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

[2020] AATA 323

Pasquill and Secretary, Department of Social Services (Social services second review) [2020] AATA 323 (11 February 2020)

Division:GENERAL DIVISION 

File Numbers:          2019/8341, 2019/8341

Re: Shelley Pasquill

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West 

Date:11 February 2020  

Place:Melbourne

The application to extend time under s.29(7) of the AAT Act is refused

.......................[sgd]................................................

Member

PRACTICE AND PROCEDURE – application for extension of time for review – appeal from Social Services & Child Support Division – extent of the delay – reasons for the delay – prospects of success – prejudice to parties – public interest – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

DHLD v Executive Director, Social Security Appeals Tribunal [2010] AATA 377

REASONS FOR DECISION

Member West

11 February 2020

1. This matter concerns an application for an extension of time for lodging an application for review of a decision made by the Social Services & Child Support Division of this Tribunal (AAT 1) dated 16 March 2018 to affirm the decision of the Respondent to raise and recover from the Applicant debts in respect of overpayments of the Newstart allowance and Austudy.

2. An application for an extension of time to review of the AAT 1 decision was lodged on 12 December 2019.  The application was opposed by the Respondent.

3. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) stipulates that an application for review must be lodged within the period commencing on the date of the decision to be reviewed and ending on the date 28 days after the date upon which the Applicant is notified of the decision. Section 29(7) confers a discretion on the Tribunal to extend the time for lodging an application if it is satisfied that it is reasonable to grant an extension having regard to all of the circumstances of the matter.

4. The AAT 1 Decision was notified to the Applicant by letter dated 28 March 2018, which was deemed to have been received by her on 13 April 2018.[1]  The prescribed time for lodgement therefore ended on 11 May 2018 and the application for review was lodged approximately one year and seven months out of time.

   [1] See DHLD v Executive Director, Social Security Appeals Tribunal [2010] AATA 377.

5. A hearing was conducted by telephone on 31 January 2020 to consider the extension of time application.  The Applicant was self-represented.  The Respondent was represented by Ms Aarabi Raveendiran.  The Respondent filed a detailed written submission in support of its position that the extension of time should not be granted.

6. In considering whether to grant an extension of time the Tribunal has had regard to the following factors:

   a.the extent of the delay in lodgement;

   b.the reasons for the delay;

   c.the prospects of success

   d.the prejudice to the Applicant in not granting an extension;

   e.the prejudice to the Respondent in allowing the application to be lodged out of time; and

   f.the public interest.

7. The delay in this case is significant.  The fact that the application has been delayed by over one year and seven months weighs strongly in favour of not granting an extension.

8. The Applicant explained that her failure to lodge her application for review within the prescribed time limits was because she was suffering from mental health issues.  The Applicant was granted leave to provide a medical report to the Tribunal following the hearing.  The report from a psychologist, Michele Silva, dated 16 January 2020 stated that the Applicant had been treated for anxiety and depression since 2011 and that during 2013 following the death of her father her depression worsened and she was unable to act in a planned and logical way for a number of years.  The report stated that it was only recently that the Applicant had improved enough to be able to make her application for review.  The report added that during the period from July 2013 to December 2019 the Applicant’s judgement, cognitive function and concentration were severely impaired.

9. The Respondent pointed out in its submissions that the Applicant had been in working for the Department of Health and Human Services until January 2019 and had competently engaged with the Respondent on several occasions during the period of delay to negotiate the rate of debt recovery and to update her earnings.  This was not disputed by the Applicant but she asserted that she was only able to cope with so much and that she wasn’t able to cope with most things outside of her job.

10. The Tribunal accepts that the Applicant had mental health issues during the period after she received the AAT 1 decision and that this may have contributed to her failure to lodge her application for review.  The Tribunal gives some weight to this consideration.

11. The Respondent asserts that the Applicant has no reasonable prospect of success in her appeal.  On questioning by the Tribunal the Applicant stated that she did not dispute the debt as assessed by the Respondent and that she did not assert that it was solely due to an administrative error by Centrelink.  She acknowledged that her case on review was limited to arguing that she had special circumstances warranting a waiver of part or the entirety of the debt.  The Respondent asserted that the Applicant’s circumstances as a whole were not sufficiently unusual, uncommon or exceptional as to make a case markedly different from the ordinary run of cases and otherwise ‘special’.  The Applicant did not raise any factual matters which indicated that she had a reasonable basis to assert special circumstances.  On this basis the Tribunal is not satisfied that the Applicant’s appeal would be likely to succeed.  Further, the Tribunal notes the advice of the Respondent that it is open to the Applicant at any time to request a review of her circumstances by an authorised review officer (ARO) to determine whether they warrant waiver of part or the whole of her debts.  Decisions of the ARO are reviewable by the Tribunal.

12. Taking into account the limited prospects for the Applicant’s appeal and the availability of an alternative review process the Tribunal is not satisfied that the Applicant would be substantially disadvantaged if an extension of time is not granted.

13. While the Tribunal accepts that there is some disadvantage to the Respondent by extending time it is not satisfied that this should be given substantial weight.

14. On the other hand, the Tribunal does give weight to the public interest in upholding statutory time limits and requiring parties to administrative proceedings to abide by them.  The efficient functioning of the Tribunal, and the proper administration of government, are clearly advantaged by adherence to the rules.  Prima facie an application made outside the rules should not be entertained unless the Tribunal can be satisfied that it is reasonable in all the circumstances to do so.

15. Having regard to all of these considerations the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time for making the Applicant’s application for review.

16. The application to extend time under s.29(7) of the AAT Act is refused.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

..........[sgd............................

Associate

Dated: 11 February 2020

Date of hearing:

31 January 2020

Applicant:

By telephone

Solicitors for the Respondent:

Department of Human Services

Ms Aarabi Raveendiran