Social Security Rights Review – Recent Decisions of Interest

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Sorrenti and Secretary, Department of Social Services (Social services second review) [2018] AATA 4301 (19 November 2018)

This case provides guidance on s 24 of Social Security Act, its interpretation and application. Section 24 of the Act gives a discretionary power to the Secretary of the Department to determine, in writing, that a person who is legally married to another person and who is not living separately from the other person, if the Secretary is satisfied that for special reasons in the particular case, not be treated as a member of a couple.

Brief background:

  • On September 2015 Mr Sorrenti sought a request from the Department. Mr Sorrenti’s application was rejected but he was not notified by the Department.
  • In May 2017, Mr Sorrenti contacted the Department and again requested for a section 24 determination. This request was granted.
  • In 7 June 2017, Mr Sorrenti contacted the Department and submitted that s 24 determination should apply not from 22 May 2017 but from September 2015.
  • On 19 June 2017, an ARO affirmed the decision made in May 2017.
  • On 15 September 2017 Mr Sorrenti sought a review of the ARO decision by the Social Services and Child Support Division of this Tribunal (AAT1).
  • On 16 February 2018 AAT1 set aside the ARO decision and decided that there is no determination under section 24 of the Act.  AAT1 decided that Mr Sorrenti was a member of a couple from 17 June 2015 and should not have been treated as not being a member of a couple.

This case is useful in understanding how the Tribunal approaches s 24 determinations. In coming to the decision, the Member comments on the use of the guide in these matters. The member states that “while the various questions posed in the Guide [are able] to assist officers in assessing individual cases [which] may be useful tools, the Tribunal is inclined to support the approach taken by Deputy President Hack, SC, in Re: Purdie and Secretary, Department of Social Services [2013] AATA 743” (‘Purdie’).

In applying ‘Purdie’, the Member finds there is only one question relevant in determining whether Mr Sorrenti should not be treated as a member of a couple. Is there a special reason to treat Mr Sorrenti in the present case as not being a member of a couple? The Member further comments that it may well be the inability to pool resources which informs the policy reason for the insertion of s 24 in the Act but “the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.”

In answering the question, the Member determines that “applying the general rules to Mr Sorrenti’s circumstances does not enliven any special element that might lead to the exercise of the discretion.  The only factor that the Tribunal finds might be regarded as ‘special’ in his particular instance, that of being an age pension parent, entitles him and Mrs Sorrenti to other social security benefits that other age pension recipients do not receive. The Tribunal concludes that there is “nothing before it that supports a conclusion that, taking the whole of his circumstances into account, Mr Sorrenti should be regarded as not being a member of a couple.”

To refer to full decision: https://jade.io/article/621149

 

Peachy and Secretary, Department of Social Services (Social services second review) [2019] AATA 75 (31 January 2019)

This case clarifies the eligibility criteria required for Disability Support Pension and the onus placed on medical evidence, medical professionals and witnesses. The decision also provides insights into the formalities of the General Division of the Administrative Appeals Tribunal which has more complex litigation than the first tier of the Administrative Appeals Tribunal.

Senior Member, Bill Stefaniak, provides a considered decision in determining that the Applicant, Sharon Peachy, is to be granted Disability Support Pension.  The Member finds that “the applicant qualified for 20 points under Table 1 – Functions requiring Physical Exertion and Stamina as at the claim period and therefore, having satisfied the other requirements, qualified for a DSP with effect from 17 August 2017.”

In coming to this decision it is interesting to note the Tribunal’s investigatory role in examining and calling the Applicant, the Applicant’s older sister, and the Applicant’s treating health professional, to provide evidence. This decision clearly identifies the Tribunal’s inquisitorial role as the Member questions each related party to discover the severity of the Applicant’s disabilities which was not established at the first tier of the Administrative Appeals Tribunal.

This case exemplifies the power of the Tribunal and its inquisitorial approach as the Member questions evidence instead of simply accepting what is presented by the parties. If it was not for the Members thorough examination of the facts and circumstances, the Tribunal would not have established the Applicant’s issue with “trains” which was missed by the first tier of the Administrative Appeals Tribunal.

To refer to full decision: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/75.html

 

Thurling and Secretary, Department of Social Services (Social services second review) [2019] AATA 3 (4 January 2019)

This case is very concerning as it does not actually establish whether the Applicant, Thurling, was overpaid Centrelink payments or explain how Centrelink calculated the Applicant’s debt.

Unfortunately, this case is a missed opportunity to provide a solid precedent on Robodebt and examine its unlawfulness. Instead, the Member makes disconcerting comments about the Australian Tax Office’s evidence as being “objective.” More importantly, the Member does not address whether the Applicant has a debt, whether the debt amount Centrelink has calculated is correct, or the role of the data matching that occurs between the Australian Tax Office and Centrelink in raising debts.

What is interesting to note is that in Peachy and Secretary, Department of Social Services (Social services second review) [2019] AATA 75 (31 January 2019) the Tribunal plays a clear inquisitorial role to ascertain facts however in this case, it is apparent that the Department of Human Services or the Australian Tax Office is not subject to the same scrutiny or questioning. As a result, the Member fails to make meaningful commentary about Centrelink’s automated debt calculation system and it is arguable that the decision not made pursuant to the Social Security Act 1991. Therefore, there may be scope to appeal to the Federal Court.

To refer to the full decision: https://jade.io/article/626251