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

[2021] AATA 3377

Heydenrych and Secretary, Department of Social Services (Social services second review) [2021] AATA 3377 (21 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/5187; 2021/5189

Re:Leon Heydenrych

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:21 September 2021

Place:Sydney

I do not find it is reasonable in all the circumstances to grant the applicant’s extension of time application pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – substantive matter seeks review of decision to cancel applicant’s carer payment and carer allowance – whether it is reasonable in all the circumstances to do so – extent and reason for the delay – prejudice to the respondent – whether the applicant rested on his rights – merits of the substantive matter – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975(Cth) s 29

Social Security Act 1991(Cth) ss 198, 954

CASES

Civic Tavern Pty Ltd and ACT Liquor Licencing Board (1993) 32 ALD 381

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

Grafton and Commonwealth (1988) 16 ALD 533

Heydenrych and Secretary, Department of Social Services (Social services second review) [2021] AATA 1100

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

Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

REASONS FOR DECISION

Senior Member A Poljak

21 September 2021

1. On 20 November 2019, Mr Heydenrych, the applicant, submitted an online claim for carer payment (CP) and carer allowance (CA). He stated that he was providing care and attention to Ms Sharon Chalitta (care receiver) seven days per week from 19 November 2019. On 13 December 2019, the applicant was granted CP and CA which was backdated to the date of his claim.

2. The applicant departed Australia for South Africa on 17 January 2020, to visit his sick mother. He did not advise Services Australia (Agency) of his departure. He did not have a return ticket prior to his departure. He was in receipt of CP and CA at that time.

3. On 26 January 2020, another person made a claim for care provided to the care receiver. The Agency wrote to the applicant requiring that he complete a ‘Review of Care Provided’ form (SA010) and return with it all supporting documentation by 11 February 2020. This form was not completed or returned by the applicant.

4. On 28 January 2020, the care receiver advised the Agency that another carer had commenced providing care and the applicant had ceased providing care from 10 December 2020.

5. On 4 February 2020, the Agency cancelled the applicant’s CP and CA because he was not providing constant care (for CP purposes) and personal daily care amounting to at least 20 hours per week (for CA purposes) to the care receiver.

6. The applicant requested a review on the basis that he was still providing care to the care receiver and only temporarily ceased this care to travel overseas to see his ill mother. On 20 May 2020, an Authorised Review Officer (ARO) agreed with the reasons for cancelling the applicant’s CP and CA and accordingly, affirmed both decisions under review.

7. On 10 August 2020, the Social Services and Child Support Division of this Tribunal (SSCSD), reviewed the decisions of the ARO and in two separate decisions, affirmed the cancellation of his CP and CA as well as the rejection of his claims for Newstart Allowance (NSA) and Job Seeker Payment (JSP). The applicant was still in South Africa when the matter was heard by the SSCSD.

8. On 18 August 2020, the applicant lodged an application for review, within time, to this Tribunal for review of the cancellation of his CP and CA and the rejection of his NSA and JSP claims. Following a telephone conference with the Tribunal’s Conference Registrar, the applicant submitted in writing on 22 January 2021, a withdrawal of his application in relation to the cancellation of his CP and CA. The matter proceeded in the Tribunal only regarding the rejection of his NSA and JSP claims. The matter was heard and determined on 9 April 2021; see decision of Heydenrych and Secretary, Department of Social Services (Social services second review) [2021] AATA 1100 (9 April 2021) (Heydenrych)).

9. The applicant now, once again, seeks review of the decision of the SSCSD made on 10 August 2020 regarding the cancellation of his CP and CA (substantive matter). He lodged a fresh application for review on 30 July 2021 and sought an extension of time.

10. These interlocutory proceedings concern an application for an extension of time (EOT application) with respect to the substantive matter, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The respondent opposes the extension of time sought.

    PRINCIPLES TO BE APPLIED

11. Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to paragraph 29(2)(a) of the AAT Act. The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to subsection 29(7) of the AAT Act.

12. The principles to be applied in determining an application for an extension of time are well-known.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:

    (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    (b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    (c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

    (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

    (e)the merits of the substantial application are properly to be taken into account;

    (f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.

13. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) FCA 498; 45 FCR 441. All the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.

14. The principles relevant in these interlocutory proceedings is the extent and reason for delay,  any prejudice to the respondent,  whether the applicant has “rested on his rights” allowing the decision-maker to believe that the matter was finally concluded, and the merits of the substantive matter.

    DELAY

15. In these proceedings, the applicant seeks review of the substantive matter. He is effectively requesting a review of a decision that was dismissed on 22 January 2021 to be reinstated even though he had withdrawn his application voluntarily.

16. The current request for review of the substantive matter was lodged on 30 July 2021. This is some 10 months after the allowable period for applying for review.  Alternatively, an extension of time to reinstate his application following dismissal on 22 January 2021 is just over five months late after the allowable period (of 28 days and seven days for notice). In either case, there has been a significant delay in the applicant applying for review. 

