Druett and Department of Family and Community Services
[2001] AATA 660
•19 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 660
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/663
GENERAL ADMINISTRATIVE DIVISION )
Re GARRY DRUETT
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Date19 July 2001
PlaceSydney
Decision The Tribunal decides that no extension of time will be granted to Mr Druett to lodge an application for review in relation to a decision of the Social Security Appeals Tribunal made on 12 January 2001.
..............................................
S M Bullock
Senior Member
CATCHWORDS
SOCIAL SECURITY –Extension of time - jurisdiction
Legislation
Social Security Act 1991 – subsections 601(2), 605(3), 607(1)
Administrative Appeals Tribunal Act 1975 – subsection 29(7)
Authorities
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Johnson and Commonwealth (AAT 5619, 5 January 1990)
REASONS FOR DECISION
Ms S M Bullock, Senior Member
Mr Garry Druett has applied to the Administrative Appeals Tribunal ("the Tribunal") for an extension of time to lodge an application for review to the Tribunal concerning a decision made by the Social Security Appeals Tribunal ("SSAT") made on 12 January 2001. The SSAT's decision was in favour of Mr Druett that he should not have been found by a Centrelink Delegate of the Secretary, Department of Family and Community Services (Commonwealth) to have breached an Activity Test on 16 May 2000. The SSAT's decision meant that Mr Druett's appeal to the SSAT was successful. Mr Druett lodged his extension of time application to the Tribunal on 18 May 2001.
A hearing was held in Sydney before the Tribunal on 24 May 2001. Mr Druett was self-represented and provided oral evidence. The Secretary, Department of Family and Community Services was represented by Mr B Slattery, Departmental Advocate. A number of exhibits were submitted by Mr Druett and the Respondent for this matter (N2001/663) and a related matter (N2001/444) which were dealt with at hearing on the same day. The exhibits are as follows:
Exhibit No Description Date
A1 Applicant's letter 4 May 2001
A2 Recommendation by a Child Protection Casework Specialist, Blacktown/Mt Druitt Health Service March 1996
A3 Letter to Mr Druett from the Centrelink Manager, Blacktown Office 22 September 1998
A4 Transcript of the full Industrial Relations Commission of New South Wales hearing concerning Mr Druett's application for leave to appeal 16 June 1999
A5 Claim by Mr Druett for Relief from Alleged Unfair Dismissal Under Section 84, before the Industrial Relations Commission of New South Wales 2 December 1998
A6 Application for Leave to Appeal to the High Court of Australia, Sydney Registry 18 May 2001
A7 Blacktown/Mt Druitt Health Report in relation to a complaint by Mr Druett 7 July 1999
R1 Submission by Respondent 23 May 2001
R2 Computer print-out of payment due to Applicant 23 May 2001
R3 Notice from the New South Wales Department of Family and Community Services in relation to the Legal Rights on removal of a child under the Children (Care and Protection) Act 1987, (sections 59, 60, 62 and 63) 9 January 1998
Issues
Mr Druett wrote on his extension of time application that he sought an extension of time in relation to an application for review for a number of matters. These are:
"1. Issuing section 60 order to Police on 9/1/98;
2. Cancellation Family Payment for Chloe Druett Feb 1998, Greg, Nicole and Bernice Aug 98;
3. Unsuitable for work assessment by Centrelink, middle 98;
4. Transfer of my file for extended period to Mt Druitt in 1999;
5. Breach Action in May 2000 against me by Centrelink."
The decision for which the Application for review was sought containing all of these issues was noted by Mr Druett to be a decision made on 12 January 2001 by the SSAT.
The Tribunal notes that the issue concerning the "Section 60 order to the Police" and the decision of 9 January 1998 refers to the decision and actions of a delegate of the New South Wales Director-General of Family and Community Services, which has been dealt with in matter N2001/444, the subject of a separate Tribunal decision.
By letter lodged with the Tribunal on 4 May 2001, Mr Druett added a further issue of the granting of Family Payment for Gregory and Nicole Druett and the subsequent cancellation in February 2001.
