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

[2018] AATA 2594

Stonebridge and Secretary, Department of Social Services (Social services second review) [2018] AATA 2594 (3 August 2018)

Division:GENERAL DIVISION

File Number:           2018/2909

Re:Gina Stonebridge

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:3 August 2018

Place:Perth

The Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 February 2018.

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

Member C Edwardes

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – applicant lodged substantive application 12 weeks after required date – Tribunal not satisfied that reasonable in all circumstances to grant extension of time – disability support pension – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 2A, s 29(2), s 29(7)

Evidence Act 1995 (Cth) – s 160, s 163

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 45 FCR 441
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Dix v Client Compensation Tribunal [1993] 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Edwards and Principal Member, Social Security Appeals Tribunal [2011] AATA 791
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Lucic v Nolan and Others (1982) 45 ALD 411
Re Johnson and commonwealth of Australia [1990] AATA 1
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Wedesweiller v Cole (1983) 47 ALR 528

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

REASONS FOR DECISION

Member C Edwardes

3 August 2018

THE APPLICATION

1. This is an application for an extension of time (the extension of time application) to make an application for review of a decision, dated 28 February 2018, made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the decision of the Department of Human Services (the Department) to refuse the Applicant her claim for Disability Support Pension (DSP).

   INTRODUCTION

2. The Applicant applied for DSP on 4 April 2017.

3. The Applicant was assessed by a Job Capacity Assessor (JCA) on 16 May 2017 and a report was produced on 7 June 2017 (R1) (Attachment B).

4. The DSP application was rejected on 12 July 2017.

5. The Applicant requested a review of the decision by the Department to reject her application for DSP. The review was undertaken by an Authorised Review Officer (ARO). The ARO affirmed the earlier decision on 14 August 2017 (R1) (Attachment C).

6. The Applicant filed for review of the decision by AAT1 on 11 January 2018 (A1).

7. The AAT1 affirmed the decision of the ARO on 28 February 2018 and stated the following:

   To sum up all the conclusions regarding Ms Stonebridge’s medical conditions

   29After carefully considering all the information before it the tribunal concluded that none of Ms Stonebridge’s medical or psychological conditions attracted any impairment points at the time of lodgement of this claim for disability support pension. She did not satisfy paragraph 94(1)(b) of the Act and so was not qualified for disability support pension at the date of claim. Therefore the tribunal did not address the issue of whether Ms Stonebridge has a continuing inability to work as required by paragraph 94(1)(c) of the Act.

   30At the date of claim Ms Stonebridge satisfied only paragraph 94(1)(a) of the Act, and not paragraph 94(1)(b); therefore she is not eligible to receive disability support pension. Her claim lodged on 4 April 2017 was correctly rejected.

8. On 28 May 2018, the Applicant filed an Application for Extension of Time (A1). The Applicant’s reasons for the application are stated as:

   I keep having falls in my house and injuring myself, most recent was this past Friday morning after a storm we had on Thursday night and the roof had been leaking between the toilet and the laundry, I did not realise, that the laundry floor tiles were covered in water and I went in to put some washing on about 0530hrs, it was still dark and as I reached in to switch the light on I slipped falling heavily onto my right side, making further damage to what had happened in the original fall on the 02/03/2017, not to mention the house inspections that I am not physically able to do, and have failed the last 2, as this house has more problems that (sic) it does pluses, it keeps a roof over my head, but at the cost of my sanity and health. I also have had to attend appointments at my job-club to actively look for work as per the instructions from yourselves and Centrelink. I am doing all of this without a license or vehicle, and the public transport in the Mandurah area or WA for that fact is a complete joke and what would be a 7 minute drive, now takes 2 X buses and 30 – 40 minutes also the problems I have walking to and from all these journeys and the multiple days I then have to spend in bed due to the constant swelling up of my body and absolute pain in all my body, just goes on and on and on. This can all be verified by Google and contacting my Workskil job centre. I also have doctors appointments to attend and I have an apt on 31/05/2018 at the Fracture Clinic, Rockingham Hosp (ORT170), plus visits to centrelink (sic) as well as constantly fighting with my depression and Optus who owes me money and keeps cutting my service off. Life doesn't stop with all these injuries and dramas it just gets worse and worse and worse and harder and harder and harder, Sunday week ago, if I could have got my hands on some pills this email would not be happening and this ongoing fight with your department is getting too much and it will end my being able to keep breathing, because this is not life this is a living hell, thanks for sticking to bookwork decisions and not having a humane look into my situation (A1).

