Farah and Secretary, Department of Social Services (Social services second review)

[2017] AATA 2097

Farah and Secretary, Department of Social Services (Social services second review) [2017] AATA 2097 (1 November 2017)

Division:GENERAL DIVISION

File Number:          2017/4896

Re:Liban Farah

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President S Boyle

Date:1 November 2017

Place:Perth

The applicant’s application for an extension of time is dismissed

....(sgd).....................................................

Deputy President S Boyle

CATCHWORDS

Disability support pension – extension of time application – factors that are relevant when considering an application for extension of time – little chance of success – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 – ss 29(2), 29(7)

Social Security Act 1991

Social Security (Administration) Act 1999- s 196

Social Security (International Agreements) Act 1999 – Art. 1(1)(m)

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 45 FCR 441

Dix v Client Compensation Tribunal [1993] 1 VR 297

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377

Doyle v Chief of Staff (1982) 42 ALR 283

Farah and Secretary, Department of Social Services (Social Services Second Review) [2016] AATA 496

Federal Commissioner of Taxationv Brown [1999] FCA 1198

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Kulijic v Secretary, Department of Social Security (1994) 33 ALD 121

Lucic v Nolan (1982) 45 ALR 411

Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470

Tamua and Secretary, Department of Social Services [2016] AATA 757

Wedesweiller v Cole (1983) 47 ALR 528

Zizza v Federal Commissioner of Taxation [1999] FCA 848

SECONDARY MATERIALS

Department of Social Services, Guide to Social Security Law - Ch 1.1.S.110

REASONS FOR DECISION

Deputy President S Boyle

1 November 2017

The Application

1. This is an application for an extension of time to make an application for a review of a decision of the Tribunal’s Social Services and Child Support Division dated 5 June 2017 (the Decision).

   Material before the Tribunal

2. The following material was before the Tribunal:

   (a)application for review of decision dated 17 August 2017 which included the application for an extension of time;

   (b)respondent’s outline of submissions in opposition to extension of time dated 15 September 2017;

   (c)applicant’s email of 15 September 2017;

   (d)applicant’s email of 16 September 2017 attaching:

   (i)undated medical report from Dr Roche Helberg referring to examination performed on 28 June 2012;

   (ii)undated extract from medical record headed “JSKID -820204909, Submit date” (largely unreadable); and

   (iii)report from Dr. Raad Hassan of Gosnells Medical Clinic dated 8 July 2012; and,

   (e)applicant’s email of 21 September 2017.

3. The application for the extension of time was heard on 11 October 2017. The applicant (by telephone) represented himself and the respondent was represented (by telephone) by Ms Carole Wang, Graduate Lawyer from the Department of Human Services.

4. Oral submissions were made by both parties. The applicant was asked whether there was any further material or information that he wished to put before the Tribunal in relation to his application for an extension of time. The applicant said that there was no further material or information that he wished to place before the Tribunal.

   Background

5. The Decision was a first review of a decision made by the Department of Human Services, Centrelink (the Department) denying the applicant’s entitlement to a disability support pension (DSP). The application for which an extension of time is sought is for the second review by the Tribunal.

6. On 14 October 2016 the applicant lodged the claim for the DSP with the Department.

7. On 25 November 2016, an officer of the Department rejected the claim on the basis that the applicant’s impairment did not attract a minimum of 20 points under the impairment tables required for qualification.

8. At the applicant’s request that decision was reviewed by an Authorised Review Officer who, on 14 February 2017, affirmed the Department’s original decision.

9. The applicant lodged an application for the review of the decision with the Tribunal on 14 February 2017 (first review).

10. The first review was heard on 31 May 2017. The applicant gave evidence on affirmation by telephone. The Department provided the Tribunal and the applicant with a bundle of documents from the applicant’s file with the Department. In all there were 196 pages provided by the Department. The matter was deferred to allow the applicant time to consider the papers provided and to submit further evidence. No further evidence was provided.

11. The Tribunal on the first review affirmed the decision under review and issued its reasons for decision on 5 June 2017.

12. The Tribunal’s reasons for decision identified the issue for determination as follows:

    8.Mr Farah’s eligibility for disability support pension was previously considered by the Administrative Appeals tribunal, General Division (the AAT second review). The AAT second review determined that;

    ·Mr Farah does not meet the residence qualifications and therefore does not qualify for disability support pension under the Social Security Act 1991 (the Act);

    ·Mr Farah does have an aggregate of 10 years continuous residence in Australia and New Zealand and is therefore entitled to claim support pension under provisions set out in the Social Security (International Agreements) Act 1999 (the Agreement Act);

    ·Mr Farah does not satisfy the requirements set out in Schedule 3, Article 1 of the Agreement Act of being “severely disabled” and is therefore not qualified for disability support pension.

