CONFIDENTIAL and PRINCIPAL MEMBER, SOCIAL SECURITY APPEALS TRIBUNAL
[2014] AATA 755
•17 October 2014
[2014] AATA 755
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2612
Re
CONFIDENTIAL
APPLICANT
And
PRINCIPAL MEMBER, SOCIAL SECURITY APPEALS TRIBUNAL
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 17 October 2014 Place Brisbane The Tribunal sets aside the decision of the Respondent dated 23 March 2012 which refused the Applicant an extension of time to appeal against the Child Support Agency decision dated 2 September 2011, and substitutes its decision that the Respondent is to treat the objection lodged on 14 April 2012 as having been lodged within the allowed time.
............................[Sgd]............................................
Dr M Denovan, 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).
CATCHWORDS
SOCIAL SECURITY – Child Support Agency – CSA – Application for extension of time – Reasons for delay outside of Applicant’s control – Decision set aside and substituted.
LEGISLATION
Administrative Appeals Act 1975 (Cth), s 29
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth) ss 90, 91, 92
Child Support (Registration and Collection) Regulations 1988 (Cth), reg. 14Electronic Transactions Act 1999 (Cth) ss 5, 14A
CASES
Besson v Repatriation Commission [2014] FCA 881
Gallo v Dawson (1990) 64 ALJR 458
Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297
Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Enviroment [1984] FCA 176
Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
SRYYYY and Child Support Registrar [2001] AATA 687
Vagulans and Thales Australia Limited [2014] AATA 173Yong v Yong (Extension of Time) [2009] SSATACSA 17
REASONS FOR DECISION
Dr M Denovan, Member
17 October 2014
INTRODUCTION
The Applicant objected to a decision of the Child Support Agency (“CSA”) dated
2 September 2011. He failed to lodge the application for review within the 28 days required in Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”). The Applicant applied to the Social Security Appeals Tribunal (“SSAT”) for an extension of time to lodge his application for review. That application was refused.
The Applicant applied to this Tribunal for review of the SSAT decision which refused an extension of time. The SSAT has declined the opportunity to be a party to these proceedings. The Applicant’s former wife was notified of this application in a letter from the Tribunal dated 23 May 2014. No response was received within the requisite 14 day period to reply, and therefore it was assumed that the Applicant’s former wife did not want to be added as a party to these proceedings.
I must decide whether the Applicant should be granted an extension of time to apply for review of the decision of the CSA, dated 2 September 2011.
BACKGROUND
The Applicant has two children form his former marriage. Those children reside with their mother and the Applicant is liable to pay child support to his former wife.
On 2 September 2011 a decision was made which increased the Applicant’s child support liability significantly. He received notification of the decision by telephone on the same day.
The Applicant had consented to the receipt of documents by electronic means. The decision of 2 September 2011 was served to the Applicant by means of electronic mail (“email”), on the same day.
The Applicant applied to the SSAT for review of the decision on 14 February 2012. The application was not accepted as it was out of time. The Applicant lodged an application for an extension of time in which to make his application for review on
28 February 2012.
On 23 March 2012 the SSAT refused the application for extension of time.
The Applicant applied to this Tribunal for review of that decision on 20 May 2014.
Deputy President Hack granted an extension of time to apply to this Tribunal on
12 June 2014.
This matter was heard on 5 September 2014. Following the hearing, I issued directions, the effect of which the Applicant was given one week to produce copies of documents he said would support his claim that poor legal advice contributed significantly to his delay in applying for review of the CSA decision.
The Applicant complied with the directions, and as a result the following submissions were taken into consideration:
·Document A: Affidavit of the Applicant dated 7 August 2013;
·Document B: Annexure FAW 1 – application to Federal Magistrates Court to appeal the decision of the SSAT dated 23 March 2012;
·Document C: Annexure FAW 2 – email to the Applicant’s former wife from Rebecca Durkin (“Ms Durkin”) dated 23 February 2012;
·Document D: Annexure FAW 3 – letter to Applicant from relationships Australia dated 29 March 2012;
·Document E: Email to the Applicant from his legal representative, Ms Durkin dated 23 February 2012;
·
Document F: Email from Applicant to his legal representative dated
9 February 2012;
·Document G: Email from Applicant to Ms Durkin dated 22 February 2012;
·Document H: Email from Applicant to Ms Durkin with two attachments (relationships Australia intake acknowledgement, and SSAT appeal refusal) dated 10 April 2012;
·
Document I: Email correspondence between Applicant and Ms Durkin dated
30 August 2012 to 4 September 2012;
·
Document J: Email correspondence between Ms Durkin and Applicant dated
11 December 2012 to 13 December 2012;
·
Document K: Email from Applicant to Andrew Wiltshire dated
27 November 2013; and
·Document L: Initiating application for matter in Federal Magistrates Court and copies of orders sought.
