Terzini and Secretary, Department of Family and Community Services

[2004] AATA 1373

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1373

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/1242

GENERAL ADMINISTRATIVE  DIVISION		)
Re		OLGA TERZINI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date22 December 2004

PlaceMelbourne

Decision The application for an extension of time is refused.

(Sgd)  John Handley

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL         )
  )          No.    V2004/1242
GENERAL ADMINISTRATIVE DIVISION          )                   

Re :OLGA TERZINI

Applicant

And :SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

CORRIGENDUM [2004] AATA 1373

Tribunal :Mr J. Handley, Senior Member

Date :22 December 2004

Place :Melbourne

Direction:Pursuant to s.43AA(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that the Registrar alter the text of the decision, published on 22 December 2004.

The decision is altered so that the second sentence of paragraph 25 which read:

However, those circumstances nor the unsettling of practices should be given precedence over the proper entitlement of his mother. 

is deleted and in substitution it is replaced with the sentence:

However it was submitted that those circumstances or the unsettling of practices should not be given precedence over the proper entitlement of his mother.

(Sgd)John Handley

Senior Member

EXTENSION OF TIME – application 11 years out of time – only some components of Italian pension taken into account in calculating age pension – policy regarding Italian pension sum disputed – explanation for delay – need to make decision maker aware decision contested – need to prevent the unsettling of established practices – application refused.

Administrative Appeals Tribunal Act 1975 s29(7)

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305

Comcare v A’Hearn (1993) 18 AAR 366

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

22 December 2004 Mr John Handley, Senior Member           

1.      The applicant applies to extend the time for the making of an application for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 6 December 1993.  The application to review that decision, together with an application for an extension of time, was made on 3 November 2004.

2.      The application was heard on 13 December 2004.  The applicant’s son, Mr Nino Terzini, appeared on behalf of his mother and made extensive, well researched and comprehensive submissions.  Mr Zita appeared on behalf of Centrelink and relied on a letter of 15 November 2004 which recorded seven grounds for opposing an extension of time.

3.      Mr Terzini relied on a number of documents which he copied and which were received.  Those documents have been useful in comprehending the nature of the dispute and its historical background.

4.      The history of the application and the circumstances giving rise to the intended appeal may be summarised as follows:

5.      Mrs Terzini was granted Australian pension in 1988 and was later granted an Italian pension.  Subsequently, the former Department of Social Security (“the DSS”) took account of moneys received as the Italian pension for the purposes of calculating the rate of age pension payable to her.

6.      At all relevant times an International Agreement has existed between Australia and Italy under the auspices of social security legislation.  That Agreement was signed on 23 April 1986.  Article 17 of the Agreement purports to provide a mechanism to determine the entitlement of a person to a benefit under the Agreement.

7.      It would appear that in 1992 concern was expressed by Mrs Terzini as to the rate of age pension that she was being paid from the DSS.  Representations were made to the DSS and consideration was then given to the rate of pension being received from Italy.  It would appear that the Italian pension was made up of a number of “different components” some of which only were considered by the DSS as relevant when assessing the rate of the Australian age pension.

8.      On 30 December 1992 an officer of the DSS wrote to Mr Terzini on behalf of his mother indicating that advice had been received from Italy, pursuant to Article 17, that the pension then being paid was 7,769,715 lire.  By a process which is not immediately apparent, the DSS had regard to components which were subsequently described by the Authorised Review Officer (“ARO”) on 24 September 1993 as “the supplement amount”, “the contribution amount” and “total amount figure”.  The net consequence was the DSS had regard to a sum of 7,072,746 lire as a sum affecting the rate of Australian age pension, whereas the submissions then, and now of Mr Terzini, were the sum of 1,952,160 lire only should have been taken into account.  Accordingly, it was his submission that the DSS should have been paying his mother a greater rate of Australian pension and in the event that his submissions were successful, moneys were owing to his mother by the DSS.

9.      The primary decision maker on 30 December 1992, the ARO on 24 September 1993 and the SSAT in its reasons referred to a policy adopted by the DSS prior to 1994 of the method of calculation of Australian age pension when regard is had to amounts notified to it by Italian authorities under Article 17.

