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

[2021] AATA 286

Beslagic and Secretary, Department of Social Services (Social services second review) [2021] AATA 286 (23 February 2021)

Division:GENERAL DIVISION

File Number:          2020/7609

Re:Ismet Beslagic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:23 February 2021

Place:Melbourne

The Tribunal refuses the application for an extension of time under s. 29(7) of the Administrative Appeals Act 1975 (Cth).

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

Member R West

Catchwords

EXTENSION OF TIME – disability support pension – appeal from decision of Social Services and Child Support Division – appeal lodged out of time – application for extension of time under s.29(7) of the AAT Act – no reasonable prospect of success – no proper explanation for delay – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176
Lucic v Nolan (1982) 45 ALR 411
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535

Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

Secondary Materials

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

REASONS FOR DECISION

Member R West

23 February 2021

1. The decision that the Applicant seeks to review is the decision of the Social Services and Child Support Division of this Tribunal (AAT1) dated 16 September 2020 to determine that the Applicant was not eligible for the disability support pension under the Social Security Act 1991 (Reviewable Decision).  A written statement of the reasons for the Decision was received by the Applicant on 16 September 2020.

2. The Applicant lodged an application for the review of the Reviewable Decision by the General Division of the Tribunal on 12 November 2020 (Application).

3. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that the prescribed time for lodging an application with the Tribunal is within 28 days after notice of a decision is given to an Applicant.

4. The Application was required to be lodged with the Tribunal by 14 October 2020 and so the Application is approximately 28 days out of time.

5. Subsection 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review if an application for an extension of time is made in writing by the Applicant. In this case, the Applicant lodged a written application for an extension of time on 23 November 2020.

6. Under s.29(7) of the AAT Act, the Tribunal may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.

7. If the extension of time is opposed by the Respondent, s.29(10) of the AAT Act requires the Tribunal to give the parties a reasonable opportunity to present their respective cases. In this case, the parties were given the opportunity to file documents and present their respective cases at an interlocutory hearing to be conducted by telephone on 2 December 2020.

8. Prior to the scheduled hearing on 2 December 2020, the Applicant contacted the Tribunal and indicated that he was unable to proceed with the hearing due to health issues. After discussion with the Registry the parties each stated in writing that they consented to the extension of time application being determined ‘on the papers’. On 21 December 2020 the Tribunal determined pursuant to s.34J of the AAT Act that the issues for determination in relation to the extension of time application could be adequately determined in the absence of the parties having regard to the materials lodged with the Tribunal.

   Applicant’s submissions

9. In his application for an extension of time, the Applicant gave the reason for making the Application out of time as follows:

   I was unwell at the time with BNNP Vertigo episodes.

10. In a subsequent written submission provided to the Tribunal, the Applicant stated that he was still not well with a nasty episode of BPPV vertigo and was unable to dress or go outside or go shopping.  He said that he had attended one consultation with a psychologist previously, but it had not been of any assistance and he preferred to consult a psychiatrist who prescribed medication which he found helpful.  In support of his extension of time application the Applicant relied on a statement made to Centrelink by his treating doctor, Dr Chris Brookes, dated 20 May 2019, which read:

    He has intractable OCD[1].  He has seen psychiatrist re this and has complied as best he can with advice from this.  He continues to be overtaken in his daily life by the activities that he is compelled to do from his condition cleaning and altering his behaviours due to anxiety and stress of his concern troughs his OCD. 

    This has not been altered particularly by the medication he has taken and he has not been able to engage in any way that has altered his condition with any psychology intervention.

    He is unable to work as a result of his condition.

    [1] obsessive compulsive disorder.

    Respondent’s submissions

11. The Respondent concedes in its submission that the Respondent would not be prejudiced by an extension of time and posited that, if the Tribunal was satisfied that the Applicant’s ill health was the cause of the delay, then the delay was satisfactorily explained.  It was submitted further that the prejudice to the public interest by allowing the extension of time was minimal.

12. The Respondent’s principal ground for opposing the extension of time was that the Applicant’s substantive application for review of the Reviewable Decision had no reasonable prospect of success.

13. The Respondent cited the comments of the Federal Court in Swanton v Military Rehabilitation and Compensation Commission[2], that:

    …it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

    [2] [2017] FCA 1142.

