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The complaints process

A complaint to the Superannuation Complaints Tribunal must be in writing and accompanied by copies of all relevant documents. Complaint forms, which must be completed and signed by the complainant, are available from the tribunal.

Tribunal staff can assist with completing the form and provide information about how the process works, but the Tribunal does not provide legal advice on how complainants should pursue or present their complaints.

Documentation

If the Tribunal is satisfied that it can deal with a complaint, a case officer will require the respondents to provide all relevant information and documentation, including:

  • trust deeds
  • insurance contracts
  • internal memoranda
  • correspondence
  • minutes of trustee meetings
  • medical reports
  • surveillance material

Copies of all documentation sent to the Tribunal are forwarded to the other parties.

If the Tribunal believes that any parties should provide further documentation, it can require them to do so.

Third parties

If the Tribunal determines that third parties, such as life insurance companies in disability claims, should be joined to the complaint, it may determine to do so and notify the parties.

Legal representation

Complainants are not entitled to legal representation unless the Tribunal agrees that legal representation is appropriate, because:

  • the complainant is suffering a disability;
  • the complaint is complex;
  • other parties will be represented;
  • for other reasons.

In fact, many complainants are represented. Complainants often need to be represented or assisted by a lawyer with relevant expertise; for example, in disability or death benefit claims.

Some lawyers will act for complainants on a ‘no-win, no-charge’ basis.

Conciliation

Once relevant information and documentation has been exchanged, the Tribunal will enquire as to whether the parties are prepared to participate in conciliation to attempt to resolve the complaint.

If all parties agree, conciliation will take place in a face-to-face meeting, telephone hook-up or, perhaps, video link.

The review meeting

If conciliation fails to resolve a complaint, the Tribunal will conduct a review meeting to consider the complaint and determine the matter.

The Tribunal generally only considers written evidence, though it can also hold hearings. All parties are invited to lodge written submissions before the meeting. The submissions are exchanged, and each party can file a written reply.

It is very important to make detailed submissions and replies that identify and deal concisely with the issues in dispute. Supporting documentation, such as medical evidence in disability benefit complaints, should address the requirements and help establish an entitlement.

The Tribunal decision

The Tribunal must produce a written decision, with reasons, and send a copy to all parties. If a complaint is upheld, the Tribunal will specify what the remedy is to be.

If the decision was not unfair or unreasonable

If the Tribunal determines that the decision complained of was not unfair or unreasonable in the circumstances, it must affirm the decision.

If the decision was unfair or unreasonable

If the Tribunal determines that the decision complained of was unfair or unreasonable, it may:

  • require the trustee or insurer to reconsider the matter;
  • vary the decision;
  • set aside the decision and substitute its own decision.

If a matter is to be sent back to the trustee, the parties may be given the opportunity to return to the Tribunal if the matter is still not resolved.

In superannuation disability claims, the Tribunal may determine to pay the disability benefit together with interest, which may be calculated under the superannuation fund’s relevant crediting rates or under section 57 of the Insurance Contracts Act 1984 (Cth).

Limits on the Tribunal’s powers

The Federal Court has consistently found that the Tribunal’s role is not to decide for itself the correct or preferable decision, but whether a decision is unfair or unreasonable in the circumstances.

This is particularly relevant to disability benefit complaints, which usually involve a contest between competing medical opinions.

The complaints process  :  Last Revised: Fri Jul 25th 2014
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.