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

[2020] AATA 3781

Potterton and Secretary, Department of Social Services (Social services second review) [2020] AATA 3781 (28 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/4798

Re:Ian Potterton

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 September 2020

Place:Sydney

The extension of time application is refused.

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Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – disability support pension – principles to be applied – explanation for delay – merits of substantive matter – whether extension of time reasonable in all the circumstances – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) s 94

CASES

Comcare v A’Hearn (1993) FCA 498; 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A Poljak

28 September 2020

1. Mr Potterton, the applicant, seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) made on 23 January 2019, which affirmed a decision to reject the applicant’s claim for the disability support pension (DSP) lodged on 6 February 2017 (decision and substantive matter).

2. In its decision, the SSCSD found that none of the applicant’s claimed conditions were fully diagnosed, treated and stabilised. In particular:

   (a)the claimed condition of sensorimotor peripheral neuropathy in both legs was found to be fully diagnosed but not fully treated and stabilised. This was on the basis that the applicant was an inpatient in a rehabilitation program at the time of claim for DSP; and

   (b)the applicant’s post traumatic stress disorder (PTSD) was found not to be fully diagnosed, treated and stabilised as there was no confirmation of a diagnosis from an appropriately qualified clinical psychologist or psychiatrist.

3. These interlocutory proceedings concern an application for an extension of time (EOT application) with respect to the substantive matter, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The respondent opposes the extension of time sought.

   PRINCIPLES TO BE APPLIED

4. Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to paragraph 29(2)(a) of the AAT Act. The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to subsection 29(7) of the AAT Act.

5. The principles to be applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities, although “not in any exhaustive manner”:

   (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

   (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

   (e)the merits of the substantial application are properly to be taken into account;

   (f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.

6. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) FCA 498; 45 FCR 441. All the circumstances of the case must be considered, the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

7. The principles relevant in these interlocutory proceedings are the reason for delay and the merits of the substantive matter.

   DELAY

8. The applicant claims that he received the decision on 6 February 2019. The 28-day time limit to lodge an application for review with the Tribunal therefore expired on 6 March 2019. The applicant’s EOT application was not lodged until 10 August 2020, making it approximately 1 year, 5 months and 4 days out of time (delay period). This is a significant delay and weighs heavily in favour of refusing the EOT application.

9. The applicant advised that the reason for the delay in applying for review of the decision was because of his conditions. He claims that he was unable to locate Dr Miller to obtain a medical report and this also contributed to the delay in filing an application for review.

10. The respondent contends that the applicant’s explanation for the delay is unsatisfactory because he maintained regular contact with Services Australia throughout the delay period and made a new claim for DSP (subsequent claim) on 4 October 2019. The applicant’s subsequent claim was ultimately granted.

11. I am not convinced that the explanation provided by the applicant, considering the significant length of the delay, is adequate. His claim that the delay was a result of his conditions is also greatly weakened by his ability to file a successful claim for DSP during the delay period.

    MERITS OF SUBSTANTIVE MATTER

12. The respondent contends that the applicant’s prospects of success in the substantive matter are poor. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of the application under review.

13. In order to qualify for DSP, the applicant must satisfy the qualification requirements in section 94 of the Social Security Act 1991 (Cth) (the Act). That is, he must establish that, during the 13 week qualification period, being 6 February 2017 – 8 May 2017, he had:

    (a) a physical, intellectual or psychiatric condition(s) (paragraph 94(1)(a) of the Act);

    (b)  condition(s) that were fully diagnosed, treated and stabilised that attracted 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) (paragraph 94(1)(b) of the Act); and

    (c) a continuing inability to work (CITW), which requires:

    (i)in circumstances where the applicant cannot establish that at least one of his impairments rated at least 20 points under a single Impairment Table (s 94(3B) of the Act), active participation in a program of support for at least 18 months in the 36 months ending immediately before the day on which he made his claim for DSP (paragraph 94(2)(aa) of the Act; subsections 7(1) and (2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination); and

    (ii)a work and training capacity of less than 15 hours per week within two years with intervention, taking into account the impairments arising from the applicant’s fully diagnosed, treated and stabilised conditions (paragraphs 94(2)(a), (b) and subsection 94(5) of the Act).

14. The respondent contends that none of the applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period such that impairment ratings under the Impairment Tables can be assigned.

15. It is accepted that the condition of sensorimotor peripheral neuropathy in both legs was fully diagnosed during the qualification period. However, on the available evidence, the respondent contends that it cannot be considered fully treated and stabilised. During the qualification period the applicant was receiving ongoing rehabilitation as an inpatient at Ryde Hospital and was not discharged until 12 June 2017; being outside of the qualification period. Once discharged, the applicant commenced treatment as an outpatient at the Pain Management and Research Centre at Royal North Shore Hospital for the purpose of increasing his mobility.

16. In these interlocutory proceedings, the applicant provided a current report of Dr Miller, neurologist, dated 14 July 2020. This recent report of Dr Miller further supports the respondent’s submission that during the qualification period his condition was not fully treated and stabilised. Dr Miller identifies improvements in the applicant’s condition since when he last saw him in 2017. He states:

    Diagnosis: He has severe axonal peripheral neuropathy of both lower limbs stemming from his nutritional and vascular problems in jail in Thailand in 2012 and 2013. He has improved on when I last saw him which was in Ryde Hospital a little over three years ago but still has severe neuropathy which severely limits his ability to ambulate…

    Prognosis: …He is probably somewhat better than when I saw him in 2017 but not as much better as I hoped, seeing as I predicted that he would eventually be able to walk…

    Further Comments: Even though there are likely psychological elements to his disability, I believe he is incapable of walking. This capacity would have been substantially present already when I first met him in 2017, though the areflexia has certainly progressed…

    [Emphasis added]

17. Whilst no significant functional improvement has occurred, I must consider the treatment that had taken place and was intended to take place at the time of claim and in the 13 weeks thereafter. Although Mr Miller’s ultimate prognosis that the applicant would be able to walk again did not eventuate, the applicant has progressed and improved since that time. This further demonstrates that the applicant’s condition was not stabilised during the qualification period.

18. In regard to the applicant’s claimed condition of PTSD, anxiety and depression, the conditions cannot be assessed as fully diagnosed, treated and stabilised during the qualification period as there is no evidence of a diagnosis by a clinical psychologist or psychiatrist. This is a mandatory diagnostic requirement for the purposes of Table 5 in the Impairment Tables.

19. At the interlocutory hearing the applicant advised that during the qualification period he was seeing a psychologist and that he believes she is a clinical psychologist. He also added that he may be able to locate the psychologist and obtain a report should his EOT application be granted.

20. While it is also open for the applicant to obtain new evidence prior to review in the substantive proceedings, effectively giving their case more prospects, in this matter I doubt it will be of little assistance. There is no evidence of functional impairment in relation to the applicant’s mental health condition.

21. For these reasons I find that the applicant’s prospects of success in the substantive proceedings are very low. This weighs heavily against granting the EOT application.

    DECISION

22. As discussed in these reasons, the applicant applied for review of the substantive matter out of time. The delay was significant, and I was not convinced that the applicant’s excuse for the delay was adequate. The applicant’s prospects in the substantive matter are also very poor. As such I do not find it appropriate to exercise my discretion to extend the time for making an application for review.

23. The EOT application is refused.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 28 September 2020

Date of hearing:	18 September 2020
Applicant:	In person
Solicitors for the Respondent:	Services Australia