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

[2020] AATA 1723

Dallal and Secretary, Department of Social Services (Social services second review) [2020] AATA 1723 (15 June 2020)

Division:GENERAL DIVISION

File Number(s):2020/1804; 2020/1805      

Re:Zeina Dallal  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:15 June 2020

Place:Sydney

The application for an extension of time is refused.

..............................[sgd]..............................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – whether there is an acceptable explanation for delay – whether Respondent is prejudiced by delay – whether Applicant rested on her rights – considerations of fairness between Applicant and others in a similar situation – whether substantive application has merits – carer payment – carer allowance – Adult Disability Assessment Tool – claimant questionnaire score – professional questionnaire score – prejudice to the public – whether it is reasonable in all the circumstances to grant the extension – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Adult Disability Assessment Determination 2018

Social Security Act 1991 (Cth) ss 197, 198, 954A

Social Security (Administration) Act 1999 (Cth) Sch 2

CASES

BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Jamal v Secretary, Department of Social Services [2018] FCA 513

Parker v R [2002] FCAFC 133

Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109

REASONS FOR DECISION

Chris Puplick AM, Senior Member

15 June 2020

BACKGROUND

1. This is an application from Ms Zeina Dallal (Applicant) for an extension of time (EOT) to lodge an application for a review of a decision by the Social Services and Child Support Division (AAT1) of this Tribunal made on 29 January 2020.

2. That decision affirmed what were, in effect, two decisions of the Secretary of the Department of Social Services (Respondent) to reject the Applicant’s application for carer payment and carer allowance claimed in respect of her mother, Mrs Sabah Moussa.

3. The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that applications for a review of AAT1 decisions must be made within 28 days of receipt of the decision by an applicant.[1] In this case, the decision under review was posted to, and received by, the Applicant on 3 February 2020 and hence, allowing for delivery by post, the 28-day period concluded on 11 March 2020.

   [1] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 29(2).

4. On 25 March 2020 the Applicant lodged an application for review of the AAT1 decision. On 7 April 2020 the Applicant lodged a request for an EOT to make her application for review as is provided for by section 29(7) of the AAT Act.

5. The original application for review was lodged 14 days out of time.

   EXTENSION OF TIME PRINCIPLES

6. When considering EOT applications, the Tribunal is to grant an EOT only if it “is satisfied that it is reasonable in all the circumstances to do so”.[2] Court authorities offer useful guidance on time limits and the factors which should be taken into account in deciding whether or not to grant such applications.

   [2] AAT Act s 29(7).

7. Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor. His Honour gave four reasons why such limitations are an important part of the legal process. His Honour noted that:

   First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them…

   …The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[3]

   [3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552-553. Footnotes and citations omitted.

8. While acknowledging that applications received out of time will generally not be accepted, it is also accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[4] should be taken as the guide by this Tribunal in determining EOT matters.

   [4] (1984) 3 FCR 344, 348-349.

9. That list provides as follows:

   (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay;

   (d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

   (e)the merits of the substantial application; and

   (f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.

10. This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[5] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.

    [5] Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326, [3]; Parker v R [2002] FCAFC 133, [6].

11. It is clear that the Applicant has not rested on her rights; she has been active in the pursuit of her case. The time of delay is sufficiently short that no real prejudice would result for the Respondent in defending the proceedings.

12. In this instance, there are two items which merit particular consideration: is there an acceptable explanation for the delay and does the application for review itself have any reasonable prospect of success at a full merits hearing?

    REASONS FOR DELAY

13. The Applicant told the Tribunal that her reasons for the delay in submission of her review application were that she was under a great deal of stress providing care for her mother (in addition to her children), especially with the restrictions imposed by government authorities during the COVID-19 pandemic response. Furthermore, the Applicant explained that she had difficulty arranging an appointment with her mother’s medical practitioner (Dr Gorman) from whom she believed she needed a medical report in order to support her lodgement of an application for review.

14. Given that the delay is only 14 days and that the Respondent accepts that “this is not a significant delay”,[6] the Tribunal accepts that an adequate explanation for the delay has been provided.

    [6] Respondent’s outline of submissions dated 5 May 2020 at [17].

    MERITS OF THE SUBSTANTIVE APPLICATION

15. Claims for carer payment and allowance are assessed under the provisions of sections 197, 198 and 954A of the Social Security Act 1991 (Cth) (Act) and the Adult Disability Assessment Determination 2018.

16. Without going into detail, in essence what this regime establishes is that, in order to qualify for such payment or allowance, inter alia, an applicant must be assessed using the Adult Disability Assessment Tool (Assessment Tool) under which they have to score a certain number of points.[7]

    [7] The Adult Disability Assessment Tool is contained within the Adult Disability Assessment Determination 2018 which also includes the rating method.

