Armstrong and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 1000

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 1000

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5255

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEANETTE ARMSTRONG

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date16 December 2009

PlaceBrisbane

Decision

The Tribunal:

1.     refuses to grant the application for reinstatement of application for review of decision; and

2.     refuses to grant the application for extension of time for lodging application for review of decision.

......................[Sgd]........................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Reinstatement – whether application dismissed in error – no error – reinstatement refused

PRACTICE AND PROCEDURE – Extension of time – whether reasonable in all the circumstances to grant extension of time – Not reasonable in all the circumstances – extension of time refused

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 42A(10)

Social Security Act 1991 (Cth) s 1184K

REASONS FOR DECISION

16 December 2009 Senior Member Bernard J McCabe         

1.      Mrs Jeanette Armstrong is an age pensioner. She is dissatisfied with the decision of the Secretary to the Department of Families, Housing, Community Services and Indigenous affairs to impose a preclusion period on compensation affected age pension payments for the period 2001 to 2002. The relevant payments have long since been recovered. She has now asked the Tribunal to review that decision.

2.      This is not the first time Mrs Armstrong has asked the Tribunal to reconsider the decision. She lodged an application for review in 2004, but that application was withdrawn at her written request. It will therefore be necessary for me to consider whether it is possible to reinstate the earlier application. If that application cannot be reinstated, I must consider whether the Tribunal should grant her an extension of time to lodge a fresh application to review the Secretary’s decision. I heard the parties’ oral submissions on both issues by telephone in December last year. I have decided to refuse both applications. I give my reasons below.

The factual background

3.      Mrs Armstrong’s first husband died in a car accident in 2001. The loss of her husband affected her health and left her in difficult financial circumstances. She moved from her matrimonial home to live with her son. She settled a claim for compensation in respect of her husband’s death in October 2003. She continued to receive age pension payments during this time.

4.      In May 2003, Centrelink mistakenly advised Mrs Armstrong that any compensation she might receive for her husband’s death would not affect her pension payments. In September 2003, however, Centrelink asked her to contact it to discuss whether a preclusion period would apply, leading to the recovery of pension payments. I understand Centrelink advised Mrs Armstrong of the correct position in October 2003, although it seems likely she did not clearly understand the implications of the law. Her solicitor did not appear to provide a clear explanation. She was obviously stressed by the whole process.

5.      

In October 2003, Centrelink decided to impose a preclusion period on

Mrs Armstrong’s compensation affected age pension payments for the period April 2001 to February 2002. That decision meant Centrelink recovered pension payments made to her during that period. The Social Security Appeals Tribunal (“the SSAT”) affirmed Centrelink’s decision. She applied to this Tribunal to review the decision but withdrew her application in May 2005. The Tribunal dismissed her application pursuant to s 42A of the Administrative Appeals Tribunal Act 1975 (“the Act”).

6.      Mrs Armstrong lodged a complaint against Centrelink with the Commonwealth Ombudsman in 2009. Mrs Armstrong had approached Centrelink in July 2006 to request that the money Centrelink recovered be refunded to her. Centrelink seems to have advised her to fill in a Statement of Financial Circumstances in August 2006, which she returned to Centrelink in January 2008. Mrs Armstrong appears to have contacted Centrelink to follow up her request in May, July and September 2008 and twice in March 2009 but without much success. At some point, Centrelink advised Mrs Armstrong to contact the Tribunal, although did not explain why she should do so. The Ombudsman wrote to Mrs Armstrong in June 2009 about her complaint and advised she still had a right to apply to the Tribunal to review Centrelink’s initial decision.

7.      Mrs Armstrong filed a fresh application in the Tribunal in October 2009.

Application for reinstatement

8. Section 42A of the Act permits the Tribunal to reinstate applications in certain circumstances. Subsection (10) is the relevant provision in these proceedings. It confers power on the Tribunal to reinstate an application that has been dismissed in error.

9.      Mrs Armstrong withdrew her initial application in May 2005. I asked her to tell me about the circumstances surrounding her decision to withdraw. She told me she was too ill to continue with the application and withdrew it at the encouragement of her children. She also seems to have been told she would be unlikely to succeed with her application.

