Rajic and Secretary, Department of Family and Community Services

[2003] AATA 240

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 240

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/230

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SLOBODAN RAJIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date14 March 2003

PlaceAdelaide

Decision The decision under review is affirmed.

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Social Security – parenting payment – back payment – application for review outside 13 week period – decision under review affirmed.

Social Security (Administration) Act 1999 – s107(2),(3)

REASONS FOR DECISION

14 March 2003 Mr S P Estcourt QC., (Deputy President)          

1.      This is an application by Mr Rajic to review a decision of the Social Security Appeals Tribunal affirming a decision of the respondent not to backdate Mr Rajic’s entitlement to a parenting payment.

2.      On 8 February 2001, Mr Rajic applied for a parenting payment.   His claim was rejected on 4 April 2001. 

3.      Although I have considered them in detail, in the circumstances of this case, the reasons for the rejection are not important. 

4.      Whilst I have very considerable empathy with Mr Rajic’s plight, what is important is that he did not apply for a review of the decision to reject his claim within 13 weeks.

5.      On 21 August 2001, Mr Rajic lodged another claim for a parenting payment. 

6.      On 19 October 2001, this second claim was accepted but with effect only as from that date. 

7.      On 9 November 2001, Mr Rajic requested that his claim be backdated to 8 February 2001, the date of his first application.

8.      On 21 February 2002, Mr Rajic was advised by the respondent, that as the decision in respect of the claim made on 8 February 2001 had not been the subject of a request for a review within 13 weeks his parenting payment could not be backdated to 8 February 2001.

9. Section 107 of the Social Security (Administration) Act 1999 provides that if a person seeks the review of a decision rejecting a claim after 13 weeks from the date of the rejection and then receives a favourable decision, payments can only be restored from the date the review was requested.

10. Section107(3) of the Act provides as follows:

“107.(3)         If:

(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under s129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last mentioned decision takes effect on the day on which the application for review was made.” (emphasis added)

11.     Mr Rajic was advised of the decision not to grant his parenting payment in respect of the claim made on 8 February 2001 by letter dated 4 April 2001.  The letter, after advising of his right to have the decision reviewed stated:

“Remember if you do not ask for the decision to be reviewed within 3 months of being told about it, you can only get back payment from the date you asked.”

12.     The legislation is clearly intended to sharply distinguish between applications for review made within the 13 week period specified and those made outside it. 

13. Section 107(2) of the Act provides as follows:

“107.(2)         If:

(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last mentioned decision takes effect on the day on which the determination embodying the original decision took effect.” (emphasis added)

14.     Unfortunately, there is no provision contained in any Commonwealth or other legislation to permit the Tribunal to exercise any discretion in Mr Rajic’s favour in this matter.

15.     It follows that the only decision the Tribunal is entitled to make is a decision affirming the decision under review.

16.     It is so ordered.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:         .......................................................................................
  Administrative Assistant

Date/s of Hearing  7 February 2003
Date of Decision  14 March 2003
Counsel for the Applicant         Mr Rajic appeared on own behalf
Counsel for the Respondent     Mr Ray Kilderry
Solicitor for the Respondent     Centrelink