Alkhalil and Secretary, Department of Social Services (Social services second review)

[2021] AATA 481

Alkhalil and Secretary, Department of Social Services (Social services second review) [2021] AATA 481 (11 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8625

Re:Fatima Alkhalil

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:11 March 2021

Place:Sydney

The application for an extension of time is refused.

.........................[sgd]...............................................

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support payment – extension of time application – length of delay – reasonable prospects of success – application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Evidence Act 1995 (Cth) ss 160, 163

Social Security Act 1991 (Cth) ss 1213 - 1218

CASES

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brown v Federal Commissioner of Taxation [1999] FCA 563

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 244

Jamal v Secretary, Department of Social Services [2018] FCA 513

Kim and Minister for Immigration and Border Protection [2018] AATA 155

Kuljic v Secretary, Department of Social Security [1994] FCA 886

O’Gorman and Comcare (Compensation) [2017] AATA 2192

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Chris Puplick AM, Senior Member

11 March 2021

1. Ms Fatima Alkhalil (the Applicant) is seeking an extension of time (EOT) in which to lodge an application for a review of a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) to uphold a decision of Services Australia (the Respondent) to deny her claim for payment of the Disability Support Payment (DSP).

   RELEVANT TIMETABLE MATTERS

2. The Applicant was originally granted the DSP on 14 June 2011 as a result of her chronic pain condition and she remained on the DSP for a number of years. On 22 July 2019 her DSP was suspended because the Applicant had been overseas for a longer period of time than is allowed under the Social Security Act 1991 (Cth).[1] The Applicant remained overseas and as a result her DSP was cancelled on 20 October 2019.[2]

   [1] Sections 1213-1218 deal with matters of pension “portability”.

   [2] Respondent’s Submission: Attachment 3: Report of the Authorised Review Officer (pages 5-6).

3. The Applicant was subsequently granted Newstart Allowance on 25 November 2019.

4. The Applicant then applied for the DSP on 2 December 2019, but her claim was rejected on 10 December 2019. Thereafter her claim, and in particular her medical conditions, were subject to examination by a Job Capacity Assessor who reported on 27 March 2020[3] that the Applicant’s level of disability rated 5 points on the Impairment Tables, where a score of 20 points is needed to establish DSP eligibility.[4] The Applicant had also not completed the required Program of Support (POS).

   [3] Respondent’s Submission Attachment 2.

   [4] These Tables are set out in the Social Security Act 1991 (Cth) to evaluate the degree of impairment suffered by any applicant for the DSP. One of the requirements of the DSP is that an applicant rate a minimum of 20 points (individually or cumulatively) on these Tables as well as meeting certain ability/inability to work requirements.

5. The Applicant’s claim was then reconsidered by an Authorised Review Officer (ARO) of the Department who, on 26 May 2020, reaffirmed the rejection decision.

6. In fact, the ARO made two distinct decisions:

   (a)That the suspension and subsequent cancellation of the DSP as from 20 October 2019 was a correct decision;[5] and

   (b)That the rejection of the DSP claim of 2 December 2019 was a correct decision.[6]

   [5] Respondent’s Submission: Attachment 3: Report of the Authorised Review Officer (page 6)

   [6] Respondent’s Submission: Attachment 3: Report of the Authorised Review Officer (page 7)

7. The Applicant appealed to the Social Services and Child Support Division of this Tribunal (AAT1) for a review of her case and that Tribunal conducted a hearing on 1 July 2020.

8. The Tribunal does not have before it the original application to the AAT1 but presumes that it was cast in terms of seeking a review of the ARO’s decision on 26 May 2020. If that was the case, then the AAT1 was obliged to review both decisions made therein.

9. However, it appears that the AAT1 reviewed only the second decision, namely the rejection of the new DSP claim. It does not appear to have addressed the first decision related to the DSP cancellation.

