Reilly and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1182
•7 June 2019
Reilly and Secretary, Department of Social Services (Social services second review) [2019] AATA 1182 (7 June 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2580
Re:Holly Reilly
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:7 June 2019
Place:Sydney
The application for an extension of time is granted.
..............................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – explanation for delay – prospects of success – prejudice to respondent and public – Tribunal satisfied that reasonable in all the circumstances to grant extension of time – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Paid Parental Leave Act 2010 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Hillman v Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd v Cohen and Others [1984] FCA 176
Jamal v Secretary, Department of Social Services [2018] FCA 513
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886
Phillips v Australian Girls’ Choir [2001] FMCA 109
SECONDARY MATERIALS
Paid Parental Leave Guide version 1.57
REASONS FOR DECISION
Chris Puplick AM, Senior Member
7 June 2019
APPLICATION FOR EXTENSION OF TIME
Under various provisions of Part 5 of the Paid Parental Leave Act 2010, where a person is dissatisfied with a decision made by the Department they may seek to have that decision reviewed by the Administrative Appeals Tribunal.
In this instance, after a series of internal reviews this matter came before the Social Services and Child Support Division of this Tribunal (AAT1) which, on 28 August 2018 handed down a decision affirming the original decision by the Department to deny the Applicant’s application for the payment of parental leave (PPL).
An Applicant is entitled to a second review of a decision made by this Tribunal in relation to certain decisions.
In the normal course of events, if an Applicant seeks to have an AAT1 decision reviewed, an appeal must be lodged within 28 days of the decision (Administrative Appeals Tribunal Act 1975 s 29(2)).
The AAT1 decision was made on 28 August 2018.and the 28th day to file a further appeal was 25 September 2018. On the 10th of May 2019 the Applicant lodged an appeal with this Tribunal which was some eight months out of time..
The Applicant now seeks leave to extend the time to lodge a further appeal in order for this Tribunal to review the matter.
The AAT Act provides (section 29(7)) that the Tribunal may grant such extensions of time where it is “satisfied that it is reasonable in all the circumstances to do so.”
In determining what is reasonable, the Tribunal takes its guidance from a number of court decisions, notably Hunter Valley Developments Pty Ltd v Cohen and Others [1984] FCA 176 where the Court laid down a series of tests to be applied in the consideration of requests for extensions of time.[1]
[1] See also Hillman v Australian Postal Corporation [2017] AATA 1411; Phillips v Australian Girls’ Choir [2001] FMCA 109.
Without going through all of the Hunter Valley principles at this stage, suffice to say that, in this instance there are two of particular relevance:
1.Has the Applicant shown a good and sufficient reason why the extension of time should be granted; and
2.If the appeal were to progress to a full merits-based hearing would there be any reasonable prospect that it would be successful?
Reasons for delay
The Applicant has put forward evidence that, during the relevant period, she was suffering considerable stress and hardship arising from being the victim of domestic abuse and violence. The Tribunal has before it some evidence in the form of Apprehended Violence Orders taken out against the Applicant’s partner and evidence from a Registered Psychologist attesting to the Applicant’s suffering from complex post-traumatic stress disorder. The Applicant submits that during this period she had fears for her own safety and that of her children and as a consequence was forced to relocate to safer accommodation. She was apparently homeless for some time during the relevant period.
Although the letter from the Psychologist is not dated, the Tribunal accepts that it is a fair reflection of the distress suffered by the Applicant during the relevant period.
As will be discussed below, the Applicant claims that she was active in pursing her PPL claim from April 2017 through to the present period and, as such, it cannot be asserted that she has done nothing and rested on her rights.
In considering both the Applicant’s written submissions and oral testimony to the Tribunal in addition to the Respondent’s concession that the Applicant faced “unusual and exceptional circumstances”, the Tribunal is prepared to accept that there was a sufficient reason for the appeal application not to have been lodged on time.
MERITS OF THE APPEAL
The Respondent
The Respondent’s case against the granting of an extension of time may be outlined as follows:
·To be eligible for PPL a series of tests or requirements must be met. An Applicant must satisfy a work test, meet an income test, be an Australian resident and primary carer of a child and they must not have returned to work (PPL Act s 4 and s 31).
·Section 31(2)(e) of the Act is very specific. It reads: “[A] person is eligible for parental leave pay for a child on a day if, on that day the person has not returned to work.”
·The evidence before the Tribunal is that, after the birth of the Applicant’s child on 5 April 2017, the Applicant returned to work on 5 July 2017 before lodging her claim for PPL on 21 December 2017.
·Section 48 of the Act provides a definition of what constitutes “return to work” and it is clear that the Applicant had in fact done so.
·That is, the Applicant lodged her claim for PPL after she returned to work.
·There are some exceptions to the return to work rule for PPL which are set out in the Paid Parental Leave Guide (section 2.2.13) which were revised in February 2017, covering certain matters where the return to work requirements are modified.
·Unfortunately for the Applicant, none of them cover her circumstances.
·This means that, by virtue of the statute the Applicant is not eligible for PPL and there is nothing that this Tribunal can do which can in any way make her eligible. The law is clear and the Tribunal is bound to follow it.
