Hague and Secretary, Department of Family and Community Services

[2004] AATA 366

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 366

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/153

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KIRSTEN HAGUE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Senior Member McCabe

Date 2 April 2004

Place Brisbane

Decision

UPON HEARING the applicant in person and Ms Hamilton for the respondent, for the attached reasons THE TRIBUNAL DECIDES to refuse the application for extension of time.

  ……..…(Sgn)……………

  SENIOR MEMBER

REASONS FOR DECISION

1.      Ms Kirsten Hague is the applicant in these proceedings. She receives a carers’ pension in respect of her disabled son. There was a delay in making her application for the payment because she was not aware it was available to her. Centrelink paid her an amount equal to 52 weeks of the pension as back-pay. While there is no dispute that Ms Hague became eligible to receive the payment more than a year before she made her application, Centrelink says it cannot back-date her payments more than one year. The applicant appealed the decision to the Social Security Appeals tribunal (The SSAT), and she is now approaching this Tribunal.

2.      Ms Hague’s application before the Tribunal was made outside the time limit for appeals from the SSAT. It therefore becomes necessary for me to consider whether an extension of time ought to be granted.

The Law

3.      The Federal Court in Hunter Valley Developments (1984) 3 FCR 344 said applicants seeking an extension of time must satisfy the court of several matters. The Court said the Tribunal should start from the proposition that time limits have been imposed for a reason, and ought to be observed unless there is a good reason not to do so. If the Tribunal is considering granting an extension of time:

·There must be a reasonable excuse for the delay. If the applicant has rested on her rights, she cannot expect assistance from the Tribunal. There is no suggestion of that here. Ms Hague says she was corresponding with her local member of parliament and the minister. That took some time. I am satisfied she has a reasonable excuse.

·Consideration must be given to whether there will be any prejudice to the respondent. There is no suggestion of that in this case.

·The Tribunal must make an assessment of the merits of the case. There is no point permitting an appeal to go ahead if there is little or no prospect of success at a full hearing.

4.      Ms Hague spoke at the hearing about her efforts to raise her son. There is no question that he is disabled, and she is struggling heroically to look after him. She struck me as a diligent and caring person. But that is not the end of it. An examination of merit requires me to do more than consider whether the applicant is deserving of assistance. If that were all that was required, I would have no hesitation in granting her an extension of time. I am also required to consider the merits of the claim at law. Ms Hamilton, for Centrelink, points out that s 16(2) in Schedule two to the Act is an obstacle. She says it is an insurmountable obstacle for the applicant. The section provides:

16.(2)  If:

(a)       a person is qualified for carer allowance for a care receiver who is a disabled child or for 2 care receivers who are disabled children; and

(b)       the person makes a claim for carer allowance more than 52 weeks after the day on which the person became qualified for the allowance;

the person’s start day in relation to the allowance is the first day of the period of 52 weeks ending immediately before the day on which the claim was made.

5.      The effect of the legislation is to prevent Centrelink from backdating payments for more than 52 weeks from the time when the applicant became qualified to receive the allowance. Centrelink says it has back-paid 52 weeks worth of payments, but it can go no further because of the rule. Centrelink says there is no discretion to waive the rule – Centrelink must observe the rule, whether it likes it or not.

6. Sadly for Ms Hague, I think Centrelink is right. It is caught by the rule. So am I. Both Centrelink and the Tribunal are bound by the laws parliament makes – in this case, the provisions of the Social Security Act 1991. The parliament has decided it must place a limit on claims of this nature. It has not given decision-makers the power to modify the rule in deserving cases.

7.      The Tribunal cannot assist Ms Hague. There is no point giving her the extension of time she seeks.

Conclusion

8.      I have great sympathy for the applicant given her personal circumstances, but the law does not permit the Tribunal to assist her. The application for an extension of time is denied.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         ............................(Sgd)..................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 2 April 2004
Date of Decision: 2 April 2004 
The Applicant represented herself.
The Respondent was represented by Ms Hamilton, a departmental advocate.