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

[2018] AATA 4464

Puls and Secretary, Department of Social Services (Social services second review) [2018] AATA 4464 (26 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5348

Re:Matthew Puls

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date of decision:  26 October 2018

Date of written reasons:  26 November 2018

Place:Melbourne

The Tribunal refuses the Applicant's application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time to lodge this application for review.

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

Member K. Parker

SOCIAL SECURITY – request for extension of time to lodge application out of time – substantive application relates to a claim for disability support pension – whether reasonable explanation for the two-month delay – consideration of merits of success in the substantive application – Applicant underwent surgeries and other treatment to treat his primary condition after the relevant qualification period – conditions not fully treated and fully stabilised at time of qualification period – Tribunal refused to grant extension of time

Legislation

Administrative Appeals Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011

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

REASONS FOR DECISION

Member K. Parker

26 November 2018

1. On 17 January 2017, Mr Matthew Puls submitted a claim for the disability support pension (DSP).  His claim was rejected by Centrelink.  Mr Puls requested a reconsideration of the decision made to reject his claim.  It was reconsidered and affirmed.

2. Mr Puls sought review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).  On 22 May 2018, the AAT1 made a decision, the effect of which was to reject Mr Puls’ DSP claim for the reason that, although his medical conditions were found to be fully diagnosed, they were not fully treated or stabilised as at the time of the qualification period.  Mr Puls was sent a copy of the reasons for the AAT1 decision, which he acknowledged he received on 25 May 2018.

3. The Administrative Appeals Tribunal Act 1975 (Cth) imposes a time limit of 28 days within which Mr Puls had a right to seek a second review by the General Division of the AAT (this Tribunal).[1] The time of 28 days lapsed, and no application for review was received by this Tribunal from Mr Puls. 

   [1] Refer statutory time limit imposed by s 29 of the Administrative Appeals Tribunal Act 1975 (Cth).

4. On 12 September 2018, over two months after the end of the time limit for making an application, Mr Puls lodged an application for review and requested that the AAT extend the time for lodgment of his application to 12 September 2018.  A hearing took place on 26 October 2018, to hear submissions from both parties in relation to Mr Puls’ application for an extension of time.

5. The Secretary, Department of Social Services (Secretary) opposed Mr Puls’ request for an extension of time for the reasons set out in the Secretary’s Outline of Submissions (lodged with the tribunal on 2 October 2018 and provided to Mr Puls).  In these submissions, the Secretary appropriately identified the considerations the Tribunal should take into account, as established by relevant authorities. 

6. Accordingly, in considering Mr Puls’ request, the Tribunal has taken into account:

   (a)Mr Puls’ explanation for the delay and whether Mr Puls has rested on his rights;

   (b)any prejudice to the Secretary occasioned by the delay;

   (c)wider prejudice to the general public, in terms of established practices;

   (d)the merits of the substantive application;

   (e)any other relevant considerations.

7. Mr Puls said his explanation for the two month delay was that he had two surgeries after 25 May 2018, the first being a pulsed-radio frequency injection, for which he was admitted to hospital for a couple of days.  Mr Puls said he could not recall the date of the surgery, but he remembered that it was before a second surgery that took place on 6 August 2018 for a ketamine infusion.  Mr Puls said the procedure for the ketamine infusion required him to be in hospital for a period of 10 days on account of complications that resulted in liver damage.  Mr Puls also stated that there were “massive, long recovery times after the surgeries”. 

8. Mr Puls was asked about the overseas travel which he stated in his application form as a reason for the delay in lodging his application.   Mr Puls said he travelled overseas on or about 3 or 4 July 2018, up until the time of the ketamine infusion.  He was initially unclear about how long he had been absent overseas (initially he thought it may have been for six weeks), but subsequently accepted that it must have been for four or five weeks.   

