Boyle and Secretary, Department of Social Services (Social service second review)

[2016] AATA 177

Boyle and Secretary, Department of Social Services (Social service second review) [2016] AATA 177 (24 March 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0879
Re	Samantha Boyle
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	24 March 2016
Place	Canberra

Extension of time in which to lodge an application for review is granted to 19 February 2016.

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

Mr S. Webb, Member

PRACTICE & PROCEDURE – request for extension of time in which to lodge an application – general rule in respect of prescribed time limit – consideration of circumstances – short delay – explanation – health conditions – prospect of success – no prejudice – reasonable in all the circumstances to grant extension of time

Acts Interpretation Act 1901, s 29

Administrative Appeals Tribunal Act 1975, ss 29, 68

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, s 180

Administrative Appeals Tribunal Regulation 2015, r 17

Comcare v A’Hearn (1993) 45 FCR 441

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

Mentink v Minister for Home Affairs [2013] FCAFC 113

Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

Social Security (Active Participation for Disability Support Pension) Determination 2014 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mr S. Webb, Member

24 March 2016

1. Samantha Boyle lodged a claim for Disability Support Pension (DSP). Her claim was rejected. She sought review of this decision by an Authorised Review Officer. The decision was affirmed. She applied for review by the Administrative Appeals Tribunal (first AAT review). The matter was dealt with by the Social Services and Child Support Division of the Tribunal – the decision was, again, affirmed (the first AAT decision). Ms Boyle applied for a second review by the AAT, but her application was lodged out of time. The Secretary of the Department of Social Services opposed the grant of an extension of time.

2. It is this matter of time, only, that arises presently for determination.

3. I have heard the parties and I have received expansive written submissions lodged on behalf of the Secretary.

   Time limit on lodging application for review

4. The first AAT decision, which Ms Boyle is seeking to challenge, is dated 16 December 2015. It appears this was posted to Ms Boyle on 18 December 2015. Ms Boyle told me that she thinks she received the decision after Christmas, in the first week of January 2016. She could not explain why in her application for review she stated that she had received the decision on 20 December 2015.

5. The Secretary submits that Ms Boyle should be taken to have received the decision in the usual course of the post by 30 December 2015.

6. Having regard to s 68(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), regulation 17(3) of the Administrative Appeals Tribunal Regulation 2015 and s 29 of the Acts Interpretation Act 1901, I think it is reasonable to conclude that she was ‘given’ the decision on that day – 30 December 2015.

7. Under s 29(2) of the AAT Act, the period in which a person may apply for review of a decision is, relevantly, 28 days after the day on which the person is ‘given’ the decision, setting out findings on material questions of facts and reasons for the decision. I note in passing that this section is not modified by s 180 of the Social Security (Administration) Act 1999 (the Administration Act).

8. From this it follows that the period of time in which it was open to Ms Boyle to lodge an application for review of the first AAT decision ended on 27 January 2016.

9. Ms Boyle’s application for review was received by the Tribunal on 19 February 2016. It was out of time.

   Discretion to grant additional time

10. Section 29(7) of the AAT Act confers discretion to extend the period in which an application for review may be lodged ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so’.

11. On 25 February 2016, Ms Boyle lodged an application for an extension of time in which to make an application for review of the AAT first decision. On 26 February 2016, the Secretary was duly notified of this request. On 10 March 2016, the Secretary lodged a document opposing Ms Boyle’s application “on the basis that the applicant has not provided an acceptable reason for the delay and the substantive application for review has poor prospects of success”.[1] The Secretary lodged expansive written submissions addressing these and other points on 21 March 2016. 

    [1] Notice of opposing application for extension of time, 10 March 2016, page 2.

12. The matter is to be decided under s 29 of the AAT Act, having regard to the objects and purposes of the statutory scheme for merits review in the context of social security legislation.

13. Much has been said in cases of this kind about the matters Wilcox J set out in the oft cited case of Hunter Valley Developments Pty Ltd v Cohen.[2] Certainly, factors of the kind his Honour referred to may be relevant considerations in any particular case. Nonetheless, as French J (as he then was) said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (Seiler’s case),[3] the matters Wilcox J set out should not be construed as exhaustive or treated as “rules of law fettering the discretion” – “In each case the discretion must be exercised with regard to all the circumstances”.[4]

    [2] (1984) 3 FCR 344 at 348-350.

    [3] (1994) 48 FCR 83.

    [4] Ibid, at 97.

    General rule

14. The starting point is the 28 day limit prescribed by s 29(2) of the AAT Act. This must be applied unless the Tribunal is satisfied, on examination of all the relevant circumstances and in order to serve justice and fairness in the particular case, that it is reasonable to extend the time in which an application can be made for review.

