Crocker and Secretary, Department of Social Services (Social services second review)
[2023] AATA 499
•27 March 2023
Crocker and Secretary, Department of Social Services (Social services second review) [2023] AATA 499 (27 March 2023)
Division:GENERAL DIVISION
File Number:2023/0766
Re:Debra Crocker
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:27 March 2023
Place:Brisbane
The application for an extension of time is refused.
..................................[SGD]..................................
Member D Mitchell
CATCHWORDS
EXTENSION OF TIME – Application for Review of Decision filed out of time – Application for Extension of Time considered – Extension of Time Refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
DHKC and Secretary, Department of Social Services [2022] AATA 4664
Englezos v Secretary, Department of Social Services [2023] FCA 31
Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415
Quagliato and Secretary, Department of Social Services [2022] AATA 4434
Stevenson and Secretary, Department of Social Services (2023) AATA 142
Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451
REASONS FOR DECISION
Member D Mitchell
27 March 2023
INTRODUCTION
On 8 February 2023, Ms Debra Crocker (the Applicant) made an application to the Tribunal seeking a second-tier review of a decision made by the Social Services and Child Support Division (SSCSD) on 17 November 2021.
On 10 February 2023, the Applicant made a further application seeking an extension of time for making an application for review of that decision.
The decision the Applicant sought to have reviewed affirmed the Respondent’s decision to refuse the claim for the disability support pension (DSP) she made on 25 June 2021. The SSCSD found that the Applicant had mental health conditions that were fully diagnosed, fully treated and fully stabilised and could be assigned 10 points under Table 5 of the Impairment Tables, however, did not meet the requirements to be granted the DSP.
On 1 March 2023, the Respondent filed a submission opposing the Applicant’s extension of time application.
The Applicant made a large number of submissions via email in relation to her request for an extension of time. Those submissions were of assistance to the Tribunal. They provided context and a clear outline of the Applicant’s contentions. Given the nature of the circumstances that have cumulated in the Applicant making a claim for DSP and the fact that her actual claim for DSP is not the subject of the present issue before the Tribunal, the Tribunal will not include in this decision, the background details provided by the Applicant and outlined in the material before it.
An Interlocutory Hearing was conducted on 20 March 2023. The Applicant and Respondent participated in the Interlocutory Hearing by phone.
The issue before the Tribunal is whether or not the Applicant should be granted an extension of time to make her application for review in relation to the decision of the SSCSD.
REASONS FOR DECISION
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) outlines that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal if it is satisfied that it is reasonable in all the circumstances to do so.
The Federal Court in Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 set out a series of factors that may be relevant in considering whether an extension of time should be granted. Those factors have widely been accepted by both the Federal Court and Tribunal.
Consequently, the Tribunal considers that the relevant factors to be taken into consideration in the present matter include the length of delay, awareness of appeal rights and explanation for the delay, prospect for success, prejudice and alternative avenues of relief. In determining whether to grant an extension of time, the Tribunal must weight together all relevant factors.[1]
Length of Delay
[1] Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451.
In relation to the length of delay, the SSCSD decision was emailed with a cover letter dated 25 November 2021.
As the decision was served by email, the Applicant is taken to have received it on the day the email was sent, meaning that an application for review should have been made by
23 December 2021, being within 28 days of 25 November 2021.
Consequently, the application for review of the SSCSD decision is 1 year, 1 month and 16 days out of time.
At the Interlocutory Hearing, the Applicant agreed that she is likely to have received the SSCSD decision on the date of the SSCSD letter and that the delay in making her application for review is significant. The Respondent also contended that the delay is significant.
The Tribunal considers the delay in this matter to be a substantial delay, which weighs against the granting of an extension of time.
Explanation for delay and awareness of appeal rights
The Tribunal observes that Parliament has provided in legislation a 28 day time limit to indicate the need for finality in decision‑making.
The Applicant indicated in her application for an extension of time that the reason she was seeking an extension of time to make her application for review was as follows:
Have only this week learned that I can appeal as a different Govt Dept has found I do have significant traits which would/should qualify me for DSP which I have been repeatedly denied for past three years. I was not assisted by advocate in previous applications despite my request.
