Lizzie Warren and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 563
[2013] AATA 563
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3052
Re
Lizzie Warren
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 12 July 2013 Date of written reasons 12 August 2013 Place Melbourne The Tribunal refuses the application for an extension of time
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G. D. Friedman, Senior Member
PRACTICE AND PROCEDURE – extension of time to lodge application for review
Administrative Appeals Tribunal Act 1975 s 29(7)
Social Security Act 1991 s 94(1)
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
G. D. Friedman, Senior Member
12 August 2013
On 5 March 2013 a Centrelink authorised review officer (ARO) affirmed a previous decision to reject Ms Warren’s claim for disability support pension.
On 28 March 2013 Ms Warren lodged an application for review of the decision of the ARO with the Social Security Appeals Tribunal (SSAT). On 14 May 2013 the SSAT affirmed the decision made by the ARO on 5 March 2013. It despatched its decision to Ms Warren on 15 May 2013.
On 26 June 2013 Ms Warren applied to this Tribunal for review of the SSAT decision and on the same day lodged an application for an extension of time.
ISSUE
The issue before the Tribunal is whether an extension of time within which to lodge an application for review should be granted.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) states:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
In determining applications for extensions of time, the Tribunal has been guided by the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:
…The ‘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… It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.
His Honour set out another five principles:
·Whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;
·Any prejudice to the respondent or any other party;
·The absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;
·The merits of the substantive application are to be properly taken into account;
·Considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.
The legislation under which the decision under review was made is the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 94 of the Act details the qualification for disability support pension:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
….
CONSIDERATION
EXPLANATION FOR THE DELAY
Ms Warren told the Tribunal that she was unable to lodge her application for review within 28 days of receiving the SSAT decision because she was dealing with medical issues that impact on her ability to perform certain tasks. Ms Warren also told the Tribunal that the side effects of the medication she is taking prevented her from lodging an appeal in time. Ms Warren argued that these factors culminated in the late application for review.
Ms Warren received a notice from the SSAT explaining that she had 28 days to lodge an application for review with this Tribunal. The Tribunal does accept that Ms Warren had medical issues at the time, but she had ample opportunity to notify the Tribunal of her intention to seek review. The Tribunal is not satisfied that Ms Warren has a reasonable excuse for being out of time and finds that this factor weighs against granting an extension of time.
HAS THE APPLICANT RESTED ON HER RIGHTS
The SSAT made its decision on 14 May 2013 and despatched it to Ms Warren on 15 May 2013. Ms Warren has not attempted to notify the respondent or the Tribunal of her intention to seek review prior to her application to the Tribunal on 26 June 2013. The Tribunal finds that Ms Warren has rested on her rights and this factor weighs against granting an extension of time.
PREJUDICE TO OTHER PARTIES
There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
WIDER PUBLIC CONSIDERATIONS
Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. The Tribunal finds that this factor weighs against granting an extension of time.
THE MERITS OF THE SUBSTANTIVE APPLICATION
The respondent accepts that Ms Warren suffers from physical and psychiatric impairments, but disagrees that the conditions cause sufficient impairment for the applicant to qualify for disability support pension. The Act requires medical conditions be fully diagnosed, treated and stabilised to attract an impairment rating. In respect of iron deficiency and Hasimoto’s thyroiditis, Ms Warren claims to suffer from exhaustion, poor concentration and an inability to work for long periods, however she has previously reported no difficulties in activities of daily living, walking around a supermarket or doing light household tasks. The combined impairment suffered by Ms Warren from the two conditions is unlikely to attract the 20 points necessary under the Impairment Tables to qualify for disability support pension.
In respect of depression, as Ms Warren commenced taking prescribed medication to treat the condition in January 2013 it is unlikely that the condition was fully treated or stabilised as at 19 November 2012 or 13 weeks from that date as required by the Act to attract an impairment rating.
The Tribunal finds that if an extension of time is granted, Ms Warren would not satisfy the qualification requirements for the disability support pension under section 94(1)(b) of the Act for the relevant period. The Tribunal finds that there is little prospect of success in the substantive application, so this factor weighs against granting an extension of time.
CONSIDERATIONS OF FAIRNESS
There is nothing unique about Ms Warren’s situation, or in the reasons she put forward to explain her delay in seeking review by the Tribunal, that would make her situation markedly different to other applicants in similar situations. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
CONCLUSION
The Tribunal finds that the two significant factors against granting Ms Warren an extension of time are the lack of an acceptable explanation for the delay and the little prospect of success in her substantive application. In considering all of the relevant factors the Tribunal is not satisfied that is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
DECISION
The Tribunal refuses the application for an extension of time.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. ....................................[sgd]....................................
Associate
Dated 12 August 2013
Date of hearing
Date of written reasons
12 July 2013
12 August 2013
Applicant Self-represented Advocate for the Respondent Ms P Heffernan Solicitors for the Respondent Department of Human Services Legal Division
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