Reid and Secretary, Department of Family and Community Services

[2005] AATA 1312

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1312

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/169

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARILYN REID

Applicant

And SECRETARY,  DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

INTERLOCUTORY DECISION

Tribunal Ms A F Cunningham (Part-Time Member)

Date23 December 2005  

PlaceHobart

Decision The application for extension of time is refused

..............................................

Part-Time Member

CATCHWORDS

Application for extension of time – seven years after decision under review -  applicant’s life since characterised by significant events – applicant always aware of and understood her rights of appeal – applicant undertook university degree during the period – no satisfactory explanation for delay for entire period – Tribunal determined not reasonable in all of the circumstances to extend time – application refused

Administrative Appeals Tribunal Act 1975, S29(7)

Hunter Valley Developments Pty Ltd v Cohen 1984 3 FCR 344

Johnson and  Commonwealth (5 January 1990, 5619)

REASONS FOR INTERLOCUTORY DECISION

23 December 2005 Ms A F Cunningham (Part-Time Member)         

1. This was an application made pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (“the Act”) for an extension of time in which to lodge an application for the review of a decision. The original decision which it is sought to review was made by Centrelink on 18 February 1998 and affirmed by the Social Security Appeals Tribunal (SSAT) on 25 February 1999. The decision concerned the raising and recovery of a debt of $5,178.00 relating to overpayments of Family Payment in 1996.

2.      The applicant was represented by Ms Georgina Munday and gave oral evidence at the hearing.  The respondent was represented by Mr Brian Sparkes.  No oral evidence was called by the respondent but several documents were tendered in evidence including file notes of telephone conversations between the applicant and the respondent.  The Tribunal had received detailed written submissions from both parties prior to the hearing.

3.      Ms Munday submitted that the applicant was able to explain the reasons for the delay in the lodgement of her appeal.  She contended that the applicant had not “rested on her rights” without due cause and  that the appeal process was continually present in her mind.  Her failure to lodge the appeal had been due to circumstances beyond her control.

BACKGROUND

4.      Ms Munday contended that the applicant’s life since the SSAT decision had been characterised by her husband’s bankruptcy and ill mental health, the breakdown of her marriage, 18 months of personal ill health, her brother’s attempted suicide and a brutal attack on her son.  This left the applicant little time to contemplate an appeal to the AAT. 

5.      Mr Sparkes submitted that although there were periods of time within the last 6½ years since the SSAT decision during which the applicant may have been preoccupied with the above events, there were significant periods during which the applicant could have lodged her appeal. 

6.      The applicant, Marilyn Reid stated that she always believed that the decision of the SSAT was incorrect and contacted the office to complain about the decision shortly after it was received.  Ms Reid recalled receiving the decision in the mail with a covering letter which was not signed.  She was troubled by the fact that the original date on the letter had been removed by white-out solution and the letter redated.  She said that whilst she had no specific recollection of having received accompanying documentation advising of her appeal rights to the AAT, she did not dispute that it would have been sent. 

7.      Upon receiving the SSAT decision, Ms Reid telephoned the office to complain about the discrepancies in the decision.  She recalls being told that she could appeal the decision to the Ombudsman.  She was unhappy with the response and attitude of the person to whom she had complained.  Ms Reid said in evidence that her main concerns at the time were the lack of professionalism by the office particularly with respect to the unsigned and redated letter which led to her lacking confidence in the system. 

8.      Several months after receiving the decision, Ms Reid’s husband was declared bankrupt on 23 March 1999.  Ms Reid stated that this was a very stressful period for her which was occasioned by the failure of their business, sale of the family home and consequent relocation. 

9.      Ms Reid was subsequently unemployed for a period of time and spoke of her distress in having unsuccessfully applied for approximately thirty jobs.  Ms Reid’s husband had been attending university since about 1997 during which time she was primarily responsible for the children and the domestic duties.   Ms Reid related that her son was continually in trouble and that she bore the brunt of his wayward behaviour. 

10.     There being little prospect of employment for Ms Reid, she enrolled in a TAFE course in 2000 and subsequently a full-time university degree in 2001.  In October of that year she was diagnosed with a medical condition that required surgery in November.  Ms Reid recovered from her condition over the forthcoming twelve months.

