Selleck and Secretary, Department of Social Services
[2018] AATA 1858
•22 June 2018
Selleck and Secretary, Department of Social Services [2018] AATA 1858 (22 June 2018)
Division:GENERAL DIVISION
File Number: 2018/1682
Re:Terrence Selleck
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:22 June 2018
Place:Perth
The Applicant’s application for an extension of time to lodge an application for review of the decision of AAT1 dated 16 February 2018 is refused.
.....(Sgd)......................................
Member C Edwardes
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – applicant lodged substantive application 12 days after required date – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – age pension arrears – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(7) –s 29(2) – s 29(7)
Social Security (Administration) Act 1999 (Cth) – s 109 – s 109(2) – s 237
Evidence Act 1995 (Cth) – s160
CASES
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re CSIRO and Barbara (1987) 11 ALD 447
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Member C Edwardes
22 June 2018
THE APPLICATION
This is an application for an extension of time (the extension of time application) to make an application for review of a decision, dated 16 February 2018, made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the Authorised Review Officer’s decision, dated 18 August 2017, to refuse the Applicant’s claim for arrears in respect to his age pension.
INTRODUCTION
On 18 January 2011, the Applicant was granted an age pension. His rate of payment was based on fortnightly earnings of $1200 per fortnight. The Applicant had retired prior to making his claim. The Applicant was underpaid until 19 July 2017 (A1).
The Applicant queried his rate of payment, which was increased, but the arrears were not payed as he had requested. On the 18 August 2017, the decision to not pay the arrears of his pension was reviewed by an Authorised Review Officer (ARO) (A1). The ARO affirmed the first decision not to back date his pension.
The Applicant appealed to the AAT1 and on 16 February 2018, the AAT1 affirmed the decision of the ARO (A1). The Applicant is seeking an extension of time to lodge an application for review of the decision of the AAT1.
ISSUE
The Applicant was sent the AAT1 decision on 19 February 2018 (R1 1). The Applicant lodged his extension of time application on 18 April 2018 to the General Division of the Administrative Appeals Tribunal (the Tribunal) (A1). Pursuant to subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), generally, an application for review is to be lodged in the 28 days after the applicant has received notice of the relevant decision for review. Accordingly, the Applicant lodged his extension of time application 12 days out of time.
The issue before the Tribunal is whether the Tribunal should exercise its discretion to grant leave for an extension of time for the Applicant to make an application to the Tribunal for a substantive review of the decision made by AAT1 on the 16 February 2018.
There is no dispute by Centrelink or the AAT1 that the Applicant was underpaid from 18 January 2011 to 19 July 2017 in respect to his age pension.
The two issues relating to the substantive application involve whether he received notification of Centrelink’s decision concerning the rate of his pension and whether he sought review of that decision within 13 weeks of receipt of the notice.
RELEVANT LEGISLATION AND LEGAL PRINCIPLES
Generally, under subsection 29(2) of the AAT Act, an application for review must be lodged in the 28 days after the Applicant has received notice of the decision.
Subsection 29(7) of the AAT Act states that:
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… if the Tribunal is satisfied that it is reasonable in all circumstances to do so.
In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18], Wilcox J stated “…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...”.
The Tribunal notes paragraph 6 of Brown v Federal Commissioner of Taxation [1999] FCA 563 that reinforces and provides guidance concerning the exercise of discretion to extend the time for commencement of proceedings:
6…
(i) prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;
(ii) it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;
(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v) the merits of the substantial application are relevant; and
(vi) fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.
The Tribunal also notes commentary in paragraph 37 of DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 in considering the manner in which the discretion to grant an extension of time should be exercised:
2…It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] 1 VR 297 at 302).
3Action taken by the applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)(Doyle)).
4Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at 27).
5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic v Nolan and Others [1982) 4 ALN N176 (Lucic)).
6The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at 417).
7Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).
The Tribunal may consider a number of factors in considering whether or not to grant an application for an extension of time. However no one factor carries primacy over others. All factors that are relevant to a particular case have to be weighed together in reaching a decision as to whether or not to grant an extension of time (Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451). Other factors include:
·length of delay – was there a significant delay in lodging an application to the Tribunal (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269);
·explanation for delay – the Applicant is to show an acceptable explanation for the delay (Re CSIRO and Barbara (1987) 11 ALD 447); and
·whether the Applicant was aware of their appeal rights (Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248).
EVIDENCE
The Tribunal received the following evidence:
·Application for Extension of Time with attached AAT1 Decision (A1).
·Application for Second Review Decision (A2).
·Secretary’s Outline of Submissions dated 11 May 2018 (R1).
·Notice of Opposing Application for Extension of Time (R2).