·The Department admits that this Applicant presents in “unusual and exceptional circumstances” (Respondent’s, Statement of Facts, Issues and Contentions at [45]) but nevertheless indicates that, because there is no discretion available to the Tribunal (or anyone else) in this matter, this particular application cannot succeed.
·The Courts have made it clear that where there is no prospect of ultimate success, it would be improper and unfair to the Applicant, theand waste of Tribunal resources to review the matter (Jamal v Secretary, Department of Social Services [2018] FCA 513; Afu v Minister for Home Affairs [2018] FCA 1311; Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886).
The Applicant
The Applicant puts forward a different version of events to the Tribunal:
·After the birth of her baby on 5 April 2017 the Applicant made numerous attempts to complete an application for PPL which she did, both at the hospital before her discharge on 6 April and subsequently on 20 April 2017. Under oath, the Applicant stated that she has some documentary evidence to show that this was case. However when she attempted to complete the on-line application for PPL she encountered significant difficulties in uploading material and was directed (automatically) to repeat the process, which she did on several occasions.
·The Applicant made further contact, online, with the MyGov website to lodge relevant documents related to her claim. The Applicant spoke to several officers at Centrelink to seek their assistance, a process which culminated with the lodgment of her claim, with the assistance of a Centrelink officer (by telephone) on 21 December 2017. This claim however was simply a delayed version of a claim which she had been attempting to lodge since 20 April 2017.
·In support of these claims the Applicant relayed a series of reference numbers (at least three being given to the Tribunal) which attest to her contacts with the Department as from 20 April 2017. The Applicant did not personally attend a Centrelink office because, with two small children to manage, she expected that she would be able to do all the necessary paperwork online.
·Regarding the “return to work”: this was an artificial date being exactly 3 months after the birth of her baby and was a date given because some date had to be given. To her, 3 months seemed like the appropriate time given her experience when receiving PPL for her previous child. The Applicant works in her own (self-employed) small business providing fitness/wellness exercise classes and therapy for children and new parents. In truth, the Applicant did not return to any meaningful or paid employment until around Christmas time 2017.
STATUS OF EVIDENCE
The Respondent, rightly, points out that it would have been of assistance to both the Respondent and Tribunal were the Applicant’s material to have been to hand at the time of the hearing. This would have allowed for the Respondent to cross-reference/match the quoted file/reference numbers and offer some guidance to the Tribunal. It would have also allowed some better consideration of whether or not there was evidence that the Applicant had submitted any acceptable form of application for PPL as the Respondent’s principal ground for opposing this application is that there is no record of any such application being lodged before 21 December 2017.
On the other hand, if the Applicant is correct and such evidence exists, it would not be proper for the Tribunal to deny her the right to have it examined and tested for its probative value in support of her case, that is, she lodged an on-line application in the period around 20 April to 1 May 2017.
When pressed as to why such evidence was not put before the AAT1, the Applicant stated that, at that time, she was dealing with particularly difficult matters related to domestic violence and psychological trauma issues. The Tribunal, on the basis of material before it, finds this to be a reasonable explanation.
In balancing these various considerations, the Tribunal cannot conclude that there is no prospect of success for the Applicant at a full merits-hearing and as a result, the interests of justice are better served by allowing the application to go forward and for the claims to be tested properly.
OTHER HUNTER VALLEY CONSIDERATIONS
Although this application should succeed on the basis that there are reasonable grounds for delay in the lodgment of her application and the Tribunal cannot conclude that it has no prospect of success, for the sake of completeness, the other grounds identified in the Hunter Valley decision should be at least considered.
(a)Prejudice to the Respondent: Although the Tribunal appreciates that granting a stay will involve the Respondent in additional resource allocation and denies it, temporarily, the comfort of finality, the Tribunal does not regard this as causing it unacceptable prejudice. Indeed, were the Applicant to be successful it would demonstrate some failings on the part of the Department and its systems which could be corrected, to the benefit of both the Respondent and the public
(b)Upsetting of established practices: The Tribunal does not consider that this is a material issue for exactly the same reasons as stated in the paragraph above.
(c)Fairness in relation to other Applicants: Although the eight month delay is substantial and although this matter has been considered by AAT1, this Tribunal believes that the Applicant has raised a significant number of issues about the systems of the Department, especially in relation to questions of access to and operation of its online portals and the nature of record creation/keeping in relation to interactions with clients over the telephone, that it would not be unfair to have those issues explored and understood. Other applicants experiencing potentially similar problems may well be advantaged by this process.
DISCUSSION
The Tribunal believes that the Applicant has provided a reasonable explanation for the delay in submitting her application for review and that their case cannot be said to be entirely devoid of prospects of ultimate success. The Tribunal finds that it is satisfied that it is reasonable in all the circumstances to grant the extension.
DECISION
The application for an extension of time is granted.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 7 June 2019
Date(s) of hearing: 5 June 2019 Applicant: By phone Solicitors for the Respondent: Mr G Lozynsky, Department of Human Services (by phone)
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