Warrell and Secretary, Department of Social Services (Social services second review)
[2022] AATA 2461
•2 May 2022
Warrell and Secretary, Department of Social Services (Social services second review) [2022] AATA 2461 (2 May 2022)
AppID:Warrell and Secretary, Department of Social Services
MatterType: Social services second review
Division:GENERAL DIVISION
File Number(s): 2022/0387
Re:Edward Warrell
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 May 2022
Date of written reasons: 3 May 2022
Place:Sydney
The Tribunal orders that application for review of this matter is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
......................................[sgd]..................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – claim for disability support pension – dismissal application pursuant to s 42B(1)(b) – no reasonable prospect of success – no substantive claim made within relevant time period – request for review of decision not made within 13 weeks – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Social Security (Administration) Act 1999 (Cth) ss 11 and 107
CASES
Browne and Secretary, Department of Employment [2015] AATA 978
REASONS FOR DECISION
Chris Puplick AM, Senior Member
3 May 2022
Mr Edward Warrell (the Applicant) has sought a review of a decision made by the Social Services and Child Support division of this Tribunal which, on 21 December 2021 determined that the Applicant’s claim for back-payment of the Disability Support Pension (DSP) from 1999 or earlier was unsuccessful.[1]
[1] The review application is dated 18 January 2022.
The Applicant suffered a severe accident in 1982 which left him with traumatic brain injury. As a result of this, and his compromised level of functional literacy, the Applicant has little recall of matters (retrospective amnesia) which may or may not have taken place between 1982 and 1999.
The first evidence of the Applicant having made a claim for DSP was on 6 August 1999 which was rejected. A subsequent claim made on 25 June 2015 was successful and DSP was granted and paid until the Applicant was transferred automatically to the Age Pension on 26 August 2015.
The history of various payments, and of the age pension in particular to the Applicant is complicated and has involved several suspensions of payments for a variety of reasons.[2] However, those details are not germane in these proceedings.
[2] Tribunal documents (T-documents) at 360-364.
Consequent upon these events, the Secretary, Department of Social Services (the Respondent) applied on 12 April 2022, to have the matter dismissed under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
That provides (emphasis added):
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
The Secretary asserts that the Applicant has no prospect of success for the following reasons:
(a)there is no evidence that the Applicant submitted a claim for DSP prior to 6 August 1999 and section 11 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) provides that any person who wishes to be granted a social security payment must do so by making a claim in the prescribed manner; and
(b)even if the decision to reject the DSP application in 1999 was in error, that error cannot now be reviewed as subsection 107(3) of the Administration Act requires that claims for review must be made within 13 weeks of the date of the original determination.[3] No request for review was received until 6 August 2021.
[3] At the time of Applicant’s rejection on 9 September 1999, the relevant provision was subsection 115(3) of the Social Security Act 1991 (Cth), now mirrored in the Administration Act as noted.
The Tribunal does not lightly grant dismissal of applications as applicants are entitled to pursue their claims as long as there are reasonable prospects that they might be successful.
Where there are no realistic prospects of success it would be unfair to both the applicant and contrary to the public interest to allow such claims to remain on foot, no matter how sympathetic or otherwise the Tribunal might be to any individual applicant. Mr Warrell has undoubtedly had a difficult life since his catastrophic accident and the Tribunal is sympathetic to his particular circumstances.
However, his case is one which falls squarely within the definition of having no prospect of success based upon the clear requirements of two key provisions of the social security legislation which he is unable to meet.
As the Tribunal stated directly in Browne and Secretary, Department of Employment [2015] AATA 978:
It would be futile and indeed wasteful for the application to continue as there is nothing that the Tribunal can do to assist Mr Browne. In that regard, the dismissal of this application is also consistent with section 2A of the Tribunal’s governing statute which requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
It follows that the Secretary’s application for Mr Warrell’s application to be dismissed must be granted.
DECISION
The Tribunal orders that the Applicant’s application for review is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................................[sgd]..................................
Associate
Dated: 3 May 2022
Date(s) of hearing: 2 May 2022 Applicant: In person Solicitors for the Respondent: Mr T Chang, Services Australia
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