RNBD and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 1086

RNBD and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1086 (24 July 2025)

Administrative Review Tribunal

Applicant/s:  RNBD

Respondent:   Secretary, Department of Social Services

Tribunal Number:   2025/2575

Tribunal: Senior Member Simon (second review)

Place:  Sydney  

Date:24 July 2025  

Corrigendum

Date of Corrigendum:         29 July 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alterations are made to the decision and statement of reasons for the decision:

1. The date ‘6 February 2024’ in the decision is replaced with ‘6 February 2025’.

2. The date ’28 June 2024’ in paragraph [7] is replaced with 2 August 2021.

3. The word ‘not’ is inserted between the words ‘would’ and ‘remain’ in paragraph [16].

29 July 2025

Applicant/s:  RNBD

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2025/2575

Tribunal:Senior Member Simon (second review)

Place:Sydney

Date:24 July 2025

Decision:The Tribunal extends time, until 6 February 2025, for the making of the application for second review of the decision.

24 July 2025

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

SOCIAL SECURITY – extension of time for making of second review application – time extended.

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security Act 1991

Cases

Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Englezos v Secretary, Department of Social Services [2023] FCA 31

PSZD and Secretary, Department of Social Services (Practice and procedure) [2025] ARTA 69

Secondary Materials

Administrative Review Tribunal Rules 2024

Statement of Reasons

1. The applicant seeks an extension of time for the making of the application for second review of a decision made by Services Australia – Centrelink (Centrelink).

2. On 20 October 2018 Centrelink decided to raise a debt of $29,964.35 due to overpayment of parenting payment single for the period 2 July 2004 to 2 September 2008.

3. The applicant subsequently made an application for first review to the Tribunal. On 2 August 2021, the decision was reviewed and affirmed by the Tribunal. On 6 February 2025, the applicant applied to the Tribunal for second review of the decision and for an extension of time to lodge the second review application. 

4. This decision and these reasons deal with the extension of time application.

5. The parties appeared at the hearing by telephone.

6. Pursuant to s 131D of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act'), a person whose interests are affected by an ART social services decision may apply to the Tribunal for second review of the decision. An ART social services decision includes an eligible social services decision which has been affirmed by the Tribunal; s 131D(3)(a). An eligible social services decision includes a decision made under the Social Security Act 1991; s 131C(g).

7. The decision made by the Tribunal on 2 August 2021 is an eligible social services decision and the applicant’s interests are affected by the decision.

8. Section 131J of the ART Act, provides that an application for second review must be made within the time prescribed under s 18 of the ART Act. Section 18 of the ART Act and rule 5 of the Administrative Review Tribunal Rules 2024 prescribe a period of 28 days for the making of the application. Subsection 19(2) of the Administrative Review Tribunal Act allows for the Tribunal to order the extension of the period to apply to the Tribunal for review. The provision provides that time should be extended if ‘the Tribunal considers that it is reasonable in all the circumstances to do so’.

9. As was outlined in PSZD and Secretary, Department of Social Services (Practice and Procedure) [2025] ARTA 69 at [11], considerations which may be relevant to the Tribunal determining whether it is reasonable in all the circumstances to extend time will generally include:

   (i)The length of delay;

   (ii)The explanation for the delay;

   (iii)Any prejudice to the respondent;

   (iv)The public interest;

   (v)Whether the substantive application has reasonable prospects of success

   Delay

10. Consistent with the objectives contained in s 9 of the Administrative Tribunal Review Act, time limits assist in ensuring ‘that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.’ Time limits should generally be enforced unless that it is reasonable in all the circumstances to extend time.

11. The cover letter enclosing the first review decision is dated 10 August 2021 and indicates the decision was sent to the applicant at her email. In her application for second review the applicant records that she received the decision on 2 August 2021. Calculating the 28-day period from even 10 August 2021, the application for review should have been made by 7 September 2024. The application was not made until 6 February 2025. The application was made over 3 years out of time which constitutes a significant delay.

    The explanation for the delay

12. In the matter of Englezos v Secretary, Department of Social Services [2023] FCA 31 the Court said at [39]:

    39. Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not "mere aspirational guidelines" and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD 16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].

13. The applicant stated the following in relation to the reasons why she delayed in making her second review application:

    -She has post-traumatic stress disorder and attention-deficit/hyperactivity disorder. She held a fear of making the second review application in case she would go to jail.

    -She has new evidence to support her submissions relating to her domestic violence which she didn’t know to produce at the time.

    -She feels that her words were misinterpreted in the first review proceedings and the decision was wrong.

14. The applicant couldn’t remember if she had read the covering letter that enclosed the first review decision. However, it stated in the letter:

    You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on 1800 228 333.

    There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).

15. The Tribunal finds that the applicant was informed of the time limits that applied at the time of making the decision.

    Prejudice to the respondent

16. If the extension of time were granted, the respondent would be required to participate in the proceedings. Some time has passed since Centrelink made the decision, however there is no indication that the relevant records would not remain available. The respondent has not demonstrated any further prejudice if the extension of time to make the application was granted. On that basis there would not be significant prejudice to the respondent in participating in the proceedings if the extension of time was granted.

    Public interest

17. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [6], Toohey and Gummow JJ explained that one of the rationales for time limitations is that the public interest requires that disputes be settled as quickly as possible.

18. The respondent makes the submissions that it remains open to the applicant to have the balance debt owed internally reviewed by Centrelink at any time for write off or waiver if her circumstances have changed. The respondent also submits that should the applicant disagree with that outcome, she could have the matter reviewed by the Tribunal again. They submit that it is also open to the applicant to enter into an agreement with Centrelink for the repayment of the debt at a modest rate. In the Tribunal’s view, while such an approach may be open to the applicant, it does not assist in relation to the review of the debt as a whole and would require the applicant to start afresh.

