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

[2019] AATA 4542

Lazos and Secretary, Department of Social Services (Social services second review) [2019] AATA 4542 (25 October 2019)

Division:GENERAL DIVISION

File Number(s):      2019/5317

Re:Acrivi Lazos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Fletcher

Date:25 October 2019

Place:Perth

The Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the AAT Tier1 decision.

........................[sgd]................................................

Member I Fletcher

Catchwords:

SOCIAL SECURITY – back dated claim for carer payment and carer allowance – Application for Review – extension of time application – decision affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(7)
Social Services Legislation Amendment (Welfare Reform) Act 2018 (Cth)
Social Security (Administration) Act 1999 (Cth) – ss 3(1), 11, 13, 14A
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)
Social Security Act 1991 (Cth) – s 47(2)

Cases
Brown v Federal commissioner of Taxation (1999) 99 ATC 4516, (29), (38) per Hill J
Comcare v A’Hearn (1993) 45 FCR 441,444
Hunter Valley Developments Pty Ltd v Minister for Home Affairs (1984) 3 FCR 344
Secretary Department of Family and Community Services and Roberts (2003) AATA 269, (16)

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

REASONS FOR DECISION

Member I Fletcher

25 October 2019

REQUEST FOR CONFIDENTIALITY

1. The Applicant’s Representative made an application on 15 October 2019 under
   Section 35 of the Administrative Appeals Tribunal Act1975 (Cth) (the AAT Act) for the matter not to be a public hearing. The Representative in her application stated:

   I am requesting this because there are some very sensitive items that I wish to be able to speak about freely in the hearing without having to be reserved due to cultural restrictions and the fear of these sensitive issues becoming public.

2. The Respondent was neutral on the matter.

3. The Tribunal Member advised that the hearing would not be going into detail and would the Representative be prepared to proceed on this basis. She agreed to do so.

   DECISION UNDER REVIEW

4. This is an application by Ms Lazos (the Applicant) who seeks review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 16 July 2019.

5. The AAT1 affirmed the decision of the Authorised Review Officer (ARO) made on
   26 February 2019 to grant the Applicant’s claims for carer payment and carer allowance from 23 October 2018 and not from an earlier date.

6. The Applicant who did not attend the hearing had her daughter represent her and who made oral submissions. Gary Khoo, represented the Australian Government Solicitor’s Office for the Respondent by telephone.

   THE ISSUE

7. The Applicant applied for an extension of time to lodge her application for review of the AAT1 decision, dated 16 July 2019. The issue with the current application is whether it is reasonable in all the circumstances for such an order to be made.

8. The Respondent opposed the application for an extension of time primarily because the substantive application has no real prospects of success; there is no provision in the social security law that would permit a decision-maker (including the General Division of the Tribunal) to grant the relief sought by the Applicant to effectively ‘back date’ the grant of a claim when no earlier claim has been made. The Respondent addressed this point in more detail below.

   BACKGROUND

9. Since 17 November 2010, the Applicant has been in receipt of age pension.

10. On 23 October 2018, the Applicant made a claim for carer payment and carer allowance in relation to the care of her husband.

11. By decision dated 26 October 2018, the Department of Human Services
    (the Department) granted the Applicant’s claim for carer payment and carer allowance from 23 October 2018.

12. The Applicant sought an internal review of the decision dated 26 October 2018 to seek arrears from either an unspecified date in 2007 or November 2014.

13. The Respondent stated at the AAT2 hearing that there was no record of an application being received by the Department in 2007 or 2014.

14. The Applicant’s Representative acknowledged this to be correct at the AAT2 hearing.

15. On 26 February 2019, the ARO reviewed the decision made on 26 October 2018 to grant the Applicant’s claim for carer payment and carer allowance from 23 October 2018 and not from an earlier date.

16. On 16 July 2019, the AAT1 affirmed the decision of the ARO.

17. The AAT1 decision was sent to the Applicant by cover letter dated 24 July 2019, and the Applicant indicated in her extension of time application that she received the AAT1 decision on 24 July 2019. The relevant time limit for making an application for review in the Administrative Appeals Tribunal (the Tribunal) is 28 calendar days. Therefore the last day for lodging an application for review with this Tribunal was 21 August 2019.

18. On 25 August 2019, the Applicant lodged an ‘Application for Review of Decision’ with the Tribunal, which included an application for an extension of time (Exhibit A1).

    MATERIAL BEFORE THE TRIBUNAL

19. The following material was before the Tribunal:

    ·an application for extension of time, dated 25 August 2019 (Exhibit A1);

    ·a request for confidentiality (by the Applicant’s daughter), dated 15 October 2019 (Exhibit A2);

    ·a copy of an email from the Applicant’s daughter Ms Julie Speirs, dated
    7 October 2019 (Exhibit A3);

    ·a copy of the Respondent’s submissions, dated 25 September 2019 (Exhibit R1); and

    ·a decision by Senior Member Michelle Evans, dated 11 September 2019
    (Exhibit T1).

    GENERAL PRINCIPLES

20. Under s 29(2) of the AAT Act, an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

21. In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context (See also: Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516 (Brown)).

    In Hunter Valley, Wilcox J pointed out at paragraph [1] that “[T]he 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.” In Brown, Hill J stated at paragraph [59] that, in the taxation context, the Tribunal should be “guided by what the justice of the case requires”. In determining the question of an extension of time, the Tribunal should weigh together all relevant factors, see Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 (per Katz J).

22. The Respondent contended that in this case, the factors for consideration include:

    a.    awareness of appeal rights and explanation for the delay;

    b.    length of delay;

    c.    prospects of success;

    d.    prejudice to the general public / the public interest; and

    e.    alternative avenues of relief.

    CONTENTIONS

    Awareness of appeal rights and explanation for the delay

23. The Applicant provided the following reason for requiring an extension of time
    (Exhibit A1):

    Hello, I was under the impression that I was within the 28Day [sic] period as I have calculated this based on working days. This would equate to 22 working days. The letter I received does not clarify that it also includes weekend days. I very much hope I can still be considered to apply for the second review process. Thank you.

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

25. The Respondent submitted that the Applicant’s stated reason does not provide a satisfactory explanation for the delay as the letter issued by the Tribunal enclosing the first review decision clearly includes reference to the Applicant’s right of appeal, and an information sheet which clearly states: “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)”.

26. The Respondent submitted that it was open to the Applicant (or her representative who appeared and participated in the AAT1 hearing) to have contacted the AAT1 to clarify whether her understanding (of how the appeal period is calculated) was in fact correct.

    Prejudice to the general public / the public interest

27. The Respondent submitted that the general rule is that it is in the public interest that there is an end to an appeal process. It is for this reason that the Parliament has imposed time limits, to ensure that there is a predictable and orderly conclusion to a decision-making process.

28. The Respondent submitted that the public interest and the interest of other applicants who come before the Tribunal, and who comply with the prescribed time limits would be unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur.

    Length of delay

29. The Applicant stated that she received the Tribunal’s decision on 24 July 2019, therefore the last day for lodging an application for review was 21 August 2019. The application for an extension of time was taken to have been made on 25 August 2019, making it four days out of time.

30. The Respondent acknowledged that the length of delay is relatively short in this matter, but observes that “…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].

    Prospects of success

31. The Respondent submitted that this consideration has particular relevance to the Tribunal’s determination of the extension of time application.

32. 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] per Hill J.

33. The Respondent submitted from the outset that the Applicant’s proposed substantive review application has no real prospects of success. In order to succeed in this interlocutory application, the Applicant should demonstrate that there is at least a legislative basis upon which the Tribunal can grant the relief to ‘back date’ her claim, to a date four years prior to the date when she actually submitted her claim for carer payment and carer allowance. The general rule is that a person is qualified for a social security payment on the day on which the claim is made: s 3(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

34. The Respondent submitted that there is no provision that would allow a decision-maker to do so, noting the provisions that have been referred to by previous decision-makers in this matter generally requires:

    (a)a claim to have been correctly made: s 11 of the Administration Act; or

    (b)the department to have been contacted by an applicant in relation to a social security payment and the person subsequently lodges a claim (within a prescribed period, generally not more than 13 weeks) for the social security payment: s 13 of the Administration Act.

35. The Respondent submitted that the above scenarios do not apply to the Applicant because no claim, or contact with the department had occurred.

36. The Respondent noted that the determination referred to by the AAT1 in its reasons at [6], the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Determination) made under s 14A of the Administration Act does not assist the Applicant.

37. The Respondent also noted that the Applicant would not have been in a better financial position even if her claim was ‘back-dated’ to an earlier date. This is because the Applicant had been in receipt of payments of age pension since 17 November 2010 until it was transferred to carer payment on 23 October 2018. Hypothetically speaking, if the Applicant’s claim had been successful, the Applicant would not have been paid an age pension and carer payment (which are paid at a similar rate) at the same time due to the operation of s 47(2) of the Social Security Act 1991(Cth).

38. In practical terms, the Applicant’s age pension would have been stopped when the Applicant commenced receiving carer payment; which as stated, are generally paid at a similar rate as they are both considered income support payments.

39. The Applicant through her Representative asked if there could be recognition of the Applicant’s circumstances and for some retrospectivity payment or compensation.

40. It was pointed out by the Tribunal that the matter under consideration was an extension of time for an appeal hearing and not to determine retrospectivity. This was acknowledged by the Representative.

    Conclusion

41. Based on the evidence presented by the Applicant through her Representative, and the Respondent, predominantly because of the unlikely success of the case as determined by previous reviews, the Tribunal has determined not to extend the time for making an application for review.

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

...........................[sgd].............................................

Associate

Dated: 25 October 2019

Date(s) of hearing:	18 October 2019
Advocate for the Applicant:	Ms Julie Speirs
Counsel for the Respondent:	Mr Gary Khoo
Solicitors for the Respondent:	Department for Human Services