Hawley and Secretary, Department of Employment and Workplace Relations

[2006] AATA 698

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 698

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/732     

GENERAL ADMINISTRATIVE DIVISION		)
Re		LINDA HAWLEY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N. Isenberg, Member

Date14 August 2006

PlaceSydney

Decision The Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of a decision of the Social Security Appeals Tribunal dated 10 April 2006.

[SGD] Ms N. Isenberg
  Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – application 6 weeks out of time – explanation for delay – no prejudice to Respondent – merits of substantive application – extension of time not granted

Administrative Appeals Tribunal Act 1975 – section 29

Social Security (Administration) Act 1999 - Schedule 2, clause 4

Social Security Act 1991 – section 94 and Schedule 1B

Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

14 August 2006 Ms N. Isenberg, Member

1. Applications for review by this Tribunal must be lodged within 28 days of the decision complained of. However, under section 29(7) of the Administrative Appeals Tribunal Act 1975 the time for filing an application for review may be extended.

2.      Ms Hawley seeks an extension of time for lodging her application for review of the Social Security Appeals Tribunal (“SSAT”) decision of 10 April 2006 in relation to her claim for disability support pension (“DSP”).

CONSIDERATION

3.      Generally the prescribed 28 day appeal period is to apply unless there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time:  per Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344.

4.      All factors relevant to a case have to be weighed up against one another in reaching a decision:  per Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.

5.The relevant factors which need to be considered are:

• Length of delay;
• Awareness of rights and whether there is an acceptable reason for the delay; and
• Merits of the applicant’s case and significant issue to be determined.

Each of these are considered in turn.

Length of delay and whether there is an acceptable reason for the delay

6.      As to delay, I asked Ms Hawley what she had done on receipt of the SSAT decision, which, she thought may have been about 2 weeks after the hearing.  She said she read the letter, and knew she had 28 days to appeal.  She said she telephoned the Tribunal almost straight away – but in any event, early in May 2006 - and asked for the ‘paperwork’ in order to appeal. 

7.      Ms Hawley did not know when the ‘paperwork’ from the Tribunal arrived, but it may not have been until sometime in June 2006.  She said there is another address similar to hers in another suburb of Newcastle and mail often goes astray, and she is in the hands of the people there giving it back to Australia Post.  At some stage, she followed up with the Tribunal and, as she was then out of time, was then sent an application for extension of time. 

8.      Ms Hawley understood from her discussion with Tribunal staff that her claim would be assisted if she had supporting medical evidence, but her specialist appointment was not scheduled until mid July 2006.  It is unclear why she in fact lodged her claim when her professed intention was to wait until medical evidence was to hand in order to support her application.  However, because she did not delay her application until medical evidence was to hand, her application for review was lodged only about 6 weeks late. 

9.      There was no evidence that Centrelink was prejudiced by this relatively short delay.

10.     The Tribunal does not have a system whereby applicants who propose to lodge an application for review can ‘register’ that intention.  Consequently, the Tribunal has no record of an application for review until the appropriate form is in fact filed.  I accept, however, Ms Hawley’s evidence that she contacted the Tribunal virtually immediately upon receipt of the decision of the SSAT.  I also accept her evidence that her mail was inclined to go astray.

11.     In view of the relatively short period of time by which the application for review was out of time, I find Centrelink to be unlikely to be prejudiced by an extension of time for filing of the application for review.

Awareness of rights

12.     Ms Hawley did not deny receipt of the SSAT decision or that she knew after reading it that she had 28 days to appeal. 

13.     I have already discussed, and I accept, that she was informed that her position would be enhanced by the inclusion of relevant medical evidence.  She was taking steps to obtain that medical evidence, but was not in a position to provide it, obviously, until after the appointment, which was not until July 2006.

14.     Further, I have accepted her evidence that she took steps to pursue and appeal to this Tribunal almost immediately after she received the SSAT decision. 

Merits of the applicant’s case and significant issue to be determined

15.     I must consider if Ms Hawley‘s case has prospects of success: per Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121.

16. I note at the outset that the relevant time to consider Ms Hawley’s entitlement to DSP is during the 13 weeks after the claim (per Schedule 2, clause 4 of the Social Security (Administration) Act 1999), that is up to 23 November 2005. 

