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

[2016] AATA 74

Foley and Secretary, Department of Social Services (Social services second review) [2016] AATA 74 (1 February 2016)

Division

GENERAL DIVISION

File Numbers

2015/6431

2015/6432

2015/6455

Re

Gordon Foley

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	1 February 2016
Date of written reasons	16 February 2016
Place	Sydney

The applications made by Mr Foley for an order in accordance with section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) extending the time for the lodgement of applications for review of the decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 4 September 2015, are refused.

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J W Constance
Deputy President

CATCHWORDS

SOCIAL SECURITY - disability support pension - mobility allowance - extension of time application - whether Applicant should be granted an extension of time for a second review - whether Applicant has reasonable prospects of success - application refused

LEGISLATION

Social Security Act 1991 (Cth) s 1035

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

WRITTEN REASONS FOR DECISION GIVEN ORALLY ON 1 FEBRUARY 2016

Deputy President J W Constance

INTRODUCTION

1. At all times relevant to these applications Mr Foley was in receipt of a disability support pension.

2. Between 15 September 2014 and 6 November 2014 Mr Foley's wife was overseas.  During this time he was paid the pension at the single rate. On 31 December 2015 Centrelink reduced the rate of pension payable to that of the partnered rate, taking into account Mr Foley's wife’s return to Australia. The reduction was effective from 30 December 2014.

3. On 16 February 2015 the Secretary raised a debt of $796.13 against Mr Foley in respect of the overpayment between 6 November 2014 and 30 December 2014.

4. Prior to 24 January 2015 Mr Foley was also in receipt of a mobility allowance payable under the Social Security Act 1991 (Cth). On that day Centrelink cancelled the allowance on the basis that Mr Foley had not been able to verify that he was engaged in “gainful employment” as required by the Act.

5. In two separate decisions, both made on 4 September 2015 the Social Services and Child Support Division of this Tribunal (“SSCS Division”) affirmed both Centrelink decisions.  Copies of these decisions and the reasons for them were posted to Mr Foley on 17 September 2015. Mr Foley is taken to have received the documents on 21 September 2015. Mr Foley agrees that he received them at about this time.

6. The Administrative Appeals Tribunal Act 1975 (Cth) provides that an appeal to the General Division of the Tribunal to review a decision of the SSCS Division is to be made within 28 days of receipt of a document setting out the terms of the decision or within such further time as the Tribunal allows (see section 29).

7. On 8 December 2015 Mr Foley lodged applications in the General Division to review the decisions of the SSCS Division. As the 28 day period had expired he applied for an extension of the time in which he could apply for a review in both applications

8. On 1 February 2016 I refused Mr Foley's applications. At the time I gave my reasons for doing so orally. I now give my reasons in writing.

   MR FOLEY'S EXPLANATION FOR THE DELAY

9. On his application form Mr Foley stated:

   I was hospitalised …… for approx. 13 days. I had an adverse reaction to medication received in hospital prompted by my decision to take the member’s findings with me to hospital so I could complete the application for a second review. This triggered major depression which has been hard to shake off.

10. When he gave evidence Mr Foley provided the following additional reasons for the delay:

    ·at the time he received the letters enclosing the decisions, he was unaware of the 28 day time limit for applying for a review;

    ·he probably read the advice concerning the time-limit but was concentrating on the reasons for the decisions.

    LEGISLATION

11. Subsection 29(2)(a) of the Administrative Appeals Tribunal Act provides:

    (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 given to the applicant

    …

12. Subsection 29(7) provides:

    (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) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

13. In Hunter Valley Developments Pty Ltd v Cohen [1] Wilcox J. set out the following principles to guide the determination of applications such as these:

    1.    Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time.

    2.    Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision and a case where the decision maker was allowed to believe that the matter was finally concluded…. The reasons for this distinction are not only the "need for finality in disputes" but also the "fading from memory" problem …

    3.    Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

    4.    However, the mere absence of prejudice is not enough to justify the grant of an extension… In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

    5.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted…

    6.    Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion… (references omitted)

    [1] (1984) 3 FCR 344 at 348-349.

    CONSIDERATION

14. While it is not essential for an applicant for an extension of time to provide an explanation for the delay, any explanation given, as well as the absence of an explanation if such be the case, is a relevant consideration.

15. Mr Foley gave evidence that he was hospitalised for a period of 13 days after receiving notice of the decisions and that he subsequently suffered depression. There is no evidence before me as to the effects of this depression on Mr Foley’s ability to complete and lodge the simple application form necessary to commence an application to the General Division of the Tribunal. I accept that Mr Foley was hospitalised for a period of 13 days, but I take into account that the application for an extension of time was lodged approximately 7 weeks after the expiration of the 28 day period. During his time in hospital he was able to contact Centrelink by telephone in relation to the SSCS decision.

