Iqbal and Secretary, Department of Social Services (Social services second review) - [2023] AATA 3062

Iqbal and Secretary, Department of Social Services (Social services second review) [2023] AATA 3062 (27 September 2023)
Division:GENERAL DIVISION
File Number:2023/3872
Re:Mohammed Iqbal
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:27 September 2023
Place:Brisbane

The application for an extension of time is refused.
..........................[SGD].......................
Member D Mitchell

CATCHWORDS
EXTENSION OF TIME - Application for Review of Decision filed out of time – Application for Extension of Time considered – Extension of Time Refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration Act) 1999 (Cth)
CASES
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
DHKC and Secretary, Department of Social Services [2022] AATA 4664
Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049
Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415
Quagliato and Secretary, Department of Social Services [2022] AATA 4434
Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451
REASONS FOR DECISION
Member D Mitchell
27 September 2023
INTRODUCTION

On 2 June 2023, Mr Mohammed Iqbal (the Applicant) made an application to the Tribunal seeking a second-tier review of a decision made by the Social Security Appeals Tribunal (SSAT) on 5 December 2012.
On 5 June 2023, the Applicant made a further application seeking an extension of time for making an application for review of that decision.
The decision the Applicant sought to have reviewed affirmed the Respondent’s decision, finding that:
(a)The Applicant was not qualified for a compensation affected payment at the time of his workplace injury, on 7 October 2010 and as such his periodic compensation payments were to be assessed at a rate of dollar for dollar and not as ordinary income.
(b)
The cancellation of the Applicant’s social security payments take effect from

