Elson and Secretary, Department of Family and Community Services

[2004] AATA 837

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 837

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/678

GENERAL ADMINISTRATIVE DIVISION		)
Re		Chris Elson

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date27 July 2004

PlaceSydney

Order For the reasons given orally the Tribunal does not grant an extension of time to the applicant to appeal against the decision of the Social Security Appeals Tribunal. 

[SGD] Robin Hunt
  Senior Member

catchworids

SOCIAL SECURITY – carer allowance – overpayment – debt to Commonwealth – application for extension of time to appeal

Social Security Act 1991 sections 1223, 1237AAD
Administrative Appeals Tribunal Act 1975 Section 29
Lucic v Nolan (1982) 45 ALR 411
Hunter Valley Developments Pty Ltd v Minister for Home Affairs andEnvironment (1984) 58 ALR 305
Re Stevenson and Commonwealth of Australia (1987) 13 ALD 524;
Re Sawley and Secretary, Department of Housing and Construction (1987) 14 ALD 479
Zizza v FCT (1999) ALD 451
Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

reasons for decision

Summary

1.Mr Elson received an overpayment of $1,816.27 from the Department of Family and Community Services (the Department) between 6 May 2003 and 1 July 2003 after he ceased to be entitled to a carer allowance.  On 1 December 2003 the Social Security Appeals Tribunal (SSAT) made a decision that Mr Elson was not entitled to retain the overpayment.  On 6 July 2004, almost seven months after SSAT made its decision, Mr Elson has applied to the Administrative Appeals Tribunal (the Tribunal) for an extension of time in which to make an application to the Tribunal for the review of the decision of the SSAT.  For the reasons set out below, the Tribunal has refused to grant Mr Elson an extension of time to review the decision.

2.The Tribunal held a hearing on 27 July 2004 at which Mr Elson presented arguments and gave oral evidence.  The Tribunal noted that Mr Elson did not make any arguments about the amount of the overpayment.  He admitted that he was working and earning income when the overpayments were made.  However, he contends that it was not his fault that he was overpaid and therefore he had no obligation to return the overpaid amount. 

3.It is for this reason that Mr Elson sought an extension of time to lodge an application for review of the SSAT decision.  Counsel for the Respondent also appeared and opposed Mr Elson’s application.  Prior to the hearing, the Respondent provided written submissions to the Tribunal and to Mr Elson, setting out arguments why the extension should not be granted.  The Respondent referred to previous cases about when an extension of time might be appropriate.  The Tribunal found the Respondent’s case persuasive.

4.There is no dispute that Mr Elson received the carer payments between 6 May 2003 and 1 July 2003 while he was working. This is supported by the data provided by the Australian Taxation Office and the employment records provided by Mr Elson’s employer. The Respondent also provided evidence that Mr Elson did not advise them of his earnings and therefore he received the carer payment without his income being taken into account. Mr Elson argued that he in fact advised the Department about his job. The Tribunal suggested to Mr Elson during the hearing that this was not the same as informing the Department of his actual earnings. The Respondent further pointed out that section 1223(1) of the Social Security Act 1991 (the Act) provided that a carer overpayment is a debt to the Commonwealth. 

5.The Tribunal noted that while Mr Elson admitted the debt, he contended that he was misled by the Department as to his entitlement and therefore it is not by his fault.  The Respondent accepted the argument that the debt may be waived if it was caused solely by the Department’s error.  However, the Respondent does not agree with Mr Elson that the overpayment occurred solely through the Department’s error.  The Tribunal also considered the effects of section 1237AAD of the Act, which provides that the debt may be waived if exceptional circumstances exist.  The Respondent argued that there are no special circumstances to support Mr Elson’s situation. 

Was it the Department’s Fault?

6.Mr Elson contended that the overpayment was in fact the Department’s fault.  He argued that he should not be required to repay the amount he had received wrongly but in good faith.  He gave evidence that an officer of the Department told him that he would continue to receive the carer allowance for the next 63 days.  Mr Elson argued that he was entitled to rely on this advice.  Mr Elson also produced a copy of a letter as confirmation that he had attended the office where his carer allowance had originated.  This letter was signed by one of the officers to whom he had spoken on the day he attended to advise the Department that he was departing and taking up paid employment.  The officer also stated in writing before the Tribunal that he recollected seeing Mr Elson.  However, Mr Elson failed to produce any direct evidence in relation to his claim that an officer of the Department informed him that he would continue to receive the carer allowance for the next 63 days.  Mr Elson was unable to produce any letter to that effect from the officer.  In these circumstances the Department did not agree with Mr Elson that the overpayment occurred solely through its error. 

The Discretion to extend time for review of a decision

7.Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the Tribunal may, upon an application in writing, extend the time for the making of an application for review of a decision. As indicated in the Federal Court cases of Lucic v Nolan (1982) 45 ALR 411 at 416 and Hunter Valley Developments Pty Ltd v Minister for Home Affairs andEnvironment (1984) 58 ALR 305 at 310 (Hunter Valley), limitation periods are not to be ignored, and proceedings commenced outside the period generally are not entertained.  The Tribunal must balance fairness on both sides and be satisfied that there is good reason to extend time (Re Stevenson and Commonwealth of Australia (1987) 13 ALD 524; Re Sawley and Secretary, Department of Housing and Construction (1987) 14 ALD 479). The Respondent also drew attention to the case of Zizza v FCT (1999) ALD 451, where the Tribunal weighed all the factors and attached importance to the merits of the case, the significance of the issue, the length of the delay, the awareness of rights and whether there was an acceptable reason for the delay.

