Saleeba and Secretary, Department of Social Services (Social services second review) - [2018] AATA 44

Saleeba and Secretary, Department of Social Services (Social services second review) [2018] AATA 44 (12 January 2018)
Division:GENERAL DIVISION
File Number: 2017/5515
Re:Eileen Saleeba
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:12 January 2018
Place:Perth

The Tribunal refuses to grant the Applicant an extension of time to lodge an application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 13 July 2017.
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Deputy President Dr Christopher Kendall
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – applicant lodged application for review four weeks after required date – applicant did not give satisfactory explanation for delay – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) – s 29, s 29(1)(d), s 29(2), s 29(2)(a),
s 29(7)
Evidence Act 1995 (Cth) – s 160
CASES
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A'Hearn (1993) 45 FCR 441
Edwards and Principal Member, Social Security Appeals Tribunal [2011] AATA 791
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Johnson and Commonwealth of Australia [1990] AATA 1
Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
12 January 2018
INTRODUCTION

On 11 October 2016, Ms Eileen Saleeba lodged a claim for Disability Support Pension (“DSP”) with the Department of Human Services.
On 26 October 2016, the Department rejected the claim.
That decision was then reviewed and affirmed on 23 February 2017 by an Authorised Review Officer (“ARO”).
On 13 July 2017, the decision of the ARO was reviewed and affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the “AAT1”). The AAT1 decision was posted to Ms Saleeba on 18 July 2017 and Ms Saleeba is presumed to have received the decision on 24 July 2017 (see section 160 of the Evidence Act 1995 (Cth)).
The 28-day statutory time limit for Ms Saleeba to apply to this Tribunal for a review of the AAT1 decision expired on 21 August 2017.
On 20 September 2017 (approximately 4 weeks and 2 days after the required application date for a review by this Tribunal), Ms Saleeba applied to this Tribunal for both a review of the AAT1 decision and an extension of time to apply for the review.
The decision below relates to Ms Saleeba’s application for an extension of time within which to lodge her review application.
ISSUE
The Tribunal is asked to determine whether Ms Saleeba should be granted an extension of time of 4 weeks and 2 days to make an application for a review of a decision made by the AAT1 to uphold a decision of the Department to deny her DSP. The core issue, discussed further below, is whether it is “reasonable in all the circumstances” for such an order to be made by the Tribunal.
EVIDENCE
This application was heard in Perth. Ms Saleeba appeared in person. The Secretary’s representative, Ms Kate Mann, appeared via telephone.
The Secretary filed written submissions dated 3 October 2017. Ms Saleeba did not provide written submissions but gave evidence orally.
LEGISLATION
Section 29 of the Administrative Appeals Act 1975 (the “AAT Act”) details how to apply to the Tribunal for a review of a decision.
Section 29(1)(d) of the AAT Act provides that, in a case where “the terms of the decision were recorded in writing and set out in a document that was given to the applicant”, an application to the Tribunal for a review of that decision “shall be lodged with the Tribunal within the prescribed time.”
In relation to that prescribed time period, section 29(2) of the AAT Act provides:
The prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant…
(Emphasis added.)
The Tribunal's power to extend the time for the making of an application for review is conferred by subsections (7) and (8) of section 29 of the AAT Act as follows:
(7)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.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(Emphasis added.)
LEGAL PRINCIPLES
A very clear overview of the jurisprudence relevant to extension of time applications before administrative tribunals and the procedures applied by tribunals when asked to determine an extension of time request is provided in the decisions of Tribunal Deputy President Hotop in Edwards and Principal Member, Social Security Appeals Tribunal [2011] AATA 791 (“Edwards”) and Alexander Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280 (“Rothsay”).
As explained in both Edwards and Rothsay, section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.
As further explained in Edwards and Rothsay (and as noted by Deputy President Todd in Re Johnson and Commonwealth of Australia [1990] AATA 1) (“Re Johnson”), it has been customary for the Tribunal, in determining applications for an extension of time for the making of an application for review, to be guided by the principles enunciated by the Federal Court of Australia (per Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:
i.It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
ii.Consideration is to be given to the action taken by the applicant. Did he or she 'rest on his or her rights' so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
iii.Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
iv.There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices …
v.Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
vi.Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.
