Social security appeals process

Based on the contribution of Faisal Bakhtiar, Rosalinda Casamento and Olympia Sarrinikolaou, Victoria Legal Aid, as amended by Genevieve Bolton, Executive Director/Principal Solicitor of Canberra Community Law and current to 30 April 2018

Introduction

If a person is affected by a Centrelink decision, they have the right to appeal that decision. If a person is a dissatisfied and thinks the decision is wrong, they can seek a review of that decision. A request for a decision to be reviewed can be made in writing, over the phone, or by visiting Centrelink. However, it is advisable that requests are made in writing. Reviews are conducted by authorised review officers, who are senior Centrelink officers.

Authorised review officers

Initially, a person seeking a review of a Centrelink decision must request a review by an authorised review officer (ARO) (s 129 Social Security (Administration) Act 1999 (Cth) (“SSA Act”)). The ARO can overturn the decision, vary the decision, and/or affirm the decision. The ARO provides the decision in writing. The ARO will give the person a letter explaining their decision, the reasons for their decision, the facts taken into account, and the relevant laws or Centrelink guidelines followed in reaching the decision. The ARO will also explain how their decision can be appealed. If the person is dissatisfied with the ARO’s decision, the next step is to appeal to the Administrative Appeals Tribunal.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) is governed by the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). For the AAT’s contact details, see “Contacts” at the end of this chapter.

NOTE: On 1 July 2015, the Social Security Appeals Tribunal (SSAT) became part of the AAT. The AAT has two divisions: the Social Services and Child Support Division (first tier of review), and the General Division (second tier of review). Decisions that could have been reviewed by the former SSAT can now be reviewed by AAT’s Social Services and Child Support Division. The second review of the decision is heard by the AAT’s General Division.

Most Centrelink decisions (e.g. rejection of a claim, cancellation of a benefit, decision to raise and recover an overpayment, specific issue affecting a rate or qualification like person’s relationship status) can be appealed to the AAT. The AAT has wide powers to make a new decision (e.g. to grant a benefit refused by Centrelink, restore a payment cancelled by Centrelink, increase a payment reduced by Centrelink, or set aside a Centrelink decision to recover a debt.

Decisions that are not reviewable by the AAT are listed in section 144 of the SSA Act. Some of these decisions relate to:

• specifying the nature of claim forms and places of lodgment for claims;
• requiring persons to give information to Centrelink;
• continuing social security payments during an appeal; and
• making income tax deductions from payments.

AAT hearings are usually before one person. Sometimes hearings are before two or three people: a lawyer, a social worker and/or an Executive Member. In medical cases (e.g. Disability Support Pension) the AAT usually has a medical member. Note that the AAT now also hears matters appealable under child support legislation and parental leave pay decisions.

Terms of Reference

The AAT is directed to provide a review mechanism that is “fair, just, economical, informal and quick” (s 2A AAT Act). A person affected by a decision of Centrelink under the social security law may appeal to the AAT (s 142 SSA Act).

How to appeal to the AAT: first review

An appeal to the AAT can be made:

• by writing to the AAT; or
• by phoning the AAT.

Time limits

There is no time limit for an appeal. However, if the appeal is lodged more than 13 weeks after receiving Centrelink’s decision, any new decision can only take effect from the date of the appeal (s 152(4) SSA Act). This rule effectively restricts arrears, where payable, and there is no discretion to extend the period for lodgment of appeals.

Note that this rule, which also applies at the Authorised Review Officer stage, does not apply where written notification of the decision in question is not sent, or when a person is appealing against a debt decision. This rule also does not apply to family tax benefit decisions where different rules and time frames apply.

Access to information

When an appeal is made to the AAT, Centrelink must send to the AAT, and to the person appealing, a full statement of reasons for its decision and a copy of every relevant document in its possession (s 37 AAT Act; s 165 SSA Act).

Prior to a hearing, a person can also demand access to their full records under the Freedom of Information Act 1982 (Cth). The AAT will generally send the person the relevant Centrelink file documents before the appeal hearing, but sometimes the person may wish for additional documents to be considered.

The appeal hearing: first review

The hearing at the first review is relatively informal. Hearings are held in private and can be conducted in person or by telephone.

Centrelink is not represented at the hearing. The applicant can be represented by a lawyer or an advocate, but representation is not essential.

At the hearing, the applicant must answer the AAT member’s questions after taking an oath or affirmation, and after they have been given the opportunity to make submissions to the tribunal.

