Morgan and Secretary, Department of Social Services (Social services second review)
[2023] AATA 362
•28 February 2023
Morgan and Secretary, Department of Social Services (Social services second review) [2023] AATA 362 (28 February 2023)
ReviewNumber: 2023/0477; 2023/0478
Division:GENERAL DIVISION
File Numbers: 2023/0477; 2023/0478
Re:Justin Morgan
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Senior Member D. J. Morris
Date of decision: 28 February 2023
Date of written reasons: 6 March 2023
Place:Melbourne
Not being satisfied that it is reasonable in all the circumstances to extend time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal refuses to extend time for the lodgement of the applications for review.
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Senior Member D. J. Morris
Catchwords
SOCIAL SECURITY – benefits, entitlements and pensions – applicant is recipient of disability support pension – other income not taken into account by Department – two debts consequently incurred – Department officer waives debt on grounds of special circumstances - authorised review officer affirms waiver decision – applicant seeks review by Social Services and Child Support Division (first review) – first review sets aside decision and substitutes decision that debts incurred but waived as attributable to sole error of Department – applicant seeks second review by General Division – application lodged late
PRACTICE AND PROCEDURE – late application – applicant seeks extension of time – postal service presumptions considered – period out of time not significant – presumptions about whether to extend time – applicant found not to have rested on his rights – reason for lateness accepted – however no utility in extending time – not in applicant’s interests – hearing not proper basis for general grievance – extension of time refused – written reasons provided
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Evidence Act 1995 (Cth), ss 160, 163Social Security Act 1991 (Cth), ss 1223, 1237AAD, 1237A
Cases
AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176
BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 870
BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
Englezos v Secretary, Department of Social Services [2023] FCA 31
GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169
Haggerty v Secretary, Department of Education, Training and Youth Affairs [2000] FCA 1287
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
MZABP v Minister for Immigration and Border Protection [2015] FCA 139; (2015) 242 FCR 585
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195Williams and Australian Electoral Commission and the Greens (Party Joined); Re: [1995] AATA 160; (1995) 21 AAR 467
REASONS FOR DECISION
Senior Member D. J. Morris
6 March 2023
INTRODUCTION
Mr Justin Morgan, dissatisfied with a decision of the Social Services and Child Support Division of this Tribunal (First Review), has asked the General Division of the Tribunal for a Second Review. He is entitled to do so. However, he has not done so within the 28-day period stipulated in s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). He was late by three days.
The Tribunal has a discretion to allow time to be extended so that a late application can nonetheless be considered. These reasons are why the Tribunal decided not to exercise that discretion.
WRITTEN REASONS
The Tribunal provides these written reasons to Mr Morgan and the Respondent to explain in more detail why time was not extended. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
In preparing these written reasons, I am satisfied that they reflect the oral reasons given at the interlocutory hearing held on 28 February 2023. New reasoning for the decision to refuse to extend time has not been introduced, but I have included more detail setting out the background and the provisions in the AAT Act relating to extensions of time. The purpose of these written reasons is to assist Mr Morgan.
HEARING
An interlocutory hearing was held on 28 February 2023. Mr Morgan represented himself and made submissions. The Secretary was represented by Mr James Henderson, a legal officer of the Department of Social Services.
The Tribunal took into evidence the following documents:
(a)Application for Second Review, received 23 January 2023;
(b)Reviewable decision (First Review), dated 7 December 2023;
(c)Statement from Mr Morgan, received 27 January 2023;
(d)Services Australia letter dated 20 January 2023 relating to the Scheme for Compensation for Detriment Caused by Defective Administration (CDDA);
(e)Statement from Mr Morgan, received 2 February 2023
(f) Further statement from Mr Morgan, lodged 17 February 2023;
(f)Email dated 9 February 2023 from Respondent objecting to extension of time;
(g)Respondent’s Submissions dated 15 February 2023; and
(h)Further statement from Mr Morgan, received 27 February 2023.
In addition, Mr Morgan handed up two letters he had received from the Department. The first was dated 1 May 2020 and referred to a debt in the amount of $164.55; the second was dated 2 March 2021 and referred to a debt in the amount of $735.45.