10. On 5 August 2020 the AAT1 affirmed that decision of the Respondent and in doing so affirmed that the Applicant’s impairments rated only 5 points on the Impairment Tables.[7]

    [7] Respondent’s Submission Attachment 1.

11. The notification of the AAT1’s decision to the Applicant occurred on 10 August 2020.

12. Section 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that appeals against a decision by the AAT1 must be lodged within a 28-day period.

13. The Respondent has submitted that sections 160 and 163 of the Evidence Act 1995 (Cth) be relied upon to determine the date of the 28^th day. Section 160 states that:

    (1)  It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted.

14. Section 163 states that:

    (1)  A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

15. The Respondent has noted that the Tribunal is not bound by formal rules of evidence,[8] but refers to DHLD and Executive Director, Social Security Appeals Tribunal[9], in which Deputy President Forgie acknowledged that there “no reason in law” why the Tribunal should not apply the presumptions set out in sections 160 and 163.

    [8] Administrative Appeals Tribunal Act 1975 (Cth) s. 33(c).

    [9] DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377

16. That of course is qualified by the expression unless evidence sufficient to raise doubt about the presumption is adduced. On 12 August 2020, in response to the COVID19 pandemic, Australia Post issued a statement: Temporary changes to letter delivery frequencies in which it announced that

    Letter deliveries are now required every 2 business days in metro areas instead of daily. For example, letters may be delivered to an address on Monday, Wednesday and Friday one week, with deliveries on Tuesday and Thursday the following week.[10]

    17. New delivery frequencies were confirmed to “apply in metro areas until 30 June 2021.”

    [10] auspost.com.au/service-updates/current-updates/temporary-changes-to-letter-delivery

17. Had “normal” Australia Post services continued without alteration, as determined by ss 160 and 163, the reasons for the decision would have been received by the Applicant on 19 August 2020. Consequently, the 28-day period expired on 16 September 2020. In the event that the delivery service did alter as from 12 August 2020, the delivery date would have been potentially delayed by one day and the delivery date would have been 20 August 2020 with the expiry period ending on 17 September. In the event nothing turns on this as, regardless of the exact date of delivery, the 28-day requirement was not met.

18. It was not until 14 December 2020 that the Applicant lodged her appeal against the AAT1 decision, and she followed this on 12 January 2021 with this application for an extension of time to be granted for her appeal to be received.

19. The application for an EOT was heard by this Tribunal on 12 February 2021 with the parties appearing by telephone in accordance with the Tribunal’s COVID-19 protocols. The Applicant was assisted by an Arabic language interpreter.

    PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME

20. Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them to be granted.

21. McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[11] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:

    First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them...The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

    [11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.

22. It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[12] should be taken as the guide by this Tribunal in determining EOT matters.

    [12] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.

23. That list provides as follows:

    ·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;

    ·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    ·any prejudice to the respondent caused by the delay;

    ·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    ·the merits of the substantial application; and

24. “considerations of fairness as between the applicant and other persons” in a similar position. However, there are other principles which the Tribunal bears in mind in these considerations. They include:

    ·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated;[13]

    ·“If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.”; and[14]

    ·considerations of “any alternative avenues of relief should the original EOT not be granted”.[15]

    DISCUSSION

    [13] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].

    [14] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

    [15] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].

    Has there been a reasonable explanation for the delay in lodging the application?

25. The application for an EOT is some 119 days out of time. The Applicant claims that the EOT should be granted because “the decision was not fair and did not consider her medical reports.” She further asserts that she needs the DSP “because of my health condition and all the medication I am taking”[16] and for a variety of other health-related concerns.

    [16] Applicant’s application for EOT dated 12 January 2021.

26. Unfortunately, neither in her written application nor at the hearing of this Tribunal was the Applicant able to state clearly why she had delayed making her application beyond the prescribed time period, and her evidence went more to why she thought the various refusal decisions were wrong.

