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

[2021] AATA 5080

DFRP and Secretary, Department of Social Services (Social services second review) [2021] AATA 5080 (15 December 2021)

Division:GENERAL DIVISION

File Number:          2021/6489

Re:DFRP

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R. West

Date:15 December 2021

Place:Melbourne

The Tribunal refuses the application for an extension of time under s 29(7) of the Administrative Appeals Act 1975 (Cth).

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

Member R. West

Catchwords

CANCELLATION OF JOBSEEKER PAYMENTS – inheritance – financial asset exceeding the asset test – appeal lodged out of time – application for extension of time under s 29(7) of the AAT Act – no reasonable prospect of success – application refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Evidence Act 1995 (Cth)

Social Security Act 1991 (Cth)

Cases

Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

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

REASONS FOR DECISION

Member R. West

15 December 2021

INTRODUCTION

1. The Applicant seeks to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 9 July 2021, which affirmed the decision of Services Australia to cancel the Applicant’s JobSeeker payments because her assets exceeded the allowable limit for JobSeeker payments under the Social Services Act 1991 (Cth) (Act)(Decision). 

2. A written statement of the reasons for the Decision was sent to the Applicant by registered post on 15 July 2021.[1]  The statement was deemed to have been received by the Applicant on 26 July 2021.[2]

   [1] The Applicant had not provided an email address to the Tribunal and requested that correspondence be directed to her by mail.

   [2] Evidence Act 1995 (Cth) s 160(1).

3. On 24 August 2021 the Applicant contacted the Tribunal Registry by telephone and requested that she be sent an Application for Review and an Application for an Extension of Time form. A copy of these forms were sent to the Applicant by express post on 24 August 2021.

4. The Applicant lodged an Application for Second Review of Decision and an Application for Extension of Time for Making an Application for Review of Decision forms to the Tribunal on 9 September 2021.

5. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that the prescribed time for lodging an application with the AAT is within 28 days after notice of a decision is given to an Applicant.

6. The application for review of the Decision was required to be lodged with the Tribunal by 23 August 2021 and so the application is 17 days out of time.

7. Section 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review if an application for an extension of time is made in writing by the Applicant. In this case, the Applicant lodged a written application for an extension of time on 9 September 2021.

8. Under s 29(7) the Tribunal may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.

9. If the extension of time is opposed by the Respondent, s 29(10) of the AAT Act requires the Tribunal to give the parties a reasonable opportunity of presenting their respective cases.

10. In this case, the Respondent objected to the extension of time and the parties were afforded the opportunity to present their respective cases at an Interlocutory Hearing conducted by telephone on 17 November 2021. The Applicant was self-represented, and the Respondent was represented by Ms Stefana Doslo, a solicitor with Services Australia.

    APPLICANT’S SUBMISSION

11. The Applicant acknowledged having received the reasons for the Decision by letter dated 17 September 2021. The Applicant set out the reasons she asserted she was prevented from lodging her application for review in a handwritten submission received by the Tribunal on 9 November 2021. In it she asserted that she could not access the internet as she did not have her own computer and was prevented from accessing public internet facilities by reason of community restrictions imposed as a result of the COVID-19 pandemic. 

    RESPONDENT’S SUBMISSION

12. The Respondent provided a detailed written submission on 10 November 2021 opposing the extension of time. The Respondent conceded that there would be no substantial prejudice to the Respondent in granting an extension of time but relied on the absence of merit as the principal basis for opposing the application. 

