Couch and Secretary, Department of Social Services (Social services second review) - [2021] AATA 5285

Couch and Secretary, Department of Social Services (Social services second review) [2021] AATA 5285 (11 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/4792
Re:Monica Jane Couch
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Senior Member J Rau SC
Date:11 October 2021
Place:Adelaide

The application for extension of time is refused.
…………………[Sgnd]…………………
Senior Member J Rau SC

CATCHWORDS
PROCEDURE – application for extension time – social security benefits – disability support pension – participation in program of support – whether extension of time should be granted – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991(Cth)
CASES
Brisbane South Regional Health Authority and Taylor (1996) 186 CLR 541
Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd and Other and Cohen [1984] FCA 176
Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142
White and Repatriation Commission [2005] AATA 75
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J Rau SC
11 October 2021

Ms Couch seeks review of a decision of the Social Services and Child Support Division of this Tribunal (“AAT1”) made on 21 May 2020 (“the 2020 decision”). The 2020 decision affirmed an earlier decision by an Authorised Review Officer of Services Australia (the “Respondent”) to reject Ms Couch’s claim for Disability Support Pension (“DSP”) which had been lodged on 16 May 2019 (“the 2019 claim”).
This involves the consideration of two matters:
(a)whether Ms Couch’s application for review of the decision filed on 5 June 2020 (“the 2020 application”), and later dismissed at her request on 16 December 2020, ought to be reinstated (“the reinstatement application”); and if not,
(b)whether Ms Couch should in all of the circumstances be granted an extension of time under subsection 29(7) of the Administrative Appeals Tribunal Act 1975(Cth) (AAT Act), to make a second application for review of the 2020 decision (“the second review application”).
Background
Ms Couch lodged the claim for DSP on 16 May 2019. Schedule 2, Clause 4 of the Social Security (Administration) Act 1999(Cth) provides that the relevant time to consider a person’s qualification is during the 13 weeks after the claim, that is 16 May 2019 to 15 August 2019. This means that Ms Couch’s relevant medical condition for the purposes of a claim for DSP is to be assessed on her condition as at the date of lodgement of her claim, or within 13 weeks of that date.
In this case, the underlying qualifying question is whether Ms Couch had an impairment of 20 points or more under the impairment tables at the relevant time.[1]
[1] Section 94(1)(b), Social Security Act 1991 (Cth).
The applicable impairment tables require that an impairment rating can only be assigned if the impairment is “permanent”. This in turn is defined to mean “fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years”.[2]
[2] Subclauses 6(3)-6(6), Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
On 25 May 2019, an assessment of DSP medical eligibility was conducted. There was insufficient evidence available to assess the Ms Couch’s medical eligibility.
A second DSP medical eligibility assessment was completed on 20 June 2019. This assessment recommended that Ms Couch was “manifestly medically ineligible” by reasons of “conditions not fully diagnosed, treated and stabilised”.
On 24 June 2019, the 2019 claim was rejected on the basis that Ms Couch did not have an impairment rating of 20 points or more under the Impairment Tables.
A third DSP medical eligibility assessment was conducted on 12 August 2019. The result was the same as the assessment completed on 20 June 2019.
Further evidence was provided, and a fourth DSP medical eligibility assessment was completed on 25 November 2019. This assessment recommended that the Ms Couch undergo a “job capacity assessment”.
On 20 December 2019, Ms Couch had a face-to-face job capacity assessment. This was conducted by an accredited exercise physiologist. The referral recommendation was that she “presented with a verified, permanent medical condition, and would benefit from Employment Support Services to job search assistance, due to the impacts of the medical condition, incorporating a significant level of disability support to assist them to achieve their potential to obtain and sustain employment.”[3]
[3] Secretary’s Outline of Submissions (Annexure), Attachment C, p 231.
Ms Couch requested a review of the decision to reject her 2019 claim. By letter dated 28 January 2020, the Respondent advised Ms Couch that the decision to reject the 2019 claim, made on 24 June 2019, was correct.
On 2 April 2020, Ms Couch lodged an application for review of the decision to reject the 2019 claim with AAT1.
The decision to reject the 2019 claim was reviewed and affirmed in the 2020 decision of the AAT1 on 21 May 2020. Member Swanson found Ms Couch total impairment rating was 10 points and that she therefore did not satisfy section 94(1)(b) of the Social Security Act 1991 (Cth) (the Act).
On 5 June 2020, Ms Couch applied for further review of Member Swanson’s decision by this Tribunal (the review application). The review application was lodged within time.
During a telephone directions hearing on 6 October 2021, Ms Couch said that she had sought legal advice regarding the review application. She indicated that the effect of that advice was that because she had not participated in a program of support for a period of 18 months prior to the lodgement of the 2019 claim, the review application could not succeed.
There is no dispute that Ms Couch had not in fact commenced participation in a program of support prior to the lodgement of the 2019 claim.[4]
[4] Secretary’s Outline of Submissions (Annexure), Attachment C, p 279.
Mr Calaby, representing the Respondent, made the point that the requirement of participation in a program of support for a period of 18 months did have some exceptions in cases where an Applicant had actually commenced participation in such a program. This was not the case here.
Acting on advice, Ms Couch subsequently informed the Tribunal in writing that she wished to withdraw the review application. She did so by way of a signed Notice of Withdrawal form dated 16 December 2020. On 16 December 2020, the Tribunal dismissed the review application.
On 31 May 2021, Ms Couch lodged new claim for DSP (the second claim).
In the course of the second claim, a Job Capacity Assessment report dated 8 July 2021 and a Government-Contracted Doctor Disability Medical Assessment report dated 13 July 2021 were produced. The Job Capacity Assessment report expressed a view consistent with Ms Couch medically qualifying for DSP in respect of her second claim. She was assessed as having an impairment of 25 points.[5] This does not amount to a “severe impairment” as defined in section 94(3B) of the Act. This requires an assessed impairment of 20 points or more under a single table.
[5] Table 4 – 10 points, Table 2 – 10 points, Table 3 – 5 points.
Ms Couch told the Tribunal that she had had a telephone conversation with a representative of the Department on 13 July 2021, in the course of which she was advised that it was not necessary for her to have been involved in a program of support for a period of 18 months before the lodgement of the claim. It was unclear whether this information concerned the exemptions, enabling a shorter program of support period to be permitted, or if it concerned the consequences of a severe impairment. Ms Couch said that it was as a result of this conversation, that she decided to request the reinstatement of the review application.
On 14 July 2021, Ms Couch wrote to the Tribunal requesting that the 2020 review application be reinstated (“the reinstatement application”).
On 18 July 2021, Ms Couch lodged an application (the “new application”) for review of the 2020 decision, together with an application for extension of time within which to lodge the new application.
