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

This matter concerned an application by Ms Lazos (the Applicant) for an extension of time to seek review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 had affirmed a decision by an Authorised Review Officer (ARO) to grant the Applicant carer payment and carer allowance from 23 October 2018, rather than an earlier date in 2007 or November 2014, as sought by the Applicant. The Applicant's claim for carer payment and allowance was made on 23 October 2018, and the Department of Human Services granted it from that date. The Applicant sought arrears from an earlier period, but there was no record of any claim or contact with the Department prior to October 2018. The Applicant lodged her application for review with the Tribunal on 25 August 2019, which was outside the prescribed 28-day time limit.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant the Applicant an extension of time to lodge her application for review. The Respondent opposed the extension, arguing that the substantive application had no real prospects of success because there was no provision in social security law that would permit a decision-maker to grant the relief sought, namely to effectively "back date" a claim when no earlier claim had been made. The Tribunal was required to consider the general principles for granting extensions of time, including the factors outlined in *Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment* and the overarching principle of what the justice of the case requires, as stated in *Brown v Federal Commissioner of Taxation*.

The Tribunal reasoned that for an extension of time to be granted, the Applicant needed to demonstrate a legislative basis for the relief sought. The general rule under the *Social Security (Administration) Act 1999* (Cth) is that a person is qualified for a payment on the day the claim is made. While sections 11 and 13 of the Act provide for claims to be correctly made or for subsequent claims following departmental contact, these scenarios did not apply to the Applicant as there was no record of an earlier claim or contact. The Tribunal also noted that even if the claim had been back-dated, the Applicant would not have been in a better financial position due to the operation of section 47(2) of the *Social Security Act 1991* (Cth), which prevents the simultaneous receipt of age pension and carer payment, both income support payments paid at similar rates. The Tribunal concluded that, predominantly due to the unlikely success of the substantive case as determined by previous reviews, it was not reasonable to extend the time for making an application for review.