A delegate is authorised to make decisions as to a person's eligibility, entitlement and other matters relating to DSH assistance as delegated.
It is essential that a person who makes a decision under the Act on behalf of either the Minister or the Secretary:
The legislation does not require that a decision allowing an application at the initial level or a review decision revoking a reviewable decision, when notified to the applicant, should be accompanied by a statement of reasons. In such cases, delegates should exercise their judgement as to whether reasons are necessary to support the explanation of the decision to the applicant. If reasons are provided, they should follow the principles outlined for the presentation of reasons for decision.
A decision by a delegate:
may be subject to a review process.
A delegate making an unfavourable decision must advise the affected person, in writing, in a clear, concise and complete manner. Such advice should contain the following elements:
An affected person's right to apply for review of a decision under Sections 43 or 44 is not conditional upon notice of the decision having been provided to the person.
In some cases of decisions on applications for certificates of entitlement in relation to advances, it is possible that the decision to issue the certificate, while being generally favourable to the applicant, may nevertheless involve the making of reviewable decisions in relation to which the applicant has a right of review. This will be in relation to the amount and term of loan. Where the amount or term of loan approved is not that sought by the applicant, the terms of the decision, the reasons for the decision and a statement of the applicant's right to seek a review of that decision must be notified to the person, in accordance with s43(1), when the certificate is issued.
There are three main reasons why it is important for a notice of a decision, that is subject to possible review, to contain a clear, precise and complete statement of reasons for that decision. These are:
In advising the affected person of his/her rights to a review, it is thought to be advantageous to both parties for the decision maker to invite the affected person to personally contact him/her to discuss the decision. This approach could well see the number of matters being appealed against significantly reduced.
The Act requires that this notice must be given as soon as practicable after the decision is made, but it should be given in any case within 28 days of the decision.
A person affected by an unfavourable decision, has the right for a review of that decision by a delegate, senior to the delegate who made the initial decision.
Such an application should by made by the affected person within 30 days of becoming aware of the decision.
A review decision must be made by a person who was not involved in the making of the relevant reviewable decision and who occupies a position senior to that of the delegate who made that reviewable decision. A review decision may affirm, vary or revoke the reviewable decision.
Where a reviewable decision was made by the Secretary personally, subsection 43 (5) requires that any application for a review of that decision must be referred to the Minister (who will make the review decision).
The Defence Service Homes Act 1918 [s44(1)] imposes on persons who make adverse review decisions, the same requirements as those in relation to primary reviewable decisions [s43(1)]. Review decisions should also be notified to the affected person as soon as practicable, and within 28 days, but there is no specific requirement under the Act for this. In the case of adverse review decisions, the notice in writing must contain the terms of and reasons for the decision and a statement setting out the person's right to appeal to the AAT.
If the initial decision is affirmed, the affected person may apply to the AAT for a review of that decision.
When notifying the affected person of his/her right to a review by the AAT, the delegate is required to advise that the application must conform to the requirements of Section 29 of the AAT Act. ie
An application to the AAT for review of a decision does not affect the operation of the decision or prevent the taking of action by DSH to implement it. (See section 41 of AAT Act - Chapter 8)
An affected person may request the decision maker to provide the reasons for the decision, if they have not already been given. Where such a request is made within a reasonable time of the decision, those reasons must be provided within 28 days of receipt of the request. (See Section 28 of AAT Act - Chapter 8)
Generally speaking, the only affected person will be the applicant or borrower whose application has been refused. In cases involving the bankruptcy and insolvency-related provisions of Section 45A or the transfer-related provisions of Section 22, there will be more than one affected person.
In Section 45A cases, the affected persons usually will be the borrower whose property is the subject of action under the Bankruptcy Act 1966 or the judgement debt and:
In Section 22 cases, the affected persons will be the current borrower and the proposed transferee or, if the property forms part of a deceased estate, the legal personal representative of the deceased borrower and the proposed transferee.
In assignment cases, the affected persons will be the assignor applicant and the assignee.
In such cases, the terms of the decision under Sections 22, 23A, or 45A and the reasons for the decision should be notified in writing to both parties but it will be necessary to provide a statement of appeal rights only to the party not favoured by the decision.
The favoured party should be notified that the other party has been advised of the decision and of his/her appeal rights. In those cases where the decision is not the one sought by either party - such as a refusal of a proposed transfer from the legal personal representative of a deceased borrower to an ineligible person - both parties should be provided with a statement of their appeal rights.
There is a right of review under the Act against a decision not to issue a certificate of entitlement in relation to both Section 22 and 45A cases.
The Bank is excluded by subsections 43(7) and 44(1) from being an affected person.
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