11.     In August 2002 Ms Reid and her husband separated.   Ms Reid was forced to seek Centrelink benefits and found part-time work as a cleaner with The Cleaning Lady Agency.

12.     Ms Reid completed her Bachelor of Arts Degree in 2003.  Reflecting on this period of time she said that she had thrown herself into her studies to escape the stresses of life.  She estimated spending between forty and fifty hours each week studying and achieved a First Class Honours Degree and enrolment on the Dean’s Role of Excellence.  Ms Reid is currently undertaking a PHD with the support of a scholarship and casual work at the university.  Ms Reid stated that she now had “the space to address these issues”. 

13.     Mr Sparkes argued that whilst Ms Reid contends that she had been unable until the present time to undertake an appeal to the AAT, he asked the Tribunal to take account of the fact that she first received advice from Centrelink in September 1998 regarding the overpayment and raising of the debt.  Ms Reid had sought a review of the decision and being dissatisfied sought two reviews and a subsequent appeal to the SSAT which involved the provision of a written statement and her personal appearance. 

14.     When asked by Mr Sparkes what most concerned Ms Reid about the decision of the SSAT, she replied that they did not appear to have any record of the telephone call that she made to Centrelink at 8.36 am on Monday 24 November 1997 to advise of her change in circumstances.

15.     There was no dispute between the parties that Ms Reid’s income for the 1996/1997 financial year exceeded $32,192.60 in that it was $38,669.00, this resulted in an overpayment of $5,178.70.  The majority of this debt has been repaid with the balance remaining being $472.17. 

16.     It was also not disputed by Ms Reid that a letter was sent to her on 19 December 1995 advising that the amount of income used to work out her rate of pension was $29,266.00 representing the combined income of Ms Reid and her partner for the 1995/96 financial year.  Ms Reid was advised in this letter that she must notify Centrelink if either she or her partner “start work or recommence work, change jobs, or start self-employment or; are self employed and your combined income will be more than $32,192.60 in the 1995/96 or 1996/97 financial years;  ...”.  Further it was not disputed by Ms Reid that a letter was sent to her dated 15 December 1996 advising that the income used to work out her family payment was $22,500.00 and that she should advise if that combined income is more than $26,371.40 for the 1995/96 or 1996/97 financial year.  Copies of these letters were tendered in evidence.

17.     It was Ms Reid’s contention that she took the appropriate steps to notify Centrelink once she was advised by her accountant of the increase in income for herself and her husband.  This had resulted from the restructuring of the family business when one partner left the business and Ms Reid and her husband’s share of the partnership increased from 50% to 66%.  Ms Reid said that she and her husband had originally owned 100% of the business which was changed to a 50% share when her brother and another partner joined the business then subsequently varied to a 66% interest with the departure of one of the partners.

18.     It was Mr Sparkes contention that Ms Reid would have been aware of an expected increase in income upon the departure of their business partner and the subsequent restructuring of the business increasing their share from 50% to 66%.  Accordingly Ms Reid should have notified Centrelink forthwith in accordance with her statutory obligation as advised in the correspondence referred to above.

LEGISLATION

19. An appeal to this Tribunal is to be made within 28 days of the reviewable decision. Sub-section 29(7) of the Act states:

“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”.

20.     It was stated by Justice Wilcox in the decision Hunter Valley Developments Pty Ltd v Cohen 1984 3 FCR 344 at page 348:

“The “prescribed period” of twenty-eight days is not to be ignored.  Indeed, it is a prima facie rule that proceedings commenced outside the period will not be entertained.

It is a precondition to the exercise of the discretion in his favour that the application for an extension of time show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time”.

21.     The Tribunal in re Johnson and Commonwealth (5 January 1990, 5619) listed the relevant considerations in determining whether it is proper to entertain an application for an extension of time as being:

1.  whether or not the applicant rested on her rights or took action to make the      decision-maker aware that the decision was contested; 

2. any prejudice to the respondent that would be caused by granting the     extension of time;

3. any wider prejudice to the general public in terms of disruption to            established practices;

4.  the merits of the substantive application;

5. fairness in granting the extension of time as between the applicant and other persons in a like position

HAD THE APPLICANT RESTED ON HER RIGHTS?

22.     It was not disputed that Ms Reid was aware of her appeal rights at the time of receipt of the SSAT decision.  Ms Reid contends that it has been only recently that she has been in a position to lodge an appeal to the AAT.

