Costopoulos and Secretary, Department of Human Services (Social services second review)

Costopoulos and Secretary, Department of Human Services (Social services second review) [2019] AATA 2483 (10 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2650
Re:Alexandra Costopoulos
APPLICANT

AndSecretary, Department of Human Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member

Date: 10 July 2019
Date of written reasons: 12 August 2019
Place:Perth

The Applicant’s application for an extension of time to lodge an application for review of the decision of an Authorised Review Officer of the Department of Human Services on
20 September 2018 is refused.
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Brigadier A G Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of Department of Human Services authorised review officer of
20 September 2018 – significant delay – awareness of appeal rights – explanation not compelling – poor prospects of success of substantive application – alternative avenue of relief – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 43(2A)
Aged Care Act 1997 (Cth) – s 44-31
Social Security Act 1991 (Cth) – s 1122
Subsidy Principles 2014 (Cth) – cl 60
CASES
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Secretary, Department of Families, Community Services and Indigenous Affairs and White (2007) AATA 1712
Secretary, Department of Family and Community Services and Roberts (2003) AATA 269; 73 ALD 412
Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.256
REASONS FOR DECISION
Brigadier A G Warner, Member
12 August 2019
INTRODUCTION

On 10 July 2019 the Tribunal, at the conclusion of an interlocutory hearing (the hearing) held that day, gave oral reasons for its decision to refuse the Applicant’s application for an extension of time to make an application to the Administrative Appeals Tribunal

(the Tribunal)
for review of a decision made by an authorised review officer (ARO) of the Department of Human Services (the Department) on 20 September 2018.
Ms Costopoulos’ nominee, Ms Elias, subsequently requested a written statement of those reasons on 17 July 2019 under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The written reasons which follow are distilled from the edited transcript of the oral reasons given on 10 July 2019.
BACKGROUND
On 9 May 2019 the Applicant lodged an extension of time application to this Tribunal for a review of a decision made by the Department through its ARO on

20 September 2018. The ARO decided that the Applicant’s assets for the purpose of an aged care means test assessment were $4,849,908 and that the Applicant was not entitled to financial hardship assistance.
The interlocutory hearing was conducted by telephone conference. The Applicant was represented by her nominee, Ms Elias, and the Respondent was represented by

Mr Calaby and Ms Forsyth, who participated from Canberra.
ISSUE
The Tribunal must determine, in this interlocutory proceeding, whether it is reasonable in all the circumstances to grant the Applicant an extension of time in which to lodge an application to the Tribunal to review the decision made by the ARO on

20 September 2018.
EVIDENCE
The Tribunal had before it the following evidence:
·the application for extension of time for making an application for review of decision dated 9 May 2019 (Exhibit A1);
·application for review of decision and accompanying documents dated 9 May 2019 (Exhibit A2);
·application for review of decision dated 4 October 2018 (Exhibit A3);
·bundle of documents provided by the Respondent at request of the Applicant (Exhibit A4);
·Secretary’s objection to extension of time application, including attachments A – D, dated 6 June 2019 (Exhibit R1);
·notice opposing application for extension of time dated 29 May 2019 (Exhibit R2);
·Tribunal letter in application 2018/5737 dated 5 October 2018 (Exhibit R3); and
·the oral evidence of the Applicant’s nominee at the hearing.
LEGISLATION AND AUTHORITIES
Under subsection 29(2) of the AAT Act, an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) of the AAT Act permits the Tribunal to extend the time for the making by that person of an application to the Tribunal, if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
In the case of Hunter Valley Developments Pty Limited & Ors v The Hon Barry Cohen (1984) 3 FCR 344, 348-349, the Federal Court set out a series of factors that might be of relevance under similar provisions. It is customary for the Tribunal, in determining applications for an extension of time, to be guided by those principles or factors, which briefly are as follows:
(a)…it is the prima facie rule that proceedings commenced outside that period

[the prescribed period] will not be entertained…
(b)Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights” …) and a case where the decision maker was allowed to believe that the matter was finally concluded…
(c)Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension…
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude ... A delay which may result, if the application is successful, in the unsettling of other people … or of established practices … is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted …
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion …
The courts have provided further guidance. In the case of Comcare v A’Hearn (1993)

45 FCR 441, 444, the Full Federal Court held that although the provision of an acceptable explanation for delay in lodging an application is not an essential precondition for the favourable exercise of the discretion to grant an extension of time for the lodging of that application, “it is to be expected that such an explanation will normally be given, as relevant to the matter to be considered…”.
In the matter of Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451, Katz J stated that in determining the question of an extension of time, the Tribunal should weigh together all relevant factors.
CONSIDERATION
In the application for an extension of time currently before this Tribunal (Exhibit A1, 2),

the Applicant gave her reason for the application as follows:
Centrelink advised there would be no fee so Application [sic] was lodged. Appeals Tribunal [sic] advised Application [sic] would be dismissed unless $900 fee paid. Could [sic] not afford the $900 fee to continue Appeal [sic]. Centrelink still advising there is no fee but after my insisting checked and conceded I was correct.
Recently, Alexandra has been given a Health Care Card which means the fee would now be $100. Would like to put application forward again with that in mind.
Ms Elias reiterated those reasons before the Tribunal.
In the notice of opposing the application, the Respondent provides the following grounds for opposition: length of delay; awareness of appeal rights and explanation for the delay; prejudice to the general public; prospects for success; and available alternative avenues of relief (Exhibit R2).
The Tribunal now turns to the consideration of those factors.
Length of delay
The evidence is that the Department posted the ARO decision of 20 September 2018 to the Applicant and her nominee, Ms Elias, in a letter that day. In the absence of evidence to the contrary, the Applicant is deemed to have received it on 8 October 2018.

