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

[2018] AATA 1826

Anderson and Secretary, Department of Social Services (Social services second review) [2018] AATA 1826 (15 June 2018)

Division:General Division

File Number(s):      2018/1223 and 2018/1228

Re:Danya Anderson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:15 June 2018

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – Hunter Valley Developments Pty Ltd – reasons for delay – prejudice to the respondent and general public – merits of substantive matter – special circumstances – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

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

CASES

Chouman v 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

15 June 2018

INTRODUCTION

1. On 13 March 2018, Ms Danya Anderson lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the 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
   12 January 2016.

2. The SSCSD decision affirmed a decision made by the Department of Human Services (the Department) to raise and recover from Ms Anderson a youth allowance debt in the amount of $17,820.98 and a school kids bonus debt in the amount of $1,230.00 for the period from 12 September 2012 to 24 April 2015.

3. The Secretary opposes the extension of time sought.

   BACKGROUND

4. The Secretary made the following submissions to the Tribunal regarding the facts of this matter:

   ·On 26 July 2012, Ms Anderson commenced HSC studies through the Western Sydney Institute of TAFE (OTEN). The normal full-time student load for HSC studies was 600 hours per year.

   ·The Department paid Ms Anderson youth allowance and school kids bonus from 26 July 2012 to 24 April 2015 on the basis that she was a full-time student.

   ·TAFE records show that from 12 September 2012, Ms Anderson was not a full-time student. In particular, Ms Anderson completed work for assessment that totaled:

   o17 hours in 2012 academic year;

   o51.5 hours in the 2013 academic year; and

   o105 hours in the 2014 academic year.

   ·The Department, both initially and on review, decided that Ms Anderson was not a full-time student and therefore she was not eligible to receive youth allowance or schoolkids bonus. The Department found that Ms Anderson was overpaid youth allowance in the amount of $17,820.98 and school kids bonus in the amount of $1,230.00 for the period from 12 September 2012 to 24 April 2015; and these amounts were a debt to the Commonwealth.

   ·The SSCSD affirmed the Department’s determination and posted the decision notice to Ms Anderson on 13 January 2016.

5. On 13 March 2018, Ms Anderson lodged an ‘Application for Extension of Time for Making an Application for Review of Decision’ with the General Division of the Tribunal.

6. The application was heard in Sydney on 23 May 2018. Ms Anderson was represented by her mother, Mrs Angel Miller, who attended the hearing by conference telephone. Mrs Miller made the following submissions at the hearing:

   ·Ms Anderson had attempted to seek review of the SSCSD decision in September 2016 and sometime in 2017;

   ·OTEN had made errors in calculating Ms Anderson’s attendance as she suffered from Post-Traumatic Stress Disorder (PTSD) and was completing her HSC studies at a ‘full-time study level’ over a five year period.

7. The Tribunal provided Mrs Miller and the Secretary with the opportunity to provide further evidence supporting her claims. The Secretary filed the following information:

   ·Correspondence from OTEN dated 9 December 2014, which included advice that to ‘study on a full time basis for Centrelink purposes, the student has to complete 16 module hours of work per week sent to OTEN’.

   ·OTEN forms confirming Ms Anderson completed approximately 17 hours in 2012 academic year, 51.5 hours in the 2013 academic year and 105 hours in the 2014 academic year.

   ·A Job Capacity Assessment report dated 29 September 2015 and an Employment Services Assessment report dated 24 May 2018, which refer to medical reports diagnosing Ms Anderson with PTSD.

8. Mrs Miller filed the following information with the Tribunal:

   ·medical certificates by Dr Darryl Chamberlain (general practitioner) dated 30 August 2016 and by Dr M Morian (general practitioner) on 23 August 2017, which verify that Ms Anderson has PTSD;

   ·a psychological report by Ms Caroline Morris (psychologist) dated 5 October 2017; and

   ·reports dated 10 September 2012 and 18 May 2015 verifying Ms Anderson was undergoing counselling.

   For completeness, Mrs Miller did not provide any evidence regarding Ms Anderson seeking review of the SSCSD decision prior to March 2018.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

9. 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.

10. 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].

11. 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.

12. 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.

