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

[2018] AATA 301

CSRN and Secretary, Department of Social Services (Social services second review) [2018] AATA 301 (19 January 2018)

Division:GENERAL DIVISION

File Number:           2017/4746

Re:CSRN  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:19 January 2018

Place:Perth

The Applicant's application for an extension of time to lodge an application for a review of a decision of the Social Services and Child Support Division of this Tribunal dated 12 April 2017 is refused.

............(SGD)................................................

Brigadier AG Warner, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of the Social Services and Child Support Division of Administrative Appeals Tribunal dated 12 April 2017 – length of delay significant – reasonable explanation – limited prospects of success for substantive application – 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) – s 29(2) – s 29(7)
Evidence Act 1995 (Cth) – s 160

Paid Parental Leave Act 2010 (Cth) – s 4 – s 11

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth of Australia (1988) 16 ALD 533
Re Johnson and Commonwealth of Australia [1990] AATA 1
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

REASONS FOR DECISION

Brigadier AG Warner, Member

19 January 2018

INTRODUCTION

1. The Applicant’s substantive application seeks review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) made on 12 April 2017. The decision of the AAT1 was to affirm the decision to grant parental leave pay (PLP) from 18 August 2016 to 19 August 2016 (Exhibit 4, para 1).

2. An interlocutory hearing to determine the Applicant’s application for an extension of time was conducted on 16 November 2017.  The Applicant attended the hearing and gave evidence.

   BACKGROUND

3. The Applicant’s son was born on 20 August 2015.

4. On 18 August 2016, the Applicant lodged a claim for PLP in which she nominated 20 August 2015 as the start date for payment. On the same date the Applicant provided the Department of Human Services (the Department) with a copy of her son’s birth certificate (Exhibit 4, para 4).

5. The Department paid the Applicant PLP for the period 18 August 2016 to 19 August 2016 (Exhibit 4, para 5).

6. On 26 November 2016, an Authorised Review Officer (ARO) affirmed the decision to grant the Applicant PLP from 18 August 2016 to 19 August 2016 (Exhibit 4, Attachment A).

7. On 12 April 2017, the AAT1 affirmed the ARO decision and gave oral reasons. A written notice of the decision was posted to the Applicant on 21 April 2017 (Exhibit 2).

8. On 9 August 2017, the Applicant’s application for review of a decision and an extension of time were received by this Tribunal (Exhibit 1).

9. The Respondent opposes the application for an extension of time on the basis that the substantive application has limited prospects of success and there was a significant delay in lodging the appeal.

   ISSUE

10. The Applicant is seeking an extension of time in which to lodge her application for review. The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.

    RELEVANT LEGISLATION AND PRINCIPLES

    Extension of time

11. Under s 29(2) of the Administrative Appeals Tribunal Act1975 (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 for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so".

12. As noted by the Tribunal (Deputy President Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1 (Re Johnson), it has been customary for the Tribunal in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 per Wilcox J at 348-350. Those general principles were summarised in Re Johnson at paragraph 19 as follows:

    i.It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained.  An extension of time will, however, be granted if it is proper to do so.

    ii.Consideration is to be given to the action taken by the applicant.  Did he or she “rest on his or her rights” so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?

    iii.Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.

    iv.There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…

    v.Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.

    vi.Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.

13. In Comcare v A’Hearn (1993) 45 FCR 441 at 444, the Full Federal Court held that although the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition for the favourable exercise of the discretion to grant an extension of time for the lodging of that application, “it is expected that such an explanation will normally be given, as a relevant matter to be considered…”

    Paid parental leave

14. The statutory provisions relevant to the substantive matter are contained in the Paid Parental Leave Act 2010 (PPL Act). The scheme provides for the payment of instalments of PLP for a maximum period of 18 weeks at the national minimum wage (s 4 of the PPL Act).

    Maximum PPL period start and end day

15. Section 11 of the PPL Act provides:

    (1)If the Secretary makes a determination that parental leave pay is payable to a person for a child, the Secretary must specify, in the determination, the period for which parental leave pay is payable to the person.  That period is the person's PPL period.

    (2)A person's PPL period must be the same as, or within, the maximum PPL period for the child.

    (3)The maximum PPL period for a child is the period that:

    (a)starts on the child's maximum PPL period start day; and

    (b)ends on the child's maximum PPL period end day.

    (4) The maximum PPL period start day for a child is:

    (a)if, on or before the day (the relevant day) that is 28 days after the day the child was born, the primary claimant both made an effective claim for parental leave pay for the child and verified the child's birth – the later of the following days:

    (i)the day the child was born;

    (ii)the primary claimant's nominated start date; and

    (b) if, on or before the relevant day, the primary claimant made an effective claim for parental leave pay for the child but did not verify the child's birth – the later of the following days:

    (i)the day the primary claimant verifies the child's birth;

    (ii)the primary claimant's nominated start date; and

    (c) if the primary claimant makes an effective claim for parental leave pay for the child after the relevant day – the later of the following days:

    (i)the day the claim is made;

    (ii)the primary claimant's nominated start date.

    (5) The maximum PPL period end day for a child is the earlier of the following days:

    (a) the day that is 125 days after the maximum PPL period start day (which is 18 weeks from (and including) that start day);

    (b) the day before the child's first birthday.

    EVIDENCE

16. The evidence before the Tribunal comprised the:

    (a)Application for Review of Decision dated 9 August 2017 (Exhibit 1);

    (b)AAT1 Notice of Decision dated 12 April 2017 (Exhibit 2);

    (c)AAT Decision and Reasons for Decision dated 12 April 2017 (Exhibit 3);

    (d)Secretary of Department of Social Services’ outline of submissions dated 23 August 2017, including the ARO Decision dated 26 November 2016 (Exhibit 4);

    (e)Allister Blyth email dated 16 November 2017 (Exhibit 5);

    (f)the Applicant’s letter to Centrelink dated 21 November 2016 (Exhibit 6); and

    (g)The oral evidence of the Applicant.

    CONSIDERATION

    The Applicant’s Oral Evidence

17. The Applicant presented as an emotional and honest witness. The Applicant’s submissions are summarised as follows:

    (a)the Applicant was in hospital during the period March to June 2017 due to pregnancy complications prior to the birth of her second child and was later treated for postnatal depression;

    (b)the Applicant told the Tribunal that she suffers from dyslexia and at times found the PLP rules and regulations challenging. In regard to her PLP claim she had complied totally with advice given to her by Centrelink; and

    (c)the Applicant was highly critical of Centrelink and feels strongly that she has suffered an injustice. The Applicant stated that she was making the current applications as a matter of principle.

    Factors

18. The Respondent contends, and the Tribunal agrees, that in this case the factors for consideration include:

    (a)the length of delay;

    (b)awareness of appeal rights and explanation for the delay; and

    (c)prospect of success.

    Length of delay

19. The AAT1 posted its decision on 21 April 2017 (Exhibit 4, para 13). The Respondent refers to s 160 of the Evidence Act 1995 and submits that the 28 day time limit for the Applicant to lodge an appeal with this Tribunal expired on 26 May 2017 (Exhibit 4, paras 14 -15).  The Tribunal agrees.

20. As the Applicant’s application for an extension of time was received by the Tribunal on 9 August 2017, the application was 75 days outside the limit.

21. The delay in this matter is not excessive but is significant.  Relevantly, the Tribunal notes that “the brevity of the extension sought does not, however, lead automatically to an order extending the time” (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16]).

22. Consideration of this factor weighs against granting an extension of time.

    Awareness of appeal rights and explanation for the delay

23. The notice of decision sent by the AAT1 includes reference to the Applicant’s right of appeal to the Tribunal, and clearly states: “It is important to ask for a review within 28 days of being notified about this decision to ensure that your case can be reviewed.” (Exhibit 4, Attachment A).