LEGISLATION
Pursuant to s 90 of the Act, applications for review need to be made within 28 days, starting from the day on which the decision was served.
Regulation 14 of the Child Support (Registration and Collection) Regulations 1988 (Cth) allows for documents or communication to be served electronically, provided the person has consented to receipt of communication in that fashion.
Section 14A of the Electronic Transactions Act 1999 (Cth) provides the time of receipt of an electronic communication is the time when it is capable of being received by the addressee. Section 5 of this Act defines “addressee” to mean “a person who is intended by the originator to receive the electronic communication”.
Application to the SSAT for extension of time must be lodged in writing and state the reasons the application was not made within 28 days.[1]
[1] Section 91 and ss 90(1) of the Act.
The SSAT has power to grant extension of time, pursuant to s 92 of the Act.
Pursuant to section 29(2) of the Administrative Appeals Act 1975 (Cth) applications for review of SSAT decisions to the Administrative Appeals Tribunal (“AAT”) must be made within 28 days after a person is given the reviewable decision. The AAT has the power to grant extension of time to make an application for review, if it is satisfied that it is reasonable under all the circumstances to do so.[2]
HISTORY OF DECISION THE APPLICANT REQUESTED TO BE REVIEWED
[2] Administrative Appeals Act 1975 (Cth), ss 29(7).
Application for change in assessment lodged by former wife on 28 February 2011
On 28 February 2011, the Applicant’s former wife lodged an application for a change in the amount of child support assessment. At the time of her application, the Applicant was assessed as liable to pay an annual rate of $14,102 for the period 1 November 2010 to
31 January 2012. The assessment was based on a provisional income of $130, 347 for the Applicant and adjusted taxable income of $57,638 for his former wife.
The CSA uses a complex formula, based on the joint income of the parents and the amount of care (usually calculated with reference to the number of night’s care each parent has), to determine the appropriate annual child support liability.
Under certain circumstances the CSA recognises that a departure from the usual formula is warranted. Parents can apply for a change in the amount of child support liability on the basis of one or more of these ten reasons, which are referred to as reasons one to ten.
The application of the Applicant’s former wife for change in the rate of assessment relied on two reasons. Firstly, she claimed the costs of maintaining the children were significantly affected because they are being educated at private primary school, in keeping with the agreement made by the parents prior to separation (reason three). She also claimed that the Applicant’s earning capacity was higher than the annual income used by CSA to calculate his child support liability (reason eight). The Applicant cross claimed, arguing that his former wife’s financial resources were higher than her taxable income suggests (reason eight).
Original Decision 20 May 2011
On 20 May 2011, a delegate of the CSA determined that reason three was established, as the evidence was that both parents intended for the children to be educated privately, commencing in preschool. In relation to reason eight, the delegate noted subsequent to the application for increase in child support lodged by the wife, the Applicant had lodged a tax return which showed an increase in earnings, and his CSA liability had already been increased. In relation to the Applicant’s cross claim, the delegate accepted reason eight was established, because the mortgage payments of the Applicant’s former wife were being made by her father. The delegate however did not see fit to adjust her taxable income to reflect the financial benefit she receives from this arrangement. The Applicant’s liability, which had been increased to $17,350 following the lodgement of his recent tax return, was further increased to reflect his responsibility for 50% of the school fees, as follows:
·By $725 a month from 1 May 2011 to 31 December 2011; and
·
By $11,600 per year (being $966.67 per month) from 1 January 2012 to
31 December 2012.
Objection lodged by Applicant
On 2 July 2011 the Applicant objected to that decision. The basis of his objection was as follows. Although the decision maker had recognised that his former wife has financial benefits available to her through her father in addition to her declared taxable income, her adjustable taxable income was not altered. The Applicant accepted that, prior to separation, it was the intention of both parents to send the children to a private school. He contends the intention changed, as post separation both parties agreed they could not afford to pay private school fees, and the Applicant’s former father in law had agreed to pay for the school fees.
