FEDERAL COURT OF AUSTRALIA

Grabovsky v Secretary, Department of Social Services (No 2) [2014] FCA 1130

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 19 August 2014 be dismissed.

2.    The appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from a decision of the Administrative Appeals Tribunal (“Tribunal”): Igor Grabovsky v Secretary, Department of Social Services [2014] AATA 522, setting aside the decision of the Social Services Appeals Tribunal (“SSAT”) to affirm a decision of Centrelink to refuse the applicant’s (“Mr Grabovsky”) claim for a disability support pension (“DSP”).

2    The Tribunal remitted the matter to the first respondent with a direction that Mr Grabovsky’s eczema is fully diagnosed, treated and stabilised and so should be assessed for the assignment of impairment points under Table 14 of the Impairment Tables.

3    The Tribunal further directed that:

(1)    Prior to making its assessment, the first respondent should invite Mr Grabovsky to provide further evidence about the impact of his eczema on his ability to function.

(2)    Having made its assessment, if Mr Grabovsky’s conditions attract at least 20 impairment points, the respondent should then proceed to determine whether he has a continuing inability to work with a view to its ultimate determination as to whether Mr Grabovsky is qualified for the DSP.

4    On 19 August 2014, Mr Grabovsky filed a notice of appeal in the NSW District Registry of this Court against the Tribunal’s decision on the following questions of law:

 1.    Hearing was lacking in procedural fairness.

2.    Decision was arrived to without due consideration of the merits of the matter.

 3.    Tribunal did not apply a statute relevant to the proceeding.

5    Under the heading “Grounds relied on”, there appeared 19 paragraphs detailing the history of Mr Grabovsky’s dispute with the first respondent (Grounds (1)–(10)) and assailing aspects of the conduct of the hearing before the Tribunal (Grounds (11)–(19)).

6    On 19 August 2014, Mr Grabovsky also filed in the NSW District Registry of this Court an interlocutory application for a stay of the Tribunal’s decision.

7    On 10 September 2014, I gave the first respondent leave to file in Court a notice of objection to the competency of Mr Grabovsky’s notice of appeal.

8    On the same date, I set the appeal down for hearing on 21 October 2014.

9    On 15 September 2014, Mr Grabovsky filed a notice of response to the first respondent’s notice of objection to competency.

10    On 25 September 2014, Mr Grabovsky filed an interlocutory application seeking the leave of the Court to file a supplementary notice of appeal dated 22 September 2014, a copy of which was attached to the interlocutory application.

11    This latter interlocutory application came before me for hearing on 2 October 2014. It was opposed by the first respondent on the grounds that it was incompetent and had no prospect of success. The first respondent also maintained his position the notice of appeal filed on 19 August 2014 is incompetent and should be dismissed.

12    Mr Grabovsky declined to advance any argument as to why he should be granted leave to file a supplementary notice of appeal saying that it was “comprehensively explain[ed] in my application”. There was no explanation in Mr Grabovsky’s interlocutory application and I therefore dismissed it. At the conclusion of the hearing, Mr Grabovsky indicated that he wanted reasons for my decision.

13    On 21 October 2014, I published my reasons as to why I dismissed Mr Grabovsky’s interlocutory application for leave to file a supplementary notice of appeal and ordered Mr Grabovsky to pay the first respondent’s costs of the interlocutory application. I then proceeded to hear this appeal.

Contentions on Appeal

14    In written submissions in reply (“WSR”) dated and received on 10 October 2014, Mr Grabovsky, contrary to his notice of appeal (see [4] above), put the questions of law on appeal as follows:

  (1)    That the decision of the Tribunal is otherwise contrary to law;

  (2)    that the decision of the Tribunal was not authorised by the enactment in pursuance of which it was purported to be made;

  (3)    that executing the Tribunal’s directions, the required procedures will not be observed.

15    In oral argument, Mr Grabovsky did not press the first two questions. He only pressed the third question, namely, that the Tribunal’s direction that the matter be remitted to the first respondent for reassessment, did not accord with the required procedures mandated by the statute. At para 7 of his WSR, Mr Grabovsky submitted:

The Tribunal’s decision to remit the matter back to the Secretary for further assessment and determination contravenes the procedure for determination set by the Social Security (Administration) Act 1999.

16    Mr Grabovsky’s submission is not easy to understand, but some light appears to be thrown on it in paras 8–11 of his WSR:

8.    … The Social Security (Administration) Act 1999 sets the time limit of 13 weeks for determination of eligibility for the social security payment – the DSP (procedure).

9.    The tribunal (or any other arbitrating body, including all Courts) can change the decision of the Secretary, but the Tribunal (or the Court) cannot change the procedure.

