Fatwidah Arifin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 85

[2013] AATA  85

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5690
Re	Fatwidah Arifin
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	25 January 2013
Date of written reasons	20 February 2013
Place	Sydney

The application for an extension of time to lodge an application for review of the decision of the Social Security Appeals Tribunal dated 27 June 2012, is refused.

...................[SGD].....................................................

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEEDURE — Extension of time application — merits of substantive application — explanation of delay — application refused

SOCIAL SECURITY — Disability support pension — Debt — Sole cause administrative error

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

CASES

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

REASONS FOR DECISION

Senior Member A K Britton

20 February 2013

EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. Mrs Arifin seeks review of the decision made by the Social Security Appeals Tribunal (SSAT) in June 2011. By the operation of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) she was required to lodge an application for review by 7 August 2012. The application was not lodged until 13 December 2012 and therefore, unless the power to extend the time for the making of an application conferred by s 29(7) of the AAT Act is exercised, the Tribunal cannot proceed to determine Mrs Arifin's application.

2. To exercise that power I must be satisfied that it is reasonable, in all the circumstances, to do so. There are no factors set out in the Act which must be taken into account when making that decision. In deciding whether to exercise the power to extend the time for the making of an application the Tribunal usually looks to the factors listed in Hunter Valley Developments Pty Ltd v The Minister for Home Affairs and Environment (1984) 3 FCR 344. Those of particular relevance in this case are whether an adequate explanation has been given for the delay, and the merits of the substantive application.

3. There is no suggestion that Mrs Arifin, in the relevant period, was not aware of her rights of appeal; indeed, when the SSAT made its decision, Mrs Arifin had commenced proceedings in another matter in this Tribunal.

   Merits of the substantive application

4. If I could deal first with the merits of the decision that Mrs Arifin seeks to challenge. That decision is in two parts: the first concerns the correct rate of Disability Support Pension (DSP) payable to Mrs Arifin throughout the period, 27 September 2010 to 12 May 2011. The Authorised Review Officer decided that throughout this period Mrs Arifin had received an overpayment of $882; the SSAT agreed with that finding.

5. The second part was the decision not to recover the debt created by that overpayment on the grounds that it had been caused solely by Centrelink error.

6. Mrs Arifin's — as I understand it from what she said today — main reason for seeking review is that she does not understand the basis upon which her rate of DSP for the period September 2010 to May 2011 was calculated. I understand her misgivings, given that in the first place the debt arose on account of an error made by Centrelink, and second that the calculation of the rate of a person's Disability Support Pension is complex, and is determined by a number of variables including, in this case, the income of the person’s spouse.

7. Attached to the respondent's submissions is a document explaining the basis of the calculation of Mrs Arifin's rate of DSP, throughout the period under review. Having reviewed that information, and the decision of the SSAT, I can find no error in that calculation and am satisfied that the calculation used for the debt period is correct. In my opinion, in these circumstances, there would be no practical benefit to Mrs Arifin in proceeding to review this issue.  

   Explanation of the delay

8. Mrs Arifin has also outlined to the Tribunal her various health problems which she believes contributed to her failure to make the application within time. While there is no argument that Mrs Arifin has suffered from a range of health problems, and clearly was very distressed with her involuntary admission to Concord Hospital in May of last year, the evidence of her treating doctors is that as of October 2012 she was fit, mentally and psychologically. Her health might have explained her failure to make an application before October 2012, but does not appear to explain her failure to make an application after that time.

9. But in any event, even if Mrs Arifin's ill health was the cause of the delay, given my finding that there would be no useful purpose in reviewing the calculation of the rate of DSP for the period under review and the second part of the decision was favourable Mrs Arifin, I am not satisfied that it would be reasonable, in the circumstances, to extend the time for making an application.

10. Therefore, Mrs Arifin, I have decided to refuse your application.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

.....................[SGD]...................................................

Associate to Senior Member A K Britton

Dated 20 February 2013

Date(s) of hearing	25 January 2013
Applicant	In person
Solicitors for the Respondent	Program Litigation and Review Branch, Department of Human Services