Robyn Croft and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 332

[2013] AATA 332 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1882
Re	Robyn Croft
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	23 May 2013
Place	Sydney

The Tribunal refuses the application for an extension of time to lodge an application for review of a decision.

........[sgd]................................................................

Senior Member J F Toohey

CATCHWORDS

EXTENSION OF TIME – relevant considerations – acceptable reasons for delay – no prospect of success – extension of time refused

SOCIAL SECURITY – pensioner concession card – foster carer – foster child now aged 16 – whether applicant qualifies for pensioner concession card – legislation clear that applicant not qualified once child turns 16

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 29

Social Security Act 1991 ss 5(15), 1061ZA

REASONS FOR DECISION

Senior Member J F Toohey

23 May 2013

1. Robyn Croft has been the foster carer for Jake since he was two years old.  She is currently studying, and receiving Austudy.  Previously, she was receiving parenting payment and then newstart allowance.

2. On 30 August 2013, when Jake turned 16, Centrelink cancelled Ms Croft’s pensioner concession card.  On 27 February 2013, the Social Security Appeals Tribunal (SSAT) decided that Centrelink’s decision was correct.  On 8 March 2013, the SSAT sent its decision and a statement of reasons to Ms Croft.

3. On 29 April 2013, Ms Croft lodged an application with the Administrative Appeals Tribunal for review of Centrelink’s decision. 

4. As a general rule, an application for review must be lodged with the Tribunal within 28 days after an applicant receives a decision: ss 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  Allowing one week for Ms Croft to receive the SSAT’s decision, this means she should have lodged her application with the Tribunal by 12 April 2013 at the latest. 

5. The Tribunal has discretion to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7) of the AAT Act.

6. The factors to be considered when deciding whether to grant an extension of time include: whether there is an acceptable explanation for the delay, and whether the application would have any prospect of success if the extension of time were granted.

7. Ms Croft lodged her application approximately 17 days late because she understood the Anti-Discrimination Board of NSW was the proper place to seek review of the SSAT’s decision.  When she learned that the Board cannot consider complaints about Commonwealth agencies and she should have applied to this tribunal, she lodged her application here.  The delay was relatively short, and I am satisfied Ms Croft has given an acceptable explanation for it.

8. The real difficulty with Ms Croft’s application is that it has no prospect of success. 

9. To qualify for a pensioner concession card, a person must satisfy the criteria in s 1061ZA of the Social Security Act1991 (the Act).  They include that a person is the principal carer of at least on child and is not a member of a couple.

10. The definition of principal carer is in s 5(15) of the Act which states:

    A person is a principal carer of a child if:

    (a)the child is a dependent of the person; and

    (b)the child has not turned 16 years of age.

11. Jake has special needs and is dependent on Ms Croft.  However, as he has now turned 16, the legislation is clear that Ms Croft is no longer his principal carer for the purposes of the Act.

12. Ms Croft accepts that she is not a principal carer for the purposes of the Act and that, according to law, she no longer qualifies for a pensioner concession card.  However, she says, the law works against foster carers who are caring for a child with special needs and who cannot go out to work just because the child has turned 16.  She wants to pursue what she regards as an injustice and a form of discrimination against foster parents.  She accepts that this tribunal cannot change the law and will pursue her case elsewhere.

13. As Ms Croft’s application has no prospect of success, no purpose would be served in granting her an extension of time.  Her application is therefore refused.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

......[sgd]..................................................................

Associate

Dated 23 May 2013

Date(s) of hearing	23 May 2013
Applicant	In person
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch