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

[2018] AATA 1498

McCann and Secretary, Department of Social Services (Social services second review) [2018] AATA 1498 (31 May 2018)

Division:GENERAL DIVISION

File Number:           2018/0797

Re:Gerald McCann

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:31 May 2018

Place:Perth

The Tribunal refuses to grant the Applicant an extension of time to lodge an application for review of a decision dated 21 November 2017 that affirmed a decision to refuse the Applicant a disability support pension.

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

Member C Edwardes

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – disability support pension – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975(Cth) – ss 25(7) – ss 29(2) – ss 29(7)

Social Security Act 1991 (Cth) – ss94(1)

Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Re Children’s Activities Time Society Inc. and Collector of Customs, WA (1986) 9 ALN N111

Re CSIRO and Barbara (1987) 11 ALD 447

Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

Zizza v Federal Commissioner of Taxation [1999] FCA 37

REASONS FOR DECISION

Member C Edwardes

31 May 2018

THE APPLICATION

1. This is an application for an extension of time (the extension of time application) to make an application for review of a decision, dated 21 November 2017, made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) that affirmed a decision to refuse the Applicant a disability support pension (DSP).

   ISSUE

2. In his extension of time application, the Applicant declared that he received the AAT1 decision on 27 November 2017.  The Applicant lodged his extension of time application on 20 February 2018 to the Administrative Appeals Tribunal (the Tribunal). Pursuant to subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), generally, an application for review is to be lodged in the 28 days after the applicant has received notice of the relevant decision for review.  Accordingly, the Applicant lodged his extension of time application 57 days out of time.

3. The issue before the Tribunal is whether the Tribunal should exercise its discretion to grant leave for an extension of time for the Applicant to make an application to the Tribunal for a substantive review of the decision made by AAT1 on the 21 November 2017.

   EVIDENCE

4. The Tribunal received the following evidence:

   ·Exhibit A1 – Application for Extension of Time for Making an Application for Review of Decision dated 10 February 2018. 

   ·Exhibit A2 – Copy of the Applicant’s National Diabetes Services Scheme Card received 30 April 2018.

   ·Exhibit A3 – Kingsway Medical Centre Patient Health Summary printed on 13 March 2018.

   ·Exhibit R1 – Secretary’s Outline of Submissions and Annexures A-G dated 20 March 2018.

5. The matter was heard on 1 May 2018. The Applicant failed to appear and was contacted by telephone on four occasions. The Respondent was represented by Mr Kelvin Defranciscis who appeared by phone.

6. Oral submissions were made by the Respondent.   The Respondent contended that:   

   ·there was a significant delay in the Applicant making an application for review;

   ·the Applicant was not proactive in making the application for review;

   ·the Applicant’s prospects of success were very poor; and

   ·in terms of alternative avenues of relief, the Applicant was not prohibited from making a fresh application for DSP.

   RELEVANT LEGISLATION AND LEGAL PRINCIPLES

7. Generally, under subsection 29(2) of the AAT Act, an application for review must generally be lodged in the 28 days after the Applicant has received notice of the decision.

8. Subsection 29(7) of the AAT Act states that “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… if the Tribunal is satisfied that it is reasonable in all circumstances to do so”.

9. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18], Wilcox J stated “…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...”.

10. The Tribunal notes paragraph 6 of Brown v Federal Commissioner of Taxation [1999] FCA 563 that reinforces and provides guidance concerning the exercise of discretion to extend the time for commencement of proceedings:

    …

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

    (ii)    it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;

    (iii)    any prejudice to the respondent that would be caused by granting the extension of time is relevant;

    (iv)   any wider prejudice to the general public in terms of disruption to established practices is relevant;

    (v)    the merits of the substantial application are relevant; and

    (vi)   fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

11. The Tribunal also notes commentary in paragraph 37 of DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 in considering the manner in which the discretion to grant an extension of time should be exercised:

    2…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, however, 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) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] 1 VR 297 at 302).

    3Action taken by the applicant other than by making an application to the court (Tribunal) 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) 42 ALR 283 at 287)(Doyle)).

    4Any prejudice to the respondent, 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 27).

    5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic v Nolan and Others [1982) 4 ALN N176 (Lucic)).

    6The 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 417).

    7Considerations 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).

12. The Tribunal notes that the Tribunal may consider a number of factors in considering whether or not to grant an application for an extension of time.  However no one factor carries primacy over others.  All factors that are relevant to a particular case have to be weighed together in reaching a decision as to whether or not to grant an extension of time (Zizza v Federal Commissioner of Taxation [1999] FCA 37). Other factors include:

    ·length of delay – was there a significant delay in lodging an application to the Tribunal (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269);

    ·explanation for delay – the Applicant is to show an acceptable explanation for the delay (Re CSIRO and Barbara (1987) 11 ALD 447); and

    ·whether the Applicant was aware of their appeal rights (Re Children’s Activities Time Society Inc. and Collector of Customs, WA (1986) 9 ALN N111).

    CONSIDERATION

13. The Tribunal will consider the following:

    ·Was there a significant delay in lodging an application to the Tribunal?

    ·Was the Applicant aware of his appeal rights and did the Applicant provide an acceptable explanation for the delay?

    ·Will the grant of an extension of time application prejudice the Respondent or the wider public? 

    ·What are the merits of the Applicant’s substantial application – does the Applicant have reasonable prospects of success in proceeding with their substantial application? 

    ·Does the Applicant have an alternative avenue of relief?

    Was there a significant delay in lodging an application to the Tribunal? 

14. The Tribunal notes and agrees with the Secretary’s contentions in relation to the length of the delay: 

    14The Application for Extension of Time for Making an Application for Review of Decision (EOT Application) indicates that the Applicant received the relevant decision on 27 November 2017. The 28th day after 27 November 2017 is 25 December 2017. Accordingly, the 28 day limit to lodge an appeal with the AAT2 expired on 25 December 2017. The 28 day application limit is prescribed by subsection 29(2) of the AAT Act and refers to ‘day’ not ‘working day’.

    15The EOT Application was date stamped 20 February 2018. Accordingly, the Applicant’s application is 57 days out of time (approximately 8 weeks). The Secretary contends that a delay of this kind constitutes a substantial delay in the statutory context.

    16The Secretary contends that it would not be reasonable in the circumstances to grant an extension of time for a delay of 57 days. The Secretary notes that there is a public interest in the efficient conduct of merits review processes, such that timely decisions can be made and acted upon with finality.

    17The length of delay involved in a case will be a relevant consideration. Moreover, even if the delay is not considered to be lengthy, 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]).

    18The Secretary contends that the length of the delay weighs against the exercise of the discretion to grant an extension of time (R1 3-4).

15. The Tribunal finds that the Applicant’s significant delay in lodging an appeal with the Tribunal weighs against the Tribunal granting the Applicant of an extension of time to lodge his application for review.

    Was the Applicant aware of his appeal rights and did the Applicant provide an acceptable explanation for the delay?

16. The Tribunal notes and agrees with the Secretary’s contentions in relation to the Applicant’s awareness of his appeal rights and explanation for delay: 

    19It is to be expected that an Applicant for an extension of time would normally provide an acceptable explanation for the delay: Comcare v A’Hearn (1993) 45 FCR 441, 444.

    20The Applicant has given the following reason for requiring an extension of time:

    ‘After reviewing the decision, I contacted the AAT to get the appeal paperwork and was told I would receive an email and hard copy by mail.

    Unfortunately my internet and phone were cut off and I never received the hard copy. I’ve only just got a phone back and still have no internet. I had a hard copy sent and received but need an extension to have it accepted’.

    21The Secretary submits that the Applicant has not provided an acceptable explanation for his failure to lodge an application for review within the 28 day period prescribed under subsection 29(2) of the AAT Act.

