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

[2022] AATA 1716

Betts and Secretary, Department of Social Services (Social services second review) [2022] AATA 1716 (16 June 2022)

Division:GENERAL DIVISION

File Number(s):      2022/3055

Re:Danny Betts

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:16 June 2022

Place:Sydney

The application for an extension of time is granted.

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

Dr L Bygrave, Member         

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – prejudice – whether substantive matter has merit – disability support pension – extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2)(a), 29(7)

Social Security Act 1991 (Cth) s 94(1)
Social Security (Administration) Act 1999(Cth) s 42, sch 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6(5), 6(6), 6(7)

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349]

Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441

REASONS FOR DECISION

Dr L Bygrave, Member

16 June 2022

1. The Applicant, Mr Danny Betts, lodged an application on 13 April 2022 with the General Division of the Administrative Appeals Tribunal (the Tribunal) in accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

2. In this application, Mr Betts sought an extension of time to make an application to review a decision made by the Social Services and Child Support Division (AAT1) of the Tribunal on 8 March 2022. The AAT1 decision affirmed the decision made by Services Australia to reject Mr Betts’ claim for disability support pension that he lodged on 16 November 2020.

3. The Respondent opposes Mr Betts’ application for an extension of time.

4. The extension of time application was heard by the Tribunal in Sydney on 26 May 2022. Mr Betts and the Respondent’s legal representative participated in the interlocutory hearing by teleconference. Following the interlocutory hearing, the Respondent’s legal representative filed Mr Betts’ medical reports that were in evidence for the AAT1 hearing at the Tribunal.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

5. 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 a document setting out the terms of the decision is given to an applicant.

6. 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].

7. 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[1] and include:

   (a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend the 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)whether there is any prejudice to the respondent caused by the delay;

   (d)whether 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.

   [1] (1984) 3 FCR 344 at [348] and [349].

8. These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition for the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn.[2]

   [2] [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.

9. 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.

   LENGTH OF AND REASONS FOR DELAY

10. The length of delay in Mr Betts seeking a review of the decision made by the AAT1 on 8 March 2022 is seven days after the 28 days limit. I am satisfied Mr Betts was informed by letter dated 9 March 2022 about his rights and requirement to make an application for review to the General Division of the Tribunal within 28 days of receiving the AAT1 decision.

11. Mr Betts’ application for an extension of time dated 13 April 2022 outlined the following reason for requesting an extension of time: ‘Error in first application’.

12. At the Tribunal hearing, Mr Betts stated that he mistakenly lodged his application for review a second time with the AAT1 four days before the 28 days limit and, once he understood his error, he then lodged his application with the General Division of the Tribunal. Unfortunately, however, this was seven days after the 28 days limit. Mr Betts further said that he did not deliberately delay lodging his application for review but, after he received the AAT1 decision, he had attempted to contact organisations for assistance with his application for review and/or legal representation.

13. I find the delay of seven days is not significant, particularly in view of Mr Betts’ statement that he was attempting to seek assistance with his application. I further find that this information shows Mr Betts did not ‘rest on his rights’ in relation to allowing the Respondent to believe the matter relating to the AAT1 decision made on 8 March 2022 was concluded.

14. I am satisfied this principle weighs for granting an extension of time; however, it is not the only factor I need to consider in determining whether to grant the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

15. It is in the interests of both the Respondent and the general public that statutory time limits are adhered to so as to ensure a predictable and orderly conclusion to appeal processes.

16. I am satisfied the Respondent and the public would have expectations about the finality of the decision-making and this factor weighs against granting an extension of time.

    MERITS OF THE SUBSTANTIVE APPLICATION

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

    Relevant legislation: qualification for the disability support pension

18. To qualify for the disability support pension, Mr Betts must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he 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.

19. Further, Mr Betts must satisfy these criteria on 16 November 2020 when he 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

20. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

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

22. 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 is likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.

23. 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; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.

