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

[2023] AATA 64

Barnett and Secretary, Department of Social Services (Social services second review) [2023] AATA 64 (31 January 2023)

Division:GENERAL DIVISION

File Number(s):     2022/9272

Re:Tammy Barnett  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

Decision

Tribunal:Mr S. Webb, Member

Date:31 January 2023

Place:Canberra

Application refused.

…………………[sgd]………………..
Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – application for review of AAT first review decision – prescribed period – application for review outside the prescribed period – consideration of relevant factors and circumstances – not reasonable in all the circumstances to grant extension of time – application refused

Legislation

Administrative Appeals Tribunal Act 1975, ss 29

A New Tax System (Family Assistance) Act 1999, s 3

A New Tax System (Family Assistance) (Administration) Act 1999, s 58, 95, 97, 101, Schedule 1

Social Security Act 1991, ss 4, 503, 1236, 1237, 1237A, 1237AAD

Cases

Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516

Daley v Child Support Registrar [2020] FCAFC 161

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

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

REASONS FOR DECISION

Mr S. Webb, Member

31 January 2023

1. Tammy Barnett lodged an application for an extension of time in which to apply for review of a decision in respect of overpayment debts in respect of parenting payment, family tax benefit and childcare tax rebate. It is this matter alone that is the subject of this interlocutory decision.

   Facts

2. Ms Barnett has 3 children. It was in respect of her children that she claimed and was paid parenting payment, family tax benefit and childcare tax rebate in the period from 2006 to 2010.

3. Subsequently, overpayment debts were raised against her on grounds she was a member of a couple with the father of the children. Ms Barnett contested this and sought review by the Tribunal of first instance.

4. On 1 December 2017, the Tribunal issued an AAT first review decision under Div. 2, Part 4A of the Social Security (Administration) Act 1999 in the following terms:

   The decision under review is set aside and the matter is sent back to the Secretary for reconsideration in accordance with the direction that the debts be recalculated in accordance with the finding that Miss Barnett commenced to live as a member of a couple with Mr McMaster from 24 September 2005.

5. The Tribunal decided Ms Barnett was liable for overpayment debts which could not be written off under s 1236 of the Social Security Act 1991 (Social Security Act) or s 95 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act), and the debts could not be waived under s 1237, s 1237A or s 1237AAD of the Social Security Act or s 97 or s 101 of the Administration Act.

6. On 11 November 2022, Ms Barnett lodged an application for an extension of time in which to apply for review of the AAT first review decision. In her application, Ms Barnett stated she received the AAT first review decision on 7 December 2017.

7. On 25 November 2022, the Respondent informed the Tribunal Ms Barnett’s application for an extension of time was not opposed.

8. On 1 December 2022, I directed Ms Barnett to put on further and better submissions in support of her application.

9. Ms Barnett filed the following materials in response:

   (a)on 1 December 2022, clinical notes of Dr Fairweather (a general practitioner);

   (b)on 8 December 2022, a letter of support by Julie Willshire, a personal friend; and

   (c)on 12 December 2022, a short letter by Dr Mulvey (a general practitioner).

10. The prescribed time for lodging an application for review of the AAT first review decision is set out in s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act):

    (2)  Subject to subsection (3), the prescribed time for the purposes of

    paragraph (1)(d) is the period commencing on the day on which the decision is

    made and ending on the twenty‑eighth day after:

    (a)  if the decision sets out the findings on material questions of fact

    and the reasons for the decision—the day on which a document

    setting out the terms of the decision is given to the applicant

11. The Tribunal has discretion to extend this period under s 29(7):

    (7)  The Tribunal may, upon application in writing by a person, extend the time for

    the making by that person of an application to the Tribunal for a review of a

    decision (including a decision made before the commencement of this

    section) if the Tribunal is satisfied that it is reasonable in all the circumstances

    to do so.

12. The Tribunal is required to consider all relevant circumstances and to weigh together all relevant factors,[1] including:

    (a)the length of the delay in applying for review;

    (b)knowledge of the prescribed time limit;

    (c)any explanation for the delay;

    (d)prejudice to the Respondent or anyone else should the extension be granted;

    (e)the nature and prospects of the application should it be allowed to proceed; and

    (f)alternative remedies should the extension not be granted.