   ISSUE

9. The Applicant received the AAT1 decision on 28 February 2018, although the Department claims she may not have received it until 9 March 2018, as per attachment G of the Respondent’s submissions (R1). The Applicant lodged her extension of time application on 28 May 2018 to the General Division of the Administrative Appeals Tribunal (the Tribunal). Pursuant to subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), generally, an application for review is to be lodged in the 28 days after the applicant has received notice of the relevant decision for review. Accordingly, the Applicant lodged her extension of time application 39 days out of time.

10. The issue before the Tribunal is whether the Tribunal should exercise its discretion to grant leave for an extension of time for the Applicant to make an application to the Tribunal for a substantive review of the decision made by AAT1 on 28 February 2018.

    RELEVANT LEGISLATION AND LEGAL PRINCIPLES

11. Generally, under subsection 29(2) of the AAT Act, an application for review must generally be lodged in the 28 days after the Applicant has received notice of the decision.

12. Subsection 29(7) of the AAT Act states that:

    The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision … if the Tribunal is satisfied that it is reasonable in all circumstances to do so.

13. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18], Wilcox J stated:

    …The ‘prescribed period’ of 28 days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...

14. The postal rule presumes that a letter sent in Australia is received on the fourth working day after it was sent under section 160 of the Evidence Act 1995 (Cth) (the Evidence Act). “Working day” means a day that is not a Saturday, a Sunday, a public holiday or a bank holiday in the place to which the postal article was addressed pursuant to the Evidence Act

15. Pursuant to section 163 of the Evidence Act:

    (1)A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

    “Business day” means a day that is not a Saturday, a Sunday, a public holiday or a bank holiday in the place in which the letter was prepared pursuant to the Evidence Act.

16. The Tribunal notes paragraph 6 of Brown v Federal Commissioner of Taxation [1999] FCA 563 that reinforces and provides guidance concerning the exercise of discretion to extend the time for commencement of proceedings:

    6…

    (i)     prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

    (ii)    it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;

    (iii)    any prejudice to the respondent that would be caused by granting the extension of time is relevant;

    (iv)   any wider prejudice to the general public in terms of disruption to established practices is relevant;

    (v)    the merits of the substantial application are relevant; and

    (vi)   fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

17. The Tribunal also notes commentary in DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 at [37] in considering the manner in which the discretion to grant an extension of time should be exercised:

    2… It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn … (1993) 45 FCR 441 and Dix v Client Compensation Tribunal … [1993] 1 VR 297 at 302).

    3Action taken by the applicant other than by making an application to the court [Tribunal] is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff … (1982) 42 ALR 283 at 287) [Doyle].

    4Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at 287).

    5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic [Lucic v Nolan and Others (1982) 45 ALD 411] at p 416).

    6The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

    7Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).

18. The Tribunal may consider a number of factors in considering whether or not to grant an application for an extension of time. However, no one factor carries primacy over the other factors.  All factors that are relevant to a particular case have to be weighed together in reaching a decision as to whether or not to grant an extension of time (Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451). Other factors that may be considered include:

    ·length of delay – was there a significant delay in lodging an application to the Tribunal (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269);

    ·explanation for delay – is there an acceptable explanation for the delay (Comcare v A’Hearn (1993) 45 FCR 441); and

    ·appeal rights – whether the Applicant was aware of their appeal rights (Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248).

    EVIDENCE

19. The Tribunal received the following evidence:

    ·Exhibit A1 – Application for Review of Decision and Application for Extension of Time with the decision of the AAT1 attached.

    ·Exhibit R1 – Secretary’s Outline of Submissions dated 8 June 2018 and including attachments A to G.

