Nicholas Krivoshev and Secretary, Department of Employment
[2015] AATA 12
•14 January 2015
[2015] AATA 12
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/6122
Re
Nicholas Krivoshev
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 14 January 2015 Place Sydney The Tribunal extends the time for Mr Krivoshev to lodge the application for a review of the decision of the Social Security Appeals Tribunal dated 13 October 2014 to 27 November 2014.
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Ms N Isenberg, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time to lodge application for review – whether acceptable explanation for delay – whether applicant rested on rights – merits of substantive application – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Social Security (Administration) Act 1999 (Cth) ss 42H, 42UA
CASES
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412; [2003] AATA 269
SECONDARY MATERIALS
Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1)
REASONS FOR DECISION
Ms N Isenberg, Senior Member
14 January 2015
On 27 November 2014 the Tribunal received from Mr Krivoshev an application for review of a decision by the Social Security Appeals Tribunal (SSAT) posted to him on 24 October 2014. The SSAT affirmed a decision of a Centrelink Authorised Review Officer (ARO) to impose a reconnection failure penalty of $764.25 for the period of 1 November 2013 to 21 November 2013. On 1 December 2014 Mr Krivoshev also applied to the Tribunal for an extension of time within which to lodge his application for review of the SSAT decision (the substantive application).
ISSUE
The issue before the Tribunal is whether an extension of time within which to lodge an application for review to this Tribunal should be granted.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
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.
Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 stated at 348 that “it is the prima facie rule that proceedings commenced outside [the prescribed] period will not be entertained”. Wilcox J set out six principles guiding the use of a decision maker’s discretion to grant an extension of time. They are:
·that the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;
·any prejudice to any other party;
·the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;
·the merits of the substantive application; and
·considerations of fairness between the applicant and other persons in a similar position.
CONSIDERATION
EXPLANATION FOR THE DELAY
The decision by the SSAT was dispatched on 24 October 2014. Mr Krivoshev said that he received the decision on about 29 or 30 October 2014. On the application for review form that Mr Krivoshev submitted he did not insert the date on which he received notice of the decision.
Under s 29(2) of the Administrative Appeals Tribunal Act 1975, the prescribed time for making an application for review is 28 days after notification of the decision. Mr Krivoshev’s application for review had to be lodged by 25 November 2014, at the latest, if it were received by him in the ordinary course of the mail. If I accept that the SSAT’s decision was received by the Applicant in the ordinary course of the mail, his application for review was lodged two days out of time.
The Respondent contended that even if the delay is not considered to be lengthy, the “brevity of the extension sought does not, however, lead automatically to an order extending the time” (Re Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412; [2003] AATA 269, [16]).
In his application for an extension of time Mr Krivoshev did not address the reason that he did not file his application on time, instead addressing other issues he had with Centrelink. He gave a somewhat confused account of his dealings with Centrelink which have resulted in at least one other application for review before the Tribunal.
As to what he did with the decision when he received it, he said he was trying to sort out other payment issues with Centrelink and was also suffering a lot of pain: “everything was happening at once”.
The Respondent noted that in another matter before the Tribunal, the Applicant lodged his application in the prescribed time required, which demonstrates his ability to comply with statutory deadlines. I place little weight on this observation in circumstances where it was clear to me that Mr Krivoshev was having difficulty differentiating between his various disputes with Centrelink and was clearly losing track.
While Mr Krivoshev has provided an explanation for the delay, I do not find it to be persuasive.
I am not satisfied that Mr Krivoshev has a reasonable excuse for being out of time and find that this factor weighs against granting an extension of time.
HAS THE APPLICANT RESTED ON HIS RIGHTS?
Mr Krivoshev said, however, that he contacted the Tribunal on 21 November 2014 about appealing the SSAT decision. Forms were sent to him. He thought he was given an extension of time as he was subsequently asked to complete an application for extension of time which he lodged on 1 December 2014.
I consider that in taking steps to lodge his application for review on 21 November 2014 Mr Krivoshev did not rest on his rights. This weighs in favour of granting an extension of time.
PREJUDICE TO OTHER PARTIES and WIDER PUBLIC CONSIDERATIONS
There was no evidence to suggest that the Respondent would suffer significant prejudice if an extension of time were granted. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
Time limits for review of administrative action should be observed in order to assist the efficient administration of government agencies. There is also a public expectation that there be a degree of certainty regarding time limits. The Tribunal finds that this factor weighs against granting an extension of time.
THE MERITS OF THE SUBSTANTIVE APPLICATION
The substantive application concerns whether Centrelink was correct in imposing a reconnection failure penalty because Mr Krivoshev did not attend a “reconnection” interview with CRS.
