Estate of the late Vincent Godfrey and Secretary, Department of Social Services
[2014] AATA 107
[2014] AATA 107
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0029
Re
Estate of the late Vincent Godfrey
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 28 February 2014 Place Sydney The Tribunal refuses the Applicant’s application for an extension of time to lodge an application for review.
.......................[SGD].................................................
Ms N Isenberg, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time to lodge application for review – factors relevant to an extension of time – explanation of delay – prejudice to the respondent - prospects of success – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975; s 29(2)
Social Security (Administration) Act 1999; ss 21- 25
Social Security Act 1991; s 92Q
CASES
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Zizza and Commissioner of Taxation [1999] FCA 37
Kuljic and Secretary, Department of Social Security (1994) 33 ALD 121Re Jennings [2008] AATA 329
SECONDARY MATERIALS
The Social Security (Pension Bonus Scheme - Non-accruing Members) Declaration 2007
REASONS FOR DECISION
Ms N Isenberg, Senior Member
This application concerns a decision by the Department of Human Services not to pay Pension Bonus Scheme (‘PBS’) to the Applicant, the late Mr Vincent Godfrey. That decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT) on 21 November 2013. The SSAT decision was despatched on 2 December 2013.
The Applicant’s wife, Mrs Rosemary Godfrey, now presses the claim for PBS on behalf of the Applicant’s estate. She has applied to this Tribunal for an extension of time until 17 February 2014 to lodge her application for review.
The issue to be decided in this interlocutory proceeding is whether it is reasonable in all the circumstances to grant this extension.
FACTS
On 14 January 2006 Mr Vincent Godfrey became of Age Pension age and was a registered member of PBS from this date. In December 2010 he ceased full time work and on 29 January 2013 Mr Godfrey was granted Age Pension.
On 15 April 2013 Mr Godfrey's application for PBS was rejected on the basis that the claim had not been lodged within the 13 weeks after ceasing work and paid leave, and that he was not eligible for an extension of time for this application.
On 11 August 2013 Mr Godfrey passed away and his entitlement to PBS was pressed by Mrs Godfrey on behalf of his estate.
On 27 August 2013 the Authorised Review Officer (ARO) affirmed the decision under review and on 21 November 2013 the SSAT affirmed the decision to not pay PBS to the Applicant. The SSAT sent its decision to the Applicant on 2 December 2013 and Mrs Godfrey has stated she received the decision on 4 December 2013.
On 1 January 2014 the prescribed 28 day time limit for the Applicant to lodge an application for review with this Tribunal concluded.
On 29 December 2013 the Applicant lodged an Application for Extension of Time for Lodging Application for Review of Decision (Form 2) with the Tribunal. The Applicant stated in her Form 2 application that she received the SSAT decision on 4 December 2013. The Applicant requested an extension be made until 17 February 2014.
CONSIDERATION
Factors relevant to an extension of time
Generally an application for review of a decision by this Tribunal must be made within 28 days after the day on which the person is given the reviewable decision: s 29(2) of the Administrative Appeals Tribunal Act 1975.
This prescribed period cannot be ignored unless there is very good reason to do so. In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 18, Wilcox J stated:
... The 'prescribed period' of 28 days is not to be ignored...Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...It is a precondition to the exercise of the discretion in his favour that the application of an extension of time show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time.
The Federal Court continued to outline the factors relevant to determining an application for an extensions of time, which can be summarised as follows:
(a)prima facie, proceedings commenced outside the prescribed period will not be entertained; however it is not a precondition for success in an application for an extension of time that an acceptable explanation for the delay must be given. However, any explanation given will be a relevant consideration;
(b)any action the applicant has taken, apart from applying for the extension of time, is relevant in considering whether there is an acceptable explanation for the delay;
(c)any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. However the mere absence of prejudice is not enough to justify the grant of an extension. Considerations of fairness as between the applicant and other persons in a like position are relevant to the manner of exercise of the court's discretion; and
(d)the merits of the substantive application are properly taken into account.
In Zizza and Commissioner of Taxation [1999] FCA 37 it was noted that all factors relevant to the particular case need to be weighed together in reaching a decision.
Explanation of the delay
Mrs Godfrey outlined her reasons for delay in lodging an application for review with the Tribunal as follows: "Illness - Nov and Dec, 2013, Commenced Nov 5,13, Salmonella Bacteria Infection, Respiratory Infections, Whooping Cough, NB Please see Dr's certificates attached". There are two medical certificates from Dr Ken Low and one from Dr Harvey Wai Shing which in total cover the period from 27 November 2013 to 12 January 2014. The medical certificates state "In my opinion, he/she will be unfit for his/her normal work".
The Respondent contended, and I accept, that Mrs Godfrey's explanation for her delay in lodging an application for review is not an acceptable explanation. Completing Form 1 (Application for Review of Decision) requires the same amount of consideration as completing Form 2 (Application for Extension of Time for Lodging Application for Review of Decision). If Mrs Godfrey was able to complete Form 2 on 29 December 2013, then the argument that she was unable to complete a Form 1 by this date is not persuasive. In other words, she could just have easily lodged a very basic application for review but did not do so. I accept though that in lodging an application for an extension of time she had taken some steps towards actioning her application for review and had not ignored the SSAT decision and its implications. However, Mrs Godfrey's request to extend her application until 17 February 2014 goes 35 days beyond the date of her last medical certificate.
The Respondent further submitted that Mrs Godfrey's request for an extension of time to lodge her application for review to 17 February 2014 means that, once received by this Tribunal, the application will be some 48 days outside of the 28 day time limit which is generally allowed.
Even if I were to accept that Mrs Godfrey's delay in lodging an application for review is acceptable, this is outweighed by the substantive application having no prospects of success (discussed below at [20]).
Prejudice to the Respondent
Because of the relatively short period of delay in lodging the application for review I do not consider there to have been any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay. However the mere absence of prejudice is not enough to justify the grant of an extension. Considerations of fairness as between the Applicant and other persons in a like position are relevant to the manner of exercise of the discretion.
Merits of the Applicant's case
In Kuljic and Secretary, Department of Social Security (1994) 33 ALD 121 the Federal Court stated in part as follows:
One of the principle considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If consideration of the merits indicate that there is no question to be agitated on appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the cost of defending a pointless appeal.
The relevant law in relation to this application is found in ss 21 to 25 of the Social Security (Administration) Act 1999 (the Administration Act). Relevantly, a claim for Pension Bonus must be made within 13 weeks of ending work or within 13 weeks of the person's leave payments ending: s 25(b).
Section 92Q of the Social Security Act 1991 (the Act) provides the legislative basis for declaring a member of the PBS to be a non-accruing member. One criterion, set out in The Social Security (Pension Bonus Scheme - Non-accruing Members) Declaration 2007 at s 5(e), provides that a member who is on paid or unpaid leave (of any kind) from gainful work is taken as a non-accruing member of the PBS. Mr Godfrey ceased full time work on 14 December 2010, and was then in receipt of long service leave payments until 17 May 2011. He was therefore a non-accruing member of the PBS until that time. As such, Mr Godfrey had up until 16 August 2011 (the end of the 13 week period) to lodge his claim for Pension Bonus. He did not lodge his claim until 29 January 2013.
Subsection 21(2) of the Administration Act makes provision for special circumstances for delay in claiming Pension Bonus in very limited situations. However, in the present matter, the special circumstances discretion in this provision is not available.. Mr Godfrey's last bonus period was non-accruing, due to his receipt of long service leave payments. As such, s 23(1)(d) applies, which means the special circumstances provision in s 21(2) does not apply. Mr Godfrey's time limit for lodgment is fixed to 13 weeks as set out in s 25. This is not a matter about which I have any discretion. The applicant’s circumstances in the present matter, like those of the applicant in Re Jennings [2008] AATA 329 are ‘most unfortunate’.
Therefore I find there to be no prospects for success of the application for review. In these circumstances, I agree with the Respondent that proceeding with the application for review would be an unnecessary burden on the public resources of the Commonwealth, including the Tribunal.
DECISION
For the reasons set out above, the Applicant's application for an extension of time for lodging an application for review is refused.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member .......................[SGD].................................................
Associate
Dated 28 February 2014
Date of hearing 19 February 2014 Advocate for the Applicant Mrs Godfrey Solicitors for the Respondent Department of Human Services
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