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

[2016] AATA 709

Loseby and Secretary, Department of Social Services (Social services second review) [2016] AATA 709 (15 September 2016)

Division	GENERAL DIVISION
File Number	2016/2463
Re	Narelle Loseby
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	15 September 2016
Place	Perth

The applicant’s application for an extension of time to lodge an application for review of the decision of the Social Services and Child Support Division of this Tribunal dated 22 February 2016 is refused.

..........[Sgd]..............................................................

Brigadier AG Warner, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of the Social Services and Child Support Division of Administrative Appeals Tribunal dated 22 February 2016 – length of delay significant – explanation for delay not satisfactory – limited prospects of success of applicant’s substantive application – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 29

CASES

Comcare v Ahearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Re Johnson and Commonwealth of Australia (1990) AATA 1

Secretary, Department of Family and Community Services and Roberts (2003) AATA 269, (16)

Re Grafton and Commonwealth (1998) 16 ALD 533

Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381

REASONS FOR DECISION

Brigadier AG Warner, Member

15 September 2016

INTRODUCTION

1. On 11 May 2016, Ms Loseby lodged with this Tribunal an application for review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 22 February 2016 (Exhibit 1). On the same date, Ms Loseby applied to this Tribunal for an extension of time for lodging the application for review (Exhibit 2).

2. The AAT1 decision at first review was that:

   ·The applicant was liable for a debt in the amount of $4,805.26, for an overpayment of parenting payment, for the period 27 August 2013 to 30 June 2014; and

   ·No circumstances existed to justify the debt being written off or waived.

3. The respondent opposes the application for an extension of time “on the basis the applicant has not provided an acceptable reason for the delay and the substantive application for review has poor prospects of success” (Exhibit 3).

4. A telephone conference interlocutory hearing to determine Ms Loseby’s application for an extension of time was conducted on 2 August 2016.

   BACKGROUND

5. Ms Loseby was born in 1972 and resides in Broome, Western Australia.

6. On 17 August 2015, the Department of Human Services determined that Ms Loseby had been overpaid parenting payment in the amount of $17,241.70 for the period 9 April 2013 to 30 June 2014 because she had failed to declare income.

7. On 28 October 2015, a Centrelink Authorised Review Officer (ARO) reviewed and changed the original decision. The ARO decided that Ms Loseby had a debt in the amount of $4,805.26 for the period 27 August 2013 to 30 June 2014.

8. On 7 December 2015, Ms Loseby sought a review of the ARO decision, and on 22 February 2016 the AAT1 at first review affirmed the ARO decision.  The AAT1 posted Ms Loseby a copy of its decision on 1 March 2016 (Exhibit 6).

   ISSUE

9. Ms Loseby has applied for an extension of time within which her application for review may be lodged. The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.

   EVIDENCE

10. The Tribunal had before it the following evidence:

    ·Application for Second Review of Decision dated 11 May 2016, enclosing AAT1 decision 2015/P089408 dated 1 March 2016 (Exhibit 1);

    ·Application for Extension of Time for Making an Application for Review of Decision dated 11 May 2016 (Exhibit 2);

    ·Notice of Opposing Application for Extension of Time dated 24 May 2016 (Exhibit 3);

    ·Secretary’s Outline of Submissions dated 8 June 2016 Exhibit 4);

    ·Narelle Loseby email dated 22 June 2016 (Exhibit 5);

    ·AAT1 Decision 2015/P089408 dated 1 March 2016 Exhibit 6); and

    ·The oral evidence of the applicant.

    THE RELEVANT LEGISLATION

11. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (the Act) relevantly states:

    … the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eight day after:

    (a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;

12. The Tribunal’s power to extend the time for the making of an application for review is conferred by subs (7) and (8) of s 29 of the Act as follows:

    (7)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.

    (8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

13. The statutory provisions relative to Ms Loseby’s substantive application are contained in the Social Security Act 1991 and the Social Security (Administration) Act 1999.

    CONSIDERATION

14. Section 29(7) of the Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.

15. As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia (1990) AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:

    (i)     It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained.  An extension of time will, however, be granted if it is proper to do so.

    (ii)    Consideration is to be given to the action taken by the applicant.  Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?

    (iii)    Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.

    (iv)   There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…

    (v)    Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.

    (vi)   Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.

16. In Comcare v A’Hearn (1993) 45 FCR 441, the Full Federal Courtheld that although the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition for the favourable exercise of the discretion to grant an extension of time for the lodging of that application, “it is to be expected that such an explanation will normally be given, as a relevant to matter to be considered…” (at 444).

17. The respondent contends, and in the absence of additional evidence or submissions from the parties the Tribunal accepts, that the factors for consideration in the present interlocutory proceeding are:

    ·     Length of delay;

    ·     Explanation for the delay and awareness of appeal rights, and

    ·     Merits and prospects for success (Exhibit 4 para 14).

18. The Tribunal agrees.

    Length of Delay

19. Given that the AAT1 decision was posted on 1 March 2016, the respondent submits that Ms Loseby should have received it on or about 9 March 2016.  Ms Loseby stated in the application for an extension of time dated, 11 May 2016 that she received the decision on 14 March 2016, 28 days after 14 March would have been 11 April 2016. Accepting Ms Loseby’s date of receipt means the application was 30 days out of time. The Tribunal notes that Ms Loseby is seeking an extension until 14 June 2016 which would make the application more than 60 days out of time.

20. The delay in this matter is not excessive but is significant, and relevantly the Tribunal notes that the “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)).

21. Consideration of this factor weighs against granting an extension of time.

    Explanation for delay and awareness of appeal rights

22. In her application for an extension of time, Ms Loseby stated that: “I rang the Appeals Tribunal on 11^th April to apply for a second review and they posted me papers to apply – which never arrived.  I made contact again with the Tribunal on 4^th May and they emailed the forms” (Exhibit 1 sect 4).  The Tribunal notes, as detailed above, that 11 April 2016 was the end of the prescribed period for lodging an appeal.

23. In her email letter dated 22 June 2016, Ms Loseby stated:

    I rang the AAT to ask for an extension and second review on Wednesday 30^th March (after the easter break) and was told that forms would be posted out to me.  I was never offered for them to be emailed and I didn’t even think about asking for that to happen……….A period of time passed…….work, school meetings, birthdays, bill paying, colds, housework etc (life) and I realised that the forms hadn’t arrived.  During this time thou, theft was happening at our post office and currently there is someone being charged for this crime…….I rang the AAT again on 4-5-16 and asked if forms could be resent as I hadn’t received any to date.  She offered for some to be emailed which I gladly accepted and bought a printer the next day (Exhibit 5).

24. In written evidence before the Tribunal, Ms Loseby separately gave two dates (30 March 2016 and 11 April 2016) on which she stated that she contacted this Tribunal seeking a second review (Exhibit 1 sect 4, Exhibit 5).  This evidence indicates that Ms Loseby was clearly aware of her right of appeal. It seems to the Tribunal that it was open to Ms Loseby to lodge an application for review during or at the end of the prescribed period, even if it is accepted that at that time she required further assistance or advice.

25. In relation to this consideration, the respondent’s written submissions that Ms Loseby’s explanation is unsatisfactory include:

    ·Acceptance that Ms Loseby lives in a remote region;

    ·Even if it were accepted that Ms Loseby was obtaining further information and assistance for her appeal, this did not prevent her lodging her application within the statutory period;

    ·Ms Loseby’s reason for delay does not make it fair and equitable to depart from the prescribed time period; 

    ·Ms Loseby has an email address which she could have used to lodge her application for review immediately;

    ·The letter sent by the Tribunal advising the AAT1 decision ordinarily includes reference to the applicant’s right of appeal; and

    ·Reference to previous Tribunal decisions: “In Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, the Tribunal declined to grant an extension of time as it was satisfied that the Applicant in each case was fully aware of the right to seek review of the decision in question and did nothing” (Exhibit 4 paras 22-28).

26. Consideration of this factor weighs against an extension of time.

    Merits of the substantive application

27. It is not necessary for the Tribunal to conduct a merits review of Ms Loseby’s substantive application at this interlocutory stage. However, it is appropriate for the Tribunal to consider the merits of that application as part of the process of determining this application for an extension of time for lodging the substantive application:  Hunter Valley Developments Pty Ltd; Re Johnson (refer to paragraph 15 above). 

28. In her application for second review dated 11 May 2016, Ms Loseby gave her reasons for the application as:

    I am not sure that I was understood or that my ‘side’ was heard properly at the last review. The decision made will put me in severe financial hardship so I would like the opportunity to discuss my circumstances and case with people that may help me with my review.  Living remotely has also proven more difficult with correspondence times and resources at hand. (Exhibit 1 Sect 3)

29. Before this Tribunal and in Exhibit 5, Ms Loseby provided information on the difficulties inherent in living in a remote community, the circumstances of her business and finances, health issues, difficulty in obtaining legal advice, her role as a single parent, the illness and death of her father in 2014 and recent changes in her personal domestic situation.  The Tribunal regards Ms Loseby as a genuine and credible witness.

30. Having regard to this information, the Tribunal reviewed the decision at first review. It seems to the Tribunal that the first review was conducted fairly and diligently (Exhibit 6).

31. In the respondent’s written submission, the respondent contended that Ms Loseby’s substantive application was not reasonably arguable. The respondent submitted that in order to succeed in her substantive application for review:

    … the Applicant would need to establish that either she:

    ·does not have a debt to the Commonwealth for the overpayment of parenting payment made to her; or

    ·she does have owe a debt to the Commonwealth, but the debt or any portion of it should be be written off or waived (Exhibit 4 para 33).

32. These two requirements are examined comprehensively at paragraphs 34-46 of the respondent’s written submissions (Exhibit 4 paras 34-46). Having regard to all the relevant evidence, the Tribunal is reasonably satisfied that the respondent’s submissions are sound and so accepts them.

33. The Tribunal concludes that the prospects of the substantive application are limited and that consideration of this factor weighs against the granting of an extension of time.

    CONCLUSION

34. The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant circumstances listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted.

    DECISION

35. For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the Act, the applicant’s application for an extension of time to lodge an application for review of the decision of the Social Services and Child Support Division of this Tribunal dated 22 February 2016.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

.......[Sgd].................................................................

Administrative Assistant

Dated 15 September 2016

Date of hearing	2 August 2016
Applicant	Self-represented (by telephone)
Representative for the Respondent	Ms N Venkatraman