Clayton and Secretary, Department of Employment and Workplace Relations and Anor
[2006] AATA 887
•28 September 2006
Administrative
Appeals
Tribunal
REASONS FOR DECISION [2006] AATA 887
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: N2006/1165
GENERAL ADMINISTRATIVE DIVISION ) Re
SALLY ANNE CLAYTON
Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
1st Respondent
MICHAEL HARTNETT
2nd Respondent
DECISION
Tribunal N. Isenberg, Senior Member Date of Oral Decision 28 September 2006
Date of Written Reasons 17 October 2006
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing on 28 September 2006, the Administrative Appeals Tribunal decides to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of a decision of the Social Security Appeals Tribunal dated 28 July 2006.
...................[sgd].....................
N Isenberg
Senior Member
REASONS FOR DECISION
28 September 2006 Ms N. Isenberg, Senior Member 1. Applications for review by this Tribunal are to be lodged within 28 days of the decision complained of. Ms Clayton seeks an extension of time for lodging her application for review.
BACKGROUND
2. Ms Clayton seeks to appeal the decision of the Social Security Appeals Tribunal (SSAT) made on 28 July 2006 but her application was received by the Administrative Appeals Tribunal on 8 September 2006, a total of 14 days late.
3. Under s29(7) of the Administrative Appeals Tribunal Act 1975 the time for filing an application for review may be extended.
4. Centrelink did not oppose Ms Clayton’s application, but Mr Hartnett did.
5. After hearing the submissions of the parties, at the conclusion of the hearing held on 28 September 2006 my decision and the reasons therefor were stated orally. Pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 Mr Hartnett requested the Tribunal to furnish a statement of its reasons.
CONSIDERATION
6. Generally the prescribed 28 day period for time to lodge an application for review is to apply unless there is an acceptable explanation of the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305.
7. All factors relevant to a case have to be weighed up against one another in reaching a decision: per Zizza v FCT (1999) 55 ALD 451. Factors are:
- Merits of the applicant’s case and significant issue to be determined
- Length of delay
- Awareness of rights and whether there is an acceptable reason for the delay
Each of these was considered in turn.
Merits of the applicant’s case and significant issue to be determined
8. I must consider if Ms Clayton‘s case has prospects of success: per Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121.
9. Applications in respect of parenting payments are rarely straightforward. This is especially so where, in the interests of the child, very even arrangements are made in relation to the care of the child. The present matter is a complex one and there is no clear formula that can be applied in reaching a decision in relation to entitlement to parenting payment. From the cases canvassed by the SSAT it is clear that very detailed considerations are required, especially in relation to the relative financial position of each parent and also the work capacity of each.
10. Ms Clayton’s case is at least an arguable one, so far as can be gleaned from the SSAT decision.
11. I note that that decision had set aside the decision of the Authorised Review Officer, who, from the reference in the SSAT, may have decided to adopt a simplistic approach in reliance on the Centrelink guidelines. There may be issues in relation to the appropriateness of the application of the Centrelink guidelines.
12. Further, it may be that the correct interpretation of s500E of the Social Security Act 1991 relates to the prevention of double payments in respect of a child, such that parenting payment is only payable to one parent at a time, but with no specification as to the duration of the care.
13. I should also note that it is not the task of this Tribunal in this interlocutory application to come to a final view in relation to the merits of the substantive issue and the correctness and validity of the decision of the Social Security Appeals Tribunal, but merely to consider if the Applicant’s case has some merit.
Length of delay and whether there is an acceptable reason for the delay
14. As to delay, I asked Ms Clayton what she had done on receipt of the SSAT decision.
15. She said she was initially confused by what was meant by the decision being ‘set aside’ and that it was to sent back (to Centrelink) to be ‘reassessed’. She sought clarification from friends and family, who were equally unsure. I accept Ms Clayton’s evidence that she thought that the matter would be sent back to Centrelink for a new decision, and not just a re-calculation. In hindsight, it would have been wise for Ms Clayton to have contacted Centrelink immediately on receipt of the decision, especially if she did not understand it.
16. Mr Hartnett complained that he had been obliged, throughout the disputes in which he and Ms Clayton are involved, to comply with timetables and considers it unfair if Ms Clayton does not now have to comply with a time limit. It should be noted that the SSAT considered Mr Hartnett had lodged his appeal to that Tribunal outside the time limit required there. I do not consider his concerns demonstrate that he is prejudiced by the delay.
17. I note that Ms Clayton’s application for review is only 14 days out of time and that, when she ascertained the ramifications of the decision, re-acted promptly in filing an application for review.
Awareness of rights
18. Ms Clayton did not deny receipt of the SSAT decision but contends she only became aware of the meaning and ramifications of the decision in a phone conversation with Centrelink on 4 September 2006, at which time she was informed that her parenting payments were to be withdrawn. She said she was ‘shocked’ by this information.
19. Upon realising the meaning of the SSAT’s decision Ms Clayton acted promptly and applied to the Tribunal on 8 September 2006.
Conclusion
20. Having regard to my findings in relation to the merits of the application for review, the reason for the delay and the short delay, and also noting consent from the first Respondent, I have decided to grant an extension of time.
DECISION
21. The Administrative Appeals Tribunal decides to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of the decision of the Social Security Appeals Tribunal to 8 September 2006.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: [Sgd]
Associate
Date of Hearing 28 September 2006
Date of Oral Decision 28 September 2006
Representative for the Applicant Sally Anne Clayton, Self-RepresentedAdvocate for the 1st Respondent Pankaj Sharma, Centrelink Legal Services Branch
Representative for the 2nd Respondent Michael Hartnett, Self-Represented
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