20. The matter was heard on 9 July 2018, with both the Applicant and the Respondent appearing by phone. The Respondent was represented by Ms Rachael Chua.

21. Under cross-examination, the Applicant stated:

    ·she received notification of the AAT1 decision and sought advice as to how she could appeal that decision;

    ·she claimed initial advice appeared to suggest she put a request in writing;

    ·she accepted that the letter of the 9 March 2018 from the AAT outlined to her how to apply for a review;

    ·she claims she relied on the advice of her case officer at Centrelink, but became confused;

    ·she said because of her impairments, she could not think rationally and said “In a normal world I would have worked it out myself”; and

    ·she had no explanation for putting in an application finally online, something she should have done at the beginning.

    CONSIDERATION

22. The Tribunal will consider the following:

    ·Was there a significant delay in lodging an application to the Tribunal?

    ·Was the Applicant aware of her appeal rights and did the Applicant provide an acceptable explanation for the delay?

    ·Will the granting of an extension of time application prejudice the Respondent or the wider public? 

    ·What are the merits of the Applicant’s substantive application – does the Applicant have reasonable prospects of success in proceeding with their substantive application? 

    ·Does the Applicant have an alternative avenue of relief?

    Was there a significant delay in lodging an application to the Tribunal?

23. The Secretary contends the following:

    14The length of delay involved in a case will be a relevant consideration. The ‘brevity of the extension sought does not, however, lead automatically to an order extending the time’ (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269, [16].

    15In her application for review of decision, the applicant reported to have received the AAT1 decision on 28 February 2018. However, in accordance with the Department’s records, it appears as though the AAT1 did not provide a copy of the decision to the parties until 9 March 2018.

    16In the ordinary course of the post, it may be assumed that the applicant received the AAT1 decision no later than 19 March 2018. The 28 day deadline for lodging an appeal expired on 16 April 2018, making the application 6 weeks out of time.

24. The Tribunal finds that the Applicant received the decision on 22 March 2018 pursuant to the postal rule (R1) (Attachment G). The Applicant was therefore required to file an application for review by 19 April 2018. The Applicant did not file an application for an extension of time until 28 May 2018. Therefore, the Applicant filed the application for an extension of time 39 days out of time.

25. Whilst the delay is not considered significant, the Tribunal notes that the period of 28 days was introduced to ensure that there would be finality in government decision making. The Tribunal is therefore of the view that this factor weighs against the Applicant for the purpose of granting this application for an extension of time.

    Was the Applicant aware of her appeal rights and did the Applicant provide an acceptable explanation for the delay?

26. The Secretary contends:

    17It is to be expected that an application for an extension of time would normally provide an acceptable explanation for the delay: Comcare v A’Hearn (1993) 45 FCR 441, 444.

    18…

    19Whilst the Secretary appreciates that the applicant’s current circumstances are difficult, it is contended that the stated reason is an unsatisfactory explanation for the delay. The fall referred to above occurred outside the 28 day deadline, and the applicant’s explanation suggests that she remained capable of performing a number of administrative tasks during the relevant period, including liaising with Optus, booking and attending medical appointments, satisfying her Newstart Allowance activity test requirements and dealing with house inspections.

    20The Secretary submits that the absence of a satisfactory explanation for the delay is a factor weighing strongly against an extension of time. The 28 day time limit prescribed by the legislation indicates Parliament’s intention that there ought to be finality in government decision making.

    21The letter sent by the Tribunal enclosing the first review decision includes reference to the applicant’s right of appeal, and clearly states:

    You may apply to the AAT for second review of the decision... There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT's decision).

    22In Re Grafton and Commonwealth (1988) 16 ALO 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALO 248; and Re Civic Tavern Ply Ltd and ACT Liquor Licensing Board (1993) 32 ALO 381, the Tribunal declined to grant an extension of time as it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing.

27. The Applicant stated that she became confused over the process and the language of the process. The Tribunal accepts this.

28. The Tribunal finds that the Applicant was aware of her appeal rights, and offered a reasonable explanation as to why she did not exercise those rights in the proper form within the required timeframe.

