Stelzer and Secretary, Department of Employment and Workplace Relations

[2005] AATA 879

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/146 

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEAN JEFFERY STELZER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr JG Short (Member)

Date9 September 2005

PlaceAdelaide

Decision The Tribunal refuses the application for extension of time.

..............................................

JG SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – application for extension of time – delay approximately four years – extension of time refused

Social Security Act 1991

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

9 September 2005   Mr JG Short (Member)

1.      The application is for an extension of time within which to lodge an application for review of a decision affirmed by the Social Security Appeals Tribunal (the SSAT) on 8 August 2001 to refuse to backdate a claim for Mobility Allowance to any date prior to 4 October 2000.  Mr Stelzer (the applicant) received notice of the decision of the SSAT on or before 1 September 2001.  He lodged an application for extension of time and for review of the decision on 2 June 2005.

2.      The applicant appeared on his own behalf.  Mr Goldsworthy appeared for the respondent (the Department). 

3.      In considering the application to extend time within which to lodge an application for review by the Administrative Appeals Tribunal (AAT) I am required to consider, amongst other things, matters described in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305.

4.      I remind myself that the period prescribed by Parliament within which to lodge an appeal to the AAT is 28 days from notice of the SSAT decision.  Mr Stelzer indicated in his application form that he received notification of the SSAT decision on 1 September 2001.  This would suggest that by 29 September 2001 Mr Stelzer, if he chose to do so, should have lodged his application for review by the AAT.  Mr Stelzer’s application was not lodged until 2 June 2005, that is nearly four years later.

5.      Mr Stelzer explained that he suffers from post-traumatic stress disorder and had a stroke in or about May 1997.  He also experienced significant physical injuries in 1997 and continues to suffer from anxiety.

6.      Mr Stelzer said that he had been in receipt of Disability Support Pension (DSP).  He decided that a course in refrigeration mechanics conducted by a South Australian College of TAFE (TAFE) would assist his feelings of self worth.  This is particularly after experiencing a distressing marriage breakdown.  Mr Stelzer said that he is now 58 years of age and had been in the workforce since 14 years of age.

7.      Mr Stelzer said that prior to commencing his TAFE course in February 2000 he attended an information day and made enquiries about any support payments which may be available to him during his course.  Mr Stelzer said that he was initially told that a particular TAFE lecturer would see if any support was available through the TAFE school.  A few weeks later Mr Stelzer was referred to a particular office within TAFE.  He said that a woman treated him very abruptly and advised him that there was nothing that could be done.

8.      Mr Stelzer explained at the hearing that in or about March 2002, and then in May 2002, and then again in June 2002 he visited Centrelink offices and spoke to someone at a front counter and received general advice to the effect that there was unlikely to be any help available to him through Centrelink.  I note that neither the Authorised Review Officer nor the SSAT recorded in their reasons for decisions any reference to assertions made by Mr Stelzer to the effect that he had attended Centrelink offices at any time after commencing his course in February 2000 until the end of September 2000.

9.      Mr Stelzer cannot recall receiving a covering letter with the Authorised Review Officer’s decision or a covering letter with the SSAT decision advising that he had 28 days within which to seek review of the SSAT decision.  Mr Stelzer said that he was eventually advised by a fellow TAFE student that some help was likely to be available to him and that as a consequence he attended Centrelink offices towards the end of September or early October in order to again enquire as to what help may be available to him.  The Authorised Review Officer eventually made a decision to backdate payment of Mr Stelzer’s claim for Mobility Allowance to 4 October 2000.  The SSAT had found that there was no legislative warrant to backdate Mr Stelzer’s claim any further, particularly not to the date Mr Stelzer commenced his course in February 2000.

10.     Mr Stelzer explained that the reason for delaying his application for review by the AAT was that he did not know that he had a right to seek review.  This flows from his contention that he did not receive covering letters with either the Authorised Review Officer’s decision or the SSAT decision.  These letters, as a matter of course, contain specific advice about time frames in relation to potential appeals to the AAT.  Mr Stelzer said that he paid for his own course materials and consequently considers that it would be unfair if he were not back paid Mobility Allowance to the date his course commenced on 8 February 2000.

11.     Mr Goldsworthy submitted that the Department would be severely prejudiced if Mr Stelzer were now allowed to pursue his appeal almost four years after receipt of the SSAT decision and approximately five years after relevant events are alleged to have occurred.  In particular Mr Goldsworthy referred to Mr Stelzer’s suggestions that he attended Centrelink offices in March, May and June 2002 and received general advice from Centrelink staff without accessing his file.  Mr Goldsworthy said that it is now unlikely that any of the staff who may have otherwise recalled Mr Stelzer’s attendance would now recall that attendance or be in a position to describe from memory the statements made by Mr Stelzer or by any particular staff member.  This is of course one of the factors I must consider in deciding whether to exercise the discretion to extend the period within which Mr Stelzer can lodge his application for review.  Mr Stelzer claimed to understand that the Department would be prejudiced in this way.

12.     I must also consider the potential merits of the application.  In this case Mr Stelzer had sought back payment of Mobility Allowance to 8 February 2000, notwithstanding that he did not lodge a formal claim for these benefits until 14 November 2000 and the fact that he has now been paid with effect from 4 October 2000.  My perusal of the relevant legislation suggests that Mr Stelzer’s application, when seen in its most favourable light, may only result in additional payments, that is payments being backdated for a further seven days to 28 September 2000.  Nevertheless this suggests that there is some prospect of a successful outcome, albeit that it is unlikely to be an outcome with which Mr Stelzer would be satisfied noting that his application is for back payment to 8 February 2000.  I have also considered the issue of fairness as between Mr Stelzer and other persons in a like position.  Clearly Parliament intended a 28 day period within which appeals to the AAT are to be lodged.

13.     I have considered all of the issues described in the Hunter Valley case (referred to above) and while I accept that Mr Stelzer suffers from conditions which may have impeded his thinking to some extent and which may go some way to explaining a delay of nearly four years in lodging his application for review by the AAT, I consider that those factors militating against the success of Mr Stelzer’s application for extension of time outweigh those which support the favourable exercise of the discretion.  In particular I consider that the Department would be severely prejudiced by having to obtain statements from staff whose memories are likely to have faded.  On balance, I have decided to refuse the application for an extension of time.

I certify that the 13 preceding paragraphs are
a true copy of the reasons for the decision
herein of Mr JG Short (Member)

Signed:         .....................................................................................
  Assistant

Date/s of Hearing  5 August 2005
Date of Decision  9 September 2005
Counsel for the Applicant         In Person
Solicitor for the Applicant          -
Advocate for the Respondent   Mr C Goldsworthy
Solicitor for the Respondent     Centrelink Legal Services Branch