SPWX v Secretary, Department of Social Services

[2020] AATA 3883

SPWX and Secretary, Department of Social Services (Social services second review) [2020] AATA 3883 (28 September 2020)

Division:GENERAL DIVISION

File Numbers:         2020/1171, 5769, 5770, 5771, 5772, 5773, 5774, 5775, 5777

Re:SPWX  

APPLICANT

AndSecretary, Department of Social Services

Secretary, Department of Education, Skills and Employment

RESPONDENTS

INTERLOCUTORY DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:28 September 2020  

Place:Melbourne

The Tribunal extends the time for the making of applications for review of the decisions of the Secretaries to 26 February 2020 pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975 (Cth).

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

Dr Stewart Fenwick, Senior Member

Catchwords

PRACTICE AND PROCEDURE – application for an extension of time to apply for review – whether satisfied that it is reasonable in all the circumstances to extend time – member of a couple decision – allegations of family violence – whether prejudice arising from significant delay – extension of time granted

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Cases

Boscolo v Secretary, Department of Social Security [1999] FCA 106
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commissioner of Taxation v Brown (1999) 99 ATC 4852
Frugtniet v Secretary, Department of Social Security [2017] FCA 1227
Hickey, Darrell v Australian Telecommunications Commission (1983) 72 FLR 291
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Lucic v Nolan (1982) 45 ALR 411
Pelka vSecretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Phillips v Australian Girls’ Choir & Another [2001] FMCA 109
U’Brien and Secretary, Department of Social Services [2014] AATA 761

Windschuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235

Secondary Materials

Social Security Guide

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

28 September 2020

BACKGROUND

1. SPWX applied on 26 February 2020 for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 31 May 2011. She subsequently applied on 11 March 2020 for an extension of time in respect of her substantive application.

2. In both applications SPWX provided the following statement:

   The result of the tribunal was never received by me. I was therefore unable to lodge an appeal within 28 days of the original hearing. I was aware that money was being held back and my tax kept and have tried over the years to have someone listen to me, about a debt that should not even be in place. No-one was ever able to give me a concrete reason as to why this even happened. I have tried to get a copy of the decision, to be told it does not exist. There is no record. I have had much information given to me over the years including information about a property I was supposed to own in a suburb I had never heard of. Information about my children was wrong, I was even told at one point there was no debt, it was probably someone elses, to then be told the records of this conversation like many others was not available or had gone missing. This is causing me extreme stress and anxiety as I know I owe nothing. I have replied within 28 days of my letter received 31/01/2020.

3. SPWX sought legal assistance to pursue these applications and a number of adjournments were granted leading up to the hearing of the extension of time application. During this time SPWX also pursued a Freedom of Information (FOI) request for material in the possession of Centrelink.

4. Both parties lodged two sets of submissions in relation to the extension of time in this matter together with bundles of materials, and signed statements from SPWX and several other persons were lodged on her behalf. A copy of the SSAT decision was among these documents. I was also provided by the Applicant’s representative with an academic research paper on the subject of family violence in the context of member of a couple decisions in Australia and New Zealand. To assist with references later in these reasons I set out here the material before me:

   (a)Secretary’s Objection to Extension of Time Application dated 3 April 2020;

   (i)Attachment 1, letter to Applicant from SSAT with decision dated 3 June 2011;

   (ii)Attachments 2 and 3, Centrelink Customer Records, dated June 2011;

   (iii)Attachment 4, Centrelink Instruction 109.11400 re Administrative Appeals Tribunal, as at June 2011;

   (iv)Attachment 5, Centrelink Customer Record, dated November 2011;

   (v)Attachment 6, letter Centrelink to Applicant dated 31 January 2020;

   (vi)Attachment 7, Centrelink Customer Record, dated February 2020.

   (b)Applicant’s submission to Extension of Time Application and response to Secretary’s Objections to Extension of Time Application, dated 28 April 2020;

   (c)Applicant’s Submissions Regarding Application for Extension of Time to Seek Review, dated 18 July 20202;

   (i)Annexures A and C, FOI responses from Centrelink to Applicant dated May and July 2020;

   (ii)Annexure B, documents released under FOI to Applicant;

   (iii)Signed statement of Applicant, dated 17 July 2020;

   (iv)Signed statement of ‘A’, dated 17 July 2020;

   (v)Signed statement of ‘B’, dated 17 July 2020;

   (vi)Signed statement of ‘C’, dated 6 May 2020.