The decision Ms Saleeba seeks to have reviewed is dated 13 July 2017. Ms Saleeba is presumed to have received (been given) the decision on 24 July 2017. Accordingly, pursuant to section 29(2)(a) of the AAT Act, the prescribed period (28 days) within which Ms Saleeba was required (by virtue of section 29(1)(d) of the AAT Act) to lodge her application for review of the respondent's decision expired on 21 August 2017. Hence, Ms Saleeba’s application for review, which she lodged with the Tribunal on 20 September 2017, was lodged approximately 4 weeks and 2 days after the expiration of the relevant 28 day period.
As explained by Deputy President Hotop in Edwards and Rothsay, although, as held by the Full Federal Court in Comcare v A'Hearn (1993) 45 FCR 441, the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of such an application, the Full Court has made clear (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered” - especially, as noted in Edwards and Rothsay, where the delay is very lengthy. Here that delay is reasonably lengthy, being four weeks past the required filing date.
CONSIDERATION
In determining whether it is reasonable in the circumstances for an extension of time to be granted in this case, the Tribunal finds that, in light of the relevant jurisprudence and the facts of this case, the factors that the Tribunal must consider include:
·the length of delay;
·any explanation for the delay and whether that explanation is satisfactory;
·whether Ms Saleeba was aware of her appeal rights;
·any prejudice to the Respondent or the general public arising from an extension of time order;
·Ms Saleeba’s prospects of success; and
·any alternative avenues of relief for Ms Saleeba should the extension of time order not be made.
Length of Delay
In relation to this issue, the Secretary contended:
14.The AAT1 posted their decision on 13 July 2017.
15.Section 160 of the Evidence Act 1995 relevantly provides:
160 Postal articles
(1)it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
…
(3)In this section:
"working day" means a day that is not:
(a)a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
16.The fourth working day after the decision was posted was 19 July 2017. Accordingly, the 28 day time limit to lodge an appeal with the AAT expired on 16 August 2017. The 28 day application limit is prescribed by subsection 29(2) of the AAT Act and refers to “day” not “working day”.
17.The Applicant’s application for second review of a decision was received by the AAT2 on 20 September 2017. On that basis, the Secretary submits that the Applicant’s application to the AAT2 was 35 days (5 weeks) outside of the 28 day time limit for lodging the appeal.
18.The Secretary submits that the length of delay is a relevant consideration. The Secretary contends that the delay in this matter is significant, it was not simply a matter of days. The Secretary notes that even in matters where the delay is not considered to be lengthy, the Tribunal has found that “brevity of the extension sought does not, however, lead automatically to an order extending the time" (Secretary; Department of Family and Community Services and Roberts [2003] AATA 269, [16]).
19.The Secretary submits that the length of delay in this matter mitigates against granting an extension of time.
(Emphasis original.)
The Tribunal notes that the AAT1 posted their decision on 18 July 2017, not 13 July 2017 as contended by the Secretary, and Ms Saleeba is presumed to have received the decision on 24 July 2017. Therefore, the 28 day time limit for lodging an appeal to the Tribunal expired on 21 August 2017 not 16 August 2017. Hence, the delay here is 4 weeks and 2 days.
Other than in relation to the length of delay, the Tribunal agrees with the Secretary’s submissions. The length of time here, although not extraordinary, is lengthy. This weighs against an extension of time.
Awareness of Appeal Rights and Explanation for the Delay
In relation to this issue, the Secretary contended:
20.It is to be expected that an applicant for an extension of time would normally provide an acceptable explanation for the delay: Comcare v A’Hearn (1993) 45 FCR 441, 444.
21.The Secretary submits that the Applicant has not provided a reasonable explanation for her failure to lodge an application for review within the 28 day period prescribed under section 29(2) of the AAT Act.
22.The Applicant’s reasons for applying for an extension of time are as follows:
“Many things no correct on paper needs to be looked at I have continuing inability to work; mentally and physically unable to do any paid work.” [sic]
23.The Secretary submits that the reason proffered does not address the delay.
24.The Secretary notes that the Applicant’s reasons appear to explain the application for second review of the decision rather than the application for extension of time.
25.The Secretary submits that there is no explanation provided for the Applicant’s delay in seeking review. There is no compelling evidence regarding why the Applicant was prevented from applying for review of the AAT1 decision within the 28 days after the decision was received, or the additional 35 days thereafter.
26.The Secretary submits that even if the Applicant did provide a compelling explanation, the 28 day time limit prescribed by the legislation indicates Parliament’s intention that there ought to be finality in government decision making. The Applicant’s stated reasons for the delay do not provide a fair and equitable basis on which to depart from the legislative time period.
27.The notice sent by the AAT1 with its decision includes reference to the Applicant’s right of appeal to the Tribunal, and includes an information sheet which clearly states:
“You must apply to the AAT within 28 days of the AAT1 decision being delivered to your last known postal address...”
