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

[2019] AATA 928

Maloney and Secretary, Department of Social Services (Social services second review) [2019] AATA 928 (20 May 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2029

Re:Imogen Maloney

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:20 May 2019

Place:Sydney

The application for an extension of time is refused.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – extension of time application – substantial delay on bringing application – reasons for delay – no satisfactory explanation – prospects of success – other contact with Department – prejudice to the Department – prejudice to general public

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) ss 540 and 541B

CASES

Brisbane South Regional Health Authority v Taylor. (1996) 186 CLR 541

Charalambous and Secretary, Department of Social Services [2017] AATA 1049
Comcare v A’Hearn (1993) 45 FCR 441
Crick and Prosegur Australian Pty Ltd [2016] AATA 313
Hillman v Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2018] FCA 513
McKenzie and Secretary, Department of Social Services [2016] AATA 1051
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886
O’Gorman and Comcare (Compensation) [2017] AATA 2192

Phillips v Australian Girls’ Choir [2001] FMCA 109

REASONS FOR DECISION

Chris Puplick AM, Senior Member

20 May 2019

1. Ms Imogene Maloney (the Applicant) seeks an extension of time from the Tribunal under the provisions of section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provides that whereas appeals against reviewable decisions must be lodged within 28 days of the applicant receiving notification of the decision (section 29(2) AAT Act), the Tribunal may extend this time where it is “satisfied that it is reasonable in all the circumstances to do so.”

2. In this instance the decision from which a review is sought is a decision by the Social Services and Child Support Division of this Tribunal (AAT 1) which, on 24 April 2018, affirmed a reviewable decision of the Secretary to raise a debt against the Applicant for the recovery of overpayments of Youth Allowance.

3. The decision of the AAT1 varied the original decision of the Secretary in that it found that for some period of the time in question the Applicant was entitled to the Youth Allowance payments. However it held that from 8 September 2015 until 6 March 2017 the Applicant was paid when she was not entitled to be and that, as a result, a debt to the Commonwealth in the sum of $17,468 had been raised and needed to be repaid.

4. The AAT 1 made its decision on 24 April 2108 and, in the normal course of events, the Applicant would have received notification on that day or at least by Friday 27 April 2018 (allowing for ANZAC Day).

5. The Applicant claims that she did not receive notification until 26 September 2018 although offering no explanation of why such a delay might have occurred. Had she received notification on or about 24 April 2018 her 28 day period in which to lodge an appeal would have expired on or about 24/25 May 2018. Had she only received the notification on 26 September 2018 (for whatever reason) this period would have expired on 24 October 2018.

6. The Applicant lodged her appeal on 11 April 2019 making it either 11 months or, at the very best, 5 months and 3 weeks out of time.

7. The Applicant states that during this period she was affected by issues of homelessness, an abusive relationship, mental health issues and misuse of illicit drugs. There are no further details provided in relation to these matters of either a temporal or qualitative nature and no explanation of the extent to which, if at all, these factors impaired her ability to function effectively.

8. In her submission giving details of the reasons for her late lodgement and her reason for seeking an extension of time she states that she was “unable to receive a support letter from a caseworker as they were not contactable.”[1]

   [1] Applicant’s formal application dated 11 April 2019.

9. The Tribunal does not intend to canvass in detail all the authorities which provide guidance on the considerations which the Tribunal should bring to bear in deciding whether or not extension of time should be granted.

10. In short however:

    ·The High Court has emphasised that good administrative practice requires both that there be finality in administrative decision making and that “the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.”[2] Furthermore:

    [2] Brisbane South Regional Health Authority v Taylor. (1996) 186 CLR 541 at 551.

    The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[3]

    ·The Federal Court has laid down a series of tests which should be applied to such applications. In essence these are:

    oan applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;

    oa distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    oany prejudice to the respondent caused by the delay;

    owhether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    othe merits of the substantial application; and

    o“considerations of fairness as between the applicant and other persons” in a similar position.[4]

    [3] Ibid at [554].

    [4] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.

11. These articulated principles have been expanded upon and reframed by a number of authorities[5] but in essence they remain the criteria upon which the Tribunal bases its decision-making, although accepting that they are not to be applied “mechanically”[6] and are to be applied with due regard to the specific circumstances of each case.[7]

    [5] Phillips v Australian Girls’ Choir [2001] FMCA 109; Hillman v Australian Postal Corporation [2017] AATA 1411.

    [6] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

    [7] Crick and Prosegur Australian Pty Ltd [2016] AATA 313 at [14].

12. The centrality of two issues, the reason for the delay and the prospects of the ultimate success or otherwise of the application need to be considered, although it is not the role of the Tribunal, at this stage, to come to any definitive determination of the outcome of matters properly reserved for the merit-based hearing. Von Doussa J has stated this in the following terms:

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.[8]

    [8] Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

13. In neither the written application, nor in oral evidence, has the Applicant provided any cogent or compelling reasons for the delay in lodging her application.

14. When questioned about her claim that delay was caused by her waiting to receive some sort of letter of support from a caseworker it transpired that the Applicant had been receiving assistance from a named individual at the Mission Beat Outreach Service but that, despite her efforts, it had been impossible to contact this individual for more than twelve months. The Tribunal finds this hard to accept given that the individual in question apparently remained in the employment of that charity throughout the period in issue.

