Foster and Secretary, Department of Social Services (Social services second review)
[2023] AATA 1313
•23 May 2023
Foster and Secretary, Department of Social Services (Social services second review) [2023] AATA 1313 (23 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0610
Re:Julie Foster
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:23 May 2023
Place:Canberra
Extension of time refused.
……………[SGD]……………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for extension of time in which to make an application for review – factors relevant to exercise of discretion – length of delay – explanation for delay – prejudice – merit – alternative remedy – grounds not/sufficient for exercise of discretion – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975, s 29, 43
Social Security Act 1991, ss 1223, 1229A, 1229B, 1233, 1237A, 1237AAD
Social Security (Administration) Act 1999, ss 126, 129, 135
Cases
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackson and Secretary, Department of Social Services [2023] AATA 1286
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
Mentink v Minister for Home Affairs [2013] FCAFC 113
Pham v Commonwealth of Australia [2002] FCA 669
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
REASONS FOR DECISION
Mr S. Webb, Member
23 May 2023
Julie Foster lodged an application for review of an AAT first review decision made more than 8 years ago in respect of a disability support pension overpayment debt raised under Chapter 5 of the Social Security Act 1991 (Social Security Act). By her application, Ms Foster is seeking waiver of the remaining part of the overpayment debt which is outstanding.
The Secretary does not oppose the grant of an extension of time.
Ms Foster provided the following information:
I am requesting consideration to waive remaining debt based on the fact that I have repaid considerable debt owing but still feel..after this long period ..that I did not do anything wrong in declaring everything at the start. I understand a debt is a debt but in these expensive times the amount being repaid..albeit small but maintained payments through Covid etc...will help me with other budgetary measures.
I have never been on Government benefits until I was diagnosed with Multiple Sclerosis even then it was some time after I was diagnosed as I continued to work as long as it was possible.
and
I am applying for the small remainder of my debt to be waived as I feel that reported income was declared in 2008 and overlooked. I have never been on benefits but now I have MS. Have paid a considerable amount back even through Covid.
and
Extension date ...01/02/23 ...
Reason...applying for remainder of this debt to be waived ...have paid all through covid.. even though their was a choice to stop paying...I still am of the view that I reported everything when I started my Disability Pension...if I could have a choice to be at work I certainly would be...have MULTIPLE SCLEROSIS..just trying to make the best of what I have....the repayments on this debt..if waived would help with my internet payment.
When directed to provide a further and better explanation for the delay in lodging her application for review, Ms Foster provided the following explanation:
Outling reasons for extension of time:
Personal issues …death of my parents during this time
Health issues….hospitalsation for multiple sclerosis and other issues associated with this disease
Cancer treatment…skin cancer caused by drug Gilenya prescribed for multiple sclerosis and growth on eyeball
Overcoming alcohol dependancy…achieved over 10 yrs ago
Divorce settlement ---18 mths
There is scant available information in respect of the background facts in Ms Foster’s case. The AAT first review decision on 14 November 2014, sets out the following:
Ms Foster is asking the Tribunal to reopen her case to waive the remaining part of the debt on grounds of special circumstances and hardship. In her application, she alludes to circumstances and events which occurred before and after the AAT 1st review decision on 14 November 2014. It is not clear to me she is seeking review of the AAT 1st review decision on 14 November 2014, although that is the effect of her application. In her application, she does not assert the AAT 1st review decision was wrong, although it appears she cavils with the decision to raise and recover, in part, the overpayment debt she has now substantially repaid.
To the extent her application is for waiver of the outstanding part of the debt she owes to the Commonwealth on grounds of special circumstances which occurred after the AAT 1st review decision, her application may be better directed to the Secretary under s 129 of the Social Security (Administration) Act 1999 (Administration Act). For reasons I have explained in another, similar, recent case,[1] the Secretary has authority to re-exercise power where new information or subsequent events (which were not before previous decision-makers) establish a different factual basis for re-exercising power under s 1237AAD of the Social Security Act than was before the Tribunal of first review.
[1] Jackson and Secretary, Department of Social Services [2023] AATA 1286.
As Ms Foster’s application is well outside the 28 day period prescribed in s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), it is necessary to determine if it is reasonable in all the circumstances to exercise discretion under s 29(7) of that Act to grant her an extension of time to enable her application to proceed.
Wilcox J set out relevant but not exhaustive considerations[2] in Hunter Valley Developments Pty Ltd v Cohen,[3]which may be summarised as follows:
(a)An acceptable explanation for the delay provided by the prospective applicant, and the length of the delay. The absence of a satisfactory explanation may not always be determinative.
(b)Whether an applicant has rested on their rights and taken no action to seek review or to communicate an intention to challenge the decision. The public interest in the timely review of administrative decisions must be weighed against any public interest in the delivery of fair and just decisions.
(c)Any prejudice to the respondent or unfairness to another person. The absence of prejudice does not weigh for the grant of additional time.
(d)The relative merits of the application should it be allowed, albeit at a very high level. An application which lacks any reasonable prospect of success may not be allowed to proceed.
(e)Alternative avenues for relief.
[2] Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]; Mentink v Minister for Home Affairs [2013] FCAFC 113, per Griffiths J (as he then was) at [35]-[39]; Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18]-[19]; Pham v Commonwealth of Australia [2002] FCA 669 at [11]; and Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109.
[3] (1984) 3 FCR 344 at 348-350.
As the Secretary has not opposed Ms Foster’s application for an extension of time, there is no controversy about these matters. Nevertheless, it is for the Tribunal to be satisfied it is reasonable and appropriate to exercise the discretion in all the circumstances. An extension of time beyond the prescribed 28 period which applies in this case will not be granted unless the Tribunal is positively satisfied it is reasonable and there is a good reason to do so.
Delay
As the AAT 1st review decision on 14 November 2014 was not posted to Ms Foster until 26 November 2014, the 28 day prescribed period in which Ms Foster could apply for review of elapsed on 24 December 2014. She lodged an application for review of this decision on 1 February 2023.
No reasonable or satisfactory explanation for the delay of more than 8 years has been provided.
Instead, Ms Foster is asking for further consideration of circumstances which, she asserts, are relevant to recovery of the part of her debt which remains outstanding. As I have said, matters of that kind may better be directed to the Secretary insofar as they relate to circumstances since the AAT 1st decision was made.
The length of the delay and the lack of a reasonable explanation of the delay in lodging her application for review weigh heavily against exercise of the discretion to extend time.
Failure to act
Ms Foster appears to have rested on her rights for many years.
This weighs against exercise of the discretion.
Prejudice
No prejudice is asserted.
Nevertheless, in order to examine Ms Foster’s assertion she reported all of her income and errors were made, probative materials will be required. After more than 8 years since the AAT 1st review decision, it can be accepted the parties might face significant difficulties obtaining relevant materials in respect of events which occurred during the period 12 September 2008 to 3 October 2013, in which Ms Foster was overpaid disability support pension.
Furthermore, acceding to Ms Foster’s application after such a long period may be unfair to other people repaying overpayment debts to the Commonwealth who may experience financial difficulties but, nonetheless, have felt bound by the prescribed time limit on applying for review.
This consideration weighs against the grant of an extension of time.
Relative merits
On the present very scant materials it is not possible to assess if Ms Foster’s application has any prospect of succeeding should it be allowed to continue. Nevertheless, for the same reason, I am unable to determine if her application has so little prospect of success it should not be allowed to proceed.
This consideration does not weigh for or against exercise of the discretion.
Alternative relief
As I have said, the Secretary is authorised to re-exercise power to waive recovery of a debt owed to the Commonwealth under part 5.4, Chapter 5 of the Social Security Act in circumstances where new information or subsequent events provide a factual basis for doing so which was not before the Tribunal of 1st review and was not previously considered.
It is open for Ms Foster to apply to the Secretary for the relief she is seeking by re-exercise of power under s 1237AAD to waive the remaining part of her debt or by exercise of power under s 1236 to write off the outstanding debt for a time, which was not dealt with in the AAT 1st review decision. It must be accepted doing so does not guarantee a positive result. It is for the Secretary to be satisfied if a sufficient reason exists to review any aspect of the primary determination (as varied by the ARO and affirmed by the Tribunal of 1st review) on the grounds pressed by Ms Foster in respect of non-recovery of the remaining part of the debt she owes.
Even though alternative remedies may be open, at least in part, I accept there is some uncertainty about such matters for Ms Foster. Insofar as Ms Foster is pressing for further review of matters squarely dealt with in the AAT 1st review decision (and this is far from clear), in respect of the calculation and raising of the debt she owes and her assertions of error, there are few options. In circumstances where no new information or subsequent events of relevance establish a different factual basis for the re-exercise of power under s 1223, s 1229A or s 1229B, s 1233, s 1237A or s 1237AAD of the Social Security Act in the context of further review under s 126 or s 135 of the Administration Act, there is no alternative remedy or relief available if the extension of time is not granted.
Overall, this consideration does not weigh for or against exercise of the discretion.
Conclusion
On balance, having considered all relevant factors to the extent possible on the scant available materials, I am not positively satisfied it is reasonable or appropriate to exercise the discretion to grant an extension of more than 8 years, such that Ms Foster’s application for review of the AAT 1st review decision on 14 November 2014 might proceed.
Her application for an extension of time under s 29(7) of the AAT Act is not made out and must be refused.
Decision
Extension of time refused.
29. I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
...................[SGD]...................
Associate
Dated: 23 May 2023
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