Dillon and Secretary, Department of Social Services (Social services second review)
[2021] AATA 31
•21 January 2021
Dillon and Secretary, Department of Social Services (Social services second review) [2021] AATA 31 (21 January 2021)
Division:GENERAL DIVISION
File Number(s):2020/5409
Re:Lea Dillon
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Senior Member D O'Donovan
Date: 21 January 2021
Place:Canberra
The Tribunal refuses the extension of time for making an application for review of a decision made by the AAT on 2 December 2019.
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Senior Member D O'Donovan
PRACTICE AND PROCEDURE – extension of time – Tier 1 AAT decision to confirm carer payment debt and refuse to waive or write off debt – interlocutory application for an extension of time – application for review made outside the prescribed time – applicant considered seeking review and initially decided not to – changed her mind when advice on alternative discovered to be erroneous – prospects of success – application refused
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Social Security (Administration) Act 1999Arbon and Comcare [2017] AATA 2870
De La Torre-Greene and Comcare [2020] AATA 419
Hunter Valley Developments Pty ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
MZABP v Minister for Immigration and Border Protection and Others [2015] FCA 1391
Re Flahive and Comcare [2020] AATA 3044Thompson and Comcare [2019] AATA 714
REASONS FOR DECISION
Senior Member D O'Donovan
21 January 2021
INTRODUCTION
This is an application pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) seeking to extend the time for making an application for review of a decision made by a member of the Social Services and Child Support Division of the Administrative Appeal Tribunal (Tier 1 decision). The applicant lodged the extension of time (EOT) application on 3 September 2020 with respect to a decision that was made on 2 December 2019. The application is brought 249 calendar days beyond the prescribed time for making an application for review. On 22 September 2020 the respondent advised that it opposed the extension of time.
The applicant initially lodged an application for an extension of time that was sparse and failed to address matters relevant to an extension of time application. The Tribunal sent the applicant an email on 28 September 2020, requesting that the applicant file further submissions and evidence upon which she wished to rely in support of her application for an extension of time. The email specifically requested that the applicant provide further evidence in relation to the following:
(a)The length of the delay;
(b)The explanation for the delay;
(c)Whether any steps were taken after the decision of the delegate to make the delegate aware that the applicant contested the delegate’s decision; and
(d)The basis on which the applicant will contest the merits of the delegate’s decision.
On 16 October 2020, the applicant filed an extensive submission outlining the basis on which the extension of time was sought. On 6 November 2020 the respondent filed a detailed submission opposing the grant of the extension.
The matter was listed for a telephone hearing to hear oral arguments on 3 December 2020. However, because the applicant suffers from a very significant hearing impairment which made it impossible for her to participate in any hearing using telephone or video conferencing facilities a decision was made to proceed by telephone without the applicant being available to give evidence. Instead the Tribunal relied on her statements and her representative’s understanding of the facts. Given that the Tribunal is not bound by the rules of evidence and that section 2A of the Administrative Appeals Tribunal Act 1975 requires the Tribunal to provide a mechanism of review that is fair, just, economical, informal and quick, this seemed a reasonable basis on which to proceed. However, when the hearing commenced on 3 December 2020 it became clear that the applicant’s statement provided a very confused version of the facts which, given evidence from other sources, could not have been correct. This put her representative (the applicant’s son-in-law) in the position that he could recognise that the facts in the statement were not correct and could make educated guesses as to what actually happened but could not be certain. Rather than dismiss the matter the Tribunal decided to adjourn to give the applicant a further opportunity to provide a statement concerning what occurred after the Tribunal’s Tier 1 decision and the submitting of the application for an extension of time.
A further statement was filed on 17 December 2020 and the hearing was completed on 22 December 2020.