10.     In the ARO letter of 24 September 1993 it is recorded that the Agreement on Social Security between Australia and the Republic of Italy commenced on 1 September 1988 and whilst the Italian authorities have advised that pensions payable are made up of a number of different components, the components are in fact not itemised.  In those circumstances the DSS was unable to distinguish “the supplement amount” from the “contribution amount” (presumably because one of those “amounts” was not considered under the income test in calculating age pension).  Accordingly a formula was devised and applied by the DSS “to ensure that only the supplement amount of the Italian pension is excluded from the income test”.

11.     The primary decision-maker on 30 December 1992 explained that the method of calculation under the formula was determined by the Department “presumably to make the pension more equitable in comparison with that of other pensioners”.  The decision-maker then referred to the reasoning behind the implementation and application of “the formula” being recorded in a National Instruction (“Instruction”) of February 1992.

12.     A copy of the Instruction was lodged on the Tribunal file and it records its purpose as “to assess Italian pension income received by Australian pensioners in Australia”.  Its objective is “to achieve a uniform assessment method, recently granted cases will have the supplement amount shown on the grant notice disregarded in subsequent years while, for older cases, the amount currently being disregarded will remain fixed”.

13.     The Instruction records that it was understood that Article 17 letters from Italy would contain information to permit Australian authorities to accurately calculate the rate of Australian age pension by subtracting “the contribution amount” from “the total amount”.  However the Instruction records that since the commencement of the International Agreement, Italy introduced additional components, being a family allowance and a veterans’ benefit.  Those components were not itemised but were included as part of the “total amount” and were not referred to “in the contribution amount”.  It is acknowledged that if the “contribution amount” only was deducted from “the total amount” there would be a “supplement” which would be “inflated artificially and an incorrect assessment results”.

14.     It was learnt at the hearing that subsequent to 1994 Mrs Terzini has been assessed correctly with respect to her Australian age pension entitlement and has no quarrel with Centrelink.  Her complaint – and thereby the basis for this intended appeal – is to have Centrelink recalculate her entitlement to Australian age pension between 1988 and 1993 because it is her belief that the rate of pension was calculated incorrectly and the application of the policy implicit by the “National Instruction” is unfair and wrong.

15.     In Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305 at 310-312 (“Hunter Valley”), Wilcox J recorded a number of factors which should be considered in guiding a Tribunal or a Court in the exercise of a discretion to extend time. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) is clearly drafted in discretionary terms.

16.     In Hunter Valley His Honour noted that the period of time within which to lodge proceedings under the legislation then applying was 28 days.  He decided that it was a “prima facia rule that proceedings commenced outside that period will not be entertained”.  However, in the exercise of a discretion in favour of an applicant to extend time, an applicant should provide “an acceptable explanation for the delay” that is “fair and equitable in the circumstances”.

17.     In the present case, almost 11 years has elapsed from the time of the decision of the SSAT until the proceedings were lodged in this Tribunal.  That is not an inconsiderable period.  Mr Terzini said that from 1993, when the SSAT reasons were received he had made numerous – including personal attempts - on Italian authorities to obtain accurate information with respect to the components of the Italian pension so that he could demonstrate to the DSS, and more recently Centrelink, that the application of the policy was unfair and caused the rate of pension paid in Australia to be incorrect.  He said that he had been continually frustrated in his attempts to obtain information from Italian authorities.  He said there were occasions where family members in Italy approached relevant authorities but were refused information from his mother’s file.  In 2000 he personally attended relevant Italian authorities in Italy on behalf of his mother and was also denied information despite him offering written authority by her to obtain the information.  He said that he had been frustrated for many years in seeking information but it has only recently become available and it is his belief that the components of the Italian pension – now being itemised – clearly demonstrate that the policy implemented by the DSS between 1988 and 1993 did cause an incorrect calculation of age pension payable in Australia.  In those circumstances he submitted that an extension of time should be granted to permit the appeal against the SSAT decision to be heard.

18.     The tenor of His Honour’s decision in Hunter Valley has been modified slightly by a subsequent decision of a Full Federal Court in Comcare v A’Hearn (1993) 18 AAR 366 where the Court recorded that whilst it would be expected that an acceptable explanation would be given with respect to delay in the commencement of proceedings, “there is no rule that such an explanation is an essential pre-condition” (page 369).

