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

This matter concerned an application by Ms Couch for an extension of time to lodge a new application for review of a decision by the Secretary of the Department of Social Services. The original application for review had been withdrawn by Ms Couch. The decision was made by Senior Member J Rau.

The primary legal issues before the Tribunal were whether Ms Couch had withdrawn her original application due to an "error" that would justify the exercise of discretion to reinstate it, and whether an extension of time should be granted for her new application. The Tribunal considered the principles applicable to granting extensions of time and the specific requirements for a disability support pension, including participation in a program of support.

The Tribunal reasoned that an application is not dismissed in error simply because a withdrawal is considered unwise. Ms Couch asserted that she had relied on legal advice regarding the requirement for 18 months of participation in a program of support, and that she was not advised of exceptions to this rule. However, even assuming this advice was inaccurate or incomplete, the Tribunal found it was not a material error because Ms Couch had not commenced participation in a program of support, and there was no evidence of a "severe impairment" that would exempt her from this requirement. Therefore, even with accurate advice, the outcome would have been the same. The Tribunal noted that section 42A(10) of the AAT Act grants a discretion to reinstate, which is not mandatory, and that the principles for granting an extension of time were relevant.

The Respondent conceded that the Tribunal had jurisdiction to grant an extension of time for the new application, but contended that the discretion should not be exercised in Ms Couch's favour given the circumstances.