29. Whilst the Tribunal accepts the explanation of the Applicant, for an extension of time to be granted, this cannot be the sole factor. This in itself does not weigh in favour of the granting of an extension of time.

    Will the granting of an extension of time application prejudice the Respondent or the wider public?

30. Whilst the Tribunal notes this factor was not discussed by the Secretary, the Tribunal makes the following observations:

    ·there is no evidence before the Tribunal that the length of time between hearings would prejudice the Secretary. The Tribunal finds that the Secretary will not suffer prejudice if an extension of time is granted.  This finding weighs in favour of the Tribunal granting the Applicant an extension of time to lodge her application for review.

    ·the Tribunal notes however, that it must consider if the wider public would be prejudiced if the Tribunal were to grant an extension of time application.

31. The Tribunal notes the public interest in the finality of decision-making, and the need to prevent disruption to established practices (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1). The Tribunal also has the objective to provide a fair, just, economical, informal and quick review process pursuant to section 2A of the AAT Act.

    What are the merits of the Applicant’s substantive application – does the Applicant have reasonable prospects of success in proceeding with their substantive application?

1. The Secretary argues:

   23It is relevant to consider the merits of the proposed appeal: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J. When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate: Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29], [38] per Hill J.

   24The Secretary contends that, on the face of the AAT1’s decision, the proposed appeal does not disclose a strong case. In order to succeed in her substantive application for review, the applicant would need to establish that her medical conditions were fully diagnosed, treated and stabilised during the ‘qualification period’, being 4 April 2017 – 4 July 2017, and attracted 20 points or more under the Impairment Tables. She would also need to establish that she had a continuing inability to work.

   25The Secretary agrees with the findings of the AAT1 and contends that there is insufficient evidence before the Tribunal for it to be satisfied that the applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period. On that basis, impairment ratings cannot be assigned.

   Multiple Trauma

   26On 2 March 2017, the applicant slipped when walking into a shopping centre and sustained multiple traumas causing ongoing pain; including in her neck, lower back and hips. The instability arising as a result of the pain caused her to fall on subsequent occasions, resulting in a fractured elbow and injury to her knees.

   27These conditions were sustained in the month prior to lodging the applicant’s claim for DSP, and remain subject to ongoing specialist review and management. The applicant’s evidence to the AAT1 on 28 February 2018 was that she was ‘to be reviewed again at the fracture clinic and is waiting for an appointment to consult a neurologist’. She further noted that she was to undergo MRls of her knees for further assessment of the swelling and pain.

   28Medical certificates produced by the applicant’s general practitioner, Dr Connolly, on 20 March 2017 and 12 April 2017 indicated that the conditions were ‘temporary’ and the JCA on 7 June 2017 considered that improvement in functioning was likely to occur with appropriate rehabilitation and recovery time.

   29The Secretary contends that these conditions cannot be considered fully treated or stabilised during the qualification period. On that basis, impairment ratings cannot be assigned to the impairments arising from these  conditions.

   Mental Health Condition

   30The Secretary accepts that the applicant’s depression and anxiety were fully diagnosed during the qualification period, noting the report of Dr Ford,   psychiatrist, dated 28 October 2015. However, the Secretary contends that the conditions were not fully treated or stabilised during the qualification period given the absence of psychological counselling in the two year period prior to her claim for DSP.

   31The applicant ceased treatment in October 2015 and was not referred to a psychologist until October 2017, being approximately three months outside the qualification period. The applicant reported in her evidence to the AAT1 on 28 February 2018 that this treatment was ongoing, and that the weekly sessions had been ‘very helpful’, noting that the condition had become exacerbated following her fall in March 2017.

   32The JCA anticipated that, with appropriate psychological intervention and psychiatric review, the applicant may attain some further improvement in symptoms and increased level of functioning. The conditions cannot be considered fully treated or stabilised during the qualification period, and an impairment rating cannot be assigned to any impairment arising from the conditions.

   Irritable Bowel Syndrome

   33The Secretary contends that the applicant’s irritable bowel syndrome was fully diagnosed, but not fully treated or stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.

