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

Mihalopoulos and Secretary, Department of Social Services (Social services second review) [2021] AATA 3533 (1 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5794
Re:Rick Mihalopoulos
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:1 October 2021
Place:Sydney

The application for an extension of time is refused.
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Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for an extension of time – disability support pension rejection – 28-day period has elapsed – where extent of delay reasonably explained – where there is no reasonable prospect of success – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Evidence Act 1995 (Cth) s 160
Social Security Act 1991 (Cth) ss 26 and 94
CASES
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Dolan and Comcare (1993) 29 ALD 887
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Pohahau v Minister for Home Affairs [2019] FCA 1243
Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412
SPWX and Secretary, Department of Social Services [2020] AATA 3883
Zizza v Commissioner of Taxation [1999] 55 ALD 451
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
1 October 2021

Mr Rick Mihalopoulos (the Applicant) is seeking an extension of time (EOT) to lodge an appeal against a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 31 March 2020.
That AAT1 decision affirmed a decision made by an Authorised Review Officer (ARO) of the Department of Social Services (the Respondent) on 17 January 2020 which itself affirmed an initial decision by the Respondent on 21 May 2019 to reject the Applicant’s application for the Disability Support Pension (DSP). The initial DSP application was made on 4 April 2019.
The AAT1 decision was communicated to the Respondent on 7 April 2020 and pursuant to subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) the Applicant had a period of 28 days in order to lodge an appeal against that decision. Noting the fact that the AAT1 decision was posted to the Applicant and the guidance of the postal rule in the Evidence Act[1], the Tribunal finds that the 28-day period expired on 14 May 2020.
[1] Section 160 of the Evidence Act 1995 (Cth) states that it is presumed “a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted”.
On 21 May 2020 the Applicant lodged both an appeal against the AAT1 decision and a request for an EOT to do so. However, it appears that on 6 July 2020 the Applicant withdrew those requests which were formally dismissed by this Tribunal on 7 October 2020.
On 20 April 2021 the Applicant lodged a further claim for the DSP which was granted on 18 June 2021 effective from the date of application.
On 19 August 2021 the Applicant lodged an appeal against the AAT1 decision and an application for an EOT to do so. In effect this EOT application is 1 years 3 months and 5 days outside the prescribed application period.
The application for an EOT was opposed by the Respondent and came before the Tribunal for hearing on 27 September 2021 with the parties participating by telephone in accordance with the Tribunal’s COVID-19 protocols.
PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[2] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
…
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[2] (1996) 186 CLR 541 at 552-553. Footnotes and citations omitted.
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [3] should be taken as the guide by this Tribunal in determining EOT matters.
[3] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and thus it is “fair and equitable in the circumstances” to extend time;
·a 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;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
However, there are other principles which the Tribunal bears in mind in these considerations. They include:
·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated;[4]
·considering that “[i]f 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”;[5] and
·considering “the availability of alternative avenues of relief should the original EOT not be granted”.[6]
[4] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]; Zizza v Commissioner of Taxation [1999] 55 ALD 451 at 465.
[5] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[6] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
There is no hard-and-fast rule that the length of time by which an application falls outside the prescribed time limits should serve as a guide as to whether or not an extension of time may be granted.
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:
In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.[7]
[7] Secretary, Department of Family and Community Services v Roberts (2003) 73 ALD 412 at [16]; Dolan and Comcare (1993) 29 ALD 887 at 888.
In Roberts with just one day delay the extension of time was refused whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[8] In 2020 the Tribunal saw fit to grant and extension of time to an applicant who had lodged her request well in excess of eight years after the appealable decision because although “the delay in this matter is very substantial”, nevertheless “the issues sough to be considered in a review are also of importance.” [9]
[8] Berkelaar and Comcare [1997] AATA 12015.
[9] SPWX and Secretary, Department of Social Services [2020] AATA 3883 at [49].
REASONS AND MERIT
In effect, the two most critical elements for the Tribunal to consider in an EOT application are usually whether a reasonable explanation exists for the delay, (although “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given”)[10] and whether the application has a reasonable expectation of being successful if proceeding to a full merits-based review.
[10] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
None of the other factors in Wilcox J’s “check-list” has been raised by the Respondent as concerns, nor do they appear relevant in the circumstances of the present case.
The question of how to adjudge the latter point was set out by Wigney J in the following terms:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review. [11]
[11] Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35]. Citations omitted.
The level of examination which should be undertaken by the Tribunal, of the grounds upon which the appeal itself is based, were summarised by the High Court in Jackamarra:[12]
The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."
THE APPLICANT’S REASONS
[12] Jackamarra v Krakouer (1998) 195 CLR 516 at [3]. Citations omitted.
Delay in lodgement
The Applicant told the Tribunal that the reason for the withdrawal of the initial appeal and EOT application in July 2020 was that he was seeking to gather more evidence to support his appeal against the rejection of his DSP claim. In particular he was challenging an assessment that his condition of arthritis rated only 10 points on the Impairment Tables[13] (see below). He gives the same reason for the 2021 application being lodged out of time.
[13] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables).
Clearly any appeal against a DSP assessment will require an applicant to show more than a simple disagreement with the assessment. They must seek to present evidence which calls its correctness into question. This evidence may indeed take some time to gather, collate and present.
As will be seen below some of the material eventually gathered by the Applicant has caused a new assessment of his degree of impairment to be granted, resulting in his successful DSP application of April 2021.
Prospects of success
The Applicant draws to attention the fact that his April 2021 application for the DSP was successful and claimed before the Tribunal that the decision made on that occasion was based on essentially the same material that was before the decision-maker in 2019. Hence, he argues, there is a case that the 2019 decision should be reviewed and the impairment rating altered.
The important element of the 2021 decision was a finding that the Applicant’s arthritis was a sufficiently “severe impairment” as to rate 20 points on the Impairment Tables.
At this stage it is necessary to explain some aspects of the DSP requirements.[14] In essence, to qualify for the DSP an applicant must show that they suffer from an impairment or impairments. Those impairments must be fully diagnosed, treated and stabilised during a period which runs from 13 weeks after the date of the application being lodged (the “qualification period”). Only those impairments which are fully diagnosed, treated and stabilised during that qualification period may then be considered further. They are assessed on what are called the Impairment Tables[15] which are a series of tables related to particular functional activities, each of which set criteria for the awarding of points relative to the particular impairment.
[14] Social Security Act 1991 (Cth) (Act) s 94.
[15] The Impairment Tables are made under section 26 of the Act.
In order to qualify for the DSP an applicant must achieve an assessment rating of at least 20 points. This may be done with an assessment of one single condition (defined as being a “severe impairment”) or cumulatively over several tables.
If the 20 points are cumulative, then an applicant must satisfy a further requirement, namely that they have a “continuing inability to work”.[16] That in itself requires that an applicant has “actively participated” in a “programme of support” (POS) for at least 18 months in the 36 months prior to the date on which they claim the DSP.[17]
[16] Social Security Act 1991 (Cth) s 94(2).
[17] Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth).
If however, the 20 points are awarded on a single table then the POS requirements are waived.
The AAT1 affirmed the 2019 assessment of the Applicant as having a cumulative impairment rating of 15 points comprising 10 points for his arthritis[18] and 5 points for his mental health conditions.[19]
[18] Spondyloarthritis and sacroiliac joint dysfunction.
[19] Anxiety and depression.
At the time the Applicant identified a number of other conditions which he claimed constituted impairments, including problems with his eyes[20] and a variety of blood, sleep, digestive and kidney problems. None of these was assessed as being fully diagnosed, treated and stabilised during the qualification period and so none was assigned any impairment rating.
[20] Pellucid marginal degeneration.
It was further determined that because the Applicant’s rating was only 15 points, he does not meet the requirement set out in paragraph 94(1)(b) of the Act and as a result there was no need to consider whether the Applicant had a continuing inability to work.
