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

[2016] AATA 1051

Mackenzie and Secretary, Department of Social Services (Social services second review) [2016] AATA 1051 (20 December 2016)

Division	GENERAL DIVISION
File Number	2016/0906
Re	Sheila Mackenzie
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	20 December 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 19 November 2015 is refused.

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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 19 November 2015 – length of delay significant – applicant advised of appeal rights – explanation for delay not compelling or 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 A’Hearn (1993) 45  FCR 441

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

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

Re Grafton and Commonwealth (1998) 16 ALD 533

Re Johnson and Commonwealth of Australia (1990) AAT1

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

REASONS FOR DECISION

Brigadier AG Warner, Member

20 December 2016

1. Ms Mackenzie’s substantive application seeks review of a decision of the Social Services and Child Support Division of this Tribunal (“AAT1”) dated 19 November 2015.  That first review decision was that Ms Mackenzie was not medically qualified for the Disability Support Pension (“DSP”) at the time of her claim on 7 April 2015 or within the following 13 weeks. 

2. Ms Mackenzie has also applied for an extension of time for lodging the abovementioned substantive application.

3. An interlocutory hearing was conducted on 31 October 2016.  Ms Mackenzie attended that hearing and was assisted by her son, Mr Simon Mackenzie, who gave oral evidence.

   BACKGROUND

4. Ms Mackenzie was born in April 1953.

5. The background facts are contained in the Secretary’s Outline of Submissions dated 17 October 2016.  This background is not in dispute and is repeated as follows:

   (a)On 7 April 2015 the Applicant lodged a claim for DSP with the Department of Human Services (the department).

   (b)On 6 May 2015 the department made a decision that the Applicant was not qualified for DSP (the original decision).  The decision was made on the grounds that the Applicant’s impairments did not attract a rating of at least 20 impairment points under the Tables for the Assessment of Work-related impairment for DSP and she did not have a continuing inability to work (CITW). 

   (c)On 19 August 2015 the original decision was reviewed and affirmed by an Authorised Review Officer.

   (d)On 27 August 2015 the Applicant requested a review of the original decision by the AAT at first review.

   (e)The decision was reviewed and affirmed by the AAT on 19 November 2015.  Under cover letter dated 26 November 2015 the Tribunal posted the Applicant a copy of its decision.

   (f)The Applicant is deemed to have received the Tribunal’s decision by 3 December 2015 and the appeal period expired on 31 December 2015.

   (g)On 15 February 2016 the AAT received an application for second review of the decision as well as an extension of time application from the Applicant.  The application was 46 days out of time.

   (h)The Applicant withdrew her extension of time Application and the application was dismissed with effect from 4 April 2016.

   (i)On 22 June 2016 the Applicant lodged a second request for an extension of time before seeking a reinstatement of her original extension of time application on 9 September 2016.

   (j)The Secretary did not oppose the re-instatement of the Applicant’s extension of time application.

   ISSUE

6. Mrs Mackenzie 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.

   RELEVANT LEGISLATION

7. 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;

8. 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.

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

   EVIDENCE

10. The Tribunal had before it the following evidence:

    ·Application for Second Review of Decision lodged 22June 2016 (Exhibit 1);

    ·Application for Extension of Time lodged 22 June 2016 (Exhibit 2);

    ·Social Services and Child Support Division Decision dated 19 November 2015 (Exhibit 3);

    ·Sheila Mackenzie’s email dated 2 September 2016 (Exhibit 4);

    ·Sheila Mackenzie’s email dated 9 September 2016 (Exhibit 5);

    ·Secretary’s Outline of Submissions (including Annexures A-G) dated 17 October 2016 (Exhibit 6);

    ·The oral evidence of Ms Mackenzie; and

    ·The oral evidence of Mr Simon Mackenzie.

    CONSIDERATION

11. 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”.

12. 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:

    (a)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.

    (b)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?

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

    (d)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…

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

    (f)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.

13. In Comcare v A’Hearn (1993) 45 FCR 441, the Full Federal Court held 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).

14. 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;

    ·Awareness of appeal rights and explanation for the delay;

    ·Prospects for success; and

    ·Alternative avenues of relief (Exhibit 6 para 17).

    Length of delay

15. As detailed above at paragraph 5(g), Ms Mackenzie’s initial application for review was 46 days out of time.  Another 128 days elapsed before Ms Mackenzie attempted to re-instate proceedings on 22 June 2016 after withdrawing her initial application for an extension of time.  Ms Mackenzie lodged her request for re-instatement of her initial extension of time application on 9 September 2016.

16. Before the Tribunal, Mr Mackenzie contended that the delay could be explained in part by his mother’s lack of awareness of the proceedings and by her changing address a number of times.  The Tribunal notes that this explanation is not included in the application for an extension of time (Exhibit 2 SECT 4).

17. The length of delay in this matter is significant and weighs against an extension of time.

    Awareness of appeal rights and explanation for the delay

18. In her written application for an extension of time, Ms Mackenzie gave her reason for seeking the extension as: “I have to see why they rejected it all info available from Centrlink (sic) Morley.  Did not qualify the points” (Exhibit 2 SECT 4).

19. In emails to the Tribunal, Ms Mackenzie further explained her delay as being because she “was no (sic) in a state of mind to deal with the questionnaire that I received from you” (Exhibit 4), and “I was too busy with doctor appointments and mental health organisation and I was under the influence of strong medication so that I was not Able to submit anything that had to be lodge (sic) in that space of time” (Exhibit 5).

