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

[2023] AATA 280

Langeroudi and Secretary, Department of Social Services (Social services second review) [2023] AATA 280 (28 February 2023)

Division:GENERAL DIVISION

File Number(s):      2022/9191

Re:Farideh Langeroudi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:28 February 2023

Place:Sydney

The Applicant’s application for an extension of time to lodge her application for review is refused.

..............................[SGD]........................................

The Hon. John Pascoe AC CVO, Deputy President

Catchwords

PRACTICE AND PROCEDURE – application for an extension of time – application for disability support pension – where the application is 25 days out of time – whether there is an adequate explanation for the delay – whether the application has strong prospects of success – whether there are alternative avenues of relief – application for extension of time is refused.

Legislation

Administrative Appeals Tribunal Act 1978 (Cth) s 29

Social Security Act 1991 (Cth) s 94

Cases

Gallo v Dawson (1990) 93 ALR 479

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

Comcare v A’Heam (1993) 45 FCR 441, 444

Background

1. I note the Respondent’s submissions contain a helpful factual summary of this application, much of which is replicated below.

2. On 12 August 2021, the Applicant (aged 62 years) lodged a claim for the Disability Support Pension (DSP). In her claim, she referred to her medical conditions as:

   (a)migraine headaches;

   (b)depression;

   (c)palpitations;

   (d)haemorrhoids;

   (e)GORD;

   (f)menopause; and

   (g)left hip pain.

3. On 6 September 2021, the Applicant attended a telephone assessment with a Job Capacity Assessor (JCA) who produced a report that same day. The Report contained the following recommendations:

   (a)The Applicant’s migraines and palpitations were fully diagnosed, treated and stabilised, and the impairments arising from the conditions rates 0 points under Table 1 of the Impairment Tables;

   (b)The Applicant’s depressive illness comorbid with anxiety reaction and left hip pain were fully diagnosed, but not fully treated or stabilised;

   (c)The Applicant’s asthma was not fully diagnosed, treated and stabilised; and

   (d)The Applicant had a baseline and future work capacity within two years with intervention of 8-14 and 15-22 hours per week respectively.

4. On 24 September 2021, Services Australia refused the Applicant’s claim for DSP.

5. On 14 December 2021, the Applicant sought review of the decision by an Authorised Review Officer (ARO).

6. On 9 May 2022, the ARO affirmed the decision.

7. On 28 June 2022, the Applicant sought further review of the decision by the Administrative Appeals Tribunal (AAT1).

8. On 12 September 2022, the AAT1 affirmed the decision under review, finding that the Applicant’s migraines warranted an impairment rating of 5 points under Table 1.

9. On 16 September 2022, the AAT1 sent the Applicant’s representative a copy of the AAT1 decision via email.

10. On 8 November 2022, the Applicant lodged an application for second review of a decision and an application for an extension of time.

    REASONS FOR DECISION

    The Hon. John Pascoe AC CVO, Deputy President

    28 February 2023

11. The issue before the Tribunal is whether to grant an extension of time for the lodgement of the Applicant’s application for review in the General Division of this Tribunal.

12. The issue is whether it is reasonable in all the circumstances for an extension of time to be granted.

13. In the current case, AAT1 made its decision on 12 September 2022, and the decision was emailed to the Applicant’s representative on 16 September 2022. The Tribunal notes that on the Applicant’s evidence she received the decision on that date. Accordingly, she was required to lodge an appeal prior to 14 October 2022, as prescribed by section 29(2) of the Administrative Appeals Tribunal Act 1978 (Cth) (the AAT Act).

14. The application was not lodged until 8 November 2022, approximately 25 days out of time.

15. Section 29(7) of the AAT Act permits the Tribunal to extend the time for lodgement of an application for review ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so’. The period of time in relation to which an extension is sought is not of itself determinative of the issue, and as an overall principle an extension of time is generally warranted only if a refusal to grant the extension would result in an injustice to the Applicant.[1]

    [1] Gallo v Dawson (1990) 93 ALR 479, 480 per McHugh J (affirmed in Gallo v Dawson (No 2) (1992) 109 ALR 319).

16. In considering the question overall, the Tribunal should properly consider a number of factors including:[2]

    (a)The length of delay;

    (b)The explanation for that delay;

    (c)The prospects of success; and

    (d)Alternative avenues for relief.

    [2] Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.

17. In this case, although the application for review was approximately 25 days out of time, all the circumstances referred to above need to be considered. There is no automatic right to an extension of time.