The basis of the Applicant’s putative challenge to the AAT1 finding is that his 2021 assessment of 20 points on the single table for arthritis indicates that the 2019 assessment was itself incorrect and that he should have been awarded 20 points, thereby disposing of any POS requirements.
In the alternative, he should have been awarded more points in relation to his ophthalmic condition. This would have given him a cumulative 20 points but the POS requirement would have been met because, from 2014 to 2019 he was actively engaged in seeking work through Active OHS as part of a set of requirements imposed under worker’s compensation arrangements via an insurance company.
The Respondent counters these arguments. In the first place it asserts that there could be no challenge to the 10 point rating for the arthritis because the evidence establishes that the tests required to meet the 20 point (that being the next threshold) were not met in 2019. The AAT1 (at paragraph 22) in its determination reported that “Dr Koumoulas, general practitioner noted Mr Mihalopoulos has symptoms resulting in a mild functional impact on his ability to walk upstairs or without breaks.”
The detailed findings of Dr Burgess (Chiropractic and Sports Therapist) and the Job Capacity Assessor before the AAT1 respectively supported a 5 point “mild” impairment rating and a 10 point “moderate” impairment rating for the Applicant’s arthritis.[21]
[21] Respondent’s Outline of Submissions at Attachments [A], [B] and [C].
The Respondent also relied upon a report by Dr Sheela, dated 15 June 2021, who was contracted by the Respondent to provide an independent Disability Medical Assessment and who found that the Applicant’s impairment rated 20 points. In the production of this report, Dr Sheela took further evidence from Dr Koumoulas on 1 June 2021 which suggested that the Applicant’s arthritis-related impairment had worsened since 2019.[22]
[22] Respondent’s Outline of Submissions at [50]-[51].
The Tribunal is satisfied from the evidence of various medical practitioners that the Applicant’s condition has worsened over time and that while it may now properly rate 20 points, at the time of the 2019 assessment it only rated 10 points during the qualification period. The Tribunal notes that the Applicant himself maintains that is condition has been at the same level of impairment since 2018 onwards but prefers to rely on the various independent assessments and findings on this issue.
Among the “new” material which the Applicant was seeking to gather for presentation in support of his case was apparently a further report from the ophthalmologist (Dr Tan) and a report regarding problems with his shoulder.
Dr Tan’s original report was not before the decision-maker in 2019 and was only submitted to the AAT1. It is dated 18 March 2020 and hence there is no evidence to show that this condition was fully diagnosed (let alone treated and stabilised) during the qualification period.[23]
[23] AAT1 decision at [29].
Similarly, no previous mention of any shoulder condition was taken into account for the 2019 assessment.
This leads to a clear conclusion that the Applicant’s rating of 15 points on the Impairment Tables in 2019 was correct and that there is now nothing that could be put before a decision-maker which would alter that outcome.
For the sake of completeness it should be mentioned that the POS Determination defines (subsection 5(1)) who may be taken to be a “designated provider” for the purposes of the POS scheme and the providers mentioned by the Applicant are not included in that definition. Hence his participation in any of their programmes would not ameliorate the requirement to be engaged in a POS provided by a “designated provider”, which was not the case.
CONCLUSIONS
The Tribunal has some sympathy with the explanation given for the delay in making this current application and is not aware of the dates of the additional medical information which has now been provided. That evidence was, as the Applicant reported, provided to the Respondent on 3 January 2021 and he says that he awaits an acknowledgement from the Respondent despite follow-up calls (8 January 2021) and a discussion (29 January 2021) about the making of a new DSP application.
Taken on its own the Tribunal would have been marginally inclined to grant the DSP despite the lengthy delay.

However, in assessing EOT applications, all of the evidence and all of the reasons must be taken together.
It is quite clear that the 2019 rejection decision was correct and that there is clearly insufficient evidence to suggest that any rehearing of the application would lead to a different outcome.
It is thus, as explained above, not in the interests of justice, nor of public policy to allow the application for an EOT to go ahead.
DECISION
The application for an extension of time is refused.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 1 October 2021

Date(s) of hearing: 27 September 2021

Applicant: In person

Solicitors for the Respondent: Ms E Ulrick, Services Australia

[2021] AATA 3533

1 October 2021

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Appeal

Procedural Fairness

Standing

Date(s) of hearing:	27 September 2021
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Services Australia