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

[2015] AATA 700

Bassanese and Secretary, Department of Social Services (Social services second review) [2015] AATA 700 (11 September 2015)

Division	GENERAL DIVISION
File Number	2015/3774
Re	Richard Bassanese
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	11 September 2015
Place	Adelaide

Mr Bassanese’s application for an extension of time pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 in which to seek review of the decision of the Social Security Appeals Tribunal dated 10 October 2014 is refused.

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Deputy President K Bean

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time – Application for registration as a member of the social security pension bonus scheme – Applicant in receipt of age pension – Applicant previously received pension bonus payment – Consideration of Hunter Valley principles – No merit in substantive application – Extension of time refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Social Security Act 1991, ss 92C, 92H

CASES

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

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

REASONS FOR DECISION

Deputy President K Bean

11 September 2015

1. In February 2014, the applicant, Mr Bassanese, lodged a form with Centrelink applying to be registered as a member of the pension bonus scheme. However, Centrelink refused this application on the basis that he had previously been paid a pension bonus. A Centrelink Authorised Review Officer (ARO) subsequently affirmed that decision and Mr Bassanese then applied to the Social Security Appeals Tribunal (SSAT) for review of the decision of the ARO.

2. On 10 October 2014, the SSAT made a decision affirming the decision of the ARO. In its reasons for that decision, the Tribunal set out its understanding of the relevant facts. The Tribunal noted that Mr Bassanese had turned 65 on 12 January 2004 and commenced receiving age pension from 14 February 2007. The Tribunal also noted that with his first instalment of pension, paid on 1 March 2007, Mr Bassanese received a pension bonus payment of $6,592.40.

3. The Tribunal went on to note that the applicable provisions of the Social Security Act 1991 (the Act) required an application for registration for the pension bonus scheme to be made within 13 weeks either side of the date on which a person reached pension age, unless the relevant period was extended pursuant to subs 92H(3).[1] The Tribunal determined that the relevant discretion could not be exercised in Mr Bassanese’s favour because even if he was to be registered, it was clear he would not be eligible to receive any pension bonus payment.

   [1] Subsections 92H(3)-(7) of the Act were repealed by item 5 of Schedule 8 to the Social Services and Other Legislation Amendment Act 2014 (No. 14, 2014), which commenced on 1 July 2014. However, item 6 provides that if an application for registration as a member of the pension bonus scheme under s 92D of the Act was lodged before 1 July 2014, and the application was lodged during an extended period referred to in subs 92H(3) of the Act, then subs 92H(3) continues to apply in relation to that application.

4. The Tribunal reached that conclusion because s 92C of the Act requires that in order to be qualified for a pension bonus, among other requirements, a person must not have received a social security pension at any time after reaching pension age, and must not have already received another pension bonus. The Tribunal concluded that those requirements clearly could not be met, as Mr Bassanese had received a pension bonus payment and had been in receipt of age pension since 14 February 2007.

5. Mr Bassanese says that on 16 October 2014, he sent a letter “with all relevant information to appeal the decision of the SSAT”. He said in his application for review that this was “somehow lost either in the mail or by the AAT office. I have have (sic) been waiting for an answer but only found out about the lost mail now”. In any event, the Tribunal did not receive any application for review of the decision of the SSAT from Mr Bassanese prior to 27 July 2015, when the application for review and extension of time application the subject of this decision were both lodged.

6. As the Administrative Appeals Tribunal Act 1975 (the AAT Act) requires applications for review to be lodged within 28 days of the decision under review, it follows that, notwithstanding his attempt to lodge an application within time, no application was received within the applicable 28-day period. The application lodged on 27 July 2015 is approximately eight months outside the required time frame. In these circumstances, Mr Bassanese’s application cannot proceed unless an extension of time is granted, pursuant to subs 29(7) of the AAT Act.

7. Therefore, the issue currently before me is whether Mr Bassanese should be granted an extension of time for the filing of his application for review of the SSAT’s decision.

   THE LEGAL FRAMEWORK

8. Under subs 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”. 

9. Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The applicable principles were summarised by then Federal Magistrate McInnis in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 at [10] as follows:

   1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

   2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

   3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. …

   4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).

   5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

   6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

   7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).[2]

   CONSIDERATION

10. In the circumstances of this matter, I consider the most relevant criteria to be the extent of and reasons for the delay, any prejudice to the respondent and the merits of the substantive application. Accordingly, I will proceed to address each of those criteria by reference to the material before me.

    The extent of and reasons for the delay

11. As I have indicated above, Mr Bassanese’s application was lodged approximately eight months outside the required 28-day period. However, Mr Bassanese explained at the hearing that he decided to appeal the SSAT decision within the required timeframe and sent a letter on 16 October 2014 to this Tribunal believing this to be an effective application to review the decision of the SSAT. Although nothing was received by this Tribunal which was recognised and treated as an application for review, I am prepared to accept for the purposes of this application that Mr Bassanese sent documentation by mail to this Tribunal which he intended to be treated as an application for review of the SSAT decision. Accordingly, this consideration militates in favour of an extension of time being granted.