9. At the hearing, Mr Puls was asked by the Tribunal whether his wished to provide any further information about his overseas travel.  Mr Puls said that he was “overseas and severely disabled”.  Mr Puls said;

   Unfortunately, you can’t leave the airport, it travels with you.  So, in saying I went overseas, I’m not sunbaking every day, I’m still disabled and in heaps of pain no matter where I go.  So, I just wanted to make that clear.  That I’m not off gallivanting having a fantastic holiday.  I had the holiday to get out of the mental nightmare that my life is with this pain and physical and emotional pain. So, I think you’ve got to look at it like that and not – oh my God, he’s just taken off for a holiday to have fun. So, I just want to make that very clear, that this was a holiday after two or three years of insidious pain and all of the surgeries I’ve had, pretty much staring at the wall at home.  Right?  Looking out the window at the rain.

10. Mr Puls said his partner (with whom he resides), was unable to lodge the review application form on his behalf because she was busy with work.  He said she worked full-time as a real estate agent, including on Saturdays.

11. Mr Puls was asked at the hearing whether he had any further explanation for the delay, to which he responded:

    I could sit here all day and we could go back and forth like children about it, but the fact is that cognitively, you cannot perform this on – getting all this stuff composed and put forward after the two-and-a-half years of how I’ve been through every Centrelink trying to do exactly that.

12. The Tribunal accepts that Mr Puls faced some personal challenges during the months of May and August 2018, making it difficult for him to lodge an application.  However, the application form that was lodged by Mr Puls on 12 September 2018 consists of two pages and the substantive content in it comprised a total of three sentences that had been written by Mr Puls. The Tribunal considers that the 28-day period provided under the legislation presented an adequate opportunity for Mr Puls to complete the short form and to write those three sentences.  Completion of this form and the short application for review form attached the decision under review, was all that was required at that stage. 

13. The Tribunal does not consider that there was a reasonable explanation as to why Mr Puls (or his partner, on Mr Puls’ behalf), was not able to fill in the form and lodge it with this Tribunal, despite the ongoing medical treatment that was taking place, the cognitive difficulties Mr Puls said he was experiencing and the holiday that was organised and taken by Mr Puls and his partner during the period of the delay.  The Tribunal considers that Mr Puls rested on his rights and did not otherwise indicate to Centrelink or the Secretary that he intended to seek a review of the AAT1 decision.  The Tribunal considers that the matters referred to in this paragraph weigh against granting an extension of time to Mr Puls.

14. The second consideration is whether or not the Secretary had suffered any prejudice.  The Secretary has conceded that it suffered no prejudice.  Accordingly, the Tribunal considers that this factor weighs in favour of granting an extension of time. 

15. The third consideration is whether there was any prejudice to the general public.  The Tribunal acknowledges that were it to grant the extension in this case, it may operate unfairly to other ‘out of time’ applicants who had previously not been granted an extension of time on the basis that the merits of their substantive application, like Mr Puls, were poor (see the Tribunal’s assessment below, in this regard).  However, the Secretary did not provide details of any specific cases upon which the Tribunal could make such a comparison.  Accordingly, and while the Tribunal acknowledges that there is a general public interest in there being an end to the review processes (see paragraph [22] of the Secretary’s Outline of Submissions), the Tribunal has not placed a great deal of weight on this factor given that the type of case under review was a claim for DSP.   On balance, the Tribunal considers that this factor did not weigh in favour of or against the granting Mr Puls’ request.

16. Importantly, the fourth consideration is the merits of Mr Puls’ substantive application.  This is where Mr Puls’ request for an extension of time faced a significant challenge. 

17. The Tribunal has reviewed the material on the Tribunal’s file.  Based on a preliminary assessment of the existing evidence, which is all this Tribunal is required to do in assessing an extension of time application, the Tribunal is unable to identify a reasonable and proper basis, upon which Mr Puls could show that he had a chance of proving that he was eligible for the DSP, as at the relevant qualification period referred to below. 

18. The qualification period in relation to Mr Puls’ DSP claim commenced on 17 January 2017 and ended on 18 April 2017 (  Qualification Period). Importantly, the Tribunal is prohibited from making an assessment referrable to the state of his medical conditions after 18 April 2017, as explained to Mr Puls in the hearing before this Tribunal.