10.     

The respondent submitted there was no error. The Tribunal dismissed

Mrs Armstrong’s application at her request. The application cannot therefore be reinstated.

11.     I agree with the respondent. Mrs Armstrong’s decision to withdraw does not appear to have been based on a misunderstanding or mistake. Nor was I shown any mistake on the Tribunal’s behalf when it dismissed her application. I do not have the power to reinstate the application in these circumstances. It follows the application for reinstatement must be refused.

Application for an extension of time

12. The Tribunal’s power to grant an extension of time is contained in s 29(7) of the Act. The provision says the Tribunal may extend the time for lodging an application for review if the Tribunal is satisfied that it is reasonable in all the circumstances. The Act does not specify what matters may be taken into account when deciding whether it is reasonable in all the circumstances. Effectively, the Tribunal must engage in a balancing exercise, considering the matters raised by the parties for or against granting the extension. I asked the parties to speak about:

·the length of, and reason for, the delay;

·whether the respondent would be prejudiced if it were required to deal with the decision at this late stage; and

·the merits of the applicant’s case.

13.     Mrs Armstrong explained that her ill health and inconsistent information she received from Centrelink as the reasons she delayed so long in filing her application. While some five years has passed since the SSAT’s decision, I accept the applicant’s explanation for the delay.

14.     The respondent argued it would be prejudiced if the Tribunal were to grant an extension. The delay would complicate the task of reconstructing what occurred and what Mrs Armstrong was told five years ago. I agree that the respondent would be prejudiced to some degree if I grant the extension, particularly because locating contemporaneous documents (and perhaps independent witnesses) would be difficult.

15. I now turn to consider the merits of Mrs Armstrong’s case. I do not understand there to be any dispute about the calculation of the lump sum preclusion period. It follows the only issue the Tribunal would need to consider at a hearing is if all or part of Mrs Armstrong’s compensation should be disregarded because of special circumstances pursuant to s 1184K of the Social Security Act 1991.

16. Mrs Armstrong’s circumstances were considered in the SSAT decision in 2004. The SSAT found the way Mrs Armstrong witnessed her husband’s death, her ill heath and her reliance on the age pension did not constitute special circumstances within the meaning of s 1184K. Mrs Armstrong identified additional matters that might qualify as special circumstances in a letter dated September 2004 which she sent to the SSAT after the conclusion of its hearing. In that letter, she expanded on the nature of her health complaints. She also explained her compensation money had been put aside for her future care. She referred to financial commitments that she had to meet with a diminished income and without the assistance of her husband. She also mentioned that she had no assets. She added that she rented rooms from her son, as she could not bring herself to return to the housing commission house in which she lived prior to her husband’s death.

17.     

While I have sympathy for Mrs Armstrong’s position, I cannot agree that her circumstances are special in the sense that they are unusual or out of the ordinary. Most social security recipients experience financial difficulty. Most social security recipients who are subject to a preclusion period have experienced some sort of trauma which has unsettled them. Without wishing to diminish the extent of

Mrs Armstrong’s loss, it is sadly not an unusual experience for someone in her position. I acknowledge she has experienced health difficulties which might constitute special circumstances.

18.     On balance, having regard to the difficulties associated with hearing a case of this kind after so much time has passed, and notwithstanding the fact that the case has some merit, I think the correct thing to do in the circumstances is to refuse the application for an extension of time. I reach that view notwithstanding the unfortunate history of misunderstanding and miscommunications between the applicant and Centrelink and her lawyer.

Conclusion

19.     For the reasons I have given above, I refuse to grant the application for reinstatement, and I also refuse to extend the time to lodge an application for review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed:............................[Sgd]..................................................
  Michael Buckingham, Associate

Date of Hearing  16 December 2009
Date of Decision  16 December 2009
Date of Written Reasons          12 January 2010
Solicitor for the applicant          Unrepresented
Advocate for the respondent     Mr B Hamilton
Solicitor for the respondent     Centrelink Legal Services