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

[2016] AATA 334

Ishack and Secretary, Department of Social Services (Social services second review) [2016] AATA 334 (6 May 2016)

Division	GENERAL DIVISION
File Number	2016/1407
Re	Mamey Ishack
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	6 May 2016
Date of written reasons	23 May 2016
Place	Sydney

The Tribunal refuses to grant an extension of time for the making of an application for review.

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

Senior Member J F Toohey

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – factors to be considered – whether acceptable explanation for the delay – merits of substantive application – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999

Social Security Act 1999

CASES

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

SECONDARY MATERIALS

Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member J F Toohey

23 May 2016

1. This decision concerns an application by Ms Mamey Ishack for an extension of time in which to lodge an application for review of a decision that she did not qualify for a Disability Support Pension (DSP) when she applied on 4 June 2015.

2. These written reasons reflect reasons given orally at a hearing on 6 May 2016 and are provided at Ms Ishack’s request.

3. On 13 January 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (AAT) affirmed Centrelink’s decision that Ms Ishack did not qualify for the payment.  On 18 January 2016, the SSCSD posted a copy of its decision to Ms Ishack.

4. On 21 March 2016, the General Division of the AAT received Ms Ishack’s application for review.  The application stated that she received the SSCSD’s decision on 15 January 2016 but that cannot be correct as this date was before the date of the decision itself.  It is not clear from the information before me whether the decision was posted by regular or priority mail.  The Australia Post website shows that, as of January 2016, regular mail is delivered two to three business days after postage.  Allowing for delivery within three business days, I will take it that Ms Ishack received the SSCSD’s decision on 21 January 2016. 

   AN APPLICATION FOR REVIEW MUST BE LODGED WITHIN 28 DAYS

5. An application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the applicant received the decision: sub-section 29(1)(d) of the Administrative Appeals Tribunal Act 1975.

6. The Tribunal may extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7).

   PRINCIPLES

7. The principles by which a decision whether to grant an extension of time should be determined were described by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 as including:

   (a)whether there is an acceptable explanation for the delay;

   (b)whether the applicant has rested on his or her rights;

   (c)whether the respondent or the general public would suffer any prejudice as a result of the extension;

   (d)the merits of the case; and

   (e)considerations of fairness as between the applicant and other persons in a similar position.

   SHOULD THE EXTENSION OF TIME BE GRANTED?

8. The principles set out above are not to be applied mechanically.  All of the circumstances of the case must be considered; the overriding consideration is whether it is reasonable in all the circumstances to grant the extension. 

9. Allowing that Ms Ishack received the SSCSD’s decision on 21 January 2016, the application for review had to be lodged by 18 February 2016.  It was therefore just over one month out of time.

10. In her application for an extension of time, Ms Ishack wrote that she had been very ill and had been in hospital many times.  She did not give any details.  Her daughter-in-law, Ms Barkho, spoke to the Tribunal by telephone at the hearing.  She said Ms Ishack, who speaks little English, had no one else to help with her application, and she was very busy herself, and so the application was late. 

11. A delay of one month is considerable, and is not to be ignored, but I accept that allowances should be made for a person whose English is limited.  I accept that Ms Ishack, who needs the assistance of an interpreter, could not make the application for review by herself and that the need to rely on her daughter-in-law’s help is an adequate explanation for the delay.

12. There is no suggestion that there will be any prejudice to the Secretary if the extension is granted.

    THE MERITS OF MS ISHACK’S APPLICATION FOR REVIEW

13. Based on the information before me, which is the information set out in the SSCSD’s reasons for decision and what Ms Barkho said at the hearing of the application for the extension of time, Ms Ishack’s application has little, if any, prospect of success.

14. For her application for DSP to succeed, Ms Ishack had to qualify on 4 June 2015 when she applied, or within the following 13 weeks, that is, by 3 September 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999.  I will call this the claim period.

15. Section 94 of the Social Security Act 1999 states that, to qualify for DSP, Ms Ishack had to have:

    (i)a physical, intellectual or psychiatric impairment, or impairments, which rated at 20 or more points according to the Impairment Tables in the Act; and

    (ii)a continuing inability to work as defined in the Act.

16. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.  They are used to assess the functional impact of various impairments.  According to whether the impact is none, mild, moderate, severe or extreme, an impairment is given a corresponding rating of zero, five, ten, twenty or thirty points. 

17. A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a).  Permanent means that the condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and is more likely than not to persist for more than two years: cl 6(4).

18. Ms Ishack has been diagnosed with degenerative changes in both knees, has neck and shoulder pains, right and left eye cataracts, hypertension and diabetes.  The information before the Tribunal shows that none of her conditions had been fully treated and stabilised during the claim period.

19. The SSCSD’s decision shows that Ms Ishack’s general practitioner, Dr Soni, reported that she had been treated with medication, fish oil, exercise, counselling and regular follow-up since 2005; if her pain increased, he proposed review by an orthopaedic surgeon and he “speculated about knee replacements”.  Ms Barkho told the Tribunal that Ms Ishack had a further MRI this year and she was still to see a specialist about her knees.  On this basis, this condition could not be considered fully treated and stabilised during the claim period and could not be given an impairment rating.

20. The same must be said of Ms Ishack’s neck and shoulder pains, both of which Dr Soni indicated had not been properly investigated. 

21. The SSCSD’s decision shows that Ms Ishack had successful surgery for a cataract in her right eye in November 2015 and she was to attend an appointment in February 2016 to discuss treatment of her left eye.  Ms Barkho confirmed to me that this was so and that Ms Ishack is having further surgery this month.  Based on this information, Ms Ishack’s eye condition had not been fully treated and stabilised during the claim period and could not be given an impairment rating.

22. Ms Barkho told me that Ms Ishack also has diabetes, which is controlled with medication, and she takes medication for blood pressure.  Based on this information, it seems probable that these conditions were fully treated and stabilised during the claim period but, as both appear to be controlled, they would attract a nil impairment rating.

23. On the information before me, it is clear that, if she were granted an extension of time to make application for review, Ms Ishack’s application would have no prospect of success.  This means it would be futile to grant her an extension of time.

    CONCLUSION

24. Just because Ms Ishack’s first application for DSP was not successful does not mean she cannot apply again once her conditions are fully treated and stabilised. In the meantime, however, her application for an extension of time to seek review of her first application is refused.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of 2016/1407

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Associate

Dated 23 May 2016

Date of hearing	6 May 2016
Advocate for the Applicant	Ms A Barkho
Solicitors for the Respondent	Ms G Doyle, Department of Human Services