19. The respondent submits that the public interest, and the interests of those applicants who comply with the prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur. The respondent also submits that this factor weighs against an extension of time being granted.

    Prospect of success

20. The applicant was granted parenting payment single on 5 July 2004. On 6 July 2004, Centrelink sent the applicant a notice pursuant to section 68 of the Social Security (Administration) Act 1991. The notice informed the applicant of her obligation to advise of any change in relationship status, income and/or assets, within 14 days.

21. On 19 September 2008, the applicant was interviewed by Centrelink and she provided information regarding her relationship. On 20 October 2008 Centrelink raised the debt of $29,964.352 on the basis that she was a partner and her partner’s income from employment had not been considered in determining her rate of parenting payment.

22. On 18 May 2021, the decision was reviewed and affirmed by an authorised review officer for Centrelink.

23. On 2 August 2021, the decision was reviewed and affirmed by the Tribunal on first review. The Tribunal relevantly set out the following in relation to the applicant’s relationship:

    9. [the applicant] said she is not disputing that she and [the applicant’s partner] were in a relationship and living together during the debt period. However, she does not believe there should be a debt because the relationship was characterised by control and domestic violence. She said [her partner] would come and go as he pleased, did not support her financially, and was physically violent and manipulative.

    …

    11. After Centrelink stopped her payments in 2008 [the applicant] said she had to go back to work. [the applicant’s partner] did not provide for the family and [the applicant] relied on her mother to buy things for the children. They had a joint bank account but her money went to an account in her name only. She paid the rent and for groceries. Although she was able to use the joint account [the applicant’s partner] would spend all his money on drugs or whatever he wanted.

    …

    [the applicant] has provided reports confirming she was hospitalised after being assaulted by [the applicant’s partner] in 2011. She has also submitted a letter from Domestic Violence Crisis Service stating he has been engaged with the service since 2006. A domestic violence order was issued on 9 July 2014.

24. The Tribunal then proceeded to consider whether the debt was due under s 1223 of the Social Security Act 1991 and whether the debt should be recovered. The Tribunal set out s 1237AAD of the Social Security Act in relation to waiver for special circumstances. The Tribunal then stated:

    27. Courts and tribunals have been reluctant to assign a precise meaning to the phrase “special circumstances”. It is generally agreed, however, that for special circumstances to exist, there must be something out of the ordinary about a person’s case that makes it unreasonable for them to have to repay their debt. In Groth v Secretary, Department of Social Security [1995] FCA 1708, Kiefel J, at [12], summarised this as follows:

    The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case (at 60 ALR 229; 7 ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish the applicant’s case from others, to take it out of the usual or ordinary case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

    28. In considering this waiver provision, the tribunal is also mindful of the purpose of the social security system, the Parliament’s intention that payments are made on the basis of need and that debts should generally be recovered unless there are special circumstances. This means that social security recipients who receive money they are not entitled to receive are generally expected to repay it unless repayment would be unjust, unreasonable or inappropriate in the particular circumstances.

    29. [the applicant] has been repaying the debt by deductions from her continuing Centrelink payments. It is a large debt which will take many years to repay and I can understand that she now wishes to put this unhappy period behind her. However, she has had the benefit of the monies paid and there is nothing to distinguish her situation from others in similar circumstances. Taking those matters into account as well as the public interest in monies paid in excess of entitlement being recovered, the Tribunal finds that there are no special circumstances warranting waiver under paragraph (b) of section 1237AAD of the Act. The debt therefore cannot be waived under this section.

25. The applicant stated that as a person who was experiencing domestic violence and the mental health issues, she had found it very difficult to go against her partner at the time. She stated she also has police numbers in relation to complaints which she could produce.

26. A second review application is a review of the application afresh. The Tribunal at first review did not make a finding in relation to whether the applicant experienced domestic violence or coercive control. The Tribunal provided little by way of explanation of how the Tribunal had balanced the applicant’s evidence of domestic violence and coercive control against the intentions that parliament intends that debts should be repaid or why the applicant’s circumstances were not out of the ordinary.

27. Moreover, the Tribunal on first review gave no consideration to the definition of ‘member of a couple’ contained in s 4(6) of the Social Security Act1991 or s 24 which sets out circumstances in which a person may be treated as not being a member of a couple.

28. There remains a balance of the debt outstanding.

29. Without pre-empting the outcome of any second review application, on reviewing the decision at first review and the evidence presently before the Tribunal, the Tribunal is satisfied that the second review application is not lacking in merit and has prospects of success.

    Conclusion

30. Weighing up the relevant factors, the Tribunal grants an extension of time for the making of this second review application.

31. There has been a significant delay in making the second review application. The Tribunal accepts the reasons for the why the applicant delayed in making the application. The applicant has mental health issues and was fearful of other consequences of making the application, including that she may be prosecuted for fraud which would result in jail. There is no significant prejudice to the respondent if the matter were to proceed. More importantly, the second review application is not lacking in merit and the Tribunal accepts that there should be a consideration of whether any application of s 4 and 24 of the Social Security Act1991 would result in the applicant not being considered a member of a couple and an assessment of whether the applicant did experience domestic violence or coercive control and if applicable, a proper balancing of the factors in the exercise of the discretion as to whether to waive any or part of the debt on the basis of special circumstances. For those reasons the Tribunal considers that it is reasonable in all the circumstances to extend time for the making of the second review application.

    DECISION

    The Tribunal extends time, until 6 February 2025, for the making of the application for second review of the decision.

Date of hearing:

23 July 2025

Representative for the Applicant:

Representative for the Respondent:

Self-represented

L Van Mai - Government Lawyer