Re Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 276

Administrative Appeals Tribunal

DECISION AND REASONS FOR ORAL DECISION [2011] AATA 276

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0890

GENERAL ADMINISTRATIVE DIVISION		)
Re		WAYNE HAMILTON

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date18 April 2011

PlaceSydney

Decision Mr Hamilton’s application for an extension of time is refused.  

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Mr R P Handley
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time for making an application for review of decision – delay of over 12 months – change of applicant’s circumstances – Tribunal not satisfied that extension of time reasonable in all the circumstances – application for extension of time refused

RELEVANT ACT

Administrative Appeals Tribunal Act 1975, s 29(7)

CITATIONS

Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344; (1984) 7 ALD 315; (1984) 58 ALR 305

REASONS FOR DECISION

21 April 2011 Mr R P Handley, Deputy President

The following is my statement of reasons for deciding to refuse Mr Hamilton’s application for an extension of time for the making of an application to the Tribunal.  I explained the decision to him briefly at the conclusion of the hearing and he has subsequently sought a written statement.

STATEMENT OF REASONS

1.      Mr Hamilton has applied for an extension of time for the making of an application for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 22 January 2010, which was dispatched to him on 2 February 2010.  Mr Hamilton’s application to the Administrative Appeals Tribunal was lodged on 11 March 2011.

2. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the prescribed time for making applications for review is 28 days after notification of the decision. Section 29(7) permits the Tribunal to grant an extension of time if satisfied that “it is reasonable in all the circumstances to do so”. This is an unconfined discretion, but the Tribunal is guided in exercising its discretion by a number of considerations which are usefully summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 348-349. These considerations include whether the Applicant has given a reasonable explanation for the delay, whether the Applicant made the Respondent aware that the finality of the relevant decision was being contested, prejudice caused to the Respondent by the delay, any adverse impact that might be caused to others, whether the substantive application has merit, and considerations of fairness with regard to others and the public interest.

3.      Mr Hamilton explained that he had borrowed $75,000, secured by a charge over his and his wife’s family home, in order to lend this sum to his son and daughter-in-law to assist them in purchasing a new home.  He said while ordinarily the loan taken out to acquire an asset can usually be set off against an asset, in this case, Centrelink have declined to do so because the charge securing the loan is over an ‘exempt asset’ for the purpose of the income and assets test used to assess pension entitlement.  Thus, Centrelink says Mr Hamilton has an asset of $75,000 – the loan to his son and daughter-in-law – but will not allow the charge to be taken into account, which would otherwise have reduced the value of the asset to nil.  Essentially, Mr Hamilton says this is unfair.

4.      Mr Hamilton said at the time of the SSAT decision, this outcome only altered the amount of pension paid to him by between $8 and $12 per fortnight because his wife still had an earned income.  However, Mrs Hamilton has now been forced to retire because of ill health, and the amount of pension being paid to Mr Hamilton is adversely affected – is reduced – by about $66 a fortnight.  Mr Hamilton is, therefore, seeking a review of the SSAT decision because of their changed circumstances.

5.      Mr Hamilton said he had received advice from a Centrelink officer suggesting that the decision was wrong, and noted that the Centrelink website does not advise about the exemption in respect of the principal family home. 

6.      Ms Horan, for the Respondent, noted the 28‑day limit for applications for review.  She said the Social Security legislation does not contain a discretion permitting any part of a loan to be disregarded in circumstances such as Mr Hamilton’s.  Thus, the application for review is unlikely to succeed.

7.      I told Mr Hamilton the primary position with regard to applications for review is that applications for review outside time will not be permitted unless there is an acceptable explanation for the delay and it is reasonable in all the circumstances for the Tribunal to extend the time for the making of the application.

8.      In my view, Mr Hamilton’s principal argument is that the law as applied in his case is unfair.  Whether or not the law is fair, I am satisfied that Mr Hamilton’s substantive application has little prospect of success.  Prima facie the law appears to have been applied correctly by Centrelink.  Any unfairness in the law as it affects Mr Hamilton is not of itself a basis on which the decision can be set aside – it is a matter of ascertaining what the law is and how it should be applied in the particular circumstances of the case.

9. The other main reasons given by Mr Hamilton for seeking an extension of time are that his circumstances have now changed as a result of his wife’s retirement and that when he queried the matter with Centrelink, he received contradictory advice. Moreover, he said information provided on the Centrelink website was misleading. While I appreciate that if incorrect or misleading information has been provided, this is a matter of concern, I am not satisfied in the particular circumstances of this case that this warrants the Tribunal’s exercise of its discretion under s 29(7) of the AAT Act.

10. Mr Hamilton’s application for review was more than 12 months out of time. While the Respondent might not suffer any prejudice by reason of an extension of time being granted, I am not satisfied that Mr Hamilton’s explanation for his delay in making an application warrants the exercise of the s 29(7) discretion, bearing in mind considerations such as fairness to others in a like position and also the public interest, and in view of there being little prospect of success for the application.

DECISION

11.     Mr Hamilton’s application for an extension of time is refused.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:..........[sgd].....................................................................
           A. Veness, Associate

Date of Hearing  18 April 2011
Date of Decision  18 April 2011
Date of Written Reasons:  21 April 2011
Applicant  Self represented

Representative for the Respondent          Ms K Horan, Centrelink Advocacy Branch