Rahimzadeh and Secretary, Department of Social Services (Social services second review)
[2019] AATA 3201
•3 September 2019
Rahimzadeh and Secretary, Department of Social Services (Social services second review) [2019] AATA 3201 (3 September 2019)
Division:GENERAL DIVISION
File Number: 2019/4313
Re:Parvaneh Rahimzadeh
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:3 September 2019
Place:Sydney
The application for an extension of time is refused.
............................[SGD]............................................
Dr L Bygrave, Member
CATCHWORDS
EXTENSION OF TIME – principles to be applied – where applicant rested on her rights – where prejudice to the respondent caused by the delay – where substantive application has limited prospects of success – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 29
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42CASES
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011
REASONS FOR DECISION
Dr L Bygrave, Member
3 September 2019
INTRODUCTION
The applicant, Ms Parvaneh Rahimzadeh, lodged an application with the General Division of the Administrative Appeals Tribunal (the Tribunal) on 17 July 2019 in accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). This application sought an extension of time to make an application to review a decision made by the Social Services and Child Support Division (SSCSD) of the Tribunal on 22 May 2019 to reject Ms Rahimzadeh’s claim for disability support pension because she did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).
The Secretary opposes the extension of time sought.
The extension of time application was heard in Sydney on 15 August 2019. Ms Rahimzadeh attended the hearing by teleconference; she was represented by Mr Leon Kessel and Ms Catherine Indac, and assisted by an interpreter of the Farsi language.
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] paraphrased 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 the 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 general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application; and
(f)“considerations 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 for 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 [15]; (1993) 45 FCR 441, 444.
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 length of delay in Ms Rahimzadeh seeking a review of the decision made by the SSCSD on 22 May 2019 is approximately 13 days after the 28 days limit. I am satisfied Ms Rahimzadeh was informed of her review rights and the requirement to make an application for review to the Tribunal within 28 days of receiving the SSCSD decision.
Ms Rahimzadeh’s application for an extension of time outlined the following reasons for requesting the extension of time:
Awaiting medical psychology, psychiatrist, physiotherapist and general practitioners reports on recent developments in patients case. The above are expected [in] the coming three weeks. By 31/07/2019.
At the Tribunal hearing, Mr Kessel confirmed the delay was due to Ms Rahimzadeh seeking further medical evidence and that she had now obtained these reports. Mr Kessel also explained that he was based in Melbourne and Ms Rahimzadeh lived in Sydney, and this had also contributed to the delay.
While the delay of 13 days is not significant, I find that Ms Rahimzadeh’s intention to seek further medical evidence did not prevent her from applying to the Tribunal for review. Weighing the relevant evidence, I am satisfied Ms Rahimzadeh “rested on her rights” and allowed the Secretary to believe the matter relating to the SSCSD decision made on 22 May 2019 was finalised.
While this principle weighs against Ms Rahimzadeh, 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 a predictable and orderly conclusion to appeal processes.
I am satisfied the Secretary and the public would have expectations about the finality of the decision-making and this factor weighs against granting an extension of time.
MERITS OF SUBSTANTIVE APPLICATION
The Tribunal must consider the merits of the substantive application in deciding whether to grant an extension of time. The relevant issue in the substantive application is whether Ms Rahimzadeh satisfies the qualification criteria for disability support pension.
Relevant legislation
To qualify for the disability support pension, Ms Rahimzadeh must satisfy the criteria in subsection 94(1) of the Act, which requires her to show she has:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of 20 or more points according to the Impairment Tables; and
(c)a continuing inability to work.
Further, Ms Rahimzadeh must satisfy these criteria on 8 March 2018 when she applied for the disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (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 likely to persist for more than two years: subsection 6(4).
Consideration
Ms Rahimzadeh’s medical conditions were set out and considered in the SSCSD decision made on 22 May 2019 as follows:
·depression and anxiety with post-traumatic stress disorder – not fully treated and fully stabilised;
·chronic neck and back pain – not fully treated and fully stabilised; and
·bilateral carpal tunnel syndrome – not fully treated and fully stabilised.
The Secretary submitted to the Tribunal that Ms Rahimzadeh’s substantive application has no reasonable prospects of success because none of her medical conditions were fully treated and fully stabilised during the claim period. Referring to medical reports attached to her written submission, the Secretary made the following contentions in relation to Ms Rahimzadeh’s conditions:
·Mental health: Dr Reza Pishyar (clinical psychologist) diagnosed Ms Rahimzadeh with depression, anxiety and post-traumatic stress disorder on 9 January 2017. Ms Rahimzadeh was subsequently referred by Dr Razia Dehsabzi (general practitioner) to Dr Tanveer Ahmed (psychiatrist) on 20 May 2018. As Ms Rahimzadeh was referred for specialist review during the claim period, this condition could not be considered fully treated and fully stabilised.
·Chronic neck and back pain: Dr M Dowla (neurologist) reported on 16 February 2018 that surgery had been recommended to improve the pain in Ms Rahimzadeh’s back and neck. As further treatment was available to Ms Rahimzadeh, this condition could not be considered fully treated and fully stabilised.
·Bilateral carpal tunnel syndrome: Dr Dehsabzi referred Ms Rahimzadeh to Dr Shareef Dowla (neurologist) on 19 November 2018 for review and carpal tunnel release of her left wrist. As Ms Rahimzadeh is awaiting surgery, the condition could not be considered fully treated and fully stabilised.
Mr Kessel provided oral submissions to the Tribunal about the status of Ms Rahimzadeh’s medical conditions and requested the opportunity to file further medical evidence with the Tribunal. This evidence was received by the Tribunal on 22 August 2019: it included further reports by Dr Dehsabzi dated 13 June 2019 and Dr Pishyar dated 1 July 2019, and a report by Ms Tanya Vlasov (exercise physiologist) dated 11 July 2019.
For the purposes of this application for an extension of time, I am required to consider the prospects of success of the substantive application. I have had regard to the Secretary’s written submission and attached medical reports, and the additional medical evidence Mr Kessel filed with the Tribunal.
All the medical reports filed by Mr Kessel on 22 August 2019 are dated more than 12 months after the claim period and this means that I place extremely limited weight on these reports in relation to Ms Rahimzadeh’s application for disability support pension made on 8 March 2018. I also note that it is open for Ms Rahimzadeh to make a new application for disability support pension and for this medical evidence to be used to support any new claim.
On balance, I find the substantive application has limited prospects of success.
CONCLUSION
Taking into account all of the information before me, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
..............................[SGD]..........................................
Associate
Dated: 3 September 2019
Date(s) of hearing: 15 August 2019 Advocate for the Applicant: L Kessell, Adventist Development and Relief Agency Solicitors for the Respondent: T Hibberd, Department of Human Services
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