In essence, a person on Newstart Allowance must comply with certain obligations, such as attending appointments with employment services providers. If a person fails to attend an appointment, they are given a reconnection appointment, and if a person fails to attend that appointment, they incur a reconnection failure and can be subject to a reconnection penalty. Under s 42H(3) of the Social Security (Administration) Act 1999 (Cth) (Administration Act), if a person has a reasonable excuse for not attending a reconnection appointment, the Secretary must not determine that the person committed a reconnection failure. The matters relating to determining what a reasonable excuse is were provided in the Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No. 1) (Determination). The Determination also states that “the Secretary must not take into account a matter if the Secretary is not satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement, or the provision of the [Social Security] Act 1991 or the Administration Act, to which the failure relates.”
Section 42UA of the Administration Act provides a person must give prior notification about a failure to participate in an activity such as a job provider appointment or a reconnection appointment. If prior notice is not given, the Secretary must be satisfied that there were circumstances in which it was not reasonable to expect the person to give prior notification.
The Respondent submitted that the Applicant did not have a reasonable excuse for his non-attendance at the reconnection appointment.
Mr Krivoshev said he could not remember receiving a letter telling him to go to an appointment at CRS. He said he had been having trouble with his mail, and had also not received the notice of his first appointment. The advocate for Centrelink conceded that he had no record of a letter being sent to him about the reconnection appointment, and accepted that often such appointments are organised by telephone. If a letter had been sent, and I had been prepared to accept that Mr Krivoshev had received it, I might have been confident that he was both aware of the appointment, and aware of the address he was to attend.
Mr Krivoshev said that he had been contacted by telephone to the effect that he needed to attend CRS in Cabramatta on 1 November 2013. He said that his previous job provider was Mission Australia and he had not previously attended CRS. He said he was given the address “231 Cabramatta Rd, Cabramatta”. He said he walked from his home to 231 Cabramatta Rd, only to discover the CRS office was not there. His back and his heel spurs were painful so he went home. He said he had not been given a phone number for CRS to clarify the address. He said he also could not phone Centrelink because he had little credit on his phone and there is an hour wait to get through to someone. He was asked about a 1300 number, but said his phone cannot access that service.
The Respondent noted that the distance from Mr Krivoshev’s home to the CRS office is 650 metres so he was able to walk a reasonable distance. Mr Krivoshev produced X-ray evidence of his spurs and a medical certificate dated 1 August 2013 that referred to his widespread pain which made walking difficult. I accept that the evidence may suggest that while Mr Krivoshev could manage a trip of 650 metres each way, travelling further in an effort to locate CRS’s premises may have been problematic.
Mr Krivoshev said he has lived at his present address for several years. However, he does not need to go down Cabramatta Rd to reach the station, Mission Australia, or the shops. There was no evidence to contradict this contention; this may be a matter for evidence in a substantive hearing. His evidence tended to suggest he may not have been familiar with the area in which CRS is located.
It was pointed out to Mr Krivoshev, after consulting a map, that as the correct address was 251 Cabramatta Rd, he would have had to walk past CRS to reach No. 231. He said there was no signage that indicated CRS was located at premises he had passed. There was no evidence about the level of sign-posting to refute this contention. This, no doubt, would be a matter for evidence in a substantive hearing.
Mr Krivoshev was asked by the SSAT whether there were any other unusual events in his life in or around 1 November 2013 that may have restricted his ability to attend the appointment at CRS, but there were none.
In making its decision, the SSAT observed that Mr Krivoshev’s record of compliance with his job search obligations shows that, between 16 September 2013 and 21 March 2014 Mr Krivoshev failed to attend seven out of eight initial appointments and all seven reconnection appointments with his job services provider, with “invalid reasons” being recorded on eight occasions. I understand some aspects of the Applicant’s compliance failure to be the subject of another application for review before this Tribunal. Again, it is difficult to assess the relevance of his previous reconnection appointment failures, and, in any event, there was no evidence as to whether those failures may have been due to a “reasonable excuse” in accordance with the Determination. Consequently, I have placed little weight on his past compliance failures.
I am unable to say that there is no prospect of success in Mr Krivoshev’s substantive application: Mr Krivoshev may have no previous association with the CRS as he claimed; he may have been told the wrong address; he may have been unfamiliar with the area; the CRS may be inadequately signed; and he may, in walking past the CRS, have failed to notice its signage. These are matters which may be more fully tested in a substantive hearing.
CONSIDERATIONS OF FAIRNESS
There is nothing unique or special about Mr Krivoshev’s application or circumstances that would make his situation markedly different to other applicants in similar situations.
CONCLUSION
I have found that that Mr Krivoshev did not rest on his rights and I cannot say that his application has no prospects of success. In considering all of the relevant factors I am satisfied that that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
DECISION
The Tribunal extends the time for Mr Krivoshev to lodge the application for a review of the decision of the Social Security Appeals Tribunal dated 13 October 2014 to 27 November 2014.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member .....................[sgd]..............................................
Associate
Dated 14 January 2015
Date of hearing 22 December 2014 Applicant In person Solicitor for the Respondent Mr S Misrachi, Department of Human Services
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