7.2.1 ART review of claimant decisions

Introduction

An ART review is available for certain reviewable claimant decisions. A person affected by an ART reviewable claimant decision (1.1.A.02) may apply for an ART review of the decision.

Note: In most instances, an ART reviewable claimant decision will be reviewed at first instance per the guide below. In certain circumstances, ART reviews of claimant decisions may also be conducted as a second review. Details of second reviews (7.3) or guidance and appeals panel review (1.1.G.30), both of which have unique features that may not correspond with the policy below. For more details on their specific features, see page 7.3 in this guide.

Note: An employer cannot apply to the ART for a review of an ART reviewable claimant decision, including a second review. Nor can an employer apply to be a party of the review proceedings.

ART reviewable claimant decision

An ART reviewable claimant decision is a claimant decision as affirmed, or varied, or substituted as a result of the internal review process, or a claimant decision made personally by a PPL agency representative.

An ART reviewable claimant decision does not include decisions:

• relating to the making of claims, the form and manner of claims, the form and manner of notices
• which deal with deductions relating to child support
• relating to gathering information from any person
• relating to the Secretary's power to settle proceedings before the ART.

Variation of original decision after application is made for ART review

Despite the ARTAct generally prohibiting the alteration of a decision except by the ART once an application for review has been made, under the PPLAct, Centrelink, on its own initiative, may vary or substitute a reviewable claimant decision, as long as the President of the ART has not referred the application to the guidance and appeals panel or an application for second review (7.3) has not been made. Once changed, the decision as varied or substituted, rather than the original decision, becomes the decision under ART review.

Operation & implementation of decision under ART review

Making an application for an ART review does not ’pause’ the operation of the reviewable decision nor prevent Centrelink from taking action to implement the decision. In some cases, parties to an ART review can apply to have the ART make an order staying (that is, suspending) or other otherwise affecting the operation or implementation of the decision under review, but this is not available for ART reviews of reviewable claimant decisions unless the review is conducted as a second review or guidance and appeal panel review.

Timing of application for review

Generally, a person has 28 days from the date the ART reviewable claimant decision (the ARO's decision or PPL agency representative decision) is made to apply to the ART for a review of the decision. The ART may, upon application in writing by a person, extend the timeframe for applying for a review, even if it has already expired, if it is satisfied that is it reasonable in all the circumstances of the case to do so. The ART may give notice or require an applicant to give notice of the extension application to other persons affected by an extension.

Once a person has been notified of the extension application, they have 14 days within which to notify the ART they oppose it. The ART must not accept the extension unless all the parties notified have had a reasonable opportunity to make their submissions to the ART about the extension.

Form of application for review

For more information on how to make an application to the ART for review of a decision, go to the ART website.

Parties to a review

Generally, the parties to an ART claimant decision review are:

• the person who applied for review
• the decision-maker (the Secretary of DSS)
• any other person if they apply to the ART to become a party and the ART is satisfied their interests are affected by the decision and it is appropriate for them to become a party.

Note: A person whose interests are affected by the decision in their capacity as an employer cannot apply to be a party to the review.

Note: If a party, who is neither the applicant nor a non-participating party, fails to appear or comply with an order of the ART (which was reasonable) then the ART may order they cease to be a party to the ART review. They can be reinstated at a later time if the ART wishes.

Generally, although listed as a party to an ART review, the Secretary has elected not to participate in an ART review. The decision-maker can still give written submissions to the ART but will not participate directly in hearings.

Note: The Tribunal can still require a decision-maker to participate in the ART review despite them electing not to participate.

Exception: The decision maker is a participating party:

• Where the decision maker has provided a written notice that they wish to participate and the ART has decided to accept the request.
• The ART has ordered the decision-maker to participate.
• The ART review is a second review or guidance and appeals panel review.

The Attorney-General of the Commonwealth may elect to become a party in matters of significant public importance, where the outcome of the matter might have significant implications for the development of the law or the community more broadly (going beyond the interests and concerns of the parties directly involved in the ART review).

Withdrawing & dismissing applications

The applicant may withdraw their ART review application at any time by giving written notice to the ART. The ART will then be taken to have dismissed the application.

The ART may also dismiss an application in other situations, including with the consent of all participating parties.

If an application is dismissed it can be reinstated within 28 days (or longer if special circumstances justify it) either by the ART’s own initiative or by a party applying for reinstatement and the ART considering it appropriate in the circumstances (unless the application was dismissed by consent).

ART decisions

The ART review process can conclude with the ART making one of several decisions.

The ART must make a decision on an ART review of a reviewable decision either:

• affirming the reviewable decision
• varying the reviewable decision, or
• setting aside the reviewable decision and
  • making a decision in substitution for the reviewable decision, or
  • remitting the matter to the decision maker for reconsideration in accordance with any orders or recommendations of the ART.

If at any time all the parties to the ART review of a reviewable claimant decision agree, in writing, to a decision on the review as a whole or a specific part or matter in the review, then the ART may, if it is satisfied that the agreed decision is within its powers to make, make that decision. Likewise, the ART may vary or revoke a decision on the agreement of the parties.

In certain circumstances, the ART does not require a hearing to have occurred before making a decision in an ART review. For more information, please see section 106 of the ARTAct.

Operation & effect of review decisions

As a general rule the ART’s decision on an ART review comes into operation when it is given to the parties to the review. However, the ART may specify a later time in their decision, or the decision may still be subject to a stay order (7.3 and 7.4). Additionally, while an ART decision that varies or substitutes the original reviewable decision is operative from the date it is given to the parties, it will have effect from any such time that is necessary to give full effect to the new decision, which may be from a time before or after that of the original reviewable decision (depending on the nature of the ART varied or substituted decision).

Exception: The ART or the Federal Court may make an order for the decision to come into operation at a different time, overriding the stay order.

When the ART decides to vary or substitute the original reviewable decision, the new decision is taken to be a decision of the decision-maker (in most cases Centrelink).

Exception: the varied or substituted decision is taken to be a decision of the decision-maker for all purposes other than:

• where a decision-maker did not make a decision to do something within a required timeframe and so was taken to have made a decision not to do the thing
• applying for a review of a decision
• referrals to the Federal Court
• decision-makers being required to give notice of their decisions.