Confidential and Principal Member, Social Security Appeals Tribunal Confidential OTHER PARTY
[2015] AATA 100
•25 February 2015
[2015] AATA 100
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4936
Re
Confidential
APPLICANT
And
Principal Member, Social Security Appeals Tribunal
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Regina Perton, Member
Date 25 February 2015 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that the applicant is granted an extension of time to 7 August 2014 for lodgement of his application to the respondent.
[sgd]........................................................................
Regina Perton, 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 sections 90, 91, 92
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
Regina Perton, member
25 February 2015
The applicant and his former partner, the other party, are parents of two children born in 1998 and 2000 respectively. The applicant father is liable to pay child support for the children who mainly reside with the mother. The children attend private schools. The dispute in this matter concerns whether an order made by an objections officer of the respondent that the applicant should contribute part of the children’s school fees as well as making child support payments is the correct or preferable decision.
The applicant was a successful career professional married for a significant period until he and the other party separated. Health and financial woes have now beset him. He believes that the decision to increase his contributions by $10,000 per annum from 4 April 2014 to 30 November 2014 and 1 January 2015 to 30 November 2015 for school fees does not take account of his actual circumstances.
The other party had applied to the Child Support Agency (the agency) for a change of assessment relating to school fees contributions on 16 August 2013. Her application was refused on 14 October 2013. The other party then lodged an objection with the agency on 8 January 2014. The applicant pointed out that the agency exercised discretion in accepting the other party’s review application outside the prescribed time period. On 13 March 2014 the agency made the decision concerning school fees.
A person dissatisfied by a decision made by the agency 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 agency advised the applicant of his review rights when serving him with the objections officer's decision.
On 7 August 2014 the applicant lodged an application for review of the objections officer's decision with the SSAT and an application for extension of time to lodge the application. This was almost four months after the expiry of the 28 day period. The SSAT refused the applicant's extension of time application on 9 September 2014.
On 22 September 2014 the applicant lodged an application for a review of the SSAT's decision with this Tribunal, pursuant to s 92(7) of the Act.
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 between the parties that the application for review by the SSAT was lodged out-of-time. The Tribunal concurs.
In the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (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.
Similar principles to the above have been set out in other cases since then.
EXPLANATION FOR THE DELAY
On 16 August 2013 the other party lodged an application with the agency for a change of assessment in relation to the children’s private school fees. A delegated agency officer, in a decision dated 14 October 2013, decided not to add the school fees to the amount the applicant was paying in child support.
The other party objected to the decision concerning fees on 8 January 2014. On 13 March 2014 an objections officer of the agency overturned the previous decision and determined that the applicant should make a contribution towards school fees as well as paying child support based on the relevant formula.
The applicant stated that at the time of the school fees decision his annual gross income was around $250,000. The agency’s school fees decision was accompanied by extensive documentation concerning calculation of his child support payments.
In a written statement dated 8 December 2014 the applicant stated that:
14.Around the time of the school fees decision there were significant changes to my employment situation.
15.On around 6 March 2014, I received a notice from my employer…advising that my position had been made redundant.
16.The redundancy notice was a complete surprise to me. This was exacerbated by the fact that I was given less than a month to find another internal role or face unemployment. Finding an internal role was going to be difficult given that …hundreds…were also given redundancy notices at the same time….I am aware that some of my colleagues from previous employers have been unemployed for over a year.
17.My redundancy added to the strain I was already under as a result of the ongoing CSA issues and disputes with my wife regarding our children. In addition, I was also dealing with issues relating to my bankruptcy (which I had entered into in April 2013 as a result of debts incurred during my marriage) and my health. During late 2013 my Thyroid had been removed and it had been subsequently discovered that it was cancerous and that parts of the thyroid had been left behind during surgery as well as the lymph glands. All of this led to extra tests, extra stress, extra concern as to the possibility of additional surgery, medication, and the possibility that the cancer had already spread into the Lymph system. Over this period my work hours had been growing longer, all adding to the pressure at the time. ...
The applicant went on to describe his search for new employment. He described temporary difficulties in logging into his email account and other work related matters. He went on to state:
22.I was in regular contact with the CSA throughout this period to discuss my changed employment circumstances and my concerns about meeting my contributions levels.
23.At the end of March 2014, I rang CSA and told them that I would be out of a job and was only expecting to get a redundancy payout of one week’s salary. As a result I understood my annualised taxable income would be adjusted to $18,480 and contributions would be minimal based on that amount. I believed that as a result of this adjustment that my contributions as a whole, including the school fees contributions, had been reset to reflect my new redundancy status. Rightly or wrongly, I did not realise that the school fees contributions component of my assessment had not altered as a result of my change of circumstances.
24.On 8 April 2014 I received a letter from CSA advising me that …[the other party] had objected to the adjustment of my annualised income on 28 March 2014. This letter confirmed in my mind my understanding that my global contributions had changed.
25.I continued in this belief until 26 May 2014, when I spoke to a very helpful CSA officer… I spoke at length…about the confusion regarding my change of salary, and the adjustments that I had understood would occur following the transition to my new position…It was only during that conversation that I became aware that I still needed to seek a separate review of the school fees decision by the SSAT. …[The officer] advised me that I should request an extension of time to lodged my application for review with the SSAT.
26.Although I was aware that the formal period for lodging my application for review had ended, … [the officer] allayed my fears about the 28 day deadline saying that this would not be an issue and that the main issue was whether there was merit in my case. I was not advised…that there was any urgency in lodging my application for review at that time.
27.Around this time I was in constant contact with the CSA. On 30 May 2014, … [the other party] had applied again to change the assessment of my contributions and I spoke on several occasions with CSA officers about this and my concerns about my financial situation and the school fees contributions.
