application before this Tribunal.

5.      The Tribunal’s power to review a decision arises only under statute.  This Tribunal has no inherent power to review a decision.

relevant legislation

6. Section 25 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal may review certain decisions when an enactment provides that applications can be made to the Tribunal for review of a decision.

7.      The decision in this case arises under Social Security law.

8. Section 179(1) of the Social Security (Administration) Act 1999 provides for this Tribunal to review decisions made under the Social Security Act 1991 as follows:

“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.”

the hearing

9.      The applicant appeared by telephone at the hearing. 

10.     The applicant told the Tribunal that as a result of the preclusion period being imposed on his partner, he and his partner had suffered significant losses as they had anticipated that they would be able to purchase a home immediately upon receipt of her compensation lump sum and they had no prior warning of the preclusion period.  The imposition of a preclusion period had a very significant financial effect on them.  They had to manage for an extended period of time on the applicant’s income alone.

11.     The applicant considered that he was $6,000 out of pocket as a result of the original decision relating to his partner's pension.  He presented to the Tribunal as being stressed by the fact that they had been without adequate income for a period of weeks.  He suggested that even though ultimately his partner received full payment of arrears of DSP, they continued to have some consequent financial loss.  He was unable to articulate exactly how that loss arose.  His Rent Assistance entitlements appeared to be one of his concerns.

12.     The applicant considered that someone should be providing him with compensation and asked the Tribunal to exercise any powers that it had to provide him with that compensation.

consideration

13.     The Tribunal noted that its power to review decisions arising under the Social Security Act 1991 or the Social Security (Administration) Act 1999 is limited to a power to review decisions of the SSAT. 

14.     The applicant was unable to identify any decision made with respect to his own DSP entitlements.  His payments had continued throughout the time that a preclusion period had been applied to his partner’s pension.  His partner has independently exercised her right of review and she was successful before the SSAT.

15.     His concerns about his rate of DSP during the relevant period and Rent Assistance payments have not been considered at all by the Department.  No decision  has been made by either the Department or the SSAT with respect to his entitlements

16.     There is no reviewable decision for the Tribunal to consider.

17.     In the circumstances, the Tribunal affirms that it has no jurisdiction to hear the application of the applicant.  For him to bring any matters to this Tribunal, he must first lodge an application for review to the Department seeking review of the rate of his DSP paid during the relevant period and review of the rate of Rent Assistance paid to him during the relevant period.  These appear to be the issues of concern to him.  If that is then dealt with by the Department at first instance and the applicant is not happy with that decision, he can seek a review by an Authorised Review Officer.  If he is still not happy with that decision, then he can seek further review to the SSAT.  The jurisdiction of this Tribunal only arises after review by the SSAT.

18.     The Tribunal explained to the applicant the limits on its jurisdiction.

19.     In the circumstances, the Tribunal finds that it has no jurisdiction to hear the application for review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ............J Coulthard............................................
  Associate

Date of Hearing  23 March 2007
Date of Decision  27 April 2007
Advocate for the Applicant       In person

Advocate for the Respondent   Ms J Kitto

Centrelink Legal Services Branch