Dancs and Secretary, Department of Employment
[2009] AATA 222
•30 November 2016
Dancs and Secretary, Department of Employment [2016] AATA 964 (30 November 2016)
Division
GENERAL DIVISION
File Number
2016/5335
Re
Beata Dancs
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 30 November 2016 Place Sydney The application for an extension of time is refused.
...................................[sgd].....................................
Dr L Bygrave, Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – applicant unable to access documents due to broken computer – application has little merit – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)
Social Security Act 1991 (Cth) ss 593, 601
Social Security (Administration Act) 1999 (Cth) ss 63(2), 64(1), 80
CASES
Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Dr L Bygrave, Member
30 November 2016
INTRODUCTION
On 7 October 2016, Ms Beata Dancs lodged an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal on 4 August 2016.
The SSCSD decision on 4 August 2016 affirmed a decision made by the Department of Human Services (the Department) on 25 February 2016 to cancel Ms Dancs’ newstart allowance from 12 November 2015 to 11 January 2016.
The Secretary opposes the extension of time sought.
BACKGROUND
Ms Dancs lodged a claim for newstart allowance on 17 December 2014.
On 12 November 2015, Ms Dancs’ newstart allowance was suspended because she did not attend an appointment with Advanced Personnel Management (APM) on 12 November 2015. This decision was affirmed by the Department on 25 February 2016.
The SSCSD affirmed the Department’s decision on 4 August 2016 and posted the decision to Ms Dancs on 15 August 2016.
On 7 October 2016, Ms Dancs lodged an ‘Application for Extension of Time for Making an Application for Review of Decision’ with the General Division of the Administrative Appeals Tribunal.
The application was heard in Sydney on 15 November 2016. Ms Dancs attended the hearing in person and was self-represented.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with s 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
Pursuant to s 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] as follows:
·an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
·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;
·any prejudice to the respondent caused by the delay;
·whether the respondent or the general public would suffer any prejudice as a result of the extension;
·the merits of the substantial application;
·‘considerations of fairness as between the applicant and other persons’ in a similar position.
These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.
All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.
REASONS FOR DELAY
The delay in Ms Dancs seeking a review of the decision by the SSCSD is 22 days.
Ms Dancs provided the following explanation for the delay:
My computer (laptop) crashed and so I did not and still do not have access to any documents in relation to this matter. I cannot afford the cost of repair and I was not sure what to do. My sincere apologies for…
The Secretary submitted that Ms Dancs would have received a paper copy of the SSCSD decision by post about 19 August 2016. Ms Dancs also told the Tribunal at the interlocutory hearing that she received a copy of the SSCSD decision sometime in August 2016.
While I accept that Ms Dancs was unable to access documents on her computer, this would not have prohibited her from lodging an application with the Administrative Appeals Tribunal.
After considering the evidence before me, I find that the reasons for the delay in lodging a review of the decision did not prevent Ms Dancs from seeking a review of the decision.
While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I have regard to Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222, in which the Tribunal stated:
... to grant an extension of time in this matter would be unfair to other applicants in similar situations who have not submitted late applications.
The grant of an extension of time in this matter would set an unwelcome example and cause inconvenience to Centrelink and the Tribunal in having to deal with large numbers of such applications. There is a general public interest in ensuring finality in decision-making.[1]
[1] [2009] AATA 222, paras [30-31].
I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Ms Dancs’ application. However, given the delay is 22 days, I am satisfied that there would be limited prejudice to the Secretary and the general public if the extension of time is granted. This factor neither weighs against or for the applicant.
MERITS OF SUBSTANTIVE MATTER
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
On 12 November 2015, Ms Dancs’ newstart allowance was suspended because she did not attend an appointment with APM on 12 November 2015 as required by her Employment Pathways Plan. A further decision was made on 11 December 2015 to cancel Ms Dancs’ newstart allowance because she had not re-engaged with APM.
On 11 January 2016, Ms Dancs lodged a new claim for newstart allowance, which was granted from that date.
The substantive matter is whether, on the balance of the evidence before the Tribunal, Ms Dancs’ newstart allowance was payable for the period 12 November 2015 to 11 January 2016.
Relevant legislation
Section 593 of the Social Security Act 1991 (Cth) (the Act) sets out the qualification criteria for the payment of newstart allowance. The criteria includes that the recipient satisfies the activity test, which is detailed in s 601 of the Act.
Section 63(2) of the Social Security (Administration) Act 1999 (Cth) (Administration Act) relevantly provides that the Secretary may require recipients to attend the Department and/or a ‘particular place for a particular purpose’.
