Davey and Secretary, Department of Social Services (Social services second review)
[2019] AATA 16
•11 January 2019
Davey and Secretary, Department of Social Services (Social services second review) [2019] AATA 16 (11 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6382
Re:Darren Davey
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms S Taglieri SC, Member
Date:11 January 2019
Place:Hobart
The application for an extension of time is refused.
.............................[sgd].................................
Ms S Taglieri SC, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – principles relevant to the grant of an extension of time – 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)
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth)
Social Security Act 1991 (Cth)Social Security Legislation Amendment (Fair Incentives to Work) Act 2012 (Cth)
CASES
Gluschke and Secretary, Department of Social Services [2018] AATA 3926
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344
REASONS FOR DECISION
Ms S Taglieri SC, Member
11 January 2019
BACKGROUND AND INTRODUCTION
On 1 November 2017, a Member of the Social Services and Child Support Division of the Administrative Appeals Tribunal determined (in matter number H113950/2017) that the Respondent was correct in having determined to reduce the rate of Newstart allowance payable to the Applicant to the sum of $557.90 per fortnight from 8 December 2014. This date being when the Applicant’s son turned 16 years old.
Also on 1 November 2017, the same Member of the Social Services and Child Support Division made a separate decision (in matter number H113949/2017) upholding an application for review by the Applicant in relation to debts raised by the Respondent with respect to overpayment of family tax benefit and schoolkids bonus for particular periods of time.
The Applicant applied to the General Division of the Administrative Appeals Tribunal to appeal the decision of 1 November 2017 in matter number H113949/2017. This application was subsequently resolved by agreement between the parties.
The Applicant did not initially seek to review the decision in matter number H113950/2017 but on 31 October 2018 filed such an application in the General Division of this Tribunal. This application was plainly out of time having been filed well outside the 28 day time period prescribed by s 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Accordingly, the Applicant also made an application for an extension of time.
The application for an extension of time referred to in the preceding paragraph was opposed by the Respondent and a hearing was conducted in respect of the extension of time application on 11 December 2018.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal received a significant volume of documents from the Applicant for the purposes of the extension of time hearing. He also gave oral evidence and was cross-examined by the Respondent’s representative.
The Applicant claimed that on 16 November 2012 he had been impersonated in an interview at a Centrelink office and that as a result of information given by the impersonator to the Respondent, he had wrongly been taken off a parenting payment and commenced on Newstart allowance.
In his submissions the Applicant claimed the decision of the Social Services and Child Support Division referred to in paragraph 1 was incorrect. Further, he contended that he ought to have been in receipt of parenting payment at all times rather than a Newstart allowance.
The Applicant’s evidence about the reason for not filing an application to review the decision referred to in paragraph 1 was that his son had serious health issues that required much of his time and attention as his son’s sole carer.
In cross-examination, the Applicant stated he had pursued the review referred to in paragraph 2 above initially, and not the other matter, because it had greater financial ramifications for him, so with limited time he focussed on one matter only.
Because of the nature of the contention made by the Applicant and the Respondent’s initial confusion about which of the decisions made in November 2017 the current application pertained to, each of the parties were directed to file further documentary evidence and/or submissions.
The Respondent filed additional materials on 11 December 2018.[1] On 21 December 2018 the Applicant filed a large volume of documents in response, most of which had already been filed by him previously. It was apparent from the documentation filed by each of the parties that neither altered their position in respect of whether the extension of time should be granted.
[1] Letter filed by Respondent attaching copies of: (i) a letter sent by the Respondent to the Applicant dated 15 December 2012; (ii) a letter sent by the Respondent to the Applicant dated 2 January 2013 relating to his Newstart obligations; (iii) an online document recording dated 16 November 2012; and (iv) online document recordings dated 15 December 2012 and 1 January 2013 confirming the change of payment from parenting payment to Newstart allowance.
CONTENTIONS BY THE APPLICANT AND RESPONDENT
The Applicant contended that he ought to be granted an extension of time because he had not been able to pursue two applications for review concurrently given demands on him caring for his son, who had serious medical conditions. Further, the Applicant contended that there would be no real prejudice to the Respondent if an extension of time were granted.
The Applicant was probed by the Tribunal in relation to the arguments he would put as to the merits of his application for review if he were granted an extension of time.
It transpired that the Applicant essentially had a single argument. Namely, that he had been impersonated in November 2012 and for that reason, due to false information provided to the Respondent, he had wrongfully and unlawfully been removed from a parenting payment and placed on Newstart allowance.
The Respondent contended that despite the demands of the son’s medical condition, the Applicant had been able to seek review of matter number H113949/2017 within time. The effect of this submission being to suggest the Tribunal ought not to accept the explanation for delay to be satisfactory.
The Respondent did not seriously press the question of prejudice but it did strongly contend that there was absolutely no merit in the Applicant’s contentions regarding the correctness of the decision in the matter referred to in paragraph 1 above. The Respondent submitted that there was a single reason why the Applicant had been removed from a parenting payment and placed on a Newstart allowance from 1 January 2013. That single reason being due to legislative changes made by virtue of the Social Security Legislation Amendment (Fair Incentives to Work) Act 2012 (the 2012 Amending Act).
Further, the Respondent contended that the Member was correct in affirming the reduction of the rate of Newstart payable to the Applicant from 8 December 2014, because the Applicant could no longer be regarded as a principal carer[2] due to his son turning 16 years old.
[2] Defined in s 5(15)-(24) of the Social Security Act 1991 (Cth).
