CONFIDENTIAL and EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL

[2009] AATA 851

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 851

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4074

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CONFIDENTIAL

Applicant

And EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date5 November 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in its stead grants the applicant an extension of time to 17 July 2009 in which to lodge an appeal with the Social Security Appeals Tribunal pursuant to s 92 of the Child Support (Registration and Collection) Act 1988.

(sgd) B H Pascoe

Senior Member

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CHILD SUPPORT - extension of time in which to lodge appeal with Social Security Appeals Tribunal

Child Support (Registration and Collection) Act 1988 ss 90, 92

Social Security Act 1991

REASONS FOR DECISION

5 November 2009 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) refusing an extension of time in which the applicant could lodge an application to that Tribunal.

2.      At the hearing, the applicant was unrepresented.  The SSAT had previously advised that it did not seek to make submissions at the hearing and there was no appearance.

3. The applicant is a parent liable to pay child support to the mother of the child. On 22 January 2009, the Child Support Agency (CSA) made a decision to assess the income of the applicant at $92,812.00 for the period 1 July 2008 to 2 November 2010 and increased his child support liability from $1,102.00 per annum to $11,910.00 per annum. The applicant’s objection to this decision was disallowed on 25 March 2009. His application to the SSAT for review of that decision was lodged on 17 July 2009, some 77 days beyond the 28 days provided by s 90 of the Child Support (Registration and Collection) Act 1988 (the Act).  After a hearing to consider an application for extension of time in which to lodge such application, the SSAT decided on 20 August 2009 to refuse an extension of time.

4.      Before the SSAT and this Tribunal the applicant said that after receipt of the objection decision he had engaged a solicitor experienced in child support matters.  He said that the solicitor sought to negotiate with CSA without success and then advised the applicant to make an application to the Family Court rather than the SSAT.  It was his understanding that this was with the expectation of having CSA agree to discuss a settlement.  He said that his lawyer was surprised that, instead, CSA funded legal defence before the Court.  The advice of the lawyer was that this was unusual and that the applicant should withdraw his application.  Immediately on such withdrawal he sought leave to make an application to the SSAT.  The applicant insisted that, at all times since January 2009, he has consistently sought to challenge the assessment which has resulted in a debt which he has no capacity to pay.

5.      The applicant said that he has suffered from depression for many years and is now on a disability support pension under the Social Security Act 1991.  He maintains that his only asset is his house and the decision could result in him losing that house.

6.      The SSAT found that the applicant had all the relevant information before him as to his appeal rights and chose to take the course of making an application to the Court rather than the SSAT.  The withdrawal of Court proceedings and subsequently seeking administrative review was not accepted by the SSAT as a satisfactory reason for the granting of an extension of time.  The SSAT concluded, also, that there is a public expectation of administrative functions to be performed quickly, fairly and in a more cost effective manner and that there would be prejudice to the general public if his application was granted.

7.      It has been well established that, in considering the exercise of a discretion to allow an extension of time beyond the statutory limits, a decision maker should consider:

-whether there is an acceptable reason for the delay;

-whether there was any action by an applicant to make the decision maker aware of an intention to contest the decision;

-whether an extension of time would prejudice other party or parties to the dispute;

-whether there may be unfairness in granting an extension of time in comparison with other persons in a similar position;

-whether there is merit in the substantive application; and

-whether it is proper to grant the extension of time.

8.      In relation to the applicant’s reasons for the delay, these have been primarily directed to the advice of his lawyer and his recommendation, subsequently withdrawn, to proceed to Court rather than the SSAT.  The applicant sought, at least in part, to attribute his ready reliance on the advice to his medical condition.  He maintained that he lodged his application with the SSAT immediately after the Court action was withdrawn.

9.      The SSAT found there would be no prejudice to the other party if the extension of time was granted given the substantive issue related to the applicant’s income and financial situation.  I agree with this finding.  Further, I am unable to see any prejudice to CSA if it is granted.  The documents provided to this Tribunal show that the applicant has been consistent in seeking to contest the substantive decision and there is no suggestion of him not making it clear at all times since January 2009.

10.     It is not part of the process of considering whether an extension of time should be granted to consider in any depth the merits of the substantive issue.  However, it is noted that the issue was a Registrar Initiated Change of Assessment based on investigation into a company of which the applicant is the registered shareholder.  Consequently, a substantial part of the assessed income is income of the company and deemed to be income of the applicant.  In such cases there is merit in allowing a process for an independent examination of the arguments and evidence of each party.  The applicant maintains that, without the extension of time, such a process has not and will not take place.  Whilst he may be able to seek a new assessment it is unlikely to have any effect on a growing debt for the past assessed liability which he has not paid.

11.     Whilst having concerns at the reasons for delay provided by the applicant and a view that it is not generally in the public interest to allow a person to choose a course of action and, when that fails, to then retrospectively seek an alternative course, I am of the view that the total circumstances of this case, on balance, lead to the conclusion that an extension of time should be granted.  It is relevant to this view that the applicant appeared before this Tribunal in person rather than by telephone, as at the SSAT, and could be observed in dealing with questions put by the Tribunal.

12.     It follows from the foregoing that the decision under review should be set aside and in its stead the applicant is to be granted an extension of time until 17 July 2009 to lodge an appeal to the SSAT.

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of  

Mr B H Pascoe, Senior Member

Signed:          Dianne Eva
  Clerk

Date of Hearing  28 October 2009
Date of Decision  5 November 2009
Solicitor for the Applicant             Self-represented
Solicitor for the Respondent        No appearance
Solicitor for Other Party               No appearance