David and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 782

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 782

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No. 2011/3054

GENERAL ADMINISTRATIVE DIVISION		)
Re		ATHIP DAVID

Applicant

And SECRETARY DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS  

Respondent

DECISION

Tribunal  G. D. Friedman, Senior Member

Date 19 September 2011

Place Melbourne

Decision  The Tribunal refuses the application for an extension of time.

[sgd] G D Friedman

Senior Member

SOCIAL SECURITY – extension of time to lodge application for review ­­­– review exercise of discretion

Adminstrative Appeals Tribunal Act 1975 s 29(7)

Social Security Act 1991 ss 8, 643, 1068, 1076, 1083

Social Security (Administration) Act 1999

Hunt Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

4 November 2011   G. D. Friedman, Senior Member

1.      On 10 October 2006 a Centrelink authorised review officer (ARO) affirmed a previous decision requiring Mr David to list employer contacts on his fortnightly application for payment forms.  The decision also treated his financial investments as not being exempt from the deeming rates and applicable thresholds in assessing his Newstart Allowance.

2.      On 30 July 2009 Mr David lodged an application for review of the decision of the ARO with the Social Security Appeals Tribunal (SSAT).  On 20 August 2009 the SSAT affirmed the decision made by the ARO on 10 October 2006.  It despatched its decision to Mr David on 31 August 2009.

3.      On 29 July 2011 Mr David applied to this Tribunal for review of the SSAT decision and on 5 August 2011 he lodged an application for an extension of time.

ISSUE

4.      The issue before the Tribunal is whether an extension of time within which to lodge an application for review should be granted.

RELEVANT LEGISLATION AND PRINCIPLES

5. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) states:

The Tribunal may, upon application in writing by a person, 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.

6.      In determining applications for extensions of time, the Tribunal has been guided by the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:

… The ‘prescribed period’ of 28 days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained … It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.

7.His Honour set out another five principles:

·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;

·any prejudice to the respondent or any other party;

·the absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;

·the merits of the substantive application are to be properly taken into account;

·considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.

8.      The legislation under which the decision under review was made is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

9. Chapter 2, Part 2.12, Division 1 of the Act deals with the qualification for and payability of Newstart Allowance. Section 643 of the Act stipulates that a person’s Newstart Allowance rate is to be worked out using Benefit Rate Calculator B at the end of section 1068. Section 1068-G1 requires the first step to be ascertaining Mr David’s ‘ordinary income on a fortnightly basis’. ‘Ordinary income’ and ‘income’ are defined in s 8 of the Act.

10. Sections 1076 and 1083 apply to Mr David’s situation, such that his ordinary income from his financial assets is not the actual rate of return but the deemed income in accordance with ss 1076-1084.

11.There is no dispute as to his financial assets.

CONSIDERATION

explanation for the delay

12.     Mr David told the Tribunal that he was unable to lodge his application for review within 28 days of the SSAT decision because his time was taken up with being unemployed; he was occupied with pursuing requests, appeals and complaints with various departments, agencies, tribunals and courts; his motor vehicle was under repair; and because of his inadequate knowledge of the Tribunal’s appeal process. Mr David argued that these factors culminated in the late application for review.

13.     Mr David also said that in the decision of the ARO and the SSAT, the time of day the decision takes effect or is made is not evident on the decision and therefore an extension of time was not necessary.

14. While Mr David has provided explanations for his delay, they are not satisfactory. Mr David is clearly articulate and accustomed to corresponding with various Commonwealth and State agencies. He has access to and is familiar with the internet. The Tribunal is satisfied that Mr David’s previous visits to the Tribunal, in addition to the letter informing him of his right to seek review of the SSAT decision, gave him the capacity to visit or telephone the Tribunal if he was unclear on the appeal process and to lodge an application within the prescribed time. Mr David’s argument that an extension of time under Section 29 (7) of the AAT Act is unnecessary is incorrect. The Tribunal is not satisfied that Mr David has an acceptable explanation for his delay of more than 23 months.

has the applicant rested on his rights?

15.     Since receiving the decision of the SSAT in August 2009 Mr David has made no attempts to notify the respondent or the Tribunal for his intention to seek review. The Tribunal finds that Mr David has rested on his rights and that this factor weights against granting an extension of time.

Prejudice to Other Parties

16.     There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time were to be granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.

Wider Public Considerations

17.     Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. The Tribunal finds that this factor weights against granting an extension of time.

The Merits of the Substantive Application

18.     In its original decision in October 2006 the respondent formally advised Mr David that it required him to list employer contacts on his fortnightly application for payments forms, and that Mr David’s financial investments were not exempt from the deeming rates and applicable thresholds in accessing the rate of his newstart allowance. This followed the respondent’s action in imposing participation failures on Mr David in several instances for failure to comply with Activity Agreement requirements which resulted in Mr David’s last social security payment being made on 27 June 2006.

19.     The Tribunal finds that if an extension of time was granted, Mr David would still have to list employer contacts on a fortnightly application for payment form, and his financial investments would remain relevant to the deeming rates and applicable thresholds in assessing his rate of newstart allowance. The Tribunal finds that there is little merit in the substantive application, so this factor weights against granting an extension of time.

Considerations of Fairness

20.     There is nothing unique or special about Mr David’s situation, or in the reasons he put forward to explain his delay in seeking review by the Tribunal, that would make his situation markedly different to other applications in similar situations.

CONCLUSION

21.     The Tribunal finds that the two significant factors against granting Mr David an extension of time are the lack of an acceptable explanation for the delay and the lack of merit of his substantive application. In considering all of the relevant factors the Tribunal is not satisfied that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.

DECISION

22.The Tribunal refuses the application for an extension of time

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

…………………………………………………………..

[sgd] Michael Heffernan

Associate

Dates of hearing:  19 September 2011
Date of decision:  19 September 2011
Advocate for applicant:               Self-represented
Advocate for respondent:            Mr M Hester, Centrelink
Date of written reasons:               4 November 2011