Kovari and Secretary, Department of Family and Community Services

[2004] AATA 853

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 853

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/833

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Gabor Kovari and Mrs Lidia Kovari

Applicants

And Secretary, Department of Family and Community Services

Respondent

WRITTEN REASONS OF ORAL DECISION

Tribunal Ms N Bell, Senior Member

Date3 August 2004

PlaceSydney

Decision Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides, for the reasons given orally, not to exercise the discretion to grant an extension of time for the Applicant, pursuant to s29(7) of the Act, for the lodgement of an application for review of the reviewable decision dated 6 July 2004.

….....................................

Ms N Bell,

Senior Member

SOCIAL SECURITY – Application for Extension of Time – Section 92(c) - Merit

Social Security Act 1991

Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 7 ALD 315

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

WRITTEN REASONS FOR ORAL DECISION

3 August 2004   Ms N Bell, Senior Member

1.Mr and Mrs Kovari had each been in receipt of Age Pension payments from 15 May 1997, at the rate of $24.20 per fortnight.  On 1 March 2004, Mr and Mrs Kovari claimed the Pension Bonus, under the Pension Bonus Scheme.  Their claims were rejected on the basis that they were already in receipt of the Age Pension. 

2.Mr and Mrs Kovari requested that the refusal to grant them the Pension Bonus be reviewed and Centrelink affirmed the refusal on 23 and 25 March.  The Social Security Appeals Tribunal (“SSAT”), on 26 May 2004, affirmed the previous decisions made, not to grant the Pension Bonus to Mr and Mrs Kovari.

3.Mr and Mrs Kovari made an application to the Administrative Appeals Tribunal, on 6 July 2004, and therefore may only lodge their application for review of the SSAT’s decision if an extension of time to lodge is granted.

4.The principles that I am to consider, in order to come to a decision as to whether an extension of time should be granted, are settled.  These principles are outlined in the cases of Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305 and Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121. The relevant matters for consideration in relation to this application are those relating to the reason for the delay and the merits of the substantive application.

length of and reason for the delay.

5.In Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (supra), Wilcox J stated:

“

It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.” (at pages 310-311)

6.Mr and Mrs Kovari are approximately one week out of time.  The Respondent contended that the 28 day appeal period should not be ignored unless there is a very good reason to do so.

7.Mr Kovari explained, with the assistance of an interpreter in the Hungarian language, that they were under the impression that they had 13 weeks to arrange for an application to be submitted to the Tribunal.  Mr Kovari added that they cannot write in English and their spoken English is somewhat limited so they were waiting for their daughter, who was overseas at the time, to return so that she could assist them.

merits of the substantive application

8.In the decision in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, Von Doussa J stated:

“

One of the principle considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal.  If considerations of the merits indicate that there is no question to be agitated on appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the cost of defending a pointless appeal.”  (at 121)

9.Mr and Mrs Kovari made an application for a Pension Bonus on the basis that section 92C of the Social Security Act 1991 (“the Act”) is “out of line” with the Age Pension system of payment.  Mr Kovari contended that they were eligible for the Age Pension before they were eligible for the Pension Bonus, and maintained that there “is something not right about these rules”.

10.Section 92C of the Act provides:

“

Qualification for pension bonus

A person is qualified for a pension bonus if:

(a)  both:

(i)  the person starts to receive an age pension at or after the time when the person makes a claim for the pension bonus; and

(ii)  that age pension is received otherwise than because of a scheduled international social security agreement (within the meaning of section 1208); and

(b)the person has not received an age pension at any time before making a claim for the pension bonus; and

(c)the person is registered as a member of the pension bonus scheme; and

(d)the person has accrued at least one full-year bonus period while registered as a member of the pension bonus scheme; and

(e)the person has not received:

(i)a social security pension (other than an age pension or a carer payment); or

(ii)a social security benefit; or

(iii)a service pension (other than a carer service pension); or

(iv)an income support supplement (other than an income support supplement that is payable as a result of the operation of subclause 8(3) of Schedule 5 to the Veterans’ Entitlements Act);

at any time after the person qualified for an age pension; and

(f)the person has not already received:

(i)another pension bonus; or

(ii)a bonus under Part IIIAB of the Veteran’s Entitlements Act.”

11.The Respondent’s primary opposition to the Applicant’s request for an extension of time, is that the substantive application has no prospects of success. The Respondent stated that there is no provision in section 92C of the Act or elsewhere for the consideration of special circumstances. The Respondent stated the provision makes it clear that a claimant must not have received any Age Pension, in full or in part, at any time, before making a claim for the Pension Bonus. On this basis, the Respondent submitted that Mr and Mrs Kovari have no prospect of succeeding with their claim and thus allowing such a claim to be made would be an unnecessary burden on the Commonwealth and would give Mr and Mrs Kovari false hope.

consideration

12.The fact that Mr and Mrs Kovari’s Application is about one week out of time does not concern me, as it has been sufficiently explained by Mr and Mrs Kovari.  I note however, that satisfying this principle alone, does not warrant the grant of an extension of time.

13.What does concern me is that Mr and Mrs Kovari have no prospect of success, should the substantive matter be heard. Section 92C of the Act makes it abundantly clear that a person may not qualify for the Pension Bonus if they have been in receipt of the Age Pension. Mr and Mrs Kovari have received at least part-payments of the Age Pension from 1997. The Tribunal has discretionary power that would allow it to take account of any other matters of a special nature. For this reason I must refuse the application for an extension of time.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         Linda Blue.................................................
  Associate

Date of Hearing  3 August 2004
Date of Decision  3 August 2004
Solicitor for the Respondent     Mr Andrew Zhang