Conti and Secretary, Department of Family and Community Services
[2005] AATA 199
•4 March 2005
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2005] AATA 199
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/318
GENERAL ADMINISTRATIVE DIVISION ) Re LEE PAUL CONTI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date4 March 2005
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal extends the time for filing an application for review to 5 April 2005.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – application for extension of time –7 year delay attributed to stress caused by failed business and death of son – extension of time granted
Social Security Act 1991
Administrative Appeals Tribunal Act 1975 s 29
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
Comcare v A’Hearn (1993) 45 FCR 441
ORAL REASONS FOR DECISION
4 March 2005 Senior Member WJF Purcell 1. On 22 September 2004 the Tribunal received an application for extension of time for review of a decision. The applicant described the decision as being in relation to “A point system which was just over the level”, which he received in July/August 1997. The reasons for the application were:
“Death of my eldest son (Bris).
Nervous breakdown (visit to Glenside.)
Medication and stress.
Nothing gets better. I feel penalised. Hurt.”
2. The respondent (the Department) advised that it opposed the application, as the only record it could find of a Social Security Appeals Tribunal (SSAT) decision for the applicant was dated 5 June 1997, and involved a compensation preclusion period. The Department maintained that it is prejudiced in this matter inasmuch as the decision is so long ago, and the Compensation Section has no electronic records or a file on the matter. The Department was unable also, to provide a specific period of time covered by the preclusion period, or details of the compensation settlement that led to the preclusion period. It appeared to the Department that a decision was made to impose a lump sum preclusion period, probably in late 1996, or early 1997. The preclusion period has long since been served, and records destroyed. For these reasons, the Department opposed the granting of an extension of time.
3. As it appeared to the Tribunal that the applicant had the only copy of the decision, the Tribunal requested that he forward it in, so it could be copied, and returned to him; but he advised that he was unable to do this because he said, he was “broke”.
4. At the Tribunal’s suggestion, the applicant contacted Welfare Rights, and he was represented at the Hearing by Ms Riley. Mr Kilderry appeared for the Department. The applicant had been informed that the Tribunal would reimburse his travel expenses from Victor Harbor to Adelaide and return. He did not attend the Hearing, but gave evidence by way of telephone link-up.
5. Prior to the Hearing, Ms Riley was able to provide more background details. On 18 July 1994 a delegate of the Secretary decided that the applicant was subject to a preclusion period from 1 May 1994 to 24 July 1995 (60 weeks). This decision was subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 5 June 1997. He maintains that his state of health has prevented him from completing the appeal process at any time, and he now requests an extension of time, so that the decision can be considered in the light of his special circumstances. He seeks a review of the preclusion period imposed, on the grounds that he has experienced unexpected and unforeseeable losses in his efforts to become self sufficient, in spite of his work related injuries.
6. The applicant was employed by Hills Industries Limited when he suffered a work related accident. On 30 May 1994 he accepted a settlement of $63,864.00, which was awarded partly for lost earnings, or lost capacity to earn, and was therefore subject to the 50 percent provision, under the Social Security Act 1991 (the Act). The result of the calculation was that he was precluded from benefits for 60 weeks from 1 May 1994 to 24 July 1995.
7. Ms Riley outlined the applicant’s circumstances, and stated that he was unable to gain employment because of his back injury. He decided to embark upon a second-hand business venture making use of his knowledge as a collector. In addition, this business did not need heavy lifting or bending, which would aggravate his injury. He was trying to use the resources he had at his disposal in order to become self-sufficient or, at the least, to supplement his Social Security payments. The group of shops in which the applicant’s business venture was conducted was sold. The new landlord made inappropriate renovations, and the business suffered a downturn. The applicant expended funds on advertising, business cards, rent and stock, and the failure of the business has left him severely short of funds. The distress suffered by the applicant due to the failed business was compounded by the unexpected death of his 18 year-old son. The applicant suffered a nervous breakdown, and was admitted to Glenside Hospital for a period.
8. The applicant said in evidence, that he has attempted to have the preclusion period reconsidered on a number of occasions, of which the Department is aware, but because of the nature of his medical condition, it is difficult for him to undertake stressful situations. He is reliant on Centrelink payments. He is married, with two surviving children, Patrick 11 and Georgia 9. His wife earns some money from selling Avon products part-time. The family lives frugally from Centrelink payment to Centrelink payment.