BACKGROUND
Mr Morgan receives a disability support pension (‘DSP’). His entitlement to the DSP is not in dispute. When a person receives DSP there are rules about how much other income they can receive before the rate of their DSP is affected.
Section 1223(1) of the Social Security Act 1991 (Cth) (‘the Social Security Act’) provides that if a person receives a social security benefit and, for any reason, the person was not entitled to receive that benefit, the amount of the payment is a debt due to the Commonwealth. I stress, early on, that this part of the Act does not presume any intention on behalf of the person receiving the benefit.
On two occasions Centrelink (i.e., the Department) decided that Mr Morgan had earned more than he was entitled to but that his DSP rate had not changed. As a consequence, there had been an overpayment of DSP and a debt was raised.
The Department made a decision on 2 April 2020 to raise a debt of $164.55 due to overpayment of DSP for a short period, from 18 to 31 March 2020.
The Department made another decision on 26 February 2021 to raise a debt of $735.45 due to overpayment of DSP for another short period, from 1 to 14 May 2020.
On both occasions, the Department decided that special circumstances applied under s 1237AAD of the Social Security Act to waive the debts. Both debts were waived, and the repayments that Mr Morgan had made were reimbursed.
The review at first instance by the Department officers commenced on 1 March 2022. The decision to waive recovery of both debts was made on 20 July 2022. The agency refunded the payment Mr Morgan had made of $735.55 on 5 August 2022 and the payment he had made of $165.55 on 8 August 2022.
Mr Morgan was dissatisfied with this decision and on 18 August 2022 asked for an internal review. An authorised review officer (ARO), who is a Department officer not involved in the original decision, decided on 1 November 2022 that the debt amounts were correct, but that the decision to waive both amounts because of special circumstances was also correct, and affirmed the waiver decision.
Mr Morgan remained dissatisfied. As he is entitled to do, he sought a review by the Social Services and Child Support Division of the Tribunal (‘First Review’). On 7 December 2022 Member Moreland conducted a hearing. Mr Morgan made submissions. At the conclusion of the hearing, the learned Member reserved her decision.
Subsequently that same day, the learned Member decided that, in the case of each debt, she was satisfied that the debts were incurred solely because of administrative errors by Centrelink. She also found that Mr Morgan had received the monies which became the subject of the debt in good faith. Therefore, the two criteria in s 1237A of the Social Security Act were met. Accordingly, the First Review set aside the two decisions of the ARO and substituted decisions that the debts be waived under s 1237A of the Social Security Act.
The First Review decision was posted from the Tribunal’s Registry to Mr Morgan, with an accompanying letter dated 7 December 2022.
The Respondent submitted that Mr Morgan received the decision on 7 December 2022 and therefore had 28 days to lodge an application for Second Review, calculated to end on 4 January 2023. The Respondent submitted that Mr Morgan did not lodge his application for Second Review until 23 January 2023, and his application for extension of time until 27 January 2023.
The Respondent made written submissions that there is no explanation for the application being late. In addition, the Respondent submitted that there was no utility in Mr Morgan seeking a Second Review. The Respondent also contended that it may not be in his best interests because a Second Review may disagree with the original decision.
CONSIDERATION
In this matter, the principal question that the Tribunal must address is not whether the First Review decision was correct, but whether Mr Morgan’s application, having been lodged late, should be accepted.
The Federal Court of Australia recently restated the principles which govern the Court’s, and in this case the Tribunal’s, exercise of the discretion as to whether to extend time. In Englezos v Secretary, Department of Social Services [2023] FCA 31 (Englezos), Collier J said at [32]-[33]:
The principles governing the Court’s discretion to grant an extension of time are well settled. In summary, the Court will have regard to:
(1) Whether there is an adequate explanation for the delay on behalf of
the applicant;
(2) Prejudice to be faced by the parties;
(3) Merits of the proposed grounds of appeal.
See AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [35]; GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [23]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].
It is also well established that, as a general principle, the Court will not exercise its discretion unless it is in the interests of justice to do so; AZAFF at [35], Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585,at [62].
Her Honour then continued on in her decision to summarise the submissions made by the parties, including a submission that account should be taken that the applicant before her was self-represented. Collier J then said, at [39]:
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection {2017} FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870, at [40].