    [1] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451; Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516).

13. It is well established that, prima facie, the prescribed time limit should be complied with, and delay is a factor which may count against an exercise of the discretion in favour of an applicant for relief.[2]

    [2] Daley v Child Support Registrar [2020] FCAFC 161 at [43].

    Length of the delay

14. By her application, Ms Barnett is seeking an extension of almost 4 years in which to lodge an application for review of the AAT first review decision.

15. The length of the delay weighs heavily against granting the extension she seeks.

    Knowledge of the prescribed time limit

16. There is no dispute that Ms Barnett was given a Notice attaching the AAT first review decision. Even though the Notice is not in the materials before the Tribunal, it is open to infer it was given to Ms Barnett with the AAT first review decision.

17. On this basis, I am satisfied Ms Barnett knew, or had reason to know, of the 28 day limit on applying for further review of the AAT first review decision.

18. This notwithstanding, there is nothing before the Tribunal to suggest Ms Barnett placed the Respondent or anyone else on notice of her intention to apply for review of the AAT first review decision at any point prior to 11 November 2022.

19. This weighs against granting the extension of time Ms Barnett seeks.

    Explanation for the delay

20. In her application for an extension of time, Ms Barnett gave the following reason for the delay in applying for review of the AAT first review decision:

21. The additional materials she provided are of little assistance.

22. Dr Fairweather’s letter dated 24 November 2022 suggests Ms Barnett may not have sought medical attention due to an accusation made by “a man she had previously been in a relationship with”, but the suggestion is not located in time and the man is not named. The inference may nevertheless be drawn that Ms Barnett was in a relationship with this man at the time. The doctor’s clinical notes cover a period from 7 September 2021 to 22 November 2022, in which referrals are made to a psychologist. This information does not assist understanding of the 4 year delay in Ms Barnett applying for review of the AAT first review decision.

23. Ms Willshire’s 8 December 2022 letter of support sets out subjective information in reference to Ms Barnett suffering depression in 2005 and moving into a house with the father of her children who cared for her. It does not shed light on Ms Barnett’s alleged reasons for the 4 year delay in applying for review of the AAT first review decision.

24. Dr Mulvey’s letter confirms Ms Barnett suffered from depression in the period from 2005 to 2010. This does not go to her reasons for the 4 year delay in applying for review of the AAT first review decision.

25. Ms Barnett’s explanation for the 4 year delay in applying for review of the AAT first review decision is not well supported and it is not persuasive.

    Prejudice to the Respondent or anyone else should the extension be granted

26. At the heart of the matters in dispute is a question about overpayment debts raised against Ms Barnett on grounds she was a member of a couple with the father of her children from 2005 to 2010 for the purposes of the Social Security Act and the Family Assistance Act.

27. When reviewing matters of this kind, having regard to the meaning given to the term member of a couple and the indicia which must be considered under s 4(2) and (3) of the Social Security Act (to which s 3 of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) applies), detailed factual findings are required. Such findings can only be made on the basis of relevant probative evidence.

28. There can be no doubt, the effluxion of time is likely to adversely affect the memories of potential witnesses with relevant knowledge of Ms Barnett’s person circumstances in the period from 2005 to 2010.

29. Furthermore, the passage of almost 4 years may prejudice both parties’ ability to obtain relevant and reliable documentary or witness evidence in respect of the existence of circumstances which may render it appropriate to write off or waive all or part of the debts raised against Ms Barnett, should they be established to exist.

30. This is a relevant consideration which weighs against the extension of time in this case.

    Nature and prospects of the application should it be allowed to proceed

31. At this stage, it is not appropriate or possible to make any detailed assessment of the likely prospects of Ms Barnett’s case should it be allowed to proceed.

32. There are 2 key issues for consideration. The first is whether Ms Barnett is liable for overpayment debts in the period she was paid parenting payment, family tax benefit and childcare tax rebate in the period from 2006 to 2010. This turns on whether she was a member of a couple who was not entitled to be paid at the single rate under the applicable rate calculators in s 1068A of the Social Security Act and s 58 and Schedule 1 in the Family Assistance Act. In order to decide these questions, applying s 4(2) and (3) of the Social Security Act, it is necessary to have regard to and to make detailed factual findings about all the circumstances of the relationship between Ms Barnett and the father of the children.

