Sharma and Secretary, Department of Family and Community Services

[2003] AATA 365

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 365

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2003/22

GENERAL DIVISION )

Re Satya Nand Sharma

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date8 April 2003

PlaceSydney

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2003/22

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Satya Nand Sharma

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date              8 April 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the application to grant an extension of time until 7 January 2003 for Mr Sharma to lodge an application for review to the Administrative Appeals Tribunal is refused, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975.

..............................................

Ms SM Bullock      

Senior Member            

CATCHWORDS

SOCIAL SECURITY – Extension of time

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) ss 603C

AUTHORITIES

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

Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520

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

REASONS FOR DECISION

Ms S M Bullock, Senior Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.

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

Associate

Dates of Hearing  8 April 2003

Date of Decision  8 April 2003

Representative for Applicant Self-represented

Representative for Respondent   Mrs J Green, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/22
By MS S M BULLOCK, Senior Member
SHARMA and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, 8 APRIL 2003

MS BULLOCK:   On 7 January 2003 Mr Sharma lodged with the Administrative Appeals Tribunal an application for review of a decision of the Social Security Appeals Tribunal (“SSAT”) which was made on 2 May 2002 and dispatched or sent on 15 May 2002. 

The SSAT decided to agree with a decision made by an Authorised Review Officer (“ARO”) of Centrelink that decided that Mr Sharma should not be exempt from the Newstart Allowance activity test for the period of 3 August 2001 until 2 November 2001.  Mr Sharma was self-represented and had the assistance initially of an interpreter in the Hindi language, whose name was Mrs Ali.  Later a telephone interpreter in the Hindi language was obtained and Mrs Agarwal then interpreted for the Tribunal and Mr Sharma via telephone. 

The Respondent in the matter, the Secretary, the Department of Family and Community Services, was represented by Mrs Green who is a Departmental Advocate. As Mr Sharma's application for review was lodged some seven months after the SSAT decision, Mr Sharma sought an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975.

Mr Sharma told the Tribunal that he is sorry for the delay in making his application for review.  He stated that when he received the SSAT decision he was not well.  He further stated that he read the decision, he understood some of it, but sought the assistance of his son and daughter-in-law with whom he was living at the time. 

Mr Sharma told me that he did not really understand the need to apply to the Administrative Appeals Tribunal within the time limit of 28 days.  Mr Sharma stated that he understands some English if it is simple but with complex matters he seeks the assistance of his son and/or daughter to either translate or interpret for him. 

Mr Sharma told me that he relies on the opinion of his treating doctor, Dr Day, who provided a treating doctor's report which was received by the Centrelink office on 12 September 2001.  That report notes that Mr Sharma suffers from ischaemic heart disease.  He also suffers from hyperlipidaemia and diabetes as his main health problems.  Mr Sharma stated that with his diabetes he has unstable sugar levels.  He can become dizzy or pass out without any warning and I note from Dr Day's report that Mr Sharma suffers from angina. 

Mr Sharma stated that the Health Services Australia doctor, Dr Elliott, did not properly investigate his conditions.  He did not use any objective measurements including using a heart monitor and Mr Sharma contended that Dr Elliott was not in a position to properly state or understand his health conditions nor could Dr Elliott properly assert that Mr Sharma was medically fit for full-time light work.

Turning to the submissions made by Mrs Green for the Respondent, Mrs Green noted that Mr Sharma commenced receiving Newstart Allowance on 13 November 1997.  Mrs Green further noted that Mr Sharma submitted a medical certificate from Dr Day for the period 3 August 2001 until 2 November 2001.

In Dr Day's treating doctor's report he stated that Mr Sharma's conditions were long-term and that he was likely to remain unfit for any work for more than two years.  Mrs Green also noted that Dr Elliott, the Health Services Australia doctor, reported on 15 October 2001 that Mr Sharma is fit for full-time light duties. 

Mrs Green submitted that in determining an application for an extension of time the Tribunal should consider principles outlined in a Federal Court decision which is called Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that decision the Judge, Wilcox J, noted that it is a prima facie rule that proceedings commenced outside a period laid down in legislation will not be entertained or allowed unless there is an acceptable explanation for the delay and there is a fair and equitable reason in the circumstances to extend the time.

Mrs Green further submitted that other matters which should be considered when deciding whether or not to grant an extension of time include the strength or the merits of the Applicant's case.  The significant issue to be determined, Mrs Green contended, is that Mr Sharma's explanation for the delay is not acceptable given that the SSAT's decision was dispatched on 15 May 2002 and would have had attached to it an information sheet providing details of the appeal rights and time limits, including the time limits for appealing to the Administrative Appeals Tribunal.  Mrs Green submitted in her written submissions that the appeal concerns information of great importance to Mr Sharma and he should have sought assistance with the documents if he did not understand them by obtaining some assistance with translation into English.

