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

[2020] AATA 4630

Dall and Secretary, Department of Social Services (Social services second review) [2020] AATA 4630 (13 November 2020)

Division:GENERAL DIVISION

File Number(s):2020/4012      

Re:Sarah Dall  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member S Barton 

Date:13 November 2020

Place:Perth

The application for an extension of time is refused.

.................................[SGD]....................................

Member S Barton

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – social security – Parenting Payment – failure to report income – Parenting Payment overpayment – length of delay – explanation for delay – prejudice to respondent – administrative error – solely attributable – knowingly – special circumstances – prospects for success – extension of time refused

LEGISLATION

Social Security Act 1991 (Cth) – ss 1223, 1237, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) – s 68(2)

Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 29(2), 29(7)

CASES

Beadle and Director-General of Social Security [1984] AATA 176
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCR 344
RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

REASONS FOR DECISION

Member S Barton

13 November 2020

BACKGROUND

The Application

1. The Applicant seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 27 March 2020 to affirm the decision of a Services Australia (the Agency) Authorised Review Officer (ARO) to raise and recover from Ms Dall (the Applicant) a Parenting Payment debt totalling $26,766.27 for the period 9 March 2017 to 5 September 2018.

2. The Applicant has applied for an order extending the time within which her application for a review may be lodged. The issue before the Tribunal is whether it is reasonable for such an order to be made.

   FACTS

3. The Applicant was granted a Parenting Payment from 9 January 2017.

4. On 12 March 2019, the Agency advised the Applicant that they had raised a Parenting Payment debt of $27,186.11 for the period 22 February 2017 to 5 September 2018.

5. The Applicant requested an internal review of the decision and, on 13 December 2019,

   
   

   an ARO varied the decision, reducing the debt to $26,766.27 and varying the debt period to 9 March 2017 to 5 September 2018.

6. On 30 January 2020, the Applicant sought a review of the ARO’s decision by AAT1.

   
   

   On 27 March 2020, AAT1 affirmed the decision to raise the Parenting Payment debt.

7. On 2 July 2020, the Applicant lodged an Application for Extension of Time at the Tribunal.

   MATERIAL BEFORE THE TRIBUNAL

8. The interlocutory hearing took place on Friday 2 October 2020. The Applicant appeared via teleconference and was self-represented. Her mother was with her during the hearing.

9. The Applicant gave oral evidence.

10. The Respondent was represented by Ms A Cornfield, who appeared via teleconference.

11. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Application for Extension of Time, including AAT1 decision, dated 27 March 2020 (Exhibit A1); and

    (b)Secretary’s Outline of Submissions in Opposition, dated 4 August 2020 (Exhibit R1).

    ISSUES

12. Section 29 of the Administrative Appeals Tribunal Act 1975 details the manner of applying for a review of a decision. Section 29(2) provides a general prescribed time for making an application, which is 28 days of the Applicant receiving notice of the decision.

    
    

    However, s 29(7) provides that, upon application in writing by a person, this time period may be extended if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

13. The issue before the Tribunal is whether it is satisfied, in all circumstances, that it would be reasonable to agree to an application for the extension of time.

14. Section 29(7) is ordinarily interpreted in the light of principles set out in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment
    (1984) 3 FCR 344. This decision, of the Federal Court, and subsequent decisions made by the Tribunal, have set out a non-exhaustive list of considerations that may guide the decision of whether an extension of time may be granted. These considerations include the following:

    (a)the length of delay;

    (b)explanation for the delay;

    (c)prejudice to the Respondent or the wider public arising from a delay;

    (d)merits of the application under review, that is, its prospect for success; and

    (e)alternative avenues of relief.

    LENGTH OF DELAY AND EXPLANATION

15. The Applicant received the relevant decision on 1 April 2020 and the Application for an extension of time was lodged on 2 July 2020. The appeal deadline, given the 28 day time period, was 29 April 2020.

16. In the interlocutory hearing, the Applicant had not provided an explanation for the delay beyond stating that she did not understand the process, she did not see the relevant section on the letter sent by AAT1. In her application for extension signed on 2 July 2020 (Exhibit A1), the Applicant stated that ‘I was not aware I could apply for a second review.’

17. Annexure A to the Respondent’s Outline of Submissions in Opposition (Exhibit R1), includes a file note from the Agency after a call from the Applicant on 27 May 2020 regarding debt management. The notes states:

    Advised customer that the Appeal with AAT1 has been affirmed

    Advised customer that if she would like to appeal the debt to contact the AAT and lodge an AAT2 appeal.

18. Even if the Applicant was unaware of her appeal options after the decision of AAT1, communicated to her on 1 April 2020, she was specifically advised of those options on
    27 May 2020 and took no further action until 2 July 2020.

19. The Tribunal has received no acceptable explanation for the delay.

    PREJUDICE

20. There is no prejudice to the Respondent if the extension of time to file the application is granted. However, this is only one factor to be considered.

21. The Tribunal notes the contention of the Secretary that:

    ..the public and the interests of those Applicants who comply with the 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 this should occur.

22. The Applicant also blamed ‘jargon’ and ‘life’ for not lodging her appeal in the prescribed time. The Tribunal notes there are applicants, confronted with unfamiliar language and processes, with significant family, health or other pressures, who comply with the required time limit.

    MERITS OF THE APPLICATION

23. With respect to the merits of the proposed review, it is not necessary to undertake a complete consideration of the matter, but assess the merits in a ‘fairly rough and ready way’ as noted in Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142, [12].

24. On 9 January 2017, the Applicant submitted a claim for the Parenting Payment to the Agency, in her application she noted her casual employment and fortnightly earnings of $1,500.

25. On 22 February 2017, the Applicant was advised that her Parenting Payment had been granted, based on fortnightly earnings of $115.38. The notice from the Agency also included the advice that if she did not agree with a decision it would be corrected if it was wrong and that she should notify the Agency within 14 days if her gross income changed. This advice was included in other notices sent to the Applicant.

26. The Applicant did not advise the Agency that the fortnightly earnings listed in the notice were incorrect. Additionally, the Applicant did not advise the Agency of changes in her fortnightly income during the period 22 February 2017 and 5 September 2018.

27. The various notices that the Applicant received from the Agency while she was in receipt of the payment included information about reporting changes in income.

28. The Applicant had a requirement under s 68(2) of Social Security (Administration) Act 1999 (Cth) (the Administration Act) to advise of any changes in circumstances, including earnings from employment.

29. Section 68(2) of the Administration Act provides for the following:

    (2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

    (a)   inform the Department if:

    (i)    a specified event or change of circumstances occurs; or

    (ii)   the person becomes aware that a specified event or change is likely to occur;

    (b)   give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;

    …

30. The Applicant did not comply with that requirement.

31. Section 1223 of the Social Security Act 1991 Act (Cth) (the Act) provides that if a social security payment is made and the person who obtains the benefit was not entitled for any reason to obtain that benefit, then ‘the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to have arise when the person obtains the benefit of the payment,’ which allows overpayments of social security benefits to be recovered as a debt due to the Commonwealth.

32. The Applicant does not dispute that a debt was raised, rather that, ‘Centrelink should be taking more responsibility to share the debt they are solely blaming me for’ (Exhibit A1).

33. Section 1237A of the Act states the debt may be waived if it is ‘solely attributable to an administrative error made by the Commonwealth if the debtor received in good faith the payments…’.

34. It clear that the Agency incorrectly recorded the Applicant’s income in the notice provided to her on 22 February 2017. However, the Act clearly states ‘solely attributable’.

35. The notion of ‘sole administrative error’ has been addressed by the Federal Court on a number of occasions, notably in Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76 and Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190. In the former, Wilcox J stated:

    For the subsection to have effect, the “proportion” of the debt – in this case, it is common ground, that would be the whole of it – must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error,
    the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.

36. In the latter, Selway J stated:

    The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.

37. The Applicant contributed to the administrative error by the Agency by not correcting their information, which was a considerable factor in the overpayment.

38. Section 1237 of the Act provides for the waiving of the debt in ‘special circumstances’. Section 1237AAD of the Act states:

    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

    (a)the debt did not result wholly or partly from the debtor or another person knowingly:

    (i)    making a false statement or a false representation; or

    (ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

    (b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

    (c)it is more appropriate to waive than to write off the debt or part of the debt.

39. The meaning of the word ‘knowingly’ has been the subject of consideration across a number of jurisdictions. The Tribunal points to the Court of Appeal in the Supreme Court of

    
    

    New South Wales, in RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123, which said:

    In inferring knowledge, a court is entitled to approach the matter in two stages; where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such a person has the knowledge.

40. The Applicant had many opportunities for knowledge, or put another way, to understand the provision of information relating to her income were required. The requirement was explicit in the correspondence from the Agency. There is no evidence before the Tribunal that might explain where there were obstacles to the acquisition of that knowledge.

41. The question then turns to ‘special circumstances’. In Beadle and Director-General of Social Security [1984] AATA 176 at [12]–[13], the Tribunal made the following observations:

    An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

    The question must be asked…what is the context in which circumstances are to be adjudged special or not special?

42. While the Applicant may find herself in a situation of some stress and concern, there is no evidence before the Tribunal that it is unusual, uncommon or exceptional.

43. On the basis of the material before the Tribunal, the prospect of success in a review of the decision by AAT1 appears limited.

    ALTERNATIVE AVENUE OF RELIEF

44. There are options open to the Applicant to negotiate the manageable repayment of the debt in accordance with her means.

45. The Tribunal also notes that the Applicant’s household has a combined gross income of approximately $150,000 per annum (Exhibit R1).

    DECISION

46. The application for an extension of time is refused.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

...............................[SGD]...................................

Associate

Dated: 13 November 2020

Date(s) of hearing:	2 October 2020
Applicant:	In person
Counsel for the Respondent:	Ms A Cornfield
Solicitor for the Respondent:	Services Australia