The circumstances in which newstart allowance is not payable are prescribed in s 64(1) of the Administration Act:
(1) If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment – the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
Section 80 of the Administration Act authorises the suspension or cancellation of a recipient’s social security payment if the person is either not qualified for the payment of it is not payable to them.
Evidence
The Secretary submitted that:
·Ms Dancs signed an Employment Pathways Plan with APM on 12 September 2015 in which she agreed to attend appointments with APM.
·On 4 November 2015, Ms Dancs was notified of an appointment with APM on 12 November 2015, in accordance with s 63(2) of the Administration Act.
·On 13 November 2015, APM sent a SMS text message to Ms Dancs that stated her newstart allowance had been suspended because she did not attend her appointment on 12 November 2016, and that she needed to call APM as soon as possible on the phone number provided.
·Ms Dancs sent a SMS text message which stated: ‘STOP HARRASSING ME’ and a further text message, which stated:
I had an appointment with my doctor in the hospital. I have emailed a copy of the appointment to Joshua in Rozelle office YESTERDAY. Suspending payments under such circumstances is illegal and unfair. I do NOT have money to make phone calls. Do not call me I want to communicate in writing for the record.
·From 12 November 2015 to 11 January 2016, the Department has no record that Ms Dancs contacted APM by telephone, email or in person, or contacted the Department in relation to the suspension and subsequent cancellation of her newstart allowance.
Ms Dancs told the Tribunal that she notified APM on 11 November 2015 by email that she had an appointment with her doctor at hospital and would not be able to attend her meeting with APM on 12 November 2015. She attached a medical certificate to the email to verify this information.
It would appear that this email was not received by APM as the staff member Ms Dancs emailed was no longer employed by APM. Ms Dancs said that she received text messages from APM on 13 November 2013 but these texts were sent from different mobile phone numbers. She said that she responded to these text messages but some bounced back as ‘undelivered’. Ms Dancs also said she emailed APM and the Department following 13 November 2015. The Department has no record of any emails and I understand that Ms Dancs did not provide copies of any emails to the SSCSD for review of her application.
Ms Dancs contended that she had a reasonable excuse for missing the appointment because she notified APM on 11 November 2015 she would not be able to attend the meeting on 12 November 2015.
The Secretary submitted that, pursuant to s 64(1) of the Administration Act, Ms Dancs was receiving a social security payment and notified under s 63(2) to attend an appointment with APM on 12 November 2015. The Tribunal accepts that Ms Dancs did not comply with the requirement in the notice and that subsection 64(1)(e) of the Administration Act does not apply as newstart allowance is defined as a participation payment (see Schedule 1 of the Act, s 1).
Consequently, the issue to be determined in relation to the substantive matter is whether the requirement for Ms Dancs to attend the appointment with APM on 12 November 2015 is ‘reasonable’ and whether it is reasonable that s 64(1) of the Administration Act be applied to Ms Dancs.
I note the Secretary’s submissions that the requirement for Ms Dancs to attend the appointment at APM on 12 November 2015 was reasonable because Ms Dancs agreed to this requirement in her Employment Pathway Plan dated 15 September 2015 and such appointments are part of the activity test as set out in s 601 of the Act. The Secretary also contended that Ms Dancs was aware that her newstart allowance had been suspended because she responded by SMS text message on 13 November 2015 and she did not receive newstart allowance for the period 12 November 2015 to 11 January 2016.
I accept Ms Dancs’ evidence that she notified APM by email that she could not attend the appointment on 12 November 2015. I also accept that she responded to APM by text message and email because she could not afford to make a phone call. However, Ms Dancs was able to attend either the APM office or a Centrelink office in person sometime in the period after 15 November 2015. Ms Dancs stated at the interlocutory hearing that she visited an office, which was closed at the time, but provided no evidence to the Tribunal as to why she did not visit either an APM or Centrelink office during business hours between 13 November 2015 and 11 January 2016.
Therefore, while it may have been reasonable for Ms Dancs to not attend the appointment with APM on 12 November 2015 because of her medical appointment, it was also reasonable for Ms Dancs to ensure either APM or the Department was informed about her circumstances in the period between 13 November 2015 and 11 January 2016.
In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Ms Dancs’ substantive matter has limited merit. This weighs against the extension of time being granted.
CONCLUSION
Taking into account all of the information before me, including the explanation of the delay and the merits of the substantial application, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ...............................[sgd].........................................
Associate
Dated 30 November 2016
Date(s) of hearing 15 November 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
Legal Concepts
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Appeal
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Procedural Fairness
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Judicial Review
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