    9.The AAT second review found that whilst Mr Farah had a physical impairment he did not satisfy the requirement in the Agreement Act that he was totally unable to work.

    10.Mr Farah’s residence status remains unchanged. The issue for the tribunal is whether, in respect of the disability support pension claim made on 14 October 2016, Mr Farah is totally unable to work.

13. The Decision set out in detail the provisions of the Social Security (International Agreements) Act 1999 (the Agreement Act) and what is required under the Agreement Act to establish an entitlement to a support pension, in particular the need for the person claiming the pension to establish that he or she is “severely disabled”. The Decision spells out that severely disabled for the purposes of the Agreement Act means that the person:

    (i)has a physical impairment, a psychiatric impairment, an intellectual impairment, tow or all of such impairments, which makes the person, without taking into account any other factor, totally unable;

    (aa)     to work at least for the next 2 years; and

    (bb)unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program; or

    (ii)       is permanently blind.

14. The evidence considered by the member on the first review, evident from the reasons for decision, included:

    (a)the applicant’s own evidence;

    (b)the report of Dr Lauren Host, Rheumatology Registrar, Royal Perth Hospital dated 19 January 2017;

    (c)job capacity assessment report dated 23 November 2016 which indicated that the applicant had a baseline working capacity then of 8 to 14 hours a week. That assessment report also stated that with intervention from Disability Employment Services within the next two years the applicant would be able to sustain between 15 to 22 hours of light, semi-skilled work a week; and

15. The member also noted that the AAT second review found in the previous application by the applicant that, while the applicant may be restricted in the types of jobs he could do, he may be able to use his tertiary studies and experience in information technology. The applicant has two tertiary qualifications.

16. The member analysed the evidence of the applicant’s medical condition against the criteria of “severely disabled” as that term is defined in the Agreement Act. The term is also given some further explanation by the Guide to Social Security Law produced by the Department of Social Services at chapter 1.1.S.110. The member found that while the applicant suffers from ankylosing spondylitis with bilateral hip arthritis, the applicant did not satisfy the member that he was severely disabled for the purposes of the Agreement Act.

17. She found that the evidence was that the applicant could work for at least 8 hours per week and further that his work capacity will be improved within the next two years via participation in a program of assistance or a rehabilitation program.

18. Having so found the member determined that the applicant did not qualify for DSP under the Agreement Act or the Social Security Act 1991 (the Act) and, accordingly, affirmed the decision under review.

    The law relating to extension of time for making an application

19. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) of the AAT Act permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

20. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context. See also: Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown).

21. In Hunter Valley, Wilcox J pointed out that 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...”. In Brown, Hill J stated, at [59], that in the taxation context, the Tribunal should be “guided by what the justice of the case requires”. In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848 (per Katz J).

22. There is a thorough and helpful review of the authorities by Deputy President Forgie in DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 (DHLD) at paragraphs [11] and [37] to [49].

23. The authorities dictate that a range of considerations must be taken into account when exercising the discretion to extend time for an application to be made. No one consideration has precedence or is in itself determinative. The factors include:

    (a)It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416) (Lucic).

    (b)It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] 1 VR 297 at 302).

    (c)Action taken by the applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)(Doyle).

    (d)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. (See Doyle at 287).

    (e)The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at 416).

    (f)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at 417).

    (g)Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).

24. Deputy President Forgie sets out in paragraphs [40] to [44] of the decision in DHLD a more detailed review of the cases dealing with the relevance of the apparent strength of the substantive claim. The Deputy President cites the comment made by the Full Court in Federal Commissioner of Taxationv Brown [1999] FCA 1198 at [28] that:

    We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an  extension of time  should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration.

    The facts of the present case

25. The Tribunal sent the Decision of 5 June 2017 to the applicant under cover of an email on 14 June 2017. The email had two attachments, one a covering letter advising of the Decision and the right of further review and the other being the reasons for decision.

26. The applicant lodged the application for review of the Decision with the Tribunal on 17 August 2017.

27. The time for making the application is 28 days from “the day on which a document setting out the terms of the decision is given to the applicant”: s 29(2)(a) AAT Act.

28. As the reasons for decision were sent to the applicant by email on 14 June 2017, the application was made 36 days outside the time prescribed by the AAT Act.

    Explanation for delay in making application

29. The application completed by the applicant itself identifies the date of receipt of the Decision as 14 June 2017.

30. The application form contains the following directive under the heading “Extension of time”:

    Outline the reasons for applying for an extension of time, including why you did not apply within the time limit

31. The applicant responded as follows:

    I did not apply on time, because I was not aware of the time restrictions given.

32. At the hearing, the applicant asserted a further reason for his failure to make the application within the prescribed time was that he had not been able open the attachments to the email. As noted above, it is the covering letter that advised that the applicant had 28 days from the date of receipt of the decision to apply for the second review.

