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

[2010] AATA 890

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 890

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4387

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NATALIE DILLON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date8 November 2010

PlaceMelbourne

Decision The Tribunal decides to refuse the application for an extension of time in which to lodge an application for review.

…...(sgd G L McDonald)....

Deputy President  

CATCHWORDS – Social Security law – extension of time application – relevant principles when considering extension of time applications – whether reasonable chance of success of application – whether applicant can rely on her circumstances – application refused.

Administrative Appeals Tribunal Act 1975, s 37

Social Security (Administration) Act 1999, s 13(2)(a)

REASONS FOR DECISION

10 November 2010 Mr G L McDonald, Deputy President

1.      This is an application for an extension of time within which to apply for review of a decision refusing to commence the payment of the applicant's Newstart Allowance at a time earlier than 4 February 2010. 

2.      The applicant was advised of the hearing of the application, which was to be undertaken by telephone, in a letter from the Tribunal dated 28 October 2010.  The letter was sent to the address provided by the applicant as her contact address, namely PO Box 3065, Prahran East Vic 3181.  The letter is taken to have been received by the applicant in the ordinary course of post, which would be well before the date set for the hearing.  The Tribunal contacted her at the stated time of the hearing, namely 11:30am on 8 November 2010.  The telephone call was answered by a recorded answering service.  A message was left that the hearing would proceed in the absence of the applicant.

3.      Mr Hester, a departmental advocate, represented the respondent.  He had forwarded to the applicant, on 22 September 2010, a detailed statement setting out the reasons why the respondent opposed the extension of time.

4. The Tribunal is satisfied from the documents filed by the respondent, as required under s 37 of the Administrative Appeals Tribunal Act 1975, that the applicant first made contact with a departmental officer on 4 March 2010, to enquire about her eligibility to receive a low income health care card.  A record of the conversation notes her being encouraged to apply for Newstart Allowance but records that she did not want to proceed with that application at that time.  On that same day, 4 March 2010, the respondent wrote to the applicant notifying her that in order to receive payment from the earliest possible date she should ensure that her claim forms were submitted to the department on or before 18 March 2010. 

5.      On 21 April 2010, the applicant contacted the respondent regarding making a claim for the payment of Sickness Allowance.  She was again advised in writing, in a letter dated 21 April 2010, to submit her claim on or before 5 May 2010 in order to receive the maximum benefit.  On this occasion, she must have lodged an application, because on 11 May 2010 she was advised that her application to be paid a sickness benefit was unsuccessful, but a Newstart Allowance for the period commencing 15 April 2010 was paid.  The applicant requested that the decision not to pay from an unspecified date in September 2009 be reviewed. 

6.      Following further contact between the parties, a review officer varied the decision so that payment commenced from 19 March 2010.  The applicant appealed that decision to the Social Securities Appeals Tribunal (SSAT), which determined the commencement date for the payment of the allowance should be 4 February 2010.  It is from that latter decision that the applicant has appealed to this Tribunal. 

7.      The time within which an application to this Tribunal must be made, when appealing a decision from the SSAT, is 28 days.  The SSAT decision was posted to the applicant on 19 August 2010 and must be taken as having been received by the applicant in the ordinary course of the post.  Her application was lodged with this Tribunal on 12 October 2010 - clearly outside the 28 day time limit. 

8.      One of the essential elements, in considering whether to grant an extension of time, is to determine if there is a reasonable chance of the substantive application succeeding.  This does not involve the decision maker in a detailed consideration of the case, such as would be undertaken in a final hearing.  It does, however, involve a consideration of the chances of success from the material before the Tribunal.  In this case, the applicant was admitted to hospital in Sydney in September and again in October 2009 for severe postural hypotension, which caused fainting and dizziness.  She moved to Brisbane in November 2009 and was admitted to hospital in November and again in December of that year.  In the former instance, she was admitted for surgical procedures and, in the case of the latter, for tests to determine a diagnosis.

9.      The applicant claims that a combination of her medical conditions and personal circumstances, including the death of her mother, precluded her from making an earlier application for the payment of a benefit.

10.     The usual starting date for the payment of a social security benefit is the date on which the application is made.  However, if circumstances accord with the provisions of s 13 of the Social Securities (Administration) Act 1999 (the Administration Act), an earlier start date may be deemed to apply.  One of the provisions is that the department must be contacted with respect to the making of a claim (s 13(2)(a)).  The only evidence is that the first time the applicant made contact with the department about a claim was 4 March 2010.  In accordance with clause 11(2) of schedule 2 of the Administration Act, the SSAT directed that the payment be commenced four weeks earlier than the date of first contact with the department.

11.     The SSAT accepted, as does this Tribunal, that the applicant, had she made contact earlier with the department, would, on the medical evidence provided, have qualified to receive payment at a date in September 2009.  However, she cannot succeed in circumstances where she, or someone on her behalf, has not made contact with the department to foreshadow the making of a claim.  While the applicant claims that there was no one who could make a call on her behalf, the Tribunal notes that since the applicant was physically able to move to Brisbane from Sydney, despite her illnesses, it could not have been beyond her to make telephone contact with the department.  It may be, although the applicant does not mention it as being an impediment, that she did not know of the need to make contact with the department.

12.     The applicant relies on her circumstances to justify her not lodging an earlier claim.  Those circumstances appear, in the absence of the legislative provision requiring contact to be made, to have merit.  However meritorious the circumstances of an individual, they cannot constitute grounds to set aside a legislative requirement.  The legislation requires contact to be made with the department if payment is to be made at a date earlier than otherwise pertains.  The applicant at no point states that contact was made at a time earlier than 4 March 2010.

13.     Since there is, in the opinion of the Tribunal, no chance of the applicant succeeding in her substantive application, no purpose can be served by extending the time within which she can lodge her application.

14.     For the expressed reasons, the application for an extension of time is refused.

I certify that the fourteen preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President

Signed:         .........(sgd D De Andrade)..............

Personal Assistant

Date of Hearing  8 November 2010
Date of Decision  8 November 2010
Date of Written Reasons          10 November 2010
Solicitor for the Applicant          failed to appear
Solicitor for the Respondent     Mr M Hester, departmental advocate