26 May 2012 being the first date of the periodic payment period to which the periodic compensation arrears relate.
On 19 July 2023, the Respondent filed a submission not opposing the Applicant’s extension of time application.
A telephone interlocutory hearing was conducted on 24 July 2023 to consider the application at which time the Respondent advised that it had not opposed the application as it had not been able to fully consider the matter. The Applicant made submissions as to why his extension of time application should be allowed.
The Tribunal adjourned the interlocutory hearing to allow the parties to provide further submissions.
On 14 August 2023, the Respondent filed a submission opposing the Applicant’s extension of time application.
The Applicant made several submissions via email in relation to his request for an extension of time. Those submissions were of assistance to the Tribunal. They provided context and a clear outline of the Applicant’s contentions.
A resumed telephone interlocutory hearing was conducted on 4 September 2023. The Applicant and Respondent provided further oral submissions.
The issue before the Tribunal is whether the Applicant should be granted an extension of time to make his application for review in relation to the decision of the SSAT.
BACKGROUND
On 7 October 2010, the Applicant ceased working for Hotel Operations Pty Ltd as a room attendant. He was deemed to have suffered a workplace injury on 7 October 2010.
On 12 October 2010, the Applicant lodged claims for Newstart Allowance (NSA) and the Disability Support Pension (DSP).
The Applicant was granted NSA from 8 October 2010 on the basis that his claim for the DSP was being determined.
The Applicant was granted the DSP from 25 June 2012.
On 11 July 2012, the Applicant claimed compensation payments for the workplace injury which occurred on 7 October 2010. On 26 July 2012 QBE Workers Compensation authorised the Applicant’s employer to pay him weekly compensation payments of $399.00 a week for a maximum of 26 weeks from 26 May 2012.
On 16 August 2012, an officer of the Respondent decided to cancel the Applicant’s DSP due to his combined annual income which was above the allowable limit for DSP.
On 20 August 2012, the Applicant requested an internal review of that decision as he did not agree with the compensation payments affecting his DSP payments by direct deduction. He contended that the concessional method of treating the payments as ordinary earned income should be used.
On 18 September 2012, the authorised review officer (ARO) found that the Applicant was not in receipt of a social security payment at the time of his injury. The Applicant’s rate of DSP payments was $545.10 per fortnight at the time he was paid weekly compensation payments of $399.00 a week. The ARO stated that compensation payments are assessed as dollar for dollar deductions against a social security payment where the person was not receiving compensation affected payments such as NSA, prior to or on the date of the injury.
The ARO decided that section 17(2) of the Social Security Act1991 (Cth) (the Act) applied in the Applicant’s case as he was not in receipt of NSA at the time of his injury and thus his weekly compensation payments of $399.00 a week are assessed as a dollar for dollar deduction against his DSP. As the Applicant’s compensation amount exceeded the allowable rate of the DSP, the ARO decided that the cancellation of his DSP was correct due to his income from periodic compensation payments being over the allowable limit.
On 11 October 2012, the Applicant sought review of that decision by the SSAT.
On 5 December 2012, the SSAT affirmed the decision of the ARO.
The Applicant did not at that time seek review of the SSAT’s decision.
The Applicant was granted the DSP again from 22 September 2012 after his periodic payments had ceased on 21 September 2012.
On 24 February 2021, the Workers Compensation Commission issued a certificate of determination that the Applicant sustained an injury as a result of his employment with a deemed date of injury as 7 October 2010.
On 10 February 2023, the Workers Compensation Commission issued a certificate of determination that as a result of the injury the Applicant was partially incapacitated for work from 7 October 2010 to 10 April 2012 and was totally incapacitated for work from
11 April 2012 to date and continuing.
The Workers Compensation Commission ordered the payment of weekly compensation from 7 October 2010.
The Respondent was notified of the Workers Compensation Commission determination and on 3 April 2023 raised a charge of $228,891.78 against the Applicant on the basis that the periodic compensation payments that were payable to the Applicant were to be assessed on a dollar per dollar reduction basis against the NSA and DSP paid to him from
8 October 2010.
The Applicant requested review of that decision by the Respondent. On 25 May 2023, an ARO advised the Applicant that:
Services Australia does not have the legal authority to undertake a formal review of the decision. This is because on 5 December 2012, the decision to assess your periodic compensation payments as a dollar for dollar deduction (instead of as ordinary income) was already reviewed by the Administrative Appeals Tribunal (AAT).
You may wish to contact the AAT on 1800 228 333 about this decision.
On 2 June 2023 and 5 June 2023, the Applicant made applications for review of the decision of the SSAT and an extension of time to make such an application to the General Division of the Tribunal.
REASONS FOR DECISION
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) outlines that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal if it is satisfied that it is reasonable in all the circumstances to do so.
The Federal Court in Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 set out a series of factors that may be relevant in considering whether an extension of time should be granted. Those factors have widely been accepted by both the Federal Court and Tribunal.
Consequently, the Tribunal considers that the relevant factors to be taken into consideration in the present matter include the length of delay, awareness of appeal rights and explanation for the delay, prospect for success, prejudice and alternative avenues of relief. In determining whether to grant an extension of time, the Tribunal must weigh together all relevant factors.[1]
Length of Delay
[1] Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451.
In relation to the length of delay, the SSAT decision was emailed and posted to the Applicant on 13 December 2012.
As the decision was served by email, the Applicant is taken to have received it on the day the email was sent, meaning that an application for review should have been made by

10 January 2013, being within 28 days of 13 December 2012.
The Applicant lodge his application for review of the SSAT decision with the Tribunal on

