Smith and Secretary, Department of Family and Community Services

[2005] AATA 1228

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 1228

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/559

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER SMITH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date27 September 2005 

PlaceBrisbane

Decision The Tribunal refuses the application to extend time.

...................[Sgd]...........................

Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – overpayment due to lump-sum receipt of child support – waiver issues - application for appeal made out of time – extension of time refused.   

A New Tax System (Family Assistance) (Administration) Act 1999 s97(2)
Administrative Appeals Tribunal Act 1975 s29

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42
Brown v Commissioner of Taxation [1999] FCA 563
Maynard v Secretary, Department of Social Security [1993] FCA 698

WRITTEN REASONS FOR ORAL DECISION

14 December 2005 Ms MJ Carstairs, Member        

1.      Jennifer Smith applied for extension of time in which to lodge with the Tribunal for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 16 February 2005 (despatched on 24 February 2005). 

2.      Ms Smith said that she received the SSAT decision on 1 March 2005. She lodged her application with the Tribunal on 26 August 2005 some five months later.

3.      At the hearing Ms Smith represented herself.  The respondent was represented by its advocate, Ms S Dole.  I gave oral reasons for refusing the extension of time.  On 29 November 2005 Ms Smith requested written reasons.  I have completed these reasons based upon my notes of the proceedings.

4.      I had the advantage at the hearing of extension of time of having submissions and further material supplied by the applicant (exhibit A1) and a submission from the respondent dated 9 September 2005 (R1).

Background

5.      The applicant receives family tax benefit and has incurred a debt in regard to that benefit, totalling $2,138.66, as a result of a lump-sum payment of child support paid to the child support agency by her ex-partner, and relating to the financial year 2003/2004.  The lump sum was paid to Ms Smith in April 2004 and was assessable in that year even though it related to child support owing over a longer period. 

6.      It is not disputed, and was found by the SSAT, the lump sum of child support was received, and affected the assessment of Ms Smith’s family tax benefit so that in the relevant period she had been overpaid.  The only issue for the SSAT was waiver. 

7.      The SSAT referred to the provisions of the A New Tax System (Family Assistance)(Administration) Act 1999 which provides as follows:

97(2)    The Secretary must waive the administrative error proportion of a debt if:

(a)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

(b)the person would suffer severe financial hardship if it were not waived.

8.      The SSAT found as a fact that Ms Smith is not experiencing severe financial hardship, which is a necessary element for waiver under this section.

9.      The Administrative Appeals Tribunal Act 1975 (the Act) makes provision for time limits and for extending time in s 29 of the Act:

(2)       Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

(a)if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;

…

(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) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

Consideration of the Issues

10.     The relevant principles to be applied in an application to extend time have been considered in a number of Federal Court decisions and decisions of this Tribunal.  The respondent submitted, and the Tribunal agrees, that the principles set out in Hunter River Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 provide useful guidelines, though the Federal Court has pointed out from time to time that slavish adherence should be avoided and emphasises that these are guides only: Brown v Commissioner of Taxation [1999] FCA 563. The discretion under s29(7) is unfettered: Maynard v Secretary, Department of Social Security [1993] FCA 698. Nevertheless the principles in Hunter Valley provide guidance. 

11.     The principles to be taken into account include the following:

(a)an applicant for an extension of  time must address the issue that the rule is that proceedings should not be commenced outside the prescribed time and they should give an acceptable explanation of delay;

(b)any action taken by an applicant which permits a decision maker to be aware that the decision is not to be regarded as final;

(c)any prejudice the respondent may suffer;

(d)any unsettling of persons other than the respondent or of established practices;

(e)the merits of the application itself; and

(f)considerations of fairness between the applicant and other persons in similar positions and public interest.  The question is: is it fair and equitable in the circumstances to extend time. 

12.     It has been reiterated on many occasions by the Courts that limitation periods must be regarded as the general rule and any extension of time is to be regarded as the exception.  There is a reason for time limits and when a Tribunal is asked to extend them it is necessary to consider all the circumstances.  Some explanations will be compelling, others less so.  In this case Ms Smith says that she was emotionally affected by the outcome of the SSAT and this led to her inability to deal with a further appeal. 

13.     However I note that she has actively pursued other matters with Centrelink and with the Child Support Agency during this time.  This is probably a matter favourable to Ms Smith’s application: she has kept the respondent on notice that she is not happy with the outcome.  This would be a matter to be taken into account in respect of one of the Hunter Valley issues, namely questions of prejudice to the respondent.

14.     In regard to whether the respondent will be unduly prejudiced if the extension of time is granted, I did take into account that the respondent did not press this as an issue.  There may be some administrative inconvenience to the respondent, but no prejudice.

15.     I noted the respondent opposes the extension of time primarily on the issue of the merits of the application.  In the respondent’s view there is little merit but it is difficult to form a concluded view where the question is one of discretion for waiver and where fresh evidence could be taken into account by this Tribunal.  A debt amount in excess of $2,000 is substantial for a person in the applicant’s circumstances. In the context of the legislation, the meaning of severe financial hardship is not black and white and new circumstances could be taken into account.   

16.     However I do note that the applicant sought advice about her appeal prospects from Welfare Rights Centre after the SSAT hearing.  Hence she has not been without assistance in the time when she might have sought review.   She was aware of the extension of time provisions, but still did nothing for a very long time.  During that time she has sought further review from Centrelink and it appears that her frustrations in progressing those issues with Centrelink (at the primary decision level, not the review level) have led her to make this application to the Tribunal at this stage. 

17.     However on balancing up the various factors in play here, I am not satisfied that Ms Smith should be allowed time to lodge her late application.  It was evident to me from the additional materials provided by Ms Smith that the real reason that she has sought review is that other matters in relation to her child support assessment have taken place.  She has sought review of those other matters through the Child Support Agency but that review is not concluded.  The child support review decisions are not themselves reviewable by this Tribunal.   Furthermore one can only speculate what the outcome of the child support review may be with respect to their effect on her social security payments in the past. 

18.     Thus, I note that the applicant does not have:

§  The outcome of her current child support review;

§  The outcome of a later request for review to the respondent.

19.     It does not seem to me at all appropriate that she now seek to re-open the earlier decision.  If there are new matters to be taken into account as a result of the Child Support Review, that is properly the area of primary decision making, not an appeal.  It is a well recognised principle of administrative review that the process of review is a continuum and a person can succeed in having a decision changed by the production of better evidence.  A person can have questions of waiver of debts looked at afresh at any time.

20.     In view of the fact that there was no satisfactory explanation for the delay and in view of the other matters discussed above this is not an appropriate case in which to exercise the discretion to extend time and I decline to do so. 

Decision

21.     For these reasons given orally at the hearing the tribunal refuses the application to extend time. 

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing/Decision      27 September 2005
Date of Request for Reasons   29 November 2005
Date of Written Reasons          14 December 2005
The Applicant was unrepresented 
For the Respondent                  Ms S Dole, Departmental Advocate