DeWitt and Secretary, Department of Social Services (Social services second review) [2023] AATA 1696 (13 June 2023)

Last Updated: 20 June 2023

DeWitt and Secretary, Department of Social Services (Social services second review) [2023] AATA 1696 (13 June 2023)

Division: GENERAL DIVISION

File Number: 2023/3458

Re: Marlon DeWitt

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Senior Member D. J. Morris

Date: 13 June 2023

Date of written reasons: 19 June 2023

Place: Melbourne

The Tribunal dismissed the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 because it was satisfied there is no reviewable decision.

.................................[SGD].......................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – pensions, benefits and entitlements – disability support pension – whether being paid at single or partnered rate – effect of a Tribunal decision – applicant was a joined party to a previous decision by consent – applicant claimed his rate of DSP payment changed as a result of a previous Tribunal decision relating to his partner – no evidence of change in payment rate of applicant’s DSP – no decision by authorised review officer before Tribunal – no First Review decision – power of Tribunal constrained by statute – Tribunal does not have jurisdiction – application dismissed for want of jurisdiction – there is no reviewable decision – request for referral by Tribunal to Federal Court – no identifiable question of law arising in proceeding - oral decision – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 70 AAR 103

Prodan and Secretary, Department Family and Community Services; Re: [2002] AATA 1134

Yan and Secretary, Department of Social Services; Re: [2014] AATA 294

Secondary Materials

Australian Government Social Security Guide, Version 1.307, released 8 May 2023

Australian Guide to Government Payments, Department of Social Services 13 April 2023 (https://www.servicesaustralia.gov.au/guide-to-australian-government-payments)

REASONS FOR DECISION

Senior Member D. J. Morris


19 June 2023

1. The Applicant, Mr Marlon DeWitt, has received disability support pension (DSP) since September 1996. His eligibility for DSP is not in contention in this proceeding.
2. The Applicant is in a domestic partnership with Ms JC, and has been since August 1996. This fact is not disputed by Mr DeWitt.

HEARING

3. An interlocutory telephone hearing was held on 13 June 2023. Mr DeWitt made submissions. Mr Tim Noonan, a Principal Legal Officer with Services Australia, part of the Department of Social Services, represented the Respondent, and also made submissions.
4. The Tribunal took into account the following documents:

(a) Application by Mr DeWitt dated 19 May 2023;

(b) Letter of Mr DeWitt to the Tribunal dated 26 May 2023;

(c) Submissions of the Respondent dated 5 June 2023, with attachments;

(d) A consent agreement made by Member Regina Perton, OAM, of the Tribunal under s 42C of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), dated 27 October 2016 in relation to application 2016/3157 brought by Ms JC.

5. At the hearing, Mr DeWitt advised that he had also made other written submissions in response to the Respondent’s Submissions. Subsequent to the hearing, he forwarded those submissions to the Tribunal with an apology advising that he had thought he had sent them earlier. The Tribunal has read these additional submissions.
6. At the conclusion of the hearing, the Tribunal advised the parties that it would be dismissing Mr DeWitt’s application because there was no jurisdictional foundation for the Tribunal to hear it. The Tribunal advised that it would provide written reasons to assist Mr DeWitt.

Written reasons for oral decision

7. The Tribunal provides these written reasons to the Applicant and the Respondent to explain in more detail why the matter was dismissed. In Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said 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).

8. In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 13 June 2023, consistent with the approach suggested in Negri. New reasoning for the decision that the Tribunal dismissed the application for want of jurisdiction has not been introduced, but I have included more detail of the relevant provisions in the Social Security (Administration) Act 1999 (‘the Administration Act’).

BACKGROUND

9. The Applicant’s partner, Ms JC, was in receipt of payments from the Victorian Transport Accident Commission, which affected her income and therefore the rate of Newstart Allowance to which she was entitled. After an authorised review officer (‘ARO’) in the Department made a decision about the rate of payment of Newstart Allowance to her, Ms JC sought a review by the Social Services and Child Support Division of this Tribunal (‘First Review’). The First Review made a decision on 2 June 2016 to affirm the ARO’s decision.
10. Ms JC sought a review by the General Division of the Tribunal (‘Second Review’) on 14 June 2016. At the time Ms JC lodged her application, Mr DeWitt also applied to be joined as an affected party under s 30(1A) of the AAT Act. On 28 June 2016 a Senior Member of the Tribunal made a joinder order, and Mr DeWitt became the Other Party to the proceeding. I will call this the ‘2016 agreement’.
11. However, before the Second Review hearing was convened, the Respondent wrote to the Tribunal making certain concessions and advised that terms of an agreement by consent had been sent to Ms JC.
12. The Respondent subsequently provided the Tribunal with terms of an agreement acceptable to all parties which was signed by Ms JC and the Respondent’s representative on 27 October 2016 and also by Mr DeWitt. Mr DeWitt dated his signature as ‘27/11/2016’ but I am satisfied that was a slip of the pen and that he signed on the same day as Ms JC, which was 27 October 2016.
13. On 27 October 2016 Member Perton of the General Division made a decision implementing the terms of the agreement by consent. This agreement was that Ms JC was entitled to arrears of Newstart Allowance for the period 26 March 2014 to 20 October 2015. There was a note attached to the agreement which stated:

NOTE: As the Applicant and the Other Party are partnered, any adjustment to the Applicant’s [i.e. Ms JC’s] income will also apply to the Other Party and affect his rate of income support payment for the relevant period.