2 June 2023.
Consequently, the application for review of the SSAT decision is approximately 10 and a half years out of time.
In his application for an extension of time to lodge an application for review the Applicant provided:
I came to know about this decision with Authorised review officer (ARO) of centrelink informed me about this in her letter of 25 May 2023. On 05/06/2023, I got a copy of the decision from the Administrative Appeals Tribunal. …
At the telephone interlocutory hearing, the Applicant agreed that he did receive the SSAT’s decision in December 2012 however he thought that it only related to the payments he received in 2012, he said that due to chronic pain he was not in a good condition to read it properly.
The Respondent contended that the delay is significant and drew the Tribunal’s attention to the decision of Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049 (Hicks), where Deputy President Forgie stated:[2]
Even if my fears are ungrounded and the merits of Mr Hicks’ case for review were strong, I would refuse to extend the time in this case. The decision he seeks to overturn was made almost four years ago in 2004. He reached an agreement with the Secretary to settle the matter a year or so later and so some three years ago. Until he lodged an application in the Tribunal in July 2008, the Secretary and, through him, Centrelink, had spent two and a half years thinking that the matter was at an end. It was clearly not at an end for Mr Hicks but two and a half years is a long time for everyone else to think that something is at an end. Memories fade because there is no need to keep events in mind. As a consequence, it becomes more difficult to track potential witnesses. Those difficulties are not just difficulties for the Secretary. They are real difficulties for the Tribunal which must consider evidence that may be less reliable than it would have been had it been gathered closer to the event.
[2] Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049 [83].
The Respondent contended that the delay in this matter of over ten years significantly exceeds the delay considered by the Tribunal in Hicks where the Tribunal noted it would still not exercise the discretion to extend the time even if it thought the Applicant’s case for review was strong. Accordingly, the Respondent contended that the significant delay in this matter does not support the granting of an extension of time.
The Tribunal considers the delay in this matter to be a substantial delay, which weighs against the granting of an extension of time.
Explanation for delay and awareness of appeal rights
The Tribunal observes that Parliament has provided in legislation a 28 day time limit to indicate the need for finality in decision‑making.
The Applicant indicated in his application for an extension of time that the reason he was seeking an extension of time to make his application for review was as follows:
As I came to know about the decision and it’s impact only in recent time (25/05/2023) and got the copy of the decision only in recent tine (02/06/2023), I are request you to extend the tie for appeal for 28 days from 02/06/2023. (sic)
The Applicant’s written submission dated 14 August 2023 (of which his oral submissions at the telephone interlocutory hearing were consistent) outline the reason for the 10 and a half year delay in making an appeal as follows:
*The decision of 2012 is affecting my lump sum payment of past wages in recent times. Due to that decision Centrelink deducted dollar for dollar from my recent lump sum payment of past wages. Page 6 & 7. If a decision of AAT can affect my recent payments in recent time, why can't I appeal against that decision in recent time.
*I thought the decision of 2012 was only for those WC payments that I received in 2012 before the decline of my WC claim in September 2012. Page 120.
*My claim for workcover was declined in September 2012 (page 120) which was before the decision of AAT of 2012 (5 December) and I was not sure if I would get any compensation money at all. I was put back again to DSP before the time of that decision. This was an important reason for which I did not feel that I should appeal at that time.
*I was not in good health to read through the decision in detail at that time. I had chronic severe pain even in resting condition (which was significantly relieved later by the fusion surgery of 2016). Page 52. So, I did not appeal against that decision.
*I was not aware that the decision would affect my all future WC payment. When I found that the decision of 2012 is affecting my current lump sum payment of past wages (after getting letter from ARO. Page 6 & 7) then I read the decision in detail (the copy of the decision of 2012 that I received recently via email-page 114) and found errors in not determining my eligibility for NSA on
7 October 2010 or before. So, I appealed against the decision recently.
*Considering the above responses of mine, please either review the decision of 5 December 2012 of AAT by extending time or declare the decision of 5 December of 2012 of AAT invalid for the WC payments made in 2023.
At the telephone interlocutory hearing, the Applicant told the Tribunal that he could not remember if he knew about his review rights when he received the decision in December 2012.
The Respondent submitted that it accepts the Applicant’s submissions on this point however none the less contended that, that submission indicates that the Applicant did receive a copy of the SSAT decision and had some level of awareness of the decision as at that time. The Respondent contended that it was open to the Applicant to seek review of the SSAT’s decision within the prescribed 28 day period if he considered it was incorrect.
Having reviewed the Applicant’s voluminous written submissions and hearing his oral submissions at the telephone interlocutory hearings, the Tribunal does not consider the Applicant’s reasons for delay to be reasonable. It is clear that he received the decision and made an assessment not to seek further review. While that decision may have been made on a mistaken belief of or misunderstanding by the Applicant in relation to the scope and implication of the SSAT’s decision, that is not a satisfactory reason for the delay.
While the Tribunal accepts that in the period around December 2012 the Applicant was unwell, however, based on his previous ability to seek timely reviews of decisions and his evidence outlined above indicate that he chose not to seek a review of the SSAT decision, the Tribunal does not accept that he was unaware of his review rights.
Without a good reason, the Applicant is not inherently exempt from the time limits prescribed by the AAT Act. Those time limits are not ‘mere aspirational guidelines’ and the Applicant must provide a good reason to explain the delay, particularly where it is lengthy. For the reasons outlined above, the Tribunal does not consider that the Applicant’s explanation of the delay in making his application is satisfactory. This is a case where the Applicant has made a conscious decision not to seek further review of the SSAT decision in a timely fashion.
The Tribunal finds that the Applicant’s explanation of the delay weighs against the granting of an extension of time. [3]
Prospect of success
[3] Consistent with: Re Grafton and Commonwealth (1988) 16 AL 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248 and Re Civic Tavern Pty Ltd and ACT Liquor licensing Board (1993) 32 ALD 381.
It is not appropriate, at this juncture, for the Tribunal to embark on a full examination of the substantive issues of the application for review. However, it may be that the stronger the apparent merits, the more likely that granting an extension of time would be appropriate.[4]
[4] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516.
The Applicant’s date of workplace injury was confirmed by the Personal Injury Commission Determination of 10 February 2023 as being 7 October 2010.
The Respondent contended that the payments received by the Applicant pursuant to that determination are compensation pursuant to subsection 17(2) of the Act and that the impact of those payments on the Applicant’s NSA and DSP are to be assessed with reference to section 1173 of the Act.
Section 1173 of the Act provides that:
1173 Effect of periodic compensation payments on rate of person’s compensation affected payment
(1) If:
(a) a person receives periodic compensation payments; and
(b) the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and
(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;
the rate of the person’s compensation affected payment in relation to that day or those days is reduced in accordance with subsection (2).
(2) The person’s daily rate of compensation affected payment is reduced by the amount of the person’s daily rate of periodic compensation.
(3) The reference in subsection (2) to a daily rate of periodic compensation is a reference to the amount worked out by dividing the total amount of the periodic compensation payments referred to in paragraph (1)(a) by the number of days in the periodic payments period.
(4) If:
(a) a person receives periodic compensation payments; and
(b) at the time of the event that gave rise to the entitlement of the person to compensation, the person was qualified for, and was receiving, a compensation affected payment; and
(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;
the periodic compensation payments are to be treated as ordinary income of the person for the purposes of this Act.
There is no dispute that the Applicant has, as a result of, the determination received (or become entitled to receive) periodic compensation payments. The dispute between the parties and the substantive issue to be resolved in this matter is whether on 7 October 2010 the Applicant was qualified for, and receiving, a compensation affected payment (noting that both NSA and DSP are compensation affected payments per sections 17 and 23 of the Act).
The Respondent contended that the Applicant’s prospects are poor and that the correct or preferable finding in relation to the substantive application would be that he was not ‘qualified for, and receiving’ a compensation affected payment as at 7 October 2010.

The Applicant made a claim for the DSP and the NSA on 12 October 2010 and his claim for NSA was granted with a start date of 8 October 2010. The Applicant commenced receiving the DSP on 25 June 2012. It is not contentious that the Applicant has never been paid a compensation affected payment by the Respondent in relation to a day prior to

8 October 2010.
The Applicant contended that he made a claim for NSA in July 2010. While there is evidence before the Tribunal that he contacted Centrelink around that time there is no evidence that a claim was made prior to that of the one made on 12 October 2010.
The Applicant contended that he went to do his job on 7 October 2010 however was unable to do so due to his injury. The Applicant submitted:
I did not resign from my employment voluntarily. Services Australia advised me to collect an employment separation letter from my employer. When I went to collect an employment separation letter my employer gave me the condition to write a resignation letter for the issuing of the employment separation letter. It was the duty of care of Services Australia and my employer to refer me to Workcover at that time. But, they did not do that.
As per PIC I was totally incapacitated for my preinjury job with Hotel Operations Solutions Pty Ltd on 7 October 2010. Point 76 of the COD of PIC of 10/02/2023. Page 43. If I was incapacitated to perform the pre-injury employment on 7 October 2010 then my employment was automatically terminated on 07/10/2010 and my resignation letter was invalid. This was negligence of my employer who conditioned me to write the resignation letter as a prerequisite of issuing an employment separation letter. Through this they tried to avoid the liability of my injury. But, 'the liability of my injury from 7 October 2010' has been established through the COD of PIC of 24/02/2021. Page 65.
So, my resignation of 07/10/2010 is not valid. I was simply totally incapacitated to perform that job on 07 October 2010 and I was definitely unemployed on 07 October 2010.
The Applicant contended that he was unemployed on 7 October 2010 and should be eligible for the NSA on that day. The Applicant confirmed at the Hearing that on 7 October 2010 he did attend work, he did attempt to do his job however was unable to. The Applicant provided details of what occurred on 7 October 2010.
Based on the evidence before it, the Tribunal notes that for all effective purposes on

7 October 2010, the Applicant had been engaged by the employer to do his job, he did attend work and as such it appears that he was at that time employed but unable to do the required work.
The Respondent provided submissions in relation to the provisions of the Act that set out the qualification requirements for the NSA (which require a person to satisfy the Respondent that throughout a particular period they were unemployed) and when a person may be treated as being unemployed. The Respondent also provided submissions in relation to the provisions of the Social Security (Administration) Act 1999 (Cth) that enable the back dating of a claim for NSA.
The Applicant disagrees with the Respondent’s view that he was employed on

7 October 2010.
The Tribunal notes that the Workers Compensation material before it relates to a workplace injury deemed to have occurred on 7 October 2010 and refers to the Applicant being at work on that date and experiencing severe pain and other symptoms in his right arm.
It is not appropriate for the Tribunal to make a finding in relation to whether the Applicant was employed on 7 October 2010, however it does note that the Applicant’s arguments in this regard are not supported by the documentary evidence he has provided to the Tribunal.
As set out above the Applicant was granted the NSA from 8 October 2010 and commenced receiving the DSP on 25 June 2012. It is not contentious that the Applicant has never been paid a compensation affected payment by the Respondent in relation to a day prior to

