Iles and Secretary, Department of Social Services
[2014] AATA 57
•6 February 2014
[2014] AATA 57
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5682
Re
Lissa Iles
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Ms S Taglieri (Member)
Date 6 February 2014 Place Hobart The application for an extension of time is refused.
[Sgd Ms S Taglieri]
Ms S Taglieri (Member)
PRACTICE AND PROCEDURE – Extension of Time - Application for a review of decision of Social Security Appeals Tribunal – Application filed over 5 years after date of Reviewable Decision – Extension of time refused
Administrative Appeals Tribunal Act 1975,s 29(7)
Social Security Act 1991, Schedule 1B
Social Security (Administration) Act 1999, Schedule 2, 4(1)
Alderfeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633 citing with approval; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Parker v The Queen [2002] FCAFC 133, SZOC v Minister For Immigration and Citizenship [2012] FCA 9 and others
REASONS FOR INTERLOCUTORY DECISION
Ms S Taglieri (Member)
6 February 2014
INTRODUCTION:
The Applicant has sought an extension of time pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to review a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 26 June 2008 (“the Reviewable Decision”). In the Application dated 5 November 2013, the Applicant has written, “June 2008”, in response to the question “To what date are you seeking an extension of time?” That is plainly an error as her Application for Review was only received by the Tribunal, on 7 November 2013. I have treated her application, as an application for extension of time until 7 November 2013. For the reasons that appear below, the extension of time is refused.
APPLICANT’S CONTENTIONS:
The Reviewable Decision was to refuse the Applicant’s application for a Disability Support Pension (“DSP”). During the hearing of this Application on 19 December 2013, the Applicant acknowledged that she understood the DSP had been refused and the time limit for seeking review, when she received the Reviewable Decision on 26 June 2008. She stated that she had sought advice from the Legal Aid Commission of Tasmania soon after, and decided not to seek a review by this Tribunal. Her reasons for not seeking the review were said to be that:
· She was very ill and struggling to cope with hers and her youngest son’s health; and
· There was no diagnosis for her psychological illness at that time, which has since been diagnosed as Asperger’s Disorder.
The Applicant argues that despite the passage of well over five years, she should be permitted to proceed with the application she filed on 7 November 2013 to review the Reviewable Decision.
With the Tribunal’s leave, she filed two medical reports she argued were relevant to her application for extension of time. First, a report of Dr Larry Cashion dated 29 May 2012 concerning the Applicant. I believe this date contains a typographical error as the assessments said to have been undertaken with the Applicant were after this date.[1] Secondly, a medical report concerning her youngest son, dated 27 September 2013.
[1] See dates under heading “Dates of Assessment” on page 1 of report headed Psychological Report – Lissa Iles received by Tribunal on 20 December 2013
Dr Cashion’s reports evidence that he has diagnosed the Applicant and her youngest son with Asperger’s Disorder. The diagnoses are based on presentation, examination and assessment undertaken during June and August 2012. It is clear from the contents of Dr Cashion’s reports that he first saw the Applicant on 6 June 2012 and did not see her son, until 26 June 2012. It is material to note that Dr Cashion has made particular note in “bold” on his report relating to the Applicant, that the report is for the purpose of treatment and to assist access funding for treatment programmes.[2] He stated that it was not intended for use in medico-legal proceedings and should not be relied upon for that purpose.
[2] See notation in bold towards the top of page 1 of report headed Psychological Report – Lissa Iles received by Tribunal on 20 December 2013
RESPONDENT’S CONTENTIONS:
The Respondent opposes the extension of time sought by the Applicant. Detailed written submissions dated 10 December 2013 were received and oral submissions made at the hearing. In addition, because the Applicant was permitted leave to file medical reports from Dr Cashion, the Respondent was given leave to file a submission in response to those. Further submissions were received on behalf of the Respondent dated 23 December 2013. The Respondent had not received Dr Cashion’s reports prior to the hearing on 19 December 2013.
In summary, the Respondent argues that:
(a) The Applicant rested on her review rights in 2008 and further made a decision not to pursue those.