9. The applicant gave evidence that neither his solicitor, nor his barrister, told him that his lump sum payment would affect his eligibility for payments from Centrelink. The applicant, his wife and family had lived in rented accommodation. Soon after he received his lump sum in May 1994, he purchased a home for $88,000, and paid $70,000 deposit from his lump sum. When he received the Department’s decision in July 1994, outlining that he would be precluded from benefits for 60 months, he was devastated. He says that his lawyer would not speak to him, and he could not talk to his barrister, except through his lawyer.
10. In about January 1997, the applicant requested review of the decision, which was affirmed subsequently by the SSAT. He said in evidence that the application was on the basis that he had not been told of the preclusion period, or he would not have bought the house, and he was in dire financial circumstances. The SSAT affirmed the decision on 5 June 1997. It was not until 22 September 2004, more than 7 years later, that the applicant applied to this Tribunal for an extension of time to review the SSAT’s decision. He said in evidence that from time to time he contacted the Department to agitate about the decision, but he was too stressed, he was on 200 mgs of morphine a day, and could not concentrate well enough to pursue the matter.
11. The applicant’s treating General Practitioner, Dr Benson, has provided a report of 11 January 2005, in the following terms:
“…
[Mr Conti] has been my patient for a number of years. He suffers from chronic back pain and mixed anxiety and depression in association with post traumatic stress disorder.
I have found that he has in general complied with the medical treatment that I have advised. He has problems with finances as a result of the loss of his business in 2001.
He is on regular valium and the anti depressant zoloft and has been on these for some years.
As a result of these illnesses he has the potential to suffer from increased anxiety when placed under pressure and so I believe that he may well put off making difficult decisions.
He has had a number of occasions when he has had appointments in Adelaide to see a specialist and he has not been able to go as a result of lack of money for petrol.
I would also note that the Pain clinic increased the dosage of his medication last year for his back pain and he also finds that the money that he has to spend on medication reduces expenditure on other essential items.
Past History:
Active:
Date Condition – Comment
1997 GASTRITIS
1999 CHRONIC LOW BACK PAIN
1999 DEPRESSION – REACTIVE
1999 LAMINECTOMY
Chronic lower back pain
2001 REFLUX OESOPHAGITIS
2003 DERMATITIS
On the back of his neck
2003 POST TRAUMATIC STRESS DISORDER
Inactive:
Date Condition – Comment
1992 LOW BACK PAIN
Injured his back at Hills Industries in 1992
1999 AC JOINT PAIN (Left)
Previous pin inserted 1987 after MVA
2000 VASECTOMY
2001 OTITIS EXTERNA
Allergies:
No known allergies
Current Medication:
Drug Name Ltd. Elapse Strength Dose/Freq./Special
ELOCON CREAM 0.1% daily m.d.u.
KAPANOL Capsule 50mg 1 t.i.d.
SOMAC Tablet 40mg 1 mane
VALIUM Tablet 5mg 1-2 daily
ZOLOFT Tablet 100mg 2 mane”
12. The applicant impressed me as a stressed, bitter man, who having been seriously injured at the age of 31, in 1992, has been struck by a string of misfortunes since then; and has tried to overcome them. He says that he borrowed two further amounts of $10,000 on his home so that he could establish a second hand business in 1999. As outlined earlier in these Reasons for Decision, the business failed in 2001, not long before the applicant’s son, Ben, aged 18, died in Brisbane, and he has extra debts. He has never been able to afford to visit his son’s grave, and this distresses the younger children of the family also. His is a most unfortunate history; and he has been diagnosed now, with post-traumatic stress disorder. His only explanation for the more than 7 year delay between receipt of the SSAT decision of June 1997 and lodgement of an application for an extension of time in this Tribunal, is that he had been too stressed by all that has happened to him; and he has applied now, because he is “broke” and “looking for a fair go”.
13. In accordance with s 29(2) of the Administrative Appeals Tribunal Act 1975, a person has 28 days within which to apply for review of a decision. A person may apply for an extension of the time allowed to lodge an application pursuant to s 29(7) of the AAT Act, and may do so even though the time for an application has expired (s 29(8)). In the matter of Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305, Wilcox J, without intending to set out an exhaustive list, set out a number of principles to guide a Court in reaching a decision on an application for an extension of time and deemed relevant considerations, in determining the exercise of the Commission’s discretion:
· Whether the applicant provided an acceptable explanation for the delay such that it would be fair and equitable in the circumstances to extend the time.
· Any action taken by the applicant to make the Commissioner aware that the decision was being contested.
· Any prejudice to the Commissioner which may have resulted from the delay.
· Any wider prejudice to the general public in terms of disruption to established practices.
· The merits of the application.
14. In Comcare v A’Hearn (1993) 45 FCR 441, the Full Court of the Federal Court said that although it will normally be expected that the applicant will give an explanation for his or her delay in lodging an application, such an explanation is not as essential pre-condition to the Tribunal’s exercising its discretion.
15. In this matter the applicant maintains that he suffers from various disabilities including anxiety and post-traumatic stress disorder. He experiences difficulty in completing tasks, and the stress symptoms seem to overtake his ability to focus. Although he has tried many times to appeal this decision about his preclusion period, he has been unable to face the task unassisted. He is currently taking anti-depressant medication. The Department has procedures to allow reconsideration of decisions to permit a fair and equitable outcome, but the applicant was prevented by illness from accessing those processes.
16. The applicant submits that the Department was previously aware of his dissatisfaction, and his agitation to have the decision reconsidered, but he concedes that it was not until September 2004 that he agitated for review of the SSAT decision. The Department will suffer very little prejudice from the delay because the applicant needs to substantiate his claim, and this would be the same position for a claim which was within time. In the context of beneficial legislation, the public interest is broad enough to allow the reconsideration of a preclusion period for a member of the public who has suffered a work related accident, and then unforeseen business reversals, in an attempt to become self-sufficient. It is the applicant’s contention that, if this matter was within time, there is sufficient case law to indicate that the special circumstances of the case should be considered.
17. The applicant maintains that although his action is out of time, he has not embarked on a "disastrous course of dissipation of his major asset". He has suffered a business downturn through no fault of his own, and he has dealt with the emotional shock of the loss of his 18-year-old son. These events, coupled with his work related disability, have contributed to his fragile state of health, and his inability to confront a stressful situation for any length of time. He is in financial difficulty, and for these reasons he argues the decision about his preclusion period should be reconsidered.
18. The applicant maintains the Department is critical of his purchase of a home for $88,000. for which he paid $70,000 deposit from his lump sum payment, and obtained a mortgage of $18,000. He now owes $53,000 because of his later borrowings; but had he not purchased a home, he would have been eligible for rent assistance from the end of the preclusion period (1 January 1995) to the end of February 2005. He would have received approximately $23,000.
19. The Department reiterated its submission that it suffers prejudice from the delay; that although it accepts that the applicant suffers from medical conditions, there is no medical evidence before the Tribunal that he was incapacitated at all times since the date of the SSAT decision. As to the applicant's submission that he is in financial difficulties, the family (that is the applicant his wife and two children) have a fortnightly Social Security income of more than $1,000 including Family Tax Benefit of $350.96 per fortnight. There is no financial hardship now, and after the relevant period (the preclusion period) the applicant had sufficient resources to set up his business.
20. I have had the opportunity to hear the applicant outline his circumstances, and to provide an explanation for the delay of 7 years, which is a lengthy delay. I have taken into account also the considerations outlined in HunterValley. In the applicant's case, I consider that in all the circumstances of the matter, his is an acceptable explanation for the delay.
21. The Department maintains that it is prejudiced by the delay. I accept Ms Riley's submission however, that the applicant's need to satisfy the Tribunal of his "special circumstances", and thus enable the Tribunal to exercise its discretion in his favour, places the Department in not much different position than if the claim was within time. Taking into account the balance of the relevant considerations outlined in HunterValley, I consider it appropriate in the circumstances, for the applicant to have the opportunity to pursue his application with the able assistance of Ms Riley.
22. For these reasons, the Tribunal extends the time for filing an application for review to 5 April 2005.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: ...........J Coulthard..............................................
AssociateDates of Hearing 19 January 2005 and 4 March 2005
Date of Decision 4 March 2005
Counsel for the Applicant Ms M Riley
Solicitor for the Applicant Welfare Rights
Counsel for the Respondent Mr R Kilderry
Solicitor for the Respondent Centrelink Service Recovery Team
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