Paino and Secretary, Department of Employment and Workplace Relations

[2006] AATA 951

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 951

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1019

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIE PAINO

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date10 November 2006

PlaceSydney

Decision The Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of a decision of the Social Security Appeals Tribunal dated 16 December 2005

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support and age pension – entitlement to age pension revoked and overpaid money to be refunded – entitlement to age pension backdated to date of lodgement of appeal only – appeal to AAT out of time – merits of substantial application relevant – no discretion in s152 of the Social Security (Administration) Act 1999 – AAT application has no prospect of success - no exercise of discretion to grant extension of time

LEGISLATION

Administrative Appeals Tribunal Act 1975, s29(7)
Social Security (Administration) Act 1999, s152(4), s154

CASE LAW
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305

Zizza v FCT (1999) 55 ALD 451
Comcare v A'Hearn (1993) 45 FCR 441
Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

10 November 2006

Ms N Isenberg, Senior Member

1.      Applications for review by this Tribunal are to be lodged within 28 days of the decision complained of.  Mrs Paino seeks an extension of time for lodging her application for review.

BACKGROUND

2.      Mrs Paino received a disability support pension and subsequently an age pension from Centrelink.  On 2 December 2004 Centrelink decided that Mrs Paino had been overpaid and therefore owed a debt to the Commonwealth and her ongoing entitlement to age pension was revoked.  When that decision was ultimately reviewed by the Social Security Appeals Tribunal (SSAT) no debt was found to exist.  Centrelink was to refund to Mrs Paino all moneys that had been recovered and her ongoing entitlement to age pension was to be reassessed.

3.      Mrs Paino’s appeal however was only partially successful in that her entitlement to age pension could only be payable from the date she lodged her appeal to the SSAT, that is, 14 October 2005, and not back to the date of revocation.  The effect was that she was not entitled to receive pension for a period of about 10 months (from 3 December 2004 to 13 October 2005) to which she may otherwise have been entitled had she lodged her appeal within time.  This is the substantive issue of which Mrs Paino complains.

4.      As to the appeal to this Tribunal, her application for review was received on 14 August 2006, some five to six months late.

5. Under section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the time for filing an application for review may be extended.

CONSIDERATION

6.        Generally the prescribed 28 day period is to apply unless there is an acceptable explanation of the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305.

7.        All factors relevant to a case have to be weighed up against one another in reaching a decision:  per Zizza v FCT (1999) 55 ALD 451.

PRINCIPLES TO BE CONSIDERED IN EXTENSION OF TIME APPLICATIONS

8.        The principles in Hunter Valley Developments are considered below.

prima facie, proceedings commenced outside the prescribed period will not be entertained, except if it is proper to do so

Application out of time

9.        As at the date of filing of the application in the Tribunal in August 2005, Mrs Paino was five to six months out of time for filing her application for review.

10.      The SSAT decision had been dispatched to her on 22 December 2005.  Mrs Paino was advised by the SSAT of her appeal rights in the covering letter of the decision, which clearly specified that any application to this Tribunal had to be lodged within 28 days.

11.      It was submitted that Mrs Paino had undergone great stress during the SSAT proceedings and the family decided to ‘leave the arrears issue lie’ because of the likely effect on their mother’s health in pursuing it.  Somewhat inconsistently it seems to me, it was also submitted that because Mrs Paino and her family had to chase Centrelink to obtain the payments ordered by the SSAT, it was overlooked that she would not be getting arrears for the entire period.

Explanation for delay

12.      In her application for extension of time Ms Paino, on her mother’s behalf, had requested the extension on the basis of her mother’s fragile health and the bureaucratic delays in implementing the SSAT decision.

13.      Mrs Paino’s representative, Mr Refenes, submitted that there was constant contact with Centrelink about getting the entitlement paid.  The Christmas period also intervened.  It was not until June 2006 that Mrs Paino‘s daughter raised concerns with Centrelink about the non-payment of the full arrears.  Mr Refenes said she then moved ‘as best as she could’ to lodge the appeal: a further delay of nearly four months.

14.      The Full Federal Court in Comcare v A'Hearn (1993) 45 FCR 441 stated (at 444) that although it is to be expected that an explanation for the delay will normally be given, there is no rule that such an explanation is an essential pre-condition to the granting of an extension of time. Nonetheless, in Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 the Federal Court regarded the lack of a satisfactory explanation for the delay as the matter which most strongly weighs against the grant of an extension of time.