Applicant’s submissions

14. Mr DeWitt did not dispute that he had signed the consent agreement as the Other Party. He also did not dispute that he was aware that his DSP would be affected by other income that Ms JC may earn because they were members of a couple. Mr DeWitt submitted that, prior to the implementation of the consent agreement, he was receiving DSP as what he described as ’DSP (individual disability support pension) Partnered’. He further submitted that, at some time subsequent to the implementation of the consent agreement, the Department changed the rate of DSP he was receiving to what he termed a ’couples pension rate’.
15. Mr DeWitt said that he had raised this matter with the Department and told the Tribunal that he had been told by a person who he identified as a ‘senior review officer’ that they had reviewed his rate of DSP and ‘had made a decision and the matter was now closed’. Mr DeWitt said he asked this officer for a written copy of the decision, and she told him she would send him a letter to his ‘myGov’ account. He told the Tribunal that nothing had yet been received.
16. Mr DeWitt submitted that the Guide to Australian Government Payments, in referring to payment rates for DSP for persons aged over 21, states that the basic maximum rate of DSP for a single person is $971.50 and for ‘couple (each)’ is $732.30.
17. Mr DeWitt contended that Ms JC does not receive a pension and, as far as the Tribunal understood his submissions, submitted that his had been reduced from the partner rate after the 2016 agreement.
18. Mr DeWitt submitted that the Tribunal had power to vary the 2016 agreement under s 42C(5) of the AAT Act.

Respondent’s submissions

19. The Respondent submitted that Mr DeWitt was first granted DSP in September 1996 and has always received it at the partnered rate. The Respondent submitted that:

The Agency [i.e. the Department] has not made a decision to change the rate of the Applicant’s DSP. The Applicant has received DSP at the partnered rate prior and subsequent to the Tribunal’s decision.

20. The Respondent further submitted that, as there has not been a decision relating to the payment of Mr DeWitt’s DSP, there is no question before the Tribunal capable of being reviewed and, in any event, there has been no relevant First Review which must occur before a party applies for Second Review.

CONSIDERATION

21. The Tribunal has read the material provided by the parties. In the Respondent’s material were some printouts of payments to Mr DeWitt, and certain payments to Ms JC, but not a complete summary. There were fluctuations in payments to Mr DeWitt which it appeared were due to income received from time to time by Ms JC, which Mr DeWitt said he accepted.
22. On the papers before me, the only adjustment to Mr DeWitt’s DSP payment rate which is directly attributable to the 2016 agreement is a payment of arrears of $453.39 for the period 21 October 2015 to 26 January 2016 (attachment A3 to the Secretary’s submissions). The internal note records that this was a consequence of the implementation of the consent agreement which paid arrears to Ms JC.
23. It would seem to the Tribunal that Mr DeWitt may have been misled by the heading ‘Couple (each)’ in a column heading in the maximum payment rates published in a Department guide, the Australian Guide to Government Payments. When a person is eligible for DSP, their entitlement to the payment (putting aside assets and income which may have an effect on the rate of payment) is based at first principles on whether he or she is a single person or a member of a couple. In the Australian Government Social Security Guide, at paragraph 5.1.8.10 referring to common pension rates, the terms ‘Single’ and ‘Partnered (each)’ are used. This means that a single person entitled to receive a DSP is entitled to ‘x’ amount as a maximum basic rate. If the DSP recipient is a member of a couple, he or she gets ‘y’ amount. If two persons entitled to a DSP pension are both members of a couple, each recipient receives ‘y’ amount. There are also additional supplementary payments that may be payable.
24. If the DSP recipient is a member of a couple, the DSP is paid at what is described as the ‘partnered’ rate, which is less than the single rate. But I emphasize that the word ‘each’ in the heading of this column refers to a case where each member of the couple is entitled to DSP, they receive a set rate which is less than a single DSP recipient is entitled to receive. It does not mean, as one of Mr DeWitt’s submissions appeared to contend, that a person in receipt of DSP is paid at a couple’s rate and their partner also is automatically paid a pension as their partner at that same rate.
25. In addition, however, a person who is a member of a couple (as Mr DeWitt concedes he is) receives the DSP at the partnered rate. Equally, other pensions and benefits that Ms JC may receive from time to time are also paid at the partnered rate, because she is a member of a couple with Mr DeWitt. There is no such thing as an ‘individual partnered’ rate, as he asserted. There are provisions in the Act for a partnered person to be treated as a single person in specific circumstances, but they are not relevant to this matter.