14. The Respondent argued that the AAT1 fully considered the evidence and found no merit in the Applicant’s case in deciding that the Applicant did not qualify for DSP during the qualification period per the Social Security Act 1991 (SSAct).  In particular, the Respondent noted that the AAT1 found:

    (a)the functional impact of the OCD suffered by the Applicant could not be assessed under the Impairment Tables as the medical evidence did not establish that the condition was fully treated and stabilized;

    (b)there was an absence of medical evidence regarding the Applicant’s lower back condition and the Applicant said it was not a major disturbance, which warranted a nil impairment rating under the Impairment Tables;

    (c)subject to further assessment, it was likely that the Applicant had not actively participated in a program of support; and

    (d)his work capacity has been assessed at 15-22 hours a week within 24 months with appropriate interventions, excluding a continuing inability to work as required by s.94(1)(c) of the SSAct.

    Relevant Considerations

15. The Federal Court has confirmed the prima facie rule that proceedings commenced outside the 28-day period should not be entertained. In relation to the discretion to extend time under s.29(7), the Court said:

    It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.[3]

    [3] Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176 at [18].

16. The relevant considerations for the exercise of the discretion may be summarised[4]  as follows:

    (a)there is no onus of proof upon an applicant for an extension of time and special circumstances need not be shown, but the Tribunal should not grant the application unless positively satisfied it is proper to do so;

    (b)it is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay be given but such an explanation will normally be given and is a relevant matter to be considered;

    (c)action taken by the applicant other than making an application to the Tribunal is relevant in assessing the adequacy of the explanation for the delay;

    (d)it is relevant to consider whether the applicant has rested on their rights;

    (e)any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay, is a relevant consideration, but the absence of prejudice is not enough to justify the grant of an extension;

    (f)it is appropriate to take the merits of the substantial application into account; and

    (g)considerations of fairness as between the applicant and other persons in a similar position may be relevant.

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

    Assessment

17. The Tribunal is satisfied in this case that the Application has little merit.

18. The Applicant claimed DSP on 15 October 2019.  A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and in the 13 weeks thereafter. This is called the qualification period.[5] The review of the Reviewable Decision must be made on the basis of the medical and other evidence as it relates to the Applicant’s condition during the qualification period. The available evidence was considered by the AAT1 which found that the Applicant’s conditions during the qualification period were either not assessable or warranted a nil rating under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables). In his application for review, the Applicant asserted that the medical opinion of the Applicant’s treating doctor had been ignored. It is clear from the Reviewable Decision that the Tribunal had regard to all of the available medical evidence in making its assessment. In the circumstances, and given that on review the assessment of the Applicant’s condition is, by necessity, a retrospective process, the Tribunal is satisfied that there is no realistic prospect that it could come to a conclusion that the Applicant was eligible for the DSP at the time he made his application in October 2019.

    [5] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

19. Further, the Tribunal is not satisfied that the Applicant has provided an acceptable explanation for the delay in filing his application for review.  The Applicant’s stated reason was that he was unwell with a BNNP Vertigo episode.  He relied on a medical report from his treating doctor from May 2019 which essentially confirmed that the condition is ongoing.  Dr Brookes’ medical report to Centrelink of 13 November 2020 indicated that the Applicant’s dizziness was episodic and lasted some time each time. The Applicant’s ongoing condition had not prevented the Applicant from making the initial application for review by AAT1, nor from lodging the Application in these proceedings, albeit out of time. The Applicant did not provide an explanation as to why he was prevented from lodging an application for review during the specific period of 28 days after 16 September 2020. There is nothing to indicate that the Applicant’s condition was any different in November 2020, when he made his Application, to that during the 28-day period after 16 September 2020 when the AAT Act required him to do so.

20. As the courts have made clear, the primary position is that proceedings commenced outside the prescribed time limits should not be entertained[6], and the Tribunal should not extend time unless positively satisfied that it is proper to do so[7].  The absence of prejudice to the Respondent, or persons in a similar position to the Applicant, is not enough to justify an extension of time.

    [6] Lucic v Nolan (1982) 45 ALR 411 at 416.

    [7] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550.

21. In this case, the Applicant has not established that he had an acceptable explanation for the delay in lodging the Application and, having considered the appeal on its face and examined the material at a reasonably impressionistic level, the Tribunal is satisfied that the Application does not have a realistic chance of success.

22. Having regard to these matters, the Tribunal is not satisfied that it would be reasonable in all the circumstances to extend the time for the Applicant to lodge his application.

    DECISION

23. The application for an extension of time under s. 29(7) of the AAT Act is refused.

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

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

Associate

Dated: 23 February 2021

Date of Hearing:	Determined on the papers
Applicant:	Self-represented
Advocate for the Respondent:	Brian Sparkes
Solicitors for the Respondent:	Services Australia