   (d)Centrelink Customer Records, dated between 2011 and 2020.

5. SPWX was married to her husband in 1994 and they had a child together in 1995. SPWX asserted before the SSAT that separation occurred in 1997 and that there were periods of attempted reconciliation during which two further children were born, in 1999 and 2001. The payment of the benefits in question commenced in mid-1997. The application proceeded on the basis that a critical consideration for both the SSAT and with respect to SPWX’s new applications was her experience of family violence.

6. The SSAT was composed of a panel of two members. In its decision of over 200 paragraphs, the SSAT affirmed, and in one case varied, a series of decisions made by Centrelink with respect to debts said to be owed by SPWX. These debts were raised in May 2010 in relation to payments made under numerous benefit types. The debts arose from SPWX being determined to be a member of a couple.

7. The largest single debt was approximately $92,000 in relation to Parenting payment, and the total of the debt at the time of the SSAT hearing was approximately $193,000. Amounts totalling approximately $55,000 have been recouped since 2010 through a series of measures including reduction in the value of benefits payable to SPWX, the retention of tax refunds, and debt payment arrangements. The amount outstanding remains substantial at just over $155,000. Notification by Centrelink of this outstanding debt on 31 January 2020 prompted the current applications.

   LEGAL PRINCIPLES

   Extension of time

8. The Tribunal has the power under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to extend the time within which an application for review of a decision may be made by a person if it ‘is satisfied that it is reasonable in all the circumstances to do so’.

9. This provision is ordinarily interpreted in the light of principles set out in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), a decision made in the context of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). They were modified in Phillips v Australian Girls’ Choir & Another [2001] FMCA 109 and can be restated in summary form:

   (a)the Tribunal must be positively satisfied that it is proper to grant an extension of time;

   (b)the relevant time limit should be respected and an acceptable explanation for the delay ought to be provided, and whether the Applicant ‘rested on their rights’ is a relevant consideration;

   (c)any prejudice to the Respondents in defending proceedings should be considered;

   (d)the Tribunal should not undertake an exhaustive review of the merits of the underlying application, but its merits should be taken into account; and

   (e)fairness as between the Applicant and persons in a like situation is a relevant factor.

   Member of a couple

10. In order to appreciate the arguments with respect to merits, it is necessary to make brief reference to some aspects of the applicable law and policy.

11. Under s 4(2) of the Social Security Act 1991 a person is considered a member of a couple if, relevantly:

    (a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis …

12. Subsection 4(3) states that ‘in forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) … the Secretary is to have regard to all the circumstances of the relationship including, in particular …’ the following matters, which I summarise:

    (a)the financial aspects of the relationship including (among other things) joint assets and pooling of resources;

    (b)the nature of the household including care arrangements of any children and living arrangements;

    (c)the social aspects of the relationship including whether they hold themselves out to be married;

    (d)any sexual relationship between them; and

    (e)the nature of their commitment to each other including the length of the relationship and whether they consider it a marriage-like relationship.

13. Membership of a couple is also addressed in s 24 of the Social Security Act 1991. This section provides that the Secretary may determine in writing that a person should not be treated as a member of a couple where:

    (a)  a person is legally married to another person; and

    (b)  the person is not living separately and apart from the other person on a permanent or indefinite basis, and

    (c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple …

14. The Social Security Guide demonstrates that relevant policy guidelines, at least at the time of this decision, contemplate family violence as a relevant consideration when determining whether there is separation under one roof. The Guide (at 2.2.5.30) states that: ‘the presence of family and domestic violence may indicate the absence of commitment and that the person is no longer a member of a couple’.[1]

    [1] >

    The significance of the nature of SPWX’s relationship arises from the fact that benefits are paid at different rates to individuals and members of a couple, and a partner’s income may form part of the assessment of benefit rates.

