Stephenson and Secretary, Department of Family and Community Services

[2004] AATA 652

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 652

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/329

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RAYMOND STEPHENSON, CORRANCE STEPHENSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member McCabe

Date25 June 2004

PlaceBrisbane

Decision The application for extension of time is refused.

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

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application to extend time to file application with AAT pursuant to s29(7) Administrative Appeals Tribunal Act 1975 – whether extension of time should be granted – extension of time refused

REASONS FOR DECISION

25 June 2004 Senior Member McCabe    

Introduction

1.      Centrelink says the applicants were overpaid social security benefits in the amount of $81,785.70 (in the case of Mr Stephenson) and $55,073.60 (in the case of Mrs Stephenson). The respondent raised a debt in those amounts. The applicants disputed the overpayment before the Social Security Appeals Tribunal (SSAT). They were unsuccessful. In a carefully reasoned decision, the SSAT substantially affirmed the respondent’s decision (although the SSAT directed that there be some recalculation of the amount of the debts in light of its reasoning).

2.      Mr and Mrs Stephenson were advised of the SSAT’s decision after it was made. They were apparently aware of their appeal rights. They did not avail themselves of those rights; they preferred to return to Centrelink at Maroochydore to discuss what would be done in light of the decision. They said the relationship with Centrelink was becoming increasingly difficult. They said they became aware some documents on their files were missing. They decided in due course that they would arrange finance to pay out the debt to Centrelink. That has now occurred.  

3.      Centrelink has opposed the application to extend the time for making an application.

The power to grant extensions of time

4. Section 29(7) of the Administrative Appeals Tribunal Act 1975 gives the Tribunal the power to grant extensions of time in appropriate cases. But what is an appropriate case? The cases make it clear the Tribunal should adhere to time limits – such as the 28 day time limit for appeals from decision of the SSAT. Extensions of time are not the norm.

5.      The Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 said the Tribunal’s discretion should be guided by at least the following considerations:

• The applicant’s excuse. While the absence of a good excuse for the delay in making an appeal is not necessarily fatal, the Tribunal would ordinarily expect a good explanation for the failure to act within the time allowed for the appeal;
• Any prejudice to the parties if the extension is (or is not) granted.
• The merits of the substantive case. The Tribunal is not required to conduct a mini-trial of the issues, but it must be satisfied there is a point to proceeding to a hearing.

The Tribunal is ultimately concerned to ensure that it does what is fair in all the circumstances.

Should an extension be granted in this case?

6.      The applicants have not given a coherent excuse. It is unclear why they did not appeal the SSAT decision to this Tribunal when the decision was made.

7.      I do not think the absence of a coherent excuse for failing to appeal is fatal in this case. I am also satisfied there is no prejudice to Centrelink if the appeal were to proceed. The real difficulty for the applicants lies in the merits of the case.

8.      Taken at its highest, the applicants say the debt is not their fault in that they misunderstood their reporting obligations – a misunderstanding contributed to, if not brought on by, the advice they received from Centrelink and its predecessor. There was some suggestion from Mrs Stephenson that Centrelink had not valued their property correctly. But I am satisfied after reading the SSAT’s decision that the law was correctly interpreted and applied. The applicants’ assets were correctly identified and appropriate values attributed to them for the purposes of the assets test.

9.      The legislation is complex. It can be difficult to understand. Mr and Mrs Stephenson were understandably confused about its operation. But they were unable to tell me anything that pointed to an error in the SSAT’s decision.

10.     It was also apparent from the applicant’s submissions that the SSAT’s conclusions with respect to waiver of the debt were unlikely to be disturbed. The Stephensons’ have paid out the debt. Mr Stephenson’s health has been poor but there was nothing else in their situation that amounted to special circumstances for the purposes of the legislation. Nor could it be said the debt was solely attributable to the administrative error of the respondent.

Conclusion

11.     I had sympathy for the applicants. The size of their debt must have been a shock. Paying out the debt has clearly been an unwelcome burden. I accept they were acting honestly. But I am unable to criticise the findings of the SSAT, and I adopt them. It follows the application for an extension of time must be refused.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 4 June 2004
Date of Decision: 25 June 2004
The applicants represented themselves.
The respondent was represented by Ms Hamilton.