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

[2021] AATA 89

Twentyman and Secretary, Department of Social Services (Social services second review) [2021] AATA 89 (4 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6654

Re:Keith Twentyman

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:4 February 2021

Place:Sydney

The Tribunal refuses the application for an extension of time.

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Mr S Evans, Member

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory application for an extension of time to lodge an application for review – objection to the granting of an extension of time – whether it is reasonable in all the circumstances – where delay was not significant – explanation for the delay – awareness of appeal rights – whether there was any prejudice – merits of the substantive matter – other avenues for relief – application for an extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975(Cth) ss 18B, 29

Social Security Act 1991(Cth) s 1237AAD

CASES

Comcare v A’Hearn (1993) 119 ALR 85

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305

SECONDARY MATERIALS

COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans’ Appeals Divisions

REASONS FOR DECISION

Mr S Evans, Member

4 February 2021

INTRODUCTION

1. Keith Twentyman (“Mr Twentyman”) seeks an extension of time to lodge an application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 14 September 2020.

2. The AAT1 affirmed a decision of Services Australia (“the Respondent” or “Centrelink”) that Mr Twentyman was paid disability support pension in the amount of $27,396.84 for the period of 23 December 2013 to 25 March 2015 (“the relevant period”) to which he was not entitled. After calculating that Mr Twentyman had a notional entitlement to newstart allowance including rent assistance during the relevant period amounting to $15,923.79, the Respondent determined that Mr Twentyman owed a debt of $11,473.05.

   RELEVANT LEGAL PRINCIPLES

3. Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the Applicant pursuant to paragraph 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

4. Subsection 29(7) provides that the Tribunal may extend the time for lodging an application if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. Subsection 29(7) does not set out any principles to be applied in determining an application for an extension of time though the Tribunal’s approach to applications for extension of time has been guided by the principles outlined in HunterValley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305 (“Hunter Valley”). Wilcox J set out six principles which guide the use of discretion to grant an extension of time:

   ·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 decision-maker was entitled to regard the claim as being finalised;

   ·any prejudice to the respondent caused by the delay;

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

   ·the merits of the substantive application; and

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

5. In considering extension of time applications, these principles are not to be applied mechanically and the overriding consideration is whether it is reasonable in all the circumstances to grant an extension of time.

   BACKGROUND  

6. Mr Twentyman’s application concerns a matter which was originally determined in May 2015 as outlined in the AAT1 decision:  

   Mr Twentyman was paid disability support pension in the periods from 16 January 2014 to 22 October 2014 and 5 December 2014 to 25 March 2015…

   Notes made by the authorised review officer on 15 May 2015 stated that Mr Twentyman incurred a disability support pension debt from 23 December 2013 to 25 March 2015 as he was paid disability support pension during this period in accordance with a stay order made by the General Division of the Tribunal pending Centrelink’s appeal…

   An ADEX debt explanation calculated Mr Twentyman was overpaid disability support pension in the amount of $27,396.84 for the period from 23 December 2013 to 25 March 2015…

   The authorised review officer manually calculated Mr Twentyman’s notional entitlement to newstart allowance and rent assistance to be $15,923.79 …

   On 15 May 2015, the authorised review officer determined that Mr Twentyman owed Centrelink $11,473.05 … This debt amount is the difference between the amount of disability support pension paid to Mr Twentyman ($27,396.84) and his notional entitlement to newstart allowance and rent assistance ($15,923.79).

7. Mr Twentyman initially sought review of the May 2015 decision on 2 April 2020 and the matter was heard by the AAT1 on 14 September 2020. The AAT1 found that Mr Twentyman had repaid $870.85 of the debt amount and as of 3 April 2020 owed Centrelink $10,602.10. It was also satisfied that there was no evidence to support waiving Mr Twentyman’s existing debt by reason of administrative error or the ‘special circumstances’ provisions in the Social Security Act 1991 (Cth).

   INTERLOCUTORY HEARING

8. The application was set down to be heard by telephone by on 11 December 2020 in accordance with the COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans’ Appeals Divisions (“the Practice Direction”) issued under section 18B of the AAT Act. The Direction states in part that the Tribunal “will not hold any … interlocutory hearing in person” and further states that the Tribunal will not hold any final hearing in person, except in exceptional circumstances.

9. Mr Twentyman expressed a preference to appear at the Tribunal in person for the interlocutory hearing. He did this both in writing at the time of his application and subsequently when dealing