13. 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

14. The delay in Ms Anderson seeking a review of the decision by the SSCSD is more than two years outside the 28 day time limit.

15. In her application for an extension of time, Ms Anderson provided the following explanation for the delay:

    I tried to apply during the time however for some reason the form did not go through to the AAT. I had thought that they had received it and ive [sic] been waiting to hear back, but when we rang today there was no record of it and I was told to reapply.

16. Mrs Miller told the Tribunal that Ms Anderson applied for a review of the decision in about September 2016 and again in 2017. The Tribunal has no record of these applications and in the absence of supporting evidence from either Mrs Miller or Ms Anderson, I find that Ms Anderson was aware of her appeal rights following the SSCSD decision and the significant length of delay weighs heavily against granting an extension of time.

17. 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

18. 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.[1]

    [1] [2009] AATA 222, paras [30-31].

19. I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Ms Anderson’s application. As the delay is more than two years, 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

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

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

    (a)Ms Anderson was overpaid youth allowance debt in the amount of $17,820.98 and a school kids bonus debt in the amount of $1,230.00 for the period from 12 September 2012 to 24 April 2015; and if so

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

    Relevant legislation and consideration of the evidence

22. To be eligible to receive youth allowance and school kids bonus, a person must be a full-time student. The Secretary’s submissions are that Ms Anderson:

    …failed to advise the Department about a change in her study load or that she was not making satisfactory progress in her course. As a consequence, she was overpaid youth allowance in the amount of $17,820.98 and a schoolkids bonus of $1,230.00 during the debt period [12 September 2012 to 24 April 2015].[2]

    [2] Secretary’s Outline of Submissions dated 18 May 2018, paragraph 43(b).

23. The evidence before the Tribunal provided by the Department shows Ms Anderson did not complete a full-time study load as required to qualify for youth allowance and school-kids bonus in 2012, 2013 and 2014. I am satisfied that Ms Anderson was overpaid youth allowance in the amount of $17,820.98 and schoolkids bonus in the amount of $1,230.00 from 12 September 2012 to 24 April 2015.

24. Where a person is overpaid a social security payment, subsection 1223(1) of the Social Security Act 1991 (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.

25. 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.

26. The Department and the SSCSD on review did not consider there were any relevant grounds to waive any or all of Ms Anderson’s debt. 

27. The evidence before the Tribunal is that Ms Anderson was overpaid youth allowance and school kids bonus because she did not inform the Department that she was not undertaking full-time study. I am therefore satisfied that the debt should not be waived due to administrative error.

28. In considering section 1237AAD, I note the term ‘special circumstances’ is not defined in the Act. However, the Federal Court and the Tribunal have considered the issue of special circumstances on a number of occasions. In every case, the individual circumstances of the case were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered.

29. In considering this waiver provision, I am also mindful of the purpose of the social security system, Parliament’s intention that payments are made on the basis of need and that debts should generally be recovered unless there are special circumstances. This means that social security recipients who receive money they are not entitled to receive are generally expected to repay it unless repayment would be unjust, unreasonable or inappropriate in the particular circumstances.

30. At the Tribunal hearing, Mrs Miller confirmed that Ms Anderson is currently in receipt of newstart allowance and has been repaying her debt to the Department in the amount of $15 per fortnight. Ms Anderson has stable accommodation residing with her siblings and Mrs Miller in the family home. She pays $100 per fortnight in rent and board, has costs associated with attending a psychologist once a month for her PTSD, and pays for food and grooming for her companion dog. Mrs Miller explained that Ms Anderson does not often leave the family home due to her PTSD. I have had regard to the evidence before the Tribunal that corroborates Mrs Miller’s evidence about the impact of Ms Anderson’s PTSD.

31. Based on the limited evidence before the Tribunal, while I accept that Ms Anderson experiences difficulties associated with PTSD, I am not satisfied that her situation provides that it would be unjust, unreasonable or inappropriate for Centrelink to recover the debt.

32. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Ms Anderson’s substantive matter does not have merit. This weighs for the extension of time being refused.

    CONCLUSION

33. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

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

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:   15 June 2018

Date(s) of hearing:	23 May 2018
Advocate for the Applicant:	A Miller
Solicitors for the Joined Party:	G Lozynsky - Department of Human Services