33. In relation to the applicant’s claim that he could not open the attachment, the Tribunal notes that

    (a)this was not mentioned in the application as being a reason why the application was made out of time;

    (b)the applicant himself identified that he had received the decision on 14 June 2017;

    (c)the applicant has IT qualifications and his last known work was as an IT adviser with Chandler Macleod;

    (d)the applicant made no effort to contact the Tribunal when he received the email asking for the attachments to be sent in an alternative format;

    (e)that letter attached to the email of 14 June 2017 contained the following paragraphs:

    You may apply to the AAT for a second review of the decision. Information about how to apply is available as ww.aat.gov.au or by calling in 1800 228 333.

    There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision)

    [Emphasis added]

    (f)the email, which the applicant concedes he received on14 June 2017 was clearly from the Tribunal; and

    (g)the applicant was unable to say when he actually opened the attachments.

34. On the evidence before it, the Tribunal is not satisfied that any inability to open the attachments to the email of 14 June 2017 caused the applicant not to lodge the application within the prescribed time.

35. Further, given the applicant’s previous experience with the procedures of the Tribunal, including a second review of a previous decision involving the same respondent and given the unequivocal advice of the time limit in the covering letter sent to the applicant on 14 June 2017, the Tribunal does not accept that the applicant was not aware of the requirement for the application for a second review to be made within 28 days of receipt of the Decision.

36. The Tribunal finds that the applicant has not provided an adequate explanation for not making the application within the time required.

    Prospects of success

37. As noted above, the prospects of success of the substantive application are relevant in exercising the discretion to allow an extension of time (see paragraphs 21-23 above). In support of that approach the respondent referred the Tribunal to the comments of Von Doussa J in Kulijic v Secretary, Department of Social Security (1994) 33 ALD 121 at 122.

38. The respondent submitted that

    28.      It is not in dispute that:

    a)the Applicant’s residence status has not changed since the previous AAT2 decision dated 15 July 2016 and accordingly does not satisfy the residency requirements in paragraph 94(1 )(e) to qualify for DSP under the Act;

    b)the Applicant remains eligible to apply for DSP under the Agreement; and

    c)the Applicant has a physical impairment and therefore satisfies the requirement in Article 1(1)(m)(i) of the Agreement.

    29.The issue in the substantive application is whether the Applicant was qualified for DSP under the Agreement at the time his claim was lodged on 14 October 2016, or within the 13 weeks thereafter.

    30.      Article 2(2) of the Agreement provides:

    For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid's benefit shall be limited to cases where:

    (a)the person is severely disabled;

    (b)the person was a resident of one of the Parties at the date of severe disablement; and

    (c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.

    31.Article 1(1)(m) of the Agreement provides relevantly that “severely disabled” means a person who:

    (i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable;

    (ii)to work for at least the next 2 years; and

    (iii)unable to benefit within the next 2 years from participation in a program of assistance rehabilitation program; or...

    32.Regarding the relationship between the Act and the Agreement, section 6 of the Social Security (International Agreements) Act 1999 provides that the provisions of a scheduled international social security agreement have effect despite anything in the social security law, only insofar as the provision is in force and affects the operation of the social security law.

39. The Administrative Appeals Tribunal (AAT) has previously interpreted the requirement of "totally unable to work” within the definition of “severely disabled" under Article 1(1)(m) of the Agreement Act to mean no ability to work at all (i.e. zero hours) in Tamua and Secretary, Department of Social Services [2016] AATA 757 and Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470.

40. The evidence submitted by the applicant to the AAT at first review fell well short of establishing that the applicant was “severely disabled” for the purposes of the Agreement Act. The respondent referred to the following facts and reports in that regard:

    a)a Centrelink Employment Separation Certificate dated 24 July 2017 (Attachment C) records the Applicant as having worked at Chandler Macleod Group Pty Ltd from 17 May 2016 to 29 July 2016. The employer also stated “Not separated. Liban is currently employed on a casual basis, however his most recent assignment concluded". A previous Employment Separation Certificate dated 28 October 2015 (Attachment D) records the Applicant as having worked at Platinum WFM Solutions Pty Ltd from 9 October 2014 to 19 December 2014.

    b)the Job Capacity Assessment dated 23 November 2016 (Attachment E) which assessed the Applicant to have a baseline work capacity of 8-14 hours per week, and a work capacity of 15-22 hours per week within 2 years with intervention in light, semi-skilled employment.

    c)The Applicant’s advice during the above Job Capacity Assessment that he last worked on 9 May 2014 as a service desk technician for 3 months for 25 hours per week, that he worked at Work Focus and Atwork for 7 months in the same role for 16 hours per week in 2012-13 and at IT Kinetic for 3 months. The Employment Separation Certificates referred to above demonstrate contrary to the Applicant’s however that the Applicant had worked, albeit intermittently, in the few months prior to lodging his DSP claim and in the 2 year period after the date on which the Applicant claimed to have last worked.

