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

Jones and Secretary, Department of Social Services (Social services second review) [2018] AATA 2243 (16 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2210
Re:Peter Jones
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:16 July 2018
Place:Perth

The Applicant’s application for an extension of time is refused.
........................................................................
Member C Edwardes
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – Tribunal refuses to grant an extension of time – disability support pension
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) – para 29(2)(a) – ss 29(7)
Social Security Act 1991 (Cth) – ss94(1), ss 94(2), ss 94(3B)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability
Support Pension) Determination 2011 (Cth)
CASES
Augustynski and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 507
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158
Comcare v A’Hearn (1993) 45 FCR 441
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305
Kok Yong Tey and DSS [2013] AATA 753
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Re Grafton and Commonwealth (1988) 16 ALD 533
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
VMXC and Secretary, FaHCSIA [2013] AATA 663
Zizza v Federal Commissioner of Taxation [1999] FCA 37
REASONS FOR DECISION
Member C Edwardes
16 July 2018
THE APPLICATION

This is an application for an extension of time to make an application for review of a decision, dated 23 January 2018, made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). This decision affirmed a decision to refuse the Applicant a disability support pension (DSP).
ISSUE
The issue before the Tribunal is whether the Tribunal should exercise its discretion to grant leave for an extension of time for the Applicant to make an application to the Tribunal for a substantive review of the decision made by AAT1 (AAT1 decision) dated 23 January 2018.
The Applicant lodged her Application for Review of the Decision with the Tribunal on 03 May 2018.
The time for making the application is 28 days from “the day on which a document setting out the terms of the decision is given to the Applicant”: paragraph 29(2)(a) Administrative Appeals Tribunal Act 1975 (AAT Act).
BACKGROUND
On 30 March 2017 the Applicant lodged a claim for DSP.
On 13 June 2017, the Department rejected the claim. That decision was reviewed and affirmed by an Authorised Review Officer (ARO) on 18 August 2017.
On 23 January 2018, the decision of the ARO was reviewed and affirmed by AAT1.
In the his Application for Extension of Time for Making an Application for Review of Decision and Application for Second Review of Decision, the Applicant stated that he received the AAT1 decision on 23 January 2018.
The Applicant made the Application for Second Review (the Application) of the AAT1 decision with the Administrative Appeals Tribunal General Division (the AAT2) on 26 April 2018.
The Applicant received a “Notice of AAT’s Decision” letter, (relevant to the AAT1 decision), dated 25 January 2018.
On the 27 April 2018 the Tribunal received an application for second review followed by an application for extension of time on the 8 May 2018.
RELEVANT LEGISLATION AND LEGAL PRINCIPLES
Generally, under subsection 29(2) of the AAT Act, an application for review must be lodged within the 28 days of the Applicant receiving notice of the decision. However, subsection 29(7) of the AAT Act states that “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… if the Tribunal is satisfied that it is reasonable in all circumstances to do so.”
In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18], Wilcox J stated
…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...
The Tribunal notes paragraph 6 of Brown v Federal Commissioner of Taxation [1999] FCA 563 that reinforces and provides guidance concerning the exercise of discretion to extend the time for commencement of proceedings:
…
(i)prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;
(ii)it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;
(iii)any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv)any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v)the merits of the substantial application are relevant; and
(vi)fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.
The Tribunal notes commentary in paragraph 37 of DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 in considering the manner in which the discretion to grant an extension of time should be exercised:
…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 (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court (Tribunal) 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. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287)
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at 417).
…
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[55]
EVIDENCE
The application was heard in Perth on 20 June 2018. The Applicant appeared in person by telephone and the Respondent was represented by Ms De Vito and appeared by telephone.
The Tribunal received the following exhibits:
·Exhibit A1 – Application for Extension of Time to apply for review dated 8 May 2018
·Exhibit A2 – Application for Second Review of Decision received 27 April 2018.
