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

[2015] AATA 765

Folker and Secretary, Department of Social Services (Social services second review) [2015] AATA 765 (30 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/3895
Re	Enid Folker
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	30 September 2015
Place	Brisbane

The Tribunal does not extend the time for making an application for review of the respondent’s decision.

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Senior Member Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – limited prospects of success – extension of time not granted.

LEGISLATION

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

Social Security Act 1991 (Cth) ss 1064, 1118

Social Security (Administration) Act 1999 (Cth) s 152(4)

REASONS FOR DECISION

Senior Member Bernard J McCabe

30 September 2015

1. Mrs Enid Folker has asked for an extension of time for making an application to the Tribunal pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Mrs Folker wants to review a decision that was affirmed by the Social Security Appeals Tribunal (as it then was) (“the SSAT”) made on 18 June 2015, and then posted to her on or about 25 June 2015. Her application for review of that decision was not lodged with this Tribunal until 31 July 2015. That is a problem because applications for review must ordinarily be lodged within 28 days. An application that is lodged after that deadline may not be accepted unless the Tribunal exercises its discretion to extend time under s 29(7).

2. The power to extend time may be exercised where it is reasonable to do so. A number of considerations might be relevant to the exercise of the discretion, including:

   (a)the explanation for the delay given there is an expectation that a person will exercise their appeal rights promptly; and

   (b)the merits of the case, given there is no point proceeding with an application that is unlikely to succeed.

3. Ultimately, the Tribunal must decide whether it is reasonable having regard to all the circumstances (and taking into account the statutory objectives set out in s 2A of the AAT Act) to allow the extension of time.

   The explanation for the delay

4. Mrs Folker said she received the SSAT decision on 30 June 2015 which means her application should have been filed with this Tribunal by 28 July 2015. The Tribunal’s records show the application was not received until 31 July 2015. The applicant says she has a good explanation for the delay. Her accountant, Mr Mortimer, explained in an email dated 24 August 2015 that attempts were made to file the application for review on 28 July but it was repeatedly rejected by the Tribunal’s online lodgement process. Mr Mortimer said he received conflicting advice from registry staff as to how he should go about the process.

5. I accept the applicant made a good faith attempt through her accountant to lodge the application before the deadline. It is possible there was some confusion over that process following the recent amalgamation between the SSAT and this Tribunal. I have asked the Registrar to look into Mr Mortimer’s evidence to determine whether there are any systemic issues. For now, I accept the applicant’s case that the delay in lodging the application was not her fault. But that is not the end of the matter.

   The merits of the case

6. While Mrs Folker does not appear to be responsible for the failure to lodge the application before the deadline, I must consider whether the extension of time should be granted in light of the Secretary’s argument that the case is unlikely to succeed at a hearing. If the Secretary is right about the absence of merit, there is no point going through the review process: that would be an expensive waste of time for all concerned. In such a case, the application for an extension of time ought to be refused.

7. I do not need to rehearse every detail of the case at this point but I do need to explain the essence of the dispute. There does not seem to be any dispute in relation to much of what follows.

8. Mrs Folker became eligible for the age pension in 2003. The rate of the pension depends on the value of the person’s income and assets which are assessed pursuant to s 1064 of the Social Security Act 1991 (Cth). Not all of a person’s assets are taken into account, however: the value of the person’s principal home is excluded: s 1118. When Centrelink (acting on behalf of the Secretary of the Department of Social Security) made an assessment of Mrs Folker’s assets, it was decided the value of an area of land surrounding the house should be taken into consideration. The effect of that was to reduce the rate at which the age pension was paid on and from 1 January 2007.

