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

[2021] AATA 1102

Newell and Secretary, Department of Social Services (Social services second review) [2021] AATA 1102 (28 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4975

Re:Vanessa Newell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:28 April 2021

Place:Adelaide

The application for extension of time is refused.

...................[SGND]..........................

Senior Member B J Illingworth

Catchwords

PRACTICE AND PROCEDURE – Application for extension of time – Application for waiver of Austudy debt – Consideration of principles which apply to extensions of time – Extent of delay – Whether there is a persuasive explanation for the delay – Whether Applicant rested on his rights – Whether there is merit in substantive application – Extension of time refused

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Cases
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118.
David and High Court of Australia [2009] AATA 448.
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344.
Kulijic and Secretary Department of Social Security (1994) FCA 886.
Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142.
White and Secretary Department of Families Community Services and Indigenous Affairs [2007] AATA 1712.

REASONS FOR DECISION

Senior Member B J Illingworth

28 April 2021

BACKGROUND

1. This is an application for an extension of time within which to review a decision of the former Social Security Appeal Tribunal (SSAT), now the Social Security and Child Support Division of the Administrative Appeals Tribunal, made on 15 April 2014 (the SSAT Decision). That decision affirmed an earlier decision of an Authorised Review Officer (ARO) of Services Australia, formerly the Department of Human Services (the Agency), that the Applicant had been overpaid Austudy during the period 1 July 2011 to 29 January 2012 (the debt period).

2. The overpayment of Austudy was in the sum of $6523.83 (the debt) and was a recoverable debt due to the Commonwealth, and the Respondent found no reason why recovery of the debt should be waived.

3. The application was listed for argument before the Tribunal on 13 October 2020 at 10.00am Australian Central Standard Time (ACST). The Applicant was sent an email reminder of the hearing the day before. She failed to attend the hearing. During the hearing the Tribunal telephoned the Applicant. There was no answer. The application was adjourned to Thursday 12 November 2020 at 10.00am ACST. The application proceeded on that occasion.

   FACTUAL SUMMARY

4. On 17 June 2011 the Applicant enrolled in a Diploma of Community Services (Alcohol and other Drugs) (the Diploma) through TAFE SA.

5. On 24 June 2011 the Applicant signed, dated and lodged a document entitled MOD-ST Study Details form in which she said that she was undertaking full-time study in the Diploma from 1 July 2011 to May 2012.

6. On 7 July 2011 the Applicant lodged an online claim for Austudy stating she was undertaking the Diploma course from 16 June 2011 to 16 June 2012 and that she would be studying full-time for 25 hours per week.

7. In the SSAT Decision at paragraph 6 the SSAT referred to sections 568 and 569 of the Social Security Act 1991 (Cth) (the Act) which outlined the qualifications for Austudy “which, amongst other things, requires a student to be undertaking at least 3/4 of the normal amount of study required by the course”. The SSAT noted that the Applicant advised Centrelink that she was a full-time student and provided enrolment details with respect to the Diploma and that she was enrolled in 20 units of competency of which exemption applied to 14 units on the basis of recognition of prior learning.

8. Centrelink determined that the Applicant was qualified for Austudy effective from 1 July 2011.

9. On 9 July 2011, 1 August 2011, 11 October 2011 and 6 January 2012, the Agency sent the Applicant letters which contained the following information:

   What you must tell us

   If you or your partner:

   ·     stop being a full-time student or concessional workload student […]

   ·     apply for or change your enrolment at school college or university or other technical institution.

10. Paragraph 8 of the SSAT Decision said:  

    [The Applicant] was subsequently awarded two diplomas in 2012….she completed the Diploma of Community Services (Alcohol and Other Drugs) in the first semester 2012 with only one unit completed in 2011, and the Diploma of Community Services (Alcohol, Other Drugs and Mental Health) with all units completed in 2012.