15. As will appear, I am satisfied that this is such a case.

16. On the Secretary’s calculation, Ms Boyle’s substantive application was 23 days out of time. This, the Secretary submits, “constitutes a significant delay in the statutory context” and “the length of the delay mitigates against granting an extension of time”.

17. Why a delay of 23 days should be treated as significant in the scheme of the legislation has not clearly been explained. This is not a case in which the failure to do something may have an adverse consequential effect upon the operation of a decision under social security legislation, in respect of fortnightly payment of DSP or Newstart Allowance, for example. And it is not a case in which time is a critical substantive determinant, as might arise in respect of terms of patents for example. The Secretary’s argument appears to proceed on a different tack, such that any delay exceeding the prescribed limit in a merit review context is ‘significant’ because it contravenes the general rule that prescribed time limits must be complied with.

18. Clearly enough, prima facie, an application lodged outside the 28 day limit will not be entertained. But the purpose of the discretion conferred by s 29(7) of the AAT Act is to permit some flexibility in the application of the ‘general rule’ to which the Secretary has referred. I think it is well established that the exercise of this discretion requires a Tribunal to be positively satisfied that it is reasonable and equitable to extend time in all of the circumstances.

19. I accept that a delay, however brief, may weigh against the grant of an extension of time in some cases. There is a public interest in the efficient conduct of merit-review processes, such that timely decisions can be made and acted upon with finality. In this context, there is also a public interest in the proper service of justice in a manner that is fair and equitable. These considerations must be weighed in the balance when determining whether it is reasonable to accede to Ms Boyle’s request for additional time in which to make her application for review.

20. The substantive case Ms Boyle is seeking to agitate concerns the rejection of the claim for DSP she lodged on 22 May 2015. More than 10 months have elapsed while serial review processes have been undertaken since that date. To my mind, a delay of 23 days is not likely to cause any prejudice to the Secretary or to Ms Boyle. And it is not likely to excite public interest considerations other than those to which I have referred. The delay is not so long that grant of the additional 23 days sought by Ms Boyle is likely to offend the public interest in the efficient despatch of merit review processes. Whereas refusal to grant the additional time may bear upon the proper service of justice in her case, if she is denied the opportunity to test aspects of the decision with which she cavils, and the grounds on which it was made.

21. This issue cannot adequately be answered by resort to the content of the decision itself or to the findings of those that made it, as the Secretary has urged. These are matters for evidence, to be tested in the usual way by examination and impartial assessment, in the proper application of law.

    Explanation for delay

22. The Secretary submits that Ms Boyle has not provided an adequate explanation for the delay in lodging her application for review.

23. Ms Boyle’s application for review is not dated. An attached medical certificate by Dr Hamilton-Gibbs is dated 1 February 2016. These materials were received by the Tribunal on 19 February 2016.

24. Ms Boyle asserts that she acted to lodge an application for review as soon as possible after receiving the first AAT decision. She says that she “sent all corrispondence [sic] back with enough time prior to the 28 days”.[5] This is not correct – by her own account she did not send her application for review to the Tribunal until 1 February 2016.

    [5] Application for Extension of Time for Making an Application for Review of Decision, 23 February 2016, page 2.

25. Ms Boyle says she took action to lodge her application for review within the prescribed time. She told me that she decided to apply for review in or about the second week in January 2016. Her evidence is that she could not recall whether she had any contact with Centrelink after receiving the first AAT decision, but on or about 14 January 2016 she telephoned the AAT in order to obtain information about how to apply for review. I note in passing that the AAT does not have any record of this telephone contact – I understand that the Tribunal does not routinely record details of contacts of this kind. She explained that the person she spoke to told her to complete and post an application form with the decision to be reviewed and any supporting evidence. She understood this to include a medical certificate from her treating doctor. She immediately made an appointment to consult Dr Hamilton-Gibbs, her treating doctor. She made a (rather cryptic) note on the copy of the first AAT decision to this effect –

    “Put in appeal on the 14.1.2016

    ~~~~~~~~~~

    DR’S App H.G.”[6]

    [6] Applicant’s substantive Application for Review, undated but received by the Tribunal on 19 February 2016, page 11.

26. I accept that Ms Boyle had decided to challenge the AAT’s first decision when she made the appointment to consult Dr Hamilton-Gibbs – at that time she was not resting on her rights and she was not out of time.

27. By her account, the first available appointment she could obtain with Dr Hamilton-Gibbs was not until 1 February 2016. She says she attended the appointment in Young NSW, and the doctor provided her with a medical certificate which she then sent to the AAT with the application for review form and an annotated copy of the first AAT decision. Her uncontested evidence is that she sent these materials to the AAT on 1 February 2016 from Young Post Office, soon after attending the appointment with Dr Hamilton-Gibbs.