    CHRONOLOGY AND EVIDENCE

15. I draw the following summary of events from the material lodged:

    (a)13 April 2011, SSAT hearing conducted;

    (b)3 June 2011, SSAT decision dispatched;

    (c)6 June 2011, Centrelink record states in part ‘please notify customer in writing that the SSAT decision has been implemented’;

    (d)22 June 2011, Centrelink record states Applicant called in relation to cancellation of parenting payment, refers to SSAT decision and notes:

    Discussion details: Customer (cus) contacted in relation to PPS (parenting payment single) being cancelled […] Advised cus[tomer] of 109.11400 – Administrative Appeals Tribunal (AAT) … Customer wanted all payments restored. Apologized to customer and gave advise [sic] from Electronic references above as far as her rights go. Offered customer welfare referrals to seek assistance. Cus Declined.

    (e)17 November 2011, Centrelink record states Applicant called regarding family assistance payments:

    Discussion details: Customer … wanting assistance with any updates that would increase her eligibility for help each fortnight […] Due to financial hardship and that customer considers herself as separated and is not receiving any income except for child support as arranged when PPS current – customer arranged to pay $20 per fortnight toward the debt … Customer to contact legal aid to further her attempts to have her relationship ended as she nor her ex partner believe they should be considered in a relationship. I have advised I was not able to re determine the SSAT decision and if she has more evidence or believes the decision was made without considering all the evidence available to pursue further legal representation but that for the moment they are partnered and that she should contact the child support to end the case set up … Customer not planning to do this as this is the only monies received from her ex despite the linking of their files … On customer request activity cancelled as customer plans to get legal assistance to take her fight further and have the non lodger assessment done when she is declared a single customer.

    (f)27 October 2014, Centrelink record described as ‘complaint’ states:

    Message Detail: Yet again I find myself having to contact you, to advise you that as a single parent I am at a loss to know why my family assistance has been cancelled and everything else reduced. I am sick of the persecution, over the years I have advised you of my circumstances and I am sick of struggling to exist while others' get everything handed to them on a plate. I was in a wheelchair for 4 months earlier in the year due to a major operation, I received NO financial help at all!!!!! I have recently advised of my parental income for my daughter. There was a section about partner income. I do not have a partner, nor do I intend to. Please rectify this situation as the stress it is causing for myself and my children is beyond a joke. I want my payments reinstated!

    (g)17 November 2014, Centrelink record states:

    Resolution/ Action Taken: Customer was contacted but advised she could not stay on the phone as she is at work. She did say that she wants to be assessed as single and doesn't understand why she cant. I have advised the customer without investigating the record with her on the phone the best I can do is send her a new Separated under one roof form or the customer can call back to Customer relations when she is free. I have issued the customer with the feedback number. Customer phoned successfully: YES

    (h)19 November 2014, Centrelink letter to SPWX regarding debt of $210,112.43 and absence of arrangements to repay;

    (i)26 November 2014, Centrelink record states:

    Message Detail: This is now my 3rd co1Tespondence [sic] on this matter. Further to my previous conversation I have now been sent a bill for over $200,000.00 dollars which I have no chance of paying ever. I did have a previous repayment happening which has obviously been cancelled. I do not owe you any money. You owe me money for all the payments I did not receive. I will repeat again. I do not, will not and have not had a partner for over 13 years. I do not know how many other ways I can say this. Please get this matter rectified before I have a nervous breakdown. The threatening letters must be stopped. I have enough to worry about without a debt that is not owed and will never be paid. This is total harassment.

    (j)22 December 2014, Centrelink record states: ‘Customer has completed SS293 separated under the same roof form and stated she does not live with anyone and separated from the O/P in 2001’;

    (k)18 February 2015, Centrelink letter to SPWX regarding debt of $205,760.53;

    (l)1 April 2015, Centrelink letter to SPWX regarding debt of $193,997.88;

    (m)19 April 2015, Centrelink record states in part: ‘Customer Feedback Details: This is now one of a number of letters I have sent you. I have received yet another demand for a debt I am unable to pay and should not have to pay […] As usual I feel as though I am hitting my head against a brick wall’;

    (n)16 December 2016, Centrelink record states: ‘Customer contacted to discuss debt repayment. Total balance outstanding $168,728.53. Cus agreed for $20 per fortnight to be deducted from their payment’ and notes that tax refund has been withheld against family tax benefit debt;

    (o)8 May 2017, Centrelink record states: ‘Cus question putting an appeal in place as she does not believe she owes any money. I have advised she has already appealed all of the debts and referred her to read the letters that were issued and what options she has there’.

