Fletcher and Secretary, Department of Family and Community Services

[2004] AATA 1112

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1112

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/711

GENERAL ADMINISTRATIVE DIVISION		)
Re		TAMMY FLETCHER

Applicant

And  SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date25 October 2004

PlaceBrisbane

Decision The Tribunal extends the time for the applicant to appeal to 10 September 2004.

....................[Sgd]......................

MJ Carstairs
  Member          

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – applicant resides in regional centre – delay in receiving post from Post Office box – applicant without vehicle - application for extension of time opposed on basis that the substantive application has no merit – applicant had received an overpayment of rent assistance as a result of an administrative error by the Department – money received in good faith – only issue in dispute is whether applicant suffering financial hardship – application is not without merit - discretionary power to grant extension of time – relevant considerations taken into account – discretion exercised

Administrative Appeals Tribunal Act 1975 s 29(7)

Hunter River Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42
Re SDSS and Mellidis (1990) 21 ALD 549
Maynard v SDSS [1993] FCA 698

REASONS FOR DECISION

25 October 2004 Ms MJ Carstairs, Member

1.      This is an application by Tammy Fletcher (the applicant) for extension of time in which to apply to the Tribunal for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 27 July 2004.  The applicant lodged her applications with the Tribunal on 10 September 2004.  

2.      At the hearing Ms Fletcher represented herself. The respondent was represented by its advocate, Mr M Hutcheson.

3.      The Tribunal had before a copy of the SSAT decision showing that the decision was signed on 30 July 2004, a Friday.  No documents were lodged by the respondent. 

BACKGROUND

4.      The applicant receives family tax benefit and has incurred a debt in regard to that benefit, totalling $2,053.86.  From the SSAT decision it appears this has arisen in regard to a component of rent assistance. The applicant lives at Coringa and has a post office box for service of mail at Biggenden. 

5.      It is not disputed, and was found by the SSAT, that the applicant had gone to Centrelink in May 2003 and told them that her rent was $160 per fortnight.  Centrelink incorrectly coded the rent as $160 per week. The SSAT found that the error was entirely that of Centrelink and that the applicant had received the payments in good faith.

6.      The SSAT referred to the provisions of the A New Tax System (Family Assistance)(Administration) Act 1999 which provides as follows:

97(2)  The Secretary must waive the administrative error proportion of a debt if:

(a)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

(b)       the person would suffer severe financial hardship if it were not waived.

7.      The SSAT found that error was entirely that of Centrelink and that the applicant had received the payments in good faith.  However as the applicant had told the SSAT that she was managing the repayment on the basis of $20 per week being withheld from her ongoing payments, the SSAT found as a fact that she is not experiencing severe financial hardship.

8.      The Administrative Appeals Tribunal Act 1975 (the Act) makes provision for time limits and for extending time in s29 of the Act:

(2)       Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

(a)if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant;

…

(7)       The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).

9.      The applicant said that she lives about twenty minutes away from Childers and as their car had broken down she was unable to do anything about her appeal.  She said that she did not know when she received the decision, which was sent to her post office box in Biggenden.  She said that someone collected the mail from the post office box for her because they were without a vehicle.  She said that she had phoned the Tribunal about three days before she sent the application form in to the Tribunal and was told that she would probably need to apply for an extension of time.  The Tribunal registry then forwarded the paperwork to her.  The applicant said that she has two children, one age four and one aged two and they reside with her and her partner.  Her partner had four children, who do not live with them.

CONSIDERATION OF THE ISSUES

10.     The relevant principles to be applied in an application to extend time have been considered in a number of Federal Court decisions and decisions of this Tribunal.  The respondent submitted, and the Tribunal agrees, that the principles are set out in Hunter River Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. The principles to be taken into account include the following:

(a) an applicant for an EOT has to rebut the prima facie rule that proceedings should not be commenced outside the prescribed time and should give an acceptable explanation of delay;

(b)any action taken by an applicant which permits a decision maker to be aware that the decision is not to be regarded as final;

(c)any prejudice the respondent may suffer;

(d)any unsettling of persons other than the respondent or of established practices;

(e) the merits of the application itself; and

(f)considerations of fairness between applicant and other persons in similar positions and public interest.  He question is: is it fair and equitable in the circumstances to extend time.

11.     It has been reiterated on many occasions by the Courts that limitation periods must be regarded as the general rule and any extension of time is to be regarded as the exception. 

12.     The Tribunal took into account that the date that the applicant was furnished with the decision was Monday, 9 August and that she then had 28 days to lodge with the Tribunal by 7 September 2004 (Re SDSS and Mellidis (1990) 21 ALD 549). The discretion under s29(7) is unfettered Maynard v SDSS [1993] FCA 698.Nevertheless the principles in Hunter Valley provide guidance.

13.     Looking at these in turn, the Tribunal notes that it is recognised that while an explanation of delay should be given, it is not a precondition for the success of an application for an extension of time. The Tribunal was satisfied that the applicant has provided a reasonable explanation for her delay. She is an unrepresented person, living in a country area and she found herself in more difficult circumstances without her vehicle. She has had the benefit of legal assistance which might have made clearer to her the importance of the time limits. 

14.     In regard to whether the respondent will be unduly prejudiced if the extension of time is granted, the Tribunal took into account that the respondent does not make this claim. 

15.     The Tribunal took into account that the SSAT decision would not have been forwarded to the applicant until Monday, 2 August 2004.  It is not unreasonable given her rural location to allow a week for the documents to be furnished to her in the ordinary course of the mail.  Allowing this, the date the SSAT decision was furnished to the applicant was 10 August 2004. Her application to the Tribunal was on 10 September 2004, some three days outside the 28 days allowed under the Act.

16.     The Tribunal notes the respondent opposes the extension of time primarily on the issue of the merits of the application.  The question of the merits of a matter need not be looked at in a substantive way for purposes of an extension of time application.  It is a difficult argument to sustain that the application has no merits, given that the applicant seeks a ground of waiver where she has already satisfied two elements for the exercise of the waiver and where Mr Hutcheson said that there appeared to be no material on the file that set out what the applicant’s financial circumstances are.  It is a well recognised principle of administrative review that the process of review is a continuum and a person succeed in having a decision changed by the production of better evidence. On the face of the SSAT decision, little is known about the applicant’s financial circumstances, other than her remark that she was managing to pay the debt off at $20 per fortnight and it was better than when Centrelink was withholding $50 per fortnight from her payments.  Nevertheless an amount in excess of $2000 is a substantial debt for a person in her circumstances with young children. In the context of the legislation, the meaning of severe financial hardship is not a black and white issue.

17.     The Tribunal was satisfied that the explanation for the delay is adequate.  The applicant has not rested on her rights. There is an arguable case and the balance of interests, and matters of fairness support the applicant being allowed the opportunity of putting her case. 

18.     For these reasons, the Tribunal extends the time for filing an application for review to the applicant to the date on which she lodged her application with the Tribunal, that is, 10 September 2004.

DECISION

19.     The Tribunal extends the time for the applicant to appeal to 10 September 2004.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  25 October 2004
Date of Decision  25 October 2004

The Applicant appeared in person   
For the Respondent                  Mr M Hutcheson, Departmental Advocate