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

[2018] AATA 2242

BWNY and Secretary, Department of Social Services (Social services second review) [2018] AATA 2242 (14 March 2018)

Division:GENERAL DIVISION

File Number:           2018/0575

Re:BWNY

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:14 March 2018

Date of written reasons:        12 July 2018

Place:Sydney

The application for an extension of time is refused.

....................[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 – widow allowance debt – whether there are any grounds for writing off or waiving all or part of the debt – special circumstances – debt repaid in full – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) ss 1068, 1223, 1236, 1237A, 1237AAD

CASES

Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222

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

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

Groth v Secretary, Department of Social Security [1995] FCA 1708

WRITTEN REASONS FOR ORAL DECISION

Dr L Bygrave, Member

12 July 2018

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 14 March 2018. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.

   INTRODUCTION

2. On 7 February 2018, the Applicant lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made by the Social Security Appeals Tribunal (SSAT) on 4 July 2014.

3. The SSAT decision dated 4 July 2014 affirmed a decision made by the Department of Human Services (Centrelink) to raise and recover a widow allowance debt from the Applicant in the amount of $16,922.16 for the period from 8 March 2010 to 23 November 2012.

4. The Secretary opposes the extension of time sought.

   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 the decision is given to the 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 (1984) 3 FCR 344 at 348 and 349 as follows:

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

   (d)whether the respondent or the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application;

   (f)considerations “of fairness as between the applicant and other persons” in a similar position.

8. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.

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.

   REASONS FOR DELAY

10. The Applicant has sought review of the decision made by the SSAT on 4 July 2014, which is more than three and a half years after the 28 day limit.

11. In her extension of time application, the Applicant stated that she wanted to make the application sooner but was “told something very threatening at the time” and was “suffering from ill-health”.

12. At the Tribunal hearing, the Applicant said she has experienced difficult circumstances over the last three and a half years. These circumstances included mental health concerns and issues with medication, attending hospital in 2014, involvement in a car accident, and suffering poor physical and emotional health. She said she moved home approximately 12 times from 2014 until 2017.

13. While I accept that the Applicant’s circumstances suggest she did not “rest on her rights”, I find that a period of three and a half years is an extensive delay to seek a review and the Secretary would have expected the matter to have finally concluded.

14. I am satisfied that this principle weighs against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

15. It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I also have regard to Chouman and Secretary, Department of Education, Employment and Workplace Relations, in which the Tribunal stated:

    ... to grant an extension of time in this matter would be unfair to other applicants in similar situations who have not submitted late applications.

    The grant of an extension of time in this matter would set an unwelcome example and cause inconvenience to Centrelink and the Tribunal in having to deal with large numbers of such applications. There is a general public interest in ensuring finality in decision-making.[1]

    [1] [2009] AATA 222, paras [30-31].

16. I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to the Applicant’s application. As the delay is more than three and a half years, I am satisfied that there would be prejudice to the Secretary and the general public if the extension of time is granted. This factor weighs against the Applicant.

    MERITS OF SUBSTANTIVE MATTER

17. I am required to consider the merits of the substantive application in deciding whether to grant the extension of time. The substantive matter is whether, on the balance of the evidence before the Tribunal:

    ·the Applicant has a widow allowance debt in the amount of $16,922.16 for the period from 8 March 2010 to 23 November 2012; and

    ·if so, there are any grounds for waiving all or part of the debt. 

    Relevant legislation and consideration of the evidence

18. The rate of widow allowance is calculated in accordance with the rate calculator in section 1068 of the Social Security Act 1991 (Cth) (the Act) and is affected by a person’s circumstances, including their income.

19. The Secretary has submitted that, based on Centrelink’s information about the Applicant’s income and the rate of her widow allowance payments, the Applicant was overpaid widow allowance in the amount of $15,385.51 for the period from 8 March 2010 to 23 November 2012. Centrelink additionally applied a 10 per cent recovery fee of $1,536.65 and the Applicant was asked to repay a total widow allowance debt in the amount of $16,922.16.

20. There was some disagreement at the hearing between the Applicant and the Secretary’s representative as to whether the Applicant reported her income to Centrelink during the period from 8 March 2010 to 23 November 2012, or whether Centrelink sought information about the Applicant’s earnings from her employer. There did not seem to be any dispute that the Applicant was overpaid widow allowance.

21. I am satisfied that the Applicant was overpaid widow allowance and that this amount is a debt to the Commonwealth in accordance with subsection 1223(1) of the Act.

    Are there any grounds for writing off or waiving all or part of the debt?

22. Section 1236 of the Act provides the Secretary may write off a debt in particular circumstances such as where it is irrecoverable at law, or the debtor has no capacity to repay the debt or their whereabouts are unknown, or it is not cost effective for the Commonwealth to take action to recover the debt. There is no evidence before the Tribunal to suggest that any of these conditions are met and I am not satisfied that the debt should be written off.

23. Pursuant to s 1237A of the Act, the Secretary must waive the right to recover all or part of a debt if it is “attributable solely to an administrative error made by the Commonwealth”. As there is no evidence before the Tribunal of sole administrative error by the Commonwealth in relation to this debt, I am not satisfied the debt should be waived due to administrative error.

24. Section 1237AAD of the Act provides the Secretary may waive the right to recover all or part of a debt in special circumstances, other than financial hardship alone. Relevantly, in Groth v Secretary, Department of Social Security [1995] FCA 1708 the Federal Court said:

    … The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss… it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied... [emphasis added].[2]

    [2] [1995] FCA 1708.

25. At the Tribunal hearing, the Applicant gave oral evidence about the difficulties she has experienced since her mother passed away in 2012. In relation to her current circumstances, the Applicant said that she has accommodation, receives widow allowance and owns a car. She has required assistance from charities to pay her utilities bills and has had difficulties finding paid employment due to mental and general health problems.

26. Most relevant to this consideration, however, is that the Secretary’s representative advised the Tribunal that the Applicant has already repaid the debt in full.

27. I therefore find that there are no prospects of success of the substantive application.

    CONCLUSION

28. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

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

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 12 July 2018

Date(s) of hearing:	14 March 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services