15.      In relation to administrative delays in implementation, the Secretary submitted that they alone do not explain the length of delay.  After the SSAT decision Centrelink appears to have acted promptly in requesting updated details from Mrs Paino in order to process the claim.  Mrs Paino’s claim was granted on 24 February 2006, while her debt was fully refunded on 15 March 2006.  

16.      I observe that Mrs Paino was represented by a solicitor and her daughter at the SSAT hearing.  It is unclear if the solicitor had an ongoing role after the SSAT appearance, and thereby had some ongoing responsibility in regards to the review process.  If he did, Mrs Paino may wish to have the level of service that was provided to her explored elsewhere.

17.      I do not regard the explanation provided on Mrs Paino‘s behalf to be particularly satisfactory.

Did Mrs Paino rest on her rights or did she take action to make Centrelink aware that the decision was being contested

18.      Mrs Paino‘s request for review is several months out of time.  She brought her dissatisfaction with the SSAT decision to the attention of Centrelink only in June 2006.  The various explanations include that until that time she was unaware that the full amount of the arrears would not be payable.  There was however no dispute that the SSAT decision had been received and that the decision specifically referred to the part payment of arrears and the reasons therefor.  Then a further delay of nearly four months ensued.  During that period, at least, she clearly rested on her rights.

is there any prejudice to Centrelink that would be caused by granting the extension of time?

19.      In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54, McHugh J stated at 551:

“… The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. 
…
... [P]eople should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period...
... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

20.      This matter is substantially different from Brisbane Regional Health Service (supra) in that the extension of time sought in that matter was some 15 years.  There was no evidence of prejudice to Centrelink by the delay.

any wider prejudice to the general public in terms of disruption to established practices is relevant

21.      In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407, to which I was referred, the Tribunal stated at 411:

“As stated in Hunter Valley Developments case, it is not only prejudice between the parties which is relevant but the wider public interest. In Lucic's case [Lucic v Nolan (1982) 45 ALR 411] at 416 Fitzgerald J said: “Other matters of proper public concern… include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds.”
… As Deputy President McMahon stated in El Salameh and Australian Postal Corporation (N91/209, 26 June 1991, unreported) at p 6: "Any delay, of course, is prejudicial. the more time that elapses between the events to be examined and the date of hearing, the more difficult it is to present meaningful evidence ... Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension"….
… Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised. In circumstances where the respondent had had no communication from the applicant for over 2 years, the respondent ought to be entitled to consider that the matter closed, except in the most unusual circumstances…”

22.      Centrelink is entitled to be confident as to the finality of decisions regarding entitlement to pension within the set time limits, and not to have the expense of continuing to address further applications in respect of benefits, essentially at the beneficiary’s will. 

the merits of the substantial application are relevant

23.      The substantive issue is whether Mrs Paino‘s pension can be re-instated for the entire period since revocation.

24.      I must consider if her case has prospects of success: per Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121.

25. In accordance with section 152(4) of the Social Security (Administration) Act 1999 (‘the Administration Act’) unless a SSAT application is lodged within 13 weeks after the Authorised Review Officer’s (ARO) notice of decision, the decision can take effect only from the day the SSAT application is lodged.

26.      The ARO’s letter was issued on 23 June 2005 but Mrs Paino’s SSAT application was lodged 17 weeks later on 14 October 2005. 

27.      Attached to the ARO’s decision was an information sheet about appealing to the SSAT.  That form provided:

“An appeal can be lodged with the Tribunal over the telephone, in writing or in person at any SSAT office. Appeal forms are also available from Centrelink. Appeals can be lodged any time after a review of the original decision by a Centrelink authorised review officer.

If the appeal is about payment of a benefit, it is best to lodge the appeal as soon as possible (certainly within 13 weeks), because back-pay may not be possible if a successful appeal is lodged more than 13 weeks after the Centrelink review.”

28.      Mr Refenes submitted that the form of words used indicated a very liberal approach to the filing of an appeal.  Further, he submitted that Centrelink was well aware that Mrs Paino intended to appeal the decision of the ARO.  He tendered a copy of a letter from the solicitor to the ARO dated 29 August 2005 in which it was written:

“Our instructions are to appeal the matter and we understand we have until 22 September 2005 to do so.”

29.      Two further letters, both dated 26 September 2005 were also submitted seeking extension of time to lodge an appeal. 

30.      The submission was that Centrelink was on notice of Mrs Paino’s intention to appeal to the SSAT, and in view of the broad lodgement provisions set out in the attachment to the ARO’s letter, the correspondence with Centrelink amounted to an appeal being lodged.