13. The Respondent’s principal arguments were:

    a.The Applicant had inherited a 50% share in a house owned by her deceased mother which when sold yielded a payment to the Applicant of approximately $738,812 which she deposited in a Commonwealth bank account (Deposit). The completion date for the sale was 26 September 2018.

    b.The Deposit was a financial asset for the purpose of the asset test for the JobSeeker benefit and exceeded the asset limit of $473,750.

    c.The Applicant was nevertheless granted the JobSeeker benefit from 26 June 2020, the date of application, on 17 August 2020.  Under the COVID-19 measures introduced from 25 March 2020 the Deposit was an exempt asset pursuant to s 1118(1B) of the Act. 

    d.The exemption under s 1118(1B) expired on 24 September 2020 and the Applicant’s JobSeeker payments were cancelled on 25 September 2020.

    e.Section 1118(2B) provides that for the purpose of subsection (1B), the Respondent may extend the exemption for up to a total period of 24 months from the date of completion of the sale if:

    i.a person who has sold his or her principal home is making reasonable attempts to purchase, build, repair or renovate another residence; and

    ii.the person has been making those attempts within a reasonable period after selling the principal home; and

    iii.the person has experienced delays beyond his or her control in purchasing, building, repairing or renovating the other residence.

    f.There was no evidence that the Applicant met the criteria in s 1118(2B). In any event, there was no utility in extending the exemption under s 1118(2B) as the maximum period permitted for the extension is 24 months from the completion of the sale which would have expired on 26 September 2020, the day after the cancellation of the Applicant’s JobSeeker benefits.

    RELEVANT CONSIDERATIONS

14. The Federal Court has confirmed the prima facie rule that proceedings commenced outside the 28-day period should not be entertained.[3] In relation to the discretion to extend time under s 29(7), the Court said:

    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.[4]

    [3] Hunter Valley Developments Pty Ltd Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348.

    [4] Ibid.

15. The relevant considerations for the exercise of the discretion may be summarised as follows: [5] 

    (a)there is no onus of proof upon an applicant for an extension of time but special circumstances need not be shown, and the Tribunal should not grant the application unless positively satisfied it is proper to do so;

    (b)it is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay be given but such an explanation will normally be given and is a relevant matter to be considered;

    (c)action taken by the applicant other than making an application to the Tribunal is relevant in assessing the adequacy of the explanation for the delay;

    (d)it is relevant to consider whether the applicant has rested on their rights;

    (e)any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a relevant consideration, but the absence of prejudice is not enough to justify the grant of an extension;

    (f)it is appropriate to take the merits of the substantial application into account; and

    (g)considerations of fairness as between the applicant and other persons in a similar position may be relevant.

    [5] See Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 [18].

    ASSESSMENT

16. The Tribunal accepts the Applicant’s explanation for the delay in making her application for review of the Decision. While the prima facie position is that prescribed time limits should be complied with, the delay in this case, given the Applicant’s circumstances, is not so long as to cause prejudice to the Respondent or to infringe on the interests of the public generally. 

17. However, the Applicant’s grounds for seeking review of the Decision disclose that the application has no reasonable prospect of success. 

18. In her oral submissions and in a letter received by the Tribunal subsequent to the hearing on 19 November 2021, the Applicant asserted that she was intending to purchase a new home and that she had ‘” definitely experienced delays beyond (her) control” when trying to do so. Notwithstanding invitations to do so, the Applicant did not produce any evidence to substantiate this assertion.

19. Even if the Tribunal were to accept that the Applicant had a reasonable basis to argue that the discretion under s 1118(2B) of the Act should be exercised to extend the period of exemption for her Deposit, the Act limits the period of exemption to 24 months from the date of completion of the sale of the property. In the Applicant’s case, the date of completion of the sale of her mother’s home was 26 September 2018 and so the Tribunal would have no discretion to extend the exemption beyond 26 September 2020. At best, the Applicant could obtain an additional two days of JobSeeker payments.

20. In these circumstances, the Tribunal is not satisfied that it is reasonable to extend the time for the making of the application.

    DECISION

21. The application for an extension of time under s 29(7) of the AAT Act is refused.

22.     I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 15 December 2021

Dates of hearing:	17 November 2021
Applicant:	By Telephone
Solicitor for the Respondent:	Ms Stefana Doslo