16. In summary, and in addition to those contacts noted in the records, SPWX had direct contact with Centrelink from the period following the SSAT decision in 2011 through to 2020 on over twenty occasions.

17. The document referred to above as electronic reference 109.11400 was, as noted, lodged by the Respondents’ representative. It is a document of several pages which commences with statements describing the role of the Tribunal in conducting appeals from decisions of the SSAT and explaining the 28 day time limit for such appeals.

18. In her statement SPWX states:

    (a)she was not informed about the SSAT decision and first became aware in around July 2011 that ‘something was not correct’. She spoke to Centrelink and was told there was nothing she could do ‘as the time to appeal had passed’;

    (b)that she tried ‘on many occasions’ to talk to Centrelink about what she could do and was told ‘there is nothing you can do’;

    (c)that she experienced illnesses and injury in 2011 and 2012 including an autoimmune disease;

    (d)after a four year degree she qualified as a teacher and in 2013 secured part time employment. She was advised to make a complaint to the Ombudsman and after doing so was informed that she ‘needed to sort it out with Centrelink’;

    (e)in 2014 she commenced postgraduate studies and underwent surgery to her lower leg;

    (f)she was employed in 2015 and 2016 and subsequently spent some time visiting her mother in the United Kingdom;

    (g)in 2017 she gained further employment and was diagnosed with a second auto-immune disease. She was contacted by Centrelink about her debt and was told she ‘could not do anything and could not appeal’;

    (h)her employment continued in 2018 and with her children at University they were her ‘main priority as ever’;

    (i)in 2019 money was being taken from benefits by Centrelink and also her tax returns and later this year she spent time in the United Kingdom with her mother ‘and so was not home to deal with correspondence’;

    (j)in 2020 received further correspondence with respect to her debt and received advice to pursue legal advice. She was able to receive a copy of the 2011 SSAT decision, which she had not previously seen. When she received the decision she was ‘stunned’ as there ‘were so many inaccuracies and pieces of information I had no idea about’;

    (k)her experiences with Centrelink throughout have been difficult and stressful;

    (l)she considers it necessary to be given an opportunity to describe the control and violence she was subjected to by her husband, the dependence she experienced notwithstanding their separation, and the difficulty she has had disentangling their affairs;

    (m)her experience at the SSAT left her feeling that she had not been listened to, ignored and that her experiences including her illness had been dismissed.

19. Statements lodged on SPWX’s behalf include the statement of C who states that she treated SPWX for addiction in her capacity as a counsellor. C appears to have had an association with SPWX between approximately 1997 and 2014 and her statement reports that SPWX experienced difficulties with her addiction including several periods of hospitalisation during this period. It also supports the broader claim underlying these applications and C states specifically that SPWX was ‘in an abusive, controlling relationship’.

1. The statement of A states her relationship as a long-time friend and colleague of SPWX. It states SPWX made a recovery from addiction in around 2008-2009 and also supports the claim with respect to family violence. Specifically, A states that SPWX ‘had been physically and verbally attacked by her husband …’ at the time of separation in 1997. A also states that SPWX experienced difficulties with her business after an employee stole money, and corroborates SPWX’s lack of awareness of her appeal rights.

2. The statement of B states that they knew SPWX’s husband to destroy her possessions including material said to be ‘from Centrelink’, and that he would also go through SPWX’s mail.

3. I note the observations made by the SSAT with respect to violence arose when SPWX was asked to substantiate her information that her husband had been physically violent. The decision records (at [85]) that SPWX indicated she had received broken fingers and a broken eye socket and there would be a record of police attending due to noise. The decision concludes: ‘In summary she can confirm that there had been only once incident of apparent violence reported to police since 1997 involving her eye. She confirmed there have been no intervention orders in place’.