In reply to the objection, the Applicant’s former wife provided several letters form the children’s school, Somerville House, and statement of account addressed to both parents relating to the enrolment of one of the children in prep school in 2010.
The Applicant claims the payments to Somerville House were made to hold the place for the child, and the decision as to whether the parents could afford to send the children there was to be deferred. He provided a number of emails that discussed the matter.
CSA Review of objection – 2 September 2011
After reviewing all the evidence, the CSA delegate was satisfied the former wife had provided evidence to establish a mutual intention prior to separation, and the Applicant had not provided evidence that there had been a change to the parent’s joint intention. She stated in her decision that there was no evidence that the fees were being paid for by the Applicant’s former father in law, however she opined that even if that were the case, it did not excuse the Applicant from his responsibilities to contribute to the fees.
The delegate noted the Applicant’s adjusted taxable income for 2010 was $254,295, and that subsequent to the decision dated 20 May 2011, the Applicant had lodged income estimates for the financial years 2011, and 2012, being $196,559 and $92,427 respectively. The Applicant provided pay slips which indicated his wage was limited to approximately $100,000 per annum, which did not include bonuses. The Applicant was assessed on an income estimate of $92,427 from 1 July 2011. The delegate of the CSA found that his former wife had not established that the Applicant had a higher earning capacity than that upon which his child support liability had been assessed.
The delegate noted that the Applicant claims that his former wife receives financial benefits from her father, who is also her employer; her father pays her mortgage, and the children’s school fees; and her father provides and maintains a late model Mercedes for her use. The Applicant’s former wife claimed the money for the mortgage was a loan from her father; and she admitted to receiving the car as a gift but claimed she was paying the ongoing costs associated with the car. The delegate noted in the financial expenses she listed that accompanied her change of assessment application, no expenses in relation to the use of the motor vehicle were itemised. The delegate also noted that the Applicant’s former wife estimated her annual expenses were $119,433 and her annual salary $50,000.
The Applicant submitted that his former wife received a high income from her father for a short period of time, so that she could demonstrate to the bank she was capable of refinancing the family home.
The delegate of the CSA determined that the Applicant’s former wife was not in a position to manipulate her own income, and her father had the right to make whatever decision he wishes in his capacity as an employer. The delegate concluded that it was common for parents to provide financial assistance to their adult children, particularly after separation. She concluded that the Applicant’s former wife was not incurring costs that most other parents do incur, such as rent or mortgage. She concluded the level of support the former wife received is significant and it renders the assessment unfair. She noted that the former wife was currently being assessed on an annual income of $31,074 however the latest advice from her was that her income was in the vicinity of $50,000.
The delegate explained that as the Applicant’s income is higher than that of his former wife, it would be usual for him to be responsible for a larger percent of the school fees. She determined that the Applicant was responsible for only 50% of the school fees, which she estimated would be $23,200 per annum in 2011. The delegate implied this would restore the imbalance created by the former wife receiving financial benefits from her father. She also determined that the former wife should be assessed on an annual income of $50,000 from 1 September 2011.
For these reasons, the delegate made a decision dated 1 September 2011, in which she revoked the decision of 20 May 2011, and replaced it with the following:
·From 1 May 2011 to 31 December 2011, the annual rate of child support payable by the Applicant is increased by $8,700;
·From 1 January 2012 to 31 December 2012, the annual rate of child support payable by the Applicant is increased by $11,600; and
·From 1 September 2011 to 31 December 2012, the adjustable taxable income of the Applicant’s former wife is set at $50,000.
APPLICANT’S EVIDENCE
The Applicant provided written submissions,[3] attended the hearing in person and gave evidence. The following is a summary of that evidence.
[3] Exhibit 2.