On 21 July 2021, the Respondent determined to reject Ms Couch’s second claim on the basis that her income together with her partner’s income, exceeded the threshold beyond which DSP is not payable. This second claim however, is a separate matter and is not the subject of these proceedings.
Ms Couch is pursuing two applications, both of which are designed to achieve the same outcome, namely to reagitate the issues that were adversely determined in the 2020 decision.
The Reinstatement Application
Section 42A of the AAT Act deals with discontinuance, dismissal, and reinstatement of an application.
Subsection 42A(1A) of the AAT Act provides that an applicant may withdraw or discontinue an application to the Tribunal at any time by notifying the Tribunal in writing.
Subsection 42A(1B) of the AAT Act provides that the effect of such notice is that the Tribunal is taken to have dismissed the application without proceeding to review that decision.
The Tribunal has power to reinstate applications that have been properly dismissed under subsections 42A(8)–(10) of the AAT Act. These provide as follows:
“(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B) For the purposes of subsections (8) and (8A), the period is:
(a) 28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”
The power in subsection 42A(9) of the AAT Act is not available where an application has been dismissed under subsection 42A(1B) following a notification of withdrawal.[6]
[6] Myers and Commissioner of Taxation [2004] AATA 1337.
The power in subsection 42A(10) of the AAT Act enables the Tribunal to reinstate an application if it has been “dismissed an error”. It is not necessary for these purposes that the “error” has been the Tribunal’s error.[7]
[7] Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383.
An application is not dismissed in error simply because the withdrawal is “unwise”. In White and Repatriation Commission[8], the Tribunal said:
‘It is doubtful whether an applicant who simply makes an unwise decision to withdraw proceedings could be said to be acting in error in the relevant sense. It may be that a decision made on the strength of bad advice might not justify the exercise of the discretion either’.[9]
[8] [2005] AATA 75.
[9] See also, White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712.
This, therefore, squarely raises the factual question as to what “error” Ms Couch can point to as having given rise to her decision to withdraw her application. Ms Couch did not give sworn evidence, but she did make submissions and assert facts. For the purposes of this application I will assume in her favour, that what she has asserted is true. It would appear that the only “error” to which Ms Couch can point, is her reliance upon legal advice regarding the requirement for a period of 18 months participation in a program of support. She says that she was not advised that there were exceptions to this requirement. This in turn led to her decision to withdraw the review application.
Assuming again in Ms Couch’s favour that the advice that she received was inaccurate or incomplete in the manner that she describes, it does not change the fact that she had not, as at 16 May 2019, commenced participation in a program of support. In other words, a person who can establish an exemption, may truncate the standard 18-month period of participation in a programme of support. They cannot avoid it entirely.
Section 94(2)(aa) of the Act requires a person to satisfy the program of support requirements unless they have a “severe impairment” of 20 points or more under one of the impairment tables.[10]
[10] See section 94(3B) of the Act.
There is no evidence to support a finding that Ms Couch had a “severe impairment” of 20 points or more under a single table at the time of the original claim, or indeed at any time since.
In other words, even if the legal advice amounted to an “error”, it is not a material one. Even if she had been fully and accurately advised, the ultimate recommendation would have been the same.
Assuming again in Ms Couch’s favour, that she established an “error”, section 42A(10) of the AAT Act provides the Tribunal with a discretion to reinstate. It is not a mandatory provision. In determining whether or not such a discretion should be exercised in the Applicant’s favour, the principles generally applicable to determining whether or not an extension of time is appropriate are relevant.[11]
[11] See Myers and Commissioner of Taxation [2004] AATA 1337.
I will now turn to these principles in some more detail as they are also relevant to the new application.
Extension of Time – The New Application
It is conceded by the Respondent that the Tribunal has jurisdiction to grant Ms Couch an extension of time within which to lodge the new application. The Respondent, however, contends that in all of the circumstances the Tribunal’s discretion to grant such an extension should not be exercised.
Ms Couch received the AAT1 decision on 5 June 2020.
Subsection 29(2) of the AAT Act states that the prescribed time for lodging an application for review is within 28 days after notice of the decision is given to an applicant. On this basis, Ms Couch had until 3 July 2020 to lodge an application for review of the 2020 decision.[12] In fact, the new application (which seeks to re-agitate the 2020 review application), was lodged on 18 July 2021 which is 380 days out of time, and more than seven months after the Tribunal’s dismissal of the 2020 review application, at her request.
[12] She did, of course, do this on 5 June 2020, only to subsequently withdraw the application.
A statutory time limit exists for a reason. It should not be lightly ignored or departed from other than in circumstances where there is a very good reason to do so.[13]
[13] Hunter Valley Developments Pty Ltd and Other and Cohen [1984] FCA 176.
The principles by which the Tribunal is guided by in determining an application for an extension of time as outlined in Hunter Valley are summarised in Budd and Secretary, Department of Education, Employment and Workplace Relations[14] as follows:
[14] [2008] FCA 1540.
“There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
It is a prima facie rule that the proceeding commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is no a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even through there is not rule that such an explanation is an essential pre-condition (Comare v A’Heam [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
Action taken by the applicant other than by making an application to be court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the application has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating again the grant of an extension. (See Doyle at p 287).
The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”
In Brisbane South Regional Health Authority and Taylor the High Court stated at [7] (emphasis added):
“…The final rationale the limitation periods is that the public interest requires tat disputes be settled as quickly as possible… In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgement that the welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case… But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the application to show that his or her cause is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an application seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that he justice of the case requires that extension…”
This raises a very important question as to Ms Couch’s explanation for her extreme delay in making her application, this is particularly significant in light of the fact that for many months after the AAT1 2020 decision, she did have valid application which was within time, which she subsequently elected to formally withdraw. Taken at its best from Ms Couch’s perspective, she was induced into withdrawing the 2020 review application by incorrect advice. It was not until 13 July 2021 that she became aware of this fact. She promptly sought to act on this. She is asserting a “material fact” giving rise to a claim for an extension of time. This of course assumes that the advice was incorrect. For the reasons set out above, this was not so, or at least not in a material respect.