16. Further, the letter enclosing the Decision and the Reasons for Decision clearly stated that an application for review in the General Division should be made within 28 days of receipt of the documents. Mr Foley accepted that he probably read this advice, but did not take note of it, preferring to concentrate on the Reasons.

17. There is a need for finality in administrative decision making so that all parties involved and those members of the public in similar circumstances can have certainty in the outcome of an application.

18. Having weighed up all the relevant factors I concluded that Mr Foley had not provided a satisfactory explanation for his delay in lodging the applications. I am satisfied on the balance of probabilities that he read the advice setting out the time in which an application for review was to be made.  Although he was hospitalised for part of the relevant period I am not satisfied that his hospitalisation was such as to have prevented his making the necessary applications had he wished to do so.  He was able to contact Centrelink by telephone during this period.

    The merits of the application in relation to the decision that Mr Foley was a member of a couple between 7 November 2014 and 31 December 2014

19. Mr Foley did not challenge the findings of fact made by the SSCS Division. The Tribunal found that during the relevant period Mr Foley and his partner were legally married and living together in the same accommodation. It found that there was no evidence that there had been any significant change in the relationship since the marriage and that there was no evidence that the relationship had ended. It also found that Mr Foley benefited from the care and support provided by his partner.

20. In the absence of further evidence in addition to that considered by the SSCS Division, I am not satisfied that there are reasonable prospects that Mr Foley would succeed in this application should an extension of time be granted.

    The merits of the application in relation to the decision cancelling Mr Foley’s mobility allowance

21. One of the requirements for the payment of a mobility allowance is that the recipient be required to travel to and from his or her home to undertake at least one of a number of prescribed activities. Prescribed activities include engagement in gainful employment for at least 32 hours in every four weeks on a continuing basis (see section 1035).

22. Mr Foley has an interest in cruise ships and the experience of cruising. He told the SSCS Division that he is involved in “authorship, research, compilation and lecturing.”

    Mr Foley's evidence

23. Mr Foley said that a business known as Cruise Directions, was begun by him in 1991 and operated until 1994. Some of the business’ activity has continued as a social club which he now supports.

24. In relation to the activity in which he was engaged at the time his mobility allowance was cancelled Mr Foley said that:

    ·he and an associate have been trying to work out how they should operate in the future, including whether they should change to an entity operating for a profit;

    ·over the last 20 years he has earned approximately $25,000 to $35,000;

    ·he has to spend time to “make sure your plans are good”;

    ·he intends to outsource tasks he cannot do himself;

    ·his aim is to make money from his knowledge base;

    ·he is “all set to do it”;

    ·he is about to register a new name because he intends to go forward with his plans;

    ·he has correspondence he has to send regarding various issues.

25. On the basis of the evidence he gave, I am satisfied that Mr Foley has taken steps towards setting up a business with a view to making a profit. However, I am not satisfied that he has reached the stage in this activity which can properly be described as “gainful employment”. To meet the requirement of the Act, it is necessary for Mr Foley to show that he is engaged in “employment” and that the employment is “gainful”. In addition he must show that he is so engaged for at least 32 hours in every four weeks on a continuing basis.

26. Having considered Mr Foley’s description of his activities at the time the benefit was cancelled, I am not satisfied that he was engaged in employment at that time and even if he was, I am not satisfied that such employment was “gainful” or that he was engaged in it for at least 32 hours in every four weeks on a continuing basis.

27. Over the past 20 years Mr Foley has earned between $25,000 and $35,000 from his activities in relation to cruising. However, it appears that any business which he may have operated in the past was not operating in early 2014 when the allowance was cancelled. I reached this conclusion on the basis of Mr Foley’s evidence that it was necessary to make sure that his plans for the business were good, that he plans to hire people to design a website and that he plans to register a new business name.

28. Taking into account all of the evidence I was not satisfied that Mr Foley has reasonable prospects of succeeding in his application in relation to the mobility allowance should an extension of time to make the application be granted.

    CONCLUSION

29. In each of the matters 2015/6431, 2015/6432 and 2015/6455, the application for an extension of time in which to make an application to review the decision of the Social Services and Child Support Division was refused.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated 16 February 2016

Date of hearing	1 February 2016
Date final submissions received	1 February 2016
Applicant	By telephone
Solicitors for the Respondent	G Heggen; Department of Human Services