JUDGMENT No. £230. 32.. CATCHWORDS SOCIAL SECURITY - Appeal from Administrative Appeals Tribunal - decision cancelling payment of widow's pension to applicant - principle under which Tribunal reviews a decision — function of the Tribunal - ambit of the Tribunal's jurisdiction - relevant date. Commonwealth of Australia v. Ford (1986) 9 A.L.D. 433 Social Security Act 1947 (Cth) - s.43 Administrative Appeals Tribunal Act - 1975 (Cth) - s.44 JOAN ELIZABETH FREEMAN v. SECRETARY, DEPARTMENT OF SOCIAL SECURITY No. G ° Davies J. 18 August 1988 Sydney ee IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 6399 of 1988 GENERAL DIVISION ) On appeal from the General Administrative Division of the Administrative Appeals Tribunal BETWEEN: JOAN ELIZABETH FREEMAN Appellant i SOCIAL SECURITY Respondent CORAM: Davies J. DATE: 18 August 1988 PLACE: Sydney MINUTES OF ORDER THE COURT ORDERS THAT: i. The appeal be dismissed. 2. Liberty is reserved to the parties to apply with respect to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. SECRETARY, DEPARTMENT OF Tem pm po eee pee cee ee epee we IN THE FEDERAL COURT OF AUSTRALIA ) t NEW SOUTH WALES DISTRICT REGISTRY ) No. G399 of 1988 GENERAL DIVISION ) On appeal from the General - Administrative Division of the t Administrative Appeals Tribunal BETWEEN: JOAN ELIZABETH FREEMAN Appellant AND: SECRETARY, DEPARTMENT OF . SOCIAL SECURITY Respondent CORAM: Davies J. DATE: 18 August 1988 : PLACE: Sydney REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal, given on 15 February 1988, which affirmed a decision of a delegate of the respondent, the Secretary, Department of Social Security, made on 18 August 1987, which itself had affirmed a decision of an officer of the Department made on 19 May 1987 cancelling as from 28 May 1987 the widow's i pension which previously had been payable to the applicant, Joan Elizabeth Freeman. Under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal is limited to points of law only. The widow's pension had been payable to Mrs Freeman under of the Social Security Act 1947 (Cth)("the Act"). That Act was renumbered by Act No. 77 of 1987. For convenience, I shall adopt the current numbers of the sections. It was essential to Mrs Freeman's entitlement to a widow's pension that she be a widow as defined by s.43 of the Act. The definition of "widow" in s.43({1) specifically excludes "a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him". The original decision-maker was satisfied that, on 19 May 1987, Mrs Freeman was living with a Mr Robert Powell as his wife on a bona fide domestic basis although she was not legally married to him. It was on that footing that he cancelled Mrs Freeman's pension as from 28 May 1987 pursuant to s.168(1) of the Act. There was evidence that, after that event, Mr Powell, who was a prison officer, took up residence at the Officers' Quarters, Maitland Prison. On 18 August 1987, when the matter was reconsidered, the delegate was of the view that Mrs Freeman and Mr Powell were nevertheless living together in a bona fide domestic situation. The Tribunal took a somewhat different view and said:- "8. In my opinion, the preponderant weight of the indicia in this complex matter is that on the balance of probabilities, a de facto relationship existed between the applicant and Mr Robert Powell at the relevant time. However, I find, on the same basis, that at some date thereafter impossible to determine that relationship changed and became rather one, to use Mr Powell's words, 3. of 'mateship'. Certainly, since May, 1987, there has been no cohabitation. 9. In these circumstances, while affirming the decision under review, I recommend that should Mrs Freeman reapply for the widow's pension, due account should be taken of the change in the relationship since the decision to cancel the pension." The notice of appeal, as amended, read, inter alia:- "2. THE QUESTION OF LAW raised on the appeal is whether, the said officer's decision to cancel the applicant's widow's pension having been affirmed by the said delegate on the ground that at that time she was living with a man as his wife on a bona fide domestic basis although not legally married to him and the Tribunal having found that at the time of its decision she was no longer doing so, the Tribunal was obliged in law to set aside the decision under review. 3. ORDERS SOUGHT: (a) that the decision of the Tribunal be set aside; (b) that the case be remitted to the Tribunal with a direction that it set aside the respondent's delegate's decision and to make in substitution therefor a decision that the applicant's widow's pension be not cancelled; (c) that the respondent pay the applicant's costs of this application." In support of this ground of appeal, Mr L.S. Katz, counsel for Mrs Freeman, referred to Colpitts v. Australian Telecommunications Commission & Others (1986) 9 F.C.R. 52 (on appeal (1986) 12 F.C.R. 395) and Peko-Wallsend Ltd v. Minister for Aboriginal Affairs & Another (1985) 5 F.C.R. 532 at 540-1 and (1986) 162 C.L.R. 24 at pp.44-5. I need not discuss those cases for the principle found therein was more relevantly stated by Wilcox J. in Commonwealth of Australia v. Ford (1986) 9 A.L.D. 433 where Wilcox J. said at pp.437-8:- "In the present case the Commissioner made a determination under the Act: that of 16 May 1984. Ms Ford, a competent party, requested review of that determination. The jurisdiction of the tribunal was pwraee mae 4. thus invoked. In the exercise of that jurisdiction the tribunal had 'all the powers and discretions that are conferred by any relevant enactment on the person who made the decision' and, in particular, had power to set aside the decision under review and to make a decision in substitution for that decision: see s 43 of the Administrative Appeals Tribunal Act 1975. Those provisions mean that the tribunal had power to reconsider the determination of 16 May 1984 and to make a decision varying that determination; as, for example, by awarding benefits under the Act to