10.    The procedure of assessment and determination for eligibility for the DSP is set by the Act and due to the separation of power(s) the Tribunal does not have the power to change the legislation. Therefore, the decision of the Tribunal to remit the matter to the Secretary for further determination of the Appellant’s eligibility for the DSP decision was not authorized by the enactment in pursuance of which it was purported to be made.

11.    Executing the Tribunal’s directions, the required procedures will not be observed by the Secretary.

(Emphasis in original)

Consideration and Analysis

17    The thrust of Mr Grabovsky’s argument seems to be that the first respondent is not authorised by statute to make a determination of a person’s claim outside the 13 week period from the date at which the claim was first made. Therefore, it follows, the Tribunal erred in law by remitting the matter to the first respondent for assessment for the assignment of impairment points under Table 14 of the Impairment Tables well after 13 weeks had passed from the date at which the claim was first made. The submission is misconceived.

The Statutory Regime

18    Section 7 of the Social Security Administration Act 1999 (Cth) (“SSA Act”) charges the first respondent with the general administration of the social security law, which includes the SSA Act and the Social Security Act 1991 (Cth) (“SS Act”): ss 3(3) and 4.

19    Generally speaking, a person who wants to be granted a social security payment or a concession card must make a claim for the payment or card in accordance with Div 1 of Pt 3 of the SSA Act: s 11(1).

20    After a claim is made, s 36 of the SSA Act obliges the first respondent to determine a claim for a social security payment or a concession card by either granting or rejecting the claim. Section 37 of the SSA Act then provides that the first respondent must determine that a claim for a social security payment is to be granted if the first respondent is satisfied that the claimant is qualified for the social security payment; and the social security payment is payable. The relevant criteria that the first respondent must take into account when determining a claimant’s eligibility for the DSP is set out in s 94 of the SS Act, a provision not in dispute.

21    The first focus of the dispute is the relevant period in which the claimant must possess the physical, intellectual or psychiatric impairment referred to in s 94(1) of the SS Act. The relevant period is from the date of the lodgement of the claim and up to 13 weeks from that date: ss 41, 42 and cl 4(1) of Sch 2 to the SSA Act.

22    The second focus of this dispute is the operation of s 39(1) of the SSA Act which provides:

Subject to subsection (3), if the Secretary does not make a determination regarding a claim within the period of 13 weeks after the date on which the claim was made, the Secretary is taken to have made, at the end of that period, a determination rejecting the claim.

Analysis

23    Section 39(1) of the SSA Act is a deemed disallowance provision. The self-evident purpose of s 39(1) is to give claimants redress in the circumstance of unwarranted delay by the first respondent in determining a claim. Once s 39(1) deems rejection of the claim, the claimant is then entitled to internal review pursuant to Div 2 of Pt 4 of the SSA Act, and, at the election of the claimant, review of the internal reviewer by the SSAT pursuant to Div 3 of Pt 4 of the SSA Act. Further, as it was in the present case, if the claimant is dissatisfied with the decision of the SSAT, he or she may then apply for review by the Tribunal pursuant to Div 5 of Pt 4 of the SSA Act.

24    Mr Grabovsky’s submission is misconceived because s 39(1) of the SSA Act is not a limit on the Tribunal’s power to set aside decisions under review or remit the matter back to the first respondent. In other words, s 39(1) is not a limitation on the review procedure set out in Divs 2 to 5 of Pt 4 of the SSA Act or the powers of the Tribunal. The Tribunal clearly had the power to set aside the decision of the SSAT and remit the matter for recommendation by the first respondent in accordance with the Tribunal’s directions set out in [2] and [3] above: s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

25    Finally, Mr Grabovsky made a number of other submissions during the course of oral argument, two of which should be addressed for his benefit in the event that he seeks to take this matter further.

26    First, he submitted that the first respondent is not entitled to defend the proceeding as he (Mr Grabovsky) is appealing from a decision of the Tribunal not a decision of the first respondent. This was said to give rise to a conflict of interest between the Secretary and the Tribunal. This submission is misconceived. The Secretary, as the Commonwealth officer who made the original decision, affirmed on review by the SSAT, is the proper party to defend the proceeding, whether before a merits review tribunal or a court on judicial review.

27    Second, he submitted that the separation of powers prevented the Tribunal from deviating from the applicable statute. At a high level of abstraction that may be correct, but it does not assist Mr Grabovsky in the present case given that the Tribunal did not err in law.

28    For the foregoing reasons, I dismissed Mr Grabovsky’s appeal with costs.

29    I also dismissed Mr Grabovsky’s interlocutory application of 19 August 2014 (see [6] above).

Associate:

Dated:    24 October 2014