Smith and Secretary, Department of Social Services (Social services second review)

[2020] AATA 1156

Smith and Secretary, Department of Social Services (Social services second review) [2020] AATA 1156 (23 April 2020)

Division:GENERAL DIVISION

File Number:2020/1131  

Re:Jayarna Smith

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:23 April 2020

Date of written reasons:        7 May 2020

Place:Sydney

The Tribunal refuses the application under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time to lodge this application for review of a decision.

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Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – reasons for delay – prejudice to the respondent and general public if extension granted – merits of substantive application – youth allowance debt – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29
Social Security (Administration) Act 1999 (Cth) 68, 72

Social Security Act 1991 (Cth) ss 1067G, 1223, 1237A, 1237AAD

CASES

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Groth v Secretary Department of Social Security [1995] FCA 1708

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

REASONS FOR DECISION

Dr L Bygrave, Member

7 May 2020

INTRODUCTION

1. On 17 February 2020, Ms Jayarna Smith filed an application with the General Division of the Administrative Appeals Tribunal (the Tribunal) to review a decision made by the Social Services and Child Support Division (SSCSD) of the Tribunal on 9 October 2019.

2. Ms Smith subsequently lodged an application on 12 March 2020 under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make her application to review the decision by the SSCSD.

3. The SSCSD decision affirmed a decision made by the Department of Human Services (the Department) to raise and recover a youth allowance debt from Ms Smith in the amount of $2,957.09 for the period from 6 November 2012 to 21 October 2013.

4. The Secretary opposed the extension of time sought.

5. The application was heard by the General Division of the Tribunal on 23 April 2020.

6. The decision and reasons for the decision were delivered orally at the hearing. The following paragraphs are the written reasons for my decision.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

7. 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.

8. 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].

9. 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;

   (f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.

10. 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] FCA 498; (1993) 45 FCR 441.

11. 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

12. Ms Smith’s application for an extension of time seeking a review of the SSCSD decision is over four months outside the 28-day time limit. The Secretary submitted that Ms Smith was informed of her appeal rights in writing following the SSCSD decision.

13. In her application for an extension of time, Ms Smith stated that she disagreed with the SSCSD decision and believed “there are faults”. She noted that she had recently sought legal advice.

14. At the Tribunal hearing, Ms Smith said she was going through a difficult time personally towards the end of 2019: she was supporting her mother who had recently left a relationship due to domestic violence; she was employed and working long hours; and she later sought (informal) legal advice to assist her understand the SSCSD decision.

15. I have considered both the substantial length of the delay and Ms Smith’s reasons for the delay, and find this factor weighs against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

16. 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.

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

18. This factor weighs against granting an extension of time to Ms Smith.

    MERITS OF SUBSTANTIVE MATTER

19. I must consider the merits of the substantive application in deciding whether to grant the extension of time; while I do not decide the application, I need to consider its prospects of success.

20. The substantive application is whether, on the balance of the evidence available to the Tribunal:

    (g)Ms Smith was overpaid youth allowance in the amount of $2,957.09 for the period from 6 November 2012 to 21 October 2013; and, if so   

    (h)there are any grounds for waiving all or part of Ms Smith’s debt. 

    Relevant legislation and consideration of the evidence

21. The legislation relevant to the substantive application is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

22. Section 1067G of the Act sets out the rate of a person’s rate of youth allowance is affected by factors including their income. Section 8 of the Act defines income as an amount earned, received or derived by a person for their own use or benefit.

23. Section 1223 of the Act states that an overpayment of a social security payment is a debt to the Commonwealth.

24. Section 1237A of the Act sets out that a debt can be waived if the overpayment arose solely due to error by the Department and the person received the money believing it to be their correct entitlement.

