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

[2021] AATA 1620

Steer and Secretary, Department of Social Services (Social services second review) [2021] AATA 1620 (8 June 2021)

Division:GENERAL DIVISION

File Number:          2021/0908

Re:Darren Steer

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:08 June 2021

Place:Sydney

The application for an extension of time is refused.

..........................[SGD]...............................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – EXTENSION OF TIME –disability support pension – extension of time application – length of delay – reasonable prospects of success – application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 147

CASES

Berkelaar and Comcare [1997] AATA 12015

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brown v Federal Commissioner of Taxation [1999] FCA 563

Dolan and Comcare [1997] 29 ALD 887

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 244

Kim and Minister for Immigration and Border Protection [2018] AATA 155

Kuljic v Secretary, Department of Social Security [1994] FCA 886

Secretary, Department of Family and Community Services and Roberts [2003] 73 ALD 412

REASONS FOR DECISION

Chris Puplick AM, Senior Member

08 June 2021

BACKGROUND

1. Mr Darren Steer (the Applicant) has made an application for an extension of time (EOT) to lodge an appeal against a decision made by the  Social Services and Child Support Division of this Tribunal (AAT1)  which in turn had upheld a decision by the Secretary, Department of Social Services (the Respondent) rejecting aspects of  his applications for a Disability Support Pension (DSP).

2. The Applicant has made two DSP applications. The first of these was made on 30 November 2017 and was rejected by the Respondent on 19 March 2018. A review was sought of that application within the Department and the decision to deny the application was affirmed on 6 June 2019. No further appeal against that decision was made.

3. On 12 July 2019 the Applicant made a second (new) DSP claim which was rejected on 9 October 2019. Again, this decision was subject to review, but on this occasion the appeal was upheld, and the DSP was granted effective from 12 July 2019.

4. The Applicant has formed the view that the decision to grant his second DSP application must mean that the decision to refuse his first application was itself in error and that what should happen is that his DSP payments should be backdated to the date of the first claim.

5. It should be noted that such an argument does not follow as a matter of logic. The scheme of the DSP as set out in the Social Security Act 1991 (Cth) is such that certain conditions must be met at certain times. It is often the case that when initial applications are rejected, and new/fresh applications made, the circumstances of the applicant have changed sufficiently in that interim period to justify a different decision being made later.

6. This matter came before the Social Services and Child Support Division of this Tribunal (AAT1) which, on 4 November 2020, gave a decision affirming that the correct start date of the DSP payments was 12 July 2019 and that there was no claim for the payment to be backdated to November 2017 which could actually be considered by the Tribunal. It did not find the 6 June 2019 decision wrong, it found that it was not possible for it to be reconsidered at all via the application before it.

7. The Administrative Appeals Tribunal Act 1975 (Cth) provides that appeals against decisions by an AAT1 determination must be made within 28 days of the receipt of that decision (section 29(2)).

8. Although the AAT1 decision was made on 4 November 2020, the Applicant claims that he did not received it until 16 November 2020.  If this was the case, then the Applicant had until 14 December 2020 to request a review. He did not do so until 10 February 2021, which is just over 8 weeks out of time.

9. The matter came before this Tribunal for hearing on 13 May 2021, conducted by telephone with the Applicant and the Respondent’s representative.

   PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME

10. Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.

11. McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[1] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:

    “First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

    The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

    [1] (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.

12. It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[2] should be taken as the guide by this Tribunal in determining EOT matters.

    [2] (1984) 3 FCR 344.

13. That list provides as follows:

    ·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;

    ·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;

    ·any prejudice to the respondent caused by the delay;

    ·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    ·the merits of the substantial application; and

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

14. However, there are other principles which the Tribunal bears in mind in these considerations. They include:

    ·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated.”[3]

    ·“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.”[4]

    ·considerations of “the availability of alternative avenues of relief should the original EOT not be granted”.[5]

    [3] Brown v Federal Commissioner of Taxation [199] FCA 563 at [59].

    [4] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

    [5] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].

15. There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed time limits serving as a guide as to whether an extension of time may be granted.

16. In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:

    “In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.”[6]

    [6] Secretary, Department of Family and Community Services and Roberts [2003] 73 ALD 412 at [16]. Also Dolan and Comcare [1993] 29 ALD 887 at [888].

17. In Roberts the one day delay the extension of time was refused whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[7]

    [7] Berkelaar and Comcare [1997] AATA 12015.

    APPLICATION OF EXTENTSION OF TIME PRINCIPLES

18. The essential elements of an EOT application (if it is to be successful) is that it must show that there was a good reason for the application being made late and that there are reasonable prospects of success if it were allowed to proceed to a full merits-hearing.

19. In this application neither condition is met.

20. In the Applicant’s application of 10 February 2021 seeking a review of the rejection decision the Applicant gives his reasons as:

    “Because you have written the original decision was incorrect so why cant I get back pay from when I first applied why.”

