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

[2020] AATA 435

Pittard and Secretary, Department of Social Services (Social services second review) [2020] AATA 435 (11 March 2020)

Division:GENERAL DIVISION

File Number:          2020/0056

Re:Bernice Pittard

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:11 March 2020

Place:Melbourne

The Tribunal refuses Ms Bernice Pittard’s application to be granted an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to lodge an application for review.

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

Member K. Parker

Catchwords

EXTENSION OF TIME APPLICATION – whether reasonable in all the circumstances to grant an extension of time – application lodged more than six years out of time – applicant claims that reviewable decision not sent to her and not advised of 28-day time limit – explanation for the delay – merits of the substantive application – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

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

Secondary Materials

National Archives of Australia – Records Authority – Social Security Appeals Tribunal Job no 2006/00118635, June 2008

REASONS FOR DECISION

Member K. Parker

11 March 2020

BACKGROUND

1. On 6 January 2020, Ms Bernice Pittard made an application to the General Division of the Administrative Appeals Tribunal (this Tribunal) for an extension of time to lodge an application for review of a decision of the former Social Security Appeals Tribunal (SSAT) made on 12 April 2013. 

2. The SSAT decision relates to a debt in the amount of $8,771.43 raised by the Commonwealth against Ms Pittard arising from a reconsideration decision made by an authorised review officer (ARO) of Centrelink on 6 February 2013 (referred to as the Debt).  The ARO found that overpayments of carer allowance had been made to Ms Pittard in the total sum of $9,211.43, from which the ARO was satisfied that $440 should be waived on account of a sole administrative error made on the part of the Commonwealth for the initial part of the period, during which those overpayments were made.

3. The SSAT decision also related to a claim by Ms Pittard to receive the disability support pension (DSP).  Ms Pittard told this Tribunal at the hearing that she did not seek a review of the decision as it related to her claim for DSP.  Ms Pittard told the Tribunal she was presently employed and based on the history she gave; Ms Pittard has been working on a regular basis for many years.

4. The SSAT decided that the Debt had been properly raised against Ms Pittard under the Social Security Act 1991 (Cth) (Act).[1]  The SSAT was satisfied that it was appropriate for the ARO to have waived $440 of the original debt on account of a sole administrative error on the part of the Commonwealth for the initial part of the overpayment period.[2]  However, the SSAT found there were no “special circumstances” in Ms Pittard’s case sufficient to justify waiving recovery of the remainder of the debt under s 1237AAD of the Act.[3] Finally, the SSAT noted that Ms Pittard was repaying the debt by way of $15 fortnightly instalments and that it was not appropriate to write-off the debt under s 1236 of the Act. It was for these reasons that the SSAT affirmed the decision made by Centrelink to raise and recover the Debt from her.

   [1] Refer paragraphs [18] to [20] of the SSAT’s Reasons for Decision.

   [2] Refer paragraph [24] of the SSAT’s Reasons for Decision.

   [3] Refer paragraph [36] of the SSAT’s Reasons for Decision.

5. On Ms Pittard’s application form to this Tribunal, Ms Pittard stated that the reason she had requested an extension of time to lodge the review application was:

   I never received a letter to apply for a second decision.  Plus i wasn’t in a state of mind at the time Centrelink never listened to me. 

6. At the hearing, Ms Pittard stated additional reasons for the delay in lodging her application for review with this Tribunal, namely:

   (a)she had been busy with her life (namely, working and looking after her children);

   (b)she had suffered from anxiety and depression; and

   (c)she knew the decision was wrong but she thought she would not be successful.

7. The hearing of the extension of time application took place on three days as a result of two short adjournments that took place for procedural reasons, including allowing for a search to be undertaken by this Tribunal of the SSAT’s computer system.[4] 

   [4] Now repurposed for use in the Social Services and Child Support Division of the Administrative Appeals Tribunal.

8. On Ms Pittard’s application form to this Tribunal, she stated that the reason she considered the decision under review was wrong was:

   The decision was totally wrong i rang Centrelink alot(sic) of times when the kids were taken out of my care.  I rang complaints line too.  Even apparently dhhs rang to confirm/organise it to stop.

