Quagliato and Secretary, Department of Social Services (Social services second review) - [2022] AATA 4434

Quagliato and Secretary, Department of Social Services (Social services second review) [2022] AATA 4434 (23 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/9573
Re:Kim Quagliato
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision

Tribunal:Mr S. Webb, Member
Date:23 December 2022
Place:Canberra

Application refused.

…………….[sgd]…………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for review of AAT first review decision – prescribed period – application for review outside the prescribed period – explanation for delay – consideration of relevant factors and circumstances – prospects of success – not reasonable to grant extension of time – application refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 29
Social Security Act 1991, ss 210, 1064, 1223, 1237A, 1237AAD
Cases
BQQ15 v Minister for Home Affairs [2019] FCAFC 281
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Daley v Child Support Registrar [2020] FCAFC 161
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Mr S. Webb, Member
23 December 2022

Kim Quagliato lodged an application for review of an AAT first review decision in respect of a carer payment debt. The AAT first review decision was made on 16 October 2019. Ms Quagliato is seeking an extension of time to apply for second review of this decision. The Secretary does not oppose the extension sought. It is this matter, alone, that is the subject of this interlocutory decision.
Facts
Ms Quagliato cared for her mother. From March 2016, at least, she claimed and was paid carer payment under s 210 of the Social Security Act 1991 (Social Security Act).
As the rate of carer payment was determined using the rate calculator in s 1064 of the Social Security Act, subject to an income test, Ms Quagliato was required to declare her income, including her gross earnings in employment. Centrelink sent her several carer payment statements, notifying her of this and other requirements which set out the basis on which her carer payments were calculated.
From December 2016, Ms Quagliato was in employment.
On 13 June 2019, a delegate of the Secretary decided Ms Quagliato had been overpaid $16,985.79 in carer payments for the period 12 January 2017 to 9 November 2018 on the basis her earnings in employment had not been taken into account.
Ms Quagliato requested review of this decision by an Authorised Review Officer (ARO).
On 8 July 2019, an ARO decided to affirm the original determination on the basis Ms Quagliato had been overpaid $16,985.79 in carer payments during the period 12 January 2017 and 9 November 2018.
On 12 July 2019, Ms Quagliato applied to the Tribunal for AAT first review.
On 16 October 2019, the Tribunal issued an AAT first review decision, affirming the Secretary’s decision. The Tribunal of first review found Ms Quagliato had been overpaid $16,985.79 in carer payments during the period 12 January 2017 to 9 November 2018 and this was a debt for which she was liable. The Tribunal set the rate for repayment of the debt at $30 per fortnight for the ensuing 6 months.
Ms Quagliato states she received the AAT first review decision on 16 October 2019.
On 22 November 2022, Ms Quagliato applied for AAT second review. Her application was accompanied by a letter from Mr Ian Turton, an Illawarra Legal Centre solicitor representing Ms Quagliato. Mr Turton’s letter amounts to an application for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
On 12 December 2022, the Secretary informed the Tribunal the application for an extension of time was not opposed.
Discretion to extend time
The prescribed time for lodging an application for review of the AAT first review decision is set out in s 29(2)(a) of the AAT Act:
(2) Subject to subsection (3), the prescribed time for the purposes of
paragraph (1)(d) is the period commencing on the day on which the decision is
made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact
and the reasons for the decision—the day on which a document
setting out the terms of the decision is given to the applicant
The Tribunal has discretion to extend this period under s 29(7):
(7) 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.
The discretion to extend time under this provision arises only where the Tribunal is satisfied it is reasonable to do so in all the circumstances. In order to determine if it is satisfied about the reasonableness of granting an extension of time, the Tribunal is required to consider all relevant circumstances,[1] including:
(a)the length of the delay in applying for review;
(b)knowledge of the prescribed time limit;
(c)any explanation for the delay;
(d)prejudice to the Respondent or anyone else should the extension be granted;
(e)the nature and prospects of the application should it be allowed to proceed; and
(f)alternative remedies should the extension not be granted.
[1] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451; Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516).