Prior to the hearing, Mr Slattery noted that the SSAT decision of 12 January 2001, had not been implemented by Centrelink due to administrative error and Mr Druett was owed arrears on his Newstart Allowance. The SSAT's decision had been sent to Centrelink's Blacktown Customer Service Centre for implementation, but had not been acted upon. Mr Slattery advised that on 23 May 2001, Mr Druett had been paid the arrears on the Newstart Allowance due to him in accordance with the SSAT's decision. This amounted to $161.60 and had been paid into Mr Druett's bank account to cover the period from 7 May 2000 to 6 July 2000.
LegislationThe substantive issues arising out of the SSAT's decision which decided that Mr Druett had not breached his activity agreement, is dealt with under subsections 601(2), 605(3) and 607(1) of the Social Security Act 1991.
Applications for extensions of time are dealt with under the specific provisions of subsection 29(7) of the Administrative Appeals Tribunal Act 1975 which states:
"(7) 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). …"
Mr Druett's Evidence and Submissions
At hearing, Mr Druett stated that despite having been paid the money owed to him by Centrelink, in accordance with the SSAT's favourable decision on 12 January 2001, he still wished to press his application for an extension of time to lodge an application for review to the Tribunal against the SSAT's decision of 12 January 2001.
Mr Druett stated that he was delayed in lodging his application for review of the SSAT's decision due to his having to deal with the court case which ended in his children being taken away from him by the New South Wales Department of Family and Community Services and the New South Wales Children's Court. Further, in addition to trying to ensure his children remained with himself and his wife, Mr Druett was also fighting to retain the Commonwealth benefit of Family Payment.
Mr Druett was also concerned to have an application for review to the Tribunal concerning other matters such as the transfer of his Centrelink file from Blacktown to the Mt Druitt Centrelink office for several months in 1999. Mr Druett further wanted the Tribunal to deal in his substantive application for review, with the cancellation of Family Payment for two of his children when, in his view, it had initially been granted. In this regard, Mr Druett informed the Tribunal that he had been told by a New South Wales Department of Community Services worker that the children would remain with him and that Family Payment would be granted. Another issue of concern to Mr Druett was the fact that he was assessed as unsuitable for work by Centrelink in the middle of 1998.
As mentioned previously, the issue of the cancellation of Family Payment for Chloe, Gregory, Nicole and Bernice Druett in 1998 is the subject of another application for review to the Tribunal (N2001/676).
Respondent's SubmissionsIn relation to the SSAT's decision of 12 January 2001, Mr Slattery submitted that the implementation of the SSAT's decision had been delayed by administrative error. At Mr Slattery's behest, the matter had been investigated and arrears were paid to Mr Druett prior to the Tribunal's hearing of the extension of time application. Mr Slattery submitted that there was administrative error on the part of Centrelink and this matter could be pursued by Mr Druett, for example, by complaining to the Department or to the Commonwealth Ombudsman. Mr Slattery submitted that there was no merit in an application for review of the SSAT's decision of 12 January 2001 as this decision had been in Mr Druett's favour and he could not, at the Tribunal, receive any greater remedy than had been afforded to him by the SSAT.
In relation to Mr Druett's issue that he was assessed unsuitable for work by Centrelink in the middle of 1998, Mr Slattery submitted that this may well refer to the Department's decision to refer Mr Druett for "Intensive Assistance" to assist him to obtain employment. A letter to Mr Druett of 22 September 1998 (Exhibit A3), noted Centrelink's decision to refer Mr Druett for "Intensive Assistance" and offer him the opportunity to further discuss the decision. Mr Slattery noted that the letter may have been poorly worded in that what it was supposed to convey was that the decision to refer Mr Druett for "Intensive Assistance" could not be appealed. However, if he did not attend the assistance and then was breached for such inaction, then that matter could be appealed in the usual manner.
Mr Slattery noted that there was no record of Mr Druett's seeking a further review of the decision to refer him for "Intensive Assistance" and accordingly, there had been no review by an Authorised Review Officer or by the SSAT. In such circumstances, Mr Slattery noted that the Tribunal does not have any jurisdiction to consider any application in relation to Mr Druett's dissatisfaction with a decision to refer him for "Intensive Assistance".
In relation to the issue of Mr Druett's dissatisfaction with the transfer of his file from the Blacktown office to the Mt Druitt office, Mr Slattery submitted that the Tribunal had no jurisdiction to deal with the actions of the Department in sending files between Centrelink offices. Mr Slattery further submitted that in the Respondent's view, the decision to transfer the file between Centrelink offices was not one which came within the meaning of section 23 of the Social Security Act 1991, which provides that the Tribunal may review decisions as defined in that section. The decision to transfer a file also did not come within the meaning of section 3 of the Administrative Appeals Tribunal Act 1975, Mr Slattery submitted.
As was noted previously, the issue of the cancellation of the Family Payment for the Druett children and Mr Druett's further concern that the payment had been granted and then suspended for Gregory and Nicole, are the subject of a further hearing to be held at a later date.
In conclusion, Mr Slattery submitted that the Application for an extension of time should be dismissed by the Tribunal as the Tribunal had no jurisdiction to consider matters which were the subject of other authorities or were not within the Tribunal's jurisdiction under the Administrative Appeal Tribunal Act 1975. Further, there was no merit in relation to the Tribunal reviewing the decision of the SSAT made on 12 January 2001. Review of this decision by the Tribunal could produce no more favourable a result than that which the SSAT had decided.
FindingsThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law. In reaching a decision in this matter, the Tribunal notes the Federal Court decision in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, in which the court annunciated the general principles to assist in decision-making concerning applications for an extension of time. These principles can be summarised as follows:
i.An applicant for an extension of time has to rebut a prima facie rule that proceedings should not be commenced outside the prescribed time and to do so must offer an "acceptable explanation for delay" and also must indicate that it would be "fair and equitable in the circumstances" to extend the time to apply;
ii.Any action taken by the Applicant, apart from making the application for review, which would permit a decision maker such as the Tribunal to be aware that the decisions previously made are not to be regarded as final;
Any prejudice the Respondent may suffer;
Any unsettling of persons other than the Respondent or of established practices;
v.The merits of the Application itself;
Considerations of fairness between applicants and other persons in similar positions and public interest.
These principles were repeated in Re Johnson and Commonwealth (AAT 5619, 5 January 1990).
The Tribunal considers that the decision of the SSAT of 12 January 2001 has provided Mr Druett with a favourable decision, which could not be improved upon by this Tribunal. While the Tribunal recognises Mr Druett's understandable dissatisfaction with the delay in implementing the SSAT's decision, the arrears in Newstart Allowance have now been paid to Mr Druett. He may have available to him remedies which he may care to pursue in relation to this delay, including those with the Commonwealth Ombudsman or a complaint to the Department itself. The Tribunal finds that there is no merit or utility in granting an extension of time to review a decision of the SSAT, which has produced for Mr Druett the most favourable result. To allow an extension of time would be prejudicial to the Respondent and on all of the evidence of no benefit to anyone.
In relation to matters raised by Mr Druett not strictly arising out of the SSAT's decision, namely the issue of a transfer of file and of Mr Druett's being referred for "Intensive Assistance", the Tribunal finds that it has no jurisdiction in the circumstances of this case, to review a decision of a Centrelink delegate of the Department of Family and Community Services (Commonwealth) to transfer a file from one Centrelink Office to another. In respect of the Department's referral in 1998 of Mr Druett to "Intensive Assistance" for employment, if Mr Druett was aggrieved by this decision or suffered any detrimental consequences as a result of this decision, then there is no record of his seeking an internal departmental review, a review by an Authorised Review Officer or a review by the SSAT. As such, that particular matter cannot be reviewed by the Tribunal.
In all the circumstances and for the reasons expressed above, the Tribunal refuses to grant Mr Druett an extension of time to lodge an application for review to this Tribunal in relation to the SSAT's decision of 12 January 2001 and other matters raised on the Application for an Extension of Time.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S M Bullock
Signed: .....................................................................................
Stella Vaughan, AssociateDate of Hearing 24 May 2001
Date of Decision 19 July 2001
Representative for the Applicant Self-Represented
Representative for the Respondent Mr B Slattery, Departmental Advocate
0