Blackett and Secretary, Department of Family and Community Services

[2005] AATA 1285

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1285

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1435

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Harry Blackett

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Mr M.A. Griffin, Member

Date22 December 2005

PlaceSydney

Decision The application for an extension of time to lodge an application for review is refused.

[Sgd] Mr M. A. Griffin, Member

CATCHWORDS

SOCIAL SECURITY - failure to apply for review of decision within specified period - no substantive reasons for delay – no reasonable prospects for success – application for extension of time refused.

Administrative Appeals Tribunal Act 1975 section 29

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305

Zizza v The Federal Commissioner of Taxation (1999) 55 ALD 451
Kuljic v The Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

22 December 2005     Mr M.A. Griffin, Member            

1.      This is an application by Mr Harry Blackett (“the Applicant”) for an extension of time to lodge an application for review. Mr Blackett seeks review of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 25 July 2005. The SSAT affirmed a decision of a Centrelink authorised review officer (“ARO”). The ARO had affirmed a rejection of Mr Blackett’s claim for age pension.

2.      At the hearing, Mr Blackett represented himself. Ms Mantaring, represented the Respondent.

History

3.      Mr Blackett was granted the age pension in May 1998. In February 2005 Mr Blackett sold an investment property. The following month, on 10 March 2005, his pension was cancelled because his assets exceeded the specified limit.

4.      On 24 March 2005 Mr Blackett purchased an annuity and reclaimed the age pension on 22 April 2005. That claim was rejected on the basis that Mr Blackett’s assets of $320,347.00 exceeded the $313,750.00 limit.

5.      Mr Blackett sought review of that decision and on 3 June 2005 the decision was affirmed by the ARO. The ARO noted that after 10 September 2004, the legislation allowed for a 50% exemption of the purchase price of the annuity, for the purposes of the assets limit. Prior to 10 September 2004 the legislation provided for a 100% exemption. The effect of this was that only 50% of the $60,000.00 price of the annuity was exempt for the assets test which resulted in the remaining $30,000.00 of the purchase price taking Mr Blackett’s assets over the limit. The SSAT affirmed the ARO’s decision

6.      Mr Blackett lodged his application for review of the SSAT decision with this Tribunal on 9 November 2005, that is, some months outside the 28 day period stipulated in the Administrative Appeals Tribunal Act1975. Mr Blackett said in evidence that he did receive the letter advising of the 28 day period for lodging an application for review of the SSAT decision. He said he took the matter up initially with the office of his State member of parliament and was told to take it to his Federal member’s office. He said he spoke with a staff member in that politician’s office and was told that she would take care of it. Mr Blackett said he did not lodge an application for review in the 28 days allowed. He said he was waiting for action from the politician’s office. He said after 3 weeks he went back to the MP’s office and was told that these things take about 6 weeks.

7.      Mr Blackett said “They did nothing for a couple of months, I went and asked her again and she said she would fix it up…She rang Centrelink and they said they could do nothing. She helped me fill out the [AAT application for review] form”.

8.      Mr Blackett confirmed the factual background set out in the SSAT decision. He said that he was aware of the impending change in the legislation concerning the exemption some 3 weeks before it was due to happen. He said he had been receiving advice from a bank financial planner. He said he was unable to finalise his annuity purchase at the relevant time because he was in hospital. He said he spoke with Centrelink after he came out of hospital about his annuity and was told that it would be fully exempt. Mr Blackett said neither he nor his local MP could understand the subsequent decision to exempt only 50% of the annuity.

Consideration of Issues

9.      The relevant legislation is the Administrative Appeals Tribunal Act1975 (“the Act”). Section 29(2) of the Act states that an application for review must be lodged within 28 days of the decision being served on the applicant. Section 29(7) provides for a discretion to extend time for making the application if “the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

10.     The judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 summarises the principles that guide the Tribunal when considering whether to exercise the available discretion. The Tribunal is mindful of the Full Court’s caution in Zizza v Commissioner of Taxation (1999) 55 ALD 451 that the following principles are a guide only and the summary ought not be regarded as exhaustive or complete:

·     Prima facie, proceedings should be commenced within the prescribed period and an applicant must advance an acceptable explanation for the delay.

·     Any action that the applicant has taken, apart from applying for the extension, is relevant in considering whether there is an acceptable explanation for the delay.

·     Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension.

·     Public considerations, including the unsettling of established practices or of other people, may be taken into account.

·     It is relevant to have regard to the merits of the substantial application.

·     Considerations of fairness as between the applicant and others in a similar position are relevant.

11.      In the Hunter Valley decision (supra), Wilcox J said:

“The ‘prescribed period’ of 28 days is not to be ignored…Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…It is a pre-condition to the exercise of the discretion in his favour that the application for an extension of time show an ‘acceptable explanation of the delay’ and that ‘it is fair and equitable in the circumstances’ to extend time”.

12.      The tribunal notes that the Full Federal Court subsequently held in Comcare v A’Hearn (1993) 45 FCR 441 at 444 that a satisfactory explanation for the delay was not essential.

13.      In Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 Justice Von Doussa said at page 122:

“One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal.  If consideration of the merits indicate that there is no question to be agitated on appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.”

14.      Mr Blackett does not dispute the accuracy of the facts of this matter as set out in the SSAT decision. Mr Blackett admits that he was fully aware of the proposed legislative change which reduced the assets exemption from 100% to 50%. Indeed, he had taken advice from a Commonwealth Bank financial planner on this matter. Mr Blackett admits that he did not purchase the annuity before the date of the legislative change. Mr Blackett says he was prevented from doing so because he had to go to hospital.

15.      It may be that Mr Blackett received, as he claims, incorrect advice from Centrelink after the relevant date about the exemption available to him. However, on the face of the legislation there is nothing to indicate any discretion to exclude Mr Blackett or anyone else in similar circumstances from the effect of the legislative change. Mr Blackett was aware of the impending change. He did not act upon it. He is caught by the legislation. On the evidence available, it would appear that his claim has no prospect of success.

16.      I do not consider Mr Blackett’s reliance upon the actions of the staff of his Federal MP to be an acceptable explanation for the delay in lodging an application for review. It was reasonably open to him to lodge the application in the period allowed while at the same time enlisting the assistance of his MP.

17.      In all the circumstances, I find that it would not be reasonable to extend time for lodging the application for review.

Decision

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

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin

Signed:         Associate

Date of Hearing  16 December 2005 
Date of Decision  22 December 2005
Representative for the Applicant               Mr Harry Blackett, Self-Represented   
Advocate for the Respondent                    Ms Susan Mantaring