RELEVANT PRINCIPLES TO GRANTING AN EXTENSION OF TIME
In determining whether an extension of time ought to be granted the Tribunal is required by law to consider specific principles. In a recent decision of Gluschke and Secretary, Department of Social Services[3] (Gluschke), the principles were summarised as follows (at [28]):
·Has there been a satisfactory explanation for the delay in bringing the application for review to the General Division;
·Has the review some arguable merit;
·Is the Respondent prejudiced if an extension of time is granted in addressing the substantive issues on review; and
·Overall, does justice require the extension of time to be permitted?
[3] [2018] AATA 3926.
CONSIDERATION AND DETERMINATION
The Tribunal accepts that the Applicant’s son suffers from a serious medical condition and that condition, from time to time, required his time and attention being wholly devoted to his son. The medical issues required multiple medical appointments, consultations with doctors, and liaisons between doctors, specialists, hospitals and education providers.
Despite the Tribunal accepting that the Applicant’s time would have been consumed with care responsibilities at times, it is not satisfied that these totally and at all times prevented him from making application for review at an earlier time.
The delay is almost 12 months and it is clear from the Applicant’s evidence and the documents filed that he elected to await the outcome of his review in respect of the debt decision dated 1 November 2017[4] before proceeding with the second review. Alternatively, he chose to focus on one review at time regardless of the legislative time limits.
[4] The matter referred to in paragraph 2 above.
Whilst this may have been a logical and sensible course for the Applicant because of the financial implications of the first application for review (see paragraph 10 above), it is not in the Tribunal’s view a satisfactory explanation. The time limit prescribed by s 29 of the AAT Act is not to be given mere token recognition. Rather it is ordinarily to be enforced.[5]
[5] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344.
The Applicant was aware of the time limit and made a conscious decision not to proceed with his review until a later time. This attitude is effectively to ignore the requirements of the AAT Act at his peril.
Even if the Tribunal were persuaded that the Applicant had provided a satisfactory explanation for delay, ultimately the Tribunal is confident in reaching the view that the extension of time sought should not be granted. This is because of the simple fact that regardless of the Applicant’s contentions about there being merit in his application for review because he was impersonated, the Tribunal is satisfied that this, if it did occur, had no bearing on the Respondent’s decisions about what type of social security payment he should receive.
The reason for this being that once the 2012 Amending Act commenced on 1 January 2013, the Applicant should no longer, as a matter of law, have received a parenting payment. By operation of the 2012 Amending Act, the transitional provisions that had previously operated,[6] and allowed the Applicant to still receive a parenting payment although his son was over eight years of age, ceased. Accordingly on 1 January 2013, as his son was over eight years of age, the Applicant was no longer entitled to a parenting payment but was eligible to receive a Newstart allowance.
[6] Under the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth).
Documents filed by the Respondent demonstrate that the Applicant was probably notified of the legislative changes and the reasons why he began receiving Newstart instead of parenting payment. It is difficult to determine whether the Applicant concedes that he received the correspondence from the Respondent dated 15 December 2012.[7] Regardless of whether he did or not, the operation of the 2012 Amending Act was not contingent on prior notice of the legislative changes being given to the Applicant. These changes simply introduced new law, the effect of which was that he was no longer eligible for parenting payment.
[7] Referred to above at Footnote 1.
Regardless of what events may or may not have occurred in relation to the Applicant being impersonated on 16 November 2012, that impersonation, if it occurred, or any claims by the Applicant that the Respondent was misinformed or acted on false information, simply has no bearing on the type of payment he received from 1 January 2013.
The Tribunal was informed by the Respondent that the rate of payment for a single Newstart or single parenting payment (with no dependent child)[8] from 8 December 2014 was the same. The Applicant did not challenge this proposition. It would seem therefore that regardless of which of these payments were made, there is no financial impact.
[8] Defined by s 5(2)-(8) of the Social Security Act 1991 (Cth).
The financial impact due to reduction in the rate of payment to $557.90 per fortnight from 8 December 2014 is for the reasons set out in [10]-[16] of the decision of 1 November 2017 in matter number H113950/17. They make it plain that once the Applicant’s son attained 16 years of age then by operation of the statutory provisions referred to the son could no longer be treated as a dependent child and consequently, the Applicant was no longer a principal carer.
The Applicant made no contentions or arguments to challenge the propositions referred to in the preceding paragraph or the reasoning of the Social Security and Child Support Division Member at [10]-[16].
The Tribunal concludes that there is no possible merit in the arguments the Applicant wishes to advance on this review. It appears that he has brought the review with the objective of demonstrating that there has been a fraud against him or improper/poor recordkeeping and decision-making by the Respondent, but it is not the role of this Tribunal to make any declaratory statements or orders of the kind sought.
What is quite plain is that by operation of statutory provisions under the social security laws, from 1 January 2013 the Applicant was only entitled to receive a Newstart allowance rather than a parenting payment. Further, once his son turned 16 years old, the Applicant had to receive the rate of Newstart for a single person who is not a principal carer. These outcomes were dictated by legislation and not false information given to the Respondent.
DECISION
In conclusion, after considering the legal principles referred to above at paragraph 19, the provisions of social security law and evidence received at the hearing, the Tribunal is not persuaded that the extension of time should be granted. The application for extension of time is refused.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member
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Associate
Dated: 11 January 2019
Date(s) of hearing: 11 December 2018 Date final submissions received: 21 December 2018 Applicant: In person Advocate for the Respondent: Ms Biljana Salaji (by telephone) Solicitors for the Respondent: Department of Human Services
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