28.In Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing.
29.The Applicant was advised and aware of her rights and the timeframe within which those rights should be exercised. On this basis, the Secretary submits that this is not a case in which the discretion to extend time ought to be exercised.
At the hearing, Ms Saleeba confirmed that she had received the decision but could not recall when. She said that she had read the AAT1’s decision but was not aware of the 28 day time limit for making an application for review. This is so despite the fact that AAT1’s letter to Ms Saleeba (enclosing the decision) stated quite clearly: “here are time limits for making an application for review (28 days after the giving of the document setting out the terms of the AAT’s decision)”.
Ms Saleeba submitted that could not remember reading this cover letter. The only explanation for delay offered by Ms Saleeba was that she “just wasn’t aware of time.” This explanation lacked credibility and is lacking and is unacceptable.
In the circumstances, the Tribunal is not satisfied that Ms Saleeba’s explanation that she was unaware of the time limits for making her application for review is either satisfactory or reasonable.
This weighs against the granting of an extension of time.
Prejudice to the Minister and wider prejudice to the general public in terms of disruption to established practices
Generally, it is in the public interest that there be an end to any appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to the process. Without time limits, reasonably imposed, the administrative functions and capabilities of the Tribunal are jeopardised. This, in turn, has a negative impact on the ability of the Tribunal to do what it is designed to do in relation to the many applicants it seeks to assist.
In relation to this issue, the Secretary contended:
26.The Secretary submits that even if the Applicant did provide a compelling explanation, the 28 day time limit prescribed by the legislation indicates Parliament's intention that there ought to be finality in government decision making. The Applicant's stated reasons for the delay do not provide a fair and equitable basis on which to depart from the legislative time period.
Ms Saleeba made no comment in relation to this issue.
There was no evidence before this Tribunal that the length of time between hearings would prejudice the Minister. It was not suggested, for example, that the Minister would not be able to adequately prepare for a substantive hearing should one be allowed.
On the evidence, the Tribunal finds that Minister will not suffer any prejudice if an extension of time is granted. The Secretary’s submissions in this regard were lacking. This weighs in favour of granting an extension of time. However, consideration must also be given to whether there will be a wider prejudice to the public in terms of disruption to established practices should an extension be granted.
Although the delay here is not extraordinary (4 weeks), it is nonetheless lengthy and no credible justification for the delay has been provided. In these circumstances, the Tribunal finds that disruption to the Tribunal’s services and consequent prejudice to other applicants are concern that must be taken into account. The Tribunal cannot allow an extension of in these circumstances without imposing an unacceptable burden on the system and those seeking to access it.
This weighs against the granting of an extension of time.
Prospects of success
When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits. Nor could the Tribunal do so given the evidentiary and time constraints evident in an application of this sort. Nonetheless, it may be that the stronger the apparent merits the more likely that an extension of time will be appropriate: Brown v Federal Commissioner of Taxation [1999] FCA 563, [29], [38] per Hill J.
In relation to this issue, the Secretary contended:
31.The Secretary contends that the substantive application has no merit, primarily because the Applicant is unlikely to satisfy subsection 94(2) of the Act. That is, the Applicant is unlikely to be taken to have a continuing inability to work (CITW) at the time of her claim for DSP and within the following 13 weeks (i.e. from 11 October 2016 to 10 January 2017).
32.The term continuing inability to work is defined in subsection 94(2) of the Act. Relevantly, paragraph 94(2)(aa) of the Act provides that in order to have a CITW a person who does not have a “severe impairment” is required to have actively participated in a program of support (POS).
33.At the time of her claim for DSP, the applicant:
•did not have a “severe impairment”; and
•had not actively participated in a program of support (POS) in the three years prior to making her claim.
Did the Applicant have a severe impairment?
34.The Applicant could satisfy paragraph 94(2)(aa) of the Act if she is taken to have a ‘severe impairment’ at the time of her claim for DSP or within the following 13 weeks.
35.The term “severe impairment” is defined in subsection 94(3B) of the Act, as an impairment that achieves 20 points or more under a single Impairment Table.
36.The Secretary accepts that the Applicant’s spinal disorder, left eye disorder, left trigeminal neuralgia and bilateral hand arthritis are fully diagnosed, treated and stabilised and together attract an impairment rating of 20 points.
37.However, the Secretary submits that none of these conditions were capable of obtaining 20 points under a single table and that, therefore, the applicant did not have a severe impairment.
38.The Secretary contends that the applicant’s spinal condition was not a ‘severe impairment’ for the following reasons:
•To achieve a 20 point rating under Table 4, an Applicant’s condition must have severe functional impact on activities involving spinal function;
•The evidence does not suggest the applicant is unable turn her head or bend her neck without moving her trunk;
•The evidence indicates the Applicant is able to pick up a light object from a desk or table;
•The evidence indicates the Applicant is able to remain seated for over ten minutes.
•The Secretary contends that the Applicant’s spinal condition attracts 10 points under Table 4 (spinal function) and 5 points under Table 1 (physical exertion and stamina).
•The Secretary therefore submits that the Applicant’s spinal condition cannot not be regarded as a severe impairment.
39.The Secretary contends that the Applicant’s left eye disorder was not a severe impairment for the following reasons:
•To achieve a 20 point rating under Table 12, an Applicant’s condition must have a severe functional impact on activities involving visual function;
•The evidence indicates that the Applicant’s left eye disorder causes a mild functional impairment such as to attract a 5 point rating under Table 12; and
•The Secretary therefore submits that the Applicant’s left eye disorder cannot be regarded as a severe impairment.
40.The Secretary contends that the Applicant’s bilateral hand arthritis is a condition that is reported to be generally well managed and causes limited impact on function. The Secretary therefore contends that this attracts a rating of nil and cannot be regarded as a severe impairment
41.The Secretary contends that the Applicant’s left trigeminal neuralgia is a condition that is reported to be generally well managed and causes limited impact on function. The Secretary therefore contends that this attracts a rating of nil and cannot be regarded as a severe impairment.
42.The Secretary contends that that none of the Applicant’s other medical conditions can be considered fully diagnosed, treated and stabilised during the qualification period for the reasons outlined in the Job Capacity Assessment report and the Authorised Review Officer’s decision of 23 February 2017 (Attachments A and B), and therefore cannot be assigned an impairment rating.
43.The Secretary therefore submits that the Applicant did not have a severe impairment in relation to her claim for DSP and paragraph 94(2)(aa) of the Act cannot be satisfied on that basis.
Had the Applicant actively participated in a POS?
44.The Applicant could satisfy paragraph 94(2)(aa) of the Act if she is taken to have actively participated in a POS at the time of her claim for DSP.
45.A person has “actively participated” in a POS if they have satisfied the requirements set out in the relevant legislative instrument (section 94(3C) of the Act), being the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
46.The POS Determination provides, in essence, that, a person must participate in a 'Program of Support’ for at least 18 months within the 36 months ending immediately prior to the date on which they claimed DSP (“the relevant period") before they can be taken to have actively participated in a program of support (subsection 7(2)).
47.There are exceptions to this requirement as follows (as set out in subsections 7(3) to (5)):
(a)the person has completed a program that ran for a period less than 18 months;
(b)the person was participating in a program that was terminated before the person claimed pension, because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation; or
(c)the person is participating in the program at the time of their claim but. is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation.
48.The Tribunal has previously accepted that periods of exemption do not count towards periods of active participation in a program of support (see Kumar and Secretary, Department of Social Services [2014] AATA 442).
49.At the time of lodging her claim for Disability Support Pension, on 11 October 2016, the Applicant had participated in 15 days in a program of support and therefore has not met the program of support requirements. (Attachment B).
50.The Secretary therefore contends that the Applicant had not actively participated in a POS for at least 18 months (546 days) in the 36 months prior to the date of her DSP claim.
51.The Secretary also contends that the Applicant cannot satisfy paragraphs 7(3) or 7(4) of the POS Determination, as she neither has completed a POS prior to the date of claim nor is there any evidence that she had participated in a POS at any time within the 36 months prior to claiming DSP which had been terminated, prior to the date of claim, on the basis that he was, solely due to her impairments, prevented from improving her capacity to find, gain or remain in employment.
52.The Secretary also contends that the Applicant cannot satisfy section 7(5) of the POS Determination as there is no evidence to suggest that the Applicant was prevented, solely because of her impairments, from improving her capacity to prepare for, find or maintain work through continued participation in a POS.
53.The Secretary accordingly submits that the Applicant has not satisfied any of subsections 7(2), (3), (4) or (5) of the POS Determination, and she has not actively participated in a program of support.
54.Therefore paragraph 94(2)(aa) of the Act cannot be satisfied.
55.The Secretary submits that the substantive application has no merit because the Applicant did not satisfy paragraph 94(2)(aa) of the Act because she did not have a severe impairment and had not actively participated in a POS.
(Emphasis original.)