8.In deciding whether to exercise the discretion to extend the time in which an Applicant may lodge an application with this Tribunal, I have borne the above cases in mind and particularly the decision of Justice Wilcox in Hunter Valley .  In that case his Honour set out principles that ought to be taken into account while exercising the above discretion.   The principles were summarised and applied in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301 to 302. These principles suggest that the Applicant for an extension must show "an acceptable explanation of the delay" and that it is fair and equitable in the circumstances to extend time. Prejudice to the Respondent is a material militating factor but the mere absence of prejudice is not enough to justify the grant of an extension. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

9.It is also relevant to consider the issue of fairness to other Applicants in similar situations who have not submitted late applications.  I should also consider any disadvantage to the Respondent in allowing this application as it would be extremely inconvenient for them to have to deal with large numbers of such late applications.  It could set an unwelcome example if I were to accept the Applicant’s argument.

10.Not all of the factors alluded to by Justice Wilcox in Hunter Valley are present in this case.  At the hearing, Mr Elson submitted to the Tribunal that he did not dispute the debt but was aggrieved because he had been overpaid through no fault of his own.  He gave evidence that he had advised the Department  that he was leaving his former place of residence to take up a new job.

11.I questioned Mr Elson about the reasons for his delay in lodging an application for review of the SSAT decision.  Mr Elson explained that once he received the SSAT decision and the notification, which mentioned that he must apply for a review within 28 days if he wishes to do so, he had visited a Department office and spoken to an officer about obtaining his file from the office where he had dealings before he moved to Sydney.  Mr Elson had expected the officer to contact him within the 28 days stipulated for making an application for review to the Tribunal.  Mr Elson states that after some time he in fact attempted to make further enquiries and learned that the officer to whom he had spoken had been absent for several weeks.  Mr Elson then decided to make a late application for review of the decision.

12.Mr Elson further told the Tribunal that he wanted an investigation made as to why he was given the wrong information about the continuation of the carer allowance for 63 days.  He felt that the situation could have been resolved by one phone call to the officer in question.  He also complained that the Department had treated him badly when he sought more information about how to seek review by this Tribunal.  Counsel for the Respondent undertook to pursue the matters of which Mr Elson complained. 

13.As I discussed above, Mr Elson disputed the suggestion that he did not inform Department of his earnings.  He agreed that he had received an overpayment and that he received carer payments while he was working from 6 May 2003 to 1 July 2003.  He told the Tribunal that he did advise the Department of his earnings by informing an officer that he was going to commence work on 6 May 2003.

14.I have carefully considered Mr Elson’s request and his grievance, taking into account the inconvenience and confusion caused by the overpayment.  On the other hand, Mr Elson took seven months to lodge an application for the review by the Tribunal.  Seven months is a considerable time lag.  Moreover, I have considered the arrangements already put in place by the Department to deduct the amount overpaid at the rate of $10 per fortnight.  These arrangements are designed to minimise the adverse impact on Mr Elson. 

15.While Mr Elson did attend at the Department on the day he has claimed, to report that he was starting work, this is not the proof that he was given incorrect advice.  I have also considered whether the overpayment and the delay in lodging this application was entirely the Department’s fault, as alleged by Mr Elson.  It is my conclusion that while Mr Elson had sufficient evidence to prove that he in fact attended at the Department on the day he has claimed, to report that he was starting work, this does not establish that he was given incorrect advice.  In addition although I have accepted as true the fact that Mr Elson informed an officer of his changed situation, Mr Elson has not persuaded me that the error in making the overpayment was entirely the fault of the Department.  There is a possibility that Mr Elson may have misunderstood the advice he was given, or not explained, or that he failed to explain himself fully to the officer involved.  Also, informing an officer that he was going to commence work on 6 May 2003 is not the same as informing the Department of his actual earnings nor of informing them as to when and how much he was being paid by his employer. 

16.Further, I find that Mr Elson’s delay in making application to this Tribunal is not the Department’s fault.  Mr Elson admits that he received the SSAT decision and notification that he must lodge any application for review within 28 days.  Nevertheless, he let the matter pending when he did not hear from the officer who he saw after receiving the decision.  In my view, there was initially sufficient time for Mr Elson to make the application within the time provided.  As the Federal Court has suggested in Hunter Valley, the 28 day time limit is not to be ignored.  Mr Elson has furnished an explanation but it is not sufficiently acceptable to excuse a delay of so many months.  It is also not fair and equitable to the Respondent to excuse such a delay and to extend the time to such a long period without any reasonable excuse.

17.In addition, Justice Von Doussa of the Federal Court pointed out in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, that in deciding whether an extension of time is fair, it is important to look at the merits of the appeal and the prospects of success. Mr Elson concedes that he has received money to which he was not entitled. Further he has not convinced me that he is likely to succeed in his substantive claim should he be permitted to appear to argue his substantive claim before the Tribunal. He has not asserted that he is suffering unusual hardship by being asked to repay the money and the Department have already given him time to repay the debt. Therefore, I do not find that his claim has much prospect of success. It would be unjust to the Respondent to subject it to the costs of defending a pointless appeal.

18.Section 1237AAD of the Act provides that the debt may be waived if there are special circumstances that take Mr Elson’s case out of the ordinary.  The Department does not accept that there are special circumstances.  I do not find that any special circumstances exist which are sufficient to justify an application for an extension of time to apply to the Tribunal.  Fairness to the Respondent dictates that the application be taken no further by the Tribunal as the time for the application passed several months ago.  Taking these and the factors described above into account, I have decided that an extension of time is not warranted in this case.

19.The Tribunal has decided to refuse the application for an extension of time in which to lodge an application for review.  The decision of the SSAT is affirmed.

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

Signed:         .....................................................................................
  Associate

Date of Hearing:   27 July 2004
Date of Decision:   27 July 2004     
Representative for the Applicant: Self-Represented                  
Solicitor for the Respondent:     Andrew Zhang