20. The Tribunal has reviewed the AAT1 decision dated 19 November 2015 (Exhibit 3).  The Tribunal considers that the decision provided Ms Mackenzie with comprehensive reasons written in clear and understandable language appropriate to the matter.  Further, the letter dated 26 November 2015 and sent to Ms Mackenzie enclosing the AAT1 decision includes information on the applicant’s appeal rights, and includes an information sheet which states:  “There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision)” (Exhibit 6 Annex A).

21. In relation to the consideration of awareness of appeal rights in the present matter, the respondent relevantly submits:

    In 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) 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 6 para 30).

22. The Tribunal has sympathy for Ms Mackenzie and her medical circumstances, but the very nature of applications for DSP suggests that applicants might be unwell during the application process.  It would be unfair to other DSP applicants and future applicants for the discretion to extend time to be exercised on the basis of this consideration in Ms Mackenzie’s case.

23. The Tribunal is satisfied that Ms Mackenzie was advised of her appeal rights and the timeframe for the exercise of those rights.  It is the Tribunal’s opinion that Ms Mackenzie  has not given a compelling or satisfactory explanation for not lodging an application for review with this Tribunal before the expiration of the prescribed 28 day period on or about 31 December 2015, let alone not doing so for a further 128 days.

24. Consideration of awareness of appeal rights and explanation for the delay weighs against an extension of time.

    Prospects of success

25. At first review, the AAT1 assigned 10 impairment points for Ms Mackenzie’s spinal condition under Table 4 – Spinal Function (Exhibit 3 p5).  Previously, the Job Capacity Assessor (Exhibit 6 Annex B p4) and the ARO (Exhibit 6 Annex C)  had determined a 5 point impairment rating for this condition.  Ms Mackenzie’s mental health condition, hypothyroidism, liver disease, polyps and sarcoid were not assigned impairment points in the previous assessments.

26. In consideration of Ms Mackenzie’s spinal condition, the respondent submitted:

    The Applicant also advised the ARO in a conversation for the decision dated 19 August 2015 (Annexure C) that what she said to the JCA in regard to the functional impacts of her spinal condition was correct at the time but that due to recent surgery her condition had worsened.  Importantly, any deterioration and increased functional impacts have occurred outside the relevant period (Exhibit 6 para 40).

27. It is not necessary for the Tribunal to conduct a merits review of Ms Mackenzie’s substantive application at this interlocutory stage.  However, it is appropriate for the Tribunal to consider the merits of the substantive application for a review as part of determining this application for an extension of time for lodging the substantive application:  Hunter Valley Developments Pty Ltd; Re Johnson (refer to paragraph 12 above).

28. The AAT1 found, in summary, that Ms Mackenzie has 10 impairment points and therefore does not qualify for DSP.  This Tribunal has reviewed that decision.  In the Tribunal’s opinion, that review indicates that the AAT1 examined the evidence before it thoroughly and made a conscientious decision properly based on that examination.  The Tribunal had no further relevant probative medical evidence before it such as to disturb its opinion.

29. As the AAT1 found that Ms Mackenzie did not satisfy s 94(1)(b) of the Social Security Act1991, it did not consider her continuing inability to work (Exhibit 3 para 53).  However, for completeness the respondent took this consideration further (Exhibit 6 paras 47-50), submitting that:

    If the Applicant was awarded 20 points for medical conditions over multiple Tables, she would still have to satisfy the program of support (POS) requirements in order to be considered as having a CITW.  The Applicant had not completed 18 months of a POS in the 36 months prior to the date of her claim (Annexure G).

    There is no evidence to suggest that the Applicant satisfied any of the exemptions to the POS requirement.

    Additionally, the JCA report indicated the Applicant could achieve 15-22 hours of work per week within two years with disability-specific intervention once her mental health condition was better managed.

    The Secretary submits that the Applicant did not have a CITW at the relevant period and that section 94(1)(c) of the SS Act is not satisfied.

30. The evidence supports the respondent’s submission regarding Ms Mackenzie’s continuing inability to work, and accordingly the Tribunal agrees.

31. Before the Tribunal, Mr Mackenzie appeared as an honest witness genuinely concerned for the welfare and well-being of his mother.  The tenor of his oral evidence was that:

    ·He understood the AAT1 decision regarding Ms Mackenzie’s DSP claim;

    ·His mother’s medical conditions had deteriorated at an exponential rate since her DSP claim was refused; and

    ·Pursuing a fresh DSP claim would be expensive and difficult, and that proceeding to a review of the extant substantive application and having regard to Ms Mackenzie’s current worsened circumstances would be a preferred and more efficient option.

32. Having regard to all the information before it relevant to the merits of Ms Mackenzie’s substantive application, the Tribunal is reasonably satisfied that the substantive application has very limited prospects of success.  Consequently, this consideration weighs against granting an extension of time.

    Alternative avenues of relief

33. If Ms Mackenzie’s medical conditions have deteriorated, as Mr Mackenzie contends, then Ms Mackenzie can lodge a fresh claim for DSP and have her eligibility assessed according to those conditions.

34. The access to an alternative avenue of relief weighs against an extension of time.

    CONCLUSION

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

    DECISION

36. 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 19 November 2015.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member.

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Administrative Assistant

Dated 20 December 2016

Date of hearing	31 October 2016
Applicant	In person
Representative of the Respondent	Ms A Barton Department of Human Services