Payne and Secretary, Department of Social Services (Social services second review)
[2022] AATA 2351
•23 June 2022
Payne and Secretary, Department of Social Services (Social services second review) [2022] AATA 2351 (23 June 2022)
Division:GENERAL DIVISION
File Number: 2022/2626
Re:Peter Payne
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:23 June 2022
Date of written reasons: 25 July 2022
Place:Perth
The Applicant’s application for an extension of time to lodge an application for review of a decision, dated 19 January 2021, of Social Services & Child Support Division of the Administrative Appeals Tribunal is refused.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – substantive matter refusal of application for disability support pension – length of delay – substantial delay of 408 days – awareness of appeal rights and explanation of the delay – merits of substantive application – prejudice – alternate avenue of relief –– extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(7)
Social Security Act 1991 (Cth) – s 94
Social Security (Administration) Act 1999 (Cth)
CASES
Brown v Commissioner of Taxation (1999) 42 ATR 118
Comcare v A’hearn (1993) 45 FCR 441
FVMZ v Child Support Register [2018] AATA 4200
Hazelwood v Telstra Corporation [2012] AATA 901
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 7 ALD 315
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
McKenzie v Secretary, Department of Social Security [1998] AATA 841
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478
Roberts and Secretary, Department of Family and Community Services [2003] AATA 269
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
Zizza v Federal Commissioner of Taxation (1995) 55 ALD 451
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
25 July 2022
INTRODUCTION
Mr Payne's substantive application seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1), made on 19 January 2021 (Exhibit R1, para 1). At that time, the AAT1 affirmed the decision made by an Authorised Review Officer (the ARO) of Services Australia, dated 1 October 2020, to reject Mr Payne's claim for disability support pension (DSP), lodged on 20 July 2020. Mr Payne has lodged an application for an order extending the time in which his application for review may be lodged and the Respondent opposes that application.
The extension of time application was heard in an interlocutory hearing on 23 June 2022, conducted by video conference. Mr Payne was self-represented and gave evidence on affirmation. Ms Sharon Chiu of Services Australia represented the Respondent.
At the conclusion of the interlocutory hearing, the Tribunal gave oral reasons for its decision to refuse Mr Payne’s application for an extension of time. Mr Payne subsequently requested a written statement of those reasons on 28 June 2022. The written reasons which follow are distilled from the edited transcript of the oral reasons given on 23 June 2022.
BACKGROUND
On 20 July 2020, Mr Payne lodged his claim for DSP (Exhibit R1, para 6).
On 5 August 2020, Services Australia rejected the claim on the basis that Mr Payne had not actively participated in a program of support (Exhibit R1, para 7).
On 1 October 2020, the ARO affirmed the decision of Services Australia (Exhibit R1, Annexure A). Mr Payne lodged an application for a review with the AAT1 on 19 October 2020, and on 19 January 2021, the AAT1 affirmed the ARO decision (Exhibit R1, Annexure B).
On 1 April 2022, Mr Payne lodged an application for a review of the AAT1 decision with this Tribunal and his application contained an application for an extension of time (Exhibit R1, Annexure C).
ISSUE
The Tribunal in this matter must decide whether it is reasonable in all of the circumstances to grant Mr Payne an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
LEGISLATIVE FRAMEWORK
The legislation and policy governing this substantive application are contained in the Social Security Act 1991 (Cth), the Social Security (Administration) Act 1999 (Cth), and the Guide to the Social Security Law.
Under s 29(2) of the AAT Act, an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) of the AAT Act permits the Tribunal to extend the time for making an application to the Tribunal if “the Tribunal is satisfied that it is reasonable in all circumstances to do it.”
The Tribunal has a broad discretionary power to grant an extension of time for making an application for the review of a decision, and it has been customary for the Tribunal in determining extension of time applications to be guided by the principles enunciated by the Federal Court in the case of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 7 ALD 315 (Hunter Valley).
