Evans and Secretary, Department of Social Services (Social services second review)
[2021] AATA 4477
•1 December 2021
Evans and Secretary, Department of Social Services (Social services second review) [2021] AATA 4477 (1 December 2021)
Division:GENERAL DIVISION
File Number: 2021/6701
Re:Kim Evans
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal: Emeritus Professor P A Fairall, Senior Member
Date:1 December 2021
Place:Sydney
The application for an extension of time under subsection 29(7) of the AAT Act is refused.
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Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
EXTENSION OF TIME APPLICATION – application for review eight years out of time – claim for refusal of Centrelink crisis payment – decision affirmed by Social Security Appeals Tribunal - no satisfactory explanation for failure to comply with the 28 day requirement - extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Fissal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 927
Kuljic and Secretary, Department of Social Security (1994) FCA 886
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
1 December 2021
INTRODUCTION
The Administrative Appeals Tribunal (the Tribunal) is empowered by its enabling act to review specified decisions made in the exercise of powers conferred by an enactment.[1] An application for review must be made within the prescribed time.
[1] Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
For relevant purposes, the prescribed time is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after the day on which a document setting out the terms of the decision is given to the applicant: subsection 29(2)(a) of the AAT Act.
Under subsection 29(7), the Tribunal has discretion to grant an extension of time to make an application for review. I have decided not to grant the application for an extension for the review application on the ground that the application lacks merit.
THE DISCRETION TO GRANT AN EXTENSION OF TIME
The Tribunal cannot lawfully be satisfied that it is reasonable to grant an extension of time unless positively satisfied that it is proper to do so. The essential question is whether it is reasonable in all the circumstances to grant the application, and whether the interests of justice will be served by doing so.
The main three considerations are:
(a)whether the applicant has an arguable case;
(b)any prejudice to the respondent; and
(c)the explanation of the delay.[2]
[2] See Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] Middleton J.
In Kuljic and Secretary, Department of Social Security (1994) FCA 886, the Federal Court stated at [6]:
‘One of the principal 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 costs of defending a pointless appeal...’
As noted by the Tribunal in Fissal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 927 at [18] – [20]:
‘It is not in the interests of justice to grant an extension when the case has little or no prospect of success, or where the party opposing the extension will suffer serious hardship as a result, including the inconvenience and cost of ongoing disputation. A party should be able to order their affairs, especially in relation to monetary claims, on the basis that claims will not resurface after the deadline for settling them has passed. The timely settlement of claims is an important consideration.
…
In practical terms, it is useful to consider the prospects of success first, for there is no justice and indeed a great injustice in drawing out proceedings that have no prospect of success. This exercise falls well short of a hearing on the merits but cannot be regarded as superficial. Its purpose is to determine whether there are obvious flaws in the application. Where the application is not doomed to fail, the Tribunal must be satisfied that the interests of justice require the grant of an extension, despite the applicant’s non-compliance with the statutory time limit. It is incumbent on a person seeking an extension of time to provide a reasonable explanation for the delay, addressing the length of delay. Prospects of success and reasons for delay are the essential elements of an application for an extension of time.’
CHRONOLOGY
The original decision in the present case is a decision by an Authorised Review Officer (ARO) of Centrelink made on 12 May 2007, to reject the applicant’s claim made on 5 July 2006 for a crisis payment, a one-off payment paid at the basic rate of the primary Centrelink payment to which a claimant is entitled. Her claim was refused because she did not make a claim within seven days of the extreme circumstance occurring.[3] The incident occurred in July 2004.
[3] Social Security Act 1991 (Cth), section 1061JH.
On 22 October 2013 the Social Security Appeals Tribunal (SSAT (now AAT1)) affirmed the original decision. The SSAT found that the applicant made an on-line application for a crisis payment on 5 July 2006.[4] This finding was made primarily by reference to Centrelink notes.
[4] Evans and Secretary, 2013/S061504, 22 October 2013, para [10].
On 15 September 2021, the applicant lodged her Extension of Time (EOT) application with the AAT. On 18 October 2021, the Secretary notified the AAT that she would be opposing the EOT application.
The application was heard on 29 October 2021.
In her application for an extension of time dated 21 August 2021, the applicant stated that ‘Centrelink rejected crisis payment claim when I was evicted from Department of Housing 15/7/2007. The Supreme Court were advised that Department of Housing relet the premises at …in 2004’.
The applicant gave evidence and was examined by the solicitor for the respondent, Mr Lozynsky.
LEGISLATION
In 2006, the Social Security Act 1991 (Cth) provided:
1061JH Qualification—extreme circumstances forcing departure from home
(1) A person is qualified for a crisis payment if, after the commencement of this section:
(a)the person has left, or cannot return to, his or her home because of an extreme circumstance; and
(b)the extreme circumstance makes it unreasonable to expect the person to remain in, or return to, the home; and
(c)the person has established, or intends to establish, a new home; and
(d)at the time the extreme circumstance occurred, the person was in Australia; and
(e)the person makes a claim for a crisis payment within 7 days after the extreme circumstance occurred; and
(f)on the day on which the claim is made:
(i) the person is in severe financial hardship (see section 19D); and
(ii) the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and
(g)during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been payable to the person.
