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

[2015] AATA 731

Major and Secretary, Department of Social Services (Social services second review) [2015] AATA 731 (17 August 2015)

Division	General Division
File Number	2015/3387
Re	Carmen Major
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	17 August 2015
Date of written reasons	18 September 2015
Place	Sydney

The application by Ms Major to extend the time in which she may apply to this Tribunal to review the decision of the Social Security Appeals Tribunal, made 28 April 2015, is refused.

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

Deputy President J W Constance

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time to lodge application for review – pensions – indefinite portability of disability support pension – whether reasonable in all the circumstances to grant extension – whether reasonable explanation of delay – whether reasonable prospects of success on the substantive application – application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29(2), 29(7)

CASES

Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

WRITTEN REASONS FOR ORAL DECISION GIVEN 17 AUGUST 2015

Deputy President J W Constance

18 September 2015

INTRODUCTION

1. On 7 July 2015 Ms Major applied to the Tribunal for an extension of the time in which she could apply for a review of a decision of the Social Security Appeals Tribunal made on 28 April 2015.

2. On 17 August 2015 I refused Ms Major’s application. I gave reasons for my decision orally at the time.

3. I now provide my reasons for my decision in writing.

   BACKGROUND

4. The decision of the Social Security Appeals Tribunal was to affirm a decision of an authorised review officer of Centrelink to reject Ms Major’s claim for indefinite portability of her disability support pension.

5. Ms Major was granted the pension in August 2013 in respect of her medical condition of rheumatoid arthritis.

6. Between 9 January 2014 and 21 June 2015 Ms Major travelled overseas on five separate occasions.

7. In July 2014 Ms Major applied to Centrelink for indefinite portability of her pension entitlements on the basis that she had no future work capacity. On 18 July 2014 she was assessed by a Job Capacity Assessor, who was a registered physiotherapist, to have a baseline work capacity of 8 – 14 hours per week. On the basis of this report Ms Major’s application for indefinite portability of her pension was refused by Centrelink and, on appeal, by the Social Security Appeals Tribunal.

8. Ms Majors appeal was heard by the Social Security Appeals Tribunal on 28 April 2015. Ms Major was advised of this hearing by letter of 21 April 2015 and again by a text message to the mobile number she had provided on the day prior to the hearing. The Tribunal’s reasons for the decision indicate that an attempt was made to contact Ms Major by telephone so that she could participate in the hearing and that this attempt was unsuccessful. The Tribunal proceeded to determine the matter in her absence.

9. A copy of the decision and the reasons for that decision was posted to Ms Major on 5 May 2015.

10. Ms Major lodged an application to review the decision of the Social Security Appeals Tribunal with this Tribunal on 7 July 2015. At the same time she lodged an application for an extension of time in which to make the application for review.

    THE REQUIREMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) AS TO THE TIME FOR MAKING AN APPLICATION FOR REVIEW OF A DECISION

11. In this matter the time for making an application for review ended on “the twenty-eighth day after the day on which a document setting out the terms of the decision [was] given to the applicant” (subsection 29(2)).

12. Subsection 29(7) provides:

    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.

    CONSIDERATION

13. In Phillips v Australian Girls’ Choir Pty Ltd & Anor[1], McInnis FM  summarised the applicable principles as follows:

    [1] [2001] FMCA 109 at para.10.

    1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).

    2.    It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).

    3.    Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).

    4.    Any prejudice to the responded, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).

    5.    The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

    6.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

    7.    Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528; [1983] FCA 94).

14. Whilst I consider these principles to be applicable, it should be noted that the discretion given to the Tribunal in section 29 of the Act is very wide. The Tribunal has to be satisfied that it is reasonable “in all the circumstances” to grant the extension.

15. Ms Major told me that, at the time of the decision of the Social Security Appeals Tribunal she was overseas and waiting for a telephone call from the Tribunal. For some reason she did not receive the call made on the day of the hearing. Her mail was being held in Australia and she did not receive it until 5 July 2015, on which date she became aware of the decision. She made the application for an extension of time within two days. It is not clear why Ms Major did not receive the call and therefore notice of the hearing of the appeal, and I accept her evidence in this regard. I am satisfied that she has a reasonable explanation for the delay.

16. I note that the extension of time sought is relatively short and that there is no evidence  that the Secretary will suffer any prejudice should an extension of time be granted.

17. Notwithstanding the above, I am not satisfied that Ms Major has reasonable prospects of success on the substantive application, should the extension be granted.

18. I have considered the Job Capacity Assessment Report dated 6 November 2014. In that report, the Assessor expresses the opinion that Ms Major is able to work 8 – 14 hours per week in a semi-skilled position requiring light manual effort, such as a receptionist or administration duties.  The Assessor took into account that Ms Major had been working up to 30 hours per week in a receptionist role.

19. The Social Security Appeals Tribunal found that Ms Major had been employed by a firm of Accountants from 1 August 2014 until she left Australia on 1 September 2014, and that she had returned to her employment upon her return to Australia on 11 September 2014. An Employment Separation Certificate contained in the Centrelink documents indicates that Ms Major left employment on 29 January 2015 due to “medical deterioration”.

20. Ms Major does not agree with the opinion expressed in the Report.  She said that she had been working for a firm of Accountants as a receptionist until she ceased work in January 2015 because she was unable to do the job. She said that her employer paid her, irrespective of the amount of work she was able to do as a matter of generosity. Ms Major said that it was “not a normal job”.

21. To be entitled to the benefit of the indefinite portability provisions of the Social Security legislation, Ms Major must satisfy several conditions. One of those conditions is that she have no (less than two hours per week) future work capacity independently of an ongoing program of support and that level of work capacity is likely to remain for at least five years.

22. Taking into account Ms Majors work history and the opinion of the Assessor, I am not satisfied that Ms Major has reasonable prospects of success on the substantive issue, should her application for an extension of time be granted. Notwithstanding that Ms Major may not have effectively worked for the whole of the period during which she attended the office of the Accountants, I am not satisfied that she could not have performed at least two hours per week in that position. Further, on the basis of the evidence before me, it is unlikely that the Tribunal would be satisfied that this situation has changed. 

23. Further, considering the broad discretion available to the Tribunal in these matters, I have taken into account that a refusal to grant the extension of time she seeks, does not prevent Ms Major from making a fresh application to Centrelink for indefinite portability of her pension, prior to her next travelling overseas.

    CONCLUSION

24. The application by Ms Major to extend the time in which she may apply to this Tribunal to review the decision of the Social Security Appeals Tribunal made 28 April 2015, will be refused.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.  

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Associate

Dated 18 September 2015

Date of hearing	17 August 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services