28. By that time she was 5 days out of time.

29. In the usual course of the post, one would expect her application to arrive in the Tribunal within 3 or 4 days, by 4 or 5 February 2016. But it did not arrive for 18 days, by which time she was 23 days out of time.

30. Ms Boyle had no explanation as to why the materials she says she posted on 1 February 2016 in Young took 18 days to arrive at the Tribunal in Sydney. I can go no further on this point. If one accepts Ms Boyle’s sworn, unchallenged evidence, a delay occurred in the normal carriage of the post and this explains a large part of the delay in Ms Boyle lodging her application for review. There is no evidence that Ms Boyle delayed sending her application for review after 1 February 2016, or that she had any reason to delay doing so.

31. As I understand it, and doing the best with the available evidence, Ms Boyle’s explanation is comprised of four relevant factors. Firstly, she suffers from health conditions, including pain, that affect her mobility and, in all likelihood, her psychological state. Her unchallenged evidence is that she has experienced ongoing stress and difficulty with her memory, keeping track of events, since her father died in October 2015. This may have had some bearing on her response to the first AAT decision, but I am not able to assess whether or to what extent this factor contributed to cause Ms Boyle’s delay in lodging her application for review.

32. Secondly, even though the prescribed time limit commenced on 20 December 2015, the statutory clock did not stop over the Christmas and New Year period, when much of the country slows and attention to administrative requirements may be distracted for a while. By her account, Ms Boyle did not receive the first AAT decision until the first week in January 2016, and she did not decide to seek review of the decision until the second week in January 2016. These considerations do not explain the delay in lodging her application for review. At that time, she was not out of time to lodge an application for review.

33. Thirdly, after discussion with the AAT on or about 14 January 2016, and on her understanding of what she was told (rightly or wrongly), she sought to obtain medical evidence to support her application for review, but the earliest appointment for this purpose was on 1 February 2016. She delayed sending her application for review to the Tribunal until that date. Plainly enough, this caused a delay in lodgement of her application for review until after the prescribed time had elapsed.

34. And lastly, the application Ms Boyle sent on 1 February 2016 was not received by the Tribunal in Sydney until 19 February 2016. The cause of this delay in the carriage of the post is not known. But it, too, contributed to cause delay in Ms Boyle’s application for review being lodged with the Tribunal.

35. To my mind, Ms Boyle’s explanation of the delay in lodging her application for review is consistent with the available evidence (despite gaps in the evidence), and it is cogent. Her failure to lodge the application for review within the prescribed time is attributable in part to her efforts to obtain evidence she understood was required and, in other part, to delays in the postal service that were beyond her control. This is an adequate explanation.

36. I note that, even if I am wrong in my assessment of the reasons for Ms Boyle’s delay in lodging her application for review, the absence of any adequate explanation is not necessarily determinative. As the Full Court said in Comcare v A’Hearn[7] -

    “Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential prerequisite.” [citations omitted]

    [7] (1993) 45 FCR 441.

    Merit and prospects of success

37. Much of the Secretary’s submission goes to the prospective merit of Ms Boyle’s substantive claim for DSP. The Secretary says that it has little prospect of success.

38. It is important to observe immediately that it is not possible or appropriate, presently, to assess the merits of Ms Boyle’s substantive claim for DSP in a detailed way. While an assessment of the relative strength or weakness of her case may be made in a very preliminary way on the available materials, this cannot properly be approached as an exercise of detail, involving the examination or testing of evidence. The cautionary observations of Griffith J in Mentink v Minister for Home Affairs[8] at [37] to [40] and French J (as he then was) at 98 in Seiler’s case provide helpful guidance on this point. His Honour said –

    “… The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it…”

    [8] [2013] FCAFC 113 at [37] to [40].

39. Ms Boyle’s substantive claim is to be assessed under s 94 of the Social Security Act 1991 (the Social Security Act). In essence, this requires the satisfaction of three core tests or criteria: the existence of a physical, psychological or intellectual impairment (s 94(1)(a)), attracting a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Assessment Determination) (s 94(1)(b), and causing her to have a ‘continuing inability to work’ (s 94(1)(c)). Furthermore, unless she is found to have a ‘severe impairment’ (s 94(3B)), attracting 20 points under a single Impairment Table, she will only have a ‘continuing inability to work’ if she meets the requirement for ‘active participation’ in a program of support, having regard to the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination).

40. Having regard to ss 40 and 41 and Schedule 2 of the Administration Act, the period in which Ms Boyle’s substantive claim must be assessed begins on the day she lodged the claim and continues for the period of 13 weeks thereafter: from 22 May 2015 to 21 August 2015.

41. The Secretary argues that Ms Boyle’s claim cannot succeed because she does not meet the ‘active participation’ requirements and she does not have a ‘severe impairment’.

42. Whether or not Ms Boyle had a ‘severe impairment’ is an open question. This is a matter for evaluation of evidence and assessment under relevant Impairment Tables. On the materials before me, it is at least arguable that a number of Impairment Tables may be relevantly applicable - Table 1 concerning functions requiring physical exertion and stamina, Table 3 concerning lower limb functions, and Table 4 concerning spinal functions. If she is found to have a ‘severe impairment’, it is likely that the ‘active participation’ requirements would not prevent her meeting the ‘continuing inability to work’ test under s 94(1)(c) of the Social Security Act.

43. The present evidence, sparse and incomplete as it is, points to the existence of conditions or impairments affecting Ms Boyle’s lumbar spine, thoracic spine, cervical spine and her upper and lower limbs, as well as chronic pain, headaches and depression. It appears that she may have impairments in the form of reduced mobility, restricted range of motion and some difficulty with activities involving physical exertion or stamina. These are matters for evidence that cannot properly or definitively be assessed on the present materials.

1. Whether or not each of these impairments, and the conditions that cause them, have been fully diagnosed, fully treated and fully stabilised for the purposes of the Assessment Determination is a matter for evidence and assessment.

2. That said, there does not appear to be any dispute that Ms Boyle’s spinal and lower limb impairments are capable of assessment under the Impairment Tables – the Secretary relies on materials attached to written submissions, namely:

   (a)a report by Dr Patrick, a surgeon, dated 3 June 2011;

   (b)a Job Capacity Assessment Report by a psychologist, an occupational therapist and a JCA assessor, dated 28 July 2015; and

   (c)a Medical Report for the Disability Support Pension completed by Dr Sazeedul Islam dated 26 May and received by Centrelink on 29 May 2015.

3. There are live questions about the accuracy, relevance and probative value of the contents of these materials. I do not intend to attempt an evaluation of Ms Boyle’s impairments under the Impairment Tables on the basis of these or other materials. And it is not necessary or appropriate to do so.

4. The assessment of Ms Boyle’s ‘permanent’ impairments under the Assessment Determination requires a determination of which Impairment Table is applicable in each case. A proper evaluation of the functional effects of her impairments is required, applying the Rules set out in Part 2 of the Determination. This should be done on the basis of relevant evidence of the extent, nature and functional effect of her impairments during the period in which Ms Boyle’s claim is to be assessed. Evidence of that kind has not yet been placed before the Tribunal and both parties should have the opportunity to do so.

5. As I have said, for present purposes, these issues cannot properly be answered by resort to the contents of the decision that is the subject of Ms Boyle’s substantive application for review. It is quite clear that she contests some or all of the findings and conclusions in that decision. The very nature of merits review under the scheme of the AAT Act stands against this proposition. On review, the Tribunal is required to consider the substantive claim afresh and to make a new decision, having regard to all of the relevant materials placed before it. It is not bound by the findings or conclusions of previous decision makers and the review is not directed to finding fault with earlier decisions – it is the merit of the claim that is under review, not the decisions made by others in respect of it.

6. In summary, even though I do not consider Ms Boyle’s case to be very strong, it is not so weak or flawed to be rendered hopeless or futile. This assessment turns on the present evidence. It is conceivable that other materials may exist that shine a brighter light on her case, one way or the other. It is also possible that additional relevant materials may be obtained by either party to substantiate or to refute aspects of Ms Boyle’s claim, in respect of the diagnosis, treatment, stabilisation and functional effects of impairments during the period in which her claim must be assessed, for example. But I can only make a preliminary assessment of relative merit on the present scant materials.

   Prejudice and other considerations

7. The Secretary has not raised any prejudice that will arise if the extension of time is granted. I think that is correct.

8. It is conceivable that granting additional time to Ms Boyle may be construed as unfair to other DSP claimants who may not have pressed for additional time in which to apply for review of an adverse decision once the prescribed time limit had elapsed.

   Conclusion

9. In all the circumstances, weighing the relevant factors and considerations, I think that it is reasonable to allow a little latitude in respect of the time limit Ms Boyle was under for lodging an application for review of the 16 December 2015 decision. The delay of 23 days, the relative weakness of Ms Boyle’s case and any unfairness to others is outweighed by explanation Ms Boyle has given for the delay and the importance of allowing justice to be served in this case, by the production and testing of evidence necessary to make a proper assessment of Ms Boyle’s substantive claim.

10. In all the circumstances, I am satisfied that it is reasonable to extend the time for Ms Boyle to lodge an application for review of the 16 December 2015 first AAT decision to 19 February 2016.

    Decision

11. Time for Ms Boyle to lodge an application for review of the 16 December 2015 decision is extended to 19 February 2016.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Associate

Dated 24 March 2016

Date of hearing	23 March 2016
Applicant	In person
Solicitor for the Respondent	Mr R O'Donnell, Department of Human Services