Koster and Secretary, Department of Education, Science and Training

[2005] AATA 881

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 881

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/163

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALEXANDRA KOSTER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Mr JG Short (Member)

Date9 September 2005

PlaceAdelaide

Decision The Tribunal extends the time for filing an application for review to 17 June 2005.

..............................................

JG SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – application for extension of time – three year delay attributed in part to a failure to understand the decision – extension of time granted

Social Security Act 1991

Administrative Appeals Tribunal Act 1975 s 29

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

9 September 2005   Mr JG Short (Member)

1. On 17 June 2005 the Tribunal received an application for an extension of time within which to file an appeal against a decision. The original decision was made by a Centrelink officer on 22 November 2001. It was to raise and recover an overpayment of Youth Allowance amounting to $7,312.81, covering the period from 2 February 2000 until 17 October 2001. An Authorised Review Officer decided to amend the start date of the overpayment to 3 February 2000. This reduced the overpayment to $7312.81. The Authorised Review Officer also decided to further reduce the recoverable amount of the debt to $7,048.53 by waiving the amount of $253.71 for the period 3 February 2000 until 30 June 2000 pursuant to s 1237AAC of the Social Security Act 1991 (the Act). 

2.      Following a hearing conducted on 13 May 2002, the Social Security Appeals Tribunal (the SSAT) affirmed the decision to raise an overpayment of Youth Allowance in the sum of $7,048.53, and decided to set aside the decision to recover the debt and to substitute a new decision that recovery of the overpayment should be written off and reviewed in 12 months time.  I accept that Ms Koster would have received notice of the decision on or before 27 May 2002.  This last mentioned date is the date the respondent (the Department) received notice of the decision.

3.      In considering applications for an extension of time I am required to consider the factors described in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. In that decision the Federal Court of Australia listed six relevant factors. Submissions were invited from the applicant’s mother, Ms Tanya Scobie, and from the Department’s representative, in respect of each of those factors.

4.      The Hunter Valley case first requires me to note that no onus of proof is placed upon the applicant for an extension of time but that a Court, or in this case the Tribunal, will not grant an application unless positively satisfied that it is proper to do so.  In this case I note that the SSAT decision was made in May 2002 and it was not until June 2005 that Ms Scobie lodged an application for review by the Administrative Appeals Tribunal (AAT) and for an extension of time to facilitate that review.  This is a period well beyond the 28 days prescribed in the legislation.

5.      The explanation for the delay provided by Ms Scobie was that the SSAT decision referring as it did to a direction that “the overpayment should be written off and reviewed in 12 months time”, led Ms Koster and her mother to consider that the decision had been favourable.  I note that the decision was described as “partly successful”. 

6.      Ms Scobie said that it was not until June 2003 that she and her daughter became aware that Centrelink were in fact pursuing recovery of the debt.  Ms Scobie said that at and around the time the decision was made, she had been involved in stressful matrimonial and child support proceedings.

7.      Mr Goldsworthy, on behalf of the Department, pointed out that the application to the SSAT involved a serious matter, that is a debt of over $7,000.  He suggested that as a consequence, if the applicant had not fully understood the effect of the SSAT decision, then the applicant should have sought clarification. 

8.      Ms Scobie said that after June 2003 she did not realise that she could lodge an application for an extension of time with the AAT until she received advice to that effect in about June 2005. 

9.      In relation to possible prejudice experienced by the Department in granting the application, Mr Goldsworthy said that as approximately five years had now passed Centrelink staff’s memories are likely to be fading, perhaps in respect of statements allegedly made by Ms Scobie to Departmental staff in relation to her daughter’s payments.  Ms Scobie said however that Departmental staff memory was not particularly relevant as she concedes that when she spoke to Centrelink staff in order to advise that her income had increased she did not specifically mention her daughter’s payments.  She simply assumed that Centrelink would automatically note her advice on her daughter’s file

10.     In relation to the possible unsettling of other people or of established practices, Mr Goldsworthy submitted that the public had a right to expect that appeals to the AAT would be lodged within 28 days and that certainty of law is in the public’s interest.  Ms Scobie did not make any submission in relation to this issue.

11.     In relation to the potential merits of the application Ms Scobie referred to what she considered to be Departmental error in failing to enter her advice in respect of an increase in income and cessation of Centrelink benefits, on her daughter’s file and to Centrelink’s failure to advise Ms Scobie that it was necessary for her to provide separate advice so that it could be entered on her daughter’s file.  Ms Scobie also said that she was unaware that the monies paid to her account for her daughter’s use were monies to which her daughter was not entitled.  She understood that because her daughter was on a low income she was entitled to receive these monies.  Mr Goldsworthy submitted that although it was a possibility that the decision made by Centrelink might be changed by the AAT if the application were successful, nevertheless he contended that the case was not strong and that no new evidence had been provided. 

12.     In relation to fairness as between the applicant and other persons in like positions Ms Scobie said that she could not comment on fairness in respect of other people but felt that it was important that fairness be provided to her and her daughter.

consideration

13.     I have considered all of the evidence and submissions provided by the applicant’s representative and by the Department.  I accept that there was a significant delay (approximately three years) in lodging the application and that the applicant should have been more careful in reading the decision made by the SSAT.  Nevertheless I consider that the expression used by the SSAT in making its decision, a term also used in the legislation “written off” is one which could lead a reader to consider that recovery of the debt would not be pursued.  I make this observation notwithstanding that the SSAT decision did refer to a further review in 12 months’ time.  Ms Scobie said that she understood that the whole issue would be reviewed again in 12 months’ time.  This in part explains a delay, at least until June 2005, in lodging an application for extension of time.  I have also noted and accepted that Ms Scobie’s marriage breakdown and child support proceedings introduced a lot of stress into the household.  I further accept that neither Ms Scobie nor Ms Koster were specifically advised until about June 2005 that an application for extension of time may be lodged with the AAT.

14.     I do not consider that substantial prejudice would be caused to the Department by granting the application.  I note that the merits of the application involve an exercise of a discretion and in the light of all of the circumstances of this case I find myself satisfied that it would be appropriate to grant the application.  The Tribunal consequently extends the time for filing an application for review until and including 17 June 2005.

I certify that the 13 preceding paragraphs are
a true copy of the reasons for the decision
herein of Mr JG Short (Member)

Signed:         .....................................................................................
  Assistant

Date/s of Hearing  5 August 2005
Date of Decision  9 September 2005
Advocate for the Applicant       Ms T Scobie
Solicitor for the Applicant          -
Advocate for the Respondent   Mr C Goldsworthy
Solicitor for the Respondent     Centrelink Legal Services Branch