27. At best, her explanation was to the effect that she was confused about the appeal process and had sought help from Centrelink, where she experienced language difficulties and she had no one to help her with the relevant paperwork.

28. It was put to the Tribunal by the Respondent that this explanation should be treated with caution as the Applicant had been able to complete the necessary paperwork to appeal the ARO’s decision to the AAT1 and had been able to do so within the prescribed time limits in that instance.

29. The Tribunal accepts that the Hunter Valley principles are not to be applied “mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given.”[17]

    [17] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

30. Nevertheless, taken altogether, the Tribunal does not find that there has been a good reason advanced for the not insubstantial delay in the lodgement of this application out of time.

    Does the application have reasonable prospects of success?

31. The Tribunal does not believe that there would be any significant prejudice to the Respondent were an EOT to be granted, nor that other members of the public would suffer prejudice or be seen to be treated less fairly than the Applicant who has not rested upon her rights, albeit being later with her application.

32. However, when the substantial merits of the application are considered and the Applicant’s prospect of success in any further hearing are evaluated, it becomes clear that there are no realistic prospects of this application being successful.

33. To be considered for payment of the DSP an applicant must (among other requirements) be assessed at a rating of 20 points on the Impairment Tables. This Tribunal has carefully considered the medical evidence presented in submissions from Dr Justin Chan, Michael Guirguis and Dr Victor Tadros, being “new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision.”[18] In addition, it has taken note of the medical evidence considered by the AAT1 in reaching its decision.

    [18] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

34. There is nothing before this Tribunal to suggest that the ARO, the JCA and the AAT1 were wrong in coming to the conclusions which they did about the Applicant’s DSP eligibility, which must be assessed as of the date of original claim (2 December 2019) and during the following 13 weeks.

35. It notes from the evidence recently submitted by the Applicant that she is on the waiting list for surgery for hernia problems, and that she suffers a variety of ailments (including Type II diabetes, hypertension, depression, musculoskeletal issues and a number of psychological conditions). The problem with this recent evidence, no matter how cogent it is in terms of the Applicant’s current state of health, is that it does not shed any meaningful light on her condition at the relevant time for the assessment of her 2019 DSP application.

36. There is nothing before the Tribunal which in any material way calls into question the findings of the ARO, the JCA or the AAT1 in relation to the Applicant’s eligibility for the DSP at the time of her 2019 application.

37. In Jamal v Secretary, Department of Social Services Bromwich J said:

    The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court. [19]

    [19]Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6]

38. This Tribunal can see no realistic prospect of success should this specific application be granted an EOT and go forward to a substantive hearing.

39. On the other hand the Applicant does have an alternative remedy in that she can now apply for the DSP, and her application would be considered on the basis of her health status as of the date of that application given that her health conditions may have deteriorated since her 2019 application was assessed. That is a matter for determination elsewhere.

40. The Tribunal notes that the Applicant apparently made a further DSP application on 12 November 2020 which she withdrew subsequently[20] – although in her oral evidence the Applicant indicated that she could not recall any such details.

    [20] Respondent’s Submission at [54].

41. This leaves the matter of the original cancellation decision made by the ARO arising from the Applicant’s extended period of time overseas. As this matter was not considered by the AAT1 there is no reviewable decision to enliven the powers of this Tribunal on review.

42. The Applicant retains the option of seeking a review of this cancellation decision, although it would need an extension of time for such an application to be considered. Since the cancellation was based simply upon the application of the portability provisions of the Social Security Act1991 (Cth) which as far as can be ascertained were applied properly, it would be challenging for the Applicant to succeed in any such application, although that is not a matter for this Tribunal to determine in these proceedings.

    DECISION

43. The application for an extension of time is refused.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[SGD].........................................

Associate

Dated: 11 March 2021

Date(s) of hearing:	12 February 2021
Applicant:	Telephone
Solicitors for the Respondent:	Samantha Moulder (Services Australia)