Editors --- "Disability support pension: date of effect of decision" [2014] SocSecRpr 16; (2014) 16(2) Social Security Reporter, Article 8

• McHATTIE and SECRETARY TO THE DSS
• Background
• Statutory Framework
• Discussion
• Formal decision

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Disability support pension: date of effect of decision

McHATTIE and SECRETARY TO THE DSS

(2014/246)

Decided: 28th April 2014 by A.K Britton

Background

The Secretary conceded that McHattie qualified for disability support pension (DSP) when he lodged his claim on 23 March 2012 and that the AAT should set aside the decision of the SSAT and, in substitution of that decision, decide that McHattie was qualified to receive DSP when he lodged his claim. The sole issue in dispute between the parties was the start date for payment of DSP. McHattie contended that the correct date was the date he made his claim, 23 March 2012 whereas the Secretary contended that the correct date was 18 September 2012, the day McHattie lodged an application for review by the SSAT of the Authorised Review Officer (ARO’s) decision.

Statutory Framework

Section 43(6) of the Administrative Appeals Tribunal 1975 (Cth) (the AAT Act) deals with the date of the effect of a decision by the AAT and provides:

Tribunal’s decision taken to be the decision of decision maker. A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

Subsections 152(4) and (5) of the Administration Act provide:

(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.

(5) The SSAT may declare:

(a) that subsection

(3) does not apply to a decision by the SSAT on a review; and

(b) that subsections (1) and (2) apply instead.

Discussion

The Secretary contended that in these circumstances consistent with Secretary, Department of Employment and Workplace Relations v Mitchell [2006] AATA 804, s.152 of the Administration Act ought be applied and the date of effect of the AAT’s decision should be taken to be the date McHattie applied for review of the decision of the ARO, 18 September 2012, which was more than 13 weeks after he was notified of the decision of the ARO (23 May 2012).

The AAT disagreed with the analysis of DP Jarvis in Mitchell that s.152(4) of the Administration Act operated to deprive the AAT of the discretion conferred by s.43(6) of the AAT Act to ‘otherwise order’ and to determine the date of ef-fect of any decision it makes on review. The AAT noted that s.152 concerns the date of effect of a decision of the SSAT where s.43(6) concerns the date of ef-fect of a decision of the AAT. The AAT found that while a decision of the AAT is deemed to be a decision of the SSAT, it did not mean that s.152(4) of the Ad-ministration Act governed the date of the effect of a decision made by the AAT.

Noting that the AAT Act did not provide guidance on the factors that should be taken into account in deciding whether the power ‘to otherwise order’ should be exercised, having regard to the re-striction on retrospectivity contained in s.152 of theAdministration Act and in the absence of any compelling circum-stances justifying a departure from that restriction, the AAT found that this was not an appropriate case to ‘otherwise order’ that the date of effect of the de-cision, should be as McHattie contended, the date he made his claim for DSP.

Formal decision

The AAT set aside the decision of the SSAT, and in place of that decision, decided that McHattie was qualified to re-ceive the disability support pension when he made his claim for the pension on 23 March 2012.

The date of effect of this decision was 18 September 2012. [G.B.]