33. If Ms Barnett is found liable for overpayment debts, the second issue arises: namely, whether there are grounds to write off or waive recovery of the debts under applicable provisions of the Social Security Act and the Administration Act. This requires factual findings to be made about all relevant circumstances up to the present, including whether the overpayment debts are attributable to administrative error by the Commonwealth and whether Ms Barnett’s circumstances amount to special circumstances which render it appropriate to waive all or part of an overpayment debt for which she is found liable.

34. These are matters of detail which require equally detailed evidence. The nature of Ms Barnett’s relationship with the father of her children will turn on evidence which is not presently before the Tribunal, and which may now, with the passage of years, be difficult to obtain.

35. For present purposes, the task of assessing if her application has any prospects of success, should it be allowed to continue, is a rough and ready assessment only.

36. On Ms Willshire’s letter, there is a suggestion Ms Barnett and the father of her children were “not in any kind of relationship” in or about 2005 and they “have not been in a romantic relationship since”. Ms Willshire asserts, nevertheless, they moved into the same house and he “watched over her and the kids” and supported her, “although the relationship was at times more stressful for her due to financial and emotional abuse”. These untested assertions, albeit somewhat contradictory, may go to some but not all of the circumstances of the relationship between Ms Barnett and the father of her children, which must be considered when deciding if Ms Barnett was a member of a couple for the purposes of the Social Security Act and the Family Assistance Act. The scope of matters which must be considered are set out in s 4(3) of the Social Security Act:

    (a)  the financial aspects of the relationship, including:

    (i)  any joint ownership of real estate or other major assets and any joint liabilities; and

    (ii)  any significant pooling of financial resources especially in relation to major financial commitments; and

    (iii)  any legal obligations owed by one person in respect of the other person; and

    (iv)  the basis of any sharing of day‑to‑day household expenses;

    (b)  the nature of the household, including:

    (i)  any joint responsibility for providing care or support of children; and

    (ii)  the living arrangements of the people; and

    (iii)  the basis on which responsibility for housework is distributed;

    (c)  the social aspects of the relationship, including:

    (i)  whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

    (ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and

    (iii)  the basis on which the people make plans for, or engage in, joint social activities;

    (d)  any sexual relationship between the people;

    (e)  the nature of the people’s commitment to each other, including:

    (i)  the length of the relationship; and

    (ii)  the nature of any companionship and emotional support that the people provide to each other; and

    (iii)  whether the people consider that the relationship is likely to continue indefinitely; and

    (iv)  whether the people see their relationship as a marriage‑like relationship or a de facto relationship.

37. As can be seen, deciding if Ms Barnett was a member of a couple with the father of the children does not turn simply or solely on the existence of a romantic relationship, other aspects of the relationship between them must be carefully considered.

38. With regard to the existence of circumstances which may be relevant to the recovery of any debt for which Ms Barnett is found to be liable, if any, all that can be said is further and better evidence would be required. It is not possible to determine if Ms Barnett has any real prospect of succeeding on the materials she has supplied from Dr Fairweather and Dr Mulvey. In my assessment, the possible existence of special circumstances is not raised with any clarity or substance.

39. Considering these matters, doing the best with the scant materials, in my opinion, Ms Barnett’s application has low prospects of succeeding should it be allowed to continue.

    Alternative remedies should the extension not be granted

40. If an extension of time is not granted, Ms Barnett will have no further opportunity to obtain review of the AAT first review decision and any debts for which she is, in consequence, liable.

41. In those circumstances, she may engage with the Respondent to negotiate a suitable rate of recovery of the debts should she encounter financial difficulties.

    Conclusion

42. Considering all the relevant circumstances, I am not satisfied it is reasonable to grant Ms Barnett an extension of almost 4 years in which to apply for review of the AAT first review decision. The balance of considerations weighs against doing so.

    Decision

43. Application refused.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.

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

Associate

Dated: 31 January 2023

On the Papers
Date final submissions received:	12 December 2022
Applicant:	Self-Represented
Representative for the Respondent:	Department of Social Services