23.     It is now over seven years since Ms Reid was advised of the original decision to raise a debt against her in the sum of $5,178.00.  Whilst she sought the review of the original decision and lodged an appeal to the SSAT, since February 1999 she has not taken any action to have the decision reviewed by this Tribunal.  Ms Reid says that she was not in a position to do so.   The Tribunal does not accept this.  Whilst the Tribunal acknowledges that there have been significant events since the SSAT decision, these events have not fully occupied Ms Reid for the entire seven year period.  Nor could it be said that all of the events were so outside the ordinary course of living and not experienced by other members of the community to be classified as so unusual as to prevent a person from lodging an application with the Tribunal for review of a decision.

24.     It was Ms Reid’s evidence that whilst she believed the SSAT decision to be “a poor decision” and had intended to have it reviewed, the impetus for her application to the AAT was when she sought a waiver of the balance of the debt of $472.17.  In late 2005 Ms Reid wrote to Centrelink and was subsequently advised by telephone that she would need to lodge her application in accordance with the applicable legislation.  She was disappointed with the response and decided at that stage to seek a review of the original decision.

25.     In summary Ms Reid was at all times aware of her right of appeal having been advised accordingly at the time of the receipt of the decision of the SSAT.  Her main concern regarding the SSAT decision was the lack of professionalism with the accompanying correspondence and the uncaring attitude of the departmental officer whom she had contacted by telephone.  There is no question of Ms Reid’s incapacity or lack of understanding regarding her appeal rights.  Ms Reid was undertaking a university degree from 2001 and prior to that was enrolled at TAFE.  On her evidence the catalyst for this application was Centrelink’s refusal to waive the balance of the debt which she had been paying since 1999. 

PREJUDICE TO THE RESPONDENT

26.     The Tribunal accepts that a delay of over seven years since the original decision may present difficulties for the respondent in the presentation of all relevant documentation and oral evidence from relevant witnesses.

WIDER PREJUDICE TO THE GENERAL PUBLIC

27.     There is little precedent for the granting of an extension of time application some seven years after the original decision.  Whilst the Tribunal accepts that it has an unfetted discretion to extend time that discretion must be exercised with respect  to the relevant circumstances of each case.  The Tribunal is not satisfied that the applicant’s circumstances warrant the exercise of a discretion in the current case, where the applicant was at all times aware of her right of appeal.  The Tribunal agrees that there were significant periods of time in the last seven years when the applicant was not unduly troubled by any significant events and when an application could have been made.

28.     As stated by the Federal Court in the Hunter Valley Development’s decision, the prescribed appeal period of 28 days is not to be ignored.  The applicant has not shown an acceptable explanation for the delay in the current case.

MERITS OF THE SUBSTANTIVE APPLICATION

29.     Whilst it was Ms Reid’s contention that she notified Centrelink as soon as she was made aware by her accountant of an expected increase in her annual income, the Tribunal accepts Mr Sparkes’ submission that the applicant should have been aware of an expected increase in income at the time of the readjustment of their partnership share from 50% to 66%.

30.     The Tribunal further notes that Ms Reid does not dispute the increase in income, nor the debt raised against her which was calculated on the basis that her income for the relevant year exceeded the maximum combined yearly income for entitlement to a family payment benefit.

31.     Whilst it was argued that Ms Reid did not expect her combined income to exceed the stated amount for the year until she was so advised by her accountant, the fact remains that her income did exceed the maximum income level for qualification for the family payment and the debt raised against her was not a disputed amount.  Further Ms Reid has repaid the majority of the debt all bar $471.00.   On balance the Tribunal concludes that it would not be fair and equitable in the circumstances to grant the application for extension of time.

FAIRNESS IN GRANTING THE EXTENSION OF TIME AS BETWEEN THE APPLICANT AND OTHER PERSONS IN A LIKE POSITION

32.     The Tribunal has already addressed this issue above.

33.     The applicant having failed to satisfy the Tribunal that it would be reasonable in all of the circumstances of this case to extend time for the lodgement of her application for review, for the above reasons refuses the application.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-Time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  8 December 2005
Date of Decision  23 December 2005
Counsel for the Applicant         Ms Georgina Munday
Solicitor for the Applicant          Hobart Community Legal Serrvice
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink