Saliba and Secretary, Department of Family and Community Services

[2004] AATA 799

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION            N2004/736

Re: Christopher SALIBA

Applicant

And: SECRETARY, DEPARTMENT of FAMILY and COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:              30 July 2004

Place:            Sydney

Decision:The tribunal refuses the request for an extension of time to make an application for review.

(sgd) P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

social security – unsuccessful application for disability support pension -  extension of time sought under s.29(7) aat act for review of ssat decision – exercise of discretion not exercised – application for extension of time refused.

Administrative Appeals Tribunal Act 1975 s.29

Social Security Act 1991 ss.94(1), 94(2)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Zizza v Commissioner of Taxation 99 ATC 4,711

Commissioner of Taxation v Brown (1999) 42 ATR 672

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      Christopher Saliba’s application to Centrelink for the disability support pension was unsuccessful. Mr Saliba then applied to the Social Security Appeals Tribunal for review of the decision that he was not qualified for the disability support pension. His application failed.  He would like the Administrative Appeals Tribunal to review the decision by the Social Security Appeals Tribunal, but he lodged his application late. The Secretary to the Department of Family and Community Services is opposed to additional time being granted.  Centrelink, who act as the Secretary’s representative in this matter, submit that it would be futile to grant the extension because Mr Saliba’s substantive case is without merit.

background

2.      The background starts with an injury that Mr Saliba suffered at work in 1995.   He injured his right elbow, right wrist, right knee and lower back.  He developed low back pain. He received another injury at work in 1998 when he was accidentally struck in the head and has since suffered from headaches and mood swings. He was awarded compensation of $125,000 on 6 June 2002 in settlement of his workers compensation claim.

3.      Mr Saliba lodged a claim for disability support pension on 24 October 2003.  His treating doctor’s report, from Dr G Ajam, referred to three conditions: chronic low back pain, as well as asthma and hypertension. The claim was rejected and this was confirmed on review by one of Centrelink’s authorised review officers.  

4. Eligibility for the disability support pension is dealt with in s.94 of the Social Security Act 1991 (the Act) which relevantly states:

94(1) A person is qualified for disability support pension if:

(a)      the person has a physical, intellectual or psychiatric impairment; and

(b)      the person's impairment is of 20 points or more under the Impairment Tables;              and

(c)      one of the following applies:

(i)       the person has a continuing inability to work;

(ii)       the Health Secretary has informed the Secretary that the person is   participating in the supported wage system administered by the   Health Department, stating the period for which the person is to   participate in the system; and

…

In relation to the phrase ‘continuing inability to work’ s. 94(2) provides:

A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)      the impairment is of itself sufficient to prevent the person from doing                any work within the next 2 years; and

(b)      either:

(i)       the impairment is of itself sufficient to prevent the person from   undertaking educational or vocational training or on-the-job   training during the next 2 years; or

(ii)       if the impairment does not prevent the person from undertaking   educational or vocational training or on-the-job training—such   training is unlikely (because of the impairment) to enable the   person to do any work within the next 2 years.

5. Mr Saliba’s appeal to the SSAT was unsuccessful because the SSAT found he did not have a total impairment rating of ten points and thus did not satisfy the requirement under s.94(1)(b) of the Act. Further, his medical condition was not considered to prevent him from doing any work or undertaking training in the next two years.

consideration and findings

6. Under s.29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the tribunal at its discretion may extend time for the making of an application for review of a decision; ss.29(7) and (8) provide:

(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).

(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.

The judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 summarises the guiding principles for the Tribunal when considering whether to exercise the discretion in s.29(7) of the AAT Act:

·Prima facie, proceedings should be commenced within the prescribed period and an applicant must advance an acceptable explanation for the delay.

·Any action that the applicant has taken, apart from applying for the extension, is relevant in considering whether there is an acceptable explanation for the delay.

·Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension.

·Public considerations, including the unsettling of established practices or of other people, may be taken into account.

·It is relevant to have regard to the merits of the application for review.

·Considerations of fairness as between the applicant and others in a similar position are relevant.

I am mindful of the Full Court’s caution in Zizza v Commissioner of Taxation 99 ATC 4,711 that the principles are a guide only and ought not be regarded as exhaustive or complete. I will now consider the application of those principles that are relevant to this matter.

7.      Has there been an acceptable explanation of the delay? The SSAT’s decision was despatched on 11 May 2004. Mr Saliba’s evidence was that he thought he received the decision about a week later, although I note his application to the AAT stated that the decision was received on 14 May 2004. Mr Saliba lodged his application at the AAT on 21 June 2004. He acknowledged that there was information about appeal rights and time limits attached to the SSAT’s written reasons. I am satisfied that his application to the AAT was not lodged within the period allowed by s.29(2) being 28 days from the date of receiving the SSAT’s decision.  His evidence was that he waited for about two weeks from receiving the decision before he approached Centrelink to dispute the SSAT’s findings. He then phoned the AAT around 17 June 2004 to find out how to appeal.  But by that time, the 28 day period had already expired.  His stated reason for the few days delay was that he misunderstood the time limit. That explanation does not add up because his oral evidence was he thought he had 21 days to lodge the application and he thought he had made the cut-off.

8.      Although Mr Saliba did not rest on his rights and made early contact with Centrelink to let them know he was dissatisfied with the SSAT’s decision, I am not satisfied that Mr Saliba’s explanation for his delay in making his application to the AAT is plausible let alone reasonable. However, the lack of a satisfactory explanation is not fatal to his application (Comcare v A’Hearn (1993) 119 ALR 85).

