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

[2016] AATA 1047

Thomas and Secretary, Department of Social Services (Social services second review) [2016] AATA 1047 (20 December 2016)

Division	GENERAL DIVISION
File Number	2016/4371
Re	Ashley Thomas
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	20 December 2016
Place	Perth

The applicant’s application for an extension of time to lodge an application for review of a decision of the Social Security Appeals Tribunal dated 28 June 2006 is refused.

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Brigadier AG Warner, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time for review of decision of the Social Security Appeals Tribunal dated 28 June 2006 – significant length of delay –  applicant’s explanation for delay not satisfactory – limited prospects of success for applicant’s application for review – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 29

CASES

Comcare v A’Hearn (1993) 45 FCR 441
David and High Court of Australia (2009) AATA 448
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 44
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth (1988) 16 ALD 533
Re Johnson and Commonwealth of Australia (1990) AATA 1
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

Tran v Minister for Immigration and Border Protection (2014) FCA 533

REASONS FOR DECISION

Brigadier AG Warner, Member

20 December 2016

INTRODUCTION

1. Mr Thomas’s substantive application seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 28 June 2006.  The SSAT decision at first review affirmed a decision of 18 January 2005 to raise and recover a debt of $7,741.28 arising from overpayment of disability support pension (“DSP”) for the period 6 September 2001 to 23 June 2004.

2. An interlocutory hearing to determine Mr Thomas’s application for an extension of time was conducted on 9 November 2016.

3. Mr Thomas did not attend the hearing and has refused to engage in the present proceedings.  He was represented by his mother (and nominee), Mrs Julie Thomas.

   BACKGROUND

4. Mr Thomas is now 30 years old.  He received DSP from 6 September 2001 to 30 October 2004.

5. On 18 January 2005, a Centrelink officer determined that Mr Thomas had been overpaid DSP for the period 6 September 2001 to 23 June 2004 and a debt for $7,741.28 was raised.

6. The decision was reviewed and affirmed by a Customer Service Officer on 13 March 2006, and then affirmed by an Authorised Review Officer on 12 April 2006.

7. The decision was affirmed by the SSAT on 28 June 2006 (Exhibit 1).

   ISSUE

8. Mr Thomas has applied for an extension of time within which his application for review may be lodged.  The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.

   RELEVANT LEGISLATION

9. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) relevantly states:

   … the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eight day after:

   (a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;

10. The Tribunal’s power to extend the time for the making of an application for review is conferred by subs (7) and (8) of s 29 of the AAT Act as follows:

    (7)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 (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

    (8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

11. The statutory provisions relative to Mr Thomas’s substantive application are contained in the Social Security Act 1991 and the Social Security (Administration) Act 1999.

    EVIDENCE

12. The Tribunal had before it the following evidence:

    ·SSAT Decision P25205 dated 28 June 2006 (Exhibit 1);

    ·Application for Review Form received by the Tribunal 7 September 2016 (Exhibit 2);

    ·Julie Thomas Letter dated 20 August 2016 (Exhibit 3);

    ·Julie Thomas Letter received by the Tribunal 22 August 2016 (Exhibit 4);

    ·Secretary’s Outline of Submissions dated 5 September 2016 (Exhibit 5); and

    ·the oral evidence of Mrs Thomas.

    CONSIDERATION

13. Section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.

14. As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia (1990) AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:

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

    (b)Consideration is to be given to the action taken by the applicant.  Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?

    (c)Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.

    (d)There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…

    (e)Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.

    (f)Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.

15. In Comcare v A’Hearn (1993) 45 FCR 441, the Full Federal Court held that although the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition for the favourable exercise of the discretion to grant an extension of time for the lodging of that application, “it is to be expected that such an explanation will normally be given, as a relevant to matter to be considered…” (at 444).

16. The respondent contends, and in the absence of additional evidence or submissions from the parties the Tribunal accepts, that the factors for consideration in the present interlocutory proceeding include:

    ·Awareness of appeal rights and explanation for the delay;

    ·Length of delay; and

    ·Prospects for success.

    Awareness of appeal rights and explanation for the delay

17. In the letter received by the Tribunal on 22 August 2016, Mr Thomas’s nominee, Mrs Julie Thomas, gave the following reason for seeking an extension of time:

    I would like to ask the administrative appeals tribunal, to grant me an Extension  period to look over my case.  And reverse the decision made.  I was not aware that with a disability supplement rules.  Because as stated in my letter enclosed, he is still has a lot of Issues that will not be cured, and need support.  I just ask that a extension of time be granted to really look, at this case  (Exhibit 3).

18. Prior to the present interlocutory proceeding, the related substantive matter has been reviewed and affirmed on three occasions in 2006 (refer to paragraphs 6 and 7 above).  There is no evidence or submission before the Tribunal that the consequent decisions were not communicated to Mr Thomas.  Further, the Tribunal agrees with the respondent’s contention that:  “The letter sent by the Tribunal enclosing the first review decision ordinarily includes reference to the Applicant’s right of appeal, and the 28 day time limit” (Exhibit 5 para19).

19. In its consideration of this factor of awareness of appeal rights and explanation for the delay, the Tribunal has regard to previous decisions in Re Grafton and Commonwealth (1988) 16 ALD 533, Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248 and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381 where the Tribunal refused to grant an extension of time as it was satisfied that the applicant in each case was aware of the appeal rights relative to the decision in question and did nothing.

