Confidential and Principal Member, Social Security Appeals Tribunal Confidential OTHER PARTY

[2012] AATA 297

[2012] AATA 297 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0648
Re	Confidential
APPLICANT
And	Principal Member, Social Security Appeals Tribunal
RESPONDENT
And	Confidential
OTHER PARTY

DECISION

Tribunal	Regina Perton, Member
Date	16 May 2012
Place	Melbourne

The Tribunal affirms the decision under review.

......[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).

Catchwords

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 / denied

Legislation

Child Support (Registration and Collection) Act 1988 sections 90, 91, 92

Cases

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Regina Perton, Member

16 May 2012

1. The applicant and his former partner, the other party, are parents of two children born in 1992 and 1996 respectively. The applicant was liable to pay child support for those two children.  The elder child turned eighteen in April 2010 and the applicant’s liability in relation to him ceased.  The applicant is still liable to pay child support to the other party for the younger child.  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. The amount of child support payable by the applicant under the relevant formula between 1 September 2009 and 30 November 2010 was $365.  This was based on the applicant’s adjustable taxable income of $18,702 for the 2008/2009 financial year and the other party’s rate of $13,571 for the same year.

3. On 23 April 2010 a change of assessment was initiated by the Child Support Registrar on the basis of the applicant’s income.  On 3 May 2010 a delegate decided that between 1 January 2010 and 30 April 2012 the applicant’s adjustable taxable income should be set at $55,422.

4. On 22 June 2010 the applicant objected to the decision.  On 20 August 2010 an objections officer of the Child Support Agency (CSA) disallowed the objection.

5. 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.

6. On 19 October 2011 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 more than a year after the expiry of the 28 day period.  The SSAT refused the applicant's extension of time application on 17 January 2012.

7. On 22 February 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.

8. The issue for this Tribunal is whether to grant the applicant an extension of time to lodge his appeal to the SSAT. 

   RELEVANT CONSIDERATIONS

9. There is no dispute between the parties that the application for review was lodged out-of-time.  The Tribunal concurs.

10. 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

11. The applicant received the notification of the CSA's refusal to change the assessment in August 2010.   

12. The applicant engaged a solicitor to assist him in his dispute over the assessment and action in the Federal Magistrates Court in relation to the collection of arrears by the CSA.  In a submission dated 13 October 2011 supporting the extension of time application to the SSAT, the solicitor stated, among other things:

    …

    Until we became involved in this matter (late September 2011) … [the applicant] was…unaware that he had a right of appeal to the SSAT from the Agency’s [CSA] decision of 20 August 2010.

    When we pointed out to... [the applicant] that there was a statement in the objection decision which stated he had a right of appeal, … [the applicant] advised us he had not seen this.

    We note that… [the applicant] is a simple man.  He drives a truck for a living and, we would suggest, it is not unreasonable for him to have glossed over the statement – which we note was a two line statement in a 7 page objection decision.

    We note that very shortly after we brought this mater to … [the applicant’s] attention he instructed us to make this application.

    At least in relation to this … [the applicant] has acted with all due haste.  He received advice from us and then immediately instructed us to make this application.

    …

13. In a submission accompanying his application to this Tribunal, the applicant stated that the CSA and the SSAT were all the same thing to him.  He described himself as being so angry, confused and disappointed that he did not do the correct thing until he saw the solicitor who lodged the SSAT application for him. 

14. The CSA records show that the applicant telephoned the CSA on 3 December 2010 in relation to the assessment and a CSA officer advised him that his only option to challenge the objections officer’s decision was to apply to the SSAT.  The CSA officer   gave the applicant the SSAT’s telephone number.  On 21 December 2010 the applicant applied to the SSAT for review of the decision.  On 4 January 2011 the SSAT wrote to the applicant to advise him that he was out-of-time but informed him that he could apply for an extension of time.  The SSAT advised the applicant to do so within 14 days and sent a form to enable him to do so.   He did not return the form.  On 19 January 2011 the SSAT wrote to the applicant to advise him that his application for a review of the decision had been dismissed as the SSAT was unable to consider his application. 

15. On 19 October 2011, the applicant sought a review of the objections officer’s decision with the SSAT for the second time. The applicant’s solicitor provided written reasons dated 13 October 2011 for the late lodgement.  At a hearing on 1 December 2011, the SSAT raised the details regarding the applicant’s first application for review with the applicant’s solicitor.  The SSAT gave the solicitor time to seek his client’s response as the applicant had not attended the hearing.  The SSAT received no further submission from the applicant or his solicitor. On 17 January 2012 the SSAT refused an extension of time.

16. The applicant told the Tribunal that he had not realised the difference between the CSA and SSAT.  He said that he had taken too long to seek assistance and now realised that he should have acted sooner.

17. The other party pointed out that the applicant had been dealing with the CSA and had lodged previous objections with the CSA.  She stated he would have been aware of the need to meet time limits.  She disagreed with the applicant’s solicitor’s description of the applicant as a simple man who was unaware of his right to seek review at the SSAT until advised to do so by the solicitor.

    WHETHER THE APPLICANT HAS RESTED ON HIS RIGHTS

18. The CSA advised the applicant of his right to appeal in August 2010 as part of the notification of the objections officer’s decision.  In early December 2010 the applicant contacted CSA and a CSA officer advised him of his right to go to the SSAT.   He lodged an application with the SSAT which could not be accepted as it was some three months out-of-time.  In early January 2011 the SSAT advised him of the requirement to lodge an application for extension of time.  The applicant did not do so.  His application for an extension of time was not lodged until 19 October 2011, more than a year late and eleven months since his first application to the SSAT.

19. The applicant has rested on his rights.  The CSA has provided notes to this Tribunal (and to the applicant and other parties) which indicate that the applicant has often refused to contact the CSA when requested to do so. This meant that he missed opportunities to put his point of view.  The CSA tried on a number of occasions to speak to him but was rebuffed by the applicant. 

    PREJUDICE TO OTHER PARTIES

20. There is no evidence to suggest that the respondent would suffer prejudice if the Tribunal grants the applicant an extension of time. 

21. The Child Support Registrar brought an action in the Federal Magistrates Court against the applicant, seeking arrears of child support. The applicant signed a consent order on 11 November 2011 to settle the action.  He agreed to pay the applicant $14,419.06 in child support arrears and $1,455.91 in late penalties.  The applicant agreed to pay the arrears and costs of $2,128.40 within 60 days of final determination of the application made to the SSAT (including any appeal or judicial review).  The applicant is restrained from disposing of a house in Horsham. There is a note that the applicant still has to pay any ongoing payments required. 

22. The other party, who is waiting on the outstanding payment of arrears, may well be prejudiced by the lengthy proceedings.     The other party reminded the Tribunal that she was not the person who initiated the review but rather it was the CSA of its own initiative.  She told the Tribunal that she no longer cared what happened as she found it very difficult and stressful to continue to deal with the consequences of the CSA’s review. 

    WIDER PUBLIC CONSIDERATIONS

23. 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

24. The applicant submitted that the evidence now available indicated that his income was lower in the 2010/2011 financial year than estimated by the CSA. This is evidenced by his tax return.  He stated that he had not worked during 3 months of that financial year.    

25. The applicant said that he hoped that the Tribunal could give him a fair outcome.  He was taken aback when told that the only thing that the Tribunal could do was to decide if the case should go back to the SSAT. 

    CONSIDERATIONS OF FAIRNESS

26. 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?

27. The Tribunal is not satisfied with the applicant’s explanation as to why he did not apply for a review within the 28 day period.  The CSA sent him information about his right to seek review.  Prior to that he had not responded to the written correspondence or telephone contact from the CSA to advise him of his right to submit evidence.  The other party did respond.  The applicant has regularly failed to take up opportunities offered by the CSA and by the SSAT to put forward his viewpoint and provide evidence of his income and expenditure. 

28. While the Tribunal does not fully consider the merits of the application, it is possible that it would make a different finding in relation to the applicant’s income were it to do so. However, he has provided inconsistent information and has not been forthcoming to the CSA.  Hence, it is difficult to assess how candid he has been in his latest submission to this Tribunal and in his oral evidence.  

29. 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.  This is particularly so given the Federal Magistrates Court’s order over the arrears. 

30. The Tribunal is 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.

31. The applicant was fully aware of his right to seek review at the SSAT in December 2010 when he lodged an out-of-time application.  However, he did not follow the advice of the SSAT to apply for an extension of time.  The CSA sent him the relevant form and he chose not to lodge it.  He does not appear to have acted until the CSA took legal action to chase the arrears in the Federal Magistrates Court.

32. The Tribunal attempted to obtain further evidence from the applicant during the hearing, which was conducted by telephone.  However, the applicant refused to answer the questions posed by the Tribunal.  He made a number of abusive comments about the other party, the CSA, the SSAT, this Tribunal and the legislative regime and eventually terminated the telephone call.

33. Taking into account all the relevant factors, the Tribunal is satisfied that it would not be proper, fair or equitable in all the circumstances to exercise the discretion to grant an extension of time. 

    DECISION

34. The Tribunal affirms the decision under review. 

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member.

.....[sgd]...................................................................

Associate

Dated 16 May 2012

Date(s) of hearing	10 May 2012
Applicant	In person by telephone
Respondent	Did not appear
Other Party	In person by telephone