The relevant 28-day period, therefore, expires on 5 November 2018 and the Applicant is seeking an extension of time until 9 May 2019, which is some 185 days out of time.
The Respondent cites the matter of ReSecretary, Department of Family and Community Services and Roberts [2003] AATA 269; 73 ALD 412, 416 in submitting at the hearing that although the length of delay will be a relevant consideration the brevity of the extension sought does not, however, lead automatically to an order extending the time.
The Tribunal finds that taken alone, the significant length of delay in this matter of 185 days weighs against the granting of an extension of time.
Awareness of appeal rights and explanation of the delay
The Department advised the time limits for lodging an application for a review with this Tribunal in the ARO’s letter dated 20 September 2018, which included:
If you do not agree with a Residential Care Asset Assessment decision, you can request an independent review by the Administrative Appeals Tribunal (AAT).

Your request for review should be lodged within 28 days of being notified about this decision. (Exhibit R1, Att A, 5)
(Original emphasis.)
The Applicant previously lodged an application for a review of the same decision on

4 October 2018, indicating her awareness of her appeal rights. That application was subsequently refused for non-payment of the application fee under s 69C of the AAT Act.
In considering this factor, the Tribunal carefully considered the evidence that Ms Elias gave before the Tribunal regarding advice she said she received from Centrelink regarding the payment of fees for applications to the Tribunal. In relation to the Applicant’s assertion that “Centrelink advised there would be no fee so Application was lodged … Could not afford to continue Appeal”, the Respondent relevantly notes:
correspondence from the Tribunal dated 23 November 2018 [Exhibit R1] (Att B) refers to the Applicant being advised on 5 October 2018 that she must pay an application fee; and
if the Applicant was unable to afford the fee, it was open to the Applicant to make a request to the Tribunal for fee reduction on grounds of financial hardship.
The Tribunal’s 5 October 2018 advice to the Applicant states in part: “A fee of $920 must usually be paid when you apply for review of this type of decision. You may be eligible to pay a reduced fee of $100 instead of the full fee”. The appropriate form for requesting the fee reduction is attached to that letter. This 5 October 2018 correspondence to the Applicant provided prior to the expiration of the prescribed 28-day appeal period, supports the Respondent’s contention already quoted. The Tribunal is satisfied that the Applicant was advised of her appeal rights and the timeframe for the exercise of those rights. It is the Tribunal’s view that the Applicant has not given a compelling or satisfactory explanation for not lodging an application for review before the expiration of the prescribed 28-day period on or about 5 November 2018, let alone, not doing so for a further

185 days.
This view is reinforced in the circumstances of this matter where the Applicant has made and not pursued a previous application for a review of the same decision. In concluding the Tribunal’s consideration of this factor, it has regard to a number of cases often cited by the Tribunal, such as Re Romeo and Secretary, Department of Social Security

(1992) 26 ALD 248 and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, where the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing.
The Tribunal’s consideration of this factor weighs against the granting of an extension of time.
Prejudice
The Respondent submits that the Secretary is not prejudiced by the delay and the Tribunal takes that particular prejudice no further.
At paragraph 25 of Exhibit R1, the Respondent notes a number of Tribunal decisions where the consideration of the wider prejudice to the general public and unsettling of established practices has weighed against granting an extension of time. The Tribunal has particular regard to the matter of White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712, where it is stated:
24.Notions of fairness between the parties are also relevant … In the review of administrative decisions, it is arguable that wider notions of fairness are relevant. An administrative decision affecting an individual may be only one of many made under a legislative scheme and affecting a number of other individuals. This fact draws in the need to have regard to notions of what is fair not merely between the parties but also between the applicant and those in a like position… (Exhibit R1, para 25).
In the absence of argument or evidence to the contrary, in the present extension of time application the Tribunal agrees with the general proposition that it is in the public interest that there be an end to the appeal process. Time limits are imposed to ensure there is a predictable and orderly conclusion to the process and that the public interest and the interests of those applicants who comply with prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that that should occur.
Prospects for success/merits of the substantive application
It is not necessary for the Tribunal to conduct a merits review of the Applicant’s substantive application at this interlocutory stage. However, it is appropriate for the Tribunal to consider the merits of that application as part of the process of determining this application for an extension of time. Relevantly, the Tribunal notes the statement of

von Doussa J in the matter of Kuljic v Secretary, Department of Social Security (1994)