19. The primary condition claimed by Mr Puls included trigeminal neuralgia.  The symptoms emerged for the first time in April 2016.  Mr Puls was diagnosed five months later.  The Tribunal accepts that it has caused Mr Puls persistent, excruciating pain on the right side of his face.  Mr Puls’ three other conditions were reported as secondary conditions to the trigeminal neuralgia.  They included migraines, anxiety and depression and the re-emergence of a previous L5/S1 disc degeneration problem.

20. An insurmountable problem for Mr Puls is that the legislative requirements are such that he must demonstrate that as at the Qualification Period, he met one of the mandatory criteria for eligibility to receive the DSP being that his diagnosed conditions were fully treated and fully stabilised.  It is irrelevant that Mr Puls was able to show that he could meet the threshold of the conditions of being fully treated and fully stabilised at some later point in time (after 18 April 2018).  Of course, if that was indeed the case, Mr Puls was entitled to (and remains entitled to) make a subsequent claim for DSP, which will, in effect, will shift forward the relevant qualification period.

21. However, in relation to the DSP claim that is the subject of Mr Puls’ application lodged on 12 September 2018 and his request for an extension of time presently before this Tribunal, the weight of the evidence presently available to the Tribunal lies heavily in favour of a conclusion that the treatment for Mr Puls’ condition was still in progress and was a long way from being completed as at the time of the Qualification Period and would not meet the requirement of fully treated or fully stabilised (in which case, his conditions will not attract an impairment rating under the Impairment Tables).[2]  Mr Puls underwent two surgical procedures to try to remedy or alleviate his condition and symptoms and those procedures flanked either side of the Qualification Period.  The first procedure took place in November 2016, two months before the Qualification Period and the second surgery took place in October 2017, six months after the end of the Qualification Period.

    [2] The Impairment Tables are set out in Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011.

22. In late 2017, Mr Puls also received further treatment in the form of ketamine infusion and lignocaine infusion, as well as trying a number of analgesic medications.  The Tribunal  also notes the information provided at the hearing before this Tribunal about the further surgical procedures undertaken by Mr Puls’ in more recent times following the AAT1 decision . 

23. It is for these reasons that based on a preliminary assessment; this Tribunal considers that Mr Puls has little or no real prospect of succeeding in his substantive application relating to his previous DSP claim.  This means that for the Tribunal to extend the time for lodgement of Mr Puls’ application allowing permission for him to proceed with his application to a final hearing is likely to be a waste of his time, the Secretary’s time and also, the time of the Tribunal.

    Conclusion

24. Weighing up each of the various considerations addressed above, the Tribunal considers the appropriate course is to refuse Mr Puls’ request for an extension of time. 

25. The Tribunal has informed Mr Puls, as did the AAT1, about his right to make a further claim for the DSP and to test again, his eligibility under the provisions of the Social Security Act1991 (Cth), once his conditions are at the stage of being fully treated and fully stabilised and he meets the other mandatory criteria for eligibility for the DSP under the legislation.

26. Separately, the Tribunal encourages Mr Puls to consider closely the comments in the Secretary’s Outline of Submissions, in relation to whether he also meets the continuing inability to work requirements, specifically, whether he has participated in a program of support, unless of course, one of the exceptions apply.  The Secretary’s position is that Mr Puls does not meet this requirement.

27. For the reasons set out above, the Tribunal refuses Mr Puls request for an extension of time to lodge his substantive application for review of the AAT1, which affirmed the original reconsideration decision to reject Mr Puls’ claim for DSP.  

    
    
    

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the written reasons for the decision herein of Member K. Parker

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

Associate

Dated: 26 November 2018

Date of hearing:

Date of request for written reasons:         

26 October 2018

29 October 2018

Representative for the Applicant:

         Self-represented

Representative for the Respondent:

Vincci Chan, Government Lawyer, Department of Human Services