Yang and Secretary, Department of Social Services (Social services second review)

[2018] AATA 3009

Yang and Secretary, Department of Social Services (Social services second review) [2018] AATA 3009 (19 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1838

Re:Xiao Yang

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D.J. Morris

Date of decision:                   19 July 2018

Date of written reasons:        21 August 2018

Place:Melbourne

At the conclusion of the hearing, acting under the provisions of section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismissed the application, being satisfied that it has no reasonable prospects of success.

...................[sgd].....................................................

Senior Member

Catchwords

DISABILITY SUPPORT PENSION – start date – applicant already in receipt of DSP – no review lodged of ARO decision within 13 weeks – effect of s 152(4) of Administration Act as then in force – any favourable decision may only take effect from date review lodged – this date after Applicant in receipt of DSP – review therefore futile – application dismissed as no reasonable prospects of success.

Legislation

Administrative Appeals Tribunal Act 1975, ss 42B, 43(2A), 42(2B)
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, ss 147, 152(4)(repealed)

Cases

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

REASONS FOR DECISION

Senior Member D.J. Morris

21 August 2018

PROCEDURAL BACKGROUND

1. The Applicant in this matter, Mr Xiao Yang, is the recipient of a Disability Support Pension (DSP) under section 94 of the Social Security Act 1991 (the Act).  He has brought an application for review to the Tribunal about the start date for his DSP.  At the hearing, the Respondent made submissions that Mr Yang’s current qualification for DSP is not in contention; the Applicant’s contention was that there should be an earlier start date for that benefit.  Mr Yang agreed that this frames his application for review.  The Tribunal proceeded to consider the matter on that basis.

2. A hearing was held on 19 July 2018.  Mr Yang represented himself, with the assistance of an interpreter in the Mandarin language.  The Respondent was represented by Mr Tim de Uray, a legal officer of the Department of Human Services.  At the conclusion of the hearing, the Tribunal made its decision ex tempore and provided oral reasons. Under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), Mr Yang requested a statement in writing of the reasons of the Tribunal for its decision. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

3. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (Negri), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. His Honour stated at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

4. These reasons have been written consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced. This written statement is merely a fuller explanation of the decision given orally at the conclusion of the hearing on 19 July 2018.

   The hearing

5. The Tribunal had before it a volume of documents provided by the Respondent on 2 May 2018 in accordance with section 37 of the AAT Act (Tdocuments) (Exhibit R1) and a further bundle of documents (ST documents) (Exhibit R2), provided with the Respondent’s Statement of Facts, Issues and Contentions on 2 July 2018.

6. The Applicant provided two written submissions, the first dated 28 May 2018 (Exhibit A1) and the second dated 12 June 2018 (Exhibit A2).

7. Mr Yang made submissions under oath and responded to questions from Mr de Uray and the Tribunal.

8. Mr Yang submitted (in his written submissions) that his DSP should have a start date of 19 September 2012; a date he amended in his oral submissions to the Tribunal to 31 October 2012.  31 October 2012 was the date Mr Yang was advised by the Department of Human Services (Centrelink) (the Department) that his claim for DSP had been rejected because he did not meet the Australian residence requirements for the payment (at that time).

9. Mr Yang told the Tribunal that he first came to Australia on 27 June 2009, landing in Adelaide.  In his written submissions, Mr Yang referred to the usual requirement of 10 years residence for eligibility for DSP but noted that when he was granted DSP in 2016, he had not yet satisfied the 10 years residency requirement because his injury was a work injury sustained in Australia.  Mr Yang agreed that this element of his eligibility was not in contention at this hearing.

10. Mr Yang said that he first lodged a claim for DSP on 19 September 2012.  This application was before the Tribunal.  The responsible decision maker rejected Mr Yang’s claim on 16 October 2012. 

11. On 12 February 2013 an Authorised Review Officer (ARO1), an officer of the Department, not involved in the original decision, affirmed the decision to reject Mr Yang’s claim for DSP.

12. In February 2013 section 152(4) of the Social Security (Administration) Act 1999 (the Administration Act) (subsequently amended) provided:

    (4)         If

    (a)       a person is given written notice of a decision under the social security law; and

    (b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and

    (c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and

    (d)the effect of the decision of the SSAT is:

    (i)   to grant the person’s claim for a social security payment or a concession card; or

    (ii)  to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or

    (iii)to increase the rate of the person’s social security payment;

    the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.

13. Mr Yang gave evidence at the hearing that he told an officer of the Department that he wanted to have a review “by a higher tier”, after he was advised of the ARO’s decision to affirm the decision to reject his DSP claim.