9.      It was submitted that there would be prejudice to the respondent if the extension were granted and he obtained additional medical evidence, whether from Dr Ajam or others. Mr Saliba would be able to refer to more recent medical opinion, albeit in respect of his condition during the thirteen week period from the date of the claim, 24 October 2003. Any such evidence would be at least ten months more recent than the medical evidence that the respondent had considered. The respondent argued that it would be difficult to compare the medical evidence in these circumstances. But the AAT is quite frequently called on to assess diverse medical opinion that has been obtained at substantially different points in time but discussing a condition at a given juncture. I do not accept the respondent’s submission.

10.     As for the merits of the application, it is not appropriate in a matter such as this to embark on a trial of the merits. It is enough if the applicant’s case taken at its highest is reasonably arguable (Commissioner of Taxation v Brown (1999) 42 ATR 672). Dr G Ajam provided a diagnosis of chronic back pain, a permanent condition with mild to moderate symptoms, that would prevent Mr Saliba from doing work that required lifting and that would get worse in years to come. The effect of the condition on his ability to function would fluctuate over the following two years. The applicant’s secondary conditions due to his injured right elbow and wrist and right knee were not considered to prevent him from undertaking work. In addition Dr Ajam noted that the applicant suffers from asthma and hypertension, but these conditions caused minimal impairment.

11.     In evidence Mr Saliba said that he experiences a lot more back pain than he did twelve months ago. Also, his headaches are worse. He takes up to six Panadeine Forte tablets a day for the pain. He said he is not receiving any regular medical treatment and his usual consultation with Dr Ajam is to request a new prescription for Panadeine Forte, Ventolin for his asthma and blood pressure pills. He is trying to find work but employers lose interest once he tells them about his previous injuries.  If he received the disability support pension, he believes he would enjoy better access to medication.  He feels that at the present he is not receiving the medical treatment he needs.

12. The respondent submitted that the only medical evidence to assess Mr Saliba’s impairments under the Impairment Tables in Schedule 1B of the Act was provided by Dr E Wassenaar for Health Services Australia. In Dr Wassenaar’s assessment dated 6 November 2003, Mr Saliba’s lower back pain was noted as mild to moderate in severity and assigned ten points under Table 20 ‘Miscellaneous’. His right elbow and wrist conditions were assessed at nil points under Table 4 ‘Function of lower limbs’. The instability in the right knee was assessed at nil points under Table 4. Dr Wassenaar considered the applicant’s asthma and hypertension to be temporary conditions and were therefore not given an impairment rating. The respondent pointed out that the SSAT had access not only to Dr Ajam’s report but also medical reports obtained in relation to Mr Saliba’s workers compensation case and still the SSAT did not disturb the impairment ratings given by Health Services Australia. As for s.94(2), in Dr Wassenaar’s opinion Mr Saliba is able to work at least thirty hours a week not involving heavy physical activites.

13.     I find that Mr Saliba’s impairment in respect of lower back pain has been assessed at ten points under the relevant impairment table. The material before me demonstrates that Mr Saliba does not suffer from other impairments that have been assessed at greater than nil points.  In 1999 Dr Davies, neurosurgeon, suggested MRI scan of the knee and orthopaedic assessment of the wrist and elbow conditions. As this had not happened, the SSAT concluded that these conditions have not been fully investigated, treated and stabilised. Until the conditions have been so investigated, an impairment rating cannot be given to them.  In addition I note that the SSAT took account of Dr Davies’ opinion that there were no obvious problems with the applicant’s wrist and elbow aside from being tender. Mr Saliba may consider making a fresh claim for disability support pension if he undergoes the relevant investigations suggested by Dr Davies.

14. Overall, on the strength of the medical evidence before me, which I note was taken into account by the SSAT in coming to its decision, I am satisfied that even at its highest, the applicant’s case is unlikely to succeed. His impairment rating of 10 points falls well short of the minimum required of 20 points. Consequently he does not satisfy s.94(1)(b) of the Act and cannot qualify for the disability support pension. There is no necessity to determine whether he has a continuing inability to work under s.94(1)(c) but I note that in Dr Wassenaar’s opinion, there is no such inability in accordance with the provisions of s.94(2). There was no medical evidence to the contrary. It can be readily appreciated why the SSAT found that Mr Saliba does not satisfy s.94(1)(b) or s.94(1)(c).

15.     Of course not having an arguable case on the merits is but one factor to be weighed up by the tribunal in the exercise of its discretion.  However, it is a factor that in this matter, I find to be particularly significant because if I were to grant leave, I might be seen to be encouraging his spending time and effort on the case and contributing to an expectation of success where that is unlikely.  In this context the following passage from Von Doussa J in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 is instructive:

One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal.  If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.(at 122)

16. On considering whether to exercise the unfettered discretion found in s.29 (7) of the AAT Act, the tribunal must be satisfied “ … that it is ‘fair and equitable in the circumstances’ to extend time”: Hunter Valley Developments (at 348).  Each application for an extension is to be determined by reference to its own facts. The respondent submitted that it would be an expensive and time consuming exercise if the present application were successful and it would be unfair to the taxpayer and the community. I accept that submission. When balancing the competing interests of both parties I am not satisfied that it would be fair and equitable to grant Mr Saliba’s request for an extension of time to allow review of the SSAT’s decision of 30 April 2004.

17.     The application for an extension of time is unsuccessful.  

I certify that the 17 preceding paragraphs are a true copy of the reasons for decision herein of P. J. Lindsay, Senior Member:

Signed:         
          ..................................................................................……………………………….

Associate

Hearing  20 July 2004

Decision  30 July 2004

Applicant’s representative           Self-represented

Respondent’s representative     Centrelink