25. Section 1237AAD of the Act provides that all or part of a debt may be waived if there are “special circumstances”. This can only be applied where the debt did not result wholly or partly from a false or misleading statement and where the circumstances (other than financial hardship alone) are deemed “special” making it desirable to waive rather than write off the debt. Although the term “special circumstances” is not defined in the legislation, previous decisions by the Federal Court and the Tribunal consider “special circumstances” are circumstances that take a person’s situation “out of the usual or ordinary case”.[1]

    [1] For example, see Groth v Secretary Department of Social Security [1995] FCA 1708.

26. Sections 68 and 72 of the Administration Act require a person to inform Centrelink about any changes to their circumstances within 14 days.

27. The evidence available to the Tribunal shows Ms Smith was in receipt of youth allowance and employed at McDonalds periodically from 6 November 2012 to 21 October 2013.

28. Australian Taxation Office (ATO) match data subsequently recorded Ms Smith gross earnings and the amounts she reported to Centrelink as follows:

    ·1 July 2012 – 10 March 2013: Ms Smith’s gross earnings were $14,765 and she reported earnings to Centrelink in the amount of $2,553.

    ·1 July 2013 – 30 June 2014: Ms Smith’s gross earnings were $15,206 and she reported earnings to Centrelink in the amount of $2,279.

29. Ms Smith subsequently provided her pay slips and bank account statements to Centrelink. Based on Ms Smith’s verified earnings, Centrelink calculated Ms Smith was overpaid youth allowance debt in the amount of $2,957.09 for the period from 6 November 2012 to 21 October 2013.

30. Ms Smith made submissions to the Tribunal as to whether the debt was calculated by averaging her gross earnings. I am satisfied that the debt calculations by Centrelink verified Ms Smith’s earnings per fortnight from her pay slips and bank account details, and calculated her debt on the basis of these verified earnings. This means Ms Smith’s debt was not calculated on the basis of averaging the gross earnings in the ATO match data.

31. I am satisfied that the amount of $2,957.09 is a debt to the Commonwealth in accordance with section 1223 of the Act.

32. I then considered whether there are grounds to waive Ms Smith’s debt.

33. At the Tribunal hearing, Ms Smith submitted that Centrelink had made administrative errors in her payment of youth allowance. In particular, she said she attended a Centrelink office after 28 February 2013 to question whether she was entitled to receive the amount of youth allowance that had been deposited into her account (which comprised back payment of youth allowance to 6 November 2012).

34. I note submissions by the Secretary set out the Department sent Ms Smith a letter dated 28 February 2013 that stated she was required to report her gross earnings to Centrelink.

35. Ms Smith said she did not receive all correspondence sent from the Department because some letters went to her father’s address. She confirmed to the Tribunal that she reported her net earnings to Centrelink. She said she was unaware she was required to report her gross earnings in the period from her claim for youth allowance on 6 November 2012 until she received the letter from Centrelink on 28 February 2013 that she was qualified for youth allowance.

36. While Ms Smith may not have been fully informed of her requirements under sections 68 and 72 of the Administration Act (to report any changes to her circumstances within 14 days), I find there is insufficient evidence that the overpayment of Ms Smith’s youth allowance was solely due to administrative error by the Department. In particular, based on Ms Smith’s evidence, the debt arose at least in part due to her reporting her net income rather than her gross earnings. This means Ms Smith’s debt cannot be waived under section 1237A of the Act.

37. Ms Smith informed the Tribunal about her current circumstances. She noted that she is employed full time, resides in stable accommodation and is not financially responsible for any other persons. However, she said she has no savings and her current financial situation “is tight”. Unfortunately for Ms Smith, her situation is not “out of the usual or ordinary case” and there are no grounds to waive her debt under section 1237AAD of the Act.

38. In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Ms Smith’s substantive application has very limited prospects of success. This factor weighs against the extension of time being granted.

    CONCLUSION

39. Weighing the relevant factors and taking into account all of the information before me, I am satisfied that it is not reasonable in these circumstances to grant the extension of time.

    DECISION

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

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 7 May 2020

Date(s) of hearing:	23 April 2020
Applicant:	In person
Solicitors for the Respondent:	Services Australia