The Tribunal, in considering whether to extend time for a late application to be lodged, does not delve deeply into the merits of Mr Morgan’s case but must assess whether his case is at least arguable.
How late is the application – has the Applicant rested on his rights?
Mr Morgan made clear to the Tribunal when he lodged his application for First Review that, while he had an email address, he preferred to receive material from the Tribunal by post because of his medical impairment. When the learned Member made her First Review decision, it was despatched to Mr Morgan at his address in regional Victoria, together with an accompanying letter advising him of his rights to a Second Review within 28 days.
The Tribunal has a copy of the letter before it from the Social Services and Child Support Division. It is dated 7 December 2022 but there is no evidence before me as to when it was despatched or when it was received. Mr Morgan himself wrote in his application for Second Review that he received it on ‘7 December 2022’, but given it was posted to him at his residential address in rural Victoria, this is clearly an error. The Tribunal takes him to mean that this is the date the decision was made.
The Respondent is also in error in his submissions about when Mr Morgan received the decision, but understandably so, given the Secretary would have been unaware of the Applicant’s request to receive communications from the Tribunal by post, not by email. (The Secretary was also mistaken in suggesting Mr Morgan had not sought an extension of time with his application, which he had.)
In the hearing, Mr Morgan agreed that he had received the First Review decision and accompanying letter in the post, but he could not remember the date he received it.
In such cases where there is no evidence of when a postal article has been received, the provisions of the Evidence Act 1995 (Cth) (‘the Evidence Act’) are applied. Section 160(1) of the Evidence Act provides that it is a rebuttable presumption that a postal article addressed to a person in Australia, or an external territory, was received on the seventh working day after having been posted. Section 160(3) defines “working day” as a day that is not a Saturday or a Sunday or a public holiday or bank holiday in the place to which the postal article was addressed. I note that this provision was extended by the Parliament from ‘four working days’ to ‘seven working days’ to take into account the 2016 changes to the Australia Post delivery standard for ordinary mail (see Civil Law and Justice LegislationAmendment Act 2018, Sch 5).
In addition, s 163 of the Evidence Act provides that where a letter from a Commonwealth agency (such as the Tribunal) is dated, it is a rebuttable presumption that it was sent by post on the fifth business day after the date on the letter. Section 163(2) provides that “business day” means a day that is not a Saturday or a Sunday or a public holiday or bank holiday in the place where the letter was prepared.
Putting these two provisions together, in the absence of other evidence rebutting the statutory presumptions, the Tribunal applies the Evidence Act. It is therefore presumed that the letter from the Social Services and Child Support Division with the First Review decision dated 7 December 2022 was posted to Mr Morgan on 14 December 2022 (the fifth business day after 7 December). The Tribunal further presumes that it was delivered to Mr Morgan’s address on 23 December 2022 (the seventh working day after 14 December).
The 28-day clock of the time by which the Applicant had to lodge his application for review and set out in the covering letter (and in s 29(2) of the AAT Act) therefore began, in this case, on 24 December 2022 and ended on 20 January 2023. The Tribunal therefore finds Mr Morgan had until the end of the day on 20 January 2023 to lodge his application for Second Review. He did not do so until 23 January 2023. He was therefore three days out of time.
This is not a long period, but as Her Honour made clear in Englezos, the time limits are not ‘aspirational guidelines’. Parties are expected to observe them or put forward a good reason why they were unable to.
In this case, Mr Morgan told the Tribunal that he had been experiencing very significant health challenges in January 2023, at the time when he had received the First Review decision but before he had lodged his Second Review application. It is not necessary to detail here what he said, but the Tribunal found this submission compelling, and it was not disputed by the Respondent.
Therefore, the Tribunal does not find that Mr Morgan rested on his rights.
Does the Applicant have an arguable case?
When Mr Morgan first queried the debts raised, the Department officers accepted that they should be waived under special circumstances and made arrangements to reimburse the money he had repaid. Mr Henderson confirmed at the hearing that the full amount of the debt had been paid by Mr Morgan, but subsequently reimbursed to him. Mr Morgan accepted that he had been fully repaid.
The ARO agreed with the decision to waive the debt and noted the reimbursement.
The First Review found there was a debt but decided on the evidence that it was sole administrative error by the Department that had led to the debt, and that Mr Morgan had received the monies in good faith. The First Review waived it on that twofold ground.
Having read Member Moreland’s decision, the evidence she set out supports the conclusion at which she arrived. There was an error in ‘coding’, i.e., an officer entering into the Department’s computer system the additional payments to Mr Morgan, which led to the raising of the debts. This was a mistake that was regrettable but, once identified, it was swiftly reversed.
Although I am not obliged to make a finding on this question, I can see no reason to disturb the logic that attaches to the learned Member’s reasoning. The error was indeed one caused by a mistake in manual data entry. Properly, the original basis for the waiver should have been under s 1237A(1) of the Social Security Act.
I also note that the learned Member went to significant efforts to consider whether Mr Morgan had received the monies in good faith and cited various authorities. I note that pivotal to Member Moreland’s finding that the money was received in good faith is the application of the authoritative summary of the criteria for what is ‘good faith’, which was set out by French J (as His Honour then was, of the Federal Court) in Haggerty v Secretary,Department of Education, Training and Youth Affairs [2000] FCA 1867, at [13]-[16].
No further relief available
Mr Morgan, in response to a direct question from the Tribunal at the hearing, said that he wanted to pursue the matter because he wants compensation. He said that he had been ‘targeted’ by Centrelink and that it has ‘affected [his] life for the last three years’.
The Tribunal explained to Mr Morgan that there is no further relief that Mr Morgan can be given if time was extended for a substantive Second Review. The debts have been waived and the money he paid in relation to them has been returned to him.
If the Applicant’s argument relates to stress that he suffered by the raising of the debts in the first place, the Tribunal is not unsympathetic. The ARO wrote in their decision record in relation to each debt:
There is no evidence to suggest the customer knowingly made a false statement or representation or knowingly failed or omitted to comply with reporting obligations.
In addition, in the more recent letter Mr Morgan received from the Department relating to his claim through the Government’s Scheme for Compensation for Detriment caused by Defective Administration, the authorised officer wrote:
I acknowledge the distress caused to you by the Agency's decisions to raise and recover the overpayments and the time taken to respond to your requests for review of those decisions.
I apologise for any delays by the Agency in responding to your requests. When delays do not meet the Agency's expected response timeframes, it is poor customer service rather than defective administration.
(Emphases added)
Therefore, not only were the debts waived and Mr Morgan reimbursed, but he succeeded at the First Review to the extent that the learned Member accepted that it was solely the Department’s error that the debts were raised in the first place.
There is therefore no utility in this matter being heard afresh by way of Second Review. If Mr Morgan seeks to raise whether or not he should be compensated, that is not something the Tribunal can adjudicate upon. I made clear at the interlocutory hearing that the Tribunal has no power to order or recommend that the Respondent pay compensation.
Mr Morgan has, as the officer wrote to him on 20 January 2023, an avenue of recourse to the Commonwealth Ombudsman, should he so choose. The Tribunal read this paragraph out again at the hearing, and Mr Morgan agreed he was aware of this avenue. He said he had made initial contact with the Ombudsman but has been unsatisfied.
Because there is no practical relief that the Applicant can achieve, I find that Mr Morgan does not have an arguable case.
Is further review in the Applicant’s best interests?
The Respondent has submitted that, as a Second Review would be de novo (i.e., a fresh review not reliant on previous reviews) there is a possibility that, on reviewing the material, the Tribunal might form a different conclusion about the raising of the debts and their waiver.
It would be idle to speculate on what a Second Review might conclude. That would depend on the material before the Tribunal and, possibly, additional evidence. However, based only on the face of the material, while the Respondent is correct to say that a Second Review would not be reviewing the conclusions at which the learned Member at First Review arrived, or the findings she made, I think the likelihood of a different outcome would be remote.
However, I made clear to Mr Morgan at the hearing that, were he to have a substantive further review, factually a range of outcomes would be possible. What another Member might find on substantive review, especially in terms of applying some of the discretionary powers to waive debts, cannot be definitively predicted. The debt might theoretically be revived, in whole or part. Mr Morgan said he was prepared to take that risk, if a Second Review hearing was held.
I conclude that, because of the uncertainty (small as it might be), extending time is not in Mr Morgan’s best interests.
