Social security appeals

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) (SSA Act s 129). 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 considered, 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 ART.

  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 (SSA Act s 109(2)). 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 Review Tribunal

• Overview

  The ART is governed by the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’). The ART replaces the Administrative Appeals Tribunal from 14 October 2024. For the ART’s contact details, see ‘Contacts’ at the end of this chapter.

  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 ART. The ART 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 ART are listed in section 144 of the SSA Act.

  Some of these decisions relate to:

  • specifying the nature of claim forms and places of lodgement for claims;

  • requiring persons to give information to Centrelink;

  • continuing social security payments during an appeal; and

  • making income tax deductions from payments.

  ART hearings are usually held before one person, who is called a ‘member’ of the tribunal. On rare occasions, there may be two or three members at a hearing. The ART is made up of members with a range of backgrounds, including lawyers, doctors, social workers and other people with relevant experience. The ART can also review certain decisions under child support legislation and parental leave pay decisions.

• Terms of reference

  The ART is directed to provide a review mechanism that is fair, just, informal and quick (ART Act s 9). A person affected by a Centrelink decision under social security law may ask the ART to review the decision after an ARO has reviewed the decision (SSA Act s 142). Centrelink decisions can be reviewed by the ART twice.

• Request an Administrative Review Tribunal review: First review

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

  • online (www.art.gov.au); or

  • in writing, using the form from the Tribunal website at www.art.gov.au or by letter (posted to GPO Box 9943 in the capital city closest to where the applicant lives, delivering it in person to the nearest ART registry, or emailing it to an ART registry).

• Time limits

  There are time limits for the first review of some Centrelink decisions. These are listed on the ART website. 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 ART first review (SSA Act s 147, item 8). There is no discretion to extend the period for lodgement of an application for an ART first review.

• Access to information

  When a request for a first review is made to the ART, Centrelink must send a full statement of reasons for its decision and a copy of every relevant document in its possession to the ART and to the person asking for a review (ART Act s 23 ).

  Centrelink is required to give the ART 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 Chapter 12.3: Freedom of information law).

• The Administrative Review Tribunal review hearing: First review

  The first review hearing at the ART is 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 ART 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 ART may reimburse individuals for travel and accommodation expenses, and for any medical expenses if the ART arranges a medical examination (SSA Act s 176).

• Request an Administrative Review Tribunal 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 ART review its first decision.

  To request a review of a first hearing decision, fill in the application form (available on the ART website at www.art.gov.au) and send it to the ART 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 ART website).

• The Administrative Review Tribunal 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, the ART may give directions about timelines and what evidence is to be brought before the ART (although this does not limit the evidence that may be brought).

  At the hearing, the applicant will be asked questions by the ART members and by Centrelink’s lawyer. Each party is permitted to make submissions orally or in writing. The hearing can be conducted by telephone or other electronic communications equipment, with the ART’s permission. The ART 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 ART’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 ART may provide an oral decision on the day of the hearing or reserve it and send a written decision later.

• The Administrative Review Tribunal’s powers

  When reviewing a Centrelink decision, either at the first or second review, the ART can affirm or vary the decision, set it aside and substitute a new decision, or send the matter back to Centrelink for reconsideration. The effect of a successful decision and the payment of arrears depends on the date the application for a review was lodged.

Social security appeals

Chapter: 5.1: Dealing with social security

Contributors all from Victorian Legal Aid: James Hogan, Deputy Managing Lawyer; Julie Riva, Associate Public Defender (Civil Justice); Kate Brown, Lawyer; Patrick Noyelle, Senior Lawyer; and Tom Durkin, Lawyer

Current as of: 14 October 2024

Law Handbook Page: 294

Next Section: More Information and Contacts

• 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 ART to review the decision, under section 145 of the SSA Act, Centrelink can decide whether the pension, benefit or allowance should continue until the application is decided or withdrawn. The ART 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 ART 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, an applicant may apply for an order staying the implementation of the decision until the review is finalised (ART Act s 32).

  If a stay is granted, and the person is unsuccessful, the amount paid while the decision was stayed will be recoverable as a debt (SSA Act s 1223AB).

• 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 some 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 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.