Mrs Green referred me to another case which deals with the significant issues to be determined and in particular the case, Re Sam Mercorella Pty Ltd v Australian Apple and Pear Corporation (1987) 12 ALD 520. This is a 1987 case in which the Tribunal stated that the Tribunal is not required to examine in any detail the merits of the substantive application when considering whether to extend the time in which to apply. The Tribunal further stated in that case that it need only consider whether the Applicant's case has an obvious weakness or is unlikely to succeed. Mrs Green submitted that Mr Sharma's exemption from the Newstart Allowance activity test under subsection 603C(1) of the Social Security Act 1991 (“the Act”) from 15 November 2001 has, in Mrs Green's submission, a weakness in the Applicant's case because of the permanent nature of his conditions.

Even if the decision of Centrelink is wrong when it cancelled Mr Sharma's exemption from the Activity Test, Mrs Green submitted that there is no effective remedy that can be gained from any decision favourable to Mr Sharma. Mrs Green further submitted that Mr Sharma has not suffered any detriment apart from the payment of a pharmaceutical allowance in the amount of $5.00 or $5.80. The exemption under subsection 603C(1) of the Act is only designed for short periods of temporary incapacity. Mrs Green contended that it is not possible to turn back the clock on time already served without exemption.

Mrs Green referred me to another Federal Court case which is, Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121. Von Doussa J in that case stated, and I'm going to quote this as it's an important quote from his decision, and the quote is:

“One of the principle 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.” 

Mrs Green submitted that Mr Sharma's substantive case has little merit and concerns an issue with which the Administrative Appeals Tribunal cannot assist. Furthermore, the exemption for the Activity Test is for incapacity which is or is likely to be of a temporary nature. Mrs Green noted that both the treating doctor's report and the Health Services Australia Medical Officer's report indicate that Mr Sharma's conditions are permanent and thus an exemption from the Activity Test under subsection 603C(1) of the Act is not appropriate.

Mrs Green offered other options which may be relevant and of assistance to Mr Sharma.  In this regard, Mrs Green referred to Mr Sharma testing his eligibility for a Disability Support Pension or of looking for work which is suitable to his physical capacity and taking into account his medical conditions.  Mrs Green also noted that Mr Sharma may be able to apply for a Mature Age Allowance which he could do on 7 September 2003 which is his 60th birthday..  The Mature Age Allowance will not be allowable after 20 September 2003.  Under that Mature Age Allowance a person is exempt from the activity test and is eligible for supplementary assistance such as with a pharmaceutical allowance. 

In conclusion, Mrs Green submitted that given the length of time that Mr Sharma has taken to lodge his appeal to the Administrative Appeals Tribunal, the poor merits of his substantive case and the lack of remedy that could be offered if the original decision were to be changed, in all of those circumstances, Mrs Green submitted that it is not appropriate to grant an extension of time. 

I have reached a decision in this matter, taking into account the evidence, the legislation, the submissions and relevant case law.  I understand Mr Sharma's concerns about the imposition of the activity test.  On the information available to me, Mr Sharma was able to satisfy the Activity Test for the period 3 August 2001 until 2 November 2001.  He did not receive a pharmaceutical allowance during that period of approximately $5.00.  While I am not required when deciding on an extension of time matter to determine the substantive matter, I do need to consider the merits of Mr Sharma's case and the relative merits of the Respondent's case in relation to that substantive matter. 

I am of the view that Dr Day's report and also the report of Dr Elliott both indicate that Mr Sharma has permanent conditions which are likely to be of greater duration than two years. It is my view that subsection 603C(1) deals with temporary incapacity. Accordingly, the merits of Mr Sharma's case in terms of exemption from the activity test are not strong. Furthermore, I have to balance the legislative requirement to have applications for review to this Tribunal within the 28 time limit and also balance the merits of the case with the explanation of the reason for delay provided to me for.

I am of the view that an extension of time to apply to the Administrative Appeals Tribunal should not be granted, because in all of the circumstances and on all of the information available to me there is little prospect of success of Mr Sharma's application for review in the substantive matter.  Even if I were wrong in relation to my preliminary view of Mr Sharma's case, the possible gain of $5.80 in pharmaceutical allowance does not outweigh the other considerations of fulfilling the clear legislative intention of strict time limits and the explanation which Mr Sharma has provided for his delay.

While I have decided not to grant an extension of time to Mr Sharma this does not mean that I do not recognise the level of Mr Sharma's disabilities.  I would encourage Mr Sharma to explore the course suggested to him by Mrs Green in terms of an application for Disability Support Pension or the other suggestion that Mr Sharma obtain some educational assistance which could allow him to be exempted from the activity test but, for example, to improve his English language skills.  There is the other option available to Mr Sharma of the Mature Age Allowance which may also be of some more appropriate assistance to Mr Sharma.  I would ask that Mrs Green assist Mr Sharma in putting him in contact with those officers of Centrelink who may assist him in finding the most appropriate benefit or pension which is available to him.  Thank you, that's all that I have.