Coorey and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1017

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1017

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2509

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCIS COOREY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr Stephen Frost, Member

Date19 January 2007

PlaceSydney

Decision The Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an Application for Review of a decision of the Social Security Appeals Tribunal dated 3 April 2006.

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

Mr Stephen Frost
  Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - application out of time - request for extension of time - merits of substantive application - if successful, no impact on rate of pension received - "deemed" income - impact on decisions made by other Government agencies - application for extension of time refused

Administrative Appeals Tribunal Act 1975; sections 29(2), 29(7)

Social Security Act 1991

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

19 January 2007 Mr Stephen Frost, Member           

1.      The Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an Application for Review of Decision of the Social Security Appeals Tribunal dated 3 April 2006. 

background

2.      The Applicant, Mr Coorey, has sought a review of a decision of the Social Security Appeals Tribunal (SSAT) which confirmed that certain assets and income are to be attributed to him as a result of a disposal by him in 2004 of $50,000 worth of gold sovereigns to his children.  His application to this Tribunal for review of that SSAT decision was made on 4 December 2006 although the decision of the SSAT had been made on 3 April 2006.

3. The time limit for lodging Applications for Review with this Tribunal is generally 28 days as specified in Sub-section 29(2) of the Administrative Appeals Tribunal Act 1975. Sub-section 29(7) of the Act authorises the Tribunal to extend the time for the making of an Application for Review “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”. 

4.      Mr Coorey made his Application for Extension of Time also on 4 December 2006, the same date on which he made the Application for Review. 

5.      The Secretary opposed Mr Coorey’s Application for Extension of Time and on 16 January 2007 a Hearing was held in relation to the Extension of Time Application.  Mr Coorey represented himself at the Hearing and the Secretary was represented by Mr K. Bullock of Centrelink’s Legal Services Branch.

the hearing

6. At the outset I explained to Mr Coorey that the purpose of the Hearing was to provide me with sufficient information so that I could make a decision whether I should grant the Application for Extension of Time for him to lodge his Application for Review. It was not a Hearing of the merits of his case but rather, an opportunity for him to present material to enable his application to proceed. I explained the terms of Sub-section 29(7) and also indicated that there are well established principles that I need to take into account in deciding whether to grant the extension of time. I explained that I was bound by those principles and could not grant the extension simply because I considered it convenient to do so.

7.      Those principles are set out in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.  Mr Bullock agreed that I should turn my mind to the matters set out in that decision.

8.      The first issue that Mr Coorey was asked to address was the question whether he had an acceptable explanation for the delay in making his Application for Review.  It soon became clear that his decision to contest the SSAT’s decision was triggered by correspondence issued to him by Centrelink in November 2006 which appeared to be a standard request on behalf of Centrelink for information in relation to his financial affairs.  That particular request for information does not seem to be particularly linked to the issues that were covered by the SSAT in April 2006.  Nevertheless, the request from Centrelink seems to have triggered Mr Coorey’s concerns that he is being treated “unfairly” or “unjustly” by Centrelink.  The crux of that concern is that certain assets and income are attributed to him despite the fact that he has disposed of the assets in question and as a result does not directly derive the income from them.  But as is evident from the Reasons for Decision of the SSAT, that concern does not have a specific impact on him in relation to the rate of Disability Support Pension that he is paid.  The reason for this is that both the asset value and the income that are attributed to him are well below the thresholds that would cause any adjustment to be made to the rate of disability support pension (DSP) that he receives.  The real impact on him is that the “deemed” income is regarded by other Government agencies as real income and, according to Mr Coorey, adversely affects his entitlement to State subsidised housing and legal assistance.

9.      Mr Bullock responded to these concerns in an eminently reasonable way.  He volunteered on behalf of Centrelink to forward correspondence to Mr Coorey that made plain the fact that the assets and income that are attributed to him are attributed specifically because of particular provisions of the Social Security Act 1991. In this way, it is hoped, Mr Coorey will be able to demonstrate to other Government agencies that there are particular legislative provisions that have caused these amounts to be attributed to him, although he neither has the assets nor receives the income.

10. As stated above, the specific findings and decision of the SSAT in this case have no actual impact on Mr Coorey’s financial affairs as they relate to the rate of DSP to which he is entitled. It seems to me, although I did not fully explore the issue, that the merits of Mr Coorey’s case are slim indeed, and that is a factor that I do need to take into account in coming to a decision under Sub-section 29(7).

11.     In terms of the matters outlined by Wilcox J in Hunter Valley Developments, it seems clear to me that the proper course in this case is to refuse the Application for Extension of Time.  This is a case where the Applicant was not able to demonstrate in any real sense the circumstances that had led to the delay in making the Application for Review and, as I have already indicated, the application seems to have been made as a direct response to the receipt of the correspondence from Centrelink in November.  The merits, which in my view were dealt with comprehensively in the reasons of the SSAT, are not in Mr Coorey’s favour.  There would be a degree of prejudice to Centrelink if the extension of time were granted, since the Department should be entitled to expect that the matter is finalised when the Applicant takes no steps to contest that position within a reasonable time of having been notified of it. 

12.     In the circumstances, Mr Bullock’s undertaking referred to above is a much more meaningful and helpful outcome for Mr Coorey than he would receive if I were to grant his Application for Extension of Time.  In the absence of any indication that he has a stronger case than he was able to present to the SSAT, it is not appropriate that I should grant the Application for Extension of Time in this case.

13. Accordingly, I have decided not to exercise the discretion to grant the extension of time under Sub-section 29(7) of the Administrative Appeals Tribunal Act 1975.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Stephen Frost, Member.

Signed:        .........[Emily Gadsby]........
  Associate

Date of Hearing  16 January 2007
Date of Decision  19 January 2007
Representative for the Applicant    Mr F Coorey, Self-represented      
Solicitor for the Respondent         Mr K Bullock, Centrelink Legal Services