Prejudice to a party
In this matter, which is somewhat irregular, I find that there would be prejudice to both Mr Morgan and the Respondent if I extended time. For Mr Morgan, there would be a detriment in terms of pursuing this matter further, because of the time consumed and the stress to him. For the Respondent, there would also be an unnecessary cost to the public purse to make further submissions and attend a future hearing. The Respondent also raised the question of the cost to the Tribunal of the process. This is not a vital point, in my estimation, but there would be some administrative cost for an exercise that can bring no benefit to Mr Morgan.
CONCLUSION
The application Mr Morgan has brought to the Tribunal is unusual. That is because, a decision to raise a debt having been made and him having challenged it, Centrelink almost immediately accepted the debt should be waived. It is regrettable that the debt was not waived at first instance owing to sole administrative error, but nevertheless it was waived, and the money reimbursed.
Mr Morgan pursued the matter to internal review and succeeded. He then had a First Review by the Tribunal, and again succeeded. He has succeeded at every point along this road since he first queried the debt. The reason he appears to be continuing to pursue the matter is that he is aggrieved by the way Centrelink has dealt with him.
Mr Morgan may well have a case that this should never have happened in the first place. However, the Tribunal notes that he has received a written apology. I cannot accept his submissions that he was ‘targeted’. I do accept, in the absence of any evidence to the contrary, his submission that in all the time he has been in receipt of social security benefits he has complied with all requirements he needed to.
In Re Williams and Australian Electoral Commission and the Greens (Party Joined) [1995] AATA 160; (1995) 21 AAR 467, three judicial members of the Tribunal (President Justice Mathews, Justice Hill and Justice Beaumont) considered the question of whether an application had been brought for a collateral purpose and whether the proceedings were futile. Their Honours relevantly said, at [39]:
[39]…Even the “collateral purpose” head does not sit easily with a situation where the applicant genuinely believes in the legitimacy of the collateral object which he is seeking...
And, at [40]
[40] In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, whilst the proceedings were not instituted vexatiously, they have become vexatious….It would impose unnecessary expense on the respondent…if the case were to proceed further.
I accept the earnestness of Mr Morgan’s submissions that he feels that he has not been treated properly by Centrelink, and that this is his genuine belief. I accept that the raising of the debts and subsequent interactions with the Department has caused him stress. I accept, as I think he would, that because of his particular impairment, this stress is greater than another person might experience in the same circumstances.
However, as I said at the hearing, there is no practical benefit to him were I to extend time for a Second Review. He disagreed and said it would give him the opportunity to ‘expose’ how he believes he has been treated by Centrelink. But that is, with respect to him, not the proper foundation or purpose of a merits review before the Tribunal. The question before the Tribunal would be, as it was at First Review, whether the debts should be waived. Which they have been.
Therefore, were I to extend time, it would put both Mr Morgan and the Respondent to more trouble, for no practical purpose.
I do not interpret Mr Morgan’s pursuit of this matter as ‘vexatious’. That word carries with it a connotation of a deliberate attempt to harass or subdue another party. Mr Morgan’s belief is that he has been mistreated by Centrelink by the raising of the debts and ‘targeted’. I do not think a Second Review, applied for late or not, would shake this belief.
Mr Morgan is similar to the applicant in Williams. I did not conclude that he is pursuing his matter at the Tribunal for a bad purpose, but he is under a misconception that a further review can give him what he wants, which appears to be compensation. It cannot. There is no practical effect, in the phrase used by Their Honours in Williams, in this matter proceeding further.
Having received the reimbursement and the apology and having succeeded at First Review in having this Tribunal find the debts were solely because of the Department’s error, my best advice for Mr Morgan is to accept he has already ‘won’, and to move on. In the colloquial sense, he is pushing against an open door.
DECISION
Not being satisfied that it is reasonable in all the circumstances to extend time under s 29(7) of the AAT Act, the Tribunal refuses to extend time for the lodgement of the applications for review.
66.
67. I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
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Associate
Dated: 6 March 2023
Date of interlocutory hearing:
28 February 2023
Applicant:
Mr Justin Morgan (self-represented)
Advocate for the Respondent:
Mr James Henderson
Solicitors for the Respondent: Services Australia
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