QYKC and Secretary, Department of Social Services (Practice and Procedure)
[2025] ARTA 162
•26 February 2025
QYKC and Secretary, Department of Social Services (Practice and Procedure) [2025] ARTA 162 (26 February 2025)
Applicant/s: QYKC
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/8896
Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:26 February 2025
Decision:Pursuant to section 19(2) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal refuses to extend the time for the making of an application for review of the decision dated 30 October 2024.
Senior Member J Longo
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
PRACTICE AND PROCEDURE – extension of time – applicant seeks review of First Review decision of Tribunal – awareness of appeal rights – explanation for delay not accepted – whether the merits of the substantive application must be considered – substantive merits not found – whether there is prejudice to the respondent and other party – public interest considerations – Tribunal decides not to extend time
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal Rules 2024 (Cth)Electronic Transactions Act 1999 (Cth)
Cases
Englezos v Secretary, Department of Social Services [2023] FCA 31
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Secretary, Department of Family Community Services and Roberts [2003] AATA 269Statement of Reasons
QYKC is in receipt of the age pension. Rent assistance is included as a component of her pension. On 9 October 2023, her rent assistance was cancelled on the basis that QYKC did not provide her eligibility information. QYKC sought review of the decision to cancel her rent assistance. Prior to the review of this decision, from 25 February 2024, QYKC’s rate of age pension reduced further due to the level of her assessable assets.
On 21 March 2024 QYKC sold a property that she owned. On 22 April 2024, QYKC provided accommodation details and stated that she was paying $250 in rent per week from 9 October 2023, and $200 per week from 29 January 2024. On 4 June 2024 an authorised review officer set aside the decision to cancel her rent assistance and determined that QYKC was entitled to arrears of rent assistance from 9 October 2023. On 13 June 2024, QYKC sought further review of the decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT). The AAT, on first review, affirmed the decision on 13 September 2024. QYKC was notified of the decision on 27 September 2024 via email and express post.
On 30 October 2024, QYKC sought second review of the decision with the Administrative Review Tribunal (the Tribunal). On 20 November 2024, QYKC applied in writing for an extension of time for making an application for review.
The issues in this case are whether QYKC has an adequate reason for the delay in lodging her application for review, the merits of the case, and who might be disadvantaged if she is granted an extension of time.
I considered QYKC’s oral evidence at hearing and her written application for an extension of time. I also considered the Respondent’s outline of submissions.
For the following reasons, the extension of time to appeal is refused.
CONSIDERATION
Subsection 18(1) of the Administrative Review Tribunal Act 2024 provides that an application for review must be made within the period prescribed by the rules. The Administrative Review Tribunal Rules 2024 (the Rules). Subsection 5(3) of the Rules states that the period is as follows:
General rule—period ends 28 days after notice is given
(3) The period starts on the day the decision under review is made and ends on the day that is 28 days after the day the applicant is given the notice.
The Rules further states under subsection 5(4):
Despite subsection (3), if the applicant is given a statement of reasons for the decision under review, the period starts on the day the decision under review is made and ends on the day that is 28 days after the day the applicant is given the statement of reasons.
The decision and statement of reasons of the Social Services and Child Support Division of the AAT at first review, was emailed to QYKC on 27 September 2024. A copy was also sent by express post on the same date. As outlined in the Respondent’s submissions, QYKC is deemed to have received the statement of reasons on 27 September 2024.[1]
[1] Electronic Transactions Act 1999 s 14A.
In making this decision, I have considered the principles for the exercise of a discretion to allow an extension of time as follows:[2]
(a)the length of the delay in applying for review;
(b)the Applicant’s awareness of appeal rights and explanation for the delay;
(c)the prospects of success if the extension of time is granted, that is, the merits of the substantive application;
(d)any prejudice to the Respondent or Other Party if the extension of time is granted, including any difficulties they will experience in providing evidence because of the delay; and
(e)any relevant public interest considerations, such as fairness in granting an extension of time as between the Applicant and others in a similar position.
[2] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
These principles have more recently been restated in the decision of Collier J in Englezos v Secretary, Department of Social Services [2023] FCA 31. The authorities clearly set out the well settled factors to be considered when exercising the discretion to allow an extension of time.
Length of delay and QYKC’s awareness of appeal rights
The Respondent submits that QYKC received the decision of the AAT on 27 September 2024 via email. QYKC had 28 days to lodge an application for review of that decision, that is, until 25 October 2024. The application was lodged on 30 October 2024, that is, 5 days late. The Respondent submits that the delay in making the application, while not significant, should not automatically lead to an extension of time.[3]
[3] The Respondent’s submissions refer to the AAT decision in Secretary, Department of Family Community Services and Roberts [2003] AATA 269 at paragraph [16].
The documents before me show QYKC was notified of the decision electronically on and by express post on 27 September 2024.[4] The letter to QYKC from the AAT (page 21), provides clear instructions in relation to further review avenues. I find that QYKC did not lack knowledge of her appeal rights.
[4] Respondent’s Outline of Submissions, p. 4.
The explanation for the delay
QYKC could not recall how the decision was sent to her and stated that she did not realise the application was late when she made her application to the Tribunal.
In her application, QYKC stated that she thought her application was made within the time limit. She stated at the hearing that she thought she was aware of the time limit, but as she lives outside of town and due to her age, she usually only went to town once a week.
I do not find that these reasons provide an adequate explanation for the delay.
Merits of the application
I note that the Respondent submits that QYKC was paid arrears of rent assistance from the date of the cancellation on 9 October 2023, and has received the maximum amount of rent assistance payable. I note that the decision on first review,[5] as submitted by the Respondent, has undertaken an in-depth analysis and explanation of QYKC’s rate of age pension its included rent assistance. The Respondent submits QYKC continued to receive rent assistance until she became a homeowner on 18 September 2024.
[5] Attachment A5 to the Respondent’s Outline of Submissions, p. 22 – 29.
Furthermore, the decision to reduce the rate of age pension from 25 February 2024 was due to the proceeds of the sale of her principal home no longer being exempt from the asset test for age pension. While the proceeds of the sale were initially exempt from the asset test for 12 months, from 25 February 2022 until 25 February 2023, the AAT extended the exemption for a further 12 months, until 25 February 2024, on 29 August 2023. The Respondent submits that, even if QYKC were seeking review of the decision made on 29 August 2023, the exemption of the proceeds of the sale of QYKC’s principal home was for extended for the maximum period available under the legislation and there is no discretion to extend further.
It was further submitted that QYKC’s age pension has been calculated on the basis of her assessable assets since 9 October 2023 and the rate of age pension has been calculated and paid correctly from this date. I accept the submissions regarding the calculations of her rate of age pension. I further find that, as per the decision of Senior Member Trotter on first review of this matter, QYKC has received a fully favourable decision by the authorised review officer. Accordingly, even if I were satisfied of the other considerations for granting the extension of time, I find that there is no merit in the substantive application, and further review by the Tribunal does not have any reasonable prospects of success.
Prejudice to the Other Party
I find that the delay in seeking a review prejudices the Respondent, because the Respondent is entitled to consider the matter finalised after the expiry of the review period. I also accept the Respondent’s submission and find that there would be prejudice if an extension of time application were granted in this matter caused by the expending of Commonwealth resources in opposing this application in circumstances where QYKC has already received a favourable outcome and arrears have been paid to her.
Public interest considerations
Time limits are imposed to ensure that there is predictability and certainty in administrative decision-making. Where an opportunity has not been provided to other individuals in similar circumstances, particularly where the timeframe for review was clearly articulated to QYKC, I find that granting an extension of time in this matter would is create prejudice to the general in the public perception of the finality of proceedings once the time limit for review has passed.
CONCLUSION
QYKC spoke about the difficulties the reduction in her age pension had caused, and the financial and psychological effect this had on her, due to having to buy another home after her relationship ended. I am sympathetic to her circumstances. However, considering all the above reasons, I am not satisfied it is reasonable in all the circumstances to grant the extension of time.
DECISION
Pursuant to section 19(2) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal refuses to extend the time for the making of an application for review of the decision dated 30 October 2024.
Date(s) of hearing: Thursday, 20 February 2025 Representative for the Applicant: Self-represented Advocate for the Respondent: Ms Nguyen
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