Neville and Secretary, Department of Social Services (Social services second review)
[2023] AATA 4
•6 January 2023
Neville and Secretary, Department of Social Services (Social services second review) [2023] AATA 4 (6 January 2023)
Division:General Division
File Number(s): 2022/8230
Re:Michael Neville
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
Decision
Tribunal:Senior Member Damien O’Donovan
Date:6 January 2023
Place:Canberra
The Tribunal refuses to extend the time for making an application for review of a decision made by the Tribunal on 3 August 2022.
.................................[sgd].......................................
Senior Member Damien O’Donovan
Catchwords
PRACTICE & PROCEDURE – application for review of AAT 1st Review decision – prescribed time for making application – application filed out of time – discretion to extend time – no reasonable explanation – no prejudice – no reasonable prospects of success – not appropriate to exercise discretion – extension of time application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 29
Social Security Act 1991 s 94
Cases
Actew AGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
Arbon and Comcare [2017] AATA 2870
Hamden v Secretary, Department of Human Services [2013] FCA 3
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Secondary MaterialsSocial Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Damien O’Donovan
6 January 2023
Background facts
Michael Neville (the applicant) applied for review of a decision of a Member of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the First Review) on 5 November 2022 (the Second Review).
The First Review decision (and the question with which any Second Review decision must deal) concerns the applicant’s ability to meet the qualification requirements for a Disability Support Pension (DSP) set out in s 94(1) of the Social Security Act 1991.
The Tribunal in the course of making the First Review decision had regard to evidence filed by the applicant in support of his DSP application, including:
· A medical report by Dr Chaturvedi, a psychiatrist, from 2015;
· Medical reports and certificates completed by general practitioners from Molong Health One General Practice, dated between 2020 and July 2022;
· Medical reports completed by Dr Chu, a gastroenterologist, from 2019 and 2020;
· A medical report by Dr Milne, an orthopaedic surgeon, from December 2021;
· A report from Ms Cusack, a physiotherapist, from June 2022; and
· Radiological reports, including a CT scan of the cervical spine and MI of the liver, conducted in 2020.
The Tribunal concluded, having accepted that the applicant had a ‘physical, intellectual or psychiatric impairment’ for the purposes of s 94(1)(a) of the Social Security Act 1991, that the Applicant did not meet the 20 point impairment threshold established in s 94(1)(b) of the Social Security Act 1991, and as such affirmed the decision to refuse the applicant a DSP.
The decision of the Tribunal Member in the First Review is dated 3 August 2022. The applicant stated in his application for an extension of time to lodge the Second Review that he received the decision on 11 August 2022. Given the twenty-eight day timeframe to apply for a review, as established in s 29(2) of the Administrative Appeals Tribunal Act 1975 (the Act), the Second Review was lodged out of time by a period of 27 calendar days.
The applicant’s reasons for the delay are stated, in the application for review form, as having ‘Been in hospital with gall bladder problems’.
The respondent, for its part, notified the Tribunal by email on 26 October 2022 that it did not oppose the applicant’s request to be granted an extension of time.
Having regard to the position of the respondent, the Tribunal contacted the applicant (by post) and the respondent (by email) on 28 October 2022. The Tribunal’s correspondence invited the applicant to file ‘any further material (and evidence) upon which you wish to rely in support of your application for an extension of time by 11 November 2022’. Specifically, the Tribunal advised that the following (non-exhaustive) list of factors are often relevant to the Tribunal’s willingness to exercise its discretion to extend the time to file a review, with special emphasis placed on the fourth below point:
·The length of the delay;
·Your explanation for the delay;
·Whether you took any steps after the decision of the delegate to make the delegate aware that you contested the delegate’s decision;
·The basis on which you will contest the merits of the delegate’s decision.
On 19 and 21 December 2022 the Tribunal received additional medical reports from the applicant’s general practitioner and his treating orthopaedic surgeon.
Having regard to this material the question for the Tribunal is whether it should grant an extension of time for the applicant to bring his application for Second Review.
Relevant Legislation
Under section 29(7) of the Act, the Tribunal may extend the time for filing an application for review if ‘it is reasonable in all the circumstances to do so.’