(b) That the Respondent is prejudiced by the long delay which is in the vicinity of 6 years. The prejudice claimed is that evidence is now stale, relevant witnesses may not be available and that the administrative decision maker has assumed certainty and finality to the relevant decision-making process which ended in 2008.
(c) The substantive application for review clearly lacks merit as it must be determined on evidence available during the qualifying period which is within 13 weeks of the date the Applicant applied for the DSP on 9 October 2007. There is no evidence that may establish that the Applicant met the eligibility criteria for DSP at the relevant time.
(d) Allowing the extension of time, would not do justice between the Respondent and the Applicant.
RELEVANT CONSIDERATIONS:
The principles to be applied when determining whether an extension of time should be granted, are the subject of many authorities. In Alderfeary v Secretary, Department of Education, Employment and Workplace Relations[3], McKerracher J succinctly referred to some of those authorities with approval in the context of the power to grant extension of time contained in section 29(7) of the Act[4].
[3] [2012] FCA 633
[4] Paragraphs 20 to 21 and 27 to 30
The principles can be summarised as whether:
A. there has been a satisfactory explanation for the delay;
B. the review being sought has some arguable merit;
C. there is prejudice to the Respondent in granting the extension of time;
D. justice requires the extension to be permitted.
The above principles are not necessarily mutually exclusive and may not all be of equal importance in any given application for extension of time, but if relevant must be considered and have been.
CONCLUSION:
The Applicant has offered an explanation for the delay, but I do not find it to be a satisfactory one. The reasons offered by her are stated at paragraph 2 of these reasons. The Applicant’s illness and health did not prevent her from taking legal advice, she was aware of her need to appeal within time and with legal advice and awareness about time, she made a conscious decision not to seek a review.
It is apparent from the two factors advanced as explanations for her delay, that she reconsidered the decision not to seek a review, after she received Dr Cashion’s diagnosis in 2012. It was that diagnosis that offered her a prospect (at least in her mind) of being eligible for the DSP from the date she had originally applied in 2007.
On the face of Dr Cashion’s report he did not intend it to be relied upon for litigious purposes. I am not willing to rely upon his views and diagnosis as evidence that at the relevant time the Applicant suffered Asperger’s Disorder (that is, within 13 weeks of lodging her claim for DSP in 2007, as provided schedule 2, 4(1) of the Social Security (Administration) Act 1999). It is based significantly on history given by the Applicant many years after the decision to refuse DSP, is untested, and it is not appropriate to use it for a purpose not intended by the doctor.
Further, even if I could rely on the report to do so, Dr Cashion’s opinion does not offer a basis for why such a disorder renders a person incapable of pursuing their known right to seek a review of the Reviewable Decision.
It is now necessary to consider if the Applicant has shown some possible merit in the substantive review. The Applicant has not provided evidence that would permit a finding to be made about what if any impairment points may apply if she could satisfy the Tribunal that she was suffering Asperger’s Disorder in 2007. Absent such evidence, it is impossible to meet the requirements identified by the Impairment Tables contained in Schedule 1B of the Social Security Act 1991. Dr Cashion did not assess or treat her in 2007 and his evidence does not assist. The Applicant has not shown arguable merit on the substantive issue sought to be reviewed.
The Respondent has claimed prejudice in its submissions and I have referred to them at paragraph 7(b) above. Although there is no direct evidence supporting the claimed prejudice, the matters claimed to constitute prejudice are implicit and logical consequences of such a long delay of over 5 years. I accept that there is general prejudice to the Respondent, caused by the long delay.
After considering all the above matters and evaluating them in the context of what the justice of the case requires, I conclude that the application for extension of time should be refused.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the interlocutory decision herein of Ms S Taglieri (Member) [Sgd]
Administrative Assistant
Dated: 6 February 2014
Date(s) of hearing 19 December 2013 Date final submissions received
Applicant
2 January 2014
In person
Solicitors for the Respondent
Mr B Sparkes, Program Litigation and Review Branch
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