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

[2015] AATA 1033

Irvin and Secretary, Department of Social Services (Social services second review) [2015] AATA 1033 (18 December 2015)

Division	GENERAL DIVISION
File Number	2015/6083
Re	Glenda Irvin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	18 December 2015
Date of written reasons	3 February 2016
Place	Melbourne

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision. .

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

Dr Damien Cremean
Senior Member

SOCIAL SECURITY- widow’s pension—assets test—alleged overpayment—application to review—extension of time—extension refused.

Legislation

Administrative Appeals Tribunal Act 1975(Cth) section 29(7)

Cases

Budd v Secretary Department of Education Employment and Workplace Relations [2008] FCA 1540

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

3 February 2016

1. On 14 September 2015 the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) made a decision affirming a decision of the Department of Human Services that the applicant owed a widow allowance debt of $64,238.81.  The Applicant sought review of the decision of the SSCSD in the General and Other Divisions of the Administrative Appeals Tribunal by an application dated 23 November 2015.

2. The application was required by law to be filed within 28 days but was late.

3. The Applicant therefore made application under section 29(7) of the AdministrativeAppeals Tribunal Act 1975 (Cth) for an extension of time within which to file her application for review.

4. The applicant also lodged an application to stay the operation of the decision of the SSCSD.  My view is that if time should not be extended then there is no proceeding on foot which could possibly be stayed.

5. The principles underlying the discretion to extend time under section 29(7) are not in doubt. They are set out in some detail in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [18] per Wilcox J and subsequent cases. See also the remarks of Cowdroy J in Budd v Secretary Department of Education Employment and Workplace Relations [2008] FCA 1540 at [18].

6. Although not a pre-condition to the exercise of the discretion, it is to be expected that an applicant seeking an extension of time will provide an acceptable explanation for delay.  In addition, the overall justice of the case should be considered and in that regard it is relevant to have regard to an applicant’s prospects of success with her substantive application should an extension of time be granted.  If her substantive application stands little or no chance of success, that consideration points away from exercising the discretion to extend time.  Prejudice is also a relevant matter to take into account.

7. The Respondent in this matter indicates it is not  prejudiced by an extension of time.

8. However, the Respondent does not concede that the Applicant has an acceptable explanation for her delay—relatively short though it is.  The Applicant has provided no explanation at all in her application for her delay in lodging the substantive application.

9. In oral evidence, however, she indicated that she had been confused about the appropriate dates and that she was on anti-depressants and she got confused in my mind as well. She says she got her dates mucked up.

10. I reject the notion that the Applicant’s explanation is acceptable. Everyone has an opportunity to observe time limits and they are specified by the Parliament for a reason. The Applicant mentioned nothing at all which actually prevented her from filing her application on time.  Many persons do so although in difficult circumstances, including being on medication of various kinds such as anti-depressants.

11. Moreover, in my view the Applicant has no prospects of success in her substantive application should time be extended.  The decision she wants to review is one where it has been found she was overpaid $64,239.81.  That figure is carefully worked out in the decision of the SSCSD which I have read closely.  The Applicant has said nothing about the correctness of the calculations concerned.  She regarded the decision in that regard as all gobbled gook she said.  This does not tell me anything about her view about her prospects of success

12. The Applicant however has indicated that because the Commonwealth has (wrongly, she says) characterised her payment as a widow’s pension — and thus made a mistake, she alleges — she is entitled to keep the money involved.  She indicated at one point that she was entitled to something because I had no income.

13. I cannot agree that the Applicant is entitled to keep the sum involved and I cannot agree she has demonstrated any reason why she should be entitled to keep it.  There is clear prejudice to the Commonwealth of Australia if she were allowed to keep this money.  Moreover, I am not satisfied that it was paid to her by administrative error.  How she came to be paid a widow’s pension was fully explained to her at the hearing by the Respondent’s representative

14. I am very clear that the Applicant’s substantive application has no hope of success if time is extended.

15. Furthermore, as I have indicated, she has no acceptable explanation for her delay.

16. In all the circumstances, I decline to exercise a discretion to extend time.

17. Accordingly the application is refused.

18. That being so, the stay application also collapses as there is nothing to stay.

19. It is for the Respondent to work out with the Applicant, if minded, whether the current regime for repayment should continue. I say nothing about that.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Administrative Assistant

Dated 3 February 2016

Date of hearing	18 December 2015
Applicant	In person
Advocate for the Respondent	James Henderson, Department of Human Services