Note: Examples of extreme circumstances that would qualify a person for crisis payment are the person’s house being burnt down, or the person being subjected to domestic or family violence.
(2) A person is not qualified for a crisis payment in respect of an extreme circumstance if the Secretary is satisfied that the extreme circumstance is brought about with a view to obtaining a crisis payment.
THE HEARING
What was the crisis?
Although the historical timeline is by no means clear on the material before the Tribunal, it appears that in 2002 the applicant was paying government rent for accommodation at a property in Rydalmere. She was then transferred to public housing in Merrylands. She moved her personal effects across but claimed that the new property was uninhabitable due to a gas problem. She therefore moved in with her family. In 2002 she took action against the Department of Housing in the Consumer, Trader and Tenancy Tribunal, and later in the Supreme Court of NSW.
In 2004 her belongings were moved into storage by the Department of Housing, and she became liable to pay for storage until 2009 when she was able to remove them from storage.
The SSAT decision records that at [7]:
‘She states she told Centrelink about her housing problems in 2002, but did not lodge a claim for crisis payment as she was waiting documentation from the Supreme Court. She told Centrelink she could not provide the necessary documents until the matter was finalised.’
It is not clear to the Tribunal whether it was the uninhabitable nature of the house assigned to her in 2002, or the removal by the Department of her belongings into storage in 2004 that constituted the ‘extreme circumstance’ that supported the crisis payment. Regardless, a claim not made until 2006 is clearly out of time, in terms of the seven day rule.
Did the applicant attempt to comply with the seven day deadline?
The original claim was for a one-off crisis payment. Subsection 1061JH(1)(e) of the Act requires that a claim for crisis payment be made ‘within 7 days after the extreme circumstance occurred’. The applicant said that she had been unable to comply with a seven day deadline because she had to get documents that had been filed in relation to the Supreme Court proceedings she was pursuing. She said:
‘..I never ran out of time. If they would have processed the form, I said, “Can't I have the money and then provide you the documentation when the court finalises?” But, the court went on till 2007. So, I couldn't provide them that.’ [5]
[5] Transcript dated 29 October 2021, p, 23.
The applicant said that she attempted to make an application but Centrelink would not accept it without the documents. I find that this is unlikely. Documents would not be required to make a claim that the house was uninhabitable due to a gas leak. To the extent that the relevant incident relates to the removal of her property into storage in 2004, it is hard to see any reason why an application would not have been accepted had it been made contemporaneously. The likelihood is that the application was not made until 5 July 2006, as found by the SSAT.
Other hurdles
The respondent also relies on section 147 of the Social Security (Administration) Act 1999 (Cth). The applicant did not apply to review the 2007 ARO decision until 2013. By reason of section 147, a favourable determination can only take effect from the date the applicant applied to the SSAT. Accordingly, arrears would not be paid to the applicant even if she were successful in the substantive application.
CONCLUSION
This is a paradigm case where prejudice to the respondent arises by reason of the late prosecution of the applicant’s claim. The circumstances giving rise to this application occurred almost twenty years ago.
During the hearing the applicant referred to the loss of her long term memory. She had brought this matter on because her memory had been jogged over a separate crisis claim matter. This has triggered her memory. She said that she was ‘…blaming Centrelink because had Centrelink gave me the crisis payment (in 2004), I would have found myself alternative accommodation and I wouldn't be in the position, I possibly might not be in a wheelchair.’[6]
[6] Transcript dated 29 October 2021, p, 13.
The applicant said she could not give a reason why her application was late ‘other than my lapse of memory… If you want medical evidence, I'm not the one to provide it to you because I still don't know why something happened to me to begin with, if that makes sense’.[7]
[7] Transcript dated 29 October 2021, p, 13.
The application for review is eight years out of time. The applicant’s motivation in bringing on this application is not a satisfactory explanation for the failure to comply with the 28 day requirement in respect of her application to review the decision of the SSAT in 2013.
The SSAT made a finding that the on-line application was made on 5 July 2006. This finding was based on a scrutiny of Centrelink records. I accept that finding. There is no evidence that the relevant extreme circumstance occurred in the seven days before 5 July 2006. There is no discretion under the relevant provision to extend the seven day period relating to crisis payment claims. The claim for crisis payment was therefore out of time.
I am satisfied that there is no prospect of success in substantive proceedings relating to the applicant’s claim to receive a crisis payment in 2002 or 2004. There is no merit in the substantial application which seeks to challenge the 2013 decision by the SSAT not to set aside the 2007 decision by the ARO.
The circumstances of this case highlight the importance of timely applications and compliance with deadlines in administrative review proceedings.
DECISION
The application for an extension of time under subsection 29(7) of the AAT Act is refused.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member.
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Associate
Dated: 1 December 2021
Date of hearing: 29 October 2021 Applicant: Ms K Evans Solicitors for the Respondent: Mr G Lozynsky, Services Australia
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