·Exhibit A3 - Report of Dr Abu Abraham dated 8 March 2018.
·Exhibit A4 – Letter of Paul Norman dated 15 March 2018.
·Exhibit A5 – Letter of Dr Jamie Chiew dated 22 March 2018.
·Exhibit R1 – Secretary’s Outline of Submissions dated 21 May 2018.
·Exhibit R2 – Annexure A to R01
·Exhibit R3 – Annexure B to R01
·Exhibit R4 – Annexure C to R01
·Exhibit R5 – Annexure D to R01
·Exhibit R6 – Annexure E to R01
·Exhibit R7 – Annexure F to R01
·Exhibit R8 – Annexure G to R01
·Exhibit R9 – Annexure H to R01
·Exhibit R10 – Annexure I to R01
·Exhibit R11 – Annexure J to R01
·Exhibit R12 – Annexure K to R01
·Exhibit R13 – Annexure L to R01
·Exhibit R14 – Notice of Opposing Application for Extension of Time.
The matter was heard on 20 June 2018. The Applicant appeared in person. The Respondent was represented by Ms De Vito.
CONSIDERATION
The Tribunal will consider the following:
·Was there a significant delay in lodging an application to the Tribunal?
·Was the Applicant aware of his appeal rights and did the Applicant provide an acceptable explanation for the delay?
·Will the grant of an extension of time application prejudice the Respondent or the wider public?
·What are the merits of the Applicant’s substantial application – does the Applicant have reasonable prospects of success in proceeding with their substantial application?
·Does the Applicant have an alternative avenue of relief?
Was there a significant delay in lodging an application to the Tribunal?
The Tribunal notes and agrees with the Secretary’s contentions in relation to the length of the delay:
14. The Application for Extension of Time for Making an Application for Review of Decision (EOT Application), dated 8 May 2018, indicates that the Applicant received the relevant decision on 23 January 2018. Given that this was the date of the AAT1 hearing, it is assumed that this was not the date of receipt of the AAT1 decision.
15. The Notice of AAT’s Decision was dated 25 January 2018. It is assumed that the AAT1 decision was posted on this day. Subsection 29(1) of the Acts Interpretation Act 1901 states that meaning of service by post is that:
…the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
16. The Australia Post website states that it would take 2-6 business days by use of regular post for a letter to be sent from the AAT in Perth, WA, 6000 to the Applicant’s residence in Thornlie, WA, 6103. Therefore, it is assumed that the latest date the Applicant received the AAT1 decision is 2 February 2018.
17. The 28th day after 2 February 2018 is 2 March 2018. Accordingly, the 28 day limit to lodge an appeal with the AAT2 expired on 2 March 2018. The 28 day application limit is prescribed by subsection 29(2) of the AAT Act and refers to “day” not “working day”.
18. The Applicant’s Application was received by the AAT2 on 26 April 2018 according to AAT2 correspondence. Accordingly, the Applicant’s application is 55 days out of time (approximately 8 weeks). The Secretary contends that a delay of this kind constitutes a substantial delay in the statutory context.
19. The Secretary contends that it would not be reasonable in the circumstances to grant an extension of time for a delay of 55 days. The Secretary notes that there is a public interest in the efficient conduct of merits review processes, such that timely decisions can be made and acted upon with finality.
20. The length of delay involved in a case will be a relevant consideration. Moreover, even if the delay is not considered to be lengthy, the “brevity of the extension sought does not, however, lead automatically to an order extending the time” (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269, [16]).
21. The Secretary contends that the length of the delay weighs against the exercise of the discretion to grant an extension of time.
(emphasis added)
Was the Applicant aware of his appeal rights?
The Tribunal finds that the Applicant was aware of his appeal rights. The Tribunal notes under cross-examination, the Applicant confirmed that he was aware of the 28 day requirement timeframe for lodging applications for review to the Tribunal.
Did the Applicant provide an acceptable explanation for the delay?