17. Points are awarded through assessment of responses to two questionnaires – one from the applicant carer (claimant questionnaire) and one from a treating health professional (professional questionnaire).

18. A person is qualified for carer payment if they meet certain specified criteria and the care receiver has been “given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10” (Act s 198(2)(a)(i)).

19. A person is qualified for carer allowance if they meet certain specified criteria and the care receiver has been “given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12” (Act s 954A(1)(c)).

20. In assessing the Applicant’s original claim for carer payment and carer allowance, which was made on 20 February 2019, the Department took into consideration two questionnaires – the claimant questionnaire submitted by the Applicant and a professional questionnaire from the relevant treating health professional (Dr Awada).[8] The first of these resulted in a score of 17 and the second (the professional questionnaire) a score of 7.5 which is below the minimum score required from a professional questionnaire.

    [8] Carer Payment and/or Carer Allowance Medical Report dated 4 May 2019.

21. This gave a total of 24.50 points which fell below the minimum required threshold and hence the applications for the payments were denied.

22. Dr Awada submitted a further professional questionnaire dated 6 November 2019 in which he revised his assessment of Mrs Moussa resulting in a score of 18 points. This is consonant with the evidence given at the hearing by the Applicant which was to the effect that her mother’s condition had deteriorated significantly over the past year and that in May 2019 her mother was just suffering pain but that thereafter she developed “burning feelings in all her joints” and became progressively more disabled.

23. In addition, the Applicant has submitted medical reports from Dr David Gorman (a pain specialist) dated 11 November 2019 and 11 March 2020, and a report of Ayman Kassir (a consultant psychologist) dated 10 December 2019. However, these reports have not been assessed by the Department as they do not contain completed professional questionnaires through which a score under the Assessment Tool can be determined.

24. The Social Security (Administration) Act 1999 (Cth) provides that any claim must be assessed at the date of the application itself or within a 13-week period immediately thereafter. In this instance, the qualification period was from 20 February 2019 to 22 May 2019 (qualification period).

    Discussion

25. The facts that emerge from all this are that:

    (a)during the qualification period, Mrs Moussa’s medical condition was such that calculations under the Assessment Tool gave her a rating which was (just) below the thresholds required for the Applicant to receive carer payment and carer allowance;

    (b)since the qualification period Mrs Moussa’s condition has worsened to the extent that it would appear, prima facie (if the two ratings of 17 points from the Applicant’s claimant questionnaire and 18 points from Dr Awada’s revised professional questionnaire remain) the necessary threshold scores may be achieved;[9] and

    (c)the later medical report and professional questionnaire from Dr Awada, and the later reports from Dr Gorman and Mr Kassir, cannot be taken into account to make an assessment related to the qualification period because they are not from, or do not refer back to, the qualification period. However, Dr Awada’s later professional questionnaire would be relevant to any current assessment and the other three would potentially have value were they to be submitted in the required format (as a professional questionnaire).

    [9] The Tribunal cannot be definitive on this point.

    CONCLUSION

26. These being the facts it is clear that were this matter to be reviewed by the Tribunal, the application would have low prospects of success and the finding made by the AAT1 would likely be affirmed.

27. To allow such proceedings to go forward would be in the interests of none of the parties.

28. It would not be in the interest of the Applicant. Her best interest is clearly that she submits a new application for carer payment and carer allowance based on assessment reports related to her mother’s conditions as at this moment. Nothing prevents her from doing this and, moreover, even were this EOT request to be granted it would be many months before such review proceedings could be arranged in the Tribunal.

29. Given the low prospects of success, the granting of an EOT would also not be in the interests of the Tribunal or the public, as outlined by Bromwich J:

    The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.[10]

    [10] Jamal v Secretary, Department of Social Services [2018] FCA 513, [6].

30. The Tribunal is therefore not satisfied that it is reasonable in all the circumstances to extend the time for the Applicant to make her application for review.

31. In this respect, applying another of the Hunter Valley Developments principles, to allow this application to go forward would be to violate the principle that the Tribunal should give “considerations of fairness as between the applicant and other persons” in a similar position. It is the commonplace practice to refuse extensions of time for applications lacking substantial merit.

    DECISION

32. For the reasons stated above the application for an extension of time is refused.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[sgd]..............................

Associate

Dated: 15 June 2020

Date(s) of hearing:	19 May 2020
Applicant:	In person (by telephone)
Solicitors for the Respondent:	Ms C Hammerton, Services Australia