Newitt and Secretary, Department of Employment and Workplace Relations

[2006] AATA 432

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/32

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ROBERT WILLIAM NEWITT

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

INTERLOCUTORY DECISION

Tribunal Ms A F Cunningham (Part-Time Member)

Date18 May 2006  

PlaceHobart

Decision The application for an extension of time pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

..............................................

Part-Time Member

CATCHWORDS

SOCIAL SECURITY - Application for extension of time - no evidence to explain delay or provide a basis for the exercise of the Tribunal's discretion - application refused.

Administrative Appeals Tribunal Act 1975 – s29(7)

Re Johnson and Commonwealth (5 January 1990, 5619)

Hunter Valley Developments Pty Ltd v Cohen 1984 3 FCR 344 at page 348

Re Garvey and Secretary, Department of Social Security (1991) 26 ALD 113

Re Secretary, Department of Social Security and Durante (1994) AATA 9565

Bouvet v Secretary, Department of Social Security (1992) FCA 92/0216

REASONS FOR INTERLOCUTORY DECISION

Ms A F Cunningham (Part-Time Member)         

1.          The applicant has sought an extension of time for the review of a decision.   The original decision was made by a Centrelink officer on 23 September 2004.  Mr Newitt applied for a review of that decision which was affirmed by the Social Security Appeals Tribunal on 23 November 2004.  Mr Newitt lodged an application for review with the Administrative Appeals Tribunal on 10 March 2006 which is over 17 months after the date of the original decision.

2.          An application to the Administrative Appeals Tribunal for a review of a decision is to be made within 28 days from the decision handed down by the Social Security Appeals Tribunal. (Section 29(2) of the Administrative Appeals Tribunal Act 1975).

3.          Sub-section  29(7) of the Act states:

“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”

4.          In his application for an extension of time the applicant has stated his reasons for applying as “have tried employment but I keep breaking down”.  The application for an extension of time is opposed by the respondent on a number of grounds.

5.          The decision under review was the cancellation of Mr Newitt’s disability support pension (DSP).  In his application for review Mr Newitt states that he believes the decision is wrong.  Mr Newitt contended in his evidence before this Tribunal that the respondent should have sought a further medical report before affirming the decision to cancel his DSP.  He referred to the Centrelink Review Officer’s letter of 20 October 2004 stating that he was unable to change the decision “without further medical information”. 

6.          The issue for this Tribunal is whether there are grounds for granting Mr Newitt an extension of time for a review of the original decision.  Whilst the likelihood of a successful appeal may be a relevant issue, the real issue is whether it is reasonable to extend the period of time taking account of all of the relevant circumstances.

7.          The considerations relevant to the exercise of a decision were listed by the Tribunal in the decision Re Johnson & Commonwealth (5 January 1990, 5619) as being:             

1.        whether or not the applicant rested on his rights or took action to make      the decision maker aware that the decision was contested;

2.        any prejudice to the respondent that would be caused by granting the        extension of time;

3.        any wider prejudice to the general public in terms of disruption to     established practices;

4.        the merits of the substantive application;  and

5.        fairness in granting the extension of time as between the applicant and      other persons in a like position

HAS THE APPLICANT RESTED ON HIS RIGHTS?

8.          The applicant stated in evidence that whilst he was aware of his rights at the time of receipt of the SSAT decision and was not content with the outcome, his focus was to try to get employment.  The applicant was successful in his employment pursuits and agreed that he worked over a ten month period from January 2005.  He confirmed in cross-examination by Mr Sparkes that he earned the sum of $1538.00 over a two week period in November 2005. 

9.          The applicant’s understanding of the term ‘resting on his rights’ differs from the meaning as adopted by the Courts and Tribunals in the context of an application to extend time.  Whilst it may be true that the applicant was not idle, there is no evidence that he took any action with respect to his dissatisfaction with the SSAT’s decision.  The Tribunal was informed and Mr Newitt conceded that he was aware of his appeal rights and  had lodged previous appeals with the SSAT, the Federal Court and the Anti-Discrimination Tribunal.

10.        Mr Newitt contended that he had been advised by Mr Sparkes some time in late 2005 that he would not oppose the appeal.  This issue remained in dispute at the hearing.