As mentioned in paragraph 22, the Applicant stated that he was aware that by the time he submitted the application to the Tribunal for second review that he would be lodging that application outside of legislative timeframes. The Tribunal notes however, that the Applicant was in hospital, and was waiting for relevant medical reports.
The Tribunal notes the Secretary’s contentions in relation to this issue:
22. It is to be expected that an application for an extension of time would normally provide an acceptable explanation for the delay: Comcare v A’Hearn (1993) 45 FCR 441.
23. The Applicant has given the following reason for requiring an extension of time:
Due to ongoing medical treatment we have been awaiting further supporting documentation.”
24. The Secretary submits that the Applicant has not provided an acceptable explanation for his failure to lodge an application for review within the 28 day period prescribed under subsection 29(2) of the AAT Act.
25. It is likely that many applicants who are seeking review of a decision are seeking further supporting documentation for a second review of a decision, particularly those who have applied for a review of a decision regarding their qualification for DSP. A large number of applicants in that situation are able to meet the statutory time limits in relation to lodging appeals to the AAT2. It would be unfair to other applicants and potential applicants if the discretion to extend time was exercised in this case.
26. Further, if the Applicant wanted to make an application for second review for decision but was unsure whether new information was required to be adduced prior to application, he could have contacted the AAT to discuss what was required, rather than rest on his rights to apply for a second review of decision. There is no evidence that the Applicant contacted the AAT to discuss his difficulties in obtaining relevant medical information prior to the end of the 28 day period after receipt of the decision.
27. The Secretary submits that the Applicant’s stated reason is an unsatisfactory explanation for a delay of 8 weeks and the lack of any other explanation is a factor weighing against an extension of time.
28.The Secretary contends that even if the Applicant’s reason was to be accepted, the 28 day time limit prescribed by the legislation indicates Parliament’s intention that there ought to be finality in government decision making. The Applicant’s stated reason for the delay does not make it fair and equitable to depart from the legislative time period.
29. The letter sent by the AAT1 with the decision refers to the Applicant’s right of appeal to this Tribunal, and the 28 day time limit for an appeal.
30. In Re Grafton and Commonwealth (1988) 16 ALD 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, the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing
The Applicant’s explanation that he was waiting for further supporting documentation does not satisfy the Tribunal that this is a substantive reason for not lodging a second review within the 28 day requirement. He states in his application “Due to ongoing medical treatment we have been awaiting further supporting documentation
(emphasis added)
The Applicant gave the following oral evidence:
·He contacted the AAT within the 28 day requirement period, spoke to a receptionist and asked for documents for the purpose of making a second review to the Tribunal.
·He did not receive any documents, and 2 weeks later, whilst in hospital he again contacted the AAT for documents to be sent out.
·He said Dr Hamiliton rang the AAT in March or April 2018 and advised that medical reports would be forthcoming, but would take time.
·He received the documents and proceeded to obtain further medical reports, finally lodging the application for second review on 27 April 2018.
The Tribunal has undertaken a search to determine if there is any evidence on file to substantiate the Applicant’s explanation as to why his substantive application did not meet the requirements of subsection 29(2) of the AAT Act. The Tribunal finds that there is no evidence available to substantiate such explanation.
The Tribunal however finds that the Applicant came across as honest and truthful. The Tribunal also finds, when considering the Applicant’s testimony in paragraph 24, that there is a possibility for administrative mistakes to occur from time to time.
In considering whether the Applicant’s explanation is an acceptable explanation, the Tribunal is satisfied that the Applicant’s explanation is satisfactory and reasonable.
The considerations in paragraph 25 to 28 of this decision weigh in favour of granting this application for an extension of time.
Will the grant of an extension of time application prejudice the Respondent or the wider public?
The Tribunal notes the Secretary’s contentions:
31. The Secretary is not prejudiced by the EOT Application.
The Tribunal additionally notes the Secretary’s contentions in relation to the Applicant’s prejudice to the wider public:
32. As a general proposition it is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to the process.
33.The Secretary contends that the public interest and the interests of those applicants who comply with the 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 this should occur.
