Glenn Hayward and Secretary, Department of Social Services

[2015] AATA 118

[2015] AATA118  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/6093
Re	Glenn Hayward
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri, Member
Date	3 March 2015
Place	Hobart

The application for extension of time is dismissed.

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Ms S Taglieri, Member

CATCHWORDS

Disability support pension; extension of time sought; no arguable basis for review to succeed; extension of time refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES

Aldefeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633

REASONS FOR DECISION

Ms S Taglieri, Member

3 March 2015

INTRODUCTION

1. Mr Hayward applied for a Disability Support Pension (DSP) in October 2013. His claim was refused and he sought review by the Social Security Appeals Tribunal (SSAT). The SSAT dismissed his application for review on about the 5 May 2014 ("the SSAT decision").

2. No application to this Tribunal was made about the decision of the SSAT after Mr Hayward received written notice of it. Instead he had made a second application for DSP on 2 May 2014. I was informed by Counsel for the Respondent that Mr Hayward has been in receipt of DSP since about that time, as his second application was granted.

3. By this application, Mr Hayward seeks an extension of time to seek review of the SSAT decision. An extension of time is required, because he failed to make the application for review to this Tribunal within the applicable time limit of 28 days[1].

   [1] Section 29(2) of the Administrative Appeals Tribunal Act 1975

   WHETHER AN EXTENSION OF TIME OUGHT TO BE GIVEN?

4. The principles to be applied when determining this question are usefully summarised in the Federal Court decision of Aldefeary v Secretary, Department of Education, Employment and Workplace Relations. McKerracher J referred to various authorities with approval and regarded them as applicable to the power to grant extension of time contained in section 29(7) of the Administrative Appeals Tribunal Act 1975.

5. The principles can be summarised as whether:

   ·there has been a satisfactory explanation for the delay;

   ·the review being sought has some arguable merit;

   ·there is prejudice to the Respondent in granting the extension of time;

   ·justice requires the extension to be permitted.

6. The principles are not necessarily mutually exclusive and may not all be of equal importance in any given application for extension of time, but if relevant must be considered and have been.

7. Mr Hayward has offered an explanation for the delay in seeking review of the SSAT decision. The effect of what he told the Tribunal was that by virtue of the effects of his psychological condition, back condition and having to deal with the second DSP claim, he was not equipped to think and act clearly about what he was required to do if he disagreed with the SSAT decision. 

8. I accept this as an honest account of the situation and consider it to be a satisfactory explanation for the delay, particularly because the delay, about 4 months is not excessive considering all the circumstances. 

9. The Respondent did not seriously argue that it would be prejudiced by a grant of extension of time. There was reference at the hearing to paragraphs 13 and 14 of its Statement Opposing the Extension of time. I am not persuaded that there is any material prejudice to the Respondent.

10. Despite the findings in paragraphs 8 and 9, I conclude that the extension of time ought to be refused because a review of the SSAT decision of 2 May 2014 is without merit, as it would necessarily fail. 

11. This is clear from:

    a)    The evidence given by Mr Hayward that his back condition deteriorated and required surgery in late 2013, after making his first application for DSP;

    b)    The evidence establishing that the diagnosis of major depression was not made by a Psychiatrist or a GP and a clinical psychologist, at the time of first application for DSP. This is a requirement of the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”)[2].

    [2]     See Table 5, Introduction.

12. At the hearing of this matter the Respondent was directed to ascertain and inform the Tribunal, if Mr Simon Webb, identified as a psychologist in medical reports provided at the time of the first application for DSP, was a clinical psychologist. On 16 February 2015, the Tribunal received copies of letters exchanged between the Respondent and AHPRA (the Authority responsible for registration of medical professionals).  The letters evidence that in effect AHPRA was asked to advise the registration status of Simon Webb as a clinical psychologist in and around December 2011[3]. AHPRA’s response was:

    “our records do not show any person by the name of Simon Webb registered as a psychologist”.

    [3]     That being the date identified in medical reports that Mr Webb saw Mr Hayward

13. The necessary effect of the evidence referred to in paragraph 11 is that there is no evidence upon which this Tribunal could be satisfied that Mr Hayward’s conditions of back injury and\or major depression, were fully diagnosed, fully treated and fully stabilised, a requirement before an impairment rating can be assigned for the conditions.

14. As there is no arguable merit in the substantive application, the justice of the case does not allow for the extension of time to be granted.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)

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Administrative Assistant

Dated              3 March 2015

Dates of hearing	16 December 2014
Applicant	Mr Glenn Hayward, self-represented
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch