Confidential and Principal Member, Social Security Appeals Tribunal and Confidential (Joined Party)
[2012] AATA 487
•27 July 2012
[2012] AATA 487
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1185
Re
Confidential
APPLICANT
And
Principal Member, Social Security Appeals Tribunal
RESPONDENT
And
Confidential
JOINED PARTY
DECISION
Tribunal N Isenberg, Senior Member
Date 27 July 2012 Place Sydney The decision under review is affirmed
.....................[sgd]...................................................
N ISENBERG, 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).
CATCHWORDS
CHILD SUPPORT - application to extend time to apply to the Social Security Appeals Tribunal - SSAT refused extension - whether it is reasonable in all of the circumstances to grant the extension - explanation for delay - whether application has possible merit - extension of time denied
LEGISLATION
Child Support (Registration and Collection) Act 1988, ss 90, 91, 92
CASES
Hunter Valley Developments v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
N Isenberg, Senior Member
27 July 2012
BACKGROUND
The Applicant and his former partner, the other party, are parents of two children born in 1993 and 1996 respectively. The Applicant was liable to pay child support for those two children.
On 12 July 2011, an objections officer of the Child Support Agency (CSA) partly allowed the Applicant’s objection to a decision made by the CSA on 3 May 2011. The decision to partly allow the objection, along with a letter notifying the Applicant of his appeal rights was forwarded to the Applicant by the CSA on 12 July 2011. In an attached cover letter the Applicant was advised about the 28 day time frame within which to exercise his review rights.
A person dissatisfied by a decision made by the CSA may seek review through the Social Security Appeals Tribunal (SSAT). Section 90 of the Child Support (Registration and Collection) Act 1988 (the Act) states that a person must lodge an application for review within 28 days of the date on which a notice of the decision is served on them. Section 91 of the Act allows a person who has not applied within the 28 days to seek an extension of time to lodge the application. The CSA advised the Applicant of his review rights when serving him with the objections officer’s decision.
On 8 December 2011 the Applicant lodged an application for review of the decision made by the CSA on 12 July 2011. On 9 January 2012 the Applicant also lodged an application for an extension of time. The SSAT refused the Applicant's extension of time application on 17 February 2012.
On 28 March 2012 the Applicant lodged an application for a review of the SSAT's decision with this Tribunal, pursuant to s 92(7) of the Act.
ISSUE
The issue for this Tribunal is whether to grant the Applicant an extension of time to lodge his appeal to the SSAT.
RELEVANT CONSIDERATIONS
There is no dispute that the application for review was lodged out-of-time.
In the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, Wilcox J stated that normally proceedings commenced outside the prescribed period will not be entertained. He set out six principles which guide the use of the discretion to grant an extension of time:
·that the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;
·whether there is any prejudice to any other party;
·that the mere absence of prejudice to other parties is not enough to justify the grant of an extension; however, any wider prejudice to the general public is a relevant factor;
·the merits of the substantive application; and
·considerations of fairness between the applicant and other persons in a similar position.
EXPLANATION FOR THE DELAY
The Applicant received the notification of the CSA's refusal to change the assessment in July 2011, but did not lodge an application for review with the SSAT until December 2011.
The Applicant said that he had received the objection decision sometime about 12 July 2011. He said he received quite a lot of paperwork but “didn't get a decision”, by which, he explained, meant that he didn't get a response to his concern: in January 2011 he had received about $10,000 and disputed its characterisation by the CSA as a "lump sum" because in fact it was "back pay” for June to December 2010. He wanted this amount to be calculated in the previous financial year but the CSA refused to do so.
After receiving the objection decision in July 2012, the Applicant said he had to "walk away”, and said he was a coward. He just wanted them to answer the question. They ignored him and he "didn't know where to go" to get them to address his concern. The Applicant stated that he has given up talking to the CSA. He said the CSA was not doing its job and "people were dying". He said he was going to have the legislation changed. He said he does not want to understand the CSA and he has no interest in what they say. He considers himself to be a victim of the legislation and that everybody at the CSA is either confused or robotic. There was no flexibility, unlike Centrelink. He said his life has been ruined.
The Applicant reported that he probably did not read the decision but even if he did read it, he probably wouldn't have been able to read it. During his many years of marriage his wife had attended to paying all the bills because of his inability to read. His "head is jumbled up". He said that he "knows" he has dyslexia, notwithstanding that there is no formal diagnosis. He referred to fact that he has confused addresses, including the Tribunal’s address in order to attend the hearing.
The other party said that she believed the Applicant wanted to get out of making his child-support payments. She confirmed that the Applicant left bill-paying to her during their marriage, but inferred that this was more through disinterest than any incapability.
The Applicant said that he has been receiving disability support pension (DSP) for his psychiatric condition since about April 2011 and that his claim had taken five to six months to resolve. Before that time he had been paid new start allowance for about a year. The Applicant previously worked in spare parts in the automotive industry, but stated he had been sacked because he wanted to do things his way because of his dyslexia. He has been working couple of days a week. He proposes to open a business when “all this” is behind him.