The matter was heard on 15 June 2018. Both the Applicant and Respondent appeared by phone. The Applicant represented himself and the Respondent was represented by Ms Moore from the Department of Human Services.
Under cross examination the Applicant:
·stated that it was his fault that he didn’t apply for the second review in time;
·confirmed his postal address;
·stated that he has had the same postal address since 2010;
·claimed that he did not receive the letters of Centrelink dated 17 August 2011, 8 February 2012, 2 May 2012 and 3 November 2014; and
·confirmed that he has been receiving other correspondence from Centrelink at his confirmed postal address.
The Applicant came across as an honest and truthful witness.
CONSIDERATION
The Tribunal will consider the following:
·Was there a significant delay in lodging an application to the Tribunal?
·Was the Applicant aware of his appeal rights and did the Applicant provide an acceptable explanation for the delay?
·Will the grant of an extension of time application prejudice the Respondent or the wider public?
·What are the merits of the Applicant’s substantive application – does the Applicant have reasonable prospects of success in proceeding with their substantive application?
·Does the Applicant have an alternative avenue of relief?
Was there a significant delay in lodging an application to the Tribunal?
The Tribunal notes and agrees with the Secretary’s contentions in relation to the length of the delay:
13The first review decision was posted to the Applicant on 19 February 2018.
14Section 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
15The fourth working day after the decision was posted was 23 February 2018. Accordingly, the 28 day time limit to lodge an appeal with the AAT2 expired on 23 March 2018. The 28 day application limit is prescribed by subsection 29(2) of the AAT Act and refers to “day”, not “working day”.
16The Applicant’s application for second review of a decision was received by the AAT2 on 4 April 2018. On that basis, the Secretary submits that the Applicant’s application to the AAT2 was 12 days outside of the 28 day time limit for lodging the application
17The Secretary submits that the length of delay, although not significantly long, is a relevant consideration. 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]) (R1 2-3). (Original Emphasis.)
The Tribunal finds that the Applicant’s delay in lodging an appeal with the Tribunal weighs against the Tribunal granting the Applicant an extension of time to lodge his application for review.
Was the Applicant aware of his appeal rights and did the Applicant provide an acceptable explanation for the delay?
The Tribunal notes the Secretary’s contentions:
18It 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).
19On the application form, the Applicant explained his reason for the delay as being that he has had hardships over five years, and that he is entitled to arrears from 2012 to 2017. There is otherwise no evidence of 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 12 days thereafter.
20The Secretary submits that the Applicant’s stated reason is an unsatisfactory explanation for a delay, and the lack of any other explanation is a factor weighing against an extension of time.
21The Secretary contends that even if the Applicant did provide a compelling reason, 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 reason for the delay does not make it fair and equitable to depart from the legislative time period.
22The notice accompanying the first review decision includes information about the Applicant’s right of appeal to the Tribunal (Attachment A), which clearly states:
“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)”.
23In 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” (R1 3).
The Tribunal finds that the Applicant was aware of his appeal rights. The Tribunal is not satisfied with his oral explanation for delay in lodging an appeal with the Tribunal. These findings weigh against the Tribunal granting the Applicant an extension of time to lodge his application for review.
Will the grant of an extension of time application prejudice the Respondent or the wider public?
Whilst the Tribunal notes this factor was not discussed by the Secretary, the Tribunal makes the following observations:
·there is no evidence before the Tribunal that the length of time between hearings would prejudice the Secretary. The Tribunal finds that the Secretary will not suffer prejudice if an extension of time is granted. This finding weighs in favour of the Tribunal granting the Applicant an extension of time to lodge his application for review.
·the Tribunal notes however, that it must consider if the wider public would be prejudiced if the Tribunal were to grant an extension of time application.
·the Tribunal notes the obvious and accepted public interest in the finality of decision-making, and the need to prevent disruption to established practices (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1). The Tribunal also notes that the Tribunal should provide a fair, just, economical, informal and quick review process.
What are the merits of the Applicant’s substantive application – does the Applicant have reasonable prospects of success in proceeding with their substantive application?
The Tribunal notes the following Secretary’s contentions and the AAT1 decision of 16 February 2018:
24It is relevant to consider the merits of the proposed appeal: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J. When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate: Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29], [38] per Hill J.
25The Secretary submits that the Applicant has poor prospects of success.
26It is not disputed that the Applicant was underpaid age pension from 18 January 2011 to 19 July 2017.
27Section 237 of the Social Security (Administration) Act 1999 (the Administration Act) provides that where notice of a decision under social security law is sent by prepaid post to the postal address of the person last known to the Secretary, notice of that decision is taken to have been given to the person, for the purposes of the social security law.
28In the case of Lambert v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870, in which the Tribunal accepted evidence of the Applicant that she did not receive notices posted by the department to her last known address. While the Applicant reported that local children stole mail in the area, the Tribunal found that this did not amount to positive evidence that the notices were stolen. The Tribunal concluded there was no evidence of non-delivery sufficient to rebut the presumption that the notices had been properly given.
29The Tribunal has adopted a similar approach in the cases of Walden v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1064, Ingram v Secretary, Department of Families and Community Services [2004] AATA 279 and Tramonte v Secretary, Department of Families and Community Services [2004] AATA 26.
30The department sent the Applicant letters on 17 August 2011, 8 February 2012, 2 May 2012 and 3 November 2014, including information that his rate of payment was calculated based on $1,200 of fortnightly income from his employer, the Lawn Doctor.
31Each of these letters included instructions that if the Applicant disagreed with a decision, he should contact the department as soon as possible. These letters noted that it is important to ask for a review within 13 weeks of being notified about a decision, and that seeking review more than 13 weeks after a decision may result in only receiving an entitlement from the date review was requested.
32The Applicant advised the department and the Tribunal that he did not receive these letters, and that it was difficult for him to check mail, as he had to drive 25km to his post box. During her review, the ARO, confirmed with the Applicant the address to which these letters had been posted.
33The Secretary notes that the same address has been used in the Applicant’s request for AAT2 review and his application for extension of time.
34The Applicant has not provided any positive evidence that his mail was lost, stolen or otherwise disrupted over the relevant period. As such, the Secretary contends that the Applicant was served with notice of the department’s decision, regarding his rate of payment.
35Section 109 of the Administration Act contemplates the date of effect of favourable determinations resulting from review. Subsection 109(2) of this provision limits the payment of arrears, providing that where a person is given notice of a Centrelink decision, but does not seek review of that decision within 13 weeks, then any increase in payment that results from a review can only be paid from the date they requested a review.
36Departmental records indicate that the Applicant contacted the department on several occasions to request advance payments, however, there is nothing to indicate that the Applicant queried his rate of payment until 19 July 2017. The Secretary notes that this is well outside of 13 weeks of the most recently dated notice detailing the basis for the Applicant’s rate of age pension payment.
37The Secretary notes that the application of section 109 is well-established: see Re Sharpe and Secretary, Department of Family, Community Services and Indigenous Affairs (2006) 91 ALD 472 and Re Sells and Secretary, Department of Family, Community Services and Indigenous Affairs (2004) 79 ALD 69.
38The Secretary, therefore, contends that the Applicant has poor prospects of success regarding the substantive matter of this review (R1 3-5).
The AAT1 concluded:
22Based on the evidence outlined above, the tribunal finds that Mr Sellick was served with notice of Centrelink’s decision regarding his rate of payment, and did not request a review of this decision within 13 weeks of receiving notice of it. Consequently, the conditions of subsection 109(2) of the Administration Act are met, and Mr Sellick cannot be paid arrears (A1).
The Tribunal is only able to analyse evidence that the Tribunal has before it. The Tribunal notes that evidence before it must be reliable, and independently verifiable. Accordingly, the Tribunal agrees with the AAT1’s findings. The Tribunal finds the Applicant’s prospects of success in the substantive application to be poor.
Does the Applicant have an alternative avenue of relief?
The Tribunal notes the Respondent’s contentions:
39It is open to the Applicant to pursue a Compensation for Detriment caused by Defective Administration (CDDA) claim (R1 5).
The Tribunal finds that the Respondent’s contentions in paragraph 28 of this decision weigh against the Tribunal granting the Applicant an extension of time to lodge his application for review.
CONCLUSION
The facts outlined above in total weigh against the granting of the Applicant’s request for an extension of time to file a review application of the decision of AAT1. These are summarised below as:
·there was a delay in lodging the application to the Tribunal;
·the Applicant was aware of his appeal rights and did not provide an acceptable explanation for the delay;
·the grant of an extension of time will be unlikely to prejudice the Respondent. However, the granting of an extension of time application may prejudice the wider public;
·the Applicant does not have reasonable prospects of success in proceeding with their substantive application; and
·the Applicant has alternative avenues of relief. It is open for the Applicant at any time to lodge another claim as outlined by the Secretary.
On balance, pursuant to subsection 29(7) of the AAT Act, the Tribunal finds that it would not be reasonable to extend the time for the Applicant to make an application for review of the AAT1’s decision dated 16 February 2018.
DECISION
For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of AAT1 dated 16 February 2018.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
...(Sgd)............................................
Administrative Assistant
Dated: 22 June 2018
Date of hearing: 15 June 2018 Applicant: In person Representative for the Respondent:
Sally Moore Solicitors for the Respondent: Department of Human Services
0
13
0