17. At hearing, the applicant said he did not proceed with the review of his CP and CA claims because he expected a better outcome from the review of the rejection of his NSA and JSP claims. Since the decision affirmed the rejection of his NSA and JSP claims (Heydenrych), he now wants to, once again, pursue a review of decisions to cancel his CP and CA. The applicant claimed that he was not financially able to pay for a copy of the transcript from the proceedings before the Tribunal from 9 April 2021, and this contributed to the delay in applying for review.

18. The applicant also claimed that he is now reapplying for review of the substantive matter as new evidence only came to light in April 2021 about why his CP and CA was cancelled. He claimed that prior to April 2021, he was unaware the care receiver advised Centrelink that he had departed Australia and that she had a new care provider. This, however, cannot be the case. It is plain on the information I have before me that the applicant would have been aware of the circumstances surrounding the cancellation of his CP and CA by at least 10 August 2020, when the SSCSD reviewed the decisions of the ARO. The decision of the SSCSD clearly articulates the reasons for decision which refers to evidence that the care receiver replaced the applicant with another care provider before he had left Australia.  The reasons of the SSCSD also state that the applicant alleged that the care receiver was not truthful to Centrelink, did not require care as claimed and was often affected by alcohol. It is plain from these reasons that the new information which the applicant now seeks to be considered in review of the substantive matter, has already been considered.

19. Additionally, the applicant claims that the delay in lodging his application was attributed to his mental health issues and that he was unable to take care of his personal and financial affairs. The applicant has provided four medical reports in these interlocutory proceedings. Dr Suman, psychiatrist, has provided three reports dated 15 July 2019, 22 November 2019 and 13 December 2019. Dr Suman reported that the applicant suffered from a mix of anxiety and depressive symptoms secondary to adjustment disorder and responded well to his current treatment. Dr Armstrong, consultant psychiatrist, stated in a report dated 22 February 2021, that the applicant participated in ongoing mental health assessment and management and meets the criteria for a diagnosis of complex trauma.

20. I do note however, that the applicant was able to travel overseas independently and self-represent himself at the Tribunal’s telephone conference in 2020 and the substantive hearing in April 2021. The applicant was able to conduct his affairs with the Agency during 2020 and 2021. This plainly shows that he was capable of managing his affairs during that time.

21. The applicant’s reasons for lodging his application out of time do not demonstrate an inability to lodge his appeal within the required timeframe. I do not accept that the applicant had a financial or medical inability to lodge a request for review prior to July 2021 noting that he was able to lodge previous applications with the Tribunal.  

22. Given the significant delay in applying for review, I do not find the reasons provided by the applicant to be an acceptable explanation for the delay. This factor weighs against the granting of an EOT.

    PREJUDICE TO THE RESPONDENT

23. Given the applicant’s failure to lodge his application for review on time following the withdrawal of his application in late January 2021 and the passage of time, the Secretary was entitled to consider the matter finalised. It is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure there is a predictable and orderly conclusion to proceedings.

24. The prejudice to the Secretary should an EOT be granted is considerable and proceeding with this application for review would be an unnecessary burden on the resources of the Commonwealth and the Tribunal.

    WHETHER THE APPLICANT “RESTED ON HIS RIGHTS”

25. The applicant had voluntarily and under no coercion decided to withdraw his application relating to the cancellation of his CP and CA payments. By withdrawing the application and with the AAT dismissing the application, he had an opportunity to seek reinstatement of his application within the required time frame but failed to do so. There is no evidence that the matter was dismissed in error. The applicant had rested on his rights not to pursue this matter further.

26. In Grafton and Commonwealth (1988) 16 ALD 533, Romeo and Secretary, Department of Social Security (1992) 26 ALD 248 and Civic Tavern Pty Ltd and ACT Liquor Licencing Board (1993) 32 ALD 381, the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision but did nothing.

    MERITS OF SUBSTANTIVE MATTER

27. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a preliminary view as to the prospects of the application for review.

28. The substantive issue is whether the applicant provided requisite care to the care receiver and whether he was qualified for CP and CA under sections 198 and 954 of the Social Security Act 1991 (Cth).

29. It appears on the available material that the applicant’s substantive matter is without merit and has no reasonable prospects of success.  While I accept that the applicant was entitled to travel overseas temporarily to visit his sick mother and claims to have had an agreement with the care receiver that he would resume caring for her upon his return from overseas, the applicant was not providing care. The Agency was informed by the care receiver following the applicant’s decision to travel to South Africa that he ceased providing care and was in fact, replaced by another care provider. In such circumstances, the applicant could not be held to have temporarily ceased providing care and accordingly, his qualification for CP and CA ceased.

30. Additionally, any agreement that the applicant claims to have had with the care receiver is questionable. It is plain from the reasons for decision of the SSCSD that his relationship with the care receiver had broken down.

    DECISION

31. For the above reasons, I do not find it is reasonable in all the circumstances to grant the applicant’s extension of time application pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

32. The EOT application is refused.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 21 September 2021

Date of interlocutory hearing:	13 September 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia