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

[2015] AATA 831

Buttriss and Secretary, Department of Social Services (Social services second review) [2015] AATA 831 (22 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/4799
Re	Kane Buttriss
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	22 October 2015
Date of written reasons	28 October 2015
Place	Canberra

The applicant’s application for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

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

Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – extension of time – application for review lodged outside prescribed period – apparent lack of merit of application for review – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) s 94(1)

Cases

Brown v Commissioner of Taxation (1999) 99 ATC 4516
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

Secondary Materials

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

REASONS FOR DECISION

Deputy President Gary Humphries

28 October 2015

1. In March 2014, Mr Kane Buttriss was involved in an horrific collision between a motorcycle and a horse. His father – the rider of the motorcycle – and the horse were killed, and Mr Buttriss – the pillion passenger – was severely injured, necessitating him spending some weeks in hospital. He sustained many injuries, the most serious of which was a traumatic brain injury.

2. Mr Buttriss lodged a claim for Disability Support Pension on 8 May 2014. That claim was rejected by Centrelink on the basis that he did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).  Mr Buttriss appealed this rejection to the Tribunal’s Social Services and Child Support Division, which conducted a first review and on 22 July 2015 affirmed the decision to reject his claim. The Tribunal advised him of this decision by letter dated 30 July 2015, which he received on 6 August 2015.

3. Under s 29(2) of the Administrative Appeals Tribunal Act 1975, an appeal to the General Division of the Tribunal against this decision should have been made within 28 days of 6 August 2015. In fact, Mr Buttriss lodged an application for review with the Tribunal on 16 September 2015, 13 days after the legislative deadline.

4. The matter before the Tribunal in this instance was whether Mr Buttriss should be granted an extension of time for his application for review to be accepted.

   General Principles

5. Section 29(7) of the AAT Act permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal … if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

6. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Federal Court laid out factors which should be considered judicially in applications for extensions of time. Wilcox J observed that the ‘“prescribed period” of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained…”’

7. The factors which appear to be most relevant in the present instance are:

   ·explanation for the delay;

   ·length of delay;

   ·prospects of success; and

   ·alternative avenues of relief.

   Explanation for the delay and length of delay

8. It is to be expected that an applicant for an extension of time would normally provide an acceptable explanation for the delay.[1]

   [1] Comcare v A’Hearn (1993) 45 FCR 441, 444.

9. The length of delay involved is also a relevant consideration.  The “brevity of the extension sought does not, however, lead automatically to an order extending the time”.[2]

   [2] Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 [16].

10. Mr Buttriss explained during the hearing that he had delayed lodging his application for review because he was waiting for a medical appointment in Sydney. This fact does not of itself provide a reason why he could not have lodged an application within the prescribed time, but does reflect a common misapprehension among applicants that evidence must be gathered before an application for review is made.

11. In the present instance, and taking into account that Mr Buttriss has suffered a brain injury from which he is still recovering, I regard the explanation as acceptable and the delay of 13 days as not excessive.

    Prospects of success

12. Before a late application can be admitted for the Tribunal’s consideration, it is relevant to consider the merits of the proposed appeal.[3]  When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate.[4] Conversely, there would be little point in opening the opportunity to hear an application for review which had very poor prospects of substantive success.

    [3] Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J.

    [4] Brown v Commissioner of Taxation (1999) 99 ATC 4516 [29], [38] per Hill J.

13. Here, the Secretary contended that the prospects of success of Mr Buttriss’s substantive application are limited. To succeed substantively, he would need to be medically qualified for DSP under s 94(1) of the Act. This section, together with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, prescriptively imposes several criteria for eligibility for the DSP, such that the absence of even one criterion may be fatal to a claim.

14. One of the essential criteria is that the medical conditions on which an application are based must be “permanent”, i.e. they must be fully diagnosed, treated, stabilised and likely to persist for at least 2 years at the time of his claim for DSP or within 13 weeks of that date (ending 7 August 2014) (the relevant period).