    Hence the SSAT affirmed the ARO decision that the Applicant did not qualify for Austudy payment in 2011 as the record indicated only one unit had been studied during that year.

11. At the hearing before the SSAT there was a dispute about whether the Applicant had in fact undertaken full-time study during the debt period. In particular, there was evidence before the SSAT that the Applicant was awarded 2 diplomas with only one unit of study completed in 2011. The Applicant disputed this evidence and she was given time to produce to the SSAT emails from her TAFE SA mentors to support her claim that she was a full-time student. The Applicant failed to produce that evidence.

12. The SSAT contacted TAFE SA and made its own enquiry. The SSAT was advised that the Applicant had enrolled under a “Job Strategy” program and that the Applicant required only 2 additional units to complete formal qualifications in her chosen career with recognition of prior learning achieved through her work-related experience.

13. Paragraph 11 of the SSAT Decision said:

    The Tribunal accepts that Ms Newell believes that she spent many hours studying and that she was challenged by the content of the research she was undertaking. However it is a matter of fact that the study load was never at least 3/4 of the full-time course load as is required by section 569C of the Act. This means that Ms Newell did not qualify for Austudy during the relevant period and it follows that she was overpaid.

14. The SSAT was satisfied that the overpayment amount was correctly calculated and was a recoverable debt. Further, in considering whether the debt should be recovered, the SSAT decided that there was a Centrelink error but that the debt did not arise solely because of that error.

15. Further, the SSAT considered whether, pursuant to its discretion, the debt or part of the debt should be waived. As part of that consideration it was noted the Applicant’s Austudy claim form advised her partner’s income was nil when at the hearing she advised that her partner was in receipt of income relating to a work injury, which raised the issue about the reliability of the Applicant’s evidence. The SSAT also said, “Additionally, both Ms Newell and her partner are currently in receipt of combined income from full-time employment of around $90,000 per annum” and that, apart from the Centrelink debt, the Applicant had no other commitments other than usual living expenses, and that she was managing repayment of the debt by instalments. The SSAT declined to waive the debt in whole or in part.

16. The Applicant received the SSAT Decision on 15 April 2014. Pursuant to section 29 (2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the prescribed time for lodging an application for review is within 28 days after notice of a decision was given to an Applicant. Hence, the time within which the Applicant was to lodge an application for review was by 13 May 2014.

17. The Applicant did not lodge her application for review until 18 August 2020 which is approximately six years, three months and five days out of time.

18. In her reason for applying for an extension of time the Applicant said that she did not know she could dispute or challenge the decision of the SSAT until recently. She contacted the Tribunal and was told she would have received at the time, a letter informing her of the outcome of the SSAT hearing and explaining that she could appeal the decision. The Applicant said she does not recall reading such a letter, otherwise she would have appealed the decision.

19. In the Secretary’s Outline of Submissions at paragraph 28, the Respondent submits that the Applicant was advised of the right to appeal from the SSAT to the AAT in writing by letters sent on 10 April 2013, 29 July 2011, 1 August 2011, 6 January 2012 and 10 April 2013. The Secretary also refers to the decision of the ARO dated 19 February 2014 which relevantly stated “if you do not agree with the SSAT decision, you can apply to the AAT”.

20. In the case of Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 (Hunter Valley), Wilcox J sets out a number of non‑exhaustive criteria that can be taken as a guideline for the Tribunal’s determination of extension of time applications. The criteria can be summarised as:

    (a)Whether the Applicant has shown an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

    (b)Whether the Applicant has rested on his/her rights and allowed the decision‑maker to believe that the matter has finally concluded;

    (c)Whether there has been any prejudice to the Respondent as a result of the delay in the making of the application;

    (d)Whether the Respondent or the general public would suffer any prejudice as a result of the granting of the extension of time;

    (e)Whether there is merit in the substantive application; and

    (f)More generally, the considerations of fairness as between the Applicant and other persons in a similar position.

21. I acknowledge that the decision in Hunter Valley was concerned with an extension of time in a different statutory context, namely under the Administrative Decisions (Judicial Review) Act 1977. However, I note that Hunter Valley has been cited with approval by numerous Tribunal decisions, although with the caveat that “[t]oo slavish” an adherence to the Hunter Valley guidelines should be avoided.[1]

    [1] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, 128 [41] (Hill J).

22. In the application for review of the SSAT Decision, the Applicant provided reasons for the application. She said that when she commenced studies, she attended the Mount Barker Centrelink office to enquire about her entitlement to payment of Austudy. She referred to the advice she was given with respect to her entitlement, and the assistance she was given including the completion of the form. The Applicant also referred to the SSAT Decision, that she had not intentionally and knowingly defrauded the Commonwealth and said, “I would really appreciate it if [the application] could be reassessed” and asserted an administrative error was to blame for her debt.

23. In short, no new evidence is identified and no error in the finding of fact by the SSAT has been referred to. The Applicant’s request is for a reassessment of the evidence.

    THE RESPONDENT’S SUBMSSIONS

    No acceptable reason for the delay

24.  The Respondent submitted that the Applicant has not provided an acceptable reason for the delay. The covering letter sent by the SSAT enclosing the decision would include reference to the Applicant’s appeal rights and time within which to appeal. The various communications from the Secretary and ARO also advised the Applicant of her rights of appeal.

25.  The Applicant has not provided adequate explanation for the failure to lodge the application for review within the prescribed period.

Prejudice to the Respondent

26.  The Respondent submitted that it is prejudiced by the application. The Applicant disclosed no new grounds that may support a finding that the decision under review could be set aside. There is little prospect of success. The Secretary would suffer prejudice by way of litigation costs defending an appeal with poor prospects of success. The Respondent referred to Kulijic and Secretary Department of Social Security (1994) FCA 886. The Federal Court of Australia said:

…. It will be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the cost of defending a pointless appeal.

27.  The Respondent referred to the passage of time since the decision, and the passage of time from the commencement of the debt, namely over nine years ago. The Respondent submitted that the delay is significant, and that the Applicant has rested on her rights.

28.  Further, the Respondent submitted that the delay has damaged Respondent’s ability to present her case. Notices and documents will be difficult to obtain, and any witnesses called to give evidence may be compromised due to the passage of time. Evidence about administrative procedures of TAFE SA in 2011 may also be difficult to obtain.

Prejudice to the general public

29.  Time limits for review should be observed to assist in the proper administration of government agencies. There is a public expectation that there be a degree of certainty of time limits[2].

[2] David and High Court of Australia [2009] AATA 448 at [10].

30.  It is of public concern that there be finality in a dispute, the effective use of public resources and the appropriate allocation and expenditure of public funds[3].

[3] See Paino and Secretary Department of Employment and Workplace Relations [2006] AATA 951 at [21] – [22].

31.  Regards should be had to notions of fairness between parties[4].

[4] see White and Secretary Department of Families Community Services and Indigenous Affairs [2007] AATA 1712 at [24].

32.  It is submitted there is a public interest in the finality of proceedings and time limits are imposed to ensure a predictable and orderly conclusion of matters.

33.  The Respondent submits that it is in the public interest and the interests of applicants generally, who comply with prescribed time limits, that the application for extension of time be refused.

Merits of the substantive application

34.  The Respondent referred to Swanton and Military Rehabilitation and Compensation Commission[5] in which the Federal Court of Australia said

[5] [2017] FCA 1142 at [12].

…it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users….. In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way”…..the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground...

35. The Secretary submitted that the Applicant has little prospect of success and that the Applicant cannot satisfy section 568 of the Act. It was submitted she does not satisfy the Austudy test – namely that she was a full-time student or a concessional study-load student or that she was undertaking at least three quarters of the normal amount of full-time study in respect of the course in a particular study period. The debt was correctly not waived.