    Prejudice to the respondent

12. Mr Parker, who appeared for the respondent at the hearing, did not contend that there would be any prejudice to the respondent if an extension of time was granted. Accordingly this consideration also tends to militate in favour of an extension of time being granted.

    The merits of the substantive application

13. However, as the case law referred to above clearly indicates, before granting an extension of time, it is appropriate for consideration to be given to whether the substantive application has any prospects of success. In particular, it is appropriate for the relevant decision-maker to consider whether there would be any purpose served by granting an extension of time. If the application appears hopeless, there may be no real utility in granting an extension of time and in those circumstances it would generally not be appropriate to do so.

14. With respect to the merits of Mr Bassanese’s substantive application to register for the pension bonus scheme, as the SSAT identified, the fundamental question is whether, even if he was registered, Mr Bassanese could potentially establish any additional entitlement to a pension bonus. If it is clear he could not do so, there would be no basis for allowing him to register late for the scheme.

15. As the SSAT identified, the applicable provisions in this regard are ss 92H and 92C of the Act. Section 92C sets out the requirements for qualification for pension bonus and relevantly provides as follows (emphasis added):

    92C  Qualification for pension bonus

    A person is qualified for a pension bonus if:

    (a)both:

    (i)the person starts to receive an age pension at or after the time when the person makes a claim for the pension bonus; and

    (ii)that age pension is received otherwise than because of a scheduled international social security agreement (see section 5 of the Social Security (International Agreements) Act 1999); and

    (b)the person has not received an age pension at any time before making a claim for the pension bonus; and

    (c)the person is registered as a member of the pension bonus scheme; and

    (d)the person has accrued at least one full-year bonus period while registered as a member of the pension bonus scheme; and

    (e)the person has not received:

    (i)a social security pension (other than an age pension or a carer payment); or

    (ii)a social security benefit; or

    (iii)a service pension (other than a carer service pension); or

    (iv)an income support supplement (other than an income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5 to the Veterans’ Entitlements Act);

    at any time after the person qualified for an age pension; and

    Note:Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA of the Veterans’ Entitlements Act) was payable to the person or the person’s partner: see subsection 23(1D) of this Act.

    (f)the person has not already received:

    (i)another pension bonus; or

    (ii)a bonus under Part IIIAB of the Veterans’ Entitlements Act; or

    (iii)DFISA bonus under Part VIIAB of the Veterans’ Entitlements Act.

    Note:Subclause 8(3) of Schedule 5 to the Veterans’ Entitlements Act deals with income support supplement for carers.

16. As the SSAT also identified, the fundamental difficulty for Mr Bassanese is that it is clear from the Department’s records that he commenced receiving age pension from 14 February 2007, and he does not dispute that fact. In addition, it is also clear that he was paid a pension bonus of $6,592.40 on 1 March 2007. Whilst Mr Bassanese says this was not a pension bonus payment, I am satisfied from the Department’s records provided during the hearing that this was a pension bonus payment, and that it was paid in conjunction with his first instalment of age pension.

17. I am accordingly also satisfied that, even if Mr Bassanese was allowed to register late, or re-register, for the pension bonus scheme, he would not have any entitlement to a pension bonus. It is therefore clear that there is no conceivable basis upon which Mr Bassanese’s application to register for the pension bonus scheme could be successful.[3] Further, it is also clear that even if he could be registered, he would have no entitlement to any additional pension bonus.

    [3]     As alluded to above, subs 92H(3) of the Act continues to apply to applications lodged before 1 July 2014. However, for the reasons given in Re Boyle and Repatriation Commission [2015] AATA 488, subss 92H(4)-(7) no longer apply to fetter the discretion to extend time for registration, and accordingly the exercise of the discretion is to be determined by reference to the Hunter Valley principles.

18. In these circumstances, I have concluded that, even accepting that Mr Bassanese did form an intention to seek review of the SSAT decision within the required timeframe, and sought to carry that intention into effect, no purpose would be served by granting him an extension of time to pursue his application for review. It is clear that if the application were allowed to continue it would inevitably be unsuccessful for the reasons I have given. I have therefore decided not to grant the extension of time sought by Mr Bassanese.

    DECISION

19. Mr Bassanese’s application for an extension of time pursuant to s 29 of the AAT Act in which to seek review of the decision of the SSAT dated 10 October 2014 is refused.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 11 September 2015 

Date of hearing	31 August 2015
Applicant	In person
Solicitors for the Respondent	Mr A Parker Department of Human Services Program Litigation and Review Branch

[2]     This formulation was approved by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, at [18].