Confidential and Principal Member, Social Security Appeals Tribunal and Confidential (Joined Party)

[2011] AATA 870

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1795

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And PRINCIPAL MEMBER, SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

And CONFIDENTIAL

Joined Party           

DECISION

Tribunal Ms Regina Perton, Member

Date8 December 2011

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that the date of application for review of a decision made by the Child Support Agency be extended to 25 February 2011.

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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 – application to extend time to apply to the Social Security Appeals Tribunal – SSAT refused extension – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether application has possible merit – extension of time permitted.

Child Support (Registration and Collection) Act 1988 ss 90, 91

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

8 December 2011 Ms Regina Perton, Member

1.      The applicant and his ex-wife, the joined party, are parents of two children born in 1996 and 2000 respectively.  The applicant is liable to pay child support to the mother for the two children.  There is a history of disputes between the parties over the amount of child support payable, the lateness of payments and the accumulation of arrears. 

2.       On 14 January 2010 an officer of the Child Support Agency (CSA) set the annual rate of child support payable by the applicant between 1 October 2010 and 30 November 2011 [see T docs pp 22, 59].  On 10 May 2010 the applicant applied for a change of the assessment because the income on which the child support was based did not reflect his current circumstances.  On 5 October 2010 a CSA officer determined that the applicant had not established grounds for changing the assessment. The rate of child support remained as set in January 2010, notwithstanding a drop in the applicant’s income. The CSA officer made a finding that the applicant had resigned his employment on 7 April 2010 and was satisfied that a major reason for doing so was to lower his child support liability.  Where a person appears to have deliberately left their employment in an effort to lower his/her child support liability, the governing legislation allows the CSA to determine that the rate set when the income was higher should be maintained notwithstanding a reduction in income. 

3.      On 18 October 2010 the applicant objected to the CSA officer’s finding but the objections officer disallowed the objection on 14 December 2010.  The applicant and the other party were notified by letter and telephone on that day. 

4. A person dissatisfied by a decision made by the Registrar of 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 the 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.

5.      The applicant lodged an application for review on 25 February 2011, which was calculated as being 37 days after the expiry of the 28 day period.  The SSAT refused the applicant’s application for an extension of time on 14 April 2011.

6.      On 11 May 2011 the applicant sought a review of the SSAT’s decision in this Tribunal, pursuant to s 92(7) of the Act.   

7.      The issue for this Tribunal is whether to grant the applicant an extension of time to lodge his appeal to the SSAT.  There is no dispute between the parties that the application for review was lodged out of time.  The Tribunal concurs,

8.      Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 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

9.      The applicant received the notification of the CSA’s refusal to change the assessment in mid-December 2010, in the lead up to the Christmas/New Year break.  The applicant described his reaction to the decision as  being gutted.   He said he found it difficult to reconcile the outcome with his financial and personal circumstances.  He said he felt disheartened and was thinking of giving up. 

10.     During January 2011 the applicant, his wife, stepdaughter and daughter from his current relationship spent time at his brother’s beach house.  He told his brother and sister-in-law about what had happened and they encouraged him to seek a review of the CSA decision, which they believed was unfair. 

11.     The applicant’s sister-in-law, who was excluded from the hearing room during the applicant’s evidence, described the circumstances in which the applicant had revealed what was troubling him.  She said that she and her husband had urged the applicant to seek a review of the CSA decision in the SSAT.

12.     The applicant said that it took about a month for him to get the relevant paperwork together in relation to his cessation of employment and once he had done so, he applied to the SSAT.

13.     The joined party pointed out that the applicant had been dealing with the CSA and had lodged previous objections with the agency.  She stated he would have been aware of the need to meet time limits.

WHETHER THE APPLICANT HAS RESTED ON HIS RIGHTS

14.     The applicant described being disheartened by the decision he received just before the Christmas/New Year period.  It was towards or just after the end of the 28 day period that he decided that he would seek review at the SSAT.  He took another month or so after that decision to lodge the claim.  The Tribunal finds that the applicant rested on his rights for just over a month. 

PREJUDICE TO OTHER PARTIES

15.     There is no evidence to suggest that the respondent would suffer prejudice if an extension of time was to be granted. 

16.     The joined party said she could be disadvantaged, given outstanding child support payments and the number of disputes that have already been dealt with by the CSA in relation to child support. 

WIDER PUBLIC CONSIDERATIONS

17.     Time limits for the review of administrative decisions should be observed 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; whereas in some other jurisdictions, such as migration review, there is no such entitlement.

THE MERITS OF THE SUBSTANTIVE APPLICATION

18.     The applicant provided fresh documentary and oral evidence in relation to the circumstances in which he ceased employment in April 2010.  He described the physical and psychological impact on him caused by the nature of his work and the atmosphere within that workplace. The applicant’s sister-in-law said that she had observed the stress levels and adverse health impacts on the applicant before he ceased employment in April 2010.  The applicant also provided evidence of why his next  job working for an interstate company as their Victorian representative ceased by August 2010. 

CONSIDERATIONS OF FAIRNESS

19.     There is nothing in the applicant’s situation that makes his circumstances markedly different to that of other applicants in a similar position.  Others in that jurisdiction have the same rights to seek review and to seek an extension of time. 

SHOULD THE TRIBUNAL GRANT THE EXTENSION OF TIME?

20.     The Tribunal is satisfied with the applicant’s explanation as to why he did not apply for a review within the 28 day period.  His sister-in-law’s evidence corroborated the circumstances that led to his change of mind about lodging the review application. 

21.     While the Tribunal does not fully consider the merits of the application, it is satisfied that a different finding is possible about the circumstances that led the applicant to resign from his employment in April 2010. 

22.     The joined party is likely to be inconvenienced if the applicant is granted an extension of time to apply to the SSAT but that would have been the case whether the application had been lodged in time or just over a month late, as has happened in this instance.  The Tribunal appreciates her frustration due to outstanding payments over a considerable period of time but that is not a sufficient reason to deny the applicant’s entitlement to seek review.   The Tribunal is not satisfied that there would be significant prejudice to the joined party, the respondent or the wider public, sufficient to deny the applicant an extension of time in this matter.

23.     Taking into account all the relevant factors, the Tribunal is satisfied that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time. 

DECISION

24.     The Tribunal sets aside the decision under review and substitutes a decision that the date of application for review of the decision made by the Child Support Agency be extended to 25 February 2011.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms Regina Perton, Member

Signed.....................................................................................
  Clerk

Date of Hearing  16 September 2011
Date of Final Submission              2 November 2011
Date of Decision  8 December 2011
Applicant’s Representative            Self-represented
Joined Party’s Representative       Self-represented       
Respondent’s Representative       No appearance