11.        The evidence was that despite the cancellation of Mr Newitt’s DSP pension he remained in receipt of a parenting payment single until his son turned 16 years of age on 25 February 2006.  The amount received from this pension was approximately $40.00 per fortnight in excess of that received from the DSP.

12.        It was Mr Sparkes’ contention that Mr Newitt’s decision to seek a review of the SSAT decision coincided with the cessation of his parenting payment single.

13.        Whilst Mr Newitt contended that Centrelink’s decision was incorrect, his response to a question as to his reason for not appealing the decision was that his pride did not allow him to do so.  

14.        The Tribunal does not accept this as a valid reason for not complying with the legislative requirement that a review be lodged within 28 days of the decision.  As stated by Justice Wilcox in the decision Hunter Valley Developments Pty Ltd v Cohen 1984 3 FCR 344 at page 348:

“The “prescribed period” of 28 days is not be ignored.  Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained.

It is a pre-condition to the exercise of discretion in his favour that the application for an extension of time show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time”.

Prejudice to the Respondent

15.        Mr Sparke’s contended and the Tribunal accepts, that a delay of over 16 months since the date of the original decision may present difficulties for the respondent in presenting relevant evidence in response to the appeal.   The evidence from the rehabilitation consultant is almost 2 years out of date.    The issue for the Tribunal at the hearing of Mr Newitt’s application for review of the original decision, is whether on the basis of the evidence presented, that decision was the correct or preferable decision at the time it was made.    The Tribunal’s jurisdiction would not extend to considering whether Mr Newitt was entitled to a pension or benefit at a subsequent time.  This would need to be the subject of a further claim.

Wider Prejudice to the General Public

16.        As noted above it has been clearly stated that the prescribed period of 28 days is not to be ignored.    The applicant must demonstrate an acceptable explanation for the delay between the handing down of the SSAT decision in November 2004 and the lodgement of his application for review with the AAT in March 2006.   As stated above, in the Tribunal’s view he has failed to do so.

17.        There is a potential prejudice to the wider public in allowing the applicant an extension of over 16 months in which to lodge an application for review when other applicants are required to comply with the legislative provisions and lodge their applications within 28 days.

Merits of the Substantive Application

18.        Mr Newitt has failed to satisfy the Tribunal as to the merits of his application for review of the original decision.    Mr Newitt’s DSP was cancelled because he failed to meet the qualifying provisions of s94 of the Social Security Act 199,    namely, an impairment rating of at least 20 points.    The evidence at the time was that Mr Newitt’s total impairment rating was 10 points.    A further criteria for qualification for the DSP is that a person has a continuing inability to work because of his impairments.   Mr Newitt confirmed that he was in employment following the cancellation of his DSP and worked for a 10 month period from January 2005.

19.        Whilst Mr Newitt cast doubt on the validity of the rehabilitation assessment report, the Tribunal was not informed that there was any other available evidence regarding his impairment rating.

Fairness in Granting the Extension of Time Between the Applicant and Other Persons in a Like Position

20.        The Tribunal was referred to various decisions where similar applications have been refused.  For instance in Re Garvey and Secretary, Department of Social Security (1991) 26 ALD 113, the Tribunal refused the application where the applicant was four months out of time and where there was no prospect of success. In Re Secretary, Department of Social Security v Durante (1994) AATA 9565, the Tribunal refused a departmental application for an extension of time where the extension was for one day and where no evidence was presented to explain the delay. In Re Bouvet and Secretary, Department of Social Security (1992) FCA 92/0216, the Federal Court refused an extension of time where there was no hope of success and where the appeal was not bona fide.

21.        The Tribunal was informed that until the cancellation of his parenting payment single, the applicant was not in a worse financial position following the cancellation of his DSP.

22.        The applicant having failed to satisfy the Tribunal that he had an adequate explanation for the delay in the lodgement of his notice for review, there is no justification on the basis of the information before the Tribunal to grant the extension of time. 

23.        For the above reasons, the Tribunal is not satisfied that it would be fair and reasonable in the circumstances of this case to grant the extension of time sought.   The application is refused.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-Time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  29 March 2006
Date of Decision  18 May 2006
Counsel for the Applicant         Applicant appeared on his own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink