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

[2018] AATA 1852

Lacey and Secretary, Department of Social Services (Social services second review) [2018] AATA 1852 (22 June 2018)

Division:GENERAL DIVISION

File Number:          2018/1931

Re:Phuong Lacey

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:22 June 2018

Place:Perth

The Applicant’s application for an extension of time to lodge an application for review of the decision of AAT1 dated 8 December 2017 is refused.

...(Sgd).........................................................

Member C Edwardes

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – applicant lodged substantive application 12 weeks after required date – Tribunal not satisfied that reasonable in all circumstances to grant extension of time – mobility pension arrears – application for extension of time refused

LEGISLATION

Acts Interpretation Act 1901 (Cth) – s 28A – s 29

Administrative Appeals Tribunal Act 1975 (Cth) – s 2A – s 25(1) – s 29(2) – s 29(7)
Social Security Act 1991 (Cth) – s23 – s1035

Social Security (Administration) Act 1999 (Cth) – s 109 – s 109(1) – s 109(2) – s 109(7) – s 129

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 45 FCR 441
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re CSIRO and Barbara (1987) 11 ALD 447
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

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

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

REASONS FOR DECISION

Member C Edwardes

22 June 2018

THE APPLICATION

1. This is an application for an extension of time (the extension of time application) to make an application for review of a decision, dated 8 December 2017, made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the decision to refuse the Applicant her claim for mobility allowance arrears.

   INTRODUCTION

2. The Department of Human Services (the Department) made a decision not to pay the Applicant arrears of mobility allowance for the period 19 September 2016 to 2 April 2017.

3. The Department stated in a notice dated 24 June 2016 and addressed to the Applicant:

   You will continue to receive Mobility Allowance until 17 September 2016. After this date you will no longer receive Mobility Allowance.

   To continue receiving Mobility Allowance after this date, you will need to be involved in more than 32 hours of work related training and/or work and/or voluntary work over a four week period (R1 5).

4. On the 19 September 2016 a notice was sent to the Applicant’s address advising cancellation of the Mobility Allowance from 19 September 2016. The notice stated:

   Your mobility Allowance has been cancelled from 19 September 2016 because you stopped work, training, voluntary work or job search activities with your Employment Services Provider more than 12 weeks ago (R1 7).

5. The Applicant requested a review of that decision.

6. On the 16 June 2017 an Authorised Review Officer (ARO) determined that the decision of the Department was correct.

7. The ARO’s decision stated:

   You are requesting arrears of Mobility Allowance from when the payment cancelled on 19 September 2016 to 2 April 2017 from when the payment was re granted as you were still involved in an approved activity.

   There are two factors relevant to the date of effect: how quickly a review of the original decision was sought, and whether or not notice of the original decision was given to the person.

   The interaction of these two factors has significant consequences for deciding the date of effect of the favourable determination:

   (a)if notice of the original decision was given to a person and the person requested a review within 13 weeks after being given the notice, the date of effect of the favourable determination is the date of effect of the original decision

   (b)if notice of the original decision was given to a person and the person requested a review more than 13 weeks after being given the notice, the date of effect of the favourable determination is the date the review was requested.

   As such arrears can only be paid within thirteen weeks from the date a decision is made. Your request for review, 3 April 2017, is more than 13 weeks after the letter sent to you on 19 September 2016 advising you of the cancellation of Mobility Allowance, therefore arrears are not payable, as defined in Section 109 of the Admin Act (R1 10).

8. The AAT1 received an application for review on 24 August 2017.

9. The AAT1 hearing was conducted on 8 December 2017 and the Applicant was assisted with an interpreter.

10. The AAT1 affirmed the decision of the ARO and stated the following:

    Issue – Can Mrs Lacey be paid arrears of mobility allowance?

    9A person may apply for review of a decision (the original decision) made by Centrelink (section 129 of the Administration Act [the Social Security (Administration) Act 1999 (Cth)]). If a person applies for review within 13 weeks of receiving notice of an original decision and a favourable decision is made as a result of the review, the review decision has effect from the same date as the original decision (subsection 109(1) of the Administration Act). However, if a person applies for review more than 13 weeks after receiving that notice, the favourable review decision has effect from the date of request for review (subsection 109(2) of the Administration Act). If a person’s rate is increased by indexation they are deemed to have been given notice of the decision on the date the amount was indexed (subsection 109(7) of the Administration Act).