21. In his application for review of the AAT1 decision dated 15 March 2021 (received 22 March 2021) he writes (literally):

    “The original was incorrect so why was I not payed from the first time I apppyed why am I being penelised for thear mistake.”

22. The Tribunal notes that his second application for review[8] (as distinct from his EOT application) states:

    “I will put pappper’s that show’s the decision is wrong I have also still been seeing my social worker Sorin Timis because of all the stress this is putting me under sometimes I just feel like just hanging myself.”

    [8] Dated 22 February 2021 (received 24 February 2021).

23. In giving his oral evidence to the Tribunal, the Applicant indicated that since approximately March 2020 he had suffered a series of health problems which had resulted in him being hospitalised on some 16 or so occasions in various hospitals in the Hunter-New England area. He indicated that he was currently awaiting surgery and also seeking assistance with the provisions of some supported aged care services. The Tribunal has no reasons not to accept this evidence and the Applicant’s claim that this may have occasioned some delays on his part in responding to correspondence and notifications.

    Considerations

24. The Tribunal is sympathetic to the Applicant’s position in terms of his health conditions and his evidence about the degree of stress he was under both in relation to those conditions and several family-related issues.

25. Even if the Tribunal were to allow that the Applicant’s general health, mental health state and level of stress caused him some difficulties in complying with time limits, this would not address the more fundamental point that the Applicant misunderstands the purpose of the AAT1 decision.

26. The AAT1 decision states clearly:

    “5. In its letter to Mr Steer dated 26 June 2020, informing him of the reversal of the decision to reject the second claim, the authorised review officer stated: After careful consideration, I have decided the original decision was incorrect. The decision is now set aside and your claim for Disability Support Pension has been granted from 12 July 2019. Mr Steer contends that the reference in that letter to the original decision is a reference to the decision to reject his first claim for DSP. The Tribunal disagrees. The reference to original decision is the decision made on 9 October 2019 to reject the second claim. That was the original decision under review by the officer in question, and which the officer replaced with a new decision to grant the second claim. The officer did not purport to, and had no power to, review the decision to reject the first claim, which had already been upheld by a different review officer.

    6. The first claim remains rejected and only the second claim has been granted. It follows that the correct start date for the second claim is the date of the second claim, namely 12 July 2019.”

27. It is not the province of this Tribunal to undertake a detailed examination of the facts and claims in order to establish if an applicant has any reasonable prospect of success at a full merits-based hearing. The Tribunal must be aware of the issues arising and the nature of the submission put by both applicant and respondent on the point.

28. However, where it is clear for statutory reasons that an application cannot succeed, it should not be allowed to go forward.

29. The Respondent’s Outline of Submissions demonstrates that, in relation to the first DSP claim (30 November 2017) three matters are of particular relevance:

    (i)There was no medical evidence before the decision-maker to demonstrate that the Applicant met the requirements of section 94 of the Social Security Act 1991 (Cth);

    (ii)There was no attempt on the part of the Applicant to bring that rejection decision before the AAT1 for review; and

    (iii)Even if the Applicant were found to have been qualified for the DSP at the time of the first claim (which is not conceded), the provisions of the Social Security (Administration) Act 1999 (Cth)[9] are such that the earliest date upon which the Applicant could have been paid the DSP arising from his first claim was 18 September 2020.

    [9] Section 147, Item 8.

30. The legislative provisions are such that, when the ARO gave their decision on 6 June 2019 the Applicant had a 13-week period in which to seek a review of that decision if he wished it to be backdated to the date on which it was made. In the event of his not doing so, the earliest backdate available (presuming success on the merits) would be the date of his (delayed) review application. That was 18 September 2020.

31. By this date, the Applicant was already in receipt of the DSP (granted 12 July 2019) arising from his second application. The backdating of the payments to the earliest possible date should all claims be resolved in the Applicant’s favour would thus lead to no outcome more favourable to him than his current circumstances.

32. In this instance, the Applicant cannot rely on his health condition(s) as being responsible for his delay in making his application. His evidence to the Tribunal was to the effect that his serious health conditions and his current family-related issues effectively commenced to be impactful as of March 2020. They provide no basis for failure to act in the year or more between June 2019 and September 2020.

33. Even allowing some latitude for the delay in lodging the EOT application, because there are no reasonable prospects of it succeeding on appeal (even if in extraordinary circumstances it could succeed it would yield no different/better outcome for the Applicant) leads to an obvious conclusion that the EOT application should not be granted.

    DECISION

34. For the above reasons, the application for an extension of time is refused.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member.

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Associate

Dated: 08 June 2021

Date(s) of hearing:	13 May 2021
Applicant:	In person (by telephone)
Solicitors for the Respondent:	Elizabeth Ulrick, Services Australia