Gray and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 921

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/4641

GENERAL ADMINISTRATIVE DIVISION		)
Re		JESSICA GRAY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date21 December 2011

PlaceSydney

Decision The Tribunal exercises its discretion to grant the applicant an extension of time to lodge her application for review of a decision of the Social Security Appeals Tribunal dated 31 August 2011 until 31 December 2011.

....................[sgd]......................

Ms N Isenberg
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – amount of delay – whether the application has possible merit – extension of time granted.

Administrative Appeals Tribunal Act 1975: s 29(7)

Social Security Act 1991: s 1064A

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Comcare v A’Hearn (1993) 45 FCR 441; [1993] FCA 498

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176

Ralkon v Aboriginal Development Commission (1982) 5 ALD 42; [1982] FCA 153

REASONS FOR DECISION

21 December 2011 Ms N Isenberg, Senior Member

1.      Ms Gray has sought an extension of time to lodge her application for review of a decision made by the Social Security Appeals Tribunal not to grant her youth allowance. Ordinarily, applications for review by this tribunal are to be lodged within 28 days of the reviewable decision being received by the applicant.

BACKGROUND

2.      Ms Gray applied for youth allowance on 31 January 2011 on the understanding that she qualified for independent status as she was self-supporting. Centrelink rejected her claim. That decision was affirmed on internal review and also by the SSAT. 

3.      On 28 October 2011 Ms Gray lodged with this Tribunal an application, dated 23 October 2011, for an extension of time to lodge an application for review of the SSAT decision.  Her application for extension of time is opposed by Centrelink.

PRINCIPLES TO BE CONSIDERED IN AN EXTENSION OF TIME APPLICATION

4. The time within which an application for review must be lodged with the Tribunal is set out in s 29 of the Administrative Appeals Tribunal Act 1975. Generally, an application must be lodged with the Tribunal within 28 days of the decision being received by the applicant.

5. Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”. 

6.      Guidance is given by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 who summarised the principles by which to consider whether an extension of time should be granted. I address these principles, as modified by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, below.

Onus of proof

7.      There is no onus of proof upon an applicant for extension of time.  Special circumstances need not be shown, but an application is not to be granted unless I am positively satisfied it is proper to do so.  The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 5 ALD 42 at 49; [1982] FCA 153).

Prima facie rule

8.      It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained.  While it is not a pre-condition for success in an application for an extension of time that an acceptable explanation for delay must be given, such an explanation will normally be given as a relevant matter to be considered: Comcare v A'Hearn(1993) 45 FCR 441; [1993] FCA 498.

Did the applicant rest on her rights?

9.      I heard from Ms Gray and her parents.  Ms Gray said that she received the SSAT decision at her Sydney address, probably a few days after the decision was dispatched on 12 September 2011, although some correspondence continues to go to her parents’ home in country NSW.  She said she was aware that she had 28 days to file an application for review.

10.     Ms Gray said that her course requires her to attend every day, unlike most other university courses.  She attends a minimum of three hours a day, and will often be there from 8.30am to 5.00pm.  On weekends she often returns to the family home and takes with her letters or other correspondence she needs to discuss with her parents.  On one occasion, she took the SSAT decision to her parents and told them about the 28 day deadline. Around that time she had end of year exams approaching.

11.     It was her intention to seek review of the decision because she believed she had been treated unfairly because the youth allowance criteria had changed without her being aware.  She understood that had she applied a few weeks earlier, that is, before 1 January 2011, she would have met the relevant criteria in force at that time.  She had organised her affairs since leaving school on the basis that her activities would satisfy the criteria for youth allowance.  She noted that she had saved in excess of $30,000 but that her savings had now been used up and she was relying on parental support.

Prejudice to the respondent

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

13.     Centrelink did not contend there will be any prejudice if the extension of time is granted.  Although it had initially been submitted that the application was out of time by four weeks, it was conceded that it was only about two weeks late. 

Fairness as between the applicant and others

14.     Considerations of fairness, as between the applicant and other persons in a similar position, are relevant to the manner of exercise of the discretion.

15.     Centrelink’s submission was that to grant Ms Gray an extension of time would in effect set an unwelcome example and Ms Gray would be in a better position than those in a similar position who had filed an application for review within time. 

16.     While I agreed there is a general public interest in ensuring finality in decision-making, I do not give much weight to this consideration.

The merits of the substantial application

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

18. I had very limited material before me in relation to the substantive matter. Only the decision of the SSAT was provided. In that decision it was found that the relevant criteria Ms Gray had to meet in order to be eligible for youth allowance was set out in s 1067A of the Social Security Act 1991, in particular, the provisions relating to persons who are self-supporting:

People who are self-supporting

(10) A person is independent if the person has supported himself or herself through paid work consisting of:

(a) full-time employment of on average 30 hours per week for at least 18 months during any period of 2 years; or

(b) part-time employment of at least 15 hours per week for at least 2 years since the person last left secondary school; or

(c) a period or periods of employment over an 18 month period since the person last left secondary school, earning the person at least the equivalent of 75% of:

(i) the maximum rate of pay under Wage Level A of a transitional Australian Pay and Classification Scale or modern award generally applicable to trainees; or

(ii) that maximum rate as varied or replaced from time to time by Fair Work Australia; that applied at the start of the period of employment.

(10A) Paragraphs (10)(b) and (c) do not apply for the purposes of determining whether a person is to be regarded as independent for the purposes of Part 2.11, this Part or section 1070G, unless subsection (10B), (10C) or (10E) applies to the person.

(10B) This subsection applies to a person if, before 1 July 2010, the person was:

(a) receiving youth allowance; and

(b) regarded as independent because of paragraph (10)(b) or (c).

(10C) This subsection applies to a person if the Secretary is satisfied that:

(a) in 2008 the person completed a course of education determined under section 5D of the Student Assistance Act 1973 to be a secondary course for the purposes of that Act; and

(b) disregarding subparagraph 541B(1)(a)(iii), the person did not undertake full-time study in 2009; and

(c) throughout 2009 the person intended to start undertaking full-time study in 2010 because of his or her intended enrolment at a higher education institution in a course of education; and

(d) on a day (the higher education start day) in the period starting on 1 January 2010 and ending at the end of 31 December 2010 the person starts undertaking full-time study because of his or her enrolment at a higher education institution in a course of education determined under section 592N to be an approved scholarship course; and

(e) if the person would not be taken by section 1067D to be required to live away from home on the higher education start day, assuming he or she were not independent then—the person’s combined parental income (as defined in point 1067G-F10 of the Youth Allowance Rate Calculator in section 1067G) for the tax year described in subsection (10D) is less than $150,000; and

(f) disregarding subsection (10A) of this section, the person is independent because of paragraph (10)(b) or (c) of this section before 1 January 2011.

Note: For undertaking full-time study see section 541B.

(10D) For the purposes of paragraph (10C)(e), the tax year is:

(a) the tax year ending on 30 June 2009; or

(b) the tax year ending on 30 June 2010 if:

(i) the person requests, in writing in accordance with a form approved by the Secretary, the Secretary to determine that paragraph (10C)(e) apply to the person’s combined parental income for that tax year and the Secretary does so; or

(ii) under point 1067G-F6 of the Youth Allowance Rate Calculator in section 1067G that tax year would be the appropriate tax year for the purpose of applying Module F of that Rate Calculator to the person in respect of a youth allowance payment period including the higher education start day (assuming youth allowance is or may be payable to the person).

(10E) This subsection applies to a person if:

(a) the person’s family home is in a location categorised under the Remoteness Structure as Outer Regional Australia, Remote Australia or Very Remote Australia; and

(b) the person is required to live away from home (see section 1067D); and

(c) the person is undertaking full-time study (see section 541B); and

(d) the person’s combined parental income (as defined in point 1067G-F10 of the Youth Allowance Rate Calculator in section 1067G) for the appropriate tax year (see Submodule 3 of Module F of that Calculator) is less than $150,000.