At the Interlocutory Hearing, the Applicant told the Tribunal that she had read the SSCSD decision, however, was not sure that she had read the cover letter that set out further review rights. She said that she had decided to “give up, walk away from it” as she could not “keep fighting”. The Applicant told the Tribunal that earlier in the year, she decided to participate in a Redress Scheme in relation to past abuse she had been subjected to. She said that during the process, she was asked why she was not on DSP and that she told them that no one understands her situation so she gave up. The Applicant told the Tribunal that the person at the Redress Scheme told her she should reapply or appeal the decision as they thought she should be on the DSP. The Applicant said that she made her application for review to the Tribunal within 24 hours of that discussion.
The Applicant provided that her lack of understanding about the review process was until now due to her simply believing that Centrelink was right and she did not qualify for DSP despite her previous appeal.
The Applicant further told the Tribunal that the 28 day period in which to seek review does not take into consideration the recipient’s mental capacity to seek a review. The Applicant said she was not well enough to lodge an appeal prior to when she did and she believed that should be taken into consideration from a moral point of view.
The Respondent contended that the Applicant’s stated reasons for the delay in making an application for review was an unsatisfactory explanation for a delay of over 13 months. The Respondent submitted that the Applicant chose not to appeal as it was too difficult and as such, she did not do so until encouraged.
The Respondent drew the Tribunal’s attention to the decision of the Federal Court in Englezos v Secretary, Department of Social Services [2023] FCA 31. Collier J stated at [38]-[40]:
As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. Of course, there will be exceptions, such as whereby a lay person relies on the advice of a legal practitioner to their detriment: see for example BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [6]. However, that is not the case currently before the Court.
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
In my view, taking into consideration the evidence of the applicant and submissions of the parties, the applicant has failed to provide an adequate explanation for the delay. …
Emphasis added
Having considered the Applicant’s submissions made in writing and at the Interlocutory Hearing, the Tribunal considers that the Applicant rested on her review rights. The Applicant chose not to seek further review of the SSCSD decision. It was not a situation that the Applicant could state with certainty that she did not know about her review rights, when they were presented in the letter accompanying the decision or that she has stated that she was incapacitated for the duration of the delay.
The Tribunal understands that the Applicant contends that her mental capacity stopped her from being able to seek a review, however she also said that she had decided she did not want to fight anymore and had accepted the decision. It was only when a third party queried why the Applicant was not in receipt of DSP that she took any action with regards to the claim she lodged on 25 June 2021.
In such circumstances and noting the above findings of Collier J, the Tribunal agrees that without a good reason, the Applicant is not inherently exempt from the time limits prescribed by the AAT Act. Those time limits are not “mere aspirational guidelines” and the Applicant must provide a good reason to explain the delay, particularly where it is lengthy. For the reasons outlined above, the Tribunal does not consider that the Applicant’s explanation of the delay in making her application is satisfactory.
The Tribunal finds that the Applicant’s explanation of the delay weighs against the granting of an extension of time.
Prospect of success
It is not appropriate, at this juncture, for the Tribunal to embark on a full examination of the substantive issues of the application for review. However, it may be that the stronger the apparent merits, the more likely that granting an extension of time would be appropriate.[2]
[2] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516.
The substantive application in this matter relates to whether or not the Applicant met the requirements to be granted the DSP during the Relevant Period, being from 25 June 2021 (the date of her application) to 24 September 2021 (being 13 weeks thereafter).[3]
[3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
At the very highest level,[4] in order to be eligible to be granted the DSP, a person is required during the Relevant Period to have:
(a)a physical, intellectual or psychiatric impairment;[5]
(b)impairments that attract 20 points or more under the Impairment Tables;[6] and
(c)a continuing inability to work.[7]
[4] For a full outline of the DSP requirements see: Stevenson and Secretary, Department of Social Services [2023] AATA 142 at paragraphs 8-19.
[5] Section 94(1)(a) of the Social Security Act 1991 (Cth) (the Act).
[6] Section 94(1)(b) of the Act and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
[7] Section 94(1)(c) of the Act.
