Johnson and Secretary, Department of Social Services (Social services second review)
[2019] AATA 328
•4 March 2019
Johnson and Secretary, Department of Social Services (Social services second review) [2019] AATA 328 (4 March 2019)
Division:GENERAL DIVISION
File Number: 2019/0184
Re:Johnson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member G Hallwood
Date:4 March 2019
Place:Adelaide
The Tribunal refuses the request for an order extending the time within which the application for review may be lodged.
..............[sgd]................
Member G Hallwood
Catchwords
Extension of time – Reasons for delay - Strength of applicant’s case – Utility of application for Applicant – Date of effect of determination under s 107 of Social Security (Administration) Act 1999 - Alternative avenues
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Brown v Federal Commissioner of Taxation (1999) ATC 4516
Commissioner of Taxation v Brown [1999] FCA 1198
Comcare v A'Hearn (1993) 45 FCR 441
Dix v Client Compensation Tribunal (1993) 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Halliday v High Performance Personnel Pty Ltd (in liq) (formerly SACs Group Pty Ltd) (1993) 113 ALR 637
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Outboard Marine Australia Pty Ltd v Byrnes (1974) 1 NSWLR 27
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Member G Hallwood
1 March 2019
This extension of time request concerns an application by Ms Johnson, the Applicant, for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 23 October 2018 which was sent to the parties on 5 November 2018 which affirmed a decision rejecting a claim for Newstart Allowance (NSA) lodged on 3 November 2016.
Ms Johnson’s application to this Tribunal was not made until 16 January 2019 which is outside the required 28-day period in which applications for review of AAT1 decisions should be made to this Tribunal.[1]
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(7).
Ms Johnson has applied for an extension of time to allow her application for review to be dealt with by the Tribunal.
The Secretary of the Department of Social Services, the Respondent, opposed the granting of an extension of time.
Given that Ms Johnson must be granted an extension of time before the Tribunal can proceed to consider her application further, the extension of time request is the subject of this hearing.
SHOULD MS JOHNSON BE GRANTED AN ORDER EXTENDING HER TIME TO LODGE?
Background
Ms Johnson lodged a claim for NSA on 3 November 2016.
A letter from Centrelink requested she provide a number of documents including proof of identity (PID), income, assets, real estate holdings and private company details by 18 November 2016
On 18 November 2016 the claim for NSA was rejected on the grounds that Centrelink did not receive the documents requested from the applicant. Ms Johnson was sent notice of the decision on the same date.
The decision was reviewed and affirmed by an Authorised Review Officer on 18 October 2017.
On 13 September 2018, Ms Johnson applied for review of the decision to AAT1. The decision was reviewed and affirmed by AAT1 on 23 October 2018. The Department’s records indicate that the Department and Ms Johnson were sent the decision on 5 November 2018.
On 16 January 2019 the applicant applied for further review by the General Division of the AAT (AAT2) some 43 days after the prescribed period expired.
CONSIDERATIONS
The legal framework
The standard time limit for lodgement of a review application is within 28 days of the day on which written notice of the decision was given to the applicant.[2]
[2] Ibid s 29(2).
The Tribunal has the discretion under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”.[3]
[3] Ibid s 29(7).
In cases where there is opposition to the extension of time application by others that may be affected, the Tribunal is required to provide reasonable opportunity for the applicant and those opposed to put their respective cases.[4]
[4] Ibid s 29(10).
In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment, Wilcox J said the ‘prescribed period of 28 days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…’.[5]
[5] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344.
In Outboard Marine Australia Pty Ltd v Byrnes, the New South Wales Court of Appeal (Reynolds, Hutley and Bowen JJ) said ‘where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time’.[6]
[6] Outboard Marine Australia Pty Ltd v Byrnes (1974) 1 NSWLR 27, 30.
There are a number of factors that the Tribunal weighs together when reaching a decision about whether to grant an extension of time.[7] I will now discuss those factors considered by the Tribunal to be relevant in this case.
[7] Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.
Length of and reasons for the delay
It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition.[8]
[8] Comcare v A'Hearn (1993) 45 FCR 441, 444; Dix v Client Compensation Tribunal (1993) 1 VR 297, 302.
Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised.[9]
[9] Doyle v Chief of Staff (1982) 42 ALR 283, 287.
The Secretary acknowledged that the delay in this instance was relatively short at 43 days and I agree. The Secretary also indicated that it was not insignificant and warranted a satisfactory explanation.
Ms Johnson acknowledged that she received the AAT1 decision including appeal rights on either the 5th or 6th of November 2018.
Ms Johnson explained to this Tribunal that early in November 2018 just after she had received the decision from the AAT1 she was violently and horrifically attacked by her ex-partner in a domestic violence incident. She had a great deal to cope with and as well as being hospitalised herself, and police subsequently became involved in the situation. She had to work through taking back possession of her house, negotiate debts relating to credit cards and her mortgage with banks, and negotiate access to her son.
Ms Johnson has also been attempting to obtain a review by the Department of Social Services of the debt that has been raised as a result of overpayment of Family Tax Benefits (FTB).
In these circumstances I find that Ms Johnson has a satisfactory reason for these criteria to be met.
Strength of applicant’s case, utility of the application, and reasonableness of an extension
When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate.
The Secretary drew the Tribunal’s attention to some regularly cited cases relevant to assessing the strength of an applicant’s case in relation to extension of time applications.[10]
[10] Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 (Von Doussa J); Brown v Federal Commissioner of Taxation (1999) ATC 4516, [29], [38] (Hill J).
In Commissioner of Taxation v Brown[11] the Full Federal Court endorsed a set of principles that can be used when considering the merits of applications for extension of time:[12]
(a)In determining whether a taxpayer seeking an extension of time in which to lodge an objection has prospects of success, the test to be applied is whether the objection arguably has merit.
(b)The arguable merits test requires the taxpayer’s case to be assessed at its highest.
(c)It follows that, in applying the arguable merits test, findings of credit have no place. In other words, it is an error of law for the AAT to decide that the taxpayer’s objection has no arguable merits on the basis that the taxpayer’s evidence is not worthy of belief.
(d)Ordinarily, it is inappropriate for the AAT to permit or to engage in cross-examination of the taxpayer’s witnesses with the view to testing the veracity of their evidence so far as the merits of the objection were concerned. Mr Bevan specifically conceded that it was “inappropriate” for the AAT Member to have cross-examined the taxpayer as to the truth of his claim that the unit was an unsolicited gift offered by Mr Ray.
[11] [1999] FCA 1198.
[12] Ibid [18].
Ms Johnson described a long and arduous journey from when she first lost access to her home around April 2016 due to her ex-partner’s domestic violence. Because Ms Johnson was unable to provide stable accommodation for her child, he went to live with her parents eventually resulting in her FTB debt.
Ms Johnson described a period of homelessness from April 2016 until October 2017 when she was put in touch with domestic violence services. It was not until 3 November 2016 that Ms Johnson submitted her first claim for NSA. Ms Johnson put to the Tribunal that on each occasion, and there were many occasions between 3 November 2016 and 26 September 2017, she made it clear to Centrelink that she was homeless due to domestic violence and that she had no money.
Ms Johnson also put to the Tribunal that she lodged claims on three further dates and that each of these were rejected, mainly on the grounds that she had failed to provide documentation.
Ms Johnson said that she had no access to these documents because she was homeless and afraid to go back to her home, where her ex-partner was living, where those documents were stored.
On 26 September 2017, almost 11 months after she first lodged her claim for NSA, Ms Johnson was allowed to complete alternative proof of identity forms. On 10 October 2017 Ms Johnson was put in touch with a social worker and the next day was granted NSA and back paid.
I found Ms Johnson’s sworn evidence to be genuine and honest to the best of her knowledge.
I feel compelled in this instance to note that much of the financial, physical and emotional trauma Ms Johnson was exposed to for almost a year would have been alleviated had Centrelink applied procedures suitable for someone dealing with domestic violence and homelessness at an earlier stage. I also commend the Centrelink staff that eventually offered alternative proof of identity options and the support of a social worker to Ms Johnson.
In evidence, Ms Johnson indicated that she was seeking a financial outcome from this appeal. She is not taking this path for a moral victory. She indicated that she has been through too much for that to be important now.
The substantive issue to which this extension of time request relates is the rejection by Centrelink of the claim for NSA from 3 November 2016. The Secretary put that Ms Johnson’s claim was rejected on 18 November 2016. The letter sent to Ms Johnson contained the required reasons and review rights including the need to lodge any appeal within 13 weeks (by 17 February 2017).
Ms Johnson provided no evidence to the Tribunal that she appealed the decision by 17 February 2017. There is a record that Ms Johnson spoke to Centrelink on 16 February 2017 but the Centrelink record clearly indicates that the conversation on that day was related to FTB.
Ms Johnson told the Tribunal that she is seeking a financial outcome in the application, i.e. to have NSA back paid to the period commencing on 3 November 2016. As will be discussed below, the effect of certain sections of the Social Security (Administration) Act 1999 (Administration Act) effectively make this impossible.
Section 107 of the Administration Act provides for the date of effect of a determination to reject a claim.
Relevantly ss107(3) provides that:
(a)when a decision is made to reject a payment, and
(b)notice of the decision is given to the person, then
(c)if more than 13 weeks after the notice of the decision is given the person applies to the respondent for review of the decision, and
(d)a decision is made to grant as a result of the application for review, then
(e)the decision only takes effect on the day in which the application for review was made.
Because payments such as NSA have participation tests, the legislation does not provide discretion to the Tribunal to consider special circumstances in these cases.
The effect of this is that even if the Tribunal were to find that the decision on 18 November 2016 to reject was in error, there would still be no financial utility in the application because the Administration Act's date of effect provisions would prevent arrears from being paid before 13 October 2017, some two months after Ms Johnson’s eventual NSA payments started.
The Secretary submitted that:[13]
There is no evidence that the applicant contacted to dispute the decision to reject the payment, or to raise any issues or difficulties about providing the requested documentation within 13 weeks from being notified of the decision (Annexure D). In fact the applicant sought review of the decision well outside the 13 week period on 13 October 2017. As a result of the application of section 107 of the Administration Act the date of effect of any favourable determination on review in the applicant’s favour, would only take effect from 13 October 2017.
[13] Secretary’s Outline of Submission, filed 12 February 2019 [34].
I accept that the above submission, and I agree with the Secretary’s submission that the substantive application is without merit because it cannot deliver a financial outcome to Ms Johnson, which as noted is the outcome Ms Johnson ultimately seeks in these proceedings.
I adapt the comments of Mason CJ in Halliday v Sacs Group Pty Ltd[14], that given above, it would be wrong to extend the time and subject Ms Johnson and the Secretary to further, pointless litigation, stress, delay, inconvenience and expense. I further note that for those reasons that it would be also contrary to the public interest and the administration of administrative justice to allow the review to proceed any further.
[14] Halliday v High Performance Personnel Pty Ltd (in liq) (formerly SACs Group Pty Ltd) (1993) 113 ALR 637, 638.
Alternative avenues of relief
Ms Johnson has submitted a claim under the Compensation Caused by Defective Administration (CDDA) scheme. The Secretary contends that this may provide an alternative avenue for relief in the event Ms Johnson meets all the relevant guidelines under the CDDA scheme. I accept the submission that there is an alternative avenue available to Ms Johnson in obtaining her ultimate goal of receiving payment for the relevant period.
CONCLUSIONS
I find that Ms Johnson’s reasons for delay are compelling. I find that there are alternative potential avenues for relief, although this Tribunal has no jurisdiction over the CDDA scheme.
Ms Johnson has been exposed to extreme financial, physical and emotional hardship over a long period of time. Had Centrelink acted earlier in a more enlightened way when dealing with a claim where the claimant was homeless and deprived of income as a result of domestic violence; much of the hardship occasioned on Ms Johnson in this case could have been avoided.
However, the substantive application cannot produce the financial outcome Ms Johnson is seeking, and it would be of no benefit to Ms Johnson to proceed with a futile application. In these circumstances, the Tribunal does not exercise its discretion to extend the time for making an application.
DECISION
For the above reasons the Tribunal refuses to grant an extension of time.
I certify that the preceding 50 paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood.
.........................[sgd]..................................
Administrative Assistant Legal
Dated: 4 March 2019
Date of hearing: 1 March 2019 Applicant:
Witness for Applicant:
Ms. Johnson
Ms. Johnson
Advocate for the Respondent: Ms. Edwards Solicitors for the Respondent: Department of Human Services
0
10
0