17.     The first task is to be satisfied which, if any, of Ms Hawley’s conditions could properly be described as “permanent”, at the relevant date.  Only these conditions are to be considered for the purposes of the DSP.  This means each condition must have been diagnosed, treated and stabilised and is more likely than not to last for more than two years (per Introduction to Schedule 1B—Tables For The Assessment Of Work-Related Impairment For Disability Support Pension, Social Security Act 1991).

18.     Ms Hawley told me that her jaw condition is her major condition because of the pain it produces.  She has recently seen a specialist about the condition and is soon to be put onto muscle relaxants which, it is hoped, will alleviate the condition.  In view of this evidence of recent medical intervention, I do not consider this condition, at the relevant time, to be ‘permanent’.

19.     As to Ms Hawley’s thyroid condition, her evidence was that it had originally been diagnosed in 1994 during her pregnancy.  The condition had dissipated, but last year she again sought review.  She said she had previously been ‘borderline’, but late last year had more tests done, including blood tests.  The tests identified nodules in her throat.  She received no treatment at that time and is shortly to be reviewed again.

20.     A major feature of Ms Hawley’s thyroid condition is her tiredness.   Although she told the SSAT she did not take afternoon rests, she told me that, since that time, she has to rest more, interrupting her daily household routine.

21.     In view of this evidence of recent deterioration and the tests after the relevant period, I do not consider this condition, at the relevant time, to have been stabilised and treated.  It was not, therefore, at the relevant time, ‘permanent’.

22.     Ms Hawley has a problem with her ears and has recently seen an ENT specialist.  While it is thought some of her problems may emanate from her jaw, the advice is that her ear problem could only be addressed with surgery which has only a 25% prospect of success.  In that event the specialist “will not do it”.

23.     In view of this evidence of the recent consultations with the specialists and the possible connection with her jaw condition (which itself is not permanent), I do not consider this condition, at the relevant time, to be ‘permanent’.

24.     Ms Hawley said her asthma condition has been ‘under control’ for a couple of years.  She has taken bricynal and seretide as a preventer for more than 10 years.  There are periods, during winter, when she uses a nebuliser and prednisone and these stabilise her condition.  She said she frequently suffers chest infections and regularly requires antibiotics.

25.     In view of the length of time Ms Hawley has suffered the condition and her ongoing preventative treatment, the evidence may, when fully considered, support a finding that the condition is permanent.  However as her symptoms are well controlled, the condition is unlikely to attract a rating other than nil.

26.     In relation to Ms Hawley’s anxiety condition and panic attacks, she said she had been on medication for about 10 years, but had given it up 1-2 years ago, and was attempting to manage her condition by attending a counsellor every 3-4 weeks, as she has done for 3-4 years.  Her ongoing panic attacks relate mainly to the use of pubic transport, causing her to hyperventilate.  There has been some improvement since attending the counsellor.

27.     In view of the length of time Ms Hawley has suffered the condition and her ongoing treatment which may be of a maintenance nature, the evidence may, when fully considered, support a finding that the condition is permanent.  A rating of 10 is possible.

Conclusion

28. When the evidence is considered in detail Ms Hawley’s overall impairment rating is not likely to reach, at the relevant time, the 20 points or more required for eligibility to receive DSP: per section 94 of the Social Security Act 1991. Failure to meet just one of the requirements in that section results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether she would be likely to be found to have a continuing inability to work.

29.     Notwithstanding my views in respect of the short delay in bringing the application, having regard to my findings in relation to the merits of Ms Hawley’s application for review, I have decided not to grant an extension of time.  It would be futile to grant an extension of time and unfair to Centrelink to subject it to the cost of defending Ms Hawley’s application for review when her case has no merit.

30.     In coming to this view I note, especially for Ms Hawley’s benefit, that my findings that the conditions are not ‘permanent’ does not mean that they are transient, or that they are trivial.  ‘Permanent’ has the special meaning I have referred to above.  Further I note the discussion at the hearing, initiated by the advocate for Centrelink, that in view of the evidence of recent deterioration and new medical advice, Ms Hawley may consider lodging a fresh application for DSP.

DECISION

31.     The Administrative Appeals Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of the decision of the Social Security Appeals Tribunal dated 10 April 2006.

I certify that the 31 preceding paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Member:

Signed:          A. Garcia

Associate

Date of hearing  7 August 2006
Date of Decision        14 August 2006
Representative for the Applicant    Self-Represented
Advocate for the Respondent        Ms K. Crawley