The Applicant was asked about his psychological condition. He said he first saw a doctor about his psychological condition before he and his wife separated in October 2009. He was first prescribed Zoloft but he became a "vegetable". He took himself off that medication because, he said, he was in denial. He said that he had seen Dr Bailey about his condition for a couple of years. Dr Bailey wanted him to see a psychiatrist but he has been unable to afford one. Since about May 2011 he has been taking Effexor. He does not like taking medication and about six to eight months ago reduced his dosage from 150 mg to 75 mg because he felt well enough to do so. He has also been seeing a counsellor. He has also started attending a veterans’ support group (the Applicant was in the Navy from 1968 to 1978 during which time he was deployed to operational zones). The Applicant thinks he may have post-traumatic stress disorder. He has recently learned that his mother had bipolar disorder.
He said in his condition was exacerbated when he got the report from the CSA and for three to four months he was "like a vegetable". It was a self-preservation mechanism to just put it – the objection decision - away.
He said that by November 2011 he was feeling better and he had to "face [his] demons”. It was then that he decided to seek review of the objection decision. He said it is therapy to "fix up things in [his] life”.
The Applicant was referred to the SSAT decision where he was reported to have said that he had not acted upon the decision notice in July 2011 because he thought "everything was fixed up". He denied that he had said that and said he was never asked as to why there was a delay in filing the application for review. The Tribunal finds it unlikely that the SSAT would not have made such an enquiry. It was pointed out to him that he was recorded as having said that he waited until December 2011 to action the matter as this is when he does his tax returns. He denied he had said that and said that he was waiting on Centrelink to sort out his statement and he did not receive that until November - a delay of some months.
The Applicant agreed the CSA continues to revise his payments. He said that they were being reviewed continually – "50 or 60 times".
The Tribunal notes that Dr Bailey provided documentation which said that the Doctor had been treating the Applicant for depression for the last two years. The Tribunal accepts that the Applicant has a diagnosed psychiatric condition which may have caused him to put aside the objection decision at the time he received it.
HAS THE APPLICANT HAS RESTED ON HIS RIGHTS?
The CSA advised the Applicant of his right to appeal in mid July 2011 as part of the notification of the objections officer’s decision.
His application for an extension of time was not lodged until 9 January 2012, about six months late. The Tribunal notes that by that time the Applicant had been taking his current medication for some months. His evidence was that he had put the objection decision aside for three to four months. Despite his evidence to the effect that it was therapeutic to sort out his affairs, he did not act upon the objection decision for another couple of months.
I find that the Applicant has rested on his rights.
PREJUDICE TO OTHER PARTIES
There is no evidence to suggest that the Respondent would suffer prejudice if the Tribunal grants the Applicant an extension of time.
The other party may well be prejudiced by the lengthy proceedings. The other party expressed the view that she wanted the Applicant to meet his child support obligations. In fairness to the children, she should be able to know where she stands.
WIDER PUBLIC CONSIDERATIONS
Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty of time limits. On the other hand, the legislation allows for extensions of time. In some other jurisdictions, such as migration review, there is no such entitlement.
THE MERITS OF THE SUBSTANTIVE APPLICATION
It is not the Tribunal’s role to come to a final view about the substantive Application.
The issue of concern to the Applicant appears to be slightly different to that argued before the SSAT. There the issue was about annualising estimates under s 60 of the Child Support (Assessment) Act 1989. Before me his concern was that his ‘back pay’ had been treated as a lump sum. There is, however, nothing in s 60, or elsewhere, that suggests that income received, however described, can be attributed to a different child support period. I do not consider the substantive application to have any prospect of success.
CONSIDERATIONS OF FAIRNESS
Contrary to what the Applicant may hope, having regard to his submissions about unfairness of the law, it is not the function of CSA, the SSAT, or this Tribunal to do other than apply the law.
SHOULD THE TRIBUNAL GRANT THE EXTENSION OF TIME?
The CSA sent the Applicant information about his right to seek review. I have noted the Applicant’s explanation as to why he did not apply for a review within the 28 day period.
I am not satisfied that there would be significant prejudice to the Respondent or the wider public, sufficient to deny the Applicant an extension of time in this matter. However, while the Tribunal does not fully consider the merits of the application, the other party is likely to be inconvenienced and experience additional stress if the Applicant is granted an extension of time to apply to the SSAT, especially in circumstances where his substantive application appears to have no merit.
Taking into account all the relevant factors, I am satisfied that it would not be proper, fair or equitable in all the circumstances to exercise the Tribunal’s discretion to grant an extension of time.
DECISION
The decision under review is affirmed
34. I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of N Isenberg.
......................[sgd]..................................................
Associate
Dated 27 July 2012
Date of hearing 18 July 2012 Applicant In person
Respondent
Other
No appearance
In person
0
1
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