Editors --- "Request for review: What constitutes a request?" [2010] SocSecRpr 19; (2010) 12(2) Social Security Reporter, Article 5

• VINE and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Legislation
• Whether request for review made within 13 weeks
• Date of effect made review futile
• Decision

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Request for review: What constitutes a request?

VINE and SECRETARY TO THE DFHCSIA

(2010/135)

Decided: 24th February 2010 by G.D.Friedman

Background

Vine was granted disability support pension (DSP) on 5 April 2008. She ceased employment on 28 May 2008 and received a termination payment and payment in lieu of notice: Centrelink imposed an income maintenance period (IMP) from 28 May 2008 to 21 October 2008. Vine was advised by her union and financial counsellor that the payment in lieu of notice should not have been included in the IMP. Vine sought review and the decision of the authorised review officer (ARO) was made on 15 August 2008. She applied for a review of the decision of the ARO by lodging a written application with the SSAT on 17 March 2009.

On 6 March 2009, Centrelink had decided that Vine was not qualified to receive the economic security strategy payment (ESSP) because she was not in receipt of DSP on 14 October 2008. Vine applied for a review in the belief that the IMP should be recalculated to disregard the payment she received in lieu of notice. If the IMP was reduced Vine would be qualified to receive ESSP. The Department argued the IMP was calculated correctly and that Vine’s request for a review by the SSAT was more than 13 weeks after the notice of the decision by the ARO dated 15 August 2008.

Issues

The issues in this matter were:

• Whether Vine applied to the SSAT more than 13 weeks after notice was given of the decision of 15 August 2008;

• Whether the IMP was correctly calculated or could the length of IMP be reduced; and

• Whether Vine was qualified to receive the ESSP.

Legislation

Section 900 of the Social Security Act 1991 (the Act) provides that a person is qualified for ESSP if a person was receiving DSP in respect of 14 October 2008.

Section 154 of the Social Security (Administration) Act 1999 (the Administration Act) provides:

154 Application requirements

(1) A person may apply to the SSAT for review of a decision by:

(a) sending or delivering a written application to:

(i) an office of the SSAT; or

(ii) an office of the Department; or

(iii) if the decision was made by the CEO or an employee of the Agency—an office of the Agency; or

(b) going to an office of the SSAT and making an oral application; or

(c) contacting an office of the SSAT by telephone and making an oral application.

(2) If a person makes an oral application in accordance with paragraph (1)(b) or (c), the person receiving the oral application must make a written record of the details of the oral application and note on the record the day on which the application is made.

(3) If a written record of an oral application is made in accordance with subsection (2), Division 4 has effect as if the written record were a written application.

(4) An application may include a statement of the reasons for seeking a review of the decision.

The date of effect of a favourable decision by the SSAT is set out in s.152 of the Administration Act. When a person applies for review more than 13 weeks after notice is given, if the decision is varied, the effect of the SSAT decision is taken from the date of the application for review to the SSAT. If a review by the SSAT is more than 13 weeks after the notice of a decision is given then s.43(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that, unless otherwise ordered by the AAT, if the AAT varies the decision the date of effect would be the date of effect of the SSAT decision.

Whether request for review made within 13 weeks

Vine said that she believed she had made many phone calls to Centrelink in the 13 weeks following the ARO review. Ms Vine explained that following her employment termination she was suffering from a severe illness, that she had not dealt with Centrelink prior to this time and that she did not appreciate the difference between the SSAT and Centrelink. Ms Vine said that she discussed the appeal process with the Centrelink officers and that one of them spent some time to ensure the administrative side of the review was actioned. Ms Vine agreed that she did not directly contact the SSAT to request a review until March 2009 but she said that would have lodged her application with the SSAT on receipt of the ARO letter.

The AAT cited the decisions of Frost and Secretary, Department of Social Security [1995] AATA 228 and Kelly and Secretary, Department of Social Security [1995] AATA 302 both decisions which accepted that in the right circumstances it was appropriate to treat the most informal query as a request for internal review, without the need for the applicant to use the word review. However, the AAT followed the decision of Paino and Secretary, Department of Employment and Workplace Relations [2006] AATA 951 where it was held that notifying Centrelink of an intention to appeal is not enough to comply with s.154 of the Administration Act. That is, the requirements in s.154 of the Administration Act relating to external review to the SSAT are more specific and refer to written applications made to the SSAT or an office of Centrelink, or oral applications made to the SSAT.

Vine claimed that she was affected by her illness and sometimes confused dates. The AAT observed that her phone calls to Centrelink following the decision of 15 August 2008 seemed to have been in the nature of general enquiries; that she did not raise the issue of seeking review and that there was no record of an application to the SSAT until March 2009. The AAT decided that the request for review was not within 13 weeks of the ARO decision.

Date of effect made review futile

Therefore, under s.152(4)(d) of the Administration Act, any favourable decision by the AAT about the length of the IMP, would take effect from the date of the application to the SSAT, 17 March 2009. This date was after the end of the IMP and consequently of no benefit. The AAT stated that the recalculation of the IMP was futile.

In view of its finding that Vine could not succeed in her application for review of the decision that the operative dates of the IMP imposed on her disability support pension were from 28 May 2008 to 21 October 2008, the Tribunal found that for the purposes of s.23(1) of the Act, Vine was not receiving disability support pension in respect of 14 October 2008. Therefore she could not satisfy s.900(2) of the Act and was not qualified to receive the ESSP.

Decision

The Tribunal affirmed the decision under review.

[M.R.]