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

[2021] AATA 2453

Hosking and Secretary, Department of Social Services (Social services second review) [2021] AATA 2453 (22 July 2021)

Division:GENERAL DIVISION

File Number:          2021/2836

Re:David Hosking

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Colin Huntly, Member

Date:22 July 2021

Place:Perth

The application for an extension of time, to lodge an application for review of the AAT1 decision, is refused.

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Dr Colin Huntly, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – length of delay – awareness of appeal rights – explanation for delay – prejudice to Respondent or the general public – merits of substantive application – alternative avenues of relief – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 2A(b), 29(2), 29(7)

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

CASES

Brown v Commissioner of Taxation [1999] FCA 563

Comcare Australia v Donald J Grimes and Maxene Lydia Thompson (1994) 33 ALD 548
Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Kim and Minister for Immigration and Border Protection [2018] AATA 155

Lucic v Nolan and Others (1982) 45 ALR 411

Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76

Re Johnson and Commonwealth of Australia [1990] AAT 1

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371

SECONDARY MATERIALS

Macquarie Dictionary (online at 12 July 2021) ‘sufficient’ (def 1)

REASONS FOR DECISION

Dr Colin Huntly, Member

22 July 2021

THE APPLICATION

1. Mr Hosking (the Applicant) applied to Services Australia (Centrelink) (the Respondent) for a Disability Support Pension (DSP).[1]  His application was rejected (Original Decision).[2] 

   [1]           28 January 2020.

   [2]           17 March 2020.

2. The Applicant asked the Respondent to review its Original Decision.  The review request was allocated to an Authorised Review Officer (ARO).  The ARO affirmed the Original Decision (ARO decision).[3]

   [3]           12 June 2020.

3. The Applicant applied to the Social Services and Child Support Division of the Tribunal (AAT1) for an independent review of the ARO decision.[4]  The presiding member hearing the Applicant’s AAT1 review affirmed the ARO decision (AAT1 decision).[5]

   [4]           6 November 2020.

   [5]           17 February 2021

4. As discussed below, the Applicant was notified of the AAT1 decision on 26 February 2021 and the prescribed period within which the Applicant was required to lodge an Application for Review of the AAT1 decision ended 28 days later (26 March 2021).

5. On 5 May 2021 the Applicant lodged an “Application for Extension of Time” with the General Division of the Administrative Appeals Tribunal (the Tribunal), seeking a review of the AAT1 decision (EOT application).  The Applicant’s EOT application was 40 days out of time.

6. The Applicant’s EOT application asks the Tribunal to allow his application for a review of the AAT1 decision, notwithstanding that it was submitted outside the prescribed period.

7. The Applicant further seeks a prospective extension of time until 31 October 2021 (application for additional time).

   BACKGROUND

8. In his 5 May 2021 EOT application, the Applicant stated, relevantly, that he “didn’t receive [the AAT1 decision] email it went to my Junk folder.”  He also made his application for additional time “as I was unaware [Centrelink] needed a specialist to confirm my serious anxiety problems and my extremely severe head injuries…”.

9. The Respondent lodged a ‘Notice of Opposing Application for Extension of Time’ in response to the EOT application and the application for additional time on 19 May 2021.

10. The Tribunal gave written directions in this application on 19 May 2021 (the Directions).  The Directions required the Respondent to file its written submissions and any other relevant materials by 2 June 2021, with a copy to be served on the Applicant.  The Applicant was required to file his written submissions and relevant materials by 16 June 2021, with a copy to be served on the Respondent.

11. On 1 June 2021, the Respondent filed and served its written submissions and relevant materials as per the Directions.

12. No submissions or materials were filed or served by the Applicant by the date fixed by the Directions.

    THE ISSUE

13. The Applicant seeks an extension of time to lodge an application for review of the AAT1 decision.

14. The issue for determination by the Tribunal is whether it is reasonable in all of the circumstances to use its discretion to grant the Applicant an extension of time, under s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

15. The Respondent opposes the application for an extension of time.

    THE HEARING AND THE EVIDENCE

16. This application was heard by teleconference on 12 July 2021. The Applicant was self-represented, and the Respondent was represented by Ms A Joseph of Services Australia.

