Humphreys and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1030

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1030

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/1549   

GENERAL ADMINISTRATIVE DIVISION		)
Re		ADRIAN HUMPHREYS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date29 January 2007

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 3 August 2006.

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

Ms N Isenberg, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – application out of time – length of delay and explanation for delay – awareness of rights – merits of substantive application – extension of time not granted

Administrative Appeals Tribunal Act 1975 – section 29(7)

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

29 January 2007 Ms N. Isenberg, Senior 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.      Mr Humphreys seeks an extension of time for lodging his application for review of the Social Security Appeals Tribunal (“SSAT”) decision of 3 August 2006 in relation to his claim for disability support pension (“DSP”).

3.      An oral decision was given at the extension of time hearing on 18 December 2006.

4.      These written reasons are provided at the request of Mr Humphreys.  As some time has passed since the oral decision these reasons are not a direct reproduction of the oral decision.

CONSIDERATION

5.      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.

6.      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.

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

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

Each of these is considered in turn.

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

8.      As to delay, Mr Humphreys told me that when he received the SSAT decision (which he thought was on or about 16 June 2006, although the SSAT decision was not despatched until 11 August 2006) he had “rung up the AAT or people who deal with appeals” and “asked for paperwork”.  He said he read the letter from the SSAT regarding his appeal rights, and knew he had 28 days to appeal. 

9.      He said he did not receive the requested paperwork necessary to lodge his appeal, but did not phone the Tribunal again until November.  He said he had not followed up his initial enquiry for some months because of his various medical conditions which include:

·Fibromyalgia which causes him neck and back pain;

·Right knee pain for which he required rehabilitation at the time;

·Anxiety/depression;

·ADHD;

·Dyslexia;

·Emphysema; and

·Drug Dependency (Marijuana, for pain relief).

10.     I accept Mr Humphreys’ evidence that he contacted the Tribunal virtually immediately upon receipt of the decision of the SSAT. 

11.     The Tribunal however does not have a system whereby applicants who propose to lodge an application for review can “register” that intention, and neither should it.  Consequently, the Tribunal has no record of an application for review until the appropriate form is in fact filed.  An applicant is responsible for ensuring that he or she actually lodges an application for review within time, and Mr Humphreys did not do so.

12.     His explanation for the delay was unsatisfactory.  He had referred to taking medication as a reason for the delay.  In fact he had been taking the medication for some time.  He was undergoing rehabilitation for his knee but was not hospitalised.  He was not suddenly incapacitated, at the time the application for review was due to be filed, due to pain or urgent treatment. 

Awareness of rights

13.     Mr Humphreys did not deny receipt of the SSAT decision or that he knew after reading it that he had 28 days to appeal. 

14.     He told me of his dyslexia, but agreed that he was able to read the SSAT and the Centrelink Authorised Review Officer decisions and was aware of the time limits.  He has also brought previous applications for review and complied with the relevant time periods.

Merits of the applicant’s case

15.     I must consider if Mr Humphreys’ 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 Mr Humphreys’ 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 early June 2006

17.     The first task is to be satisfied which, if any, of Mr Humphreys’ 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.     The SSAT considered Mr Humphrey’s fibromyalgia to be a permanent condition with a rating of 15 points under the Impairment Tables.

19.     They did not consider Mr Humphrey’s right shoulder pain to be a permanent condition as, at the time, he had surgery scheduled which was likely to significantly improve the condition.

20.     Similarly they did not consider Mr Humphrey’s right knee pain to be a permanent condition as his surgery for this was too recent for the outcome to be considered stable.

21.     His anxiety/depression was seen by the SSAT to be responding well to treatment and improving and therefore not considered to be a permanent condition.

22.     The SSAT did consider Mr Humphrey’s emphysema to be a permanent condition but considered that it attracted nil points as it caused little functional impact and was well controlled with Ventolin.

23.     His ADHD was also considered to be a permanent condition but also attracted nil points as it caused minimal functional impairment.

24.     Mr Humphreys reported that since the time of the SSAT decision he now has a marijuana dependency.  He notes too that he has dyslexia, but there was no medical evidence about that condition and it had not been referred to in the treating doctor’s report provided in support of Mr Humphreys’ claim for DSP.

Conclusion

25. When the evidence is considered in detail Mr Humphreys’ 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 he would be likely to be found to have a continuing inability to work: per section 94(1)(c)(i) of the Social Security Act 1991.

26.     Although the delay in lodging the application for review may have been relatively short, having regard to my findings in relation to the merits of Mr Humphreys’ application for review, I have decided not to grant an extension of time.  It would be futile to grant an extension of time and there would also be a degree of prejudice to Centrelink who would have to meet the cost of defending Mr Humphreys’ application for review when his case has no merit.

27.     In coming to this view I note, especially for Mr Humphreys’ benefit, that my findings that some of his 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.  I also note that Mr Humphreys has referred to new conditions, not considered at the time of his claim for disability support pension.  Although it is entirely a matter for him, Mr Humphreys may consider lodging a fresh application for DSP.

DECISION

28.     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 SSAT dated 3 August 2006.

I certify that the 28 preceding paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Senior Member:

Signed: ............[Emily Gadsby].......................
  Associate

Date of Hearing  18 December 2006             
Date of Decision       29 January 2007
Representative for the Applicant    Mr A Humphreys, Self-Represented
Solicitor for the Respondent          Mr K Bullock of Centrelink Legal Services