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

This matter concerned an application for an extension of time to seek review of a decision made by the Administrative Appeals Tribunal (AAT) in its Social Security Division. The applicant, Ms Larkham, sought to review a decision of the AAT dated 3 November 2022, which affirmed a decision not to waive or write off a debt owed by her to Centrelink. The AAT's decision was communicated to the parties on 8 November 2022, and Ms Larkham lodged her application for review and an extension of time on 7 December 2022, which was outside the prescribed 28-day period. The Secretary of the Department of Social Services initially opposed the extension but later withdrew that opposition.

The primary legal issue before the Tribunal was whether it should exercise its discretion under section 29(7) of the Administrative Appeals Tribunal Act 1975 to grant an extension of time for Ms Larkham to apply for a review of the AAT's decision. This required consideration of various factors, including the length of the delay, Ms Larkham's awareness of her appeal rights and the reasons for the delay, potential prejudice to the public, and the prospects of success of her substantive appeal. A related issue was whether Ms Larkham's failure to notify Centrelink of her withdrawal from a course, which led to the debt, was a "knowing" failure, as this would preclude the waiver of the debt under the Social Security (Administration) Act 1999.

The Tribunal, constituted by Senior Member Damien O'Donovan SM, found that while Ms Larkham's case was weak, it was not hopeless. The Tribunal was satisfied that the debt arose from a failure to comply with a notice under section 68(2) of the Administration Act, which obliged her to report changes in her circumstances, such as withdrawing from a course. However, the Tribunal noted that evidence regarding Ms Larkham's mental health left open the possibility that her failure to notify Centrelink was not a knowing one, thus preventing an affirmative conclusion that her case was hopeless. Considering the overall circumstances, including a short delay and the fact that the case was not without prospects of success, the Tribunal determined it was reasonable to grant the extension of time.

The Tribunal ordered that the application for an extension of time in which to apply for review of the AAT first review decision be granted.