9. The Secretary opposed Ms Pittard’s application for an extension of time and lodged the following documents:

   (a)on 15 January 2020: “Secretary’s Opposition to an extension of time application” (Secretary’s Submissions); and

   (b)on 13 February 2020: “Secretary’s Further Submissions in Opposition to an extension of time application” (Secretary’s Further Submissions) with four documentary attachments (Attachments 1 to 4).

   CONSIDERATION

10. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides the Tribunal with discretion to extend the 28-day time limit for an applicant to lodge an application for review of a decision, where the extension of time application has been made by the applicant in writing, which it has in this case; and if the Tribunal is satisfied that “it is reasonable in all the circumstances to do so”.  As a guiding principle, the time limit cannot be ignored unless there is a good reason to do so.  Special circumstances need not be shown, but the decision-making body must not grant the extension unless it is positively satisfied it is proper to do so.  The application for the extension of time must show an acceptable explanation for the delay and show that it is fair and equitable in the circumstances to extend the time – see the Federal Court of Australia decision of Hunter Valley Developments Pty Ltd v Cohen, Minister For Home Affairs and Environment (1984) 3 FCR 344 (Hunter).

11. This Tribunal advised Ms Pittard on the first day of the extension of time hearing that it would take into account the following factors (see headings in bold below) as identified in Hunter, in deciding whether to grant an extension of time in this case.  The Tribunal also encouraged Ms Pittard to arrange to obtain medical evidence from her treating doctor between the first and second days of the hearing, to verify the effects of any anxiety and depression she claimed to have suffered during the period of delay.  On the second day of hearing, Ms Pittard told the Tribunal that she had not been able to obtain any medical evidence because she had tried to get in to see her doctor but he was “fully booked out”.

    Length of the delay

12. It was not in dispute between the parties that Ms Pittard lodged her application for review by this Tribunal over six years after the 28-day statutory time limit had expired.  This is an extremely long delay by any measure. 

    Explanation for the delay

13. The Tribunal notes Ms Pittard’s stated reasons for the delay as set out in paragraphs [5] and [6] in these Reasons for Decision.  One of those reasons was that she claimed not to have received the SSAT decision or any letter by the SSAT advising her as to her right to seek a review, and the time limit within which she was required to do so.

14. Following an adjournment of the hearing, the Tribunal, through its staff, accessed Ms Pittard’s file on the SSAT’s system.  A screenshot was taken of the computer record maintained for her SSAT file (2013/M056294).  It records that documents were despatched from the SSAT to Ms Pittard and the relevant agency on 16 April 2013.  This screenshot was provided to the parties before the second day of the hearing. 

15. One such document provided to Ms Pittard and the relevant agency was the SSAT decision under review.  This decision was able to be downloaded from the system and included in it a reference to a “posted” date of “16 April 2013”. 

16. The SSAT computer screenshot also recorded that an additional electronic document was sent to Ms Pittard.  This document, which is the SSAT’s pro-forma covering letter, was not able to be downloaded from the system because such correspondence is deleted from the SSAT files after a period of 13 months.  This practice is consistent with the requirements for the retention and destruction of records for the function of Tribunal Management under the provisions of the “National Archives of Australia – Records Authority – Social Security Appeals Tribunal Job no 2006/00118635, June 2008”.[5] Pursuant to s 177 of the Social Security (Administration) Act 1999 as in force at the time, the pro-forma letter used by the SSAT contained information setting out that any application for review by this Tribunal must be made within 28 days pursuant to s 29(2) of the AAT Act.

    [5] Refer document Class #15966 of the Records Authority.

17. The computer screenshot also indicated that the SSAT’s decision had been despatched to Ms Pittard’s address at “PO Box 175, Merbein, VIC, 3505” on 16 April 2013.  Ms Pittard said at the hearing that she had been living in Merbein at this date, but she had no knowledge of this particular post office box number (i.e. number 175).  Ms Pittard said she had used two alternative post office box numbers at the Merbein post office to collect her mail in the past, but neither of them were number 175. 

18. The Tribunal has taken into account Attachment 2 of the Secretary’s Further Submissions, which is a printout from Centrelink’s computer system recording that “PO Box 175, Merbein” had been entered as Ms Pittard’s address for three separate periods commencing on 27 June 2002 (next entry on 12 December 2008); 18 November 2009 (next entry on 22 February 2011) and 24 June 2011 (next entry on 1 January 2016).  Based on that information, the Tribunal is satisfied on the balance of probabilities that Ms Pittard provided the address of “PO Box 175, Merbein” to Centrelink and received correspondence from Centrelink during those periods in relation to matters concerning her social security benefits under the Act. The Tribunal does not accept Ms Pittard’s evidence that she had no knowledge of PO Box 175, Merbein. The Tribunal finds on the balance of probabilities, that this was the correct postal address for Ms Pittard during those periods.

19. Specifically, the Tribunal is satisfied that the SSAT decision and pro-forma covering letter, referring to the 28-day time limit for lodging an application for review to this Tribunal, was posted to Ms Pittard at the correct postal address of PO Box 175, Merbein on 16 April 2013.  On this basis, the Tribunal finds that a copy of the SSAT decision was given to Ms Pittard at the latest by the end of April 2013 (to allow a generous period of time for the delivery of those documents by ordinary post and taking into account the presumptions of postal service contained in the Evidence Act 1995) and consequently, that the time limit for her to lodge her application for review had expired by the end of May 2013.  Ms Pittard lodged her application for review in January 2020.  Accordingly, the Tribunal finds that Ms Pittard’s application was lodged well over six years out of time.

20. The Tribunal has found that the SSAT decision and pro-forma covering letter was sent to Ms Pittard by the end of April 2013.  Ms Pittard had an opportunity in May 2013, had she turned her attention to this correspondence at the relevant time, to pursue a review of the SSAT decision.  If her personal circumstances had prevented her from lodging an application immediately upon receiving the SSAT decision, the Tribunal considers that she could have done so in the months to follow before the end of 2013.  Ms Pittard did not attend to this until after more than six years had passed.  There was no medical evidence provided by Ms Pittard to verify the nature or effect of any mental health condition that she may have suffered during part or all of the period from mid-April 2013 to January 2020.  Instead, Ms Pittard told the Tribunal that she has been working on a regular basis (albeit part-time hours) for many years leading up to the present time.  Based on that information, the Tribunal is satisfied on the balance of probabilities that Ms Pittard was not impacted by mental health issues to an extent that prevented her from lodging an application for review of the SSAT decision within time or indeed, in the months to follow that decision leading up to the end of 2013.  Finally, the Tribunal does not consider Ms Pittard’s claim that she was “busy with life” working and looking after her children, as being an acceptable explanation for any delay in lodging her application.  Many other applicants seeking review of decisions made about debts arising on account of overpayment of carer allowance may be in a similar situation.

21. For the reasons set out in the above paragraphs, the Tribunal finds Ms Pittard did not have an acceptable explanation for the more than six-year delay in lodging her application for review with this Tribunal, and this factor weighs against the Tribunal granting an extension of time.

    Merits of Ms Pittard’s case

22. In the context of an extension of time application, the Tribunal’s task is to form a general impression as to the merits of Ms Pittard’s case based on the information presented to the Tribunal.  Ms Pittard has confirmed she only seeks review of the decision in relation to the Debt, so the Tribunal’s consideration will be confined to the issues concerning the Debt and whether there are potential grounds to waive the Debt or write it off.

23. The Tribunal has taken into account the submissions made by the Secretary and Ms Pittard.   Ms Pittard disputes that the Debt should be recovered from her on the basis that she had told Centrelink a number of times that the children were not in her care.   There was no evidence put forward or referred to by Ms Pittard which would form a basis for establishing that her children were not in her care at the time she received the carer allowance.  On this basis, it would seem that Ms Pittard would have little or no chance in satisfying this Tribunal on review that the Debt was not properly raised.  The issue in this case was focussed on whether the Debt or part of it should be waived or written off. 

24. Based on Ms Pittard’s evidence about her work history for many years until the present time, it would seem unlikely that Ms Pittard would be able to establish any basis upon which the Debt should be written off.

25. In terms of waiver of the Debt, the Tribunal notes that the evidence seems to bear out that when the children first left Ms Pittard’s care, she did in fact inform Centrelink about that change in circumstance.  The ARO also agreed to waive part of the debt for the initial period based on acceptance that there had been an error in not acting upon Ms Pittard’s advice about the change in circumstance.  However, there is insufficient evidence referred to by Ms Pittard or put before the Tribunal which might sufficiently explain why Ms Pittard had:

    (a)not responded to further correspondence received from Centrelink recording that she had continued to be paid a carers allowance at a time when the children were not in her care or taken further steps to correct this with Centrelink; or

    (b)had not done so when those payments were subsequently received by her into her bank account. 

26. The Tribunal considers that Ms Pittard will face significant challenges in establishing a basis upon which those payments should be waived under the Act.

27. The impression formed by the Tribunal is that Ms Pittard has poor prospects of being able to establish that the Debt should be waived or written off, if this case were allowed to proceed to a substantive review.  Accordingly, this factor weighs against the Tribunal granting Ms Pittard’s extension of time application.

    Resting on her rights

28. The Tribunal acknowledges that over the last six or so years, Ms Pittard may have been busy with life given her circumstances.  However, it is difficult to reconcile why Ms Pittard made no attempt over that time to follow up what decision had been made in relation to her SSAT application for which she participated in a substantive hearing. 

29. The Tribunal is satisfied, on balance, that at least to some degree Ms Pittard has rested on her rights over the last six or so years.  The Tribunal considers that this factor weighs against granting an extension of time to Ms Pittard to lodge an application for review.

    Prejudice to the respondent

30. The Secretary contended that she was prejudiced by the delay, particularly given the passage of time since the SSAT decision of 12 April 2013, with the “consequential, likely diminution of the memory of potential witnesses and increased difficultly investigating evidence”, and that she would also incur significant litigation costs defending an appeal with no merit. 

31. The Tribunal accepts that as a general proposition given the very lengthy delay in this case being more than six years, that the Secretary may experience challenges in being able to obtain the necessary documentary evidence in relation to this decision that it may seek to rely upon in a substantial review.  However, there were no particulars put forward to the Tribunal specific to this case. In the circumstances (i.e. in the absence of such particulars), the Tribunal has decided that this factor neither weighs for or against granting an extension of time.  

    Wider prejudice to the general public in terms of disruption to established practices

32. The Tribunal considers that the general public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty, if an extension of time to lodge an application is granted where the justice of the case does not permit that this should occur. 

33. In this case, the length of the delay was excessive.  There have been many cases decided by this Tribunal where the delay has been significantly shorter (in the order of years) than the delay in Ms Pittard’s case, where the Tribunal has refused to grant an extension of time to lodge an application for review.  This factor weighs against granting an extension of time in this case. 

    CONCLUSION

34. The Tribunal considers that the period of delay by Ms Pittard in lodging her application for review in this case (being over six years), is very significant and that her explanation for the delay is unacceptable.  The Tribunal considers that Ms Pittard has rested on her rights during this period of delay.  The Tribunal has formed an impression from the evidence presented to it that Mr Pittard’s prospects of success are poor were the Tribunal to allow the substantial review to proceed.  The Tribunal considers that granting an extension of time would result in wider prejudice to the general public in terms of disruption to established practices. 

35. The Tribunal is satisfied that it would not be a beneficial use of the time and resources of both parties to this application and of the Tribunal, to permit Ms Pittard’s case to proceed to a substantive hearing.   Accordingly, and upon a consideration of the factors referred to in the above paragraphs, the Tribunal is not satisfied that it is reasonable in all of the circumstances to grant an extension of time to Ms Pittard. 

36. Ms Pittard’s application for an extension of time to lodge an application for review is refused and she is not permitted to lodge her application for review on 6 January 2020 as she has sought to do. 

I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

Associate

Dated: 11 March 2020

Dates of hearing:	5, 14 and 17 February 2020
Applicant:	Self-represented by telephone
Advocate for the Respondent:	Tim De Uray
Deputy General Counsel Litigation & Information Release Branch Department of Human Services