The principles that are applied were well articulated by SM Britten-Jones in Arbon and Comcare in the following terms:
Generally, to extend time the Tribunal must take into account the explanation for the delay, any prejudice to the respondent and whether the applicant has an arguable case. The principles expounded by Wilcox J in Hunter Valley Developments v Cohen will apply recognising that an explanation for delay is one factor to be considered when exercising the discretion to allow an extension but is not an essential precondition.
The list of matters identified by Wilcox J in the Hunter Valley decision are not exhaustive and were intended to provide only general guidance in the exercise of the relevant discretion.
In terms of an assessment of the merits of the case French J (as His Honour then was) observed in Seiler v Minister for Immigration, Local Government and Ethnic Affairs that:... To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed.... It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it...
As to the required extent of investigation into the merits Katzmann J said in Actew AGL Distribution v Australian Energy Regulator that:
... it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant’s case is a factor for or against the exercise of the discretion. ...
Further, Besanko J said in Hamden v Secretary, Department of Human Services:
As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.
(citations omitted)
It is incumbent on the Tribunal to consider all relevant circumstances and weigh relevant factors against each other in determining an application for an extension of time to apply for review before the Tribunal.[1] Consequently, in this matter, it is reasonable for the Tribunal to consider:
·The length of the delay in applying for review;
·Knowledge of the prescribed time limit;
·Explanations provided for the delay;
·Prejudice to the respondent should the extension be granted;
·The merits of the substantive application; and
·Alternate remedies should the extension be refused.
[1] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349.
The Length of the Delay
As previously noted, the delay in this matter was 27 calendar days. Whilst not a very long delay, the period to apply for review of a reviewable decision has been established in statute and any exceeding of that period on the part of a party seeking review is liable to count against any subsequent application for an extension of time to apply by the party in that instance. Such is the case in this matter.
Knowledge of the Prescribed Time Limit
Attached to the First Review decision was a letter headed ‘Notice of AAT’s Decision’ (Notice) which, amongst other things, advised the applicant that ‘There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision)’.
The applicant was aware that his application was being lodged out of time. This is evidenced by his decision to fill in the form published by the Tribunal for matters which are applied for after the time period for making a decision has elapsed, titled ‘Application for Extension of Time for Making an Application for Review of a Decision’, as opposed to a standard application for review form.
He has never suggested that he did not know that there was a time within which applications had to be made. This consideration counts against an extension.
Explanations Provided for the Delay
The applicant, in his application for an extension, stated that he was hospitalised with gall-bladder issues. The applicant provided no medical evidence concerning his hospitalisation, nor did he identify when it occurred. In the absence of more detailed evidence about the timing and impact of the applicant’s hospitalisation I am unable to determine the extent to which it was responsible for the delay in him making an application.
I cannot, therefore, be satisfied that there is an adequate explanation for the 27 day delay. This consideration does not weigh in favour of granting the extension of time.
Prejudice to the Respondent
Given the respondent’s consent to the extension, it is reasonable to infer that it has decided it will not suffer prejudice from the granting of the requested extension and the continuing of the application. Accordingly, this factor weighs in favour of allowing the extension.
The Merits of the Substantive Application
As foreshadowed in the letter sent to the applicant by the Tribunal on 28 October 2022, the most significant issue before me in deciding whether to grant the requested extension rests on an assessment of the merits of the application.
It is important to note in relation to matters of this kind the context in which the application is being considered. The applicant has had full merits review within the Social Services and Child Support Division of the Tribunal. There are published reasons available in relation to the decision. At the hearing in relation to the First Review, the applicant had an opportunity to give oral evidence about his conditions. The Tribunal’s Second Review will do again what has already been done once by an independent external reviewer. Importantly, the Tribunal will be considering a historical question - whether the applicant met the requirements for the Disability Support Pension in the 13 week qualification period commencing on 19 May 2021. There is limited scope for the evidence on that question to change. In these circumstances it is much easier to determine whether the case is merely weak as opposed to lacking in merit.
In the First Review, following a detailed examination of the evidence (including the applicant’s own oral evidence) relating to the applicant’s lower limb disorder, spinal disorder, liver disorder and psychological disorder, the Tribunal concluded that only the applicant’s lower limb disorder qualified for an impairment rating and the appropriate rating was only 10 points. The reasons the other conditions did not qualify are explained in the reasons for decision.
The applicant has submitted further evidence to support his case for an extension of time. However, the evidence does not alter the picture that emerged from the evidence considered on First Review.
As in the First Review, one of the key issues on which any Second Review will turn is whether the applicant is capable of meeting the requirement of an ‘impairment rating’ of 20 points as determined under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and as required by s 94(1)(b) of the Social Security Act 1991. It is noted that, in order to apply the Impairment Tables, the condition must be considered permanent and the impairment which arises from the condition must be more likely than not, in light of available evidence, to persist for more than two years.[2] For a condition to be permanent it has to have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and stabilised.[3]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6(3).
[3] Ibid, ss 6(4), (5), (6) and (7).
The Tribunal in the First Review determined on the available evidence, to award an impairment rating of ten points for the applicant’s ‘congenital deformity of his right leg’[4] pursuant to Table 3 of the Determination.
[4] First Review Decision, [14].
The evidence provided, which included the applicant’s oral evidence, did not convince the Tribunal that the applicant’s claimed spinal, liver or psychological disorders warranted an award of an impairment rating. Importantly, the evidence which was before the Tribunal in the First Review in relation to these conditions has not been supplemented in the context of this application.
The only significant change in the evidence is the report of Orthopaedic Surgeon Dr Ben Milne dated 15 December 2022. That report only deals with the applicant’s lower limb impairment. It suggests that the applicant is currently unable to work because he is recovering from surgery. The long-term prognosis seems uncertain. Dr Milne’s conclusion is that he is ‘not confident [the applicant] will be able to return to an active working life’. An assessment in those terms will not assist the applicant to meet the 20 point requirements and is irrelevant to assessing the applicant’s condition in May 2021.
The new evidence from the applicant’s GP also suffers from being contemporaneous rather than directed at the relevant assessment period from May 2021.
The applicant has provided no submissions and no evidence which suggest that any of the conclusions which the First Review member reached were incorrect nor provided any basis for concluding that the decision on Second Review might be any different to the decision made on First Review.
This weighs heavily against granting an extension of time.
Alternate Remedies Available to the Applicant
The final relevant consideration concerns other remedies open to the applicant should the extension of time be refused.
It is apparent that there are no alternative remedies available for the applicant within the Tribunal should the extension of time not be granted.
There is, however, nothing preventing the applicant from lodging a new claim for the DSP and providing further information to the Department in support of such an application. Indeed, such a possibility was contemplated by the Tribunal in the conclusion to its decision in the First Review.[5]
[5] First Review Decision, [23].
Conclusion
Any consideration of a refusal to grant an extension of time in the context of a Tribunal proceeding should be undertaken with the Tribunal’s statutory objectives in mind. Chiefly relevant in this case are the objectives that a review before the Tribunal is to be:
(a)accessible; and
(b)fair, just, economical, informal and quick; and
(c)proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
It is with these objectives in mind that I have weighed up the applicant’s extension of time application.
Whilst the length of the delay in seeking review is not very large, and the respondent is unlikely to suffer any undue prejudice in this case, the balance of remaining considerations leads me to the conclusion that it is not appropriate for me to exercise the discretion afforded to the Tribunal under s 29(7) of the Act in this application. The applicant has provided no material or argument which suggests that a further review will produce any different conclusion to the one reached by Tribunal on First Review. The more sensible course is for the applicant to obtain up to date information about his current disabilities and pursue a fresh application which, depending on the content of the evidence obtained, may have a realistic prospect of success.
Decision
The application for an extension of time to make an application for review under s 29(7) of the Act is refused.
39. I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan
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Associate
Dated: 6 January 2023
Date(s) of hearing:
N/A
Date final submissions received:
Counsel for the Applicant:
Applicant’s representative:
N/A
N/A
Self-represented
Counsel for Respondent:
Self-represented
Solicitor for Respondent:
N/A
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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