The Applicant admits he was contacted by telephone on the day the decision was made, which was 1 September 2011. He also accepts that before that decision was made, he agreed to receive correspondence from the CSA electronically.
He did not find the email containing the decision until December 2011, however he acknowledges the decision was sent to him electronically on 1 September 2011. He did not see it. He was not expecting a copy of the decision to be delivered to him by means of email. He expected a copy of the decision to be mailed to him in the regular post. He separated from his wife in October 2008. The first application to the CSA was made in approximately December 2008. There had been a number of previous decisions of the CSA since that time, and copies of all previous decisions had been sent by regular post. He had no reason to expect differently on this occasion.
The Applicant recalls receiving a telephone call from CSA advising of the decision. At the time he was upset, and he did not take in everything that was being said to him. He may have been told the decision would be emailed to him. If he was told that, he does not remember being told. The amount of child support assessment was just one of the many legal matters on foot between himself and his former wife. He was preoccupied, and having trouble focusing, as his former wife was preventing him from having any contact with his daughters. He does not remember much about what was said to him on the telephone.
The Applicant was vaguely aware he had only 28 days to lodge an appeal. However, in the past, he had been given extra time to produce evidence and was given two extra weeks to object to the original decision. He gained the impression there was flexibility, that the 28 days to appeal would not be strictly enforced.
The Applicant found the email copy of the decision in December 2011. He did not know what to do. He felt perplexed with the issues raised. He knew he needed legal advice. He did not have a regular solicitor, and he realised he needed to find one.
The Applicant had engaged a solicitor (Thyme and McCarthy) shortly after he separated from his former wife. A binding financial agreement (“BFA”) was drawn up and sealed by the Federal Magistrates Court. He discharged those solicitors sometime in July or August 2010 when he realised his former wife was still entitled to make private school fees claims through the CSA. He had been lead to believe the BFA finalised all present and future financial matters, including school fees, and it was only after the document was signed and formally sealed by the court that he realised that his former wife could attempt to get school fees through the CSA.
He relocated to the Gold Coast from Brisbane in November 2010 because he had accepted a better job. He had access to his daughters from Friday afternoon until Sunday evening. He was required to collect and return the children to his former wife during this time of access. His former wife blocked access to the children when the Applicant refused to bring the children to Brisbane each Saturday morning to attend ballet lessons, on his access weekends.
In December 2011, when he found the CSA decision of September 2011, he knew he needed legal advice but did not wish to engage his former solicitor. He contacted a solicitor whom was an acquaintance and someone he regarded at the time as ‘sort of a friend’. The pending holiday season meant that he could not get an appointment until after Christmas. He did not consider trying to get an earlier appointment with a different solicitor, as he did not recognise the matter was urgent at this point in time, for the reasons already stated.
The Applicant saw the solicitor, Ms Durkin, in mid-January for the first time. She advised him to try and resolve the matters with the other party, and if unsuccessful, then lodge an appeal against the CSA decision, and to file an application for access in the
Federal Magistrates Court. The solicitor said resolving the matters privately would be cheaper, quicker, and may lead to a better outcome than going through court or the formal appeal process. Ms Durkin was provided with a copy of the CSA decision however she made no comment about the time limit in which an appeal was to be lodged.
The Applicant followed the advice given to him by Ms Durkin. A couple of days later, he saw his former wife. She was uncooperative. He then called his former father in law, whom he still had a reasonable relationship with. His former father in law advised him he would talk with the Applicant’s former wife and call him back in one week. Some 10-14 days later, the Applicant had heard nothing. When he finally got in contact with his father in law, he found him sympathetic, but unable to help.
The Applicant returned to his solicitor and was advised to lodge an objection to the September 2011 decision with the SSAT. He was surprised when he was told he would have to apply for an extension of time. He was even more surprised when the application for extension of time to appeal was rejected. He returned to his solicitor and complained that Ms Durkin’s “advice had proved costly”. Ms Durkin had advised him the fact that the SSAT refused to allow him to lodge an objection to the decision September 2011 did not matter. She said that he could appeal against the CSA decision to the Federal Magistrates Court, at the same time as applying to have access to his daughters.