19.     In Hunter Valley Wilcox J also decided that in consideration of the (acceptable) explanation for delay, consideration should be given to whether the person seeking an extension of time “has continued to make the decision-maker aware that he contests the finality of the decision (who has not rested on his rights ….) and a case where the decision-maker was allowed to believe that the matter was finally concluded”.  His Honour decided that these considerations were important because of “the need for finality in disputes” and “the fading from memory” in the case of potential witnesses (although for the purpose of this analysis I would acknowledge that latter consideration is probably not relevant).

20.     Mr Terzini said at the hearing on 13 December 2004 that in November 2004 he finally obtained information from Italy which itemises the relevant components of the Italian pension which has been paid to his mother and in those circumstances it is his belief that he can now demonstrate that the rate of payment between 1988 and 1993 was incorrect.  In effect it is his wish to demonstrate that the policy of the DSS and its implementation was unfair and caused payment of age pension to be made at a rate lower than the proper entitlement.

21.     The remaining principles decided by Wilcox J included prejudice to a respondent by the delay, public considerations and unsettling of established public practices, the merits of the application and consideration of fairness between the applicant and other persons in a similar position.

conclusion

22.     As indicated above, the period of time that has elapsed between the decision of the SSAT and the commencement of proceedings in this Tribunal is considerable.  I cannot recall hearing an application for an extension of time where the intervening period was 11 years.  There must be finality to disputes and a decision-maker is entitled to believe after 11 years that the decisions that it made (in this case in 1992) would not be challenged after the SSAT affirmed those decisions in 1993.

23.     Mr Terzini confirmed that between December 1993 and November 2004 he did not put the DSS or Centrelink on notice that its decision, nor the decision of the SSAT, would be challenged.  He said he acted on the advice he was given by the Members of the SSAT that in the absence of any further information or documentation from Italy, they were obliged to apply the policy then in existence.

24.     In the present case, perhaps no better example of the belief by Centrelink that its decisions were not being challenged, is the advice given at the hearing by Mr Zita that its files cannot be located.  He was unsure whether the files had been misplaced or whether they have been culled.  To his credit Mr Terzini has made available copies of information from his extensive file – including copies of all the documents made available by the DSS to the SSAT at its hearing.  Nonetheless I am of the view that Centrelink has been entitled to assume that its decisions – until last month – would not be challenged.

25.     Mr Terzini acknowledged that other pensioners may be disadvantaged and established practices may be upset if the policy is not applied when calculating the proper entitlement to his mother (in the event that an extension of time is granted). However, those circumstances nor the unsettling of practices should be given precedence over the proper entitlement of his mother.  He said that entitlement will not be calculated unless he is given the opportunity on his mother’s behalf to pursue a review of the SSAT decision.

26.     In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 Brennan J, who was then the President of this Tribunal, extensively discussed the application and relevance of Ministerial policy in the review of decisions where a discretionary power has been exercised.

27.     His Honour decided that this Tribunal should adopt lawful Ministerial policy “unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice”.  Later it was decided that if a “Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny”.

28.     There may be merit in the application but I am of the view, on balance, that the period of delay between the decision of the SSAT and the commencement of the proceedings in this Tribunal, together with the belief on the part of the respondent that its decisions were not being challenged, a need for finality in disputes and the unsettling of established practices, cause me to decide, in the exercise of the discretion that an extension of time should not be granted.

29.     It was learnt during the extension of time hearing that Mr Terzini has had extensive discussions with an officer of the overseas branch of Centrelink since November when he obtained information from Italy.  It was also learnt that the information has been forwarded to that officer and an indication has been given – now that Mr Terzini has also made available copies of relevant files, that reconsideration of his mother’s entitlement between 1988 and 1993 will be made.  This may or may not result in a favourable decision.  If it does result in a favourable decision then the intended proceedings in this Tribunal will be unnecessary.  If the decision upon the current application before Centrelink is unfavourable, a fresh application can be made to review that decision.  In the circumstances I would trust that there would not be any delay in the lodgement of proceedings in the SSAT or ultimately – if necessary – at this Tribunal.  These proceedings, if implemented, will give the applicant the opportunity to challenge the Policy.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  13 December 2004
Date of Decision  22 December 2004
Applicant’s Representative      Mr N Terzini
Departmental Advocate            Mr Wayne Zita