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

[2020] AATA 135

Hompot and Secretary, Department of Social Services (Social services second review) [2020] AATA 135 (7 February 2020)

Division:GENERAL DIVISION 

File Number:            2019/8568

Re: Michael Hompot

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West  

Date:7 February 2020  

Place:Melbourne

The application to extend time under s.29(7) of the AAT Act is refused.

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

Member

PRACTICE AND PROCEDURE – application for extension of time for review – appeal from Social Services & Child Support Division – extent of the delay – reasons for the delay – prejudice to parties – public interest – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Member West

7 February 2020

1. This matter concerns an application for an extension of time for lodging an application for review of a decision made by the Social Services & Child Support Division of this Tribunal (AAT 1) dated 12 July 2019 to affirm the decision of the Respondent to reject the Applicant’s claim for a Disability Support Pension (DSP).

2. The application for review of the AAT 1 decision was lodged on 20 December 2019.

3. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) stipulates that an application for review must be lodged within the period commencing on the date of the decision to be reviewed and ending on the date 28 days after the date upon which the Applicant is notified of the decision.  Subsection 29(7) confers a discretion onto the Tribunal to extend the time for lodging an application if it is satisfied that it is reasonable to grant an extension having regard to all of the circumstances of the matter.

4. The AAT 1 Decision was notified to the Applicant by email on 19 July 2019.  The prescribed time for lodgement therefore ended on 16 August 2019 and the application for review was lodged over four months out of time.

5. A hearing was conducted by telephone on 31 January 2020 to consider the extension of time application.  The Applicant was self-represented.  The Respondent was represented by Ms Inglis, a solicitor from the Department of Human Services.  The Respondent filed a detailed written submission in support of its position that the extension of time should not be granted.

6. In considering whether to grant an extension of time the Tribunal has had regard to the following factors:

   a.the extent of the delay in lodgement;

   b.the reasons for the delay;

   c.the prejudice to the Applicant in not granting an extension;

   d.the prejudice to the Respondent in allowing the application to be lodged out of time; and

   e.the public interest.

7. The Tribunal finds that the notification of the AAT 1 Decision was given to the Applicant, by email, on 19 July 2019.  Accordingly the delay in this case is a significant delay of some four months.  Bearing in mind that the review process is required to assess the Applicant’s impairments retrospectively as at the relevant qualification period,[1] any delay has the potential to adversely affect the Tribunal’s assessment of the relevant facts.

   [1] The period from the date of the Applicant’s claim for the DSP and for 13 weeks thereafter, being the period from 26 August 2016 to 26 November 2016.

8. The Applicant explained that his failure to lodge his application for review within the prescribed time limits was due to him not having seen the email notifying him of the AAT 1 Decision.  He said that he suspected that the email had gone straight to his ‘junk box’ and had been automatically deleted.  He said that at the time he did not check his junk box.  He said that he first became aware of the AAT 1 Decision when he made inquiries at the Registry in December 2019, having been prompted to inquire when he was contacted by his Centrelink provider. 

9. While the Tribunal accepts the Applicant’s explanation for being unaware of the decision until he contacted the Registry in December 2019, it is not satisfied that this excuse provides an acceptable explanation for the late lodgement.  The Applicant had nominated his email address as the preferred means of communication for the Registry.  It was the Applicant’s responsibility to ensure that this form of communication was effective.  He admitted that he had not taken any steps to ensure that emails from the Registry would be effectively communicated to him.  It is akin to a person nominating a post box as a mailing address and then neglecting to check the contents of the post box.

10. The Tribunal accepts that the Applicant is prejudiced if the extension of time is not granted as he would be denied an opportunity to have the AAT 1 Decision reviewed. However, this would not preclude the Applicant from lodging a further DSP claim in relation to his claimed impairments. In addition, the Tribunal is not persuaded that the Applicant has a strong case on review. The AAT 1 Decision assessed the Applicant’s impairments during the qualification period, being a lower limb condition, an upper limb condition and depression. The conclusion of AAT 1 in relation to the medical evidence regarding the Applicant’s depression was that it was not fully diagnosed, fully treated or fully stabilised during the qualification period. At the hearing of this application the Applicant accepted that his depression had not been diagnosed by a psychiatrist or a clinical psychologist. Table 5 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) stipulates that a mental health condition must be diagnosed by an appropriately qualified medical practitioner (psychiatrist or clinical psychologist) before it can be assessed under the Tables. The conclusion of AAT 1 in relation to the medical evidence regarding the Applicant’s upper and lower limb conditions was that neither condition was fully diagnosed, fully treated or fully stabilised during the qualification period. In addition it concluded that even if the Impairment Tables were applied the Applicant’s upper limb function would not result in a rating of the required 20 points under s.94(1)(b) of the Social Security Act 1991. 

11. The Tribunal accepts that there is some prejudice to the Respondent in extending time to allow the Applicant’s review application to proceed.  The issues on review would be confined to the Applicant’s condition during the qualification period, now over three years ago.  The difficulty of objectively assessing the Applicant’s condition retrospectively after such a delay is clear.  The Applicant’s delay in lodging his application by over four months has added to this difficulty and prejudiced the Respondent’s case.

12. Finally, it is well recognised that there is a public interest in requiring parties to administrative proceedings to abide by statutory time limits. The time limits set out in s.29(2) are designed to assist in giving effect to the Tribunal’s objectives as stated in s.2A of the AAT Act. The efficient functioning of the Tribunal, and the proper administration of government, are clearly advantaged by adherence to the rules. Prima facie an application made outside the rules should not be entertained unless the Tribunal can be satisfied that it is reasonable in all the circumstances to do so.

13. Having regard to all of these considerations the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time for making the Applicant’s application for review.

14. The application to extend time under s.29(7) of the AAT Act is refused.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

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Associate

Dated: 7 February 2020

Date of hearing:

31 January 2020

Applicant:

By phone

Solicitors for the Respondent:

Department of Human Services

Ms Charlie Inglis