    10Section 109 of the Administration Act refers to decisions made “in relation to a person’s social security payment”. Section 23 of the Act defines “social security payment” to include an allowance under the Act. Mobility allowance is an allowance under the Act (section 1035 of the Act).

    11On 24 June 2016 Centrelink sent Mrs Lacey a letter advising that she would continue to receive mobility allowance until 17 September 2016 and after that date the payment would cease. The letter also advised Mrs Lacey that to continue receiving mobility allowance after that date, she would need to be involved in more than 32 hours of work related training and/or work and/or voluntary work over a four-week period.

    12On 19 September 2016 Centrelink sent Mrs Lacey a letter advising that her mobility allowance had been cancelled because she had stopped working, training, voluntary work or job search activities.

    13On 3 April 2017 Mrs Lacey lodged a claim for mobility allowance and her claim was granted from that date. Mrs Lacey is seeking arrears of mobility allowance for the period 19 September 2016 to 2 April 2017 on the basis that during that period she was still involved in an approved activity.

    14Mrs Lacey told the Tribunal that she did not receive the letter dated 19 September 2016. She thought Centrelink were paying her mobility allowance when she was studying in 2016. She believed her mobility allowance payments would resume when she commenced studying again in 2017. She did not notice that she had stopped receiving mobility allowance in 2016.

    15Mrs Lacey confirmed that the letter dated 19 September 2016 was sent to her at the correct address. The Tribunal asked Mrs Lacey whether she had experienced any problems with receipt of her mail. She explained that she lives in a block of four units. She said the mail is sometimes unreliable. Mrs Lacey showed the Tribunal a letter which she said had fallen on the ground and had been exposed to weather.

    16The Tribunal referred Mrs Lacey to the letter dated 24 June 2016 in which she was advised that her mobility allowance payments would cease after 17 September 2016. Mrs Lacey repeated that she was not aware that her mobility allowance had ceased.

    17During the hearing Mrs Lacey produced the authorised review officer’s letter dated 16 June 2017 which was addressed to the same address as the letters dated 24 June 2016 and 19 September 2016.

    18Regarding non-receipt of the letter dated 19 September 2016, the Tribunal had regard to sections 28A and 29 of the Acts Interpretation Act 1901 which provide that it is presumed, unless rebutted, that service is affected by properly addressing, prepaying and posting a letter to the address of the person last known to the person serving the document. Mrs Lacey said that receipt of her mail can be unreliable because she lives in a block of units. The Tribunal did not consider this evidence sufficient to rebut the presumption. Accordingly the application of sections 28A and 29 means that Mrs Lacey is deemed to have received the letter dated 19 September 2016.

    19Mrs Lacey confirmed that following the cessation of her mobility allowance payments, she did not apply for mobility allowance again until 3 April 2017. She queried the reason she had not been paid mobility allowance from when she commenced studying in February 2017. The Tribunal explained that generally payments commence from the date a person makes a claim.

    20Subsection 109(2) of the Administration Act provides that if a review is requested more than 13 weeks after a notice is given, a favourable determination takes effect from the day on which the application for review is requested.

    21Mrs Lacey was advised of the decision to cease payment of mobility allowance in the letter dated 19 September 2016. She requested a review on 3 April 2017, which was more than 13 weeks after the date of notice of the original decision.

    22The application of subsection 109(2) means that arrears are not payable to Mrs Lacey (A1 6-8).

11. On the 24 April 2018 the Applicant filed an Application for Extension of Time (A1). She stated in the reason for the application that “I needed more time to understand the form because English is not my first language” (A1 2).

    ISSUE

12. The Applicant was sent the AAT1 decision on 14 December 2017.  The Applicant lodged her extension of time application on 24 April 2018 to the Administrative Appeals Tribunal (the Tribunal). Pursuant to subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), generally, an application for review is to be lodged in the 28 days after the applicant has received notice of the relevant decision for review.  Accordingly, the Applicant lodged her extension of time application 12 weeks out of time.

13. 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 on the 8 December 2017.

    RELEVANT LEGISLATION AND LEGAL PRINCIPLES

14. Generally, under subsection 29(2) of the AAT Act, an application for review must generally be lodged in the 28 days after the Applicant has received notice of the decision.

15. 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.

16. 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...”.

17. 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:

    6…

    (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.

18. The Tribunal also 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:

    2…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) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] 1 VR 297 at 302).

    3Action 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) 42 ALR 283 at 287)(Doyle)).

    4Any 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 27).

    5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic v Nolan and Others [1982) 4 ALN N176 (Lucic)).

    6The 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).

    7Considerations 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).

19. The Tribunal notes that the Tribunal may consider a number of factors in considering whether or not to grant an application for an extension of time.  However no one factor carries primacy over others.  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 (Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451). Other factors include:

    ·length of delay – was there a significant delay in lodging an application to the Tribunal (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269);

    ·explanation for delay – the Applicant is to show an acceptable explanation for the delay (Re CSIRO and Barbara (1987) 11 ALD 447); and

    ·whether the Applicant was aware of their appeal rights (Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248).

    EVIDENCE

20. The Tribunal received the following evidence:

    ·Application for Extension of Time for Making an Application for Review of Decision dated 24 April 2018 and attached AAT1 Decision dated 9 April 2018 (A1).

    ·Application for Second Review of Decision dated 9 April 2018 (A2).

    ·Secretary’s Outline of Submissions dated 8 May 2018 (R1).

21. The matter was heard on 18 June 2018. The Applicant appeared by phone and the Respondent was represented by Ms Chua from the Department of Human Services. The Applicant was assisted by an interpreter.

22. After substantial questioning of the Applicant, the Tribunal was satisfied that she understood the basis of her application and the submission of the Secretary.

23. This was re-enforced by the translation by the interpreter of the Secretary’s submission and the discussions that followed.

24. The Respondent had no questions for the Applicant.

25. The Respondent outlined her oral submission which was aligned to the Secretary’s submission of 8 May 2018 (R1). This was translated to the Applicant by the Interpreter.

26. The Applicant stated that she:

    ·had significant communication difficulties;

    ·has undertaken English lessons;

    ·did not receive the notice of cancellation of 19 December 2016, however confirmed she has resided at the same address for about 8-9 years;

    ·attended Centrelink many times relating to her mobility allowance in order to get advice;

    ·only found out about the cancellation of the allowance in April 2017, when she attended Centrelink to claim an allowance for her English lessons; and

    ·did not lodge her application in time because Centrelink had told her it would not be accepted.

27. The Tribunal finds the Applicant to have great difficulties understanding the various processes of government. This is exacerbated by language difficulties and the confusion she experiences in her interface with Centrelink.

    CONSIDERATION

28. The Tribunal will consider the following:

    ·Was there a significant delay in lodging an application to the Tribunal?

    ·Was the Applicant aware of her 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 substantive application? 

    ·Does the Applicant have an alternative avenue of relief?

    Was there a significant delay in lodging an application to the Tribunal?

29. The Tribunal notes and agrees with the contention of the Secretary in respect to the delay in lodging an application for second review:

    21The length of delay involved in a case will be a relevant consideration. 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]

    22The application for an extension of time indicates that the Applicant received the relevant decision on 20 December 2017 and the application was lodged on 9 April 2018, 12 weeks outside the 28 day review period. It is contended that this is not an insignificant length of delay and a delay of this length should be accompanied by a satisfactory explanation. The Secretary submits that the Applicant’s reason that she needed assistance because of language difficulties does not warrant this length of delay.

    23The length of delay is therefore not insignificant and is a factor weighing against the grant of an extension of time in this case (R1 3).

30. The Tribunal finds that the Applicant’s delay in lodging an appeal with the Tribunal weighs against the Tribunal granting the Applicant an extension of time to lodge her application for review. Her explanation is not satisfactory.

    Was the Applicant aware of her appeal rights and did the Applicant provide an acceptable explanation for the delay?

31. The Tribunal notes and agrees with the Secretary’s contentions in relation to the Applicant’s awareness of her appeal rights and explanation for delay:

    16It is to be expected that an Applicant for an extension of time would normally provide an acceptable explanation for the delay: Comcare v A’Hearn (1993) 45 FCR 441, 444.

    17On the application form, the Applicant explained her reason for the delay as being that she “needed more time to understand the form because English is not my first language”.

    18The Secretary submits that this reason is an unsatisfactory explanation for a delay of three months and the lack of any other explanation is a factor weighing against an extension of time. 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.

    19The letter sent by the AAT enclosing the first review decision includes reference to the Applicant’s right of appeal, and clearly states:

    “You may apply to the AAT for second review of the decision... There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).”

    20In 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 (R1 2-3).

1. The Tribunal finds that the Applicant was aware of her appeal rights.  The Tribunal is not satisfied with her explanation for her delay in lodging an appeal with the Tribunal.  These findings weigh against the Tribunal granting the Applicant of an extension of time to lodge her application for review.

   Will the grant of an extension of time application prejudice the Respondent or the wider public?

2. Whilst the Tribunal notes this factor was not discussed by the Secretary, the Tribunal makes the following observations:

   ·there is no evidence before the Tribunal 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.

   ·the Tribunal notes however, that it must consider if the wider public would be prejudiced if the Tribunal were to grant an extension of time application.

3. 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 also notes the Tribunal’s objective, pursuant to section 2A of the AAT Act, to provide a fair, just, economical, informal and quick review process.

   What are the merits of the Applicant’s substantive application – does the Applicant have reasonable prospects of success in proceeding with their substantive application?

4. The Secretary argues: 

   24It is relevant to consider the merits of the proposed appeal: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 (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] (Hill J).

   25The Secretary contends that on the face of the AAT First Review decision the proposed appeal has limited prospects of success.

   26It is accepted by the Secretary that the Applicant remained qualified for mobility allowance in the period 19 September 2016 to 2 April 2017. However, in order for the Applicant to succeed in having arrears paid for that period, she would need to establish that a determination that she was eligible for mobility allowance should have effect from the date of the original decision.

   27The Secretary contends that section 109 of the Social Security (Administration) Act 1999 (Administration Act) prevents the payment of arrears for the relevant period. Sub- section 109(2) provides that where a person is notified of a decision made in relation to a person’s social security payment and the person does not apply for review of that decision under section 129 of the Administration Act within 13 weeks, a later favourable determination on review will only take effect from the date of the application for review.

   28In this case, the Applicant applied for a review of the decision on 3 April 2017, approximately seven months after the decision, well outside the 13 week period. On the same date, the Applicant was granted mobility allowance following a new application. The decision could only take effect on the date the Applicant was again granted mobility allowance, and no further payment of arrears can be made.

   29There is no scope for this Tribunal to make a finding that the Applicant can be paid arrears of mobility allowance, regardless of any reason for the delay in seeking review submitted by the Applicant. Therefore the substantive application has no prospects of success.

5. The conclusions of the AAT1 are contained in paragraph 10 of this decision.

6. The Tribunal agrees with the contentions of the Secretary supported by the decision of AAT1 of 8 December 2017 with respect to whether the Applicant will have reasonable prospects of success in proceeding with their substantive application.

   Does the Applicant have an alternative avenue of relief?

7. The Secretary accepts that there are few avenues of relief available to the Applicant. However, this factor is not an adequate reason for granting an extension of time in circumstances where the application has no prospects of success.

8. The Tribunal concurs with the Secretary’s view, based on the evidence before it.

   CONCLUSION

9. The facts outlined above in total weigh against the granting of the Applicant’s request for an extension of time to file a review application of the decision of AAT1. These are summarised below as:

   ·there was a delay in lodging the application to the Tribunal;

   ·the Applicant was aware of her appeal rights and did not provide an acceptable explanation for the delay;

   ·the grant of an extension of time application will unlikely prejudice the Respondent. However, the granting of an extension of time application may prejudice the wider public;

   ·the Applicant does not have reasonable prospects of success in proceeding with their substantive application; and

   ·the Applicant has very few alternative avenues of relief.

10. On balance, pursuant to subsection 29(7)) of the AAT Act, the Tribunal finds that it would not be reasonable to extend the time for the Applicant to make an application for a review of the AAT1’s decision dated 8 December 2017.

    DECISION

11. For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of AAT1 dated 8 December 2017.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

....(Sgd)......................................................

Administrative Assistant

Dated: 22 June 2018

Date of hearing:	18 June 2018
Applicant:	In person
Representative for the Respondent:	Rachel Chua
Solicitors for the Respondent	Department of Human Services