9. Mrs Folker questioned the rate at which she was paid – but it seems she did not do so until 2 May 2012. That interaction was taken to be a request for a review of the decision to pay her at a lower rate, and the internal review process began on that date. On 14 November 2012, Centrelink decided the value of the surrounding land should not have been taken into account for the purposes of the assets test. A decision was made to increase the rate of the age pension from that date. An authorised review officer (“the ARO”) decided to backdate the change of rate to 2 May 2012, the date on which Mrs Folker was taken to have requested a review of the decision. The letter notifying the applicant of the ARO’s decision was sent out on 28 November 2013. There is no dispute that the letter contained information about the applicant’s appeal rights. Mr Mortimer, the applicant’s accountant, said he was not aware of that letter but he was unable to dispute that it had been sent and received.

10. Mrs Folker did not apply to the SSAT for a review of the ARO’s decision dated 28 November 2013 until 24 April 2015 – that is, about 73 weeks after the date of the ARO’s decision. Mr Mortimer said he had contacted his local Centrelink office on numerous occasions during that 73 week period to discuss the approach taken by the original decision-maker and the ARO but he did not approach the SSAT on the applicant’s behalf until April 2015.

11. The delay in exercising the appeal rights in relation to the ARO’s decision is a problem because of s 152(4) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). That provision limits the ability of a reviewer to backdate a favourable decision if the application for review was lodged more than 13 weeks after receiving notice of the reviewable decision. If the application is lodged more than 13 weeks after the reviewable decision, a favourable decision on review can only take effect from the day on which the application for review was lodged, or some later date. The rule might appear strict but it makes perfect sense. Centrelink is a large organisation administering complex legislation. It has to deal with millions of people and process vast quantities of information. It inevitably makes mistakes from time to time. That is why the Commonwealth provides a review process that is readily accessible and easy to use: indeed, the review of the ARO’s decision can be commenced with a phone call. But an individual who thinks Centrelink has made a mistake must act in a timely way. Mistakes can be sorted out relatively easily when the review process is commenced quickly; if the affected person does not speak up at the earliest opportunity, it becomes much harder to correct errors, and the financial cost to Centrelink can be significant. So there are time limits, and a person who fails to exercise his or her appeal rights can miss out if they do not comply.

12. In this case, the ARO’s decision confirmed Mrs Folker should have been paid at the higher rate. The SSAT agreed with the ARO’s conclusion in that regard. But even if the SSAT took a different view on the question of how far the decision should be backdated, the effect of s 152(4) prevented the SSAT from going back beyond 24 April 2015. As a practical matter, the SSAT affirmed the ARO’s decision which meant the applicant remained entitled to the higher rate of pension from 2 May 2012.

13. The SSAT was right. Section 152(4) of the Administration Act limits the ability of the SSAT to backdate a favourable decision if an applicant has not exercised its appeal rights within 13 weeks of being notified of the decision. The SSAT could not have delivered a more favourable outcome because of the applicant’s delay. This Tribunal is in the same position. It follows there is no point going forward with this review. It would be a waste of everyone’s time and resources.

    CONCLUSION

14. The SSAT has been amalgamated with this Tribunal, but the review process is substantially the same. If one is dissatisfied with a decision made by Centrelink, one should request an internal review promptly. If one is still dissatisfied following the ARO’s decision, one should then apply promptly to the Administrative Appeals Tribunal for a first tier review – and for a second tier review in due course if one is unhappy with the outcome at the first tier review. There is no point making angry phone calls to Centrelink or railing about incompetence (or worse) when one believes a decision is wrong. If a Centrelink customer is unhappy with a decision, she should commence the appeal process and speak to a review body that can provide redress. If the customer fails to exercise her rights of review in a timely way – and the time limits are spelled out in the letter which includes notice of the decision – then there is a risk she may not be able to take full advantage of a favourable decision.

15. I am not satisfied it would be reasonable in all the circumstances to extend the time for making an application to the Tribunal pursuant to s 29(7) of the AAT Act.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 30 September 2015

Date(s) of hearing	19 August 2015; 17 September 2015
Advocate for the Applicant	Mortimer & Co Accountants & Auditors
Solicitors for the Respondent	Department of Human Services