The person appealing is generally responsible for their own costs and expenses, but the AAT may reimburse individuals for travel and accommodation expenses, and for any medical expenses when the AAT arranges a medical examination (s 176 SSA Act).

The AAT’s decision, with their reasons for making the decision, is sent to the applicant within 14 days after the hearing (s 178 SSA Act).

The AAT may defer or delay making a decision if the case is complicated or further material is requested from Centrelink.

How to appeal: second review

An applicant has the right to appeal a decision made by the first tier of the AAT, to the second tier. A written application for review must be sent to the General Division within 28 days of receiving the decision of the first review. If an appeal is lodged out of time, an applicant must apply for an extension of time. An application for review can be lodged:

• online (www.aat.gov.au); or
• in writing (posted to GPO Box 9943 in the capital city closest to where the applicant lives); or
• in person to the AAT registry; or
• emailed to generalreviews@aat.gov.au; or
• via phone (1800 228 333).

The appeal hearing: second review

The process at the AAT’s General Division is longer and more formal than that of the first tier. Centrelink will be legally represented. An applicant has the right to be legally represented, but this is not essential.

Prior to the hearing at the second tier, the AAT will conduct a pre-hearing conference between the applicant, the AAT, and Centrelink’s representative (s 34A AAT Act). This is an informal discussion aimed at identifying the issues between the parties and attempting to resolve the matter without a need for a second hearing.

Prior to scheduling a hearing, the AAT may give directions about timelines and what evidence is to be brought before the AAT (although this does not limit the evidence that may be brought).

At the hearing, the applicant will be asked questions by the AAT members and by Centrelink’s representative. Each party will be permitted to make submissions orally and/or in writing. The hearing can be conducted by telephone or other electronic communications equipment. The AAT will provide an interpreter if needed.

Unlike the first tier hearing, hearings in the second tier of review are open to the public. An applicant is permitted to apply for a confidentiality order.

The AAT may provide an oral decision on the day of the hearing, or reserve the decision and send a written decision at a later date. If the AAT delivered its decision orally, a party has the right to request the reasons for the AAT’s decision in writing, within 28 days.

The AAT’s powers

When reviewing a Centrelink decision, the AAT can affirm or vary the decision, set it aside and substitute a new decision, or send the matter back to Centrelink for reconsideration (s 34 AAT Act; s 179 SSA Act). The effect of a successful decision and the payment of arrears depend on the date the appeals were lodged.

Continuation of payment pending appeal

Where Centrelink has cancelled, suspended or reduced a pension, benefit or allowance under the SSA Act, and the person affected has appealed to the AAT, Centrelink has the power to declare that payment of the pension, benefit or allowance should continue until the appeal is decided or withdrawn (s 145 SSA Act). The AAT cannot hear an appeal against Centrelink’s decision under section 145. An urgent hearing should be sought instead as the decision appealed against will operate until the AAT decides to vary it or set it aside. A person can also lodge a complaint to the Commonwealth Ombudsman if dissatisfied with Centrelink’s actions.

If an adverse decision has been made at the first tier of review, an applicant may apply for an order staying the implementation of the decision until the second review is finalised (s 41 AAT Act).

Complaints

Where a person is dissatisfied with the actions of a Centrelink worker or a Centrelink process but redress is not available through the appeal process (e.g. because the decision is legally correct), a separate complaints mechanism exists through the Centrelink Customer Relations unit (tel: 1800 132 468). A complaint can be lodged initially with Customer Relations Unit. If the person is still dissatisfied with the outcome of their complaint, they can take it to the Commonwealth Ombudsman (www.ombudsman.gov.au).

Claiming compensation from Centrelink

Any person who has suffered a financial loss or detriment because of a mistake made by Centrelink may be able to claim compensation under the scheme for Compensation for Detriment caused by Defective Administration (CDDA).

The CDDA allows compensation to be paid to people who have experienced detriment because of the defective actions or inaction of, in this case, Centrelink (i.e. an unreasonable failure to follow a procedure or an unreasonable failure to give proper advice that was within the officer’s power and knowledge, etc.).

Payments made under the CDDA are discretionary. This means there is no automatic entitlement to a payment.

The CDDA is generally an avenue of last resort and there is no further appeal option. However, a complaint can be lodged with the Commonwealth Ombudsman if the affected person is not happy with the handling of their claim by Centrelink.