Based on the Respondent’s submissions, it is not in dispute that the Applicant had an impairment during the Relevant Period or that it could be assigned an impairment rating. The Respondent contented, however, that all decision makers to date and the Job Capacity Assessor (JCA) had correctly found that the Applicant’s mental health conditions caused impairments that only attract 10 points under Table 5 of the Impairment Tables.
To attract a rating of 20 points under Table 5 of the Impairment Tables, a person must have severe difficulties with most of the following 6 descriptors:[8]
[8] Impairment Table 5 – Mental Health Function, part 3 of the Determination.
a. self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
b. social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
c. interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
d. concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
e. behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
f. work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
The Impairment Tables make it clear that self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.[9]
[9] Section 8 and Introduction to Impairment Table 5 – Mental Health Function of the Determination
In relation to the continuing inability to work requirement, the Respondent contended that the Applicant had satisfied the program of support requirements, however relies on the JCA report of 20 September 2021 in which the Applicant was assessed as having a baseline work capacity of 8-14 hours per week and a capacity for work within two years with intervention of 15-22 hours per week. The JCA report provided that the Applicant had advised that she had been considering doing a course and had been applying for retail roles.
At the Interlocutory Hearing and throughout her written submissions, the Applicant expressed that in her opinion, her DSP application had not been properly dealt with. She said that all of her conditions had not been dealt with and that she expected that because she had signed a form that allowed Centrelink to access her medical records, they would have done so but did not. The Applicant also questioned why she had not been sent by Centrelink to a specialist.
The Applicant told the Tribunal that relying on claimants to supply information is a mistake and she believes that in the absence of Centrelink having obtained her medical information, an informed decision had not been made.
Outside of her mental health conditions, however, the Applicant was unable to provide details of the other conditions she wanted to be taken into consideration.
The Applicant told the Tribunal that she could get further evidence from her general practitioner who she has been seeing for a long time and manages her medication. She also said that she could get evidence from her severe trauma counsellor. The Applicant told the Tribunal that she started to see the counsellor this year and that they are helping to support her through the Redress Scheme process.
When the Tribunal explained to the Applicant how the Impairment Tables work, she said that she was not sure how she did not meet the 20 point descriptor on Table 5. She said that she was not asked questions that go to the descriptors. The Applicant was fixated on the process undertaken by the Respondent in relation to her DSP applications (noting she had previously made an application in 2018) and expressed dissatisfaction with the qualifications of the JCA and what she saw was a failure of process (her not being referred to a specialist for review).
While the Applicant may be dissatisfied with the Respondent’s processes, this is not a matter for the Tribunal to comment on. The role of the Tribunal in the present matter is to decide whether or not it is appropriate, in the Applicant’s circumstances, to grant an extension of time for her to make an application to have the SSCSD decision reviewed.
As the Tribunal does not have the benefit of all materials that were before the previous decision makers and it is not, at this juncture, appropriate to embark on a full assessment of the merits of the Applicant’s case, it cannot be said that the Applicant’s application has no prospect of success at all. However, on the face of the decision of the SSCSD and the JCA Report (dated 20 September 2021), the Tribunal considers that the evidence as it presently stands appears to support a 10 point impairment rating rather than a 20 point impairment rating on Table 5 of the Impairment Tables. Consequently, the proposed application appears to have limited prospect of success, however, cannot be said to be devoid of any merit at all.
While the Tribunal notes that the Applicant indicated that she would be able to get further evidence from her general practitioner and severe trauma counsellor, it is important to note that in considering her application, the Tribunal is limited to considering evidence as it relates to her conditions during the Relevant Period. The Applicant did not commence seeing the severe trauma counsellor until earlier this year. It is further unclear given the passage of time that has passed since the Relevant Period and that the JCA report provided that the Applicant advised that she had commenced seeing a new general practitioner a few weeks prior to the date of the JCA report, whether her general practitioner would be in a position to provide a report relating to the Relevant Period.
Further, based on what the Applicant told the Tribunal at the Interlocutory Hearing, what she had told previous decision makers and what she outlined in her submissions, there does not appear to be sufficient evidence in relation to any conditions she may have in addition to her mental health conditions.
It is not appropriate that in considering the matter presently before it, that the Tribunal delay making a decision to see if the Applicant can source further evidence. As discussed with the Applicant at the Interlocutory Hearing, noting the volume of her submissions, it was not appropriate for her to file any further submissions or documents after the Interlocutory Hearing. The Applicant agreed and undertook not to file anything further.
Alternative avenues of relief
The Tribunal notes that it is open to the Applicant to test her eligibility for DSP at any time by making a new claim. Each claim for DSP is assessed on the applicant’s conditions at the time of the claim and the 13 weeks thereafter and the associated supporting medical evidence. In circumstances where an applicant’s conditions have changed and/or associated functional impairments have worsened and/or new medical information is available, the applicant’s DSP eligibility status may change.
At the Interlocutory Hearing, the Applicant told the Tribunal that she did not want to make a new application as it is too difficult, she said she wants her present application before the Tribunal to proceed and for it to deal with everything. The Applicant expressed that she believes that if she is not granted an extension of time, it will be an indication that making a new application is a waste of time.
The Respondent contended that the preferable avenue of relief for the Applicant is to put forward her evidence as at the date of a new claim.
Prejudice
In considering whether any prejudice or unfairness arises in relation to granting or not granting the Applicant’s extension of time application, the Tribunal refers to the general position that once a decision is made and a review period provided, beyond that period there is an expectation that the matter is finalised.[10]
[10] Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415.
The Respondent contended 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 should occur.
The Respondent further contended that it would suffer prejudice if an extension of time were to be granted on the basis that the ability to defend the application, obtain relevant information/documents and elicit reliable evidence from witnesses has been affected by the significant passage of time since the Relevant Period.
The Applicant contended that there would be no detriment in the ability to obtain relevant information as she has seen the same general practitioner for a very long time. The Applicant contended that there is no prejudice to the public in circumstances where there had been no understanding of her circumstances and she has had to build herself up to go through the Redress process.
The Tribunal accepts that the significant delay on the part of the Applicant in seeking to make her application for review may cause some prejudice for the Respondent and to some extent, the Applicant in relation to the difficulty that may be faced in obtaining relevant and probative evidence should an extension of time be granted.[11]
[11] Quagliato and Secretary, Department of Social Services [2022] AATA 4434 and DHKC and Secretary, Department of Social Services [2022] AATA 4664.
The Tribunal notes that the Applicant herself outlined in submissions, the extent of the circumstances that have led to her mental health conditions and their resulting functional impairment. The Tribunal recognises the difficulties that those circumstances continue to have on the Applicant’s life. While in no way trivialising the Applicant’s experiences and impacts, thereof, past and present, it is not uncommon for persons seeking to claim DSP to have medical conditions that are physical and/or psychiatric in nature that impact on their ability to function. This does not, however, excuse them from having to follow the statutory time frames put in place. As such, given that the Tribunal considers that the Applicant rested on her review rights, it further considers that there is no injustice in not granting the Applicant an extension of time that would displace the principle that granting an extension of time in this matter would be contrary to the public interest that expects finality of decisions and would create perceptions of unfairness.
Conclusion
None of the factors outlined above are of themselves, determinative of whether or not, in the circumstances, it is appropriate to grant the Applicant an extension of time to make her application for review of the SSCSD decision. Consideration of the factors as a whole is necessary, especially in circumstances where the Tribunal considers the merits of the proposed application to be weak but not devoid of all merit.
Based on the material before it, the Tribunal has found that the length of delay in making the application for review is significant, the reasons for that delay are inadequate and that there is no injustice that arises in this case that counteract that to grant an extension of time would cause both public prejudice and prejudice to the Respondent. As a result of these findings combined with the weakness of the Applicant’s application and the availability of an opportunity for the Applicant to make a new claim for DSP, the Tribunal is not satisfied that it is reasonable, in the circumstances, to grant the Applicant an extension of time to make an application for review of the SSCSD decision.
DECISION
Accordingly, the Applicant’s application for an extension of time to make an application for review is refused.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
...............................[SGD]................................
Associate
Dated: 27 March 2023
Date of hearing: 20 March 2023 Applicant: By phone Solicitors for the Respondent: Ms Gillian Gehrke
Services Australia
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