33 ALD 121, 122, to the effect:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.
Further, the Federal Court in Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142, citing Perry J in Jamal v Secretary, Department of Social Services [2017] FCA 916 at [12]:
As to the last of these matters, it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other court users … the grounds should be considered on their face and examined at a “reasonably impressionistic level”...
In considering the merits of the substantive application today, the Tribunal reviewed the ARO decision, the relevant legislation and policy and the submissions and evidence before it.
The Applicant claims that the ARO decision of 20 September 2018 is wrong for the following reason:
Residential Aged Care daily rate is set at the highest possible due to means test. This includes Family Trust which has been involved in Family Court Litigation for 13 years and is continuing. Injunctions are in place. Without access to these funds, high daily rate cannot be paid. If the means test did not include the Trust at this stage, the lower rate applied would be able to be paid from current income.
Would just like a daily rate based on current assets and income received.
At this critical stage not enough funds to continue paying Aged Care Facility at the high rate. The problem being what do we do with my mother then?
One Government Department says you have all these assets and income so you should pay accordingly. Another Government Departments says you cannot access those funds. Can’t do one without the other. (Exhibit A2, 3).
In its consideration, the Tribunal has regard to those reasons and has some sympathy with the position that the Applicant finds herself in. In order for the Applicant to succeed in a substantive application for a review, she would need to show that the ARO incorrectly assessed the value of her assets for the purposes of the aged care means test assessment and that the ARO made an error in determining that the Applicant was not eligible for a hardship supplement. The relevant legislation is contained in the Act, the Subsidy Principles 2014 (Cth) (the Principles) and the Social Security Act 1991 (Cth)
(the Social Security Act). There is also relevant policy contained within the Social Security Guide.
Section 1122 of the Social Security Act states that if a person lends an amount after
27 October 1986 the value of the assets of the person for the purposes of the Social Security Act includes so much of that amount that remains unpaid. The Guide at instruction 4.6.5.60 states relevantly:
Money loaned by a person is an assessable asset … The value is the amount owed to the person but does not include any interest payable on the loan.

The asset value applies whether or not the loan is performing to the terms of the loan agreement. An outstanding loan made by the person BEFORE 27 October 1986 is assessed in the same way as a loan made after this date. Loans are financial assets and are deemed.
(Original emphasis.)
The Respondent’s submissions regarding the treatment of loans to YWB Pty Ltd ATF
The YWB Trust as an asset (Exhibit R1, paras 41-44) appear consistent with the legislation and the evidence before the Tribunal.
The Tribunal now turns to the matter of the hardship determination. Section 44-31 of the Act provides for the Secretary to make a determination that a person is eligible for a hardship supplement in accordance with the Principles, the relevant clause being cl 60 – “Eligibility for hardship supplement - determination by Secretary”. Having regard to the evidence, which was not disputed, the Tribunal finds nothing unreasonable in the ARO’s finding that the Applicant was not eligible for a hardship supplement (see Exhibit R1, paras 46-49).
At the hearing, Ms Elias stated that she understood the Centrelink decision, that the assessment of Ms Alexandra Costopoulos’ assets was correct in the eyes of the law and that the Department had not been wrong in the assessment of those assets.
Finally, the Tribunal notes that it had an opportunity to examine the bundle of documents that were provided at the start of this interlocutory hearing (Exhibit A4) and concurs with the Respondent’s submission that the documents are irrelevant to the determination of the present extension of time application matter.

The Tribunal considers that the prospects of success in the substantive application are very limited and consequently, this factor weighs against the granting of an extension of time.
Available alternative avenues of relief
The Respondent relevantly cites the matter of Brown v Commissioner of Taxation
(1999) 99 ATC 4516 in submitting that where a refusal of an extension of time would shut the Applicant out, finally and entirely, from particular relief, this may weigh in favour of an extension of time. The Tribunal agrees. However, those circumstances do not apply in the present consideration as it is open to the Applicant to request an aged care means assessment at any time.
The Tribunal notes the Applicant’s evidence that she had pursued this avenue without success but on balance the Tribunal finds that consideration of this factor weighs against granting an extension of time.
CONCLUSION
Having carefully considered and weighed the relevant factors and having regard to the circumstances of the case, the Tribunal concludes that the Applicant was aware of her appeal rights and the prescribed timeframe within which those rights could be exercised. The length of delay is significant. The reason offered for the delay is not compelling.
The prospects of success of the substantive application are limited and there is potential for an alternative avenue of relief.
The Tribunal finds that in all the circumstances, the justice of this case does not support the Tribunal exercising its discretion to grant the requested extension of time for making an application.
DECISION
For the reasons stated, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the Applicant’s application for an extension of time to lodge an application for review of the decision made by the Department on 20 September 2018.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Member Brigadier A G Warner

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Associate
Dated: 12 August 2019

Date of hearing: 10 July 2019

Representative nominee for the Applicant: Ms R Elias

Representative for the Respondent: Ms Forsyth and Mr Calaby

[2019] AATA 2483

10 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	10 July 2019
Representative nominee for the Applicant:	Ms R Elias
Representative for the Respondent:	Ms Forsyth and Mr Calaby