LILJANKA STANGOLEVSKA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 663

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 663

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3361

GENERAL  ADMINISTRATIVE  DIVISION		)         No 2009/3584
Re		LILJANKA STANGOLEVSKA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date1 September 2009

PlaceMelbourne

Decision

The Tribunal decides that:

1.      In the matter of application 2008/3361, the application is not reinstated; and

2.      In the matter of application 2009/3584 an extension of time in which to lodge the application is not granted.

(sgd) B.H. Pascoe

Senior Member

Catchwords – reinstatement of application – application withdrawn- no error in dismissal – extension of time – no decision to review for benefit of applicant.

Social Security Act 1991
Administrative Appeals Tribunal Act 1975 s 42A(10)

REASONS FOR DECISION

1 September 2009 Mr B H Pascoe, Senior Member  

1.This is an application for an extension of time in which to lodge an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 21 May 2009 which set aside a decision of the respondent to reject a claim for disability support pension (DSP) made on 12 December 2008.  The SSAT decision was sent to the applicant, Mrs L. Stangolevska, on 26 May 2009.  An application to this Tribunal was required to be made within 28 days of receipt or 24June 2009.  It was lodged on 31 July 2009.  

2.The decision of the SSAT was that Mrs Stangolevska satisfied sections 94(1)(a) and (b) of the Social Security Act 1991 (the Act) and directed that a further assessment was required to determine whether she satisfied section 94(1)(c) of the Act.  By letter of 21 July 2009 Centrelink advised that the claim for DSP had been accepted from 24 November 2008 and arrears from that date were paid to Mrs Stangolevska. 

3.At the hearing in relation to the application for extension of time, Mrs Stangolevska was unrepresented.  The respondent was represented by Ms A. Bramley, a legal services officer with Centrelink.  Ms Bramley correctly submitted that, as Mrs Stangolevska had been successful in her application for DSP on 12 December 2008, there was no decision to pursue before this Tribunal which could benefit her for which an extension of time was required.  It then emerged that what Mrs Stangolevska was seeking was the grant of DSP from 15 April 2008, not only 24 November 2008. 

4.The history of the pension entitlements of Mrs Stangolevska is that she was granted and paid DSP from 27 May 2005. Her entitlement to DSP was cancelled with effect from 15 April 2005. She received Newstart Allowance from that date until the decision to grant DSP from 24 November 2008. The DSP cancellation decision was affirmed by the SSAT on 2 July 2008. On 22 July 2008, Mrs Stangolevska lodged an application with this Tribunal. On 27 August 2008 she signed a notice of withdrawal of that application pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) with the consequence that the Tribunal was taken to have dismissed the application without proceeding to review the decision.

5.It became clear during the hearing that what Mrs Stangolevska was seeking was the reinstatement of that earlier application as the only basis on which her entitlement to DSP from 15 April 2008 could be considered. Section 42A(10) of the AAT Act provides:

If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

6.Mrs Stangolevska said that she could not recall signing the notice of withdrawal of her earlier application. However, on being shown the signed notice, she accepted that it was her signature. It is clear that, for section 42A(10) to apply there must have been an error by the Tribunal in dismissing an application. Given the clear signed notice of withdrawal there can be no finding of error by the Tribunal. Consequently, the application cannot be reinstated. Whilst Mrs Stangolevska sought to imply that she signed the withdrawal form under a misunderstanding of its effect, this cannot be accepted. She did nothing following the withdrawal on 27 August 2008 until 12 December 2008 when she made a new application for DSP.

7.For completeness, it should be noted that the SSAT decision of 2 July 2008 found that Mrs Stangolevska had been working 30 hours per fortnight consistently between January 2006 and March 2008 and accepted the assessment made by the job capacity assessor that Mrs Stangolevska has a current work capacity of between 15-22 hours per week.  Consequently, the finding was that she did not satisfy section 94(1)(c) of the Act.  To allow that issue, involving her work capacity and/or ability to undertake a training program in March 2008, the date of the original decision to cancel DSP, to be reconsidered in September 2009, eighteen months later, would be verging on the impossible. 

8.It follows from the foregoing that no extension of time should be granted in which to lodge an application to review the decision of the SSAT of 21 May 2009, and a prior application to review the decision of the SSAT of 2 July 2008 should not be reinstated. 

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member

Signed:         Cassie Renfrew
  Clerk

Date of Hearing  1 September 2009
Date of Decision  1 September 2009
Advocate for the Applicant       Self-Represented
Advocate for the Respondent   Ms A. Bramley