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

[2018] AATA 467

Anastasis and Secretary, Department of Social Services (Social services second review) [2018] AATA 467 (13 March 2018)

Division:GENERAL DIVISION

File Number:           2017/4442

Re:Vassili Anastasis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 March 2018

Place:Sydney

The application for an extension of time is granted.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – application for review out of time – social security debt – overpayment of disability support pension – whether an extension of time is reasonable in all the circumstances –  whether acceptable explanation of delay – merits of the substantial application – considerations of fairness – extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29,

Social Security Act 1991 (Cth), ss 8, 1064, 1223, 1237A, 1237AAD

CASES

Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Dr L Bygrave, Member

13 March 2018

INTRODUCTION

1. On 28 July 2017, Mr Vassili Anastasis lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) on 14 May 2015.

2. The SSCSD decision affirmed a decision made by the Department of Human Services (the Department) on 4 March 2015 to raise and recover a debt in the amount of $21,258.40 arising from the overpayment of disability support pension to Mr Anastasis for the period from 2 November 2011 to 21 May 2014.

3. The Secretary opposes the extension of time sought.

   BACKGROUND

4. Mr Anastasis has been in receipt of the disability support pension since 14 February 2008.

5. The Secretary submits that:

   ·Mr Anastasis held two bank accounts and received numerous deposits into these accounts during the period 2 November 2011 to 21 May 2014; and

   ·the Department decided to treat the bank deposits as income on the basis that Mr Anastasis did not provide a satisfactory alternative explanation for them.[1]

   [1] Secretary’s Outline of Submissions dated 23 August 2017, paragraphs 7 and 9.

6. On 3 June 2014, the Department raised a debt in the amount of $21,258.40 for the period from 2 November 2011 to 21 May 2014, which represented the overpayment of disability support pension to Mr Anastasis. This decision was affirmed by an authorised review officer of the Department on 4 March 2015.

7. The SSCSD affirmed the Department’s determination and posted the decision notice to Mr Anastasis on 26 May 2015.

8. On 28 July 2017, Mr Anastasis lodged an ‘Application for Extension of Time for Making an Application for Review of Decision’ with the General Division of the Tribunal.

9. The Department recalculated Mr Anastasis’ debt amount on 22 August 2017 on the basis that his business ceased operating on 9 September 2013; the debt period changed to 2 November 2011 to 9 September 2013, and the debt amount reduced to $18,372.82.[2]

   [2] Secretary’s Outline of Submissions dated 23 August 2017, paragraph 13.

10. The application was heard in Sydney on 1 March 2018. Mr Anastasis attended the hearing by conference telephone and was self-represented.

    PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

11. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

12. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].

13. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and 349 as follows:

    (a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

    (b)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;

    (c)any prejudice to the respondent caused by the delay;

    (d)whether the respondent or the general public would suffer any prejudice as a result of the extension;

    (e)the merits of the substantial application;

    (f)‘[c]onsiderations of fairness as between the applicant and other persons’ in a similar position.

14. These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.

15. All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.

    REASONS FOR DELAY

16. The delay in Mr Anastasis seeking a review of the decision by the SSCSD is 2 years and 41 days outside the 28 day time limit.

17. In his application for an extension of time, Mr Anastasis provided the following explanation for the delay:

    1i did not know of any time limits.

    2the letter from centrelink did not state time limits.

    3i was waiting for Centrelink to fix and adjust it, which didn’t

    4decision was made on previous case was i was recently cleared.

    5been fighting for this for years, want it finally finished and my name cleared of lies and debt removed.

    6being homeless and following up things make things hard. [sic]

18. Mr Anastasis told the Tribunal that he has been homeless since March 2015; he has been either living out of his car or ‘couch-surfing’. He further indicated that he has been dealing with complex personal issues, outstanding legal processes in the courts and significant health problems over the past two years.

19. I agree with the Secretary’s submission that Mr Anastasis would have been informed of his appeal rights following the SSCSD decision and the length of delay weighs heavily against granting an extension of time.

20. I also accept Mr Anastasis’ explanation for his delay in lodging a review of the decision mitigates this assessment and I am satisfied that he did not ‘rest on his rights’ in seeking a review of the decision.

21. While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

22. It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I have regard to Chouman and Secretary, Department of Education, Employment and Workplace Relations, in which the Tribunal stated:

    ... to grant an extension of time in this matter would be unfair to other applicants in similar situations who have not submitted late applications.

    The grant of an extension of time in this matter would set an unwelcome example and cause inconvenience to Centrelink and the Tribunal in having to deal with large numbers of such applications. There is a general public interest in ensuring finality in decision-making.[3]

    [3] [2009] AATA 222, paras [30-31].

23. I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Mr Anastasis’ application. As the delay is 2 years and 41 days, I am satisfied that there would be prejudice to the Secretary and the general public if the extension of time is granted. This factor weighs against the applicant.

    MERITS OF SUBSTANTIVE MATTER

24. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.

25. The substantive matter is whether, on the balance of the evidence before the Tribunal:

    (a)Mr Anastasis was overpaid disability support pension in the amount of $21,258.40 for the period from 2 November 2011 to 21 May 2014; and if so

    (b)there are any grounds for waiving all or part of the debt. 

    Relevant legislation and consideration of the evidence

26. The rate of disability support pension is calculated in accordance with section 1064 of the Social Security Act 1991 (Cth) (the Act) and is affected a person’s circumstances including their income and assets. ‘Income’ is defined in subsection 8(1) of the Act as an amount ‘earned, derived or received’ by a person for their ‘own use or benefit’.

27. Where a person is overpaid a social security payment, subsection 1223(1) of the Act provides the amount of the payment is a debt to the Commonwealth. Section 1237A of the Act provides that:

    (1)  …the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

28. Section 1237AAD of the Act allows the Secretary to waive the right to recover all or part of a debt if there are ‘special circumstances’, other than financial hardship alone.

29. The Secretary submits that deposits made into Mr Anastasis’ bank accounts were income that he did not declare to the Department and so was overpaid the disability support pension from 2 November 2011 to 21 May 2014. The Department subsequently accepted that Mr Anastasis ceased operating his business on 9 September 2013 and revised its calculations that he was overpaid $18,372.82 in disability support pension. The Department and the SSCSD on review did not consider there were any relevant grounds to waive any or all of Mr Anastasis’ debt. 

30. At the Tribunal hearing, Mr Anastasis said that he told the Department and the SSCSD that the deposits into his bank accounts included salary paid to his then-partner and repayments of loans. He further provided oral evidence about his circumstances over the past two years, which included that he was homeless, living alternately between his car and couch-surfing. As noted in paragraph 18, he also indicated that he has been dealing with complex personal issues, outstanding legal processes in the courts and significant health problems.

31. I am of the view that there is insufficient evidence before this Tribunal to decide the merits of Mr Anastasis’ explanations about the deposits made into his bank accounts. I also consider that, if Mr Anastasis was overpaid the disability support pension and has a debt to the Commonwealth, his evidence at the Tribunal hearing indicates his circumstances may allow for all or part of the debt to be waived in accordance with section 1237AAD of the Act.

32. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Mr Anastasis’ substantive matter may have merit. This weighs for the extension of time being granted.

    CONCLUSION

33. Taking into account all of the information before me, I am satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

34. The application for an extension of time is granted.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 12 March 2018

Date of hearing:	1 March 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services