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

The Administrative Appeals Tribunal considered an application for an extension of time by Mr Hamilton, an 82-year-old recipient of the age pension, who sought to review a decision by the Secretary of the Department of Social Services. The Department had raised a debt of $76,929.40 against Mr Hamilton, alleging he had undeclared income from company shareholder payments between September 2011 and January 2016. This decision was affirmed by an authorised review officer and subsequently by the Social Security Appeals Tribunal, with the notice of decision posted on 28 April 2017. Mr Hamilton lodged his application for an extension of time to seek review of this decision on 5 February 2019.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mr Hamilton an extension of time to lodge his application for review, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). In determining this, the Tribunal was required to consider established principles, including the need for an acceptable explanation for the delay, any prejudice to the respondent, the merits of the substantive application, and considerations of fairness. The Tribunal also had to consider the substantive matter itself, which concerned whether the payments received by Mr Hamilton constituted income for the purposes of calculating his age pension entitlement, and if so, whether any part of the debt should be waived under sections 1237A or 1237AAD of the Social Security Act 1991 (Cth).

The Tribunal reasoned that while Mr Hamilton had "rested on his rights" by not lodging his application promptly, this factor was not determinative. It noted that Mr Hamilton strongly disputed the characterisation of the payments as income, contending they were reimbursements or loans. The Tribunal considered that Mr Hamilton’s distress and his assertion that he could provide further evidence to support his case indicated that the substantive matter may have merit. Weighing these factors, including the potential prejudice to the Secretary and the general public against the applicant's position and the potential merits of his case, the Tribunal concluded that it was reasonable in all the circumstances to grant the extension of time.

The Tribunal ordered that the application for an extension of time be granted.