24. In Re Grafton and Commonwealth of Australia (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Ply Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, 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.

25. The Applicant’s reasons for applying for an extension of time are as follows:

    "Was in hospital on bed rest from March – June due to pregnancy complications then gave birth to second child on 10 July and am only now having time to catch up on admin matters"

    (Exhibit 1)

26. The Tribunal, having regard to the Applicant’s medical circumstances, considers her explanation to be reasonable.  This factor, taken alone, weighs in favour of granting an extension of time.

    Prospects of Success

27. 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 for lodging the substantive application: Hunter Valley Developments Pty Ltd v Cohen Minister for Home Affairs and Environment (1984) 3 FCR 344 and Re Johnson as per paragraph 12 above.  It may be that the stronger the apparent merits the more likely that an extension of time would be appropriate: Brown v Federal Commissioner of Taxation [1999] FCA 563 at [58].

28. The Applicant claims the decision made in regard to her substantive application was wrong because:

    The decision keeps mentioning that I applied too late – just before [my son’s] first birthday.  However I was repeatedly told by Centrelink staff both over the phone and in person at the Mirrabooka branch that I had up to [my son’s] first birthday to SUBMIT my forms to claim the payment NOT that it could only be claimed up to his first birthday.

    I trusted and relied on this incorrect information given by Centrelink staff who should know the rules and have now been disadvantaged as I have missed out on payments that I otherwise would have been eligible for.

    What is the point of even having physical stores when the staff there cannot give me the proper information? Please reconsider as I have been wronged and I will not give up this fight for my rights (sic).

    (Exhibit 1)

29. Having applied the legislative provisions outlined at paragraph 15 above to the circumstances of the Applicant’s claim for PLP, the Respondent submits:

    28.The effect of these provisions is that an individual must lodge a claim and provide birth verification within 28 days of the child's actual date of birth in order to have the nominated start date backdated to the child's actual date of birth.

    29.The relevant day in this case is 17 September 2015, being 28 days after the date [the Applicant’s son] was born. It is not in dispute that the Applicant lodged her claim after the relevant date, which means that subparagraph 11(4)(c) of the PPL Act applies. As a result, the maximum PPL period start day is the later of either the date of the claim (18 August 2016) or the nominated start date. The Applicant had nominated 20 August 2015 on her claim form as the start date. As the later date is the claim date of 18 August 2016, this is the relevant maximum PPL period start day.

    30.Under subsection 11(5) of the PPL Act, the relevant end date for payment is the earlier of either 18 weeks from the start date of the maximum PPL period or the day before [the Applicant’s son’s] first birthday which in this case is 19 August 2016). As this is the earlier date, it is the relevant maximum PPL period end day.

    31.Accordingly, the maximum PPL period is from 18 August 2016 to 19 August 2016.

    (Exhibit 4, paras 28-31)

30. The Tribunal agrees with the Respondent’s submission. As the PPL Act does not provide for any discretion to backdate PLP, the Applicant’s substantive application has no prospect of success. It follows that consideration of this factor weighs significantly against the granting of an extension of time.

    CONCLUSION

31. The Tribunal is sympathetic to the Applicant and her circumstances.  The Tribunal notes the Applicant’s stated intention to explore other avenues of redress should this application for an extension of time fail. In this regard the Tribunal records its appreciation for the Respondent providing the Applicant with a brief explanation of The Scheme for Compensation for Detriment caused by Defective Administration.

32. The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant considerations listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted.

    DECISION

33. For the above reasons, the Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the AAT1 decision of 12 April 2017, pursuant to s 29(7) of the AAT Act.

I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

...............(SGD).........................................................

Administrative Assistant – Legal

Dated: 19 January 2018

Date of hearing:	16 November 2017
Applicant:	In person
Representative for the Respondent:	Ms C Wang
Solicitors for the Respondent:	Legal Services Division – Department of Human Services