Giorgi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 65 (1 February 2010)

Last Updated: 2 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/ 6169

GENERAL DIVISION		)
	Re		Alexandra Giorgi

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.

Respondent

DECISION

Tribunal

Mr P W Taylor SC, Senior Member Ms J Redfern, Senior Member

Date 1 February 2010

Place Sydney

Decision

The decision under review is affirmed.

.....................SGD......................

Mr P W Taylor SC, Senior Member

CATCHWORDS

SOCIAL SECURITY- disability support pension– date of effect- substituted decision takes effect on date of original decision unless untimely application for review- 13 weeks- date of effect of Social Security Appeals Tribunal decisions-SSAT favourable decision.

LEGISLATION

Social Security (Administration) Act 1999 ss 152, 137.

Administrative Appeals Tribunal Act 1975 s 43(6).

CASES

Secretary, Department of Social Security v O’Connell [1992] FCA 559; (1992) 38 FCR 540.

REASONS FOR DECISION

1 February 2010

Mr P W Taylor SC, Senior Member Ms J Redfern, Senior Member

1. On 20 November 2008 the Social Security Appeals Tribunal (SSAT) set aside the Centrelink decision dated 28 August 2006 to cancel Ms Giorgi’s disability support pension (DSP). However, the SSAT decided that any consequential pension arrears were payable only from 29 July 2008. That was the date Ms Giorgi lodged her application with the SSAT for review of the Secretary's decision.
2. Centrelink’s letter of 28 August 2006 notified Ms Giorgi of the Secretary’s cancellation decision. She concedes she received notification. Consistent with that concession, on 1 September 2006 she telephoned Centrelink to request reconsideration of the cancellation decision. The cancellation decision was confirmed on 21 October 2006.
3. On 21 October 2006 Ms Giorgi requested a review of the confirmed decision by an authorised review officer (ARO). On 16 November 2006 the ARO wrote to Ms Giorgi confirming the cancellation decision. The ARO’s 16 November 2006 letter contained a paragraph informing Ms Giorgi of the right to appeal to the Social Security Appeals Tribunal. It also advised that ‘if you decide to appeal, it is important to do so within 13 weeks of receiving this letter. If you appeal after 13 weeks and the SSAT decides arrears are payable, these may be backdated only to the date your appeal was received by the Tribunal.’ Ms Giorgi concedes she also received this letter.
4. Ordinarily a varied or substituted decision made by the SSAT would take effect on the date of the original decision. But that ordinary position applies only if the review application was timely. She did not apply to the Social Security Appeals Tribunal for review of the ARO’s decision until 29 July 2008. That application, though ultimately successful, was not timely. It was made more than 13 weeks after she had been notified of the confirmed cancellation decision.
5. Section 152 of the Social Security (Administration) Act 1999 (the Act) deals with the date that SSAT decisions take effect. Subsection 152(4) of the Act is the most relevant in assessing Ms Giorgi’s claim and review application. It provides as follows:

152 Date of effect of SSAT decisions (other than Employment Pathway Plan decisions)

             ...

             (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.

6. Subsection 152(4)(b) of the Act is consistent with other provisions reflecting the significance of review applications being made within 13 weeks of notification of an unfavourable social security decision. These include s 107(3) (which contains the general rule relating to review after refusal of a social security claim) and s 109(2) (which prescribes the date of effect of a favourable review determination relating to rate increase or cancellation decisions). In particular, ss 137(1) and (5) determine that a favourable review decision made after an untimely application relating to a cancellation or rate reduction decision, neither avoids that decision nor revives the original decision that social security was payable.
7. The context of s 137(1) of the Act could suggest it was only intended to apply to reconsideration decisions made by the Secretary (or an ARO) under ss 126 and 129. Section 152, on the other hand, deals specifically with the date of effect of favourable review decisions made by the SSAT. One conceivable reconciliation of the two provisions is that a favourable review decision might take effect from the date of the original decision if an earlier request for internal review was timely, even though that review was unfavourable and the subsequent review application to the SSAT although successful, was tardy.
8. However that reconciliation is confounded by the fact that s 137(1)(f) of the Act refers to review decisions “made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal”. Furthermore, as the Secretary points out, s 137 is not a specific “date of effect” provision. Its operation is only to determine that, in circumstances such as the present case, the Secretary’s cancellation decision is not void.
9. Section 137(5) of the Act was a legislative response to the Federal Court of Australia’s decision in Secretary, Department of Social Security v O’Connell [1992] FCA 559; (1992) 38 FCR 540. Understood against the background of the result of that case, it actually confirms, rather than detracts from, the specific “date of effect provisions” contained in ss 109 and 152. It requires an assumption that an unfavourable decision set aside after a tardy review application continues to have force until the review decision takes effect. That date has to be determined in accordance with s 152(4).
10. In the circumstances of the present case, where Ms Giorgi’s review application to the SSAT was untimely, the SSAT’s favourable decision takes effect on the date of her application. The specific provision contained in s 152(4) of the Act directly applies to the present circumstances.
11. The ordinary position that applies to review decisions made by this Tribunal is that they take effect on the same date as the reviewed decision, unless the Tribunal otherwise orders. Given the specificity of the provision in s 152(4) of the Act, it is not appropriate for the Tribunal to exercise the more general power conferred by s 43(6) of the Administrative Appeals Tribunal Act 1975. The reinstatement of Ms Giorgi’s DSP takes effect on 29 July 2008 – as the SSAT determined. The decision under review is affirmed.
    

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member and Ms J Redfern, Senior Member.

Signed:.................................................................................

Ms B Dhanasar, Associate.

Dates of Hearing 25 and 26 November 2009

Date of Decision 1 February 2010

Representative for the Applicant Alexandra Giorgi (Self)

Representative for the Respondent Stephanie Memmott

Centrelink Legal Services