Petroula Matias and Secretary, Department of Social Security

[2013] AATA 955

[2013] AATA 955

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6007
Re	Petroula Matias
APPLICANT
And	Secretary, Department of Social Security
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	18 December 2013
Date of written reasons	21 January 2014
Place	Melbourne

The Tribunal refuses the application for an extension of time.

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

G. D. Friedman, Senior Member

PRACTICE AND PROCEDURE – extension of time to lodge application for review – application refused

Administrative Appeals Tribunal Act 1975 s 29(7), 40(1)(b)

Social Security Act 1991 s 94(1)(c), 94(2)(aa), 94(3B)

Social Security (Administration) Act 1999 s 68

Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

G. D. Friedman, Senior Member

21 January 2014

1. Ms Matias lodged an application for disability support pension on 12 July 2012. On 24 July 2012 her claim was rejected. On 4 April 2013 a Centrelink authorised review officer (ARO) affirmed the decision to reject Ms Matias’ claim for disability support pension.

2. On 27 September 2013 the Social Security Appeals Tribunal (SSAT) varied the earlier decision but affirmed the ARO’s rejection of the applicant’s claim, as she had not satisfied the program of support requirements under the Social Security Act 1991 (the Act).

3. On 25 November 2013 Ms Matias applied to this Tribunal for review of the SSAT decision and on the same day lodged an application for an extension of time.

   ISSUE

4. The issue before the Tribunal is whether an extension of time within which to lodge an application for review should be granted.

   RELEVANT LEGISLATION AND PRINCIPLES

5. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT 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.

6. In determining applications for extensions of time, the Tribunal has been guided by the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:

   …The ‘prescribed period’ of 28 days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained… It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.

7. His Honour set out another five principles:

   ·Whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;

   ·Any prejudice to the respondent or any other party;

   ·The absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;

   ·The merits of the substantive application are to be properly taken into account;

   ·Considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.

8. The legislation under which the decision under review was made is the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

9. Section 94 of the Act details the qualification for disability support pension:

   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person's impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies:

   (i) the person has a continuing inability to work;

   ….

   CONSIDERATION

   EXPLANATION FOR THE DELAY

10. The Tribunal made several attempts to contact Ms Matias without success at the commencement of the hearing, in addition to a reminder SMS text message being sent by the Tribunal the day prior to the hearing. The Tribunal proceeded in her absence in accordance with s 40(1)(b) of the AAT Act.

11. In Ms Matias’ extension of time application she stated that she had been unwell and attending medical appointments, and that this prevented her from lodging her application within time.

12. Ms Matias did not provide the Tribunal with any documents demonstrating her inability to lodge an application due to medical reasons. The Tribunal is not satisfied that Ms Matias has a reasonable excuse for being out of time and finds that this factor weighs against granting an extension of time.

    HAS THE APPLICANT RESTED ON HER RIGHTS

13. The SSAT made its decision on 27 September 2013 and despatched it to Ms Matias on 10 October 2013. Ms Matias has not attempted to notify the respondent or the Tribunal of her intention to seek review prior to her application to the Tribunal on 25 November 2013. The Tribunal finds that Ms Matias has rested on her rights and this factor weighs against granting an extension of time.

    PREJUDICE TO OTHER PARTIES

14. There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.

    WIDER PUBLIC CONSIDERATIONS

15. Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. The Tribunal finds that this factor weighs against granting an extension of time.

    THE MERITS OF THE SUBSTANTIVE APPLICATION

16. Section 94 of the Act sets out the relevant qualification requirements for disability support pension:

    Qualification for disability support pension

    (1) A person is qualified for disability support pension if:

    (a) the person has a physical, intellectual or psychiatric impairment; and

    (b) the person's impairment is of 20 points or more under the Impairment Tables; and

    (c) one of the following applies:

    (i) the person has a continuing inability to work;

    ….

17. On 24 July 2012 a Centrelink Job Capacity Assessment Report considered a number of the applicant’s claimed conditions including neck/spinal disorder, speech impediment, previous cancer/lung condition, shoulder disorder, depression/anxiety and osteoporosis, finding that only Ms Matias’ osteoporosis condition was fully diagnosed, treated and stabilised and assigning 5 points for the condition under Impairment Table 4. It also assessed her work capacity as being 15-22 hours per week.

18. The SSAT varied the ARO decision, finding Ms Matias’ speech impediment, lung condition and depression/anxiety to be fully diagnosed, treated and stabilised, and assigning 10 points (Impairment Table 8), 5 points (Impairment Table 1) and 5 points (Impairment Table 5) respectively. The respondent now accepts that Ms Matias suffers from impairments amounting to a combined 20 points under the Impairment Tables, affecting her ability to function.

19. Under s 94(1)(c)(i) of the Act Ms Matias must have a continuing inability to work in order to qualify for the disability support pension. As she does not have a severe impairment as defined by s 94(3B) of the Act, requiring 20 points under a single Impairment Table, she must participate in a program of support as defined by s 94(2)(aa) of the Act.

20. Documents provided to the Tribunal indicate Ms Matias’ first appointment with a program of support provider was on 4 April 2013. The Tribunal has to determine Ms Matias’ qualification for disability support pension in the period 29 June 2012 to 28 September 2012. Therefore Ms Matias has not actively participated in a program of support as required by the Act and therefore s 94(2)(aa) of the Act has not been satisfied. Therefore she cannot satisfy s 91(1)(c) of the Act.

21. The Tribunal finds that there is little prospect of success in the substantive application, so this factor weighs against granting an extension of time.

    CONSIDERATIONS OF FAIRNESS

22. There is nothing unique about Ms Matias’ situation, or in the reasons she put forward to explain her delay in seeking review by the Tribunal, that would make her situation markedly different to other applicants in similar situations. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.

    CONCLUSION

23. The Tribunal finds that the two significant factors against granting Ms Matias an extension of time are the lack of an acceptable explanation for the delay and the little prospect of success in her substantive application. In considering all of the relevant factors the Tribunal is not satisfied that is reasonable in all the circumstances to exercise the discretion to grant an extension of time.

    DECISION

24. The Tribunal refuses the application for an extension of time.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

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

Associate

Dated 21 January 2014

Date of hearing

Date of written reasons

18 December 2013

21 January 2014

Applicant

Self-represented

Advocate for the Respondent

Mr J Henderson

Solicitors for the Respondent

Department of Human Services Legal Division