    22The Secretary contends that the Applicant’s stated reason is an unsatisfactory explanation for a delay of 57 days, as he has not provided any evidence to support his reason for the delay. Moreover, even if the Applicant had provided evidence that he contacted the AAT2 for appeal paperwork in November and that his communication services had been cancelled, the Secretary submits that the Applicant could have sought to communicate with the AAT2 through other means, such as through family and friends or through community services such as a local library. Additionally, the lack of any other explanation is a factor weighing against an extension of time.

    23The Secretary contends that even if the Applicant’s reason was to be accepted, the 28 day time limit prescribed by the legislation indicates Parliament’s intention that there ought to be finality in government decision making. The Applicant’s stated reason for the delay does not make it fair and equitable to depart from the legislative time period.

    24The letter sent by the AAT1 with the decision refers to the Applicant’s right of appeal to this Tribunal, and the 28 day time limit for an appeal.

    25In 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 AAT2 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.

    26The Secretary submits that the Applicant was aware of his appeal rights”  (R1 4).

17. In section 4 of the Applicant’s application for Extension of Time, the Applicant submitted:

    After receiving the decision, I contacted APT [sic] to get the appeal paperwork and was told I would receive an email and hard copy by mail.

    Unfortunately my internet and phone were cut off and I never received the hard copy [sic]

    I’ve only just got a phone back and still have no internet.

    I had a hard copy sent and received but need an extension to have it accepted (A1 2).

18. The Tribunal finds that the Applicant was aware of his appeal rights.  The Tribunal is not satisfied with his explanation for his delay in lodging an appeal with the Tribunal.  These findings weigh against the Tribunal granting the Applicant of an extension of time to lodge his application for review.

    Will the grant of an extension of time application prejudice the Respondent or the wider public? 

19. The Tribunal notes the Secretary’s contentions in relation to this matter:

    29The Secretary contends that the public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur (R1 5).

20. There is no evidence before the Tribunal that the length of time between hearings would prejudice the Secretary. The Tribunal finds that the Secretary will not suffer prejudice if an extension of time is granted.  This finding weighs in favour of the Tribunal granting the Applicant an extension of time to lodge his application for review.

21. The Tribunal notes however that it must consider if the wider public would be prejudiced if the Tribunal were to grant an extension of time application.

22. The Tribunal notes the obvious and accepted public interest in the finality of decision-making, and the need to prevent disruption to established practices (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1). The Tribunal also notes that the Tribunal should provide a fair, just, economical, informal and quick review process.

23. The Tribunal finds that the Applicant did not provide an acceptable justification for his delay.  As such, the Tribunal finds that it is not in the public interest to grant the extension of time application. 

    What are the merits of the Applicant’s substantial application – does the Applicant have reasonable prospects of success in proceeding with their substantial application? 

24. As noted above at paragraph 11, the prospect of success of the substantive application is relevant in exercising the discretion to allow an extension of time.

25. In relation to this issue the Respondent submits:

    30It is relevant to consider the merits of the proposed appeal: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J. When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate: Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29], [38] per Hill J.

    31The Applicant has not provided any specific reason why he believes the AAT1 decision to be wrong. An attachment to the Applicant’s Application is a handwritten note by the Applicant describing the impact of his impairments on his life. The Applicant has not provided any further medical evidence to substantiate his self-report.

    32The Secretary accepts that it cannot at this stage be said that the Applicant’s proposed appeal has no prospect of success. However, on the face of the first review decision the proposed appeal does not disclose a particularly strong case.

    33In order to succeed in his substantive application for review, the Applicant would need to establish that he was medically qualified for DSP under subsection 94(1) of the Act [the Social Security Act 1991 (Cth)].

    34Subsection 94(1) of the Act states:

    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;

    (ii)    The Secretary is satisfied that the person is participating in a program administered by the Commonwealth known as the supported wage system…

    35The Secretary accepts that the Applicant satisfies paragraph 94(1)(a) of the Act.

    36The Secretary contends that the Applicant does not satisfy paragraphs 94(1)(b) or (c) of the Act because the Applicant did not:

    (a)have a severe impairment; or

    (b)complete the program of support requirements.

    37Schedule 2, Part 2, Clause 4 of the Social Security (Administration) Act 1999 (the Administration Act) provides that the Applicant’s claim for DSP must be assessed based on his medical conditions as at the date of claim or within 13 weeks of that time (the qualification period): see Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606, [7]-[8].

    38The Secretary submits that the qualification period is 18 October 2016 to 17 January 2017.

    39In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated at [34]:

    ‘In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks)…’

    40Bobera was cited with approval in Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following observation at [31]:

    ‘In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with [sic] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the qualification period’.

    41In Gallagher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle in Fanning.

    42The Secretary contends that these decisions establish that a decision maker, such as the AAT2, can only consider the Applicant’s qualification for DSP within the qualification period (R1 5-6).

1. The Tribunal is only able to analyse evidence that the Tribunal has before it.  The Tribunal notes that evidence before it must be reliable, and independently verifiable. Accordingly, the Tribunal agrees with the AAT1’s findings that the Applicant did not satisfy legislative requirements for the successful grant of a DSP.

2. The Tribunal finds that there is no evidence before it to demonstrate that the Applicant has a severe impairment or has undertaken a program of support as stipulated by paragraph 94(1)(b) of the Social Security Act 1991 (Cth).

3. The Tribunal finds that the Applicant’s prospects of success in their substantial application are poor.  The findings in paragraphs 25 to 27 of this decision weigh against the Tribunal granting the Applicant an extension of time to lodge his application for review.

   Does the Applicant have an alternative avenue of relief?

4. The Tribunal notes and agrees with that Respondent’s contentions:

   85Consideration of an application for extension of time involves an assessment of the prejudice that may be suffered by the various parties. Where, for example, a refusal of an extension of time would shut the Applicant out finally and entirely from particular relief, this may weigh in favour of any extension of time (Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516).

   86To refuse an extension of time in this case would not have the effect of entirely denying the Applicant any relief. It is open for the Applicant at any time to lodge another claim for DSP, particularly if his evidence is that his conditions have deteriorated or he has now undertaken the recommended treatment. In circumstances where the appeal period has expired, the Secretary contends that the Applicant should pursue this avenue rather than be indulged with an extension of time.

   87It is also open to the Applicant to, at any time; apply for any further pensions, benefits or allowances as required (R1 11).

5. The Tribunal finds that the Respondent’s contentions in paragraph 29 of this decision weigh against the Tribunal granting the Applicant an extension of time to lodge his application for review.

   CONCLUSION

6. In the Tribunal’s opinion, the facts outlined above in total weigh against the granting of the Applicant’s request for an extension of time to file a review application of the decision of AAT1. These are summarised below as:

   ·there was a significant delay in lodging the application to the Tribunal;

   ·the Applicant was aware of his appeal rights and did not provide an acceptable explanation for the delay;

   ·the grant of an extension of time application will unlikely prejudice the Respondent. However, the granting of an extension of time application may prejudice the wider public;

   ·the Applicant does not have reasonable prospects of success in proceeding with their substantial application;

   ·the Applicant does not have reasonable prospects of success in proceeding with his substantial application; and

   ·the Applicant has alternative avenues of relief.  It is open for the Applicant at any time to lodge another claim for DSP.

7. On balance, pursuant to subsection 25(7) of the AAT Act, the Tribunal finds that it would not be reasonable to extend the time for the Applicant to make an application for a review of the AAT1’s decision dated 21 November 2017.

   DECISION

8. For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of AAT1 dated 21 November 2017.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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Associate

Dated: 31 May 2018

Date of hearing:	1 May 2018
Applicant:	Non-appearance
Representative for the Respondent:	Kelvin Defranciscis
Solicitors for the Respondent:	Department of Human Services