Psomadellis and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1011
•1 May 2020
Psomadellis and Secretary, Department of Social Services (Social services second review) [2020] AATA 1011 (1 May 2020)
Division:GENERAL DIVISION
File Number: 2020/1518
Re:Bill Psomadellis
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:1 May 2020
Place:Sydney
The application for an extension of time is granted.
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Dr L Bygrave, Member
CATCHWORDS
EXTENSION OF TIME – principles to be applied – where applicant had not rested on his rights – where substantive application has merit – where some prejudice to the respondent and the general public if extension granted – where extension of time reasonable in all the circumstances – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Social Security Act 1991 (Cth) ss 94, 1218AAA
CASES
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
1 May 2020
On 13 March 2020, Mr Bill Psomadellis lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) on 19 September 2019 (the reviewable decision).
The reviewable decision affirmed a decision made by the Department of Human Services (Centrelink) to refuse Mr Psomadellis’ claim for unlimited portability of his disability support pension.
The Secretary opposes the extension of time sought.
The application was heard by the General Division of the Tribunal on 23 April 2020. Mr Psomadellis and the Secretary’s legal representative participated in the hearing by teleconference.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, 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 subsection 29(7) 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” [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and 349 as follows:
(a)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” and allowed 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;
(d)whether the respondent or the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application;
(f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.
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; (1993) 45 FCR 441.
All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.
REASONS FOR DELAY
The delay in Mr Psomadellis seeking a review of the decision by the SSCSD is more than four months outside the 28-day time limit.
In his written application for an extension of time, Mr Psomadellis provided the following explanation for his delay:
DUE TO MY CONDITION ITS IMPOSSIBLE TO DO ANYTHING ON TIME. IMPOSSIBLE FOR ME TO CONTROL. PLEASE ACCEPT MY LATE REPLY AS I DID IT AS SOON I COULD. I HOPE I HAVE ENOUGH INFORMATION NEEDED THAT WAS ASKED FOR BY CENTRELINK AND TOLD THEY COULD NOT ACCEPT IT BECAUSE IT WAS TOO LATE. THANK YOU. [replicated as in original]
Mr Psomadellis told the Tribunal that he received the reviewable decision in late September 2019 and was told by Centrelink staff that he required further medical evidence. He said that he collected further medical reports and received assistance from Legal Aid in the period from October 2019 to March 2020. He has provided the Tribunal with medical reports and letters dated February, September and October 2019, a brief letter from Legal Aid dated 21 November 2019 and handwritten statements. Mr Psomadellis explained to the Tribunal, both in his handwritten statements and his oral submissions, that he has severe depression and “loses track of time”. Mr Psomadellis’ mental health conditions are verified in medical reports from Dr Ashish Sinha (general practitioner) on 2 February 2019 and 22 October 2019, and Ms Kim Malone (clinical psychologist) dated 3 September 2019.
I agree with the Secretary’s submission that Mr Psomadellis was informed of his appeal rights when he received the reviewable decision and the length of delay weighs against granting an extension of time. However, Mr Psomadellis’ submissions show he did not “rest on his rights” but was seeking further supporting medical evidence. This process took Mr Psomadellis additional time due to his mental health conditions.
I find this principle weighs for Mr Psomadellis; however, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.
I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Mr Psomadellis’ application.
As the delay is more than four months, I am satisfied that there may be some prejudice to the Secretary and the general public if the extension of time is granted. This factor weighs against granting an extension of time to Mr Psomadellis.
MERITS OF SUBSTANTIVE MATTER
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
The substantive matter is whether, on the balance of the evidence before the Tribunal, Mr Psomadellis meets the qualification criteria for unlimited portability of his disability support pension.
RELEVANT LEGISLATION AND CONSIDERATION
Qualification for unlimited portability period for disability support pension
To qualify for unlimited portability period for his disability support pension, Mr Psomadellis must satisfy the criteria in section 1218AAA of the Social Security Act 1991 (Cth) (the Act), which requires him to show the following circumstances exist:
(a)he receives disability support pension; and
(b)he has a severe impairment that will exist for at least the next five years; and
(c)his severe impairment would prevent him from performing any work independently of a program of support within the next five years.