24. 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) of the Impairment Tables Determination.

25. Reasonable treatment is described as treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person: subsection 6(7) of the Impairment Tables Determination.

26. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis:

    …must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    Medical reports

27. In written submissions filed on 19 May 2022, the Respondent attached the following documents:

    ·Mr Betts’ claim for disability support pension lodged on 16 November 2020. In this claim, Mr Betts listed his medical conditions as major depression disorder and patellofemoral syndrome; condition start date as approximately 1 February 2007; and current treatment as medication and psychological or psychiatric treatment.

    ·A Disability Support Pension Medical Eligibility Assessment Recommendation dated 3 December 2020. This assessment was completed by a registered nurse, recommended that Mr Betts was ‘manifestly medically ineligible’ for disability support pension, and stated:

    Anxiety, depression and Post Traumatic Stress Disorder (PTSD) has been confirmed by treating doctor and previously diagnosis of anxiety by psychiatrist in 2014. There is [sic] no details of psychiatric interventions following this report, the current evidence indicates a referral for psychiatric assessment is recommended.

    ·A copy of the decision and notes made by an authorised review officer of Services Australia on 21 December 2021. This referred to and considered some of the medical reports about Mr Betts’ bilateral knee and mental health conditions.

    ·A decision from the AAT1 dated 8 March 2022 that stated, for the oral reasons given on 8 March 2022, the decision under review was affirmed. 

28. At the interlocutory hearing, the Respondent’s legal representative referred to medical reports that were before the AAT1. At the Tribunal’s request, the Respondent subsequently filed the following medical reports with the General Division of the Tribunal:

    ·A referral from Dr S Woolnough (general practitioner) to Mr H Zraika (physiotherapist) dated 23 November 2004 regarding Mr Betts’ diagnosis of ‘clinical patella-femoral dysfunction’ and requesting ‘review and treatment’.

    ·A report of an independent medical examination by Dr A Searle (consultant orthopaedic surgeon) dated 12 February 2006. Dr Searle opined that Mr Betts’ employment caused ‘bilateral chondromalacia of the patella-femoral joints’ and recommended ‘conservative’ treatment that includes physiotherapy. Dr Searle also stated that ‘within about 10 years’ Mr Betts will require ‘an arthroscopy of each knee’.

    ·A report by Dr E Bannan (psychiatrist)[3] dated 16 July 2014, which diagnosed Mr Betts with ‘dysthymia plus generalised anxiety’, described him as ‘a lonely and isolated man’ and provided advice about his medications including anti-depressants. This report also stated that Mr Betts ‘might benefit from referral to a psychologist for CBT [cognitive behavioural therapy]’.

    [3] The letterhead of the report by Dr Bannan stated her qualifications. These include ‘M.R.C. Psych.’, which is Member of the Royal College of Psychiatrists (United Kingdom).

    ·A Health Summary Sheet by Dr V Nguyen (general practitioner) printed on 17 November 2020, which listed Mr Betts’:

    omental health conditions of generalised anxiety, major depression and PTSD; and

    ocurrent medications for anxiety and depression.

    ·A referral from Dr C Hayes (general practitioner) to Dr S Thavakulingam (psychiatrist) dated 21 November 2020, which stated Mr Betts ‘suffers chronic depressive disorder’ and is ‘currently on Avanza’. This referral also listed Mr Betts’ other medications.

    ·A medical letter from Dr Hayes to Centrelink dated 15 December 2020 that stated Mr Betts has suffered from ‘chronic severe depressive disorder’ for eight years. Dr Hayes also wrote that Mr Betts ‘has been trialled on a range of psychotropic medicines but has had only a poor response’ and his condition ‘is currently stable on the antidepressant Avanza’. Dr Hayes opined that Mr Betts’ condition is ‘very disabling and he is not able to work’.

    ·A Centrelink medical certificate completed by Dr Hayes on 6 January 2021 that stated Mr Betts was diagnosed with:

    omajor depressive disorder (date of onset 6 January 2014) with past treatment listed as ‘antidepressant medication’; and

    ochondromalacia both knees (date of onset 6 January 2006) with past treatment described as ‘physiotherapy’.

    ·A letter from Dr S Ravi (Western Sydney Local Health) dated 12 February 2021 stating that Mr Betts is currently on the denture waitlist.

    ·A Centrelink medical certificate completed by Dr Hayes on 5 May 2021 that set out Mr Betts was diagnosed with:

    omajor depressive disorder (date of onset 5 January 2018) with past treatment listed as ‘antidepressant medication, psychiatric consultation’; and

    oischaemic heart disease (date of onset 17 April 2021) with past treatment described as ‘coronary artery stenting’.

    Consideration: Mr Betts’ substantive application

29. In written submissions dated 19 May 2022 and at the interlocutory hearing on 26 May 2022, the Respondent’s legal representative contended that Mr Betts’ substantive application has ‘minimal prospect of success’ as there was insufficient evidence that his medical conditions were fully diagnosed, fully treated and fully stabilised during the claim period.

30. Mr Betts told the Tribunal that his major depression was long-standing since childhood, he was compliant with taking antidepressant medication, and his capacity had not changed from the date he lodged his claim for disability support pension on 16 November 2020. He said that he had tried, but not benefited from, counselling and CBT. Mr Betts submitted that his depression was fully diagnosed by a psychiatrist (Dr Bannan) in 2014. He said he had also attended an appointment with Dr Thavakulingam but was unable to obtain a report from him and unable to afford the cost of ongoing visits to a psychiatrist.

31. Mr Betts further said that his general practitioner had now retired, and he did not know how to obtain further medical evidence to support his claim for the disability support pension. It was for this reason that he had attempted to obtain support and assistance prior to lodging his application for review with the General Division of the Tribunal.

32. In relation to his condition of patellofemoral syndrome, Mr Betts explained to the Tribunal that this condition has not worsened, he has not had an arthroscopy, and he is not relying on this condition in relation to his claim for disability support pension. Mr Betts also accepted that his diagnosis of ischaemic heart disease in April 2021 was after the claim period and therefore, could not be considered for this substantive application.

33. For the purposes of Mr Betts’ application for an extension of time, I am required to consider the prospects of success of the substantive application. I have had regard to the Respondent’s written submissions, the medical reports regarding Mr Betts’ conditions and treatment, and the information Mr Betts told the Tribunal at the interlocutory hearing.

34. I am satisfied the available medical reports show that Mr Betts has had a longstanding major depressive disorder that has been diagnosed by a psychiatrist in 2014. He has trialled a range of antidepressant medications and counselling, and has remained compliant with his current antidepressant medication for a number of years. It also became apparent during the interlocutory hearing that Mr Betts is very isolated and has no support; this has meant that he has found it difficult to access assistance to either ensure he has sufficient medical evidence to support this substantive application or to lodge a new claim for disability support pension. Finally, while the Disability Support Pension Medical Eligibility Assessment Recommendation completed by a registered nurse recommended a referral for psychiatric assessment, the basis for this recommendation is not clear to me in view of the available medical reports.

35. On balance, I find the substantive application may have prospects of success; particularly if Mr Betts is able to obtain assistance to file further supporting medical reports about his major depressive disorder, the treatment he has undertaken for his depression and how his major depressive disorder affected his functional capacity during the claim period.

36. For this reason, I am satisfied this principle weighs for granting an extension of time.

    CONCLUSION

37. Taking into account the information before me, I am satisfied that it is reasonable in all the circumstances to grant the extension of time.

    DECISION

38. The application for an extension of time is granted.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 16 June 2022

Date(s) of hearing:	26 May 2022
Date final submissions received:	26 May 2022
Applicant:	In person
Solicitors for the Respondent:	Ms Glenda Heggen, Services Australia