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

[2016] AATA 198

Jackson and Secretary, Department of Social Services (Social services second review) [2016] AATA 198 (31 March 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0378
Re	Natalie Jackson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	31 March 2016
Place	Perth

The applicant’s application for an extension of time to lodge an application for review of the decision of the Social Security Appeals Tribunal dated 7 May 2015 is refused.

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Brigadier AG Warner, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of Social Security Appeals Tribunal (SSAT) dated 7 May 2015 – applicant took no action until 15 January 2016 to make the respondent aware that she contested the SSAT decision – applicant’s explanation for delay not satisfactory - lack of merit of applicant’s application for review – alternative avenue of relief - Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 - s 29

CASES

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Re Johnson and Commonwealth of Australia (1990) AATA 1

REASONS FOR DECISION

Brigadier AG Warner, Member

31 March 2016

INTRODUCTION

1. On 15 January 2016, Ms Jackson lodged with this Tribunal an application for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 7 May 2015 and posted on 18 May 2015.

2. On the same date, 15 January 2015, Ms Jackson applied to this Tribunal for an extension of time for lodging the abovementioned application for review.

3. A telephone conference interlocutory hearing to determine Ms Jackson’s application for an extension of time was listed for 15 March 2016.  Ms Jackson did not attend.  Attempts to contact Ms Jackson on the telephone number provided by her, during the period ten minutes before to fifteen minutes after the listed start time for the hearing, were unsuccessful.  The Tribunal confirmed Ms Jackson’s telephone number with the respondent’s representative, Ms Adine Barton.

4. Subsequently, the matter was heard on the papers.

   BACKGROUND

5. Ms Jackson lodged an application for Disability Support Pension (“DSP”) on 8 September 2014.

6. The application was refused and the decision was reviewed and affirmed by an Authorised Review Officer on 6 January 2015.

7. The SSAT reviewed and affirmed the decision on 7 May 2015. The SSAT found that “Miss Jackson’s Complex Regional Pain Syndrome (CRPS) had not been fully treated and stabilised and, consequently, was not a permanent impairment at the date of claim and could not attract a rating under the Impairment Tables. Therefore, Miss Jackson did not satisfy paragraph 94(1)(b) of the Act and was not qualified for disability support pension at the date of claim”.

8. The SSAT posted Ms Jackson a copy of its decision under a cover letter dated 18 May 2015.  She is deemed to have received that decision in the ordinary course of business on 20 May 2015.  The appeal period expired on 17 June 2015.

9. Ms Jackson claims that she did not receive the SSAT decision until 13 February 2016 when she requested that a copy be posted to her.

10. In her application for an extension of time dated 15 January 2016, Ms Jackson states her reason for the application as:

    “I was never informed of the decision until I rang them on 13/2/16.  As far as I knew, Forrest Personnel were in talks with Centerlink (sic) about my pension”.

    ISSUE

11. Ms Jackson has applied for an extension of time within which her application for review   may be lodged.  The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.

    THE RELEVANT LEGISLATION

12. Section 29 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) deals with the manner of applying to the Tribunal for a review of a decision. Paragraph (d) of s 29 (1) provides that, in a case where “the terms of the decision were recorded in writing and set out in a document that was given to the applicant”, an application to the Tribunal for a review of that decision “shall be lodged with the Tribunal within the prescribed time”.

13. Section 29 (2) of the AAT Act relevantly states: “…the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

    (a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;”

14. The Tribunal’s power to extend the time for the making of an application for review is conferred by subs (7) and (8) of s 29 of the AAT Act as follows:

    (7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

    (8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

    EVIDENCE

15. The Tribunal had before it the following documents:

    ·Social Security Appeals Tribunal Decision and Reasons for Decision 2015/PO79146 dated 7 May 2015 (“SSAT Decision”);

    ·Applicant’s Application for Extension of Time for Making an Application for Review of Decision, dated 5 January 2016;

    ·Applicant’s Application for Second Review of Decision, dated 15 January 2016;

    ·Secretary’s Outline of Submissions dated 10 February 2016 (including Annexures A – F) (“Secretary’s Submissions”); and

    ·Covering letter for SSAT decision of 7 May 2015- Social Security Appeals Tribunal 2015/P079146 dated 18 May 2015 (“cover letter”).

    CONSIDERATION

16. Section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.

17. As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia (1990) AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:

    (i)      It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained.  An extension of time will, however, be granted if it is proper to do so.

    (ii)    Consideration is to be given to the action taken by the applicant.  Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?

    (iii)    Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.

    (iv)   There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…

    (v)    Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.

    (vi)   Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.

18. Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of that application, the Full Court said [at 444] that “it is to be expected that such an explanation will normally be given, as a relevant to matter to be considered…”

19. In the present case, the prescribed period in which Ms Jackson was required to lodge her application for review of the SSAT decision of 7 May 2015 expired on 17 June 2015.  Thus, Ms Jackson’s application for review, dated 15 January 2016 and received by the Tribunal on 25 January 2016, was lodged some seven months out of time.

    Explanation

20. Ms Jackson’s explanation for the delay in lodging her application for review of the SSAT Decision was given in her application for an extension of time (see paragraph 10 above).  She claimed not to have known of the SSAT Decision until 13 February 2016, yet her applications both for review of the SSAT Decision and for an extension of time were signed by her prior to this date on 15 January 2016 and received by the Tribunal on 25 January 2016.  Ms Jackson’s non-attendance for the listed Tribunal hearing on 25 March 2016 precluded any potential examination by the Tribunal of this discrepancy.

21. Ms Jackson is deemed to have received the SSAT Decision under the cover letter dated 18 May 2015 (cover letter) on 20 May 2015.  The respondent confirmed that the cover letter was addressed to the applicant’s correct home address (Secretary’s Submissions paragraph 14), and the Tribunal had no evidence of difficulties or delays in the mail system at that time.  Further, the Tribunal accepts the respondent’s contention that “it is reasonable to expect an applicant to enquire into the outcome of their appeal if they do not receive a decision” (Secretary’s Submissions paragraph 14). 

22. Ms Jackson’s explanation contained the statement: “As far as I knew, Forrest Personnel were in talks with Centerlink (sic) about my pension”. The Forrest Personnel website describes the company as “a specialist employment agency helping job seekers with disabilities, health conditions or injuries to find sustainable work.”  It seems to the Tribunal that this element of Ms Jackson’s explanation is irrelevant to the Tribunal’s current consideration and Ms Jackson’s non-attendance for the Tribunal hearing precluded receipt of any related information.

23. It is the Tribunal’s opinion that Ms Jackson has not given a compelling or satisfactory explanation for not lodging an application for review with this Tribunal before the expiration of the prescribed 28 day period on or about 17 June 2015, let alone not doing so until January 2016.    

    Action Taken by Applicant

24. There was no evidence before the Tribunal that Ms Jackson had taken any action before 15 January 2016, the date of her signature on her two applications, to indicate that she would contest the SSAT Decision.

    Prejudice and Fairness   

25. Turning to the consideration of prejudice and fairness, the respondent contended that “It would be unfair to other applicants and potential applicants if the discretion to extend time was exercised in this case” and “The applicant’s stated reason for the delay does not make it fair and equitable to depart from the legislative time period” (Secretary’s Submissions paragraphs 14,15).  The Tribunal accepts these views but in the present matter does not attach significant weight to this consideration.

    Merits of Application

26. It is not necessary for the Tribunal to conduct a merits review of the SSAT Decision at this interlocutory stage.  However, it is appropriate for the Tribunal to consider the merits of Ms Jackson’s substantive application for a review of that decision as part of the process of determining this application for an extension of time for lodging that substantive application:  Hunter Valley Developments Pty Ltd; Re Johnson (above).

27. The SSAT found “that Miss Jackson’s CRPS had not been fully treated and stabilised and, consequently, was not a permanent impairment at the date of claim and could not attract a rating under the Impairment Tables” (SSAT Decision paragraph 28).  In the Tribunal’s opinion, the SSAT Decision indicates that the SSAT examined the evidence before it thoroughly and made a conscientious decision properly based on that examination.

28. As the SSAT found that Ms Jackson did not satisfy paragraph 94(1)(b) of the Social Security Act 1991, it did not consider her continuing ability to work (SSAT Decision paragraph 30). The respondent took this consideration further (Secretary’s Submissions paragraphs 26-28), submitting that:

    Should the Applicant’s CRPS be considered fully diagnosed, treated and stabilised and a higher impairment rating be assigned to her condition during a substantive review, the Applicant has not satisfied POS requirements (Annexure E).

    A Job Capacity Assessor found in their report dated 26 September 2014 that the Applicant had a work capacity of 30 plus hours per week (Annexure F).

    The Secretary contends that on this basis and as the Applicant has not satisfied POS requirements, she cannot be considered to have a continuing inability to work.

29. Having regard to Ms Jackson’s stated reasons for applying to the Tribunal  for a review of the SSAT Decision, and to the Secretary’s contention above, the Tribunal is not satisfied that the applicant’s substantive application has good prospects of success.

    Alternative avenue of relief

30. Finally, the Secretary submits, and the Tribunal accepts, that “should the Applicant believe that her condition has now been fully treated and stabilised and that the functional impacts have deteriorated, it is open to her to lodge a new DSP claim and test her current eligibility”.

    CONCLUSION

31. The Tribunal, having regard to the circumstances of this application and the relevant considerations listed above, concludes that none of those circumstances and considerations support the grant of an extension of time, but a number mitigate against the grant of that extension, namely:

    ·Ms Jackson’s explanation for the delay in application is not satisfactory;

    ·the absence of action or advice, until 23 January 2016, that might have alerted the Respondent/Centrelink that Ms Jackson intended to contest the SSAT Decision;

    ·the apparent lack of merit of the applicant’s substantive application for review; and

    ·the potential for Ms Jackson to lodge a new claim for Disability Support Pension and test her current eligibility, should she believe that her condition has now been fully treated and stabilised and that the functional impacts have deteriorated.

32. The Tribunal therefore is not satisfied that it would be reasonable in all the circumstances to extend the time for the making by Ms Jackson of an application for a review of the SSAT Decision.

    DECISION

33. For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the applicant’s application for an extension of time to lodge an application for review of the SSAT decision of 7 May 2015.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant

Dated 31 March 2016

Date of hearing Heard on the Papers on 31 March 2016