An application to the Federal Magistrates Court was made, and as the result of an interim hearing, he was given access to his daughters again in December 2012. The Applicant’s former wife was given until April 2013 to comply with disclosure orders. It was as a result of these disclosure orders, and also subpoenas issued by the
Federal Magistrates Court, that her bank statements and also accounts showing her wages and mortgage payments were made available. At this point the Applicant was expecting the Federal Magistrates Court to review the CSA decision of September 2011. That was what his lawyer had lead him to believe would happen. The Federal Magistrates Court did not review the decision. Instead, in June 2013, his former wife pleaded guilty to two counts of contravention of orders and one count of contempt, and that was the end of the matter as far as the Federal Magistrates Court was concerned.
The Applicant did not apply to the AAT for review of the SSAT decision at this stage, because he did not think there was any chance of success. He believed the SSAT rejected his application for extension of time because they concluded his case had no merit. He referred me to paragraph 32 of the SSAT decision, in which member Ffrench wrote:
[The Applicant’s] case is arguable. However, on closer examination it may very well be than none of his submissions are accepted. There is also always the possibility in departure determinations that the decision of the Tribunal might very well be less advantageous to an Applicant that the decision of the objections officer.
The Applicant regarded the CSA decision dated 22 April 2014 as proof that his objection to the CSA decision of 2 September 2011 did have merit. He believes
Deputy President Hack must think his case has merit, as he was granted an extension of time to apply to this Tribunal.
The Applicant is upset for the reason that he believes the CSA had the ability to summon documents and could have found the evidence it needed to make a decision more favourable to him in September 2011. He feels that everything he was saying prior to the decision of 2 September 2011 has now been proven. As a result of being denied the right to object to the September 2011 decision, he believes he has been financially disadvantaged. According to his calculations, he has overpaid CSA by $70,000. Although he thinks the CSA decision of April 2014 is fair, he thinks they should have gone back 18 months when determining the date of effect of that decision.
In relation to the cost of school fees for the children, he still believes he should not be responsible for the private school fees. He believes if he and his former wife had have stayed together, their daughters would not have attended Somerville House in primary school because they would not have been able to afford the fees. The applications for enrolment were made to keep open the option of the children attending the school. His income dropped significantly after the global financial crisis. It was not possible for him to pay to educate the girls at Somerville House during primary school years. The only way their children would have attended that primary school had he not separated would have been if his former father in law had have paid the school fees. It was the Applicant’s former wife, not him, that wanted the children to attend that particular school. That was the school that his former wife had attended, herself.
He said that during the marriage, his former wife worked part time as a director for her father’s business. That business involves the education and accommodation of overseas students. The business facilitates the overseas students’ English lessons, entry into education institutions, and arranges accommodation during the student’s stay in Australia. The Applicant’s former wife would do various tasks when she worked for her father’s company, and received $50,000 remuneration per annum. She recently obtained a law degree from Bond University and approximately 12 months ago she commenced working a solicitor. She now works full time. He is uncertain how much she is currently earning.
The Applicant claims that, as well as having car expenses paid and mortgage repayments made by her father, she was also having her university fees paid by her father. In relation to reason eight, the Applicant believes the approach taken by the CSA in the decision taken in 22 April 2014 is appropriate.
CONSIDERATION
The Tribunal has, in past decisions, been guided by the principles enunciated by Wilcox J in Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Enviroment[4] [sic]
(“Hunter Valley”). See for instance Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees.[5] In the matter of Hunter Valley, Wilcox J said it is a “prima facie rule that proceedings commenced outside the prescribed period will not be entertained”. An extension of time will, however, is granted if it is proper to do so.[4] [1984] FCA 176 at [18].
[5] [1990] AATA 1 at [19].
Although Hunter Valley was concerned with time limits and the
Administrative Decisions (Judicial Review) Act 1977(Cth), the same principles are referred to in many statutory contexts.[6]
[6] Vagulans and Thales Australia Limited [2014] AATA 173
In the matter of Besson v Repatriation Commission[7] J Rangiah, referring to
Hunter Valley, set out the matters relevant to the exercise of the discretion to grant an extension include:
(a)Whether the Applicant has shown that there is an acceptable explanation for the delay;
(b)Whether the Applicant took any other steps to assert his rights
(c)The length of the delay;
(d)Any prejudice to the respondent as a result of the delay; and
(e)The merits of the proposal.