    d)the previous Job Capacity Assessment dated 14 May 2015 (Attachment F) which assessed the Applicant to have a work capacity of 15-22 hours per week within 2 years with intervention in light skilled work such as service desk technician;

    e)Dr Omar Saleh (General Practitioner) opined in two medical reports dated 30 November 2016 and 27 January 2017 (Attachment G) that the Applicant would not be fit to work 8 hours a week.

    f)The Applicant has a Diploma in Information Technology, a bachelor degree in Information Systems and a postgraduate degree in Computer Information Systems, as well has Certificates I and II in CCNA- networking and troubleshooting system. The AAT2 had noted at [42] in [2016] AATA 496 in relation to the 2015 DSP claim that although the Applicant may be restricted in the types of jobs he could do, he may be able to utilise his tertiary studies and experience in Information Technology.

1. In the applicant’s previous application to the AAT, see Farah and Secretary, Department of Social Services (Social Services Second Review) [2016] AATA 496 at [47], the applicant did not satisfy the requirement of being “totally unable to work” because “the evidence from the [Job Capacity Assessment] is that he has worked for more than 8 hours a week in the recent past”. Since the date of that decision by the AAT (15 July 2016), there has been no new medical evidence showing a deterioration of the applicant’s condition that would justify a different finding from that made by the AAT in relation to the applicant’s 2015 DSP claim.

2. The Job Capacity Assessment (JCA) in this matter assessed the applicant’s impairments as rating a total of 15 points under the Impairment Tables, as did the JCA in relation to the applicant’s 2015 DSP claim. Further, the Tribunal at first review in this matter considered a report from Dr Lauren Host (Rheumatologist) dated 19 January 2017 which stated that the applicant’s symptoms would likely improve from adequate therapy including an exercise program and biologic therapy. The applicant told the Tribunal on the first review (at [17]) that it was decided that an exercise program was of no benefit to his condition and that there was no further biologic therapy available to him, but provided no further evidence to support these claims. The Tribunal on the first review asked the applicant to provide a report from Dr Host verifying these claims. To date the applicant has not provided the requested information.

3. Further, the Centrelink Employment Separation Certificate dated 24 July 2017 reveals that the applicant had been working for Chandler Macleod in the 3 months prior to lodging his current DSP claim. Chandler Macleod has provided the Department pursuant to section 196 of the Social Security (Administration) Act 1999 with a payroll summary and report showing the number of hours for which the applicant was paid in the period from 14 May 2016 to 13 July 2016 (Attachments H and I to the respondent’s Outline of Submissions dated 15 September 2017). The payroll summary records that the applicant was paid for a total of 830 hours from 14 May 2016 to 13 July 2016. This points to a conclusion that the applicant had and exercised the ability to work relatively consistently over a period of 2 months, which occurred only 3 months prior to lodging his current DSP claim. Even if a portion of those hours could be attributed to sick leave or personal leave, this evidence points to the fact that the applicant was not “totally unable to work" at the time of claim.

4. In light of the above evidence and observations, it is difficult to accept that the applicant, being a 30 year old tertiary educated man who had been participating in the workforce shortly prior to his DSP claim, has no capacity to work.

5. The applicant has put on no new evidence in the course of this application which would change the above conclusion. The sum total of additional “evidence” provided by the applicant is set out in paragraph 2 above. In summary that “evidence” consisted of two reports dating back to 2012 which did not establish anything near approaching a total inability to work and three emails from the applicant in which he asserts that he is suffering from a severe disability. That may well be the case, but it does not meet the threshold of a total inability to work under the Agreement Act. Without meeting that threshold the application cannot succeed.

6. Accordingly, the Tribunal is satisfied that the substantive application has little prospects of success.

7. Taking into account:

   (a)the lack of any adequate explanation for the delay in making the application;

   (b)the length of the delay (36 days late in the context of a 28 day prescribed period);

   (c)the weakness of the applicant’s substantive application;

   (d)the need for efficient management of the Tribunal’s time and resources bearing in mind the comments in Hunter Valley of Wilcox J that 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...”; and

   (e)the fact that should his circumstances change or his condition deteriorate, the applicant is not precluded from making a further application to the respondent for disability support pension under the Act or the Agreement Act.

   the Tribunal is not satisfied that it should exercise its discretion to allow the application to be made out of time.

   DECISION

8. The applicant’s application for an extension of time within which to lodge the application for a second review is therefore dismissed.

I certify that the preceding 48 (forty–eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

....(sgd).............................................

Administrative Assistant - Legal

Dated: 1 November 2017

Date of hearing:	11 October
Applicant:	In person
Representative for the Respondent:	Ms C Wang