I note there is no statutory timeframe within which Mr Psomadellis must satisfy these criteria following his request for portability.
Issue 1 – Does Mr Psomadellis receive the disability support pension?
The Secretary’s submissions stated that Mr Psomadellis was granted the disability support pension from 8 August 2012. I am satisfied Mr Psomadellis meets the first criterion.
Issue 2 – Does Mr Psomadellis have a severe impairment that will exist for at least the next five years?
Rules for assigning impairment ratings
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).
The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.
An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: paragraph 6(4).
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred and whether treatment is still continuing or is planned in the near future: paragraph 6(5).
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).
Pursuant to subsection 94(3B) of the Act, a “severe impairment” is defined as an impairment assigned 20 points or more under the Impairment Tables.
Mr Psomadellis’ medical conditions
The Tribunal only has seen medical reports filed by Mr Psomadellis with the General Division and not the medical documents Mr Psomadellis submitted to Centrelink and/or the Social Services and Child Support Division of the Tribunal.
These reports include two medical letters from Dr Sinha dated 7 February 2019 and 22 October 2019, and a report from Ms Malone on 3 September 2019. I note, in particular, that the report from Ms Malone described Mr Psomadellis’ treatment for his mental health since 2011 and stated:
Mr Psomadellis reported full…(DSM-5) criteria for Persistent Depressive Disorder. Herein, he reported he suffered depression the majority of the day, almost daily, experienced reduced motivation, and herein had lost interest in previously enjoyable activities… poor concentration and memory, decision making and solving problems, and experienced fatigue, increased irritability, and suicidal ideation. He reported he has experienced the symptoms for the past eight years. During this time he has also been taking anti-depressant medication, which is the maximum dosage…
Mr Psomadellis has suffered a severe disability…
In her report, Ms Malone detailed Mr Psomadellis’ ability to function in terms of his self-care, activities and travel, social relationships, concentration and completing tasks, and decision-making. She noted he “cannot work at all in any form of employment”.
The medical letters from Dr Sinha set out Mr Psomadellis’ medical history, including his current conditions of right deafness, chronic fatigue syndrome, depression, osteoarthritis of the cervical and lumbar spine, moderate spondylosis of the cervical and thoracic spine, and moderate bilateral osteoarthritis of the hand. On 22 October 2019, Dr Sinha reported that Mr Psomadellis “will never be able to return to [the] workforce”.
Submissions by the Secretary noted that a job capacity assessment undertaken on 18 April 2018, more than two years ago, assigned Mr Psomadellis a combined impairment rating of 20 points under multiple Impairment Tables including 10 points for depression under Table 5 – Mental Health Function, 5 points under Table 4 – Spinal Function and 5 points under Table 11 – Hearing and Other Functions of the Ear.
On balance, I am satisfied that Mr Psomdellis has permanent medical conditions and the most recent medical evidence indicates that one of these could be assigned 20 points under the Impairment Tables Determination. This means that Mr Psomdellis may have a severe impairment that will exist for at least five years.
Issue 3 – Does Mr Psomadellis’ severe impairment prevent him from performing any work independently of a program of support within the next five years?
The Secretary’s submissions noted the job capacity assessment undertaken on 18 April 2018 considered Mr Psomadellis had a work capacity of 8 to 14 hours per week. However, Dr Sinha reported on 22 October 2019 that Mr Psomadellis will not work again.
Based on the report of Dr Sinha, I find that if Mr Psomadellis has a severe impairment, it is likely to prevent him from performing any work independently of a program of support within the next five years.
In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Mr Psomadellis’ substantive application may have merit. This weighs for the extension of time being granted.
CONCLUSION
Weighing the relevant factors and taking into account all of the information before me, I am satisfied that it is reasonable in these circumstances to grant the extension of time.
DECISION
The application for an extension of time is granted.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 1 May 2020
Date(s) of hearing: 23 April 2020 Applicant: In person Solicitors for the Respondent: Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Procedural Fairness
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Standing
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Statutory Construction
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