THE APPLICANT’S SUBMISSIONS

36.  The Applicant said that she was not aware of her right to appeal the decision of the SSAT and only recently became aware of her rights. She said she had been going through tough times, particularly in relation to her mental health which declined in 2014. She had also been assaulted in the workplace which, together with her mental health, contributed to the fact of her debt not being a priority. She had a conflict with a particular family, and it was a challenging time for her.

37.  The Applicant submitted that, as found by the SSAT, her claim was not fraudulent. The Applicant submitted it was the result of an administrative error. She was surprised and disappointed by the decision but “got on with life”.

38.  The Applicant conceded that she could not point to a demonstrable error in fact or law by the SSAT, but she wanted the matter reassessed.

Purported Further evidence – General Enrolment Form

39.  Following the hearing of the application, and when the Tribunal advised the parties that the decision was to be published, the Applicant forwarded to the Registry a copy of her General Enrolment Form prepared by TAFE dated 16 June 2011 in respect of her enrolment in a ‘Diploma of AOD’. The Applicant said that this original paperwork supports that she enrolled as a full-time student. She asked that it be considered in support of her application. The Tribunal provided a copy of that form to the Respondent.

40.  The General Enrolment Form was already before the Tribunal as an attachment to the Respondent’s written submissions. It did not assist the Tribunal. 

41. There is no dispute that the Applicant enrolled as a full-time student. The SSAT decided, consistent with the General Enrolment Form, that the Applicant enrolled on a full-time basis. The SSAT Decision was that her study load was never at least ¾ of the full-time course load as required by section 569C of the Act and accordingly the Applicant did not qualify for Austudy during the relevant period and was overpaid.

42.  The General Enrolment Form was not relevant to the factual finding by the SSAT of the actual study load undertaken by the Applicant during the relevant period, namely that it was never at least ¾ of the full-time course load. It does not enliven any miscarriage of justice should the application for an extension of time be refused. Nor does the document impact upon any of the considerations with respect to the application for an extension of time to which I have referred.

CONCLUSION

43.  The Tribunal accepts that the Respondent communicated with the Applicant on numerous occasions advising her of her right of appeal.  The Tribunal has checked its records which indicate that a covering letter was sent to the Applicant along with the decision of the SSAT. Given the passage of time, that letter is not now available, but it was then the regular practice of the SSAT to inform an unsuccessful Applicant of his or her right of appeal and the time within which to make the application.

44.  The fact that the Applicant cannot now recall reading such letter is not to the point. The Tribunal is satisfied that the Applicant was advised on numerous occasions of her right of appeal from the decision of the SSAT to the General Division of the Administrative Appeals Tribunal and the time limit within which to do so.

45.  The Applicant has not provided an adequate reason for the delay of over 6 years in bringing the application for review. The Tribunal has not received any medical report detailing the nature of the Applicant’s mental health issues and the impact that had on her during the period since the SSAT Decision. As the Applicant said, she was disappointed with the decision and “got on with life”.

46.  The Applicant’s purpose for filing the application for review was to invite nothing more than a reassessment of the evidence. In circumstances where the application for review is filed out of time, and further, where there is no arguable or demonstrable error in the original decision giving rise to a miscarriage of justice, or a potential miscarriage of justice, should the substantive issue not be heard, it is not appropriate to grant an extension of time within which to file an application for review.

47.  I agree with the submissions of the Respondent to which I have referred above. There would be a prejudice to the Respondent and a wider prejudice to the general public in granting the application. The interests of justice are not served by granting the application. The delay is significant, and the Applicant has rested on her rights. The Respondent is entitled to expect that the matter is concluded.

DECISION

1. The application for extension of time is refused.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...................[SGND]...........................

Administrative Assistant Legal

Dated: 28 April 2021

Date of hearing:	12 November 2020 (by telephone)
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Riley Calaby, Services Australia