Ms Saleeba contends that the AAT1 erred in analysing the evidence before it and that she now has medical evidence that can assist her. This may well be the case. Unfortunately, the Tribunal can only analyse the evidence it has before it. As correctly outlined by the Secretary above, that evidence is lacking here and does not appear to meet the high standards set legislatively in relation to DSP. On the evidence, there is no reason to doubt the conclusions reached by the AAT1.
It may well be the case that Ms Saleeba now has evidence that will better assist her. Assuming that to be the case, the Tribunal can conclude that Ms Saleeba has at least some prospects of success on appeal. However, on the available evidence, those prospects appear to be minimal.
While it may well be that case that the case that Ms Saleeba will obtain further evidence in the future as to why she is entitled to DSP, on the evidence currently before the Tribunal Ms Saleeba’s prospects of success are very poor.
This, accordingly, weighs against an extension of time being granted to Ms Saleeba for the late filing of her review application.
Alternative avenues of relief
In determining whether undue prejudice will arise for any persons denied an extension of time, and how this should be balanced with other considerations, the Tribunal will generally take into account any other avenues of relief should the extension not be ordered.
In relation to this issue, the Secretary contended:
56. It is open to the Applicant to make a new DSP application at any time.
57.The option to lodge a new DSP claim provides the Applicant with an alternative avenue of relief. In circumstances where the appeal period has expired, the Applicant should pursue this avenue rather than being granted with an extension of time.
The Tribunal agrees. It is noted, in this regard, that Ms Saleeba now has the opportunity to submit a new DSP application based on more current, arguably thorough, medical evidence that could not legislatively be examined in any appeal from her AAT1 decision. She also advised the Tribunal that she has already filed a new DSP application with new medical evidence.
This alternative route is to be preferred and weighs against an extension of time.
CONCLUSION
In the Tribunal’s opinion, the facts canvassed above weigh against the granting of Ms Saleeba’s request for an extension of time to file a review application of the decision of the AAT1 dated 13 July 2017. These facts include:
(a)the length of the delay (4 weeks and 2 days) in lodging with the Tribunal the application for review of the decision of the AAT1;
(b)Ms Saleeba’s unsatisfactory explanation for that significant delay; and
(c)the likelihood of wider prejudice to the community because public and established practices would be relaxed by not adhering to reasonable and much needed time limitations.
In her favour, Ms Saleeba does arguably have some prospects of success on appeal. On the available evidence, however, the likelihood of her succeeding on appeal is not strong.
It is noted, in this regard, that Ms Saleeba now has the opportunity to submit a new DSP application based on more current, arguably thorough, medical evidence that could not legislatively be examined in any appeal from the current AAT1 decision. She has indicated that she has already filed new application. This alternative route is to be preferred and weighs against an extension of time here.
On balance, the Tribunal is not satisfied that it would be reasonable in all the circumstances to extend the time for the making of an application for a review of the AAT1’s decision of 13 July 2017.
DECISION
For the reasons outlined above, the Tribunal refuses to grant (pursuant to section 29(7) of the AAT Act) Ms Saleeba’s application for an extension of time to lodge an application for review of a decision of the AAT1 dated 13 July 2017.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall

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Administrative Assistant - Legal
Dated: 12 January 2018

Date of hearing: 24 November 2017

Applicant: In person

Representative for the Respondent: Ms Mann (By Telephone)

Solicitors for the Respondent: Department of Human Services

Date of hearing:	24 November 2017
Applicant:	In person
Representative for the Respondent:	Ms Mann (By Telephone)
Solicitors for the Respondent:	Department of Human Services