In relation to paragraph 30 of this decision, the Tribunal finds that there is no evidence before it that the length of time between hearings would prejudice the Secretary. The Tribunal finds that the Secretary will not suffer prejudice if an extension of time is granted. This finding weighs in favour of the Tribunal granting the Applicant an extension of time to lodge his application for review.
In relation to paragraph 31 of this decision, the Tribunal notes the public interest in the finality of decision-making, and the need to prevent disruption to established practices (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1). The Tribunal additionally notes the Tribunal’s objective, pursuant to section 2A of the AAT Act is to provide a fair, just, economical, informal and quick review process. The Tribunal finds that granting an extension of time may cause disruption to established Tribunal processes (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1), and may constitute an action that is inconsistent with the Tribunal’s objectives.

The Tribunal finds that it’s considerations in paragraph 33 do not weigh in favour the Applicant being granted an extension of time for review of his application.
What are the merits of the Applicant’s substantial application – does the Applicant have reasonable prospects of success in proceeding with their substantial application?
The Tribunal notes the Secretary’s contentions:
34. It is relevant to consider the merits of the proposed appeal: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J. 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: Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29], [38] per Hill J.
35. The Applicant has not provided any specific reason why he believes the AAT1 decision to be wrong. The Applicant stated in the Application that he has a number of medical conditions, is unable to attend medical appointments without assistance and his doctors have advised that he is unable and unfit for employment. The Applicant has attached three new medical reports to the Application:
(a)A letter from Dr Abu Abraham, Nephrologist, dated 8 March 2018 (Annexure A);
(b)A letter from Dr Paul Norman, Vascular Surgeon, dated 15 March 2018 (Annexure B); and
(c)Report from Dr Jamie Chew, Ophthalmology Registrar, dated 22 March 2018 (Annexure C).
36. The Secretary accepts that it cannot at this stage be said that the Applicant’s proposed appeal has no prospect of success. However, on the face of the AAT1 decision the proposed appeal does not disclose a particularly strong case.
37. In order to succeed in his substantive application for review, the Applicant would need to establish that he was medically qualified for DSP under subsection 94(1) of the Act.
38. Subsection 94(1) of the Act states:
A person is qualified for disability support pension if:
(a)The person has a physical, intellectual or psychiatric impairment; and
(b)The person’s impairment is of 20 points or more under the Impairment Tables; and
(c)One of the following applies:
(i)    The person has a continuing inability to work;
(ii)   The Secretary is satisfied that the person is participating in a program administered by the Commonwealth known as the supported wage system…
39. The Secretary accepts that the Applicant satisfies paragraph 94(1)(a) of the Act.
40. The Secretary contends that the Applicant does not satisfy paragraphs 94(1)(b) or (c) of the Act because the Applicant did not:
(a)have a severe impairment; or
(b) complete the program of support requirements.
41. Schedule 2, Part 2, Clause 4 of the Social Security (Administration) Act 1999 (the Administration Act) provides that the Applicant’s claim for DSP must be assessed based on his medical conditions as at the date of claim or within 13 weeks of that time (the qualification period): see Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606, [7]-[8].
42. The Secretary submits that the qualification period is 30 March 2017 to 29 June 2017.
43.In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks)…”
44. Bobera was cited with approval in Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following observation at [31]:
“In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the qualification period.”
45. In Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle in Fanning.
46. The Secretary contends that these decisions establish that a decision maker, such as the AAT2, can only consider the Applicant’s qualification for DSP within the qualification period
The Applicant did not have a severe impairment
47. Severe impairment is defined in section 94(3B) of the Act to mean an impairment of 20 points or more under a single Impairment Table under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
48. Subsection 6(3) of the Impairment Tables states that an impairment can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment is likely to persist for more than 2 years. An impairment is considered permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner and the condition has been fully treated and fully stabilised (subsection 6(4) of the Impairment Tables)
49. Subsections 6(5) and (6) of the Impairment Tables state:
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)    significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Diabetes and related conditions – chronic kidney disease and diabetic retinopathy
50. A medical certificate, dated 5 July 2017, completed by Dr Lydia Lamb of Fiona Stanley Hospital (FSH) noted a diagnosis of Type 2 diabetes with a date of onset of 2000. The certificate notes under ‘symptoms’ that the Applicant has chronic kidney disease, peripheral neuropathy, diabetic retinopathy and impaired vision. Insulin was noted as the primary treatment (Annexure D).
51. A medical certificate, dated 25 August 2018, completed by the Applicant’s GP, Dr Jamaluddin Jalaluddin, noted the Applicant’s Type 2 diabetes, describing the symptoms as “Poorly controlled diabetes causing 1) peripheral neuropathy (loss of sensation of feet) 2) chronic kidney disease stage 4 3) retinopathy 4) acute myocardial infarction.” Diabetic medication was noted as treatment (Annexure E).
52. Dr Emma Hamilton, consultant endocrinologist at FSH, stated in a report dated 30 September 2017 that the Applicant’s diabetes could “now be considered stable and will not improve, however will require ongoing careful monitoring and treatment.” Dr Hamilton confirmed the presence of diabetic retinopathy and chronic kidney disease resulting from the diabetic condition (Annexure F).
53. The Secretary accepts that the Applicant’s Type 2 diabetes itself is fully diagnosed. However, the Secretary contends that the diabetic retinopathy and the chronic kidney failure resulting from the Applicant’s diabetes was not fully diagnosed, treated and stabilised prior to and during the qualification period.
54. For a condition involving an impairment to visual function, such as diabetic retinopathy, to be assessed under Table 12 (Visual Function) of the Impairment Tables, the condition must be diagnosed by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist. Prior to and during the qualification period, there was no corroborating evidence from an ophthalmologist as to the Applicant’s visual impairment resulting from his diabetic retinopathy.
55. The Applicant has attached a report dated 22 March 2018 from Dr Jamie Chew, Ophthalmology Registrar, to his Application. This report diagnosed “Left chronic diabetic retinopathy with poor visual prognosis and right severe non-proliferative diabetic retinopathy (potential proliferative disease still under investigation).” (Annexure C).
56. This report was written a year after the date of claim. The report does not state the diagnosis to be retrospective. Further, the report indicates that even if the diagnosis was retrospective, the condition cannot be considered fully treated and stabilised prior to or during the qualification period. The report noted that the Applicant is to undergo “…fluorescein angiography in one month’s time and consideration of laser photocoagulation.” Given there are further treatment options that are being considered, the diabetic retinopathy cannot be considered fully diagnosed, treated and stabilised before, during, and after the qualification period.
57. Additionally, none of the medical evidence before the Secretary corroborates the extent of which the Applicant is visually impaired. The only indication of functional impairment was the Applicant’s self-reported evidence at the AAT1 hearing that he has no vision in his left eye.
58. The Secretary accepts that the Applicant has been diagnosed with chronic kidney disease and the treatment of this condition was complicated by the applicant’s other medical issues. However, there is no medical evidence that this condition was fully treated and stabilised prior to and during the qualification period. The report by Dr Hamilton was written on 30 September 2017, three months after the end of the qualification period, and indicates that it was only at the time of writing the report that the chronic kidney disease was stabilised.
59. The Applicant attached a letter dated 3 March 2018 from Dr Abu Abraham, nephrologist, to his Application. This letter was written almost a year after the date of claim. This letter confirmed the chronic kidney disease diagnosis and stated that the condition has been fully diagnosed, stabilised and it was being treated appropriately. The letter gives further weight to the contention that it was only after the qualification period that the chronic kidney disease could be considered fully diagnosed, treated and stabilised (Annexure A).
60. The Secretary contends that the impairments arising from the Applicant’s chronic kidney disease, even if capable of attracting points under any of the Tables listed in the Impairment Tables (which is not conceded), are not able to be assigned any points. This is due to lack of corroborating evidence by Dr Hamilton or Dr Abraham of the extent of how this condition affects the Applicant’s everyday functioning.
61. Dr Abraham’s letter noted the condition has “a functional impact on activities requiring physical exertion and stamina. He experiences symptoms when performing any physically demanding activities and even daily functions and household duties.” The statement by Dr Abraham does not adequately provide a description as to how the chronic kidney disease affects the Applicant’s functioning for the purpose of assessing the Applicant under Table 1 (Functions requiring Physical Exertion and Stamina) of the Impairment Tables.
62. The Secretary contends in concurrence with the AAT1 decision that in the absence of any further medical or specialist evidence, these conditions were not fully treated and stabilised at the qualification period and cannot be assigned an impairment rating. (Emphasis added)
Lower limb conditions - Peripheral vascular disease and diabetic foot disease
63 A medical certificate completed by Dr Jalaluddin, dated 18 April 2017, diagnosed the toe amputation of the Applicant’s left foot and noted that the Applicant could not weight bear (Annexure G).
64. Dr Hamilton’s report stated that the Applicant “required amputation of the left 4th and 5th toes and has required a number of further admissions for surgical debridement of the wound and shortening/removal of the 5th metacarpal stump.” It is mentioned that the diabetic foot infection was complicated by the presence of peripheral vascular disease (Annexure F).
65. The report stated that the Applicant “has been advised to reduce pressure through the left foot with off-loading footwear and minimal weight bearing.” Dr Hamilton noted that the “foot wound may take between 3 and 12 months to heal and perhaps even longer.” She also described the potential symptoms that the Applicant may suffer.
66. The Applicant reported to the AAT1 at the hearing that his left foot is still healing.
67. The corroborating evidence indicates that the treatment for the amputation was continual prior to and during the qualification period. Therefore, the Applicant’s left foot amputation was not fully diagnosed, treated and stabilised for the purpose of his DSP claim.
68. The Applicant reported to the AAT1 at the hearing that tests have shown there are also circulation problems in his right leg. Prior to and during the qualification period there is no corroborating evidence of circulation problems in the Applicant’s right leg.
69. The Applicant has attached a letter dated 15 March 2018 from Dr Paul Norman, vascular surgeon, to his Application (Annexure B). Dr Norman stated:
“Mr Jones has a significant lower limb arterial disease. This has required intervention on the left side as part of managing his diabetic foot disease. He has disease on his right side causing claudication – severe calf muscle pain which limits his walking to very short distances. Given all his other medical problems, it is unsafe to treat the right leg arterial disease at present.”
70.      Dr Norman’s letter was written almost a year after the date of claim. The letter further indicates that the Applicant’s lower limb conditions collectively were not fully diagnosed, treated and stabilised prior to or during the qualification period, and that it was only after some time had passed after the amputation of the toes of the left foot that the conditions have been treated and stabilised.
71. The Secretary contends that the impairments arising from the Applicant’s lower limb conditions, even if capable of attracting points under Table 3 (Lower Limb Function) of the Impairment Tables (which is not conceded), are not able to be assigned any points. There is a lack of corroborating medical evidence as to how the Applicant’s lower limb conditions affected his everyday functioning prior to and during the qualification period.
72. The Secretary contends in concurrence with the AAT1 decision that in absence of any further medical or specialist evidence, this condition was not fully diagnosed, treated and stabilised at the qualification period and cannot be assigned an impairment rating. (Emphasis added)
Ischaemic heart disease and anaemia
73. A medical certificate completed by Dr Jalaluddin, dated 24 March 2017, diagnosed that the Applicant had acute heart failure, noting that it was an exacerbation of an existing condition. Noted treatment was listed as medications (Annexure H).
74. The Applicant’s conditions of congestive cardiac function and ischaemic heart disease were noted in a letter completed by Dr Jalaluddin on 4 August 2017 (Annexure I).
75. A medical certificate completed by Dr Jalaluddin, dated 25 August 2017, noted the diagnosis of congestive cardiac failure and noted the Applicant’s symptoms as “Reduced effort tolerance or capacity to exert self (eg cannot walk short distances, current capacity is from bedroom to front door before he feels breathless.” (Annexure E).
76. Dr Hamilton’s report dated 30 September 2017 stated, in relation to the Applicant’s ischaemic heart disease:
“He has undergone coronary angiography which revealed severe disease in a small right coronary artery and moderate disease in the other coronary arteries. Following his myocardial infarction, he has experienced a significant reduction in his exercise tolerance. Unfortunately, his current diabetic foot problems have limited his ability to participate in cardiac rehabilitation. His ischaemic heart disease is being managed medically (with a number of medications including antiplatelet agent, lipid lowering therapy, and antihypertensive) and no bypass surgery or coronary artery stenting is planned. This condition is now considered stable, with no further improvement expected.”
77.      Dr Hamilton’s report further stated, in relation to the Applicant’s anaemia:
“Mr Jones has experienced a number of episodes of severe anaemia requiring blood transfusion secondary to bleeding from the gastrointestinal tract. The bleeding source is a Dieulafoy lesion which has been clipped on at least two occasions. Bleeding was most likely exacerbated by the need for antiplatelet therapy for ischaemic heart disease. Mr Jones was most recently admitted for further investigation and management of this problem in September 2017. No further investigations are planned at this stage. This condition is now considered stable unless further bleeding occurs.”
78. Dr Hamilton’s report is evidence that the Applicant’s ischaemic heart disease and anaemia was fully diagnosed, but not fully treated and stabilised prior to and during the qualification period. It was only after September 2017, being three months after the qualification period, that treatment options had been exhausted for both conditions.
79. Further, the Secretary contends that the impairments arising from the Applicant’s ischaemic heart disease and anaemia, even if capable of attracting points under any of the Tables listed in the Impairment Tables (which is not conceded), are not able to be assigned any points. This is due to lack of corroborating evidence by Dr Hamilton or Dr Jalaluddin of the extent of how this condition affects the Applicant’s everyday functioning. While it is indicated in the above-mentioned reports that the Applicant has effort intolerances, the information is not specific enough to properly assess the Applicant under Table 1 of the Impairment Tables.
80. The Secretary contends in concurrence with the AAT1 decision that in absence of any further medical or specialist evidence, this condition was not fully treated or stabilised at the qualification period and cannot be assigned an impairment rating. (Emphasis added)
Hearing loss
81. On 14 November 2016, a referral confirmation for a future appointment at an Ear, Nose and Throat (ENT) Clinic was sent to the Applicant from the Outpatient Department of the Royal Perth Hospital (Annexure J). It did not specify an exact date for an appointment for the Applicant. There is no evidence that the Applicant has attended any such appointment.
82. A medical certificate completed by Dr W Chin on 29 December 2016 diagnosed the Applicant’s bilateral hearing loss, and noted that the symptoms are “likely to show considerable improvement within 2 years.” (Annexure K)
83. Consistent with the AAT1 decision, the Secretary contends that the Applicant’s hearing loss has not been fully diagnosed, treated or stabilised, as there has been no   medical confirmation of a diagnosis by an appropriately qualified medical practitioner with supporting evidence from an audiologist or ENT specialist. Supporting evidence from an ENT specialist is required for a hearing condition to be considered under Table 11 (Hearing and other Functions of the Ear) of the Impairment Tables. (emphasis added)
Impairment Points
84.      The Secretary submits that the all of the Applicant’s conditions were not fully treated and stabilised at the qualification period, and therefore cannot be considered permanent for the purposes of subsection 6(3) of the Impairment Tables. As the Applicant’s conditions are not permanent, no impairment points can be assigned.
85.      The Secretary contends that the impairments arising from the Applicant’s conditions, even if they were considered fully treated, stabilised and capable of attracting at least 20 points across a number of Tables (which is not conceded), would clearly not attract a rating of 20 points under a single Impairment Table. Given the Applicant does not have a severe impairment, he must meet the program of support requirements, as set out below.
The Applicant did not complete the program of support requirements
86. Subsection 94(2) of the Act states:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
87. Subsection 94(3C) states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection. The legislative instrument is the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination)
88.      In order to find that a person has a continuing inability to work, a person must have completed 18 months of a program of support within the previous three years of the date of claim or otherwise suffer a severe impairment (subsection 94(2)(aa) of the Act).
89. The Tribunal has strictly enforced the program of support requirement finding that no power exists to dispense with the operation of paragraph 94(2)(aa) of the Act, and that it is irrelevant whether the Applicant was aware of the requirement or not (Augustynski and Secretary, FaHCSIA [2013] AATA 507; VMXC and Secretary, FaHCSIA [2013] AATA 663; Kok Yong Tey and DSS [2013] AATA 753; Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158).
90. The Secretary refers to the Referral Placement History (Annexure L) which shows that the Applicant did not complete 18 months of active participation in a program of support within the 3 years prior to claiming DSP.
91. There is no evidence that any of the exemptions in subsections 7(3)-(5) of the Participation Determination would apply to the Applicant.
92. The Secretary contends that the Applicant has not met the program of support requirements and, as a result, does not have a continuing inability to work.” (Emphasis added)

The Tribunal notes the Applicant’s contentions: that the AAT1 did not have access to additional supporting documentation in support of his substantive application. The Tribunal considers that this may be the case; however, such supporting documentation would nevertheless unlikely, in the view of the Tribunal, greatly assist the Applicant in improving his prospects of success.
This accordingly, weighs against an extension of time being granted to the Applicant.
Does the Applicant have an alternative avenue of relief?
The Tribunal notes Respondent’s contentions:
93. Consideration of an application for extension of time involves an assessment of the prejudice that may be suffered by the various parties. Where, for example, a refusal of an extension of time would shut the Applicant out finally and entirely from particular relief, this may weigh in favour of any extension of time (Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516).
94. To refuse an extension of time in this case would not have the effect of entirely denying the Applicant any relief. It is open for the Applicant at any time to lodge another claim for DSP, particularly if his evidence is that his conditions have deteriorated or he has now undertaken the recommended treatment. In circumstances where the appeal period has expired, the Secretary contends that the Applicant should pursue this avenue rather than be indulged with an extension of time.
95. It is also open to the Applicant to, at any time, apply for any further pensions, benefits or allowances as required
The Tribunal agrees. The Applicant may well be able to substantiate his case with a new application based on new evidence.
The Tribunal finds that it’s finding in paragraph 39 of this decision weighs against the Tribunal granting the Applicant an extension of time to lodge his application for review.
CONCLUSION AND DECISION
The Tribunal notes that all factors that are relevant to a particular case have to be weighed together in reaching a decision as to whether or not to grant an extension of time, however no one factor carries primacy over others. (Zizza v Federal Commissioner of Taxation [1999] FCA 37). On balance, when considering all factors that are relevant to this matter, the Tribunal refuses to grant this application for an extension of time to lodge an application for review of the decision of AAT1 dated 23 January 2018.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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Associate
Dated: 16 July 2018

Date(s) of hearing: 20 June 2018

Applicant: In person

Solicitors for the Respondent: Rosanna De Vito

[2018] AATA 2243

16 July 2018

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Remedies

Standing

Statutory Construction

Date(s) of hearing:	20 June 2018
Applicant:	In person
Solicitors for the Respondent:	Rosanna De Vito