In Hunter Valley, Wilcox J pointed out that the prescribed period of 28 days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside of the period would not be entertained. Consideration is also to be given to whether the applicant rested on his or her rights; whether any prejudice would be caused to the respondent or more widely to the general public should an extension of time be granted; whether it would be fair as between the applicant and other persons in a like position for an extension of time be granted; and consideration should also be given to the merits of the substantive application.
Further authorities also guide the Tribunal's considerations. In the matter of Zizza v Federal Commissioner of Taxation (1995) 55 ALD 451, Katz J said that in determining the question of an extension of time, the Tribunal should weigh together all the relevant factors. In another case, Brown v Commissioner of Taxation (1999) 42 ATR 118, Hill J stated that the Tribunal should be guided by what the justice of the case requires.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal had the following material before it:
·Applicant's submissions dated 11 April 2022 (Exhibit A1);
·Secretary's Outline of Submissions dated 27 April 2022, including Annexures A-H (Exhibit R1); and
·Applicant’s oral evidence.
CONSIDERATION
In the present matter, the Respondent contends that Mr Payne’s application for review of the AAT1 decision is late and that it is not reasonable in the circumstances to grant Mr Payne an extension of time (Exhibit R1, para 17), and contends that the factors for consideration in this matter include length of delay; awareness of appeal rights; the explanation for the delay; prejudice, and wider prejudice to the general public; prospects of success; and alternative avenues of relief (Exhibit R1, para 16).
The Tribunal now turns to its consideration of relevant factors.
The length of delay
The length of delay will be a relevant consideration and in Roberts and Secretary, Department of Family and Community Services [2003] AATA 269 at [16], the Tribunal noted that “[t]he brevity of the extension sought does not, however, lead automatically to an order extending the time….” In the present matter, the AAT1 decision was made on 19 January 2021 and a letter dated 20 January 2021 enclosing the AAT1 decision was emailed to Mr Payne at his provided email address the same day (Exhibit R1, Annexure B). It is the same email address as listed on his application for a review, dated 1 April 2022. Accordingly, the 28 day time limit to lodge an appeal with the Tribunal expired on 17 February 2021.
The application for a review of the AAT1 decision was lodged on 1 April 2022, which is 408 days after the 28 day period expired. In the hearing, Mr Payne told the Tribunal that after receipt of the 20 January 2021 advice, it was three or four months before he took any action. A delay of 408 days is significant, particularly when considering the public interest in the efficient conduct of merits review processes, such that timely decisions can be made and acted upon with finality.
Looking at this factor alone, the Tribunal finds that this delay weighs against the exercise of the discretion to grant an extension of time.
The Awareness of Appeal Rights and Explanation of the Delay
The case of Comcare v A’hearn (1993) 45 FCR 441 informs the Tribunal that it is to be expected that an applicant applying for an extension of time would normally provide an acceptable explanation for the delay. That said, the Tribunal also notes the decision of the Tribunal in the matter of McKenzie and Secretary, Department of Social Security [1998] AATA 841, which states at [25]:
…there is no precondition that there must be an acceptable explanation of the delay before an application for the extension of time can be successful. While there is no pre-condition it is, however, to be expected that such an explanation would normally be given as a relevant matter to be considered (Comcare v A’Hearn [1993] FCA 498; (1993) 119 ALR 85 at 88 per Black CJ, Gray and Burchett JJ).
On the application for a review of decision form, Mr Payne outlined his reason for seeking an extension of time as follows (Exhibit R1, Annexure C/11):
Not satisfied a proper review was completed as there are many deficiencies in the review result, including failing to show any attempts made to investigate the main thrust of the complaint. I was not informed of the second avenue of appeal after my first and was simply referred to the Commonwealth Ombudsman. That office is now also subject to further complain as is yours to the Minister of Government Services and now the Office of the Prime Minister. The minister chose to simply give notice of my complaint back to Services Australia, those subject to my complaint, who then called me to discuss matters and request me to apply again? The Minister's office did not contact me at all and this in itself now gives basis for further complaint. As a result of the phone call with Services Australia I was able to have their staff member, on tape, admit my complaint regarding unqualified (not medically trained to required standard if at all) was correct. They also advised me of the “second level of appeal”. This contradicted the review result.