At the hearing, the following documents were exhibited:
(a)Application for an extension of time to lodge an application, dated 3 September 2020 labelled as “Exhibit 1”;
(b)Notice of Opposing Application for Extension of Time dated 22 September 2020 labelled as “Exhibit 2”;
(c)Carer Payment Debt Appeal Letter dated 16 October 2020 including 9 figures attached in the appendix labelled as “Exhibit 3”;
(d)Letter from Services Australia signed by Laura Hannigan dated 6 November 2020 which includes Secretary Outline of Submissions and attachments A-F labelled as “Exhibit 4”;
(e)Further submissions in reply by the Applicant dated 17 December 2020 labelled as “Exhibit 5”; and
(f)Respondent’s submissions in reply dated 21 December 2020 labelled as “Exhibit 6”.
FACTUAL BACKGROUND
The decision which the applicant seeks an extension of time to seek review of was made by Member Bygrave on 2 December 2019. The decision was a review of a decision made by an authorised review officer of Centrelink who determined that the applicant had incurred a debt amount of $64,082.53. The debt arose as a consequence of the applicant failing to accurately report her husband’s income with the consequence that she received a larger carer payment than she was entitled to for a period of almost four years.
Member Bygrave was satisfied that the applicant was overpaid a carer payment in the amount of $64,082.53 for the period from 5 November 2015 to 24 May 2019. He determined that this was a debt payable to the Commonwealth. He also determined:
(a)that the circumstances required for the debt to be written off pursuant to section 1236 of the Social Security (Administration) Act1999 (the Act) were not satisfied;
(b)that the circumstances required for waiver pursuant to section 1237A of the Act were not met as the debt was not caused solely by administrative error; and
(c)there were not ‘special circumstances’ so as to allow for discretionary waiver of the debt pursuant to section 1237AAD of the Act.
The applicant has indicated that she accepts that she did not notify Centrelink of her husband’s income (although this was a mistake rather than part of any deliberate strategy on her part to cheat the system) and she accepts that her case is not one which involves solely an error by Centrelink. The indication is that her argument on review will be on the grounds of special circumstances. I will examine this issue further when I consider the applicant’s prospects of successful review if the extension of time were granted.
The applicant was notified of the decision on 6 December 2019. The notification included the following:
You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on 1800 228 333. There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).
The applicant accepts that she understood that she had just 28 days to apply for a second appeal.[1] She contacted Legal Aid for assistance immediately and attended Legal Aid on 17 December 2019. Legal Aid explained to the applicant the reasons why the AAT had reached the conclusion it did on the Tier 1 and suggested that she apply immediately for Disability Support Pension (DSP) and re-pay the debt out of that benefit. The applicant was assured that she qualified for DSP. I am satisfied that in light of this advice the applicant made a conscious choice not to pursue her appeal rights.
[1] Exhibit 5,
She then made arrangements to commence re-paying the debt at the rate of $100 per-fortnight. The first re-payment was made on 27 December 2019.
On 3 March 2020 the applicant received advice through her husband’s financial adviser that there was no way that Centrelink would forgive or reduce the debt. She was advised to keep repaying the debt.
On 5 March 2020 the applicant went to see Disability Advocate Christine Foord who advised her for the first time that because her husband’s income was above the threshold she would not be entitled to the DSP. From this point on the applicant struggled to cope mentally.
Despite the advice she had received, the applicant persisted with the DSP application believing there was a chance she would still qualify. The applicant also agreed to meet with Welfare Rights to discuss her options. This meeting did not take place until 10 June 2020. Welfare Rights recommended that the applicant apply for an extension of time to appeal to the AAT. He confirmed that the DSP was not an option.
On or about 18 June the applicant decided to take the advice offered and seek an extension of time in the AAT.
On 7 July 2020 a copy of what the applicant describes as the ‘Out-of-Time Appeal’ was emailed to the applicant by Christine Foord. The applicant’s son-in-law agreed to act as her representative. It took until 26 August 2020 for the document to be finalised. It was received by the Tribunal on 3 September 2020.
STATUTORY FRAMEWORK
The usual timeframe for making an application to the Administrative Appeals Tribunal (Tribunal) to seek review of such a decision is 28 days from the date the applicant is given the decision. Section 29(7) of the AAT Act authorises an extension of time for the making of an application to the Tribunal in the following terms:
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.
The test of whether it is ‘reasonable in all the circumstances’ to grant an extension of time is a broad one and the range of matters potentially relevant in the application of such a statutory test is large. However, the Tribunal has consistently found that it is useful to examine the question through the framework adopted in Hunter Valley Developments Pty ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 which is a decision of the Federal Court in relation to a similar power in the Administrative Decisions (Judicial Review) Act 1977. That case identified the following matters as potentially relevant: [2]
(a)any reasons for delay in bringing the Application for Review of the Decision;
(b)any prejudice suffered by the Respondent or a third party arising from the delay;
(c)the merits of the applicant’s application for review;
(d)whether the Applicant has ‘rested on its rights’;
(e)the length of the delay; and
(f)any ignorance of the applicant’s appeal rights.
[2] At [18]-[23].
The principles that are applied in considering the merits of the applicant’s application for review are well articulated by SM Britten-Jones in Arbon and Comcare[3] in the following terms:
[3] [2017] AATA 2870.
Generally, to extend time the Tribunal must take into account the explanation for the delay, any prejudice to the respondent and whether the applicant has an arguable case. The principles expounded by Wilcox J in Hunter Valley Developments v Cohen will apply recognising that an explanation for delay is one factor to be considered when exercising the discretion to allow an extension but is not an essential precondition.
The list of matters identified by Wilcox J in the Hunter Valley decision are not exhaustive and were intended to provide only general guidance in the exercise of the relevant discretion.
In terms of an assessment of the merits of the case French J (as His Honour then was) observed in Seiler v Minister for Immigration, Local Government and Ethnic Affairs that:
... To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed....It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it...
As to the required extent of investigation into the merits Katzmann J said in Actew AGL Distribution v Australian Energy Regulator that:
... it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant’s case is a factor for or against the exercise of the discretion. ...
Further, Besanko J said in Hamden v Secretary, Department of Human Services]:
As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.
(citations omitted)
I have applied this framework in determining the applicant’s application for an extension of time. I note that the respondent referred me in submissions to comments by Justice Mortimer in MZABP v Minister for Immigration (2015) 242 FCR 585 at [62] where she states that ‘it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success’. I would note two things about the respondent’s reliance on that passage. First, her Honour was dealing with a statutory discretion framed in significantly different terms to the discretion found in section 29(7). Second, her Honour confirms the important distinction between grounds that are hopeless and destined to fail, and those which are properly described as weak. In the latter case she confirms that ‘it will seldom be appropriate to refuse to extend time’.[4]
[4] At [65]
That is the approach I have adopted in this case.
MATERIAL ON WHICH FINDINGS ARE BASED
In making this decision I have had regard to:
(a)The reviewable decision dated 2 December 2019;
(b)The application for an extension of time to lodge an application, dated 3 September 2020;
(c)Notice of Opposing Application for Extension of Time dated 22 September 2020;
(d)Submissions by the applicant regarding extension of time dated 19 October 2020;
(e)Submissions in reply by the respondent dated 6 November 2020; and
(f)Further evidence and submissions filed by the applicant dated 17 December 2020.
CONSIDERATION
The bulk of my factual findings are set out above based on the written evidence of the applicant which was unchallenged. I have made some further findings where necessary in the consideration of each of the relevant factors for determining whether to grant the extension of time.
Reasons for delay
The applicant’s reasons for delay are explained comprehensively in her statement filed on 17 December 2020.
The applicant understood from the outset that she had review rights and those rights needed to be pursued within 28 days. The reason she did not pursue those rights until long after the review period had expired differed over time. From approximately 17 December 2019 and 5 March 2020 the applicant believed she was entitled to the DSP which would facilitate re-payment of the debt. That belief was based on incorrect legal advice.
From 5 March 2020 to mid- June 2020 the applicant was considering her options and hoping to get further advice on what she should do. She was suffering mentally and uncertain how to proceed.