   SUBMISSIONS

4. At the hearing the following submissions were made on behalf of SPWX:

   (a)the significant delay in this matter weighs against the grant of an extension of time but it is warranted due to the unusual circumstances;

   (b)delay centres on a legal fiction of presumed delivery and in this case SPWX did not receive the SSAT decision and was told by Centrelink there was nothing she could do. Her assertion is not a recent invention, and is supported somewhat by the supporting statements;

   (c)Centrelink records note information regarding review rights and the effect of the decision, but also demonstrate SPWX’s assertion that she was told there was nothing she could do;

   (d)her 2013 complaint to the Ombudsman is consistent with SPWX’s understanding that she did not understand her rights and had thought they were exhausted, albeit there was no evidence of this complaint;

   (e)it is open to the Tribunal to find SPWX did not understand her rights and that this was a proper explanation for the delay;

   (f)prejudice to the Respondents arises primarily from the passage of time but there is no clear indication provided about what additional information or witnesses might be required and affected by the delay. The SSAT decision is comprehensive and is accompanied by voluminous additional information including a surveillance report;

   (g)in contrast it is the Applicant who will bear a greater burden in proceeding after the delay and success depends upon the ability of SPWX and her witnesses to contextualise the evidence, however there would be some prejudice to the Tribunal in testing the evidence;

   (h)arguments as to the merits of SPWX’s application should be considered at their highest, and that it would be an error of law for the Tribunal not to accept evidence as to merits on its face.[2] It is sufficient to identify the Applicant’s factual assertions and consider whether the law, applied to those assertions, would bring about the result for which the Applicant contends;[3]

   (i)the merits in this case weigh heavily in SPWX’s favour and expert evidence will be relied upon to explain the impact of family violence and it is likely a substantial portion of the debt will be waived on appeal;

   (j)the SSAT decision is flawed because, having made an observation about the existence of domestic violence, the decision remarkably fails to address the issue when analysing evidence and in its considerations about the factors relating to membership of a couple. The error is so significant it might be said to amount to a failure to give any real or meaningful consideration to the issue, were judicial review to be undertaken;

   (k)as to wider prejudice, the public perception arising in this case would be such that SPWX should not be shut out of relief;

   (l)alternative avenues of relief as contended by the Respondents were not appropriate.

   [2] Commissioner of Taxation v Brown (1999) 99 ATC 4852.

   [3] Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235.

5. In addition to the above, I note some further relevant submissions contained in the Applicant’s written submissions:

   (a)since the decision she has faced a fair degree of adversity;

   (b)family violence is a relevant consideration, and the family violence consisted of financial control, with considerable emotional and physical abuse;

   (c)the Social Security Act 1991 affords a decision maker the option of determining people are not a member of a couple for special reasons, under s 24, and the Tribunal has previously held that family violence may constitute such reasons;[4]

   (d)the capacity to pool or share financial resources underlies s 24 and, in SPWX’s case she did not gain benefit but rather financial survival from such resource sharing as occurred;

   (e)when considering member of a couple issues the decision maker should focus on the individual seeking the discretion, not on the couple as a whole.[5]

   [4] U’Brien and Secretary, Department of Social Services [2014] AATA 761 (U’Brien).

   [5] Boscolo v Secretary, Department of Social Security [1999] FCA 106 (Boscolo) at [19].

6. The submissions made on behalf of the Respondents at the hearing were brief, with reliance placed in large part upon its written submissions. It was submitted that:

   (a)given that SPWX had been subject to an adverse debt decision, this should have prompted her to make inquiries without waiting to respond to the cancellation of payments;

   (b)a Centrelink record in November 2011 demonstrates the Applicant was considering her legal position and should have been expected to avail herself of this, rather than limit herself to options via Centrelink;

   (c)in consideration of there being consistency in Tribunal decision-making, granting the extension in this matter would represent a high-water mark of decision-making, and in any event ignorance of the law should be no defence to the lack of an earlier application;

   (d)as to prejudice, there is a body of material already available which would in large measure diminish the prejudice to the Respondents;

   (e)in summary, the length of delay was a significant issue but it was open to the Tribunal to find an arguable case on the merits particularly if satisfied on the question of family violence.