JURISDICTION

26. In this case, Mr DeWitt essentially contended that the basis of him bringing the matter to the Tribunal was because he has standing as a joined Other Party in relation to the 2016 agreement and that his rate of DSP was affected, to his detriment, by the implementation of that agreement. Mr DeWitt submitted that the Tribunal has capacity to alter the agreement made between the parties under s 42C(5) of the AAT Act.
27. The difficulty for the Applicant in these submissions is that, while he was joined as another party to the 2016 agreement, there is no part of that agreement that he is seeking to overturn, other than his notional submission that his rate of DSP changed either due to, or after, the implementation of the 2016 agreement (which the Respondent rejects). Even, hypothetically, were the Tribunal to find there was an error in the 2016 agreement that required amendment under s 42C(5) of the AAT Act, all the parties would have to agree that there was an error which needed to be rectified, or some variation needed to be made, and that includes Ms JC and the Secretary of the Department. Mr DeWitt merely being of the view, in an unspecific way, that his rate of DSP changed after the 2016 agreement, is quite insufficient to make out a case that there was an error.
28. The other difficulty is that, during the hearing when Mr DeWitt was asked if he had received a written decision from an ARO relating to the rate of DSP payment, he said that he had asked for one, but had not received it. The Tribunal asked Mr Noonan to make inquiries of the Department to see if they had made a decision and, if so, that they promptly advise Mr DeWitt.
29. Mr DeWitt asked the Tribunal if it had the power to direct the Department to provide the ARO’s decision to him, or set a timeframe when it will. The Tribunal does not have such a power.
30. The Tribunal explained that the scope of the General Division’s powers in relation to decisions under the Social Security Act 1991 is conditioned by s 179 of the Administration Act. Section 179(1) of the Administration Act provides that an application can be made to the Tribunal for a Second Review of a decision at First Review.
31. Section 179(2) of the Administration Act provides that the decision at First Review is taken to be:

    (a) if the First Review affirmed a decision, that decision as affirmed;

    (b) if the First Review varies a decision, that decision as varied;

    (c) if the First Review sets aside a decision and substitutes a new decision, the new decision; and

    (d) if the First Review sets a decision aside and sends the matter back to the Secretary of the Department for reconsideration in accordance with any directions or recommendations, those directions or recommendations.

32. However, it is not apparent that there has been an ARO decision in Mr DeWitt’s case. There may have been, but, if so, he says he has not yet received it. It was common ground that there has not been a First Review.
33. In this case, the Tribunal explained to the parties that it has no jurisdiction to conduct a hearing in relation to the matter Mr DeWitt wants to agitate. The foundation for Second Review, which is set out in s 179 of the Administration Act, has not been satisfied.
34. In his written submissions, in support of the contention that there needed to be a First Review before the General Division was empowered to undertake a Second Review, the Respondent cited two decisions of the Tribunal from a time when the old Social Security Tribunal (SSAT) was in existence. Prior to 2015, persons dissatisfied with a decision of the SSAT could apply to the AAT for a Second Review. In both Re: Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134, Member McCabe, as he then was, at [8]-[9], and in Re: Yan and Secretary, Department of Social Services [2014] AATA 295 (Deputy President Tamberlin, at [8]-[17]) held that a First Review was a condition precedent to a Second Review in relation to decisions under the Social Security Act. The Tribunal finds that is still the case after the SSAT and the AAT amalgamated in 2015, because of the legislative provisions in the Administration Act. The Tribunal does not have an inherent power of review, its review powers must be conferred by an enactment (see s 25 of the AAT Act).
35. The Tribunal informed Mr DeWitt that, once he has a decision by an ARO and has concluded that he is aggrieved by it, he would be able to make an application to the Social Services and Child Support Division of the Tribunal for a merits review of that decision. If still dissatisfied after First Review, it is open to him to seek a Second Review. However, at this stage it is plain that there is no reviewable decision by a division of the Tribunal.
36. There is one other matter which, for completeness, the Tribunal will refer to in these written reasons. In his written submissions, Mr DeWitt requested that his matter be referred by the Tribunal to the Federal Court of Australia. Section 45 of the AAT Act provides that the Tribunal may, with the agreement of the President, refer a question of law arising in a proceeding in the Tribunal to that Court for decision. The Tribunal may do so on its own initiative or at the request of a party to a proceeding. In the absence of an identifiable question of law arising in this proceeding, the Tribunal refuses the request by the Applicant.

DECISION

37. The Tribunal dismissed the application pursuant to s 42A(4) of the AAT Act because it was satisfied that there is no reviewable decision.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................................[SGD]........................................

Associate

Dated: 19 June 2023

Date of hearing:	13 June 2023
Applicant:	Self-represented
Advocate for the Respondent:	Mr Tim Noonan
Solicitors for the Respondent:	Services Australia, Litigation & Information Release Branch