17. In addition to the evidence and submissions received at the interlocutory hearing on 12 July 2021, the following materials were admitted into evidence at the hearing:

    (a)Applicant’s Application for Extension of Timed dated 3 May 2021 (filed 5 May 2021) (Exhibit A1);

    (b)Applicant’s Application for Second Review dated 3 May 2021 (filed 5 May 2021) (Exhibit A2);

    (c)Applicant’s AAT1 Decision Notification Letter dated 26 February 2021 which includes AAT1 Decision dated 17 February 2021 (filed 5 May 2021) (Exhibit A3);

    (d)Respondent’s Outline of Submissions dated 1 June 2021 (filed 1 June 2021) (Exhibit R1), including;

    (i)Annexure A – Report by Dr Kalani dated 12 December 2018 (Exhibit R2),

    (ii)Annexure B – Report by Dr Date dated 9 January 2020 (Exhibit R3);

    (iii)Annexure C – Report fragment by unknown GP dated 9 October 2018 (Exhibit R4); and,

    (e)Respondent’s Notice of Opposing Application for Extension of Time (filed 1 June 2021) (Exhibit R5);

18. During the hearing the Applicant was a reliable personal historian, was engaged and gave straightforward evidence; however, throughout the hearing he demonstrated a degree of vagueness and emotional lability, which aligned with the diagnostic information contained within exhibits (R2), (R3) and (R4).

    LEGISLATIVE FRAMEWORK

19. Under s 29(2) of the AAT Act, an application for review must be lodged within 28 days of the Applicant receiving notice of the decision. However, s 29(7) of the AAT Act permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal … if the AAT is satisfied that it is reasonable in all the circumstances to do so”.

20. As explained by the Federal Court in Comcare Australia v Donald J Grimes and Maxene Lydia Thompson (1994) 33 ALD 548 at [55], per Wilcox J:

    Section 29(7) of the Administrative Appeals Tribunal Act does not confer an entitlement on anyone. It merely enables the AAT, in its discretion, to extend time for the making of an application for review. The subsection does not indicate the matters that an applicant must establish in order to obtain an extension; this matter is left to the Tribunal.

21. A frequently cited authority is Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Hunter Valley, Wilcox J set out principles (that were intended to be non-exhaustive guidelines) which may be relevant when considering whether to grant an extension of time.

22. These principles are substantially similar to those applied in subsequent decisions concerning s 29(2) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at 314, where President O’Connor J applied the following principles summarised by Deputy President Todd in Re Johnson and Commonwealth of Australia [1990] AAT 1 at [19]:

    (a)Prima facie proceedings commenced outside the prescribed period will not be entertained.  An extension of time will be granted, however, if it is proper to do so.

    (b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)The merits of the substantial application are relevant.

    (f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

23. Some flexibility is permitted in applying these principles. The facts and circumstances of a particular case may warrant particular attention being given to one or more of the guiding principles over others, some of which may be relevant or not relevant at all.[6]

    [6] See, for example, Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371, 376 [13].

    CONSIDERATIONS

24. In determining whether an extension of time should be granted, relevant factors the Tribunal will consider include:

    ·the length of the delay;

    ·the explanation of the delay and whether that explanation is satisfactory;

    ·whether the Applicant was aware of his appeal rights and whether he rested on those rights;

    ·any prejudice to the Respondent or the general public arising from an extension of time;

    ·the merits of the substantive application; and

    ·alternative avenues of relief.

    Length of delay

25. The length of any delay in question will be a relevant consideration. The “brevity of the extension sought does not, however, lead automatically to an order extending the time …” (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269, [16]).