7. In written submissions on behalf of the Respondents the following matters were put:

   (a)SPWX has not provided a reasonable explanation for the delay, albeit authorities do not specifically require this, and the supporting statements provided on her behalf do not amount to corroboration of this claim;

   (b)Centrelink has no obligation to inform her of her legal rights with respect to review out of time and there is no evidence supporting SPWX’s claim;

   (c)Centrelink records of contact indicate that SPWX was informed of her appeal rights and therefore she can be understood to have rested on her rights;

   (d)with respect to the question of prejudice to the Respondents, the Federal Court of Australia has observed[6] that prejudice to a Respondent and the public was to be understood in the sense of the passage of time, and that here the Tribunal will be required to consider evidence that may be less reliable than that gathered closer to the events;

   (e)with reference to previous Tribunal decisions dealing with prejudice to the general public and disruption to established practices, it is in the public interest that there be an end to the appeal process and time limits ensure an orderly conclusion to this process;

   (f)further, ‘the public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur’;

   (g)with respect to the merits of success, the SSAT decision reveals a detailed assessment of the evidence when making the member of a couple decision, the combined incomes of SPWX and her husband were taken into account, and the debt decision took into account a finding that SPWX knowingly made false statements;

   (h)the Tribunal has found in the past that where no benefit arose form pooling resources, that the discretion in s 24 may be enlivened, but in the presence of the SSAT finding that SPWX knowingly made false statements, this discretion would require consideration;[7]

   (i)finally, a refusal to extend time would not deny future relief. Should SPWX’s circumstances change to the extent that she faces difficulty with meeting the debt obligation she may apply for them to be varied or written off.

   [6] Frugtniet v Secretary, Department of Social Services [2017] FCA 1227 at [18].

   [7] U’Brien at [62].

   CONSIDERATION

8. Subsection 29(7) of the AAT Act establishes a test of reasonableness. The test has been elaborated in a range of analogous circumstances in the authorities, in a range of different jurisdictions. The time of 28 days has been established as the requisite period within which a request for a further review may be made, and the authorities emphasise that the applicable time frame cannot be ignored.

9. SPWX asserts that she was not aware of the outcome in the SSAT and that she considered her appeal rights had been exhausted. There is no positive evidence that she received the decision, and she denies that this is the case. It has been submitted on her behalf that its receipt is a legal fiction.

10. The Centrelink records extracted above indicate that SPWX was informed of the decision and her appeal rights. The SSAT itself would have had the primary responsibility here in sending the decision and advice about appeals. There is no reason to believe that the records are inaccurate. Equally, I consider that the records indicate that SPWX was repeatedly advised at later times that time for an appeal had lapsed. This supports her evidence, but does not resolve the issue as to an explanation for the delay.

11. The Centrelink records also indicate that action on the SSAT decision with respect to the debt appears to have taken place prior to the end of the appeal period. That is, if correct, at all relevant times SPWX was of the understanding that she owed a debt, and as seen, has frequently engaged with the agency on this topic. It is evident that the bulk of her contact with Centrelink has been in relation to her debt.

12. I accept that advice about the decision and action taken with respect to the debt strongly indicate that SPWX was well enough informed about her situation to pursue her rights, or seek advice as to her rights. There is material indicating that she was planning to seek advice around the end of 2011. The relevant record suggests that SPWX was particularly focused at that time on pursuing advice about her relationship status. At this time, in any event, the 28 day appeal period had long expired.

13. I consider SPWX was well aware of her debt and continued to engage on this topic including by negotiating repayment. Her numerous engagements with Centrelink indicate that SPWX was able to represent her interests quite adequately, if not forcefully. Equally, SPWX continually challenged the existence of the debt, and her assertion as to her status as a single person. I accept that her assertion of a complaint to the Ombudsman was not substantiated with other evidence, but I cannot reject entirely the possibility that this occurred.

14. Between 2011 and the present, SPWX states that she completed undergraduate and postgraduate degrees and returned to the workforce (although the material before me indicates that she has been a business owner as well). SPWX has also spent relatively substantial times overseas on two occasions.

15. I accept that SPWX has experienced some illness. She has also described a sense of distress in relation to her dealings with Centrelink. SPWX has also described the difficulty associated with disentangling her affairs with her husband. There is some evidence as to her efforts in this regard, including the Centrelink record indicating that SPWX lodged a notification of separation under the one roof in December 2014. It appears the effective date of separation noted is 2001. This is a number of years later than that raised in other material, before the SSAT, and with Centrelink, being 1997.