15. When pressed as to what evidence might have been forthcoming from the caseworker the Applicant advised that it would be to support her claim of homelessness and personal distress as the caseworker had been helping her to find support via social housing.

16. However sympathetic the Tribunal may be to her issues of mental health, homeless, abuse or drug misuse they are not, in themselves, an acceptable reason for delay. Nor is there any evidence that they so affected the Applicant as to render her incapable of taking steps to look after her own welfare.

17. Indeed, to the contrary, there is evidence before the Tribunal that, during the relevant period, the Applicant was in contact with the Department on a number of occasions to advise of change of address, or to seek advice about what steps to take to secure advance payments or changes in her benefits which were otherwise being paid.[9]

    [9] Respondent’s Outline of Submissions (13 May 2019) at [28]-[30].

18. Other decisions of this Tribunal have made it clear that, in the absence of evidence that an applicant is somehow prevented or incapable of taking any steps to look after their personal interests, it will not be possible to establish that mere disadvantage or illness constitutes a sufficient reason to justify delays.[10]

    [10] McKenzie and Secretary, Department of Social Services [2016] AATA 1051 at [22]-[23]; Charalambous and Secretary, Department of Social Services [2017] AATA 1049 at [16].

19. Similarly, in relation to the contended issue, whether or not the Applicant was entitled to the Youth Allowance payments, the evidence before the Tribunal is quite clear in establishing that, during the relevant period, the Applicant failed to meet the statutory requirements of the Social Security Act 1991 in that she was not undertaking full-time studies as required and as defined.

20. Although this might otherwise have been a matter for the merits hearing, it is appropriate that the Tribunal explain how it has reached such a conclusion.

21. Section 540(a)(i) of the Social Security Act 1991 (Cth) which establishes the qualifications for the payment of youth allowance specifies that in relation to an eligible person: “throughout the period the person satisfies the activity test”. Section 541(1)(a) which defines the elements of the “activity test” requires that the recipient be a person “undertaking full-time study”.[11] Section 541B(1)(b)(iii) defines “full-time study” as being “at least three-quarters of the normal amount of full-time study in respect of the course for that period.”

    [11] Unless exempt under section 542, none of which exemptions apply to this Applicant.

22. The academic record provided to the Tribunal on behalf of TAFE NSW shows that for the various courses in the Diploma of Early Childhood Education and Care, in which the Applicant was enrolled, she completed only 48 hours of the total curriculum hours of 1467.[12]

    [12] TAFE NSW Digital: Academic Year record attached to Respondent’s Outline of Submissions.

23. The Applicant herself in responding to questions before the Tribunal conceded that this was a correct calculation of her hours of course participation but asserted that she had been doing external studies to the best of her alibility. However the Academic Record goes on to show that in the 27 enrolled units of study, only 5 recorded that work had been “completed satisfactorily”.

24. It would thus, in the opinion of the Tribunal, not be possible for the Applicant to show that she had conformed to the requirements of the Act in terms of being enrolled as a full-time student to establish an eligibility for Youth Allowance as such.

25. The Applicant is recorded as formally withdrawing from her course on 3 August 2016 and so any payments made between then and 6 March 2017 were clearly made in error to an applicant not qualified as a recipient. For the period from 8 September 2015 to 3 August 2016 payments were made when the Applicant clearly did not meet the requirements of the activity test as prescribed by the Act.

26. The extent to which the Applicant failed to provide required/relevant information to the Department, whether “knowingly” according to the Secretary[13], or for some other reason, is a matter which would ordinarily await merit-review hearing but is, in any case, irrelevant to the fact that such information was not provided as required. This led to the overpayment. It then led to the debt.

    [13] Respondent’s Outline of Submissions (13 May 2019) at [49].

27. In the opinion of the Tribunal these facts establish that the prospects of success are so limited that it comports with the finding by Bromwich J to the effect:

    that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.[14]

    [14] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].

28. The Tribunal does not believe that it would be reasonably open to any merits-review hearing to come to a conclusion other than that which the Tribunal has outlined above and that, as a result, it can conclude safely that there are little or no prospects of success at any merits-review hearing arising from a grant of an extension of time.

29. Applying the tests outlined above the Tribunal comes to the conclusion that:

    (a)No reasonable explanation for the delay has been provided;

    (b)Although the Applicant may not have rested upon her rights, she made no conscious effort, within a reasonable time, to prosecute or advance them;

    (c)The Respondent is entitled to have some finality in the matter and is prejudiced to the extent that where this is not available within a reasonable period of time, its resources and priorities are diverted;

    (d)While there is no overt prejudice to the general public, there is prejudice to the extent that unjustified grants of extension of time compromise the standards of good public administration which are themselves a public good;

    (e)There is a prima facie case for establishing that the claim itself lacks merit on the basis that there is clear evidence of non-compliance with statutory requirements which cannot be overcome;

    (f)Other applicants suffering the same disadvantages as this Applicant have managed on numerous occasions to “get their acts together” such as to be able to comply with statutory requirements and there is no reason demonstrated here to otherwise advantage this Applicant over them.

    DECISION

30. For the reasons outlined above the application for an extension of time is refused.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 20 May 2019

Date(s) of hearing:	16 May 2019
Date final submissions received:	13 May 2019
Applicant:	In person
Advocate for the Respondent:	George Lozynsky
Solicitors for the Respondent:	Department of Human Services