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

[2018] AATA 3041

Lee and Secretary, Department of Social Services (Social services second review) [2018] AATA 3041 (24 August 2018)

Division:GENERAL DIVISION

File Number:          2018/3996

Re:Wesley Lee

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:24 August 2018  

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – Hunter Valley Developments Pty Ltd v Cohen – whether it is reasonable in all the circumstances to grant an extension of time – acceptable explanation for delay – prejudice to the respondent and general public – merits of substantive application – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29,
Social Security Act 1991 (Cth) ss 94

Social Security (Administration) Act 1999 (Cth) s 42

CASES

Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

INTRODUCTION

1. On 12 July 2018, Mr Wesley Lee lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made on 14 February 2018 by the Social Services and Child Support Division (SSCSD) of the Tribunal to reject Mr Lee’s claim for disability support pension because he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

2. The Secretary opposes the extension of time sought.

3. The application was heard by the Tribunal in Sydney on 2 August 2018. Mr Lee attended the hearing and gave oral evidence by teleconference; he was assisted by an interpreter of the Mandarin language.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

4. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

5. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].

6. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:

   (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend the time;

   (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay;

   (d)whether the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)“considerations of fairness as between the applicant and other persons” in a similar position.

7. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition for the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.

8. All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

   REASONS FOR DELAY

9. The length of delay in Mr Lee seeking a review of the decision made by the SSCSD on 14 February 2018 is approximately four months after the 28 day limit. Mr Lee wrote in his application for an extension of time that “I did not carefully consider withdrawing the complaint, not the wrong decision made in the case of voluntary choice.”

10. Written and oral submissions from the Secretary’s legal representative explained that Mr Lee originally lodged an application with the General Division of the Tribunal for review of the SSCSD decision on 20 February 2018. Mr Lee and the Secretary’s legal representative participated in two in-person conferences before a Tribunal Conference Registrar and, following the second conference on 20 June 2018, Mr Lee agreed to withdraw his application and signed a withdrawal form. Mr Lee’s original application was dismissed with the effective date of 20 June 2018.

11. At the Tribunal hearing, Mr Lee confirmed that he had participated in the conferences and had withdrawn his application for review of the SSCSD decision made on 14 February 2018. He also noted that he was pursuing a further application for disability support pension lodged in February 2018.

12. As Mr Lee made a further application for disability support pension in February 2018 and withdrew his original application from the Tribunal on 20 June 2018, I am satisfied that Mr Lee “rested on his rights” and allowed the Secretary to believe the matter relating to the SSCSD decision made on 14 February 2018 was finalised.

13. While this principle weighs against Mr Lee, it is not the only factor I need to consider in determining whether to grant the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

14. It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.

15. I am satisfied the Secretary would have expectations about the finality of the decision-making, particularly as Mr Lee has lodged a further claim for disability support pension. This factor weighs against granting an extension of time to Mr Lee.

    MERITS OF SUBSTANTIVE APPLICATION

16. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Mr Lee can qualify for disability support pension.

    Relevant legislation

17. To qualify for the disability support pension, Mr Lee must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

    (a)a physical, intellectual or psychiatric impairment; and

    (b)an impairment rating of 20 or more points according to the Impairment Tables; and

    (c)a continuing inability to work.

18. Further, Mr Lee must satisfy these criteria on 8 February 2017 when he applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (the claim period).

19. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Impairment Tables Determination).

20. The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

21. An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

    Consideration

22. Mr Lee’s medical conditions were set out and considered in the SSCSD decision made on 14 February 2018 as follows:

    ·Depression – not fully treated and fully stabilised.

    ·Visual impairment – not fully treated and fully stabilised.

    ·Hypertension – nil points under Table 1 – Physical Function and Stamina.

    ·Cerebral vascular disease – not fully treated and fully stabilised.

    ·Hearing loss – not fully diagnosed, fully treated and fully stabilised.

    ·Neck pain – no medical evidence and no rating assigned.  

23. The Secretary submitted to the Tribunal that Mr Lee’s substantive application has no reasonable prospects of success because his medical conditions are mostly regarded as not being fully treated and stabilised, and reports from his doctors and specialists recommend further treatment and that he comply with the medication that he has been prescribed by them.[1]

    [1] Secretary, Department of Social Services. Submission dated 1 August 2018, paragraph 43.

24. For the purposes of this application for an extension of time, the Tribunal was not provided any medical evidence or other documentation that could support the merits of the substantive application. In view of this, I am unable to consider the merits or otherwise of the substantive application. I note, however, that Mr Lee has made another claim for disability support pension and it is open for him to provide further medical evidence to support this application for the disability support pension.

    CONCLUSION

25. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

26. The application for an extension of time is refused.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 24 August 2018

Date of hearing:	2 August 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services