DOWNS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 626

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 626

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2860

GENERAL ADMINISTRATIVE DIVISION		)
Re		KENNETH DOWNS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date20 August 2010

PlaceMelbourne

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

…....(sgd G L McDonald)........

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - Extension of time to lodge application for review -Reviewable decision not to grant disability support pension - Public policy considerations - Applicant failed to explain 12 year delay in pursuing legal remedies.

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 58 ALR 305

REASONS FOR DECISION

20 August 2010 Mr G L McDonald, Deputy President

1.      The applicant is applying for an extension of time for the review of a decision refusing him a Disability Support Pension (DSP).  At the hearing, the applicant represented himself with the assistance of his wife, and Mr de Uray, departmental advocate represented the respondent.

2.      On 24 November 1997 the applicant lodged an application to be paid the DSP, which was rejected.  Even after the applicant provided further material in support of his claim, on 3 April 1998 the disability officer affirmed the original decision.  On 20 April 1998 that decision was affirmed after review by an authorised review officer.  The Social Security Appeals Tribunal (SSAT) affirmed the decision under review on 4 August 1998.  Its decision was conveyed to the applicant in a letter dated 14 August 1998.  The applicant accepts that he received the letter and the decision and accompanying reasons of the SSAT.  The letter informed the applicant that he had a further right of appeal to the Administrative Appeals Tribunal (AAT) and referred him to an enclosed information sheet for details.  The Tribunal accepts the information sheet would have been in the usual form and sent out relevant contact details of the AAT.

3.      The applicant's circumstances are unfortunate.  He is a qualified fitter, and he served in the RAAF for six years where he gained aircraft maintenance and engineering skills.  The applicant acquired a private pilot's licence.  After leaving the RAAF, he retrained as a high school teacher and commenced a university course.  The applicant lived with his wife and young family in a rural setting near Launceston where he has activity engaged in small scale farming activity. 

4.      His life was badly disrupted when the applicant was badly injured in a motor vehicle accident occurring in about mid-1995.  In addition to a severely injured right knee, which has required ongoing operations, he was unfortunate to incur an infection in the course of receiving treatment to his knee while in hospital.  That infection led to the applicant acquiring an on-going brain injury.

5.      As the result of his injuries and the effect of the subsequent infection, the applicant's ability to function to his full mental and physical capacity was diminished.  While he was able to complete his university degree, with additional support, he told the Tribunal that he has lost some of his memory function, his ability to recall facts in a timely manner, to spell accurately and to undertake mathematical calculations.  The applicant has tried, but he has been unable to undertake school teaching, because of the stated limitations along with an inability to physically sustain such work, including knee pain from standing, for a full day.

6.      The decision of the SSAT in 1998 noted the applicant as making the application for the DSP, because he was both unable to find suitable work or support to assist him with undertaking retraining programs.  There is every reason to conclude, and the Tribunal does conclude, that the applicant was hard working, physically active, intelligent, capable and ambitious.  He genuinely tried to overcome the physical and mental problems, which beset him following the 1995 motor vehicle accident, but those problems were permanent and too extensive for him to successfully achieve being able to return to full time work.

7.      The SSAT considered a number of medical reports, including from Dr Sale, a doctor whose status is unclear, Dr Gaggin, the applicant's treating doctor, Dr Maclaine-Cross, a consultant physician, and Dr Balestrieri, a Centrelink medical officer.  Additionally there was the report of a discussion which a Centrelink officer had with Mr Marriott, the applicant's then treating clinical psychologist. 

8.      Dr Sale reported in February 1997 that there was a strong possibility that the applicant had “incurred organic impairment, some cerebral insult, the nature of which may well remain speculative”.  The doctor did not comment on how, if at all, the applicant's ability to work may be affected by the incurred injuries. [1]

[1] Decision of the SSAT 4 August 1998, para 44.

9.      Dr Gaggin opined that the applicant would never be able to work in his usual occupation.  The applicant could work part-time immediately, but he could not work in a job requiring him to walk and he could work at tasks for 20 to 90 minutes at a time.  The SSAT understood Dr Gaggin to imply that the applicant “could immediately work full time at a job that was not heavy/manual work”.  The basis of that conclusion is not stated[2].

[2] Ibid, para 47.

10.     Dr Maclaine-Cross opined that the applicant has “difficulty in memory, concentration and judgement and difficulty in conceptualization.  He can usually only cope with one activity at a time”[3].  Dr Maclaine-Cross is noted as concluding that the applicant's cognitive malfunction was likely to continue and that it would “severely limit his capacity to ... regain and maintain employment”[4].  The SSAT concluded that Dr Maclaine-Cross did not rule out the applicant being able to undertake all forms of full time work.  This Tribunal is unsure as to whether the latter conclusion was based on something that the doctor reported or whether it was a conclusion reached by the SSAT in the absence of a comment from the doctor.

[3] Ibid, para 50.

[4] Ibid, para 51

11.     The SSAT was dismissive of Dr Balestrieri's opinion that the applicant could undertake full time work in any of the nominated categories of a “first aid instructor, driving instructor, caretaker, parking officer, process worker etc” on the basis that the applicant's physical and cognitive dysfunction would preclude such work[5].

[5] Ibid, para 52.

12.     The SSAT adjourned the hearing to allow a further report from Mr Marriott to be filed.  On advice from the applicant's lawyer, who was advising the applicant about a claim for damages arising from the motor vehicle accident, the applicant declined the invitation.  The SSAT then proceeded to a finding on the information before it which included the oral evidence of the applicant.  The SSAT determined that there was no evidence of a total inability to work and that, therefore, he did not qualify to receive the DSP.  The applicant told this Tribunal that he was advised by Centrelink staff that while he could appeal (to the AAT), such an appeal would be unlikely to succeed.  On the basis of that advice, the applicant said he decided not to seek a further review of the decision.

13.     The applicant told this Tribunal that he reapplied for the DSP in 1990 at which time he was still living in Launceston.  He and his family moved to Ballarat before his application was decided.  He claimed that the application was transferred to Ballarat for finalisation, but that it became lost in the Centrelink office and so no decision was ever reached.  The applicant did not take the fact of the missing application any further, for example by seeking review by the Commonwealth Ombudsman or reapplying for the payment of the benefit.  The applicant told this Tribunal that while he had attempted to agitate his case for the payment of the DSP from time to time over the years, he was discouraged by the attitude adopted by Centrelink staff.

14.     In 2009 the applicant lodged a fresh application with Centrelink for the payment of the DSP.  He was not successful, even after an internal review.  However, a further appeal to the SSAT was successful, and on 5 November 2009 he was awarded the pension.  As part of the consideration of his 2009 application, Centrelink arranged for the applicant to be examined by psychologist, who was also a neuropsychologist, Ms Boin.  The SSAT, which considered the second appeal, stated that Ms Boin's report was “…highly comprehensive and detailed … both in regards to be [sic] complexity associated with the clinical diagnosis of Mr Downs’ conditions, and the objective functional limitations observed in psychometric testing”[6].

[6] Decision of the SSAT, 17 November 2009, para 12.

15.     This Tribunal heard from the applicant that the longest period he had remained in full time work since his injury had been for nine months when he worked as a truck driver delivering fuel.  Other work periods had been for shorter periods of time, but in the main the applicant had been unemployed.  The Tribunal accepts, as was accepted by the recent SSAT panel, that the applicant while genuinely trying has been unsuccessful in maintaining either regular full or part-time employment as the result of the injuries he incurred, including the subsequent cognitive malfunction prior to 1998.  This Tribunal accepts, for the purposes of determining the application for the extension of time that the applicant's cognitive and physical impairment conditions have remained constant from at least 1998.

16.     The applicant told this Tribunal that he and his family have suffered considerable stress, including financial stress, in the period between 1998 and the granting of the DSP in 2009.  While the applicant's wife has worked over the past five years, in the time prior to that and in respect of medical expenses throughout the whole period, he and his family have been disadvantaged by an inability to access the DSP.  It is fair to conclude, and the Tribunal concludes, that a number of factors inhibited the applicant from appealing the 1998 SSAT decision within the 28 day time limit.  Among these were the discouraging advice that an appeal would be unlikely to succeed (accepting that this advice was given); the effect of his cognitive impairment; the number of periods of hospitalisation for operations to treat his right leg; a lack of appreciation as to the permanence and seriousness of his conditions by the doctors who examined him in the period leading up to his first SSAT appeal; and the need for him, and no doubt his family, to learn to cope with his impairments and the change of lifestyle which inevitably followed.  There was an additional factor, namely a claim for damages arising out of the motor vehicle accident.  The applicant told this Tribunal that damages were awarded and that that would have resulted in the imposition of a three year preclusion period from the date of payment in which he could not be paid the benefit.  This factor can be accorded no weight as it deals with the time after a claim has been accepted and has nothing to do with the timing of the lodging of a claim.

17.     Anyone learning of the dramatically changed circumstances faced by the applicant following the motor vehicle accident, complicated by the subsequent hospital incurred infection, must feel a great deal of sympathy for the applicant.  He is a man who had a bright future, who has lost those opportunities.  The applicant is aware of both his physical and cognitive impairments, but he has been unable to overcome them through no fault of his own.  However, this does not explain and no satisfactory explanation is provided by the applicant for the 12 year delay.  The applicant himself must be taken to appreciate this, otherwise he would not have made a further attempt in 1990 to secure payment of the benefit.  It is unfortunate that this attempt was abandoned as the result of what appears to have been an administrative error within a Centrelink office.  In the ordinary course of events, it could be expected that a person, in the applicant's position, would have followed up with a letter querying what had happened to his application rather than let the matter rest.

18. Legislatively imposed time limits, while necessarily arbitrary in nature, are designed to support finality in decision making. There are many hundreds, if not thousands, of decisions reached in respect of claims for the payment of social security benefits on a daily basis throughout Australia. Parliament has determined as part of that system that there be a comprehensive review mechanism and that reviews should be conducted in relatively short time frames. This Tribunal, in s 29(7) of the Administrative Appeals Tribunal Act 1975, has power to extend times in which reviews can be permitted to be made to it from decisions, including those dealing with eligibility to receive social security benefits.  The exercise of the discretion to extend times is not to be made as a matter of course.  The principles which govern considerations relating to the exercise of the discretion were comprehensively stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment[7] as follows,

The “prescribed period” of 28 days is not to be ignored…  Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained…   It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.[8]

[7] (1984) 58 ALR 305.

[8] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 58 ALR 305 at 310-311.

19.     Sympathy for the plight that an individual finds him or herself in is not by itself a sufficient justification for the exercise of the favourable exercise of the discretion.  There are, as Mr de Uray on behalf of the respondent submitted, public policy considerations which must be born in mind.  Here, 12 years is not just a long time for the grant of an extension, but an exceptionally long time.  The longer the time, the more compelling must be the reasons for granting an extension.  From the public policy point of view, to grant an extension for such a lengthy period would present almost insurmountable difficulties for compiling a response, including the tracing and availability of primary source materials (such as reports by the medical practitioners who examined the applicant and whether they could recall the events surrounding their examination of the applicant).  Further difficulties would be experienced in ascertaining the applicant's secondary qualifications to receive the benefit, for example, his financial status on a fortnightly basis throughout the period so that an assessment could be made as to whether he ought be paid the full amount or a proportion depending on other family income.  The time and effort required to ascertain this type of detail and make the calculations given changes, which occur from time to time in the rate at which the DSP is payable, would, in the Tribunal's opinion, cast an undue burden on the public purse and is a factor to be taken into account in the overall assessment of whether to extend time.

20.     There is a further issue for which no explanation was offered by the applicant.  The 2009 decision of the SSAT was dispatched to him on 17 November of that year.  There is nothing to suggest other than he received it shortly thereafter. However, his application for the review of the 1998 SSAT decision was not lodged with the Tribunal until 21 July 2010 - a further delay of eight months.  While in the context of what preceded this may seem relatively insignificant, it provides support for the proposition that the applicant has not perused his review rights in as expeditious a manner as may be expected.

21.     For these reasons the Tribunal declines to grant the extension of time.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         .......(D De Andrade).....................
  D De Andrade, Personal Assistant

Date of Extension of Time Hearing       12 August 2010
Date of Decision  20 August 2010
Solicitor for the Applicant  self represented
Solicitor for the Respondent                   Mr T de Uray, departmental advocate