It is properly conceded by the Respondent that it would suffer no evidentiary prejudice if an extension of time were to be granted.
One matter which does assume some significance in this case is the question of the merit of either the 2020 application, if reinstated, or the new application, if an extension of time were to be granted. In Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142 the Federal Court stated:
“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: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).”
If at the time of Ms Couch’s 2020 application, there was no real prospect of her application being successful, the new application is equally flawed.
On the question of merit, it does not appear that Ms Couch has offered anything further than the material that was before the Tribunal in its determination of her initial application. Bearing in mind the relevant qualification period for either claim (the reinstated 2020 claim or the new claim) would be the period between 16 May 2019 and 15 August 2019. What subsequently happened in the course of a job capacity assessment in July 2021 or the Government-Contracted Doctor’s Disability Medical Assessment Report of 13 July 2021 are both unhelpful and irrelevant. Even if this report were to be relevant to the qualification period for the reinstated 2020 claim or the new claim, which it isn’t, the Applicant has never been found to have a “severe impairment”. In these circumstances, her failure to have participated in any programme of support is an unsatisfied condition precedent to her claim for DSP.[15]
[15] Subclauses 7(2)-(5), Social Security (Active Participation for Disability Support Pension) Determination 2014.
In all of these circumstances, and in particular the lack of any obvious merit in the applications which agitate the question of her eligibility for DSP during the period 16 May 2019 to 15 August 2019, I am not of the view that there is any good reason to exercise a discretion to grant extension of time for a period in excess of 12 months, when the statutory time limit the making of such application is 28 days.
As mentioned above, the same considerations bear on the question of whether it would be appropriate to exercise a discretion to reinstate the initial application, were there to have been established a relevant “error”. As indicated above, I’m not of the view that any such error has been established, but even if it had been, the same factors that weigh against the exercise of any discretion to grant an extension of time, would weigh against the exercising of any discretion to reinstate.
Decision
For the reasons set out above, the Tribunal declines to reinstate Ms Couch’s initial application or to grant an extension of time for her new application.
………………[Sgnd]………………..
Legal Administrative Assistant
Date: 11 October 2021

Date of hearing:       6 October 2021

Applicant:                       Self-represented

Advocate for the Respondent:
             Riley Calaby

             Services Australia