18. In particular, an application for an extension of time should generally be made in the context of an acceptable explanation for delay.[3] The Applicant said that her delay was caused by the need for her to get all of the required documents. The Applicant provided two new medical reports, as part of her application, one from Dr Safi, dated 4 October 2022, and another from Mr Attai, dated 12 October 2022. Both reports were completed and signed prior to the expiration of the 28 day appeal period. The Applicant has not provided any other explanation for the delay in lodging her application for review, although I note that in her oral evidence the Applicant said that she did not understand what was required of her.

    [3] Comcare v A’Heam (1993) 45 FCR 441, 444.

19. Turning to the prospects of success, it is not necessary for the Tribunal to effectively conduct a full review of the merits, but if the merits of the claim and the prospects of a successful application appear to be strong then it would be more likely that the Applicant would be granted an extension of time.

20. In this case, it appears that the Applicant has very limited prospects of success, bearing in mind that she has to demonstrate that she met the criteria contained in section 94 of the Social Security Act 1991 (Cth) (Social Security Act) during the relevant qualification period for the Applicant’s DSP claim, namely 12 August 2021 – 11 November 2021. Section 94 states as follows:

    (1) 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 the program administered by the Commonwealth known as the supported wage system;

21. It was not contested that the Applicant did not participate at all in a program of support in the 36 months ending immediately before the day on which she made her claim for DSP. Accordingly, the Applicant must establish that at least one of her impairments amounted to a severe impairment during the qualification period. A severe impairment is defined in subsection 94(3B) of the Social Security Act as follows:

    Severe impairment

    (3B) A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impariment table.

22. AAT1 found firstly that the Applicant’s migraines warranted an impairment rating of 5 points under table 1, and that the Applicant’s palpitations warranted a nil rating, as the condition was not associated with significant, continuing, functional impairment. The Applicant’s back and hip pain and functional depression were found by AAT1 to be fully diagnosed, but not fully treated and stabilised during the qualification period.

23. At this time there is no reliable medical evidence before the Tribunal that would support a finding that the Applicant’s migraines, or palpitations could qualify as severe impairments. Even though both conditions may have been diagnosed, there is no corroborating medical evidence as to the extent of any functional impairment. Against this, there is evidence that the Applicant advised that the conditions had minimal impact on her day to day function.  

24. The Applicant was continuing to undergo investigation and treatment for her back and left hip pain, during the qualification period, as demonstrated by the report of Dr Rozario, dated 19 January 2021, which, in summary, stated as follows:

    the Applicant experienced a recurrence of symptoms in late 2020 and recommended left L4 and L5 nerve root block with intra-articular steroids under CT guidance, and encouraged the Applicant to exercise and lose weight.

25. Further on 6 September 2022, the JCA reported the following:

    the Applicant noted she was pending future appointment with the rheumatologist and pending weight loss intervention.

26. On 9 June Dr Rozario reported the following:

    further treatment, being a right L3 and L5 nerve root block with intra-articular steroids under CT guidance, with further review in 3 months if she was not better.

27. It was stated at the hearing that the Applicant is the carer for her husband, and that she currently receives a carer payment and carer allowance. There is no evidence that during the qualification period the Applicant required assistance from a third party to walk, stand from a sitting position or use public transport, nor is there any medical evidence to confirm that during the qualification period, she was unable to perform overhead activities, turn her head, or bend her neck without moving her body, bend forward to pick up a light object or remain seated for at least 10 minutes.

28. The Applicant’s depression was also not fully treated and stabilised during the qualification period, as her treatment was continuing, and she has only recently been referred for psychiatric treatment. The Tribunal notes the report of Mr Attai, dated 22 October 2022, but that report is of limited value, as he is not a clinical psychologist or psychiatrist, and treatment options have not been fully explored.

29. In short, based on the evidence before the Tribunal, the Applicant would appear to have very limited prospects of meeting the required criteria.

30. The Tribunal notes that in the 3 years prior to her claim (12 August 2018-11 August 2021) the Applicant did not actively participate in a program of support at all, and that none of the exceptions to the requirement to participate in a program for a support for a period of at least 18 months apply to the Applicant.

31. In all of the circumstances, the Tribunal considers that the Applicant has very little prospect of success and this must weigh substantially against the granting of an extension of time.

32. It is relevant that the Applicant is able to lodge a new claim for the Disability Support Pension, with fresh evidence which is likely to support that claim, although it is not within the remit of this Tribunal to determine any future claims.

33. When all of the evidence before the Tribunal is taken into account, the Tribunal is not satisfied that it is reasonable in all of the circumstances to extend the time for lodgement of the Applicant’s application for review.

    The Applicants request for an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1978 (Cth) is refused.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President,

............................[SGD]....................................

Associate

Dated: 28 February 2023

Date(s) of hearing:	6 February 2023
Applicant:	In person
Solicitors for the Respondent:	Ms Sahana Navaratnam