Nasab Hawa and Secretary, Department of Social Services
[2014] AATA 750
•17 October 2014
[2014] AATA 750
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3776
Re
Nasab Hawa
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member Date 17 October 2014 Place Sydney The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge the application for review of a decision.
.....................[SGD]...................................................
Mr D Letcher, QC, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – explanation for delay – merits of substantive application – application refused
LEGISLATION
Social Security Act 1991 ss 29, 94
CASES
Re Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Mulholland v Electoral Commission [2014] FCA 916
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
SECONDARY MATERIALS
Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
October 2014
The applicant seeks an extension of time for lodging an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 6 June 2014. The SSAT affirmed a Centrelink decision to deny Ms Hawa a Disability Support Pension ["DSP"]. The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that an application for review is to be lodged not later than the 28th day after a document setting out the terms of the decision is given to the applicant. In this case, the last day to lodge an application for review was 22 July 2014. Mrs Hawa’s application for review of the SSAT decision was received in the Registry on 4 August 2014, some 21 days out of time. It was accompanied by an application for an extension of time.
The SSAT decision was made on 6 June and recorded as "posted" on 18 June. Section 163 of the Evidence Act1995 (Cth) provides that when such an agency records posting a letter, it is deemed to have been posted. Section 160 of the same Act deems receipt of the item four working days after posting. The 28-day time limit runs from the day after date of receipt and in this case the last day for lodging an application was 22 July 2014. The applicant did not contest the date of receipt of the decision.
On 4 August 2014 the Tribunal received an application for extension of time dated 16 July. The applicant says that she signed the form on that day after her doctor's receptionist wrote in the Reasons for Application. However, the receptionist did not fill in the Date decision received or the date for extension section. Accordingly, the Tribunal returned the form to the applicant with a letter requesting that the application be correctly filled in and returned. The applicant then had a friend fill in the blank sections and she returned the form as requested. Under section 29(8) of the AAT Act, the Tribunal may grant an extension of time even though time has already expired.
Case law has established a number of principles for assessment of such extension applications. In Re Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, Wilcox J said that a court should be positively satisfied that it is proper to grant an extension. He required "an acceptable explanation" of the delay and evidence that an extension was "fair and equitable in the circumstances". Those circumstances included the merits of the substantive application, any prejudice to the defendant, the public interest, and fairness to other persons in a similar situation. These principles have been affirmed most recently in Mulholland v Electoral Commission [2014] FCA 916.
As to the merits, if the application for which extension was sought has little or no chance of success then this should be taken into account as affecting equity and the public interest. Merit is not the only factor but if there is some fatal flaw and the application shows "no prospects of success, it would be futile to grant an extension of time and most unjust to subject the respondent to the cost of hearing the application” [Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121].
EXPLANATION FOR DELAY
Mrs Hawa suffers from depression. Her explanation for the delay in lodging the application was that "personal family issues" caused a worsening of anxiety and depression requiring three medications and she was "not able to get back on track for many things".
In fact, the most important reason for the delay was that the applicant cannot read English with any accuracy. She signed a form that she believed was an application for AAT review. However it was only an application for an extension of time. She sent it to the AAT which received it within the 28-day limit but it was incomplete and the wrong form. The AAT returned the form. The applicant then had her friend complete it and returned it to the AAT on 4 August 2014.
My view is that the real and acceptable reason for the delay is the misunderstanding by Mrs Hawa of the language in the form. I believe there was an honest attempt at compliance with the time limit. I find that there is an acceptable explanation for delay.
MERITS OF THE SUBSTANTIVE APPLICATION
However, there are very serious defects in the applicant's case for the granting of DSP. This means that any extension of time would not alter her chance of success and would only cause a waste of time and costs by the respondent. The applicant's original claim for DSP requires proof of health conditions which were fully diagnosed, fully treated and stabilised between 22 March and 21 June 2013 - the 'claim period' of 13 weeks after date of the application.
The health conditions claimed were:
Depression
The evidence is from the applicant, her general practitioner Dr Ferkh, and a psychologist Ms Gehan George who first saw Mrs Hawa in 2014. Ms George is registered as a "General" psychologist on the Australian Health Practitioner Regulation Agency records. The general practitioner had no psychiatric qualifications. Immediately before and during the claim period, the applicant did not consult any other medical practitioners. This means that no diagnosis of depression was made that complied with the requirement set out in the Introduction to Table 5 Mental Conditions of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support pension) Determination 2011(the Tables). The Determination requires that "the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist [if the diagnosis has not been made by a psychiatrist)". Ms George is not a clinical psychologist and the general practitioner is not a psychiatrist. Unless and until a diagnosis complying with that requirement is made, no Impairment Rating Points can be assigned to this condition under the Tables.
Additionally, the applicant said that she believed her anxiety and depression were getting worse. This indicates that those conditions were not stabilised during the claim period. There had also been a change in medication (to Aropax), which meant that the conditions had not been “fully treated” in the claim period. Given that the claim period is some 15 months or more in the past, I accept the respondent's contention that a “retrospective diagnosis” by a psychiatrist would be highly unlikely. I believe the applicant would be unable to establish the criteria for this claimed condition to result in Impairment Rating Points
Spine and Upper Limb
The applicant complained of pain in her back, neck and shoulders but there was medical evidence that she had a range of movement and the ability to carry out some household tasks. She denied driving, going to the bank and shopping, although she had told the SSAT that she did perform those tasks. The SSAT assigned nil points under Tables 4 and 2, indicating minimal impact on ability to function. I believe that these conditions would result in substantially less than 20 impairment points and would not, of themselves, contribute significantly to a grant of DSP.
Allergic Rhinitis and Asthma
The applicant and the medical evidence agreed that these cause minimal impact upon Mrs Hawa and that her medication is effective in controlling these conditions. The SSAT assigned nil impairment points under the Tables. I agree with the SSAT.
Under section 94(2)(aa) of the Social Security Act 1991, a DSP claimant is required to have participated in a Program of Support for 18 out of the 36 months immediately preceding the claim for DSP, unless there is very serious condition assigned 20 points under a single Table. Mrs Hawa does not have such a condition. In her evidence, Mrs Hawa said that she had not been referred to and not engaged in any course or Program of Support during that time. This means that no Continuing Inability To Work (CITW) can be established. Therefore, the requirements of section 94 cannot be met. It follows that the applicant would have no realistic prospect of a successful application for review of the SSAT decision.
CONCLUSION
The applicant has provided evidence which satisfies me that there has been an acceptable explanation for the delay in lodging applications for an extension of time and for review of the SSAT decision. However, it would not be in the interests of justice, fairness to the respondent, fairness to other persons in a similar position to the applicant, nor in the wider public interest, to grant the applicant an extension of time to permit her application for review to be advanced, when it has no merits in the sense of realistic chances of success. The applicant's substantive application does not meet the requirements of section 94 in several crucial respects and there is no reason to believe that situation would alter before any Tribunal hearing. Accordingly, the Tribunal should not exercise its discretion to extend time.
DECISION
The application for extension of time is dismissed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher QC, Senior Member .......................[SGD].................................................
Associate
Dated 17 October 2014
Date of hearing 3 September 2014 Applicant In person Advocate for the Respondent Ms B Salaji, Department of Human Services
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