8 October 2010.
The substantive issue in this case is one of statutory interpretation and hinges on when the Applicant became unemployed and from what date he was eligible to receive the NSA. Based on the Tribunal’s review of the evidence and submission before it, it considers that the proposed application appears to have limited prospect of success, however, cannot be said to be devoid of any merit at all. Consequently, the Tribunal considers this factor neither weighs for or against the granting of an extension of time in this matter.
Alternative avenues of relief
The Tribunal notes that there are no further avenues of relief in relation to the decision to assess his workers compensation payments as a dollar for dollar reduction for the purposes of calculating the rate of social security payments he was entitled to receive. This in isolation would weigh in favour of granting an extension of time, however this is one factor of many that must be considered together.
The Respondent submitted that it is open to the Applicant to seek that the compensation charge be reviewed pursuant to section 1184K of the Social Security Act 1991 (Cth) (the Act), should he consider that his circumstances constitute special circumstances. Section 1184K of the Act provides the Respondent with a discretion to treat the whole or part of a compensation payment as not having been made, or not liable to be made, if it thinks it is appropriate to do so in the special circumstances of the case.
Consequently, the Tribunal considers this factor neither weighs for or against the granting of an extension of time in this matter.
Prejudice
In considering whether any prejudice or unfairness arises in relation to granting or not granting the Applicant’s extension of time application, the Tribunal refers to the general position that once a decision is made and a review period provided, beyond that period there is an expectation that the matter is finalised.[5]
[5] Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415.
The Respondent contended that the public interest and the interests of those applicants who comply with prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that should occur.
The Respondent further contended that it would suffer prejudice if an extension of time were to be granted on the basis that the ability to defend the application, obtain relevant information/documents and elicit reliable evidence from witnesses has been affected by the significant passage of time.
The Applicant contended that in 2012 he believed that the SSAT decision applied to the compensation payments he received relating to the period in that year, that he has paid back what he was found to have been overpaid and by the time of the SSAT decision he was back on the DSP. The Applicant indicated that he was prejudiced on the basis that he did not have any experience with compensation and that in 2012 his substantive claim for compensation had been refused. The Applicant also said that he was unwell at the time and was unable to fully deal with the SSAT decision.
The Tribunal accepts that the significant delay on the part of the Applicant in seeking to make his application for review is likely to cause prejudice for the Respondent in relation to the difficulty that may be faced in obtaining relevant and probative evidence should an extension of time be granted.[6]
[6] Quagliato and Secretary, Department of Social Services [2022] AATA 4434 and DHKC and Secretary, Department of Social Services [2022] AATA 4664.
The Tribunal recognises the difficulties that the Applicant was facing in the lead up to, at the time of and after the SSAT decision was handed down in relation to his health. It is clear from the Workers Compensation Commission documents before the Tribunal that the Applicant was unable to work because of his medical conditions and that those circumstances continue to have an impact on the Applicant’s life. While in no way trivialising the Applicant’s experiences and impacts, thereof, past and present, it is not uncommon for persons seeking to claim the DSP to have medical conditions that are physical and/or psychiatric in nature that impact on their ability to function. This does not, however, excuse them from having to follow the statutory time frames put in place.
As such, given that the Tribunal considers that the Applicant chose not to exercise his review rights, it further considers that there is no injustice in not granting the Applicant an extension of time. There is no injustice to the Applicant, that would displace the principle that granting an extension of time in this matter would be contrary to: the public interest; the expected finality of decisions and the perception of unfairness.
Conclusion
None of the factors outlined above are of themselves, determinative of whether, in the circumstances, it is appropriate to grant the Applicant an extension of time to make his application for review of the SSAT decision. Consideration of the factors as a whole is necessary, especially in circumstances where the Tribunal considers the merits of the proposed application to be weak but not devoid of all merit.
Based on the material before it, the Tribunal has found that the length of delay in making the application for review is significant, the reasons for that delay are unsatisfactory and that no injustice that arises in this case to counteract that to grant an extension of time would cause both prejudice to the public and Respondent. As a result of these findings combined with the weakness of the Applicant’s application, the Tribunal is not satisfied that it is reasonable, in the circumstances, to grant the Applicant an extension of time to make an application for review of the SSAT decision.
In this case the Tribunal agrees with the view of DP Forgie in Hicks. Even if the Applicant in this matter had excellent prospects of success, based on the length of the delay and the Applicant’s decisions around that delay, the Tribunal would still not grant the Applicant an extension of time to make his application for review of that decision.
DECISION
Accordingly, the Applicant’s application for an extension of time to make an application for review is refused.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...........................[SGD]............................
Associate
Dated: 27 September 2023

Date of hearing:
24 July 2023
4 September 2023

Applicant: By phone

Solicitors for the Respondent: Mr Andrew Summers
Services Australia

Date of hearing:	24 July 2023 4 September 2023
Applicant:	By phone
Solicitors for the Respondent:	Mr Andrew Summers Services Australia