which the claimant was entitled but which were not referred to in the Commissioner's determination. And, of course, the tribunal was bound to consider the facts as they were proved in evidence before the tribunal, making the decision which upon that material and at that time was the correct or preferable administrative decision. The tribunal was not confined either to the material which was before the Commissioner, as primary decision-maker, or the events which had occurred up till that time: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 640-1; 3 ALN No 38. If, upon consideration of the evidence before the tribunal, it appeared that Ms Ford was entitled to benefits over a longer period - including a period after the date of the Commissioner's determination - than that covered by the determination under review, it was the duty of the tribunal to so find and to award compensation accordingly. If, upon that evidence, it appeared that Ms Ford was entitled to benefits different in kind to those referred to in the determination under review, it was obliged to so find and to award accordingly." That principle has been applied in decisions of my own, in the Social Security context in Re Tiknaz and Director General of Social Services (1981) 4 A.L.N. 44 and in the context of veterans' entitlements in Re Easton and Repatriation Commission (1987) 6 A.A.R. 558, in Jebb v. Repatriation Commission (No. NG327 of 1987, delivered 15 April 1988) and in McGourty v. Repatriation Commission (No. NG435 of 1987 delivered 1 July 1988). In Jebb's case, I approved the general approach of the Administrative Appeals Tribunal "... to regard the administrative 5. decision-making process as a continuum and to look upon the Tribunal's function as a part of that continuum so that, within the limits of the reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application or other proper commencing date to the date of the fTribunal's decision." However, the present appeal extends that principle beyond its scope. It does not follow from that principle that the Tribunal in the present case was obliged to make a finding as to Mrs Freeman's entitlement to a widow's pension as at the date of the Tribunal's decision or to make a decision as to cancellation of a pension on 19 May 1987 by reference to the facts as they stood as at the date of the Tribunal's decision. The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account ail the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision. 6. Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, in Re Easton, in Jebb's case and in McGourty's case, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision. However, in the present case, the decision under review was not a decision refusing to grant a pension but a decision cancelling a pension as from 19 May 1987. After the decision in Re Tiknaz was handed down, the Act was amended by the insertion of ss.158(2) and 159(2). Those sections provide that the grant or payment of a pension shall not be made except upon the making of a claim for that benefit or allowance, which claim is to be in writing and lodged in accordance with s.158(1) and s.159(1). One effect of these provisions is that once a pension or benefit has been cancelled, the previous recipient has no entitlement to restoration thereof until he or she has lodged a further claim in accordance with s.158(1) and s.159({1). 7. The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19. In the present case, the Tribunal came to the view that Mrs Freeman's pension had been cancelled correctly and it therefore affirmed the decision under review. The conclusion of the Tribunal in this respect was not the subject of appeal. There was no further matter for the Tribunal to consider and no further matter which was within the ambit of its jurisdiction. Events subsequent to 19 May 1988 had not been the subject of a new application for a pension by virtue of changed circumstances and no decision susceptible of review had been made in respect thereof. " 7 eee > A Mr Katz submitted that the Tribunal should have set aside the decision to cancel the pension as from any subsequent date upon which the Tribunal had considered that Mrs Freeman had become entitled to a widow's pension. However, the nature of a cancellation of the pension is different in substance and effect from that of suspension. A decision suspending a pension has an ongoing effect and the suspension may be terminated at any appropriate time. It may well be within the ambit of the Tribunal's decision to terminate a suspension if the facts before the Tribunal showed that the pension or benefit ought to have been suspended only up to a particular date. A decision cancelling a pension does not have ongoing effect in that way. A decision cancelling a pension or benefit brings to an end the entitlement to a pension or benefit. Entitlement to the pension or benefit only revives on the lodgment of a proper claim for the grant of the pension or benefit. The attack made upon the Tribunal's decision must therefore fail. It is true that the Tribunal went on to make it clear that the facts had changed after May 1987. However, those remarks simply made it clear as to what was the effect of and the ambit of the Tribunal's decision. Its remarks by way of recommendation ought strictly not to have been included in the formal order of the Tribunal, as they were. However, the inclusion of the remarks did not invalidate the decision which was to affirm the decision under review. Sym pes nee 9. For these reasons, the appeal must be dismissed. I shall reserve liberty to the parties to apply with respect to costs. I certify that this and the 8 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Ju Ant Davies. Associate: ean A, Date: gust 19 Counsel for the applicant: Mr L. Katz Solicitors for the applicant: W.H. Baker Love & Geddes Counsel for the respondent: Miss R. Henderson Solicitor for the respondent: Australian Government Solicitor Date of hearing: 8 July 1988 nn coals