[7] [2014] FCA 881 at [12].
The Applicant directed me to a number of cases,[8] which he contends that are authority for the principle that an extension of time should be granted, if refusing to do so would cause injustice.
[8] Yong v Yong (Extension of Time) [2009] SSATACSA 17; Gallo v Dawson (1990) 64 ALJR 458; and Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297.
I agree that is certainly a consideration that must be had, and as well regard should be had to the whole history of the matter, the conduct of the parties, the nature of the litigation, and the need of the Applicant. It is usual, however, for an application for extension of time to be denied if there is no merit in the matter.
After carefully considering all the evidence before me, I consider an extension should be granted, for the following reasons.
The Applicant’s case has merit
In relation to the issue of whether the Applicant is responsible for a percent of his children’s school fees, I do not believe the Applicant’s claim has any merit. Whilst he may regret decisions made during his marriage, the evidence is that the Applicant and his former wife both signed the enrolment applications for both children to attend a particular school. It is well established that children are to be educated post separation in the same manner as the parents intended prior to separation. By signing the application forms for enrolment at Somerville House, both parents demonstrated an intention to have the children attend the private primary school.
In relation to his wife’s financial resources, the Applicant’s case has considerable merit. It would appear on the evidence that the Applicant’s former wife has income, financial resources and earning capacity far greater than that upon which she was assessed.
The evidence indicates the Applicant’s former wife has enjoyed, and continues to enjoy, a lifestyle that is considerably more comfortable and affluent than is usual for a single woman with two young children who earns only $50,000 a year. By her own evidence, she is living a lifestyle that costs just under $120,000 a year. That would not be possible without the considerable assistance she receives form her father.
Length of delay not fatal/there was a reasonable explanation for the delay
The Applicant lodged his application for review with the SSAT on 14 February 2012. This was five and one half months after he received the decision, and four and one half months after the maximum time allowed in the legislation to lodge an appeal. This sounds like a lengthy time at first instance, however the Applicant was quick to refer me to the matter of SRYYYY and Child Support Registrar[9] in which an extension five years out of time was granted by the AAT. By comparison, four and one half months does not seem very long.
[9] [2001] AATA 687.
I found the Applicant to be a credible witness who gave his evidence in a forthright manner. The evidence he gave to the Tribunal is consistent with that included in his affidavit dated 7 August 2013.[10]
[10] Document A.
I accept the Applicant’s evidence to be a true account of the circumstances that led to his delay in applying for the SSAT to review the CSA decision dated 2 September 2011. The Applicant first obtained a copy of the decision on 2 December 2011. The delay in his application for review of the decision after that point in time was due to a combination of unfortunate timing, that is, the proximity to Christmas holidays caused a delay in the Applicant obtaining an appointment with his new solicitor; poor legal advice; and his misguided belief that there was no urgency to apply for review. Both the first two factors were outside of the Applicant’s control. The later factor was reinforced on
14 January 2012 when the solicitor he consulted failed to express any concern about the fact the limit to apply for a review of the 2 September 2011 decision had expired.
I consider the Applicant was not responsible for any delay following his attempts to make an appointment with his solicitor. He followed the advice given to him, and he believed the solicitor was appropriately addressing all of his concerns, including the need to apply for a review of the decision. The material the Applicant supplied provides proof that he consulted a solicitor at the time at which he claims he did, and that he believed that an application to the Federal Magistrates Court for review of the CSA decision was in progress. I accept he attempted to make an appointment with a solicitor soon after obtaining a copy of the decision.
At the time he first recovered the decision, he was approximately 30 days out of time to apply for review. Whilst that is not a particularly long period, it is significant.
When the delegate of the CSA telephoned the Applicant with the decision on
2 September 2011, it very understandable he was upset, and accepts it reasonable that he did not realise a decision was emailed to him on 2 September 2011. When a decision is delivered orally by way of an unscheduled, unanticipated and sometimes inconvenient telephone call, during a working day, an applicant cannot be expected to have 100% recall of all information afforded to him during that conversation.
One of the dangers in sending correspondence by email is that the recipient easily overlooks it. Unlike letters that arrive in the mail, the number of which received by the average person tend to be limited to less than four or five a day, it is not unusual for a person to receive dozens, if not hundreds of emails a day. Not recognising that he received an emailed copy of a decision of the CSA in September 2011 is entirely understandable.
The Applicant also relied upon his previous experience relating to how previous decisions of the CSA had been served. By his account he had good reason to rely on previous experience. He had been receiving hard copies of decisions in the regular mail many months subsequent to agreeing to receive correspondence from the CSA by email. Under these circumstances I consider his expectation that he would receive notification of the decision in the mail, and that he expected he had at least 28 days to object from the date he received the decision in the mail, very reasonable.
The Applicant lost track of time and, when no decision arrived in the mail, he did not turn his mind to the matter, or ring the CSA seeking a copy of the decision, until early December 2011. His lack of action prior to early December is understandable given the unique circumstances he was under at the time. He was preoccupied and distracted as a result of the overwhelming issue of re-establishing regular access with his children. Combined with his misguided belief that there was no urgency to apply for review, it is understandable that he did not search for a copy of the decision until December 2011.
I find the Applicant to have legitimate reasons explaining the delay in his application to have the decision reviewed.
Granting an extension of time does not prejudge the respondent, the public or other parties
The SSAT found no reason to conclude that an extension of time would adversely affect the other party’s ability to contest the case. I consider that still to be the case. I do not believe the Applicant’s former wife is adversely affected by allowing the Applicant an extension of time to appeal the decision of the CSA of 2 September 2011. The public does have a general interest in seeing that administrative decisions are made in a timely manner, and that there is a consistency observed in dealing with time limits set out in legislation. The discretion to grant an extension exists in the legislation for a reason. That reason is to ensure that individuals are not disadvantaged due to the need to comply with the strict application of time limits.
The Applicant did not rest on his rights
The Applicant certainly did not rest on his rights. There is overwhelming evidence that he has been attempting to resolve the matter through the legal system to the best of his ability.[11] There is also evidence supporting his claim that he delayed his application to the SSAT for review of the SSAT decision on the basis of the legal advice he received.[12]
[11] Exhibit 4.
[12] Document J.
Injustice would result if the extension not be granted
As noted by the SSAT, the officer who made the decision of 2 September 2011 did not consider the impact of the decision to hold the Applicant responsible for 50% of school fees, in the context of his reduced income. Hardship to a parent is a factor that should be considered in the context of what is a just and equitable determination.
Even more unjust is that part of the decision which increased the Applicant’s child support responsibility to compensate the former wife for 50% of school fees when she is not paying the fees but instead her father is.
These injustices are made apparent by the decision of the CSA decision dated
22 April 2014. That decision more equitably addresses all the issues that the Applicant would have raised had he been granted an extension of time. The facts upon which the decision of April 2014 relied upon appear to be the same as that which the Applicant was putting forth in his objection to the 2 September 2012 decision. In 2014, the CSA had more information about his former wife’s financial circumstances available. I agree with the Applicant that the information the CSA relied upon in the April 2014 decision was obtainable by the CSA prior to the September 2011 decision, and by the SSAT had they agreed to grant an extension of time and review the decision.
CONCLUSION
The Applicant’s case has considerable merit, and if an extension of time is not granted there will be injustice in this case. The length of the delay in applying for review of the decision is not considerable. The delay was largely due to factors outside of the Applicant’s control. As far the circumstances were in his control, he has a reasonable explanation. He actively perused a remedy albeit through the wrong channels, and no party will be prejudiced if the extension of time is allowed.
DECISION
The decision of the SSAT dated 23 March 2012, which refused to grant an extension of time to lodge an application for review of the CSA decision dated 2 September 2011 is set aside, and the Tribunal substitutes its decision that the SSAT is to treat the objection lodged by the Applicant on 14 April 2012 as being lodged within the time allowed under the legislation.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of .....................[Sgd]...................................................
Associate
Dated 17 October 2014
Date of hearing 5 September 2014 Date final submissions received 12 September 2014 Applicant In person Advocate for the Respondent Ms Lauren Fahey, Social Security Appeals Tribunal
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