(10F) For the purposes of paragraph (10E)(a), Remoteness Structure means the Remoteness Structure described in:

(a) the document entitled ―Statistical Geography Volume 1 Australian Standard Geographical Classification (ASGC) July 2006‖, published by the Australian Statistician, that was effective 1 July 2006; or

(b) a document specified in a determination under subsection (10G) to be a replacement document.

(10G) The Secretary may, by written determination, specify a document for the purposes of paragraph (10F)(b). The document must be one published by the Australian Statistician.

(10H) A determination under subsection (10G) is not a legislative instrument

19.     The SSAT found Ms Gray, who had left school in November 2008, had worked from 1 January 2009 to 20 May 2009 at a cinema, and then had worked overseas from 27 October 2009 to 4 September 2009 and from 24 October 2009 to 27 February 2010.  On her return to Australia she had again worked at the cinema from 29 April 2010 until at least the date of lodgement of the application for youth allowance.

20. The SSAT found that s 1067A(10)(a) did not apply but it was unclear to me on what basis this view had been reached. The section requires her to have supported herself through paid work in “full-time employment of on average 30 hours per week for at least 18 months during any period of 2 years” to qualify. It was recorded that Ms Gray had said she did not meet the target of 30 hours average per week, but there was no evidence as to the calculations made by Centrelink. On the basis of the material before me, it was entirely unclear why Ms Gray had been refused youth allowance when, prima facie, she had worked since January 2009 until (at least) the date of claim.

21. Further, the SSAT made references to s 1067A(10)(b) and (c) and stated it was not satisfied Ms Gray satisfied these criteria. It relied on Centrelink calculations which were not referred to in detail, nor were any provided to me. It was suggested that the SSAT’s reference to s 1067A(10)(c) was an error, and that the SSAT had in fact applied calculations only in respect of s 1067A(10)(a) and (b). The explanation provided by Centrelink of the operation of these provisions of the Act was somewhat muddled. Following the hearing, Centrelink provided a short document outlining that s 1067A(10)(b) and (c) do not apply to Ms Gray by virtue of s 1067A(10A). The Tribunal accepts this, however, the case remains that her claim under s 1067A(10)(a) has not been fully tested. As I observed, Ms Gray had presented herself to Centrelink with a creditable work history and sought youth allowance.

22.     I also understand that Ms Gray has made a subsequent application based on her reliance upon parental support now that her savings have been exhausted.  That claim too has been refused.  As I have said, the material available to me was scant and I had no documents about that claim.  Unless there was some particular reason otherwise, it seems to me that the initial application she made for youth allowance should have been tested against all available criteria.

Conclusion

23.     The delay in filing the extension of time for the application for review was for a period of about two weeks, and it was conceded that there is no prejudice to Centrelink.  While there is some unfairness to other applicants who do comply with the Tribunal’s timeframes, that would apply in most matters where the extension of time is considered. 

24. Most importantly, the merits of the substantive application have been taken into account in considering whether an extension of time should be granted. I have come to the view that on the information before me I cannot be satisfied that Ms Gray does not meet the requirements for youth allowance. The evidence, beyond references to Ms Gray’s opinion of her entitlement in the SSAT decision, upon which the decision under review was made was not available. Legal argument and further evidence in relation to s 1067A(10)(a) is likely to be necessary to fully understand how it is contended that the criteria is not met. I am not satisfied that Ms Gray’s claim has been fully tested.

DECISION

25.     The Tribunal exercises its discretion to grant the applicant an extension of time to lodge her application for review of a decision of the Social Security Appeals Tribunal dated 31 August 2011 until 31 December 2011.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ........[sgd].....................................................................
             C. Taylor, Associate

Date/s of Hearing  9 December 2011
Date of Decision  21 December 2011 
Appearance for the Applicant  Self-represented       

Appearance for the Respondent               Jennifer Maclean, Centrelink Program Litigation and Review Branch