The prescribed 28 day time limit should not be ignored[2] or too readily stepped around as, prima facie, it should be complied with.[3] The primary purpose of the limitation period is to protect a respondent from having to engage in unexpected proceedings relating to a stale claim. It is for this reason delay is a factor which may count against an exercise of the discretion in favour of an applicant for relief.[4] Nevertheless, the policy underlying the discretion conferred by s 29(7) is one directed to the avoidance of injustice from the imposition of a rigid time limit which might arise in the particular circumstances of any case. The balance of these competing considerations lies in what is reasonable in all the circumstances.
[2] BQQ15 v Minister for Home Affairs [2019] FCAFC 281 at [33].
[3] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348; Gallo v Dawson [1990] HCA 30, per McHugh J at [2].
[4] Daley v Child Support Registrar [2020] FCAFC 161 at [43].
Length of the delay
As I accept, Ms Quagliato received the AAT first review decision on 16 October 2019, the prescribed time in which she could apply for second review by the Tribunal ended on 13 November 2019.
Her application for grant of an extension of time was lodged on 23 November 2022, almost 3 years out of time.
The length of this delay is a significant consideration. There is no material before the Tribunal to suggest Ms Quagliato took any action to alert the Secretary, or Centrelink, of her dissatisfaction with the AAT first review decision in the period from 16 October 2019 to March 2022. On Mr Turton’s letter, it appears Ms Quagliato took no action in respect of the AAT first review decision and only raised it in the context of seeking advice from the Illawarra Legal Centre about her carer payment debt.
Knowledge of the prescribed time limit
There is no dispute Ms Quagliato was given the AAT first review decision. Commonly, a decision of this kind is given under cover of a notice, setting out the person’s right to apply for second review within 28 days. While the Tribunal has not been provided with a copy of any such notice in this case and the manner in which the AAT first review decision was given to Ms Quagliato is not clearly established on the present materials, there is no dispute she was given the decision and it may be inferred the decision was given under cover of a notice in the usual way.
Mr Turton states:
When Ms Quagliato first approached this Centre [Illawarra Legal Centre] for advice in late 2021, she could not recall that her appeal had been heard by the AAT Child Support & Social Services Division. I only discovered this information in March 2022 when I was provided with a copy of the decision of the Child Support & Social Services Division of the AAT.
Even if this is accepted, it does not address the question whether Ms Quagliato knew, or had reason to know, of the 28 day limit on applying for second review when she received the AAT first review decision.
I note she did not experience any apparent difficulty applying for AAT first review of the ARO’s decision. The ARO’s decision is dated 8 July 2019 and Ms Quagliato applied for AAT first review on 12 July 2019.
There is no direct evidence of Ms Quagliato’s circumstances in the 28 day period after she received the AAT first review decision on 16 October 2019.
Explanation for the delay
The only explanation for the delay of almost 3 years is set out in Mr Turton’s letter.
Doing the best with the available materials the following findings can be made:
(a)Ms Quagliato first approached the Illawarra Legal Centre for advice in late 2021;
(b)at least in part, this contact related to her carer overpayment debt and related decisions;
(c)Mr Turton obtained a copy of the AAT first review decision in March 2022;
(d)Mr Turton asked Centrelink to reconsider the decision to raise and recover Ms Quagliato’s carer payment debt in light of fresh medical evidence;
(e)this request was refused;
(f)Ms Quagliato informed Mr Turton she felt she was not in a fit state to further pursue her appeal after receiving the decision of the Tribunal dated 16 October 2019;
(g)Ms Quagliato first consulted Dr Sarpi, a general practitioner practising in Queanbeyan, in November 2019;
(h)on 31 March 2022, Dr Sarpi reported Ms Quagliato has been suffering from multiple chronic health conditions, including chronic back pain, congenital deafness, chronic daily headaches and migraines, and stress and anxiety;
(i)on 5 April 2022, Dr Patel, a consultant neurologist, reported to Dr Sarpi Ms Quagliato has noticed improvement in her headaches and migraines since commencing treatment with Sandomigran medication;
(j)Ms Quagliato is carer for her son who has chronic mental health problems;
(k)on Dr Sarpi’s report, for the past 4 years Ms Quagliato’s son suffered from chronic depression;
(l)Ms Quagliato was granted a disability support pension in 2022 after a number of unsuccessful previous attempts;
(m)Ms Quagliato’s deafness makes it difficult for her to engage with government agencies without assistance;
(n)in July 2022, Ms Quagliato spoke with a Sam Vardon, a debt team social worker;
(o)on 26 July 2022, Mr Turton provided Mr Vardon with medical reports by Dr Sarpi and Dr Patel;
(p)on 1 September 2022 Mr Vardon informed Mr Turton:
(i)a submission for debt waiver had been made;
(ii)the matter was before an ARO for consideration; and
(iii)Ms Quagliato would be contacted once the outcome of the appeal was known; and
(q)no further information has been given to Ms Quagliato about the outcome of the ARO’s consideration and Mr Turton’s efforts to contact Mr Vardon have not been successful.
The available materials are not sufficient to make detailed factual findings about Ms Quagliato’s circumstances in the period after she received the AAT first review decision until she approached the Illawarra Legal Centre for advice.
Mr Turton contends Ms Quagliato’s chronic health problems contributed to her inability to appeal the AAT first review decision. While it might be accepted Ms Quagliato did not feel she was in a fit state to further pursue her appeal at that time, the present materials do not establish Ms Quagliato experienced an inability to apply for second review of the decision she received on 16 October 2019. There is a difference of substance between a person feeling they are not fit to pursue a claim and the person being unable to do so. On the one hand, Ms Quagliato may have felt overwhelmed by her circumstances at the time and considered it was too difficult or too stressful or too hopeless to further challenge the decision to raise and recover a carer payment debt. On the other hand, Ms Quagliato may have been prevented from taking further action by some change in her circumstances, such that she could not then do what she had previously done on 12 July 2019 when she applied to the Tribunal for review of the ARO’s decision.
The present materials are not sufficient to establish the latter and they are consistent with the former. In all likelihood, after receiving the AAT first review decision and in consideration of her circumstances at the time, Ms Quagliato decided not to pursue the matter. There matters rested until in or about March 2022. This is consistent with a person resting on their rights.
Prejudice to the Respondent or anyone else should the extension be granted
Even though there is a strong possibility Ms Quagliato rested on her rights, and the Secretary was entitled to proceed on the expectation the AAT first review decision was not under challenge, the Secretary decided not to oppose Ms Quagliato’s extension of time application.
It follows the Secretary asserts no prejudice will result should the application be allowed to proceed. Mr Turton agrees.
The Tribunal is not bound by concessions of this kind.
In the circumstances of this case, I am satisfied prejudice may arise.
The passage of almost 3 years may prejudice both parties’ ability to obtain relevant and reliable documentary or witness evidence.
In order to determine the correctness of the carer payment debt raised against Ms Quagliato, it will be necessary to make factual findings about relevant circumstances in the period from January 2017 to November 2018. Furthermore, in order to decide if such a debt was properly raised and if any part of the debt should be written off or waived will require factual findings in respect of relevant circumstances from January 2017 to the present.
These matters will require evidence on which relevant factual findings can be made. After the passage of almost 3 years, the ability of each party to obtain relevant probative materials in respect of events up to 6 years ago may be prejudiced. As time passes, memories fade and records may be more difficult to obtain. On Mr Turton’s letter, 2 years after receiving the AAT first review decision, Ms Quagliato could not recall if her appeal against the ARO’s decision had been heard by the Tribunal. If that is correct, there is a strong possibility she would not reliably recall other aspects of her life and circumstances in any detail. This simply serves to demonstrate the difficulty each party may face obtaining relevant and probative evidence should the matter be allowed to proceed.
Nature and prospects of the application should it be allowed to proceed
Doing the best with Mr Turton’s submissions, although it is far from clear, I understand Ms Quagliato asserts all or part of the carer payment debt raised against her should be waived on the basis that there are special circumstances in her case, including health conditions affecting herself and her son. It is possible she may assert errors may have been made in the calculation of the overpayment of carer payment or in the raising of a debt for which she is liable.
In order to determine if an overpayment occurred, it will be necessary to determine Ms Quagliato’s correct entitlement to carer payment in the period 12 January 2017 to 9 November 2018. In order to do so, the rate calculator set out in s 1064 of the Social Security Act applies, taking account of Ms Quagliato’s actual earnings in employment. Once her correct entitlement to carer payment is determined in this way, the amount of her entitlement will be compared to the amount of carer payment she received. If she received an amount greater than her entitlement, under s 1223(1) of the Social Security Act, this will be a debt to the Commonwealth for which she is liable.