   34There is no medical evidence to determine the extent of treatment undertaken by the applicant for this condition, nor any evidence as to her prognosis if she were to undertake reasonable treatment. In any event, the Secretary contends that the condition caused no impact on the applicant’s ability to function during the qualification period, noting her evidence to the AAT1 that the condition was ‘no longer troublesome’.

   Bilateral Carpal Tunnel

   35The Secretary contends that the applicant’s bilateral carpal tunnel was fully diagnosed, but not fully treated or stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.

   36The applicant reported to the JCA on 16 May 2017 that she had been referred to a specialist at the Peel Health Campus, and that she anticipated further surgery was required. She further confirmed in her evidence to the AAT1 on 28 February 2018 that she was still awaiting specialist input. The JCA noted that the condition had been exacerbated by the fall in March 2017 and that no further assessment as to the impact had been undertaken.

   Kidney Dysfunction

   37The Secretary contends that the applicant’s acute kidney injury was fully diagnosed, but not fully treated or stabilised during the qualification period. The Secretary also contends that the impairment arising from the condition was unlikely to persist for more than two years. On that basis, an impairment rating cannot be assigned.

   38There is no evidence to determine the extent of treatment undertaken by the applicant for this condition, nor any evidence as to her prognosis if she were to undertake reasonable treatment. The Secretary also notes the applicant’s evidence to the AAT1 that she has ‘not had any further problems with her kidneys or her urinary tract since her discharge from hospital’ in May 2017.

   Huntington’s Disease

   39The applicant reported to the JCA that she did ‘not have any symptoms or functional impact from Huntington’s disease and at this time remained a carrier of the gene’. Even if the condition was fully diagnosed, treated and stabilised during the qualification period (which is not conceded), the Secretary contends that this condition caused no impact on function.

   Fatigue and Dyspnea

   40Due to symptoms of fatigue and dyspnea, the applicant was inserted with a pacemaker in July 2013. There is no evidence to confirm the extent of treatment undertaken for this condition subsequently, nor any evidence as to the applicant’s prognosis if she were to undertake reasonable treatment. The condition cannot be considered fully diagnosed, treated or stabilised during the qualification period.

2. The conclusions of the AAT1 are contained in paragraph 7 of this decision.

3. The Tribunal agrees with the contentions of the Secretary supported by the decision of AAT1 of 28 February 2018 with respect to whether the Applicant will have reasonable prospects of success in proceeding with their substantive application.

4. This factor therefore weighs against the granting of the application for an extension of time.

   Does the Applicant have an alternative avenue of relief?

5. The Secretary states:

   41The Secretary contends that it is open to the applicant to lodge a fresh claim for DSP at any time. Doing so would enable her current circumstances and eligibility to be considered afresh and provides her with an alternative avenue of relief.

6. The Tribunal agrees with the contention of the Secretary and this weighs against the granting of the application.

   CONCLUSION

7. The facts outlined above in total weigh against the granting of the Applicant’s request for an extension of time to file a review application of the decision of AAT1. These are summarised below as:

   ·there was a delay in lodging the application to the Tribunal;

   ·the Applicant was aware of her appeal rights and whilst the Applicant provided a reasonable explanation for the delay, it was not satisfactory;

   ·the granting of the extension of time application will be unlikely to prejudice the Respondent. However, the granting of an extension of time application may prejudice the wider public;

   ·the Applicant does not have a reasonable prospect of success in proceeding with the substantive application; and

   ·the Applicant has an alternative avenue of relief.

8. On balance, pursuant to subsection 29(7) of the AAT Act, the Tribunal finds that it would not be reasonable to extend the time for the Applicant to make an application for a review of the AAT1’s decision dated 28 February 2018.

   DECISION

9. For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of AAT1 dated 28 February 2018.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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Administrative Assistant Legal

Dated: 3 August 2018

Date of hearing:	9 July 2018
Applicant:	In person
Representative for the Respondent:	Rachel Chua
Solicitors for the Respondent:	Department of Human Services