Editors --- "Child care benefit: requirement to notify changes in circumstances; refusal to accept notifications other than in writing" [2009] SocSecRpr 15; (2009) 11(2) Social Security Reporter, Article 4

• KERFERD and SECRETARY TO THE DFHCSIA
• The issue
• Background
• The issues
• What is a ‘decision’?
• What is the scope of the Tribunal’s jurisdiction?
• Was a decision made in Kerferd’s situation that was subject to review?
• Formal decision

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Child care benefit: requirement to notify changes in circumstances; refusal to accept notifications other than in writing

KERFERD and SECRETARY TO THE DFHCSIA

(2009/148)

Decided: 10th March 2009 by S. Forgie

The issue

The question for consideration in this matter was whether, having been advised by letter that certain changes in his circumstances could be notified by telephone, Kerferd could then be required by Centrelink to notify those changes in writing. To determine this a preliminary matter for consideration was whether a decision of this nature – to only receive information in a given way – was itself a ‘decision’ and so reviewable, or merely an action taken towards reaching a decision, in this case as to entitlement to the Child Care Benefit (CCB).

Background

In December 2007 Kerferd received a letter from Centrelink in relation to CCB requiring him to notify Centrelink of certain specified changes in his circumstances. The letter advised that he could notify by ‘writing, calling, going online, or visiting any of our Family Assistance Offices’, but when in February 2008 Kerferd contacted the relevant office by telephone he was advised that all his matters had to be handled by a specific named officer and that notifications and all other matters he might wish to discuss could only be communicated in writing. Kerferd had dealt with Centrelink on various matters over some years, and in August 2007 Centrelink had formed the view (and noted this on his file) that his matters should be handled by a particular staff member and that ‘all interactions by customer must be in writing’.

Kerferd sought review of this situation (that is, the refusal of the Centrelink officer to take note of the information he sought to give over the telephone) from an Authorised Review Officer (ARO), and then appealed to the SSAT. Both the ARO and then the SSAT took the view that as the decision – to refuse to receive information by telephone – not a decision in relation to Kerferd’s entitlement to CCB, there was no jurisdiction to review it, and so the appeal in each instance was unsuccessful. The SSAT in its decision noted the reasoning in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 that the term ‘decision’ as used in the Administrative Appeals Tribunal Act 1975 (the AAT Act) should be interpreted narrowly, and that to be characterised as a ‘decision’ the act in question must have the ‘character or quality of finality, reflecting something in the nature of a determination and resolving an actual substantive issue’. In Bond, the High Court concluded that acts done in preparation for the making of a decision could not be regarded as ‘decisions’. The SSAT adopted this reasoning and concluded that the refusal to accept a notification by telephone was not a ‘decision’ and so was incapable of review by an ARO, and in turn also incapable of SSAT review.

The issues

The Tribunal considered, first, whether it had power to review the refusal of Centrelink to accept Kerferd’s information by telephone and, in this regard, considered several jurisdictional questions.

What is a ‘decision’?

The Tribunal noted several cases, and in particular Duncan v Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia [1980] FCA 58; (1980) 30 ALR 165 at 16970 where it was commented that ‘[a] pronouncement which alters rights or imposes liabilities is readily classified as a “decision”, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities’. Further, in Bond the High Court had concluded that:

A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment... Another essential quality of a reviewable decision is that it be a substantive determination....

A ‘decision’ the High Court concluded, was to be clearly contrasted with ‘conduct’ – that is an act or thing preparatory to the making of a decision, or ‘the way in which the proceedings have been conducted...’ Applying this reasoning in relation to the Kerferd situation, the Tribunal concluded that it had power to review a ‘decision’ but that power did not extend to review of ‘conduct’.

What is the scope of the Tribunal’s jurisdiction?

The Tribunal’s power to review a decision is primarily set out in s.25 of the AAT Act. In this regard the Tribunal concluded that, to have jurisdiction to review, the review sought must be of a ‘decision’ as characterised above, that the decision in question must be of a sort for which an enactment provides for review, and that the decision must have been made in the exercise of powers conferred by that enactment or an alternative enactment. To be a decision made ‘under an enactment’ there must be a direct and explicit connexion between the text of the statute in question and the decision to be reviewed (Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230; Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279).

The Family Assistance (Administration) Act 1999 (the FAA Act) provides by s.56C that individuals may be obligated to notify of certain changes in their circumstances, advice of which obligation must be provided in the manner set out in s.57 of that Act. The requirement that Kerferd notify his circumstances in a particular way was a decision made under or consequent upon the provisions of the relevant legislation.

Was a decision made in Kerferd’s situation that was subject to review?

Applying the reasoning above to the Kerferd circumstances, the Tribunal noted that the ultimate decision – whether Kerferd’s entitlement to CCB would change – could only be made consequent upon the making of a number of decisions along the way through which the information necessary for the making of the final decision would be provided. In relation to Kerferd’s particular situation, ‘whether or not that person has given information in a form and manner required by the Secretary is a question to be considered and decided as a step along the path to deciding whether a person has made an effective claim’(Reasons, para. 54). Thus, ‘decisions about the gathering process are not steps along the way in the process of determining conditional eligibility or entitlement’ (Reasons, para. 25) but are, themselves, appropriately characterised as ‘decisions’.

In Kerferd’s situation, the Tribunal concluded that approval of a particular form of notification was itself a ‘decision’ and that it involved communication of information encompassed within s.57 of the FAA Act. Kerferd was directly affected by the decision to alter the way in which he could communicate with Centrelink, and ‘the decision has prevented Mr Kerferd from being able to comply with his obligations in one or more of the ways in which he had been advised that he could do so’ (Reasons, para. 87).

The Tribunal determined that the decision – to require Kerferd to notify of changes in his circumstances in a particular way was able to be reviewed by the ARO and so, in turn, by the SSAT.

Formal decision

The matter was remitted to the ARO for reconsideration.

[P.A.S.]