Tohfe El Dirani and Secretary, Department of Social Services Senior Member N Isenberg 3 December 2014 Sydney

[2014] AATA 893

[2014] AATA 893 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4576
Re	Tohfe El Dirani
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Senior Member N Isenberg
Date	3 December 2014
Place	Sydney

Mrs El Dirani’s application for an extension of time in which to lodge an application for a review of the decision of the Social Security Appeals Tribunal dated 30 June 2014 is refused.

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N Isenberg
Senior Member

Catchwords

PRACTICE AND PROCEDURE – extension of time to lodge application for review

Legislation

Administrative Appeals Tribunal Act 1975 s 29(7)

Case Law

Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Ms N Isenberg, Senior Member

3 December 2014

1. On 4 September 2014 Mrs El Dirani lodged an application with this Tribunal for review of a decision by the Social Security Appeals Tribunal (SSAT) dated 30 June 2014.  The SSAT affirmed a decision of a Centrelink Authorised Review Officer (ARO) to refuse Mrs El Dirani’s application for the Disability Support Pension (DSP).  On 4 September 2014 Mrs El Dirani also applied to the Tribunal for an extension of time within which to lodge her application for review of the SSAT decision (the substantive application).

ISSUE

1. The issue before the Tribunal is whether an extension of time within which to lodge an application for review to this Tribunal should be granted.

RELEVANT LEGISLATION AND PRINCIPLES

1. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:

   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.

2. Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 stated at 348 that “it is the prima facie rule that proceedings commenced outside the [prescribed] period will not be entertained”.  Wilcox J set out six principles guiding the use of a decision maker’s discretion to grant an extension of time.  They are:

   ·that the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;

   ·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;

   ·any prejudice to any other party;

   ·the mere absence of prejudice to other parties is not enough to justify the grant of an extension.  However, any wider prejudice to the general public is a relevant factor;

   ·the merits of the substantive application; and

   ·considerations of fairness between the applicant and other persons in a similar position.

CONSIDERATION

EXPLANATION FOR THE DELAY

1. The decision by the SSAT was despatched on 3 July 2014. Mrs El Dirani stated in her application for an extension of time that she received the decision on 5 July 2014.  

2. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the prescribed time for making an application for review is 28 days after notification of the decision. Mrs El Dirani’s application for review had to be lodged by 4 August 2014 at the latest. It was therefore lodged 31 days out of time.

3. In her application for an extension of time Mrs El Dirani stated that she did not file her application on time as “I was late in sending paperwork for you [sic] department”.  Mrs El Dirani told the Tribunal that she had “been sick and was attending tests”.  When asked to clarify this, she said she had been undertaking IVF every 2 days.  When asked when this was, she said that it was during September and October.  As to what had prevented her attending to the application for review during July and August she said she was taking hormones that had side effects, such as making her bleed for a month.   Also, Ramadan was during August.

4. While Mrs El Dirani has provided an explanation for the delay, I do not find it to be persuasive.  Her main reason was the commitment required in undertaking IVF, but, on her evidence, this was not until after her application for review needed to be filed.  Somewhat inconsistently, in any event, is that she filed her extension of time application while she was in fact undertaking IVF.  I do not understand her contention to be that she was so incapacitated by the side effects of the preparatory hormone treatment that she could not attend to her application for review.  Further, there was no medical evidence in support of her contention.  In any event, on her evidence, she was able to attend Centrelink, and enquire at the SSAT, as discussed below, during that period. The Tribunal is not satisfied that Mrs El Dirani has a reasonable excuse for being out of time and finds that this factor weighs heavily against granting an extension of time.

HAS THE APPLICANT RESTED ON HER RIGHTS?

1. Mrs El Dirani said however that she contacted Centrelink at some unspecified time after receiving the SSAT’s decision and she was referred to the number on the SSAT’s covering letter.  About 2-3 days later she said she phoned that number and was sent a form, which she printed out and sent to the Tribunal.  Considering this, Mrs El Dirani did not rest on her rights .

PREJUDICE TO OTHER PARTIES and WIDER PUBLIC CONSIDERATIONS

1. There was no evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time. 

2. 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 degree of certainty regarding time limits.  The Tribunal finds that this factor weighs against granting an extension of time.

THE MERITS OF THE SUBSTANTIVE APPLICATION

1. Mrs El Dirani’s substantive application concerns her eligibility for the Disability Support Pension.

2. In making its decision, the SSAT considered Mrs El Dirani’s depression and anxiety, asthma and gastro oesophageal reflux disease (GORD).  The applicant said that, of these conditions, her depression and anxiety had the greatest impact upon her ability to work.      

3. As to her asthma and GORD the applicant said these conditions had limited impact upon her ability to work.  In those circumstances the conditions are unlikely to attract any impairment rating.   

4. The SSAT did not consider Mrs El-Dirani’s neck, back and bilateral shoulder pain.  This was on the basis that “these conditions were not nominated on the original claim form for disability support pension and therefore do not fall within the scope of this review”. However, there is no provision in the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth) which confines a person’s eligibility for DSP to those conditions identified in the claim form: see Menzies and Secretary, Department of Social Services [2014] AATA 689. However the Applicant said that these conditions also had limited impact upon her ability to work. It is unclear if those conditions can be considered to be permanent. Even if that were the case, they are unlikely to attract any impairment rating.

5. The SSAT also appears to have determined the matter on the understanding that Mrs El-Dirani was required to meet the criteria in section 94 “at the time of her claim”. Clause 4 of Schedule 2 of the Administration Act effectively provides that a person must qualify for the pension at the date of claim or in the 13 weeks thereafter.  I observe however that the SSAT had the benefit of a number of reports from the applicant’s treating psychiatrist, Dr Younan, dated from 4 June 2012 to 25 June 2014 and stated in the decision that it took all that information into account.    

6. In assessing Mrs El Dirani’s psychiatric condition the SSAT considered, after reviewing all the medical evidence, that Mrs El Dirani had been generously rated by the ARO at 10 impairment points under Table 5, but decided not to disturb that assessment.  It is noted Mrs El Dirani had told the authorised review officer that she could go shopping, socialise, study online, maintain relationships and undertake general household tasks and plan IVF treatment.  Mrs El Dirani confirmed at the hearing that this was an accurate statement of her capabilities, although she said when she gets tired, probably because of her medication, her husband might assist in the household chores.  I do not consider her evidence likely to attract a rating that would exceed 10 impairment points.    

7. Therefore, considering the evidence given by Mrs El Dirani at the interlocutory hearing and a reading of the decision of the SSAT, it appears unlikely that Mrs El Dirani would attract an overall impairment rating of 20 or more points as required under s 94(1)(b) of the Act.  Failure to meet just one of the requirements results in a failure to qualify for the DSP. 

8. I observe also that pursuant to s 94(2)(aa) of the Social Security Act 1991 (Cth), where a person has not been assigned 20 points under a single impairment table, and therefore does not have a “severe impairment” (as defined in subsection 94(3B)), the person will be required to have “actively participated in a program of support”.  If they have not done so, they cannot be found to have a continuing inability to work. Generally, a person must complete an 18 month program before they can be taken to have actively participated in a program of support: s 5(2) of the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011.

9. The applicant’s evidence was that she has not participated in a program of support.

10. I find that there is little prospect of success in Mrs El Dirani’s substantive application, and this factor weighs against granting an extension of time.

CONSIDERATIONS OF FAIRNESS

1. There is nothing unique or special about Mrs El-Dirani’s application or her circumstances that would make her situation markedly different to other applicants in similar situations.  

CONCLUSION

1. In considering all of the relevant factors the Tribunal is not satisfied that that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.

DECISION

1. The Tribunal refuses the application for an extension of time.

I certify that the preceding twenty-five (24) paragraphs are a true copy of the reasons for the decision of Senior Member N Isenberg.

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Associate

Dated 3 December 2014

Date of hearing	6 November 2014
Applicant	In person
Advocate for the Respondent	B Salaji; Department of Human Services