20. The Tribunal also notes the relevant comments of Wigley J in Tran v Minister for Immigration and Border Protection (2014) FCA 533 at (38):

    In general the longer the delay, the more persuasive the explanation needs to be:  Jess v Scott (1986) 12 FCR 187 at 195.  The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time. (Emphasis added)

21. Having careful regard to the evidence and the clearly difficult circumstances relevant to this consideration, it is the Tribunal’s opinion that Mrs Thomas has not provided a compelling or satisfactory explanation for not lodging an application for review with this Tribunal before the expiration of the prescribed period.  The explanation provided for the delay of 10 years is not sufficient for the Tribunal to consider it fair and equitable to depart from the legislated period.

22. Consideration of awareness of appeal rights and explanation for the delay weighs against an extension of time.

    Length of delay

23. Although it is unclear when Mr Thomas received the SSAT decision, that decision records that it was despatched on 6 July 2006.  Mrs Thomas’s letter to the Tribunal seeking ‘a waiver of an old outstanding debt’ was lodged on 22 August 2016, making the application 10 years out of time.

24. The respondent submits that the events relevant to Mr Thomas debt occurred 15 years ago, and that “as a general proposition, it is in the public interest that there be an end to the appeal process”.  Relevantly, the respondent cites in support of its proposition the Tribunal’s decision in David and High Court of Australia (2009) AATA 448 (18 June 2009) (10) which states:

    Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty of time limits.  The Tribunal finds that this factor weighs against granting an extension of time (Exhibit 5 para 24).

25. Mr Thomas‘s Centrelink Customer Record (Exhibit 5 Attachment 1) shows that some repayments of the debt have been made.  It seems to the Tribunal that despite Mr Thomas’s attitude to these proceedings and the difficult circumstances as described by Mrs Thomas in her oral evidence, these repayments indicate acceptance of the SSAT 2006 decision.

26. The delay in this matter is significant and weighs against an extension of time.

    Prospects for success

27. It is not necessary for the Tribunal to conduct a merits review of Mr Thomas’s substantive application at this interlocutory stage.  However, it is appropriate for the Tribunal to consider the merits of that application as part of the process of determining this application for an extension of time for lodging the substantive application:  Hunter Valley Developments Pty Ltd; Re Johnson (refer to paragraph 14 above).

28. Mr Thomas’ reason for disagreeing with the SSAT 2006 decision is stated in Exhibit 2 as:  “I was unaware that I was receiving these monies as, my mother Julie Thomas was in control of my reason for receiving this (Not me)” (Exhibit 2 p3).

29. A letter attached to Exhibit 2 further states:

    I Julie Thomas have tried on numerous occasions to get Ashley to engage with this process.  He states it is my debt (Mother Julie Thomas) due to him not knowing about this payment.

    He is currently unemployed which has allowed this to come to a head.  He is also fighting over Child Support for his child (Jacob Miller) and the amount the Commonwealth has garnished in one swoop – leaving him in financial hardship. (Struggling to understand)

    I have got a payment card and paying $10.00 per fortnight.  I’m wondering how this was not seen many years ago?  I hope you hear my plea and look at why it was granted in the first place.

30. The respondent contends that the proposed substantive application does not disclose a particularly strong case supporting further review.  The respondent submits, correctly in the Tribunal’s view, that the issue in the substantive application is:

    Whether the debt should be recovered, and if the answer is in the negative, could the debt be written off under section 1236 of the Social Security Act 1991 (Cth) (the Act),or waived in whole or part on the grounds of special circumstances under section 1237AAD of the Act (Exhibit 5 para 29).

31. The respondent examined the possibility of writing off Mr Thomas’s debt (Exhibit 5 paras 30-32), and concluded:

    … the applicant has the capacity to repay the debt via  instalments at a fortnightly rate.  The applicant has been paying the debt through witholdings of $15 from his social security payment since 10 March 2016, and has made three separate repayments of $10 each through Auspost on 1, 12 and 26 August 2016 (Attachment 1).  The Secretary considers that this demonstrates the applicant is not in severe financial hardship.  Consequently, it is inappropriate to write off the debt for a period under section 1236 of the Act.

32. The respondent subsequently examined whether Mr Thomas’s debt could be waived in whole or part on the grounds of special circumstances (Exhibit 5 paras 33-35), and concluded:

    ... the issues raised by the applicant’s nominee in her letter received by the  Tribunal on 22 August 2016 do not suggest that the applicant’s circumstances are sufficiently special to warrant the exercising of the discretion to waive all or part of the debt under section 1237AAD of the Act.

33. Mrs Thomas presented as an honest witness before the Tribunal, clearly attempting to assist her son despite his resistance.  Mrs Thomas confirmed that she was responsible for the $10 payments cited by the respondent in paragraph 31 above.

34. There was no evidence before the Tribunal to suggest that the respondent’s conclusions were not soundly based.  Accordingly, the Tribunal is reasonably satisfied that Mr Thomas’s substantive application has only limited prospects of success.

35. The limited prospects of success weigh against the granting of an extension of time.

    CONCLUSION

36. The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant considerations listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted.

    DECISION

37. For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the applicant’s application for an extension of time to lodge an application for review of the SSAT decision of 28 June 2006.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member.

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Administrative Assistant

Dated 20 December 2016

Date of hearing	9 November 2016
Representative of the Applicant	Ms J Thomas
Representative of the Respondent	Ms C Jourdain