Samantha Hollier and Secretary, Department of Social Services
[2014] AATA 270
[2014] AATA 270
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0242
Re
Samantha Hollier
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 11 March 2014 Date of written reasons 6 May 2014 Place Melbourne The Tribunal refuses the application for an extension of time.
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G. D. Friedman, Senior Member
PRACTICE AND PROCEDURE – extension of time to lodge application for review – application refused
Administrative Appeals Tribunal Act 1975 s 29(7), 40(1)(b)
Social Security Act 1991 s 94(1)(c), 94(2)(aa), 94(3B)
Social Security (Administration) Act 1999 s 68
Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
G. D. Friedman, Senior Member
7 May 2014
Ms Hollier lodged an application for disability support pension on 27 May 2013. On 16 July 2013 her claim was rejected. On 5 September 2013 a Centrelink authorized review officer (ARO) affirmed the decision to reject Ms Hollier’s claim for disability support pension.
On 21 November 2013 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s rejection of the applicant’s claim, as she did not meet the requirements of the Social Security Act 1991 (the Act).
On 16 January 2014 Ms Hollier applied to this Tribunal for review of the SSAT decision and on 3 February 2014 lodged an application for extension of time.
ISSUE
The issue before the Tribunal is whether an extension of time within which to lodge an application for review should be granted.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) states:
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.
In determining applications for extensions of time, the Tribunal has been guided by the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:
…The ‘prescribed period’ of 28 days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained… It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.
His Honour set out another five principles:
·Whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;
·Any prejudice to the respondent or any other party;
·The absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;
·The merits of the substantive application are to be properly taken into account;
·Considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.
The legislation under which the decision under review was made is the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
CONSIDERATION
EXPLANATION FOR THE DELAY
Ms Hollier told the Tribunal that delay in delivery of the SSAT decision by Australia Post had prevent her lodging her application within time. Ms Hollier’s application indicated it was completed by her on 6 January 2014, with the Tribunal not receiving it until 16 January 2014, however the Tribunal was informed by Australia Post that the delivery of her application had been delayed. The Tribunal is satisfied that Ms Hollier has a reasonable excuse for being out of time and finds that this factor weighs in favour of granting an extension of time.
HAS THE APPLICANT RESTED ON HER RIGHTS?
The Tribunal finds that Ms Hollier has not rested on her rights and this factor weighs in favour of granting an extension of time.
PREJUDICE TO OTHER PARTIES
There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
WIDER PUBLIC CONSIDERATIONS
Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. However, due to the circumstances surrounding the date on which the Tribunal received Ms Hollier’s application, the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
THE MERITS OF THE SUBSTANTIVE APPLICATION
Section 94 of the Act sets out the relevant qualification requirements for disability support pension:
Qualification for disability support pension
(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;
….
The respondent accepts that Ms Hollier suffers from physical and psychiatric impairments, but disagrees that the conditions cause sufficient impairment for her to qualify for the disability support pension. The Act requires medical conditions be fully diagnosed, treated and stabilities to attract and impairment rating. In relation to Ms Hollier’s complex regional pain syndrome, the evidence from Ms Hollier’s treating doctor, Dr Al Mayahe, is that she experiences recurrent pain all over body with lost sensation, reduced memory,[and] poor concentration. Dr Al Mayahe reports that onset of the condition and diagnosis occurred in 2008, and that treatment for the condition consists of hydrotherapy and pain management. A job capacity assessment conducted on 1 July 2013 found the condition to be fully diagnosed, treated and stabilised with a moderate impact on her function under Table 1 of the Impairment Tables. The respondent notes that there is a lack of evidence from an appropriate specialist ruling out other potential causes for the pain that Ms Hollier experiences due to the condition. However the Tribunal is satisfied that the condition is fully diagnosed, treated and stabilised, causing a moderate impact on her function and should be allocated 10 points of impairment under Table 1.
In respect of Ms Hollier’s second claimed condition of depression, Dr Al Mayahe reports that Ms Hollier has suffered from depression with a clinical onset of 2006. He states that the condition results in lack of concentration, depress[ed] mood, poor sleeping, reduce[d] capability of working. At the time of lodging her application for disability support pension or within 13 weeks of that date Ms Hollier told the Tribunal she was not taking any medication and was treating the condition herself. At the date of lodgement she hadn’t seen a psychiatrist or clinical psychologist in several years. Ms Hollier told the Tribunal that she had seen a psychiatrist recently on 28 November 2013, well outside the relevant period. The Secretary argued that Ms Hollier’s depression has not been subject to a broad systematic review, and that as she is not talking medication, and has been managing the condition herself, it is not fully treated and stabilised. The Tribunal agrees that there is not enough available evidence to allocate the condition an impairment rating under Table 5 of the Impairment Tables.
Ms Hollier has also been diagnosed with endometriosis but told the Tribunal that this condition has little impact on her day to day function and therefore would not be allocated an impairment rating.
Even if Ms Hollier’s depressive condition were given an impairment rating of 10 points, she would not have a severe impairment as defined by s 94(3B) of the Act, requiring 20 points under a single Impairment Table, and must participate in a program of support as defined by s 94(2)(aa) of the Act.
Ms Hollier has not actively participated in a program of support as required by the Act. She told the Tribunal that her program of support provider will not assist her because of her medical condition, but no documentary evidence to support this claim was provided to the Tribunal. Therefore s 94(2)(aa) of the Act has not been satisfied and Ms Hollier cannot satisfy s 91(1)(c) of the Act.
Therefore the Tribunal finds that there is little prospect of success in the substantive application, so this factor weighs against granting an extension of time.
CONSIDERATIONS OF FAIRNESS
Despite the Tribunal’s acceptance of Ms Hollier’s explanation for delay the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
CONCLUSION
The Tribunal finds the significant factor against granting Ms Hollier an extension of time is the little prospect of success in her substantive application. In considering all of the relevant factors the Tribunal is not satisfied that is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
DECISION
The Tribunal refuses the application for an extension of time.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. ....................................[sgd]...................................
Associate
Dated 6 May 2014
Date of hearing
Date of written reasons
11 March 2014
6 May 2014
Applicant Self-represented Advocate for the Respondent Ms A Bramley Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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