26. It is contended by the Respondent, and accepted by the Applicant, that the Applicant was notified of the AAT1 decision by email sent on 26 February 2021. It is accepted by the parties that the prescribed period within which the Applicant was required to lodge his EOT application ended 28 days later, namely 26 March 2021. It is agreed by the parties that the Applicant lodged his EOT application on 5 May 2021. 

27. The Respondent’s written submission dated 1 June 2021 (R1) stated, at para [19], that the EOT application was “68 days out of time”.  At the hearing, the Respondent amended this submission to read “40 days out of time”, which accords more readily with the relevant dates discussed above. The Respondent submitted that a delay of 40 days is significant in all the circumstances. Having regard to the Macquarie Dictionary definition of the term “significant”, this source suggests that it connotes “important, of consequence”. However, this submission merely restates the operating principle, referred to above at para [22] that “Prima facie proceedings commenced outside the prescribed period will not be entertained.”

28. The Applicant made no submissions directly to the point of the significance of his delay in lodging the EOT application. The Applicant’s evidence (as discussed below) is that he acted promptly to seek an extension of time, once he realised the AAT1 decision had been made. This consideration weighs slightly in favour of granting the EOT application.

    Explanation for the delay and awareness of appeal rights

29. It is to be expected that an Applicant for an extension of time would normally provide an acceptable explanation for the delay (Comcare v A’Hearn (1993) 45 FCR 441, 444).

30. Where an applicant has an acceptable explanation for the delay, this may be relevant, but ‘… there is no rule that such an explanation is an essential precondition’ to the success of the application for an extension of time (Comcare v A’Hearn (1993) 45 FCR 441 at [15]).

31. The AAT1 decision was sent to the Applicant by email on 26 February 2021.  In his EOT applicant, the Applicant stated that he “didn’t receive [the AAT1 decision] email it went to my Junk folder.”  The Applicant confirmed this evidence at the hearing.  He also confirmed at the hearing that he had provided his email address as his preferred method of communication with the Tribunal on each occasion. The Applicant had no recollection of when precisely he contacted the Tribunal to find out about his AAT1 application (Transcript/10). 

32. However, during this telephone conversation the Applicant was told that a decision had been made and the Tribunal had notified him. The Applicant stated that he was being “harassed by [Centrelink]” at the time and may have been confused. 

    
    

    At some point, following the telephone call, the Applicant then found the AAT1 decision notification email in his email junk folder.  He stated that he promptly lodged his EOT application (Transcript/8–9). 

33. The Applicant was unable to confirm the dates on which the foregoing events occurred; however, it is noted that although his EOT application is dated 3 May 2021, it was not lodged until 5 May 2021. This, together with the Applicant’s request for additional time until 31 October 2021 “as I was unaware [Centrelink] needed a specialist to confirm my serious anxiety problems and my extremely severe head injuries”, suggests that he may not fully appreciate the nature of the present EOT application.

34. The Respondent contends that the Applicant was notified of the AAT1 decision on 26 February 2021.  The decision was accessible to him from that date, even if his email provider sorted the email into a folder he would not have expected. The Respondent’s submissions at the hearing were to the effect that the Applicant’s prospective extension of time request confuses the EOT application with the Applicant’s substantive review application. This point is echoed in the Respondent’s written submissions.

35. At the hearing, the Respondent repeated their contention that the Applicant’s explanation for his delay in lodging his EOT application is insufficient. In the view of the Respondent, the AAT1 decision was accessible to the Applicant and the onus was on him to check and manage his email inbox.

36. The Applicant has presented a plausible and rational explanation for his delay in lodging an EOT application in response to the AAT1 decision, namely, his email system misfiled an important notification in a folder designed to winnow out automatically generated electronic detritus referred to colloquially as “Junk”. Accepting his sworn evidence in its terms, there must have been some feature(s) of the computer-generated Tribunal notification letter which triggered his email filtering algorithm against his personal interests.  This explanation appears to be entirely satisfactory, or “sufficient” to use the Respondent’s term, to explain the nature of the communication problem. 

37. Weighed against this, however, is the fact that the Applicant accepts that the Tribunal notified him using the communication methodology that he himself had nominated. There is also the brief delay between when the Applicant signed and dated his EOT application and when it was lodged.  This leaves open the possibility that the Applicant rested on his rights, after learning that he was already past his 28-day deadline for making an EOT application.

38. It is also of significance that the Applicant previously requested an internal review with Centrelink, followed by the AAT1 review.  This demonstrates an awareness of, and compliance with, relevant applicable appeal rights and time frames on the part of the Applicant.

39. On balance, these considerations weigh slightly against granting the EOT application.

    Prejudice to the Respondent or the general public arising from an extension of time

40. The Respondent submits that it would not suffer prejudice if an extension of time were to be granted, save the cost of defending an application for which the Applicant has limited prospects of success (R1/28).  Nothing in the legislation suggests to the Tribunal that this is a relevant consideration when weighing this genus of public interest consideration.

41. The Tribunal observes that the absence of prejudice is not itself sufficient to justify the granting of an extension (see Lucic v Nolan and Others (1982) 45 ALR 411 at 416-7).

42. An objective of the Tribunal is to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ (s 2A(b) of the AAT Act). In this instance, the Applicant’s delay in applying for review is significant but not, perhaps, what might be termed extreme in all the circumstances and there is no significant prejudice that the Respondent would suffer by the granting of an EOT application. However, the Tribunal does note that there is a genuine public interest in time limits applying to administrative review proceedings and that uncertainty about the status of relevant prescribed periods may cause prejudice to the general public.

43. This consideration weighs against granting the EOT application.

    Merits of the substantive application or prospects of success

44. As noted above, when deciding whether to grant an extension of time to an applicant, the Tribunal may consider the merits of the applicant’s substantive application. The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76) but, rather, should assess whether the applicant has an “arguable case” (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).

45. As indicated above at para [7], the Applicant has applied for additional time until 31 October 2021 “as [the Applicant] was unaware Centrelink needed a specialist to confirm [his] serious anxiety problems and [his] extremely severe head injuries”.  It is also noted that the Applicant’s ‘Application for Second Review’ form (which was lodged with the Tribunal contemporaneously with the Applicant’s EOT application (A2) states:

    I Don’t think I was totally aware of the exact information [Centrelink] Required from me im not putting Any Blame on anyone I Just need more time as I have been now referred to my old neurologist for An examination of issues and at a later Date I can ask for the appropriat [sic] letter of confirmation of my health.

    (Original spelling retained.)

46. At the hearing, the Applicant indicated that he was frustrated at the delays and complications he had experienced and the lack of continuity of care made available to him in the public health system.  He has been unable to establish an ongoing relationship with a treating psychiatrist and he has discovered that his former neurologist, to whom he had been referred, was no longer practicing.  This suggests that the Applicant’s therapeutic journey has not stabilised and that some or all of his treatment needs are still yet to be fully assessed at the date of the hearing.

47. The Respondent (relying on Exhibits R2, R3 and R4) contends that the Applicant’s impairment of mixed anxiety and depressive disorder is not capable of being rated under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth). This is because the impairment was not fully diagnosed, treated and stabilised as at the qualification period. In the alternative, the Respondent contends that the Applicant’s impairment could not attract 20 points under Table 5 – Mental Health Function (Table 5).  This was put to the Applicant at the hearing (Transcript/16).

1. The medical report from Dr Koorush Kalani (Trainee Psychiatrist at Rockingham Mental Health Services) [7] (Dr Kalani) dated 12 December 2018 (R2) indicates a diagnosis of mixed anxiety and depressive disorder with comorbid epilepsy, on the background of cluster C personality traits.  Dr Kalani recommended continued pharmacological management and supporting therapeutic interventions, including clinical psychologist and related therapies, but notes the Applicant had not yet contacted a psychologist.  Dr Kalani also recommended the Applicant see a neurologist or neurology clinical nurse regarding his fears of having a seizure in public.

   [7]Respondent (R2) Annexure A - Report by Dr Kalani 12 December 2018.  This information is consistent with that contained in Respondent (R4) Annexure C - Report fragment by unknown GP 9 October 2018

2. The report from Dr Ron Date (General Practitioner) [8] (Dr Date) dated 9 January 2020 (R3) confirms the Applicant’s continued compliance with pharmacological management.  It also states that the Applicant was “still seeing a psychologist periodically”.  There is no supporting information on which to assess the nature of this therapeutic support. The Respondent submits that this evidence suggests that the Applicant’s condition cannot be considered to be fully treated and stabilised in the relevant sense. These submissions were put to the Applicant at the hearing (Transcript/15–16).

   [8]Respondent (R3) Annexure B - Report by Dr Date 9 January 2020.

3. The Respondent further contended that the lack of evidence regarding the functional impact of Applicant’s impairment leading up to and during the qualification period precludes a finding of 20 points under Table 5.  The Respondent acknowledges the more recent report of Dr Date, who indicates the Applicant’s mental health condition ‘makes it virtually impossible to function in the workplace and in fact any type of interpersonal interaction’ and that the Applicant lives with his parents. However, the Respondent contends there is insufficient evidence regarding the other criteria in Table 5 to attract the 20 points required to support the requisite finding in the Applicant’s circumstances.

   Epilepsy

4. The Respondent accepts that the Applicant’s epilepsy is fully diagnosed, treated and stabilised but submits that it cannot attract the requisite 20 points under Table 15 – Functions of Consciousness. To do so, the impairment would be such that the Applicant would lose consciousness at least once every month.  While the significant impact on the Applicant’s functioning is demonstrated in the available material, the Respondent submits that the available evidence indicates that the Applicant’s impairment does not meet the relevant threshold. The Respondent specifically references:

   (a)Dr Kalani’s report of 12 December 2018 (R2) which refers to a diagnosis of epilepsy which resulted in hospital admissions in June and July of 2018.  The letter states the Applicant had reported no further seizures since that time (a period of four or five months).

   (b)The medical report fragment, dated 9 October 2018 (R4), stating that prior to the Applicant’s hospital admissions in June and July of 2018, he had been seizure free for many years and compliant with his medication.

   (c)Dr Date’s letter dated 9 January 2020 (R3) does not reference any further seizures since June and July of 2018.

5. These submissions were put to the Applicant at the hearing.  The Applicant did not question these submissions.

6. This assessment of the merits of the Applicant’s arguable case for his DSP application weighs against granting the Applicant’s EOT application.

   Alternative avenues of relief

7. The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application (see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at [18] and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [48]).

8. The Respondent concedes that a refusal of the EOT application would have the effect of denying the Applicant’s DSP application.  However, the Applicant is entitled to make a fresh application for DSP once he can demonstrate the relevant thresholds. 

9. These considerations weigh against granting the applicant’s EOT application.

   CONCLUSION

10. The Tribunal has considered the foregoing material and is not satisfied that it is reasonable in all of the circumstances to grant the Applicant the Applicant’s EOT application, because:

    (a)The Applicant did not act promptly to seek an extension of time once he realised the AAT1 decision had been made;

    (b)The Applicant has not provided a reasonable explanation for his delay in seeking an extension of time in circumstances where it was reasonable for him to be alive to the significance and effect of a prescribed period for lodging an extension of time application;

    (c)A genuine public interest in time limits applying to administrative review proceedings and in having certainty about the status of relevant prescribed periods is not outweighed by the circumstances of this application;

    (d)The merits of the Applicant’s arguable case for his DSP application is not favourable to the granting of the Applicant’s EOT application.

    DECISION

11. The application for an extension of time, to lodge an application for review of the AAT1 decision, is refused

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Dr Colin Huntly

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Associate

Dated: 22 July 2021

Date of hearing:	12 July 2021
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms A Joseph, Services Australia