From mid-June 2020 until the application was received by the Tribunal on 3 September 2020 the applicant was preparing her application and overcoming the problems which flowed from using a relative to assist in an area in which he had no experience.
The delay after 5 March 2020 in my view reflects the difficulties the applicant has as a result of her disabilities and the fact that she depends on others to assist her to progress administrative matters. If those difficulties accounted for the entire period of delay, I would regard her explanation for delay as supportive of the grant of an extension of time.
However, the delay prior to 5 March falls into a different category. It involves a delay of more than 2 months from the expiry of the appeal period. It represents a conscious choice by the applicant (albeit based on a misapprehension of her true financial position) not to proceed to exercise review rights. This provides an explanation for the delay but not a compelling one.
I consider the explanation of delay does not support a favourable exercise of the discretion.
Prejudice to the respondent
The Secretary is not prejudiced by the extension of time application.
However, as a general proposition it is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to review processes and as a starting proposition, if they can be complied with they should be.
The Secretary contends that the public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur.
I cannot accept without evidence that ‘the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty’. I am aware that such a submission has been accepted on other occasions by the Tribunal,[5] but the most recent consideration of the submission by a Deputy-President expressed scepticism about the claim.[6] I am similarly sceptical.
[5] Thompson and Comcare [2019] AATA 714 at [166] and De La Torre-Greene and Comcare [2020] AATA 419 at [91]
[6] Re Flahive and Comcare [2020] AATA 3044 at [78]-[82]
This consideration does not weigh in favour of extending time but nor does it weigh against the granting of an extension.
The merits of the application
On the evidence provided to the Tribunal, the applicant’s case is weak but not hopeless. The focus of any review will be on section 1237AAD. Two questions arise under that provision. First, what was the applicant’s state of mind when she ticked the box ‘no’ in response to the question ‘do you (and/or) your partner CURRENTLY receive any income from work other than self-employment’? Second, are there special circumstances which make it desirable to waive the debt?
In relation to the first question the applicant says that the response was an unintentional mistake. If that is accepted then it would be open to the Tribunal to consider the second question.
The applicant relies upon a number of matters including her own significant health issues, her carer responsibilities and the fact that the debt was the product of inadvertence rather than deliberate dishonesty to establish special circumstances.
The question of special circumstances was considered on the Tier 1 Tribunal review and determined adversely to the applicant. This suggests that her case is weak.
However, the discretion to waive the debt is a broad one and the applicant’s life has many features which may take it outside the ordinary. Accordingly, her case could not be classified as hopeless, merely weak.
In these circumstances this factor does not count against the grant of an extension but does not significantly favour it either.
Has the applicant rested on her rights
The evidence indicates that the applicant has rested on her rights. She had the effect of the Tier 1 decision explained to her by a lawyer within the 28-day time frame but chose to pursue an alternative option – a disability support pension. While she may have received poor advice at the time and her assessment of the impact of the decision on her financial position was revised, it cannot be said that the applicant did not make a choice within the relevant time frame not to pursue her rights. In those circumstances I am satisfied that the applicant rested on her rights.
The length of delay and ignorance of review rights
The length of delay is very significant and weighs heavily against an extension. 249 days is a very significant delay and strongly favours refusal of an extension.
The applicant was not ignorant about her review rights as she saw a lawyer within the 28-day period for seeking review.
DECISION
I am not satisfied that it is reasonable in the applicant’s circumstances to extend the time for making an application. The applicant made a conscious decision not to pursue her rights and instead pursue a different means of ameliorating the impact of the decision. The delay in seeking the extension is considerable and the applicant did rest on her rights. Her case is not strong and so the merits of the matter do not significantly offset these negative factors.
The Tribunal refuses the extension of time for making an application for review of a decision made by the Applicant on 2 December 2019.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.........................................................................
Associate
Dated:
Dates of interlocutory hearing:
3, 22 December 2020 Representative for the Applicant: Dr Lucas Thompson Solicitor for the Respondent: Ms Laura Hannigan, Services Australia
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