31. This contention, in my view is flawed. Firstly, the process of lodging appeals to the SSAT is set out at section 154 of the Administration Act as follows:

Application requirements
          (1) A person may apply to the SSAT for review of a decision by:
  (a) sending or delivering a written application to:
  (i) an office of the SSAT; or
  (ii) an office of the Department; or

(iii) if the decision was made by the CEO or an employee of the Agency—an office of the Agency; or

(b) going to an office of the SSAT and making an oral application; or

(c) contacting an office of the SSAT by telephone and making an oral application.

(2) If a person makes an oral application in accordance with paragraph (1)(b) or (c), the person receiving the oral application must make a written record of the details of the oral application and note on the record the day on which the application is made.

(3) If a written record of an oral application is made in accordance with subsection (2), Division 4 has effect as if the written record were a written application.

(4) An application may include a statement of the reasons for seeking a review of the decision.

32.      Secondly, the information sheet clearly states that appeals are to be lodged with the SSAT. I do not accept that notifying Centrelink of an intention to appeal amounts to something in the nature of a constructive appeal in the event that the strict appeal provisions of Section 154(1) are not complied with.

33.      Further, the solicitor was clearly aware from the correspondence of 29 August 2005 that the deadline for appeal was approaching.  There was no evidence that there was a response to his correspondence by Centrelink, or that he followed up on the purported application to Centrelink for an extension of time.  In this regard I repeat my observations in paragraph 16 above.

34.      At the hearing I was referred to the recent decision of Secretary, Department of Employment and Workplace Relations and Mitchell [2006] AATA 804 (20 September 2006) where Deputy President Jarvis discussed the dichotomy between section 152(4) of the Administration Act, mentioned at paragraph 25 above, and section 43(6) of the AAT Actwhich provides:

“A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals to the Australian Industrial Court), be deemed to be a decision of that person and, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”

35.      At paragraph 59 the Deputy President explained:

“…this Tribunal stands in the shoes of the SSAT, and has the same powers and discretions as the SSAT, and its decision is deemed to be that of the SSAT, the specific constraint in subsection 152(4) on the effective date of the deemed SSAT decision should, in my view, prevail over the discretion to order retrospectivity contained in subsection 43(6), which is a provision of general application. In resolving the apparent conflict between the two provisions, it is also significant that the specific provision, subsection 152(4), does not literally refer to the effective date of the SSAT decision, but refers in terms to how the social security law is to have effect.”

36.      The rationale for the provision is set out at paragraph 57 of Mitchell:

“The apparent purpose of the restriction on retrospectivity by virtue of subsection 152(4) of the Administration Act, and of a corresponding restriction in subsection 109(2) in relation to decisions of an ARO, is to limit the total liability of the Secretary if a person delays pursuing his or her claim for longer than the periods of 13 weeks referred to in those subsections. Further, the subsections have the effect of requiring persons who are making claims to pursue their rights of review promptly. In the case of applications for arrears of pension, where the pension is later reinstated as occurred in the present case, the subsections operate in the same way as a statute of limitations, and effectively bar the claimant from entitlement.”

37. In my view the SSAT correctly applied the law in finding that Mrs Paino’s pension could be paid only from 14 October 2005. There is no discretion in section 152 of the Administration Act to avoid the effect of the limiting provision.

38.      Mrs Paino’s application therefore has no prospect of succeeding before this Tribunal. 

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

39.      Centrelink contended that granting Mrs Paino an extension of time despite the lack of merits in her case would set an ‘unwelcome example’.  A grant of extension of time would also be unfair to other applicants in similar situations who have not submitted late applications.

40.      Having come to the view expressed in paragraph 38 above this consideration then is of marginal relevance.

CONCLUSION

41.      Accordingly, after considering the merits of the substantive application and coming to the view that Mrs Paino’s case has no prospect of succeeding before this Tribunal, it would be futile to grant an extension of time and unfair to Centrelink to subject it to the cost of defending a pointless appeal.  For the reasons given above, I am not satisfied that it is reasonable, in all of the circumstances of the case, to grant an extension of time to Mrs Paino to lodge an application for review of the SSAT’s decision of 16 December 2005.

DECISION

42.      The Administrative Appeals Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of the decision of the Social Security Appeals Tribunal dated 16 December 2005.

I certify that the preceding 42 paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed: …….[sgd]….......      

Associate

Date of Hearing  31 October 2006
Date of Decision  10 November 2006
Solicitor for the Applicant          Mr Menuel Refenes      
Advocate for the Respondent   Ms Pankaj Sharma