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

[2019] AATA 627

Azzopardi and Secretary, Department of Social Services (Social services second review) [2019] AATA 627 (27 February 2019)

Division:GENERAL DIVISION

File Number:           2019/0172

Re:Rita Azzopardi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:27 February 2019

Date of written reasons:        3 April 2019

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application –  application for review of Social Services and Child Support Division decision affirming earlier decision rejecting claim for disability support pension – application to Tribunal not within time – whether reasonable in all the circumstances – reasons for delay – whether prejudice to respondent and general public – whether substantive application has merit – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 29

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

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

Comcare v A’Hearn [1993] FCA 498

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

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 27 February 2019. The following paragraphs are the reasons for my decision.

   INTRODUCTION

2. On 18 January 2019, Ms Rita Azzopardi lodged an application with the General Division of the Administrative Appeals Tribunal (the Tribunal) pursuant to 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 on 12 April 2018 by the Social Services and Child Support Division (SSCSD) of the Tribunal.

3. The SSCSD decision affirmed a decision made by the Department of Human Services (Centrelink) to reject Ms Azzopardi’s claim for disability support pension made on 30 December 2016.

4. The Secretary opposes the extension of time sought.

5. The application was heard by the Tribunal in Sydney on 27 February 2019. Ms Azzopardi attended the hearing by teleconference.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

6. 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.

7. 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].

8. 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; and

   (f)considerations “of fairness as between the applicant and other persons” in a similar position.

9. 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.

10. 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

11. Ms Azzopardi first sought review of the decision made by the SSCSD on 7 January 2019 and subsequently filed an application for an extension of time on 18 January 2019. I am satisfied this is a period that is more than seven months after the 28 day limit. In her extension of time application, Ms Azzopardi stated:

    I was given the form late and centre [sic] did not inform me in time.

12. Submissions by the Secretary state that the SSCSD decision was sent to Ms Azzopardi on 23 April 2018, accompanied by a letter advising that there is a 28 day time limit for making an application for review to the General Division of the Tribunal. Based on this information, I am satisfied that Ms Azzopardi was advised in writing in April 2018 about her right of appeal to the Tribunal.

13. In view of the extensive delay of more than seven months, Ms Azzopardi’s explanation that she received forms from Centrelink late is inadequate. I find that Ms Azzopardi “rested on her rights” and I am satisfied that this finding weighs against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

14. 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 also 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].

15. I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Ms Azzopardi’s application. As the delay is more than seven months, 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 granting an extension of time.

    MERITS OF SUBSTANTIVE MATTER

16. I am required to consider the merits of the substantive application in deciding whether to grant the extension of time. The substantive matter is whether, on the balance of the evidence before the Tribunal, Ms Azzopardi meets the requirements for disability support pension as set out in the Social Security Act 1991 (Cth) (the Act).

    Qualification for disability support pension

17. To qualify for the disability support pension, Ms Azzopardi must satisfy the criteria in subsection 94(1) of the Act, which requires her to show she has:

    (a)a physical, intellectual or psychiatric impairment; and

    (b)an impairment rating of 20 or more points according to the Impairment Tables; and

    (c)a continuing inability to work.

18. Further, Ms Azzopardi must satisfy these criteria on 30 December 2016 when she applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

    Rules for assigning impairment ratings 

19. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

20. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

21. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

22. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

23. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

    Consideration

24. The decision by the SSCSD identified that Ms Azzopardi has been diagnosed with the following impairments: a lower limb condition, skin condition and asthma and allergic rhinitis. The SSCSD Member found that there was insufficient medical evidence to conclude these conditions were permanent during the claim period and consequently, in accordance with the Impairment Tables Determination, assigned no points for these impairments.

25. Ms Azzopardi filed with the Tribunal a letter from Dr Andy Huang (general practitioner) dated 16 February 2019, more than 18 months after the claim period.  However, I note no medical evidence was provided to the Tribunal documenting Ms Azzopardi’s impairments and the functional impact of these conditions during the claim period.

26. Based on the minimal medical evidence before the Tribunal, I am satisfied there are limited prospects of success of the substantive application.

    CONCLUSION

27. 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

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

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 3 April 2019

Date of hearing:	27 February 2019
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick Department of Human Services