The applicant went on to describe a telephone conversation with a different agency officer on 23 June 2014. He referred to a file note written by the officer which indicates the conversation was mainly about the other party’s latest application for a change of assessment. The officer’s file note ends with:
In relation to the last Pt6A objection, … [the applicant] was made aware of the requirement to lodge an appeal and seek an extension of time through the SSAT.
In his statement, the applicant indicated that the officer:
…did not advise me that I needed to act urgently on lodging my application and I did not realise that the delay might jeopardise my application.
The applicant described the other issues he was dealing with and the demands on his time. He lodged a response to the agency in relation to the other party’s application for change of assessment and application for consideration under financial hardship on 8 July 2014. He had discussions with his solicitor who briefed a barrister who prepared relevant documents in relation to the school fees review. The applicant stated that he received the barrister’s draft documents and a Memorandum of Advice on 27 July 2014. The application for extension of time was lodged on 7 August 2014.
The applicant stated that until his conversation with the agency officer on 26 May 2014:
…I believed that the change in my estimated income had the result of “re-setting” my global contributions. Following my conversation with … [the officer] in May, I then understood that I would need to lodge an application for review of the school fees contributions, but I was not aware that there was any urgency in making the application. This was consistent with my experience of the CSA as …[the other party’s] objection had been lodged out of time. Throughout this period I was in constant contact with the CSA in seeking to resolve various aspects of my child support contributions.
The other party, in a submission to the Tribunal after viewing the documents provided by the agency about the dispute, pointed out that:
The CSA advised the applicant on at least 5 occasions between March and August 2014 the process required to appeal any CSA decision, yet for all this time he has had knowledge but not actioned the CSA advice.
I firmly believe that … [the applicant] should not be allowed to appeal the CSA decision as his appeal is well out of time.
The Tribunal is satisfied that the applicant was aware of his right to challenge the agency’s decision at the SSAT for quite some time before he actually did so. His explanation as to why he did not do so within the 28 days of the decision or soon after that, is plausible. Nonetheless, he took longer than he should have once he knew that there was no other way to resolve the school fees issue.
WHETHER THE APPLICANT HAS RESTED ON HIS RIGHTS
The agency advised the applicant of his right to appeal to the SSAT in March 2014 as part of the notification of the objections officer’s decision. He had later discussions with agency officers. The Tribunal accepts the applicant’s evidence that once he knew he had not met the 28 day time limit and that his only option was to go to the SSAT to challenge the school fees decision, he did not realise the longer he took, the less likely it might be that the extension would be granted. His application to the SSAT was around four months out of time.
The applicant has rested on his rights in relation to the SSAT application for extension of time as he could have lodged earlier. The applicant was in contact with the agency several times during that four month period about a number of issues as well as that relating to school fees issue so he has not ignored child support issues.
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 beyond having to conduct a hearing and make a determination on the issues in dispute.
The other party, who is waiting on the outstanding payment of arrears relating to the school fees, may well be prejudiced by a further delay and revisiting the issue. The applicant and the other party disagree about whether they had mutually agreed that the children would continue in private school after the applicant’s bankruptcy and changes in his employment and finances. However there are ongoing disputes over other financial matters that are yet to be resolved so the other party has not had closure or an end to the conflict between her and her former husband.
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
The applicant received notice of possible redundancy around the time of the objection officer’s decision. He had been declared bankrupt in the previous year and was experiencing stresses due to ongoing health, financial and children’s matters. He and the other party hold opposing views about whether they agreed that the children would remain in private schools despite the change in the applicant’s financial circumstances. The original agency decision maker did not add a school fees contribution to the child support payments required of the applicant. The objections officer did. The SSAT commented that it was possible that there is an arguable case in relation to the merit of …[the applicant’s] application. The Tribunal concurs that a different outcome is possible.
CONSIDERATIONS OF FAIRNESS
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?
The Tribunal is satisfied with the applicant’s explanation as to why he did not apply for a review within the 28 day period or shortly thereafter. However, he could have applied earlier than 7 August 2014. The applicant had been told by the agency that the SSAT could review the school fees decision and that he could apply for an extension of time.
The applicant submitted that he had not been told by the agency that after he had missed the 28 day period, there was more chance of an extension of time if he applied sooner rather than later for an extension of time. He also indicated that he held the view for some time that the other party’s request to the agency for a fresh assessment could result in a revisiting of the school fees decision.
The other party pointed out that the applicant could have contacted the SSAT to ask questions about the process and did not appear to have done so. She did not wish to revisit the matter. She pointed out that the boys had attended private schools in 2014 and would do so in 2015 and that the level of contribution sought from the applicant was considerably less than half the fees.
In looking at the various competing factors, the Tribunal gives considerable weight to the possibility of a different outcome taking into account the differing views of the parties as to what they had agreed to and the applicant’s changed circumstances. The applicant is required to make payments in relation to bankruptcy as well as making child support payments at the standard rate as well as the school fees. His employment and financial circumstances remain under a cloud.
While his application for an extension of time was delayed, his explanations as to why that happened are plausible even though he could be said to have rested on his rights in the latter part of the four months after the date for lodgement set out in the legislation. He remained in contact with the agency although he deferred lodgement of the application for extension of time of its decision longer than he should have.
On balance, taking all the factors into account including that there is some prejudice to the other party, the Tribunal finds that the extension of time should be allowed.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the applicant is granted an extension of time to 7 August 2014 for lodgement of his application to the respondent.
I certify that the preceding 35 (thirty‑five) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Administrative Assistant
Dated 25 February 2015
Date of hearing 17 December 2014 Counsel for the Applicant Ms M Schilling Solicitors for the Applicant Ms Pana Dokos Respondent No active role Other Party In person
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