14. Mr Yang said that, owing to medication and the instability of his medical conditions at that time, he was not fully aware of his rights of review at the time.  He was under the apprehension that he had made clear that he wanted a review by a “higher tier”, not an internal review by an officer of the Department. Mr Yang told the Tribunal “No one advised me I should do it myself.”

15. The Respondent submitted that Mr Yang did not lodge an application with the Social Security Appeals Tribunal (SSAT) within 13 weeks of the ARO1 decision of 12 February 2013.

16. The Respondent submitted that Mr Yang sought a second ARO review of the ARO1 decision of 12 February 2013.  On 3 March 2017 a second ARO (ARO2) wrote to Mr Yang and advised:

    I have investigated your review request and have found that this decision was reviewed by another Authorised Review Officer on 12 February 2013…The Authorised Review Officer concluded the decision to reject your claim for Disability Support Pension was correct. I have no jurisdiction as an Authorised Review Officer under section 126 of the Social Security (Administration) Act 1999 to undertake a second review of this decision.

17. On 10 February 2017 Mr Yang was granted DSP, backdated to 21 April 2016.  Mr Yang sought review of this decision in regard to the start date from an ARO (ARO3), requesting that it be backdated to 2012 (i.e. the time of his first claim for DSP).

18. The ARO3 wrote in the decision dated 20 March 2017:

    You have requested that the department review the start date of your Disability Support Pension as you consider it should be backdated to 2012.  However, I do note that the claim from 16 October 2012 which was rejected by the Department has been previously reviewed by an Authorised Review Officer on 12 February 2013 and the decision affirmed.  The only contact with the Department within 14 days of lodging your claim for Disability Support Pension on 2 May 2016 was the contact of 21 April 2016.  I have therefore decided you are deemed to have made a claim for Disability Support Pension on 21 April 2016.

19. The Respondent noted that Mr Yang made subsequent claims for DSP but did not apply for a review of the earlier ARO decisions to the SSAT or, its successor, the Social Services and Child Support Division of this Tribunal

20. The Respondent submitted that the Tribunal can review the decision relating to the start date but that, if the Tribunal were to make a decision favourable to Mr Yang, the law prevents the benefit of that decision taking effect from any date earlier than the date the Applicant applied to the Tribunal for review, which is 20 March 2017.

    Consideration

21. On the evidence in the T documents before the Tribunal, the Applicant did not make an application to the SSAT for review of the ARO1 decision of 12 February 2013. Mr Yang conceded this in his oral evidence, but contended that he told the Department at the time that he wanted to have the matter reviewed by a ‘higher tier’. Mr Yang said he was in supported accommodation at Mount Martha at this time because of his mental health condition, which was not stable. He submitted that language and cultural barriers contributed to his lack of understanding about the review options available to him.

22. Mr Yang requested that records of his telephone contact with the Department in the relevant period be provided, and Mr de Uray tendered them to the Tribunal (Exhibit R2).  These records reveal that there was no relevant contact with the Department in relation to review options for the 12 February 2013 decision in the 13 weeks after that decision.  The next entry in relation to the Applicant is dated 28 June 2013. It records contact being made on behalf of Mr Yang by a staff member of a mental illness fellowship, Ms Otten, in regard to special benefit entitlement.  There was no evidence before the Tribunal of any application to the SSAT seeking review by the Applicant of the 12 February 2013 decision.

23. It is therefore evident to the Tribunal that Mr Yang did not apply to the SSAT within 13 weeks of the 12 February 2013 decision.  In addition, Mr Yang did not apply for review by the Social Services and Child Support Division of the Tribunal of the ARO2 decision dated 3 March 2017, which stated that the ARO did not have jurisdiction to review the 12 February 2013 decision.

24. The provisions of section 152(4) of the Administration Act (as then in force) applied in relation to the 12 February 2013 decision. Section 147 of the Administration Act (as in force at 3 March 2017) applies in relation to the 3 March 2017 decision.

25. Mr Yang was granted DSP in 2017 with a start date of 21 April 2016. Because of the effect of section 152(4) of the Administration Act, any favourable decision in relation to his earlier claims could not, by force of law, take effect before 20 March 2017. As this is a date some 11 months after Mr Yang had commenced receiving DSP payments, the Tribunal finds that the review is futile.  Even if the Tribunal were to find in his favour, Mr Yang can receive no benefit from any such decision because of the date he lodged his application for review.  The Tribunal explained this to the Applicant at the conclusion of the hearing.

    DECISION

26. The Tribunal dismissed the application under section 42B(1)(b) of the AAT Act, being satisfied that it has no reasonable prospects of success.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris

...........................[sgd].............................................

Associate

Dated: 21 August 2018

Date(s) of hearing:	19 July 2018
Applicant:	In person
Solicitors for the Respondent:	Mr Tim de Uray - Department of Human Services