Social security appeals

An appeal to the Social Security Appeals Tribunal can be initiated in writing, by telephone or by going to a Centrelink office. There is no time limit for an appeal.

Introduction

If a person is affected by a Centrelink decision and they are dissatisfied and think the decision is wrong, they have the right to ask Centrelink to review the decision. A request for a review 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

A person seeking a review of a Centrelink decision must first request a review by an authorised review officer (ARO) (s 129 SSA Act). An ARO is a senior Centrelink officer. The ARO can overturn the decision, vary the decision or affirm the decision. 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, they can seek a review of the decision by the Administrative Appeals Tribunal.

There is no time limit for requesting an ARO review. However, if the request is lodged more than 13 weeks after receiving Centrelink’s decision, any new decision can only take effect from the date of the request (s 109(2) SSA Act). This rule effectively restricts arrears, where payable. There is no discretion to extend the period for asking for an ARO review.

This rule does not apply where written notification of the decision is not sent, or when a person is asking for a review of a debt decision. This rule also does not apply to family tax benefit decisions where different rules and time frames apply.

Administrative Appeals Tribunal

Overview

The Administrative Appeals Tribunal (AAT) is governed by the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). For the AAT’s contact details, seeContacts”.

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 reviewed by 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).

The 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, who is called a “member” of the tribunal. One rare occasions, there may be two or three members at a hearing. The AAT is made up of members with a range of backgrounds, including lawyers, doctors, social wokers and other people with relevant experience. The AAT can now also review certain decisions 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 Centrelink decision under social security law may ask the AAT to review the decision after an ARO has reviewed the decision (s 142 SSA Act). Centrelink decisions can be reviewed by the AAT twice: first by the Social Services and Child Support Division (first review) and then, if requested, by the General Division (second review).

How to request an AAT review: first review

An application for a first review by the AAT can be made:

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

via phone (1800 228 333).

Review application forms are available, but are not compulsory.

Time limits

The same time rules for ARO reviews apply to AAT first reviews. There is no time limit for requesting a first review by the AAT. However, if the request is lodged more than 13 weeks after receiving Centrelink’s decision, any new decision can only take effect from the date of the application for the AAT first review (s 147 SSA Act, item 8). There is no discretion to extend the period for lodgment of an application for an AAT first review.

Similar to the ARO review, this rule does not apply where written notification of the decision in question is not sent, or when a person is seeking a review of 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 a request for a first review is made to the AAT, Centrelink must send a full statement of reasons for its decision and a copy of every relevant document in its possession to the AAT and to the person asking for a review (s 37 AAT Act; s 165 SSA Act).

Centrelink is required to give the AAT and an applicant all the relevant documents that Centrelink has before the hearing.

However, a person can also request access to their full records under the Freedom of Information Act 1982 (Cth) (see Freedom of information law).

The AAT review hearing: first review

First reviews are conducted by AAT’s Social Services and Child Support Division. The first review hearing at the AAT is relatively informal. Hearings are held in private and can be conducted in person or by telephone.

Centrelink is not represented at the hearing. If the tribunal gives permission, the applicant can be represented by a lawyer or an advocate. Representation is not essential; lawyers and advocates do not usually attend first review hearings.

At the hearing, the applicant must take an oath or affirmation, then answer the AAT member’s questions. The applicant will be given the opportunity to make submissions to the tribunal.

The person who asked for the review 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 if the AAT arranges a medical examination (s 176 SSA Act).

The AAT usually makes its decision on the day of the hearing. It must then send its decision, with the reasons for the decision, to the applicant within 14 days (s 178). On rare occasions, the AAT may defer or delay making a decision if the case is complicated or further material is requested from Centrelink.

How to request an AAT review: second review

If an applicant or Centrelink does not agree with the decision made at the first review hearing, they have the right to request that the AAT’s General Division review the decision. To request a review of a first hearing decision, fill-in the application form (available on the AAT’s website at www.aat.gov.au) and send it to the General Division of the AAT within 28 days of receiving the decision of the first review. If an application for a review is lodged after 28 days, an applicant must apply for an extension of time (the extension application form is available on the AAT’s website).

An application for a 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 AAT review hearing: second review

The process for a second review is longer and more formal than that of a first review. Centrelink will be represented by a lawyer. An applicant has the right to be legally represented, but this is not essential.

Before the hearing of a second review, the AAT will conduct at least one pre-hearing conference between the applicant, a conference registrar from the AAT, and Centrelink’s lawyer (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 review hearing.

Before the 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 lawyer. Each party is permitted to make submissions orally/in writing. The hearing can be conducted by telephone or other electronic communications equipment, with the AAT’s permission. The AAT can provide an interpreter if needed.

Unlike first review hearings, second review hearings are open to the public. Decisions and reasons for decisions are published online. However, an applicant can apply for a confidentiality order to:

restrict the publication of their personal details (e.g. their name); and/or

restrict the publication of the reasons for the AAT’s decision; and/or

require the hearing to be conducted in private.

Confidentiality orders are not automatically granted and a person must show compelling reasons for why an order should be made.

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 delivers 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, either at the first or second review, 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 43 AAT Act). The effect of a successful decision and the payment of arrears depends on the date the application for a review was lodged.

Continuation of payment pending an appeal

Where Centrelink has cancelled, suspended or reduced a pension, benefit or allowance under the SSA Act, and the person affected has asked the AAT to review the decision, under section 145 of the SSA Act, Centrelink can decide whether or not the pension, benefit or allowance should continue until the application is decided or withdrawn. The AAT cannot review a decision made by Centrelink under section 145 of the SSA Act.

If Centrelink decides to not continue a person’s payment under section 145 of the SSA Act, an urgent hearing should be sought as the decision under review will operate unless and until the AAT decides to vary it or set it aside. A person can also lodge a complaint to the Commonwealth Ombudsman (www.ombudsman.gov.au) if they are dissatisfied with Centrelink’s actions.

If an adverse decision has been made at the first review, an applicant may apply for an order staying the implementation of the decision until the second review is finalised (s 41 AAT Act). If a stay is granted, and the person is ultimately unsuccessful, the amount paid while the decision was stayed will be recoverable as a debt (s 1223AB SSA Act)

Complaints about Centrelink

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 Centrelink’s Complaints and Feedback unit (tel: 1800 132 468). If a person is 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.

Generally, the CDDA is a 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.

Where a person’s case does not fall within the CDDA’s strict requirements, the Act of Grace scheme (AoG), administered by the Australian Government Department of Finance, may be considered. The AoG is similar to the CDDA but can include a wider range of circumstances than the CDDA.