With regard to recovery of the debt, should it be established, under s 1237A of the Social Security Act, any part of the debt which was the result of administrative error solely by the Commonwealth must be waived if it was received in good faith. Under s 1237AAD of the Social Security Act, there is discretion to waive all or part of a debt if there are special circumstances which render it appropriate to do so in the particular circumstances.
When considering the prospects of her application succeeding if it is allowed to proceed, it is not appropriate or necessary to engage in a detailed assessment of every aspect of her case. All that is required is an impressionistic assessment of the likely merits of the application.
With regard to the calculation of Ms Quagliato’s correct entitlement to carer payment in the period 12 January 2017 to 9 November 2018, there is no probative material before the Tribunal. The same can be said in respect of Ms Quagliato’s earnings in employment during this period. That being so, on the present materials, there is nothing to suggest the amount of Ms Quagliato’s overpayment debt is incorrect.
It is not clear if Ms Quagliato asserts there was an error of some kind in either the calculation or the raising of the overpayment debt or that all or part of it was solely due to Commonwealth error. Presently, there is not sufficient material on which to make out any such error.
Mr Turton asserts the medical reports of Dr Sarpi and Dr Patel were not available to the Tribunal of first review. While that is no doubt correct, the AAT first review decision sets out information about Ms Quagliato’s personal, health and financial circumstances in paragraphs [26] to [28]. It cannot be said the Tribunal of first review did not take these circumstances into account. The real issue pressed by Mr Turton is the reports of Dr Sarpi and Dr Patel are evidence of a deterioration in Ms Quagliato’s health circumstances over the past 4 years. A close reading of those reports does not compel one to that conclusion. Rather, Dr Patel reports improvement in Ms Quagliato’s headache and migraine condition.
Nevertheless, doing the best with the scant materials available, it is possible Ms Quagliato’s circumstances have changed for the worse since October 2019 and those changes might be pressed as special circumstances for the purposes of s 1237AAD of the Social Security Act.
On the present materials, at the highest, Ms Quagliato’s application has little prospect of succeeding should it be allowed to continue. It is possible she may be able to establish her circumstances have changed for the worse since October 2019, but the prospect of any such change amounting to special circumstances for the purposes of s 1237AAD of the Social Security Act is not presently well supported and must be assessed as low.
Alternative remedies should the extension not be granted
On the present materials, Ms Quagliato may yet obtain a further ARO decision consequent to the submissions Mr Turton made on her behalf and the information he was given by Mr Vardon on 1 September 2022.
Furthermore, even if she does not obtain relief in that further ARO review, it is open for her to negotiate a suitable rate of recovery of the debt with the Secretary’s Department, or Centrelink, should she encounter financial difficulties which limit her capacity to repay the debt.
Other matters
There is one further matter to address in respect of unfairness that may result should the extension of time be granted. Doubtless there are people with overpayment debts under the Social Security Act who cavilled with a first review decision of the Tribunal but did not to apply for second review within the prescribed time. There may be people in such circumstances who proceeded on the understanding the prescribed limit should be adhered to even though they may have faced difficult circumstances in their personal lives at the time.

If Ms Quagliato’s application is allowed to proceed in the circumstances, unfairness may be done to others in similar circumstances who did not seek or who were not granted additional time in which to apply for second review.
Conclusion
Having carefully considered these matters and the relevant circumstances, I have some sympathy for Ms Quagliato. I accept she finds her circumstances difficult and the overpayment debt she owes to the Commonwealth may be an exacerbating factor.
This notwithstanding, on balance, I am not persuaded it is reasonable to grant the extension of time Ms Quagliato seeks to apply for review of the AAT first review decision on 16 October 2019. The amount of time which has elapsed weighs heavily against the case she has made for an extension, which is not strong.
I am satisfied no injustice or unfairness will result from refusing her application as other remedies have not yet been exhausted.
Decision
Application refused.

I certify that the preceding 53 (fifty- three) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.

...........................[sgd].............................................
Associate
Dated: 23 December 2022

On the Papers

Date final submissions received:

23 November 2022

Applicant:
Ian Turton, Illawarra Legal Centre

Solicitor for Respondent:

Department of Social Services

On the Papers
Date final submissions received:	23 November 2022
Applicant:	Ian Turton, Illawarra Legal Centre
Solicitor for Respondent:	Department of Social Services