Sheehan and Secretary, Department of Jobs and Small Business (Social services second review)

[2018] AATA 4533

Sheehan and Secretary, Department of Jobs and Small Business (Social services second review) [2018] AATA 4533 (6 December 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5445

Re:Caley Sheehan

APPLICANT

AndSecretary, Department of Jobs and Small Business

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 December 2018

Place:Sydney

The application for an extension of time is refused.

.......................[sgd].................................................

Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – whether application for extension of time is reasonable in all the circumstances – whether the applicant rested on his rights – merits of substantive matter – no show no pay failure under Social Security (Administration) Act 1999 – no likely prospect of success – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security (Administration) Act 1999 (Cth) s 42C

CASES

Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222
Comcare v A’Hearn (1993) 45 FCR 441

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

REASONS FOR DECISION

Dr L Bygrave, Member

6 December 2018

INTRODUCTION

1. The applicant, Mr Caley Sheehan, lodged an application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on 13 September 2018 seeking an extension of time to make an application to review a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) on 26 March 2018.

2. The SSCSD decision affirmed a decision made by the Department of Human Services (the Department) to apply a no show no pay failure and penalty of $54.76 on 18 January 2018.

3. The Secretary opposes the extension of time sought.

4. The application was heard in Sydney on 27 November 2018. The applicant attended the hearing by conference telephone.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

5. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

6. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].

7. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and 349 as follows:

   (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay;

   (d)whether the respondent or the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)considerations of “fairness as between the applicant and other persons” in a similar position.

8. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) 45 FCR 441.

9. All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

   REASONS FOR DELAY

10. The delay in the applicant seeking a review of the decision by the SSCSD is four months and two weeks outside the 28 day time limit.

11. In his application for an extension of time, the applicant stated:

    I’d been informed the AAT definitely received my initial applications for review from decisions made 18^th of January 2018 & the 29^th of January 2018 to suspend & reduce my newstart / centrelink income $109.52c only one $54.76 amount was recognised, not the two $54.76 amounts.

12. At the Tribunal hearing, the applicant repeatedly stated he had sought review of the decision made on 18 January 2018 to apply the no show no pay failure and $54.76 penalty, and he wanted and required this money reimbursed.

13. I note that this matter was heard and decided by the SSCSD on 26 March 2018 and the applicant was unable to explain the delay for seeking review prior to 28 days after this date. The Tribunal has no record of the applicant making previous applications for review and, in the absence of supporting evidence, I find that the applicant was aware of his appeal rights following the SSCSD decision and chose to rest on his rights.

14. While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

15. It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I have regard to Chouman and Secretary, Department of Education, Employment and Workplace Relations, in which the Tribunal stated:

    ... to grant an extension of time in this matter would be unfair to other applicants in similar situations who have not submitted late applications.

    The grant of an extension of time in this matter would set an unwelcome example and cause inconvenience to Centrelink and the Tribunal in having to deal with large numbers of such applications. There is a general public interest in ensuring finality in decision-making.[1]

    [1] [2009] AATA 222, [30]–[31].

16. I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to the applicant’s application. As the delay is four months and two weeks, I am satisfied that there would be prejudice to the Secretary and the general public if the extension of time is granted.

17. This factor weighs against the applicant.

    MERITS OF SUBSTANTIVE MATTER

18. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.

19. The substantive matter is whether, on the balance of the evidence before the Tribunal, the applicant committed a no show no pay failure on 18 January 2018.

    Relevant legislation and consideration of the evidence

20. Section 42C of the Social Security (Administration) Act 1999 (Cth) provides that a person commits a no show no pay failure on a day if they fail to participate in an activity that they are required to undertake by an employment pathway plan.

21. The Secretary’s submissions dated 16 November 2018 sets out the following facts:

    ·The applicant was required to attend a Job Search Skills Activity with ESG on 18 January 2018 as part of his employment pathway plan (job plan).

    ·There is no corroborating evidence the applicant attended the activity with ESG on 18 January 2018, gave ESG prior notice of his inability to attend the activity on 18 January 2018 or had a reasonable excuse for his failure to attend the activity on 18 January 2018.

22. Attachments to the Secretary’s submissions show:

    ·The applicant’s job plan signed 4 January 2018 required him to attend and fully participate in job search activities with ESG on Mondays and Thursdays from 18 September 2017 to 31 May 2018.

    ·A participation report completed by ESG sets out that the applicant did not attend the Job Search Skills Activity with ESG on 18 January 2018.

23. At the Tribunal hearing, the applicant repeatedly stated that he had attended the activity with ESG on 18 January 2018 and requested the Tribunal access video surveillance. The applicant was unable to provide any objective evidence to the Tribunal to support his submission. He relied solely on Centrelink letters that he had written on to dispute the contentions contained in the letters.

24. In considering all of the relevant circumstances and weighing the available evidence, I am of the view the substantive matter does not have any likely prospects of success.

25. This weighs for the extension of time being refused.

    CONCLUSION

26. Taking into account all of the information before me, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

27. The application for an extension of time is refused.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[sgd]............................................

Associate

Dated: 6 December 2018

Date of hearing:	27 November 2018
Applicant:	In person
Solicitors for the Respondent:	E Ulrick, Department of Human Services