16. In summary, the delay in pursuing a further review cannot be satisfactorily explained by lack of awareness of the decision, or the outcome of the decision. I also accept that, in principle, the material indicates the SPWX was not lacking in capacity, time or the means to lodge a request for review at some earlier point in time. As I have noted, there is also evidence that SPWX’s understanding of her situation has been clouded from the outset by the presence of a substantial debt. At the same time, SPWX appears to have been continuing to advance her separation.

17. The question of separation and, in particular, the contradictory dates before me go also to the question of merit. An exhaustive consideration of the underlying merits is not required, and the existence of an arguable case is sufficient. The consideration of merits in requests for second tier review, as here, are not undertaken in a vacuum. The Tribunal has to hand, in addition to material from Centrelink, a previous decision examining the merits of the case.

18. In substance, the submission made on SPWX’s behalf is that the issue of family violence plays a strong role in determining her status with respect to entitlement to payment of benefits. I have been provided with some material in the form of supporting statements that  sustain her claim as to the existence of family violence, and refer to her addiction. Either factor alone would be a subject that requires careful examination, and thoughtful consideration in the course of a review. I have not been provided with independent or documentary evidence substantiating family violence. I have not been provided with further evidence substantiating the issue of date of separation, for which two different years have been asserted.

19. The existence of violence was acknowledged by the SSAT. However, the Applicant challenges the extent to which this contributed to the SSAT’s consideration of the central question of the nature of domestic and other arrangements between SPWX and her husband. The brief summary of the applicable law and policy above shows that family violence is only raised explicitly in guidelines, and in relation to separation under the one roof. Reference to the submissions and to authorities demonstrate that in member of a couple decisions, consideration may be given to exercise of the discretion in s 24 of the Social Security Act 1991. The s 24 discretion is not referred to in the SSAT decision. As contended on the Applicant’s behalf, this provision is to be understood with reference to the person receiving the benefits.[8]

    [8] Boscolo at [22].

20. SPWX’s case involves consideration of a large number of decisions of the Agency across numerous payment types. It is also apparent from the SSAT decision that there are a number of property assets as well as a range of other financial arrangements to be considered. Matters for consideration are identified in s 4(3) of the Social Security Act 1991, and appear to have been exhaustively addressed by the SSAT. I note that s 4(3) requires that regard must be had to ‘all the circumstances of the relationship’, including those specified.[9] This particular phrase in the subsection is not cited by the SSAT, although it appears in legislation attached as an appendix to the decision.

    [9] Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 at [24].

21. The SSAT also made a finding that SPWX made false declarations to Centrelink. It has been submitted on the Respondents’ behalf that this factor may tell against exercise of the s 24 discretion. In short, while these diverse matters are relatively typical for a member of a couple decision, there would appear to be a reasonable degree of complexity in SPWX’s case, quite apart from the subject of whether or how the existence of family violence might contribute to an analysis of the relationship. I understand that considerations of a person’s circumstances includes inquiries with respect to the capacity of persons in a relationship to pool resources, and this is reflected in the parties’ submissions.[10]

    [10] Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084.

22. It was submitted on SPWX’s behalf that on further review her debt might be substantially reduced. This submission demonstrates that there may be a range of possible outcomes were a review to be permitted. I do not consider that this possibility is fatal to consideration of the merits. In the context of the decision under review, I consider it reasonable to expect that particular findings of fact will inevitably weigh for or against an Applicant with respect to different payments, and that this may give rise to a relatively complex matrix of outcomes. I accept that outcomes in a wider sense might include alternative avenues of relief, however I consider that issues of merit take precedence over the opportunity to seek some form of concession with respect to the debt.

23. There is strong support in the authorities for the need to respect time limits, often with reference to the public interest in the administration of justice, although the factor of time (expressed in the principles regarding the length of delay, any explanation for it, and the notion of resting on one’s rights) needs also to be understood with reference to the other principles of merit and potential prejudice. I noted above that fairness to other persons in like circumstances was also identified as a relevant principle.

24. The discussion of factors in Hunter Valley includes reference to unsettling other persons or established practices, as well as the notion of ‘public considerations’ (at [21]). Cases cited in support relate to decisions in public administration such as those arising in a disciplinary matter, and an industrial context.[11] The interests of applicants in those circumstances should be understood as also having direct implications for third parties, and this is how I understand the further factor noted above (fairness to other persons in like circumstances) to be relevant. These dimensions may not weigh as heavily in the case of entitlement in individual circumstances to social security payments. For this reason, arguably, it is also stated in Hunter Valley that where there is no prejudice, and the interests of the immediate parties only are affected, it may not be difficult to grant an extension (at [26]).

    [11] Lucic v Nolan (1982) 45 ALR 411 (Lucic); Hickey, Darrell v Australian Telecommunications Commission (1983) 72 FLR 291.

25. The principles of delay and prejudice are closely aligned. The authorities reflect the logic behind the assumption that matters are likely to be more difficult to resolve when too great a time has elapsed since the events in question. However, it was observed in Lucic that ‘all else aside there will often be no question of prejudice to a respondent decision maker’ (at p 416). In this case, as was noted in submissions, the element of prejudice is reduced due to the fact that relevant materials were marshalled at the time of the SSAT decision, and additional materials have been compiled as a result of the FOI process.

26. That is not to discount the difficulties that will arise should the matter be heard. The events giving rise to the debt decisions are now up to twenty years old. This will strain the quality of oral evidence. This will not only add complexity to the proceeding for all parties, but will undoubtedly burden the Tribunal. I accept the submission made by SPWX’s representative that the Applicant will face a special difficulty in overcoming, if required, the weight of a large body of documentary evidence. Beyond the matter of prejudice, it is plainly the case that all involved will face inconvenience in undertaking a further review in this matter. However, extensions of time ‘will always or usually cause some measure of inconvenience’.[12] Further, underlying the consideration of the factors bearing on a decision to extend a prescribed time limit is also, in a broad sense, consideration of what the justice of the case requires.[13]

    [12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 571 Kirby J (dissenting) (Brisbane South).

    [13] Brisbane South, particularly the reasons of McHugh, J and Kirby, J.

    CONCLUSION

1. I accept that SPWX was aware of the negative outcome on first review. This, even in the absence of concrete evidence that she received the SSAT decision, speaks against an extension of time. Perhaps more importantly, the very long lapse before pursuing and responding to legal advice also tells against granting an extension. SPWX spent a great deal of time doing a wide range of other things in her life before lodging an application with the Tribunal. However, it is apparent that SPWX was continuing to deal with her relationship status in months (and possibly years) following the adverse decision. I have also noted that it appears from the Centrelink records that SPWX was focused on a debt that appears to have been raised prior to the expiration of the time to lodge an appeal. She has protested her relationship status and the outcome of the SSAT decision throughout the long period of time since the expiration of the appeal period. I consider this reflects, at least in part, her concern about the size of the debt which remains substantial.

2. The issue of merits is not straightforward as there may be a variety of outcomes given the range of payment types, and their interaction with the facts. It is not the case that the existence of family violence of itself should be seen as operating in any pre-determined way upon decisions with respect to payments in the context of the Social Security Act 1991. However, I note the requirements in s 4(3) to have regard to all the circumstances of the relationship, and the discretion arising under s 24 in relation to special circumstances. I also take note of the fact that these considerations appear yet to receive full consideration. The existence of family violence is highly relevant to consideration of the merits. These factors aside, the material provided to the Tribunal now indicates that the date of separation requires consideration, due to the nomination of different years by SPWX.

3. The delay in this matter is very substantial and the issues sought to be considered in a review are also of importance. On balance, despite the lack of strong arguments with respect to the delay, I am satisfied that it is reasonable in the circumstances to grant an extension of time to SPWX. I am reasonably satisfied that an important dimension of her relationship provides her with an arguable case, and one which is sufficiently important to warrant further review of the decisions made by the Respondents.

   DECISION

4. For the reasons given above pursuant to section 29(7) of the AAT Act, the Tribunal extends the time for the making of an application for review of the decisions of the Secretary to 26 February 2020.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated:            28 September 2020

Date of interlocutory hearing:	1 September 2020
Advocate for the Applicant:	Mr J W G Grant
Solicitors for the Applicant:	Social Security Rights Victoria
Advocate for the Respondents:	Mr Tim Noonan
Solicitors for the Respondents:	Services Australia