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

[2019] AATA 1865

Burdack and Secretary, Department of Social Services (Social services second review) [2019] AATA 1865 (12 July 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2984

Re:Warren Burdack

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D O'Donovan

Date:12 July 2019

Place:Canberra

The application for an extension of time is dismissed on the basis that it is not required as Tribunal Application 2019/2984 was made within the prescribed time.

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Senior Member D O'Donovan

Catchwords

SOCIAL SECURITY – disability support pension – application for second tier review to the general division of the Tribunal - interlocutory request for an extension of time - prescribed time for making application – faxing of application to Tribunal – evidence of receipt of application by Tribunal - whether the applicant made an application within the prescribed time

Legislation

Administrative Appeals Tribunal Act 1975 s 29
Social Security Act 1991 s 94.

Social Security (Administration) Act 1999 ss 4(1) and 4(2), Schedule 2, Part 2

REASONS FOR DECISION

Senior Member D O'Donovan

12 July 2019

INTRODUCTION

1. On 22 February 2018, Mr Burdack applied for a disability support pension. His application was rejected by a delegate of the Secretary, Department of Social Services on 16 March 2018. Mr Burdack lodged an application for first-tier review with the Administrative Appeals Tribunal (Tribunal) on 19 November 2018. The matter was heard on 1 April 2019 and a written decision was handed down on the same day rejecting the application.

2. Mr Burdack applied for a second-tier review by the Tribunal.

3. Despite Mr Burdack’s efforts (which are discussed further below), his application for second-tier review was not received in the Canberra Registry of the Tribunal until 28 May 2019. The application noted that the applicant had received the tier-one decision on 15 April 2019. Consequently, the applicant was advised that he needed to seek an extension of time to have his application considered as more than 28 days had elapsed between the date upon which the applicant was given the Tribunal’s first-tier decision and the receipt of his application.[1]

   [1] See Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).

4. Mr Burdack submitted an application for an extension of time on 2 June 2019 and submitted further evidence in support of his applications on 12 June 2019.

5. The respondent filed submissions opposing the extension of time on 3 July 2019 emphasising Mr Burdack’s limited prospects of success if an extension were granted given the current state of the evidence but also covering other aspects of the Tribunal’s discretion to extend the time for making an application.

6. The matter was listed before me for oral argument on 10 July 2019.

   IS AN EXTENSION OF TIME REQUIRED

7. At the commencement of the hearing I raised with the parties the possibility that Mr Burdack had in fact lodged his application within time.

8. It is not disputed that Mr Burdack was given the tier-one decision on 15 April 2019. Accordingly he had until 14 May 2019 to lodge an application for review without requiring an extension of time.

9. The evidence before me establishes that, on 9 May 2019, Mr Burdack attended Wagga Wagga Retail Post Shop with an application for second-tier review which he wanted dispatched to the Tribunal. He paid $10.00 for Australia Post to provide a ‘Fax direct’ service and provided in writing to Australia Post the correct fax number for the Tribunal’s Sydney Registry. On Mr Burdack’s account, he gave the person behind the counter his application for sending and the person told him it had gone through. Mr Burdack has provided the Tribunal with a ‘Facsimile Transmittal Sheet’ which is stamped with an Australia Post stamp and is dated 9 May 2019.

10. Based on this evidence, and notwithstanding that the application has not been located by the Sydney Registry of the Tribunal, I am satisfied that Mr Burdack did lodge his application with the Tribunal within the statutory time frame. Consequently, he does not require an extension of time in order to proceed with his application.

    MERITS OF EXTENSION OF TIME APPLICATION

11. Against the possibility that this finding may be challenged, I have given consideration to the merits of the extension of time application. If the extension of time had been required for the application to proceed I would not have granted it. The basis on which Mr Burdack wishes to have the Tribunal undertake second-tier review is that his cervical spine and lumbar spine condition has deteriorated since the medical evidence considered in the first-tier review was obtained. Such arguments, however, are irrelevant to the issues raised on a second-tier review of an application originally submitted on 22 February 2018. In considering whether an applicant meets the criteria for a disability support pension, the Tribunal must assess Mr Burdack’s medical conditions as at the date of his original application or within 13 weeks of that time.[2] In other words, in the time period from 22 February 2018 to 24 May 2018.

    [2] Social Security (Administration) Act 1999 ss 4(1) and 4(2), Schedule 2, Part 2

12. If Mr Burdack can establish a further deterioration in his condition since the middle of 2018, that evidence would provide a foundation for a fresh claim, but would not be a basis for overturning the tier-one decision.

13. Further, on the evidence currently before the Tribunal, (which appears very unlikely to change given its nature and its source) Mr Burdack faces barriers to establishing that, in relation to his application submitted on 22 February 2018, he met the continuing inability to work requirements under section 94 of the Social Security Act 1991. In particular, Mr Burdack cannot establish that he has actively participated with a provider in a program of support for at least 18 months within the three years prior to the date of his 22 February 2018 application. There is also nothing to suggest that Mr Burdack can make out any other statutory bases for establishing a continuing inability to work.

14. In these circumstances, it would not be reasonable in all the circumstances to extend the time for the making of an application.  The prospect of Mr Burdack obtaining a different result on tier 2 review is remote and it would be likely to distract him from taking steps to obtain material in support of his fresh application for the disability support pension, which he has lodged with Centrelink.

    DECISION

15. At this point in time my findings at [11] to [14] are only relevant if it is necessary for me to consider Mr Burdack’s extension of time application. Given my finding that Mr Burdack did lodge his application within time, no extension of time is necessary.

16. The appropriate order to make is that the application for an extension of time is dismissed on the basis that no extension of time is required.

17. Accordingly, Mr Burdack is free to proceed with his application.        

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate

Dated: 12 July 2019

Date(s) of hearing: 

10 July 2019

Applicant:

Representative for the Applicant:

Solicitors for Respondent:

Mr Warren Burdack

In person

Ms Jasmine Forsyth, Department of Social Services Legal Services Division