15. There were three medical conditions on which Mr Buttriss based his claim for DSP: his brain injury, his shoulder and upper arm disorder, and his mental condition.

16. With respect to his traumatic brain injury, Mr Buttriss conceded that there had been improvement in his condition between when he lodged his DSP claim and the hearing. The Tribunal also had before it the medical report of Dr Aggour, who had treated Mr Buttriss in the hospital after his accident. Her view, as at 16 April 2014, was that Mr Buttriss’s condition would significantly improve in the following 24 months. As far as this condition is concerned, it appears not to have been fully diagnosed, treated and stabilised during the relevant period.

17. With regard to Mr Buttriss’s shoulder and upper arm disorder, the medical report of Dr Lawson (date illegible) indicates that his ability to function was expected to “slightly improve” within the next 2 years. Mr Buttriss indicated that Dr Lawson may now have a different view, and referred to Dr Lawson’s letter of 13 October 2014. That letter says, in part, that Mr Buttriss “has no upper extremity function on the left side, and if any returns it is likely to be minimal”. The Tribunal at first review indicated in its decision that an improvement which Dr Lawson had hoped for in the left arm had not eventuated, but that this did not satisfy the Tribunal that the condition could have been considered to be fully treated and stabilised at the time of the claim in May 2014.

18. No other direct evidence was available to the Tribunal with regard to Dr Lawson’s current view, but what was available suggested that, as at the relevant period, Dr Lawson did not regard the condition as being fully stabilised. It may be, as was suggested to the Tribunal, that Dr Lawson is now of the view that the condition has stabilised, but this subsequent development – if that is the case – does not alter the position during the relevant period.

19. There was some confusion in the hearing as to how precisely Mr Buttriss’s mental condition, forming a basis for his DSP claim, was described. Dr Aggour’s medical report refers to “depression”, but the Tribunal at first review also considered whether he suffered from post-traumatic stress disorder (PTSD). At the time of the Tribunal’s first review, neither of these conditions had been diagnosed by a psychiatrist or clinical psychologist, as required by the Impairment Tables. That appears still to be the situation with respect to depression, but the Tribunal had before it a report by Nicki Savage, a clinical psychologist, dated 17 August 2015. This appears to offer a diagnosis of PTSD, but is based on an assessment undertaken on 12 August 2015, more than a year outside the relevant period. Again, it is difficult to see how it could be said that Mr Buttriss’s condition – here his mental condition – has been fully diagnosed, treated and stabilised.

20. Based on these conclusions, Mr Buttriss would attract a rating under the Impairment Tables of zero. Even if he were to attract a total of 20 points for two or more of his conditions, it seems almost certain that he would not satisfy s 94(1)(c) of the Act as he does not have a continuing inability to work. He conceded that he had participated in a Program of Support for 15 months during the 36 months prior to the date of his claim. To qualify, he is required to have participated for a minimum of 18 months.

21. The Tribunal also notes that Mr Buttriss undertook a Job Capacity Assessment in May 2014 which determined that he had a work capacity within two years of 15-22 hours per week. As such, he could not be considered to have a continuing inability to work during the relevant period.

    Alternative avenues of relief

22. The Tribunal is also mindful that, in declining to grant an extension of time to lodge an application for review, Mr Buttriss is not precluded from lodging a fresh claim for DSP with Centrelink; in such circumstances his eligibility for this pension would be considered afresh.

23. It appears that Mr Buttriss’s circumstances may have changed since the expiry of the relevant period. In particular, it appears that the conditions on which a DSP may be grounded – or at least some of them – have now been fully diagnosed, treated and stabilised.

24. Pursuing this option would appear to be the preferable course of action to hearing an appeal against the first review by the Tribunal when that appeal has very poor prospects of success.

    Conclusion

25. For these reasons, this application for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate

Dated 28 October 2015

Date(s) of hearing	22 October 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services