The letter dated 20 January 2021 notifying Mr Payne of the AAT1 decision, contains the following (Exhibit R1, Annexure B; see para 17 above):
You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on 1800 228 333.
There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT's decision).
This letter clearly states that Mr Payne may apply to the Tribunal for review and that there is a 28 day time limit for making an application for review. In light of this clear appeal advice, the Tribunal considers that Mr Payne's contention “I was not informed of the second avenue of appeal after my first, and was simply referred to the Commonwealth Ombudsman” is not a satisfactory explanation for the significant delay of 408 days, and would not be a fair and equitable reason to depart from the prescribed period.
Therefore, this factor weighs against granting an extension of time.
The Merits of the Substantive Application
The Tribunal made clear during the hearing that it is not necessary or appropriate for the Tribunal to conduct a merits review of the substantive application in these interlocutory proceedings. However, it is appropriate that the Tribunal consider the merits of the substantive application as part of the process of determining whether an extension of time should be granted. It may be the stronger the apparent merits of the substantive application, the more likely that an extension of time would be appropriate.
The Tribunal has regard to the relevant statement by Von Doussa J in the matter of Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at [122] to the effect:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all of the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.
The Respondent also notes relevantly, the view expressed by Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62], and upheld by the Full Court in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospects of success, given the additional resource demands it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court (Exhibit R1, para 36). The Respondent contends, and the Tribunal agrees, this should be a similar consideration in the context of merits review before the Tribunal.
In order for Mr Payne's substantive claim to succeed, he must be qualified for DSP pursuant to s 94 of the Social Security Act 1991 (Cth) in the period 20 July 2020 to 18 October 2020 (the Qualification Period) (Exhibit R1, para 37). This would require consideration of whether during that period, Mr Payne had any physical, intellectual or psychiatric impairments; and conditions that are fully diagnosed, treated, and stabilised, causing impairments which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and a continuing inability to work. If Mr Payne does not accrue 20 points or more on any single Impairment Table but 20 points or more on more than one Impairment Table, than he must have actively participated in a program of support in the three years prior to him claiming DSP.
At the outset, the Tribunal has regard to Mr Payne’s expansive written submission in support of his application for second review including his perceptions of errors, anomalies and unprofessional conduct (Exhibit A1). The Tribunal notes that Mr Payne has engaged with “SA, Commonwealth Ombudsman, Minister for Government Services and the Prime Minister’s Office” with respect to his DSP claim, however these engagements are outside the Tribunal’s jurisdiction and are not included in the current consideration of the prospects of success of the substantive application.
At the outset, in considering this factor, the Tribunal reiterates the importance of the Qualification Period and the principles that medical reports that come into being after the Qualification Period will only be relevant to the extent that they refer to the claimant's condition during the Qualification Period, and that should circumstances have changed subsequent to the Qualification Period, a fresh DSP claim may be appropriate.
The Tribunal notes the strong views put by Mr Payne in his written submission (Exhibit A1, paras 7-9) and before the Tribunal with respect to the qualifications of the job capacity assessment assessors (JCA), together with the authority (Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642) cited by Ms Chiu to the effect:
As JCA assessors have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person's work capacity, their assessment should be preferred by the tribunal.
The Tribunal considers that Mr Payne's views, although perhaps understandable, do not diminish the value of the JCA report dated 4 August 2020 (Exhibit R1, Annexure G) and the previous decision makers’ regard to it. Further in this consideration, the Tribunal notes the consistency in the independent findings of the JCA accessors, the ARO on 1 October 2020, the AAT1 on 19 January 2021 and the detailed submissions made by the Respondent in Exhibit R1 with respect to Mr Payne's conditions and the impairments arising from them.
Finally, in this consideration, the Tribunal notes the AAT1 finding and the Respondent's contention at paragraph [50] of Exhibit R1 that Mr Payne did not participate in a program of support in the three years prior to lodging his claim for DSP. Mr Payne did not dispute this situation during the hearing and there was no evidence before the Tribunal to counter that finding and contention.
Having carefully considered the available evidence and satisfied the requirement to “gauge the apparent merit” as explained by Deputy President Hack at [30] in Hazelwood v Telstra Corporation [2012] AATA 901, the Tribunal considers that the prospects of a future Tribunal making a different decision with respect to Mr Payne’s substantive application to be poor. Consideration of this factor, therefore, weighs against the granting of an extension of time.
Prejudice
The Respondent's submission accepts that the Respondent would not suffer prejudices if an extension of time were to be granted, save the cost of defending an application, for which Mr Payne has limited prospects of success (Exhibit R1, para 30). However, the Respondent also contends that Mr Payne has not provided convincing reasons and his prospects of success are poor, and that accordingly, there is a wider prejudice to the general public to disrupt established practices of having timelines for administrative review (Exhibit R1, 34). Relevantly, the Respondent notes the Tribunal's comments in the matter of FVMZ v Child Support Register [2018] AATA 4200, that to make an exception without the benefit of convincing reasons would overall prejudice the system, requiring administrative actions to be appealed within the appropriate time (Exhibit R1, para 33).
There is nothing before the Tribunal to dissuade it from the view that it is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to the process, and that the public interest and the interest of those applicants who comply with the prescribed time-limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur. The Tribunal's broad consideration of this factor of prejudice weighs against the granting of an extension of time.
Alternative Avenues of Relief
The Respondent accepts that a refusal of an extension of time would shut out Mr Payne from merits review of the AAT1 decision, however, contends that it is open to Mr Payne to submit a fresh claim for DSP at any time (Exhibit R1, paras 56, 58).
Should it be the case that Mr Payne's conditions and their impact have worsened since the lodgement of his current DSP claim on 20 July 2020, and he told the Tribunal during the hearing that they had, then it has been, and it remains open for him to lodge a fresh DSP claim. In his written submission, Mr Payne stated “[t]he alternate avenue of relief is not one which most applicants ought to be forced to undertake because of additional cost and appears unnecessary” (Exhibit A1/5).
In drawing the brief consideration of this factor to a conclusion, the Tribunal is conscious of Mr Payne's age and the amount of time that would be available to him to benefit from a DSP, however, concludes that these circumstances do not make it reasonable that an extension of time be granted.
CONCLUSION
Further to his comments in Exhibit A1 (see para 29 above), during the hearing Mr Payne commented on what he saw as errors and shortcomings in the management of his DSP claim. Mr Payne thought that Services Australia treated him in a dismissive manner and that his prior service in the Police Force was not respected. To the extent possible, the Tribunal assured Mr Payne of the independent nature of its review and its appreciation and regard for his service to the community.
The Tribunal has considered the factors: length of delay; awareness of appeal rights and the explanation for the delay; the prospects of success of this substantive application; prejudice; and alternative avenues of relief; none of which lay in favour of granting an extension of time. Having a regard to all of the evidence and the circumstances, the Tribunal concludes that the justice of this particular case does not warrant the exercise of the Tribunal's discretion to extend the time for making an application for review.
DECISION
For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, Mr Payne's application for an extension of time to lodge an application for review of the decision of the AAT1 dated 19 January 2021.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member
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Associate
Dated: 25 July 2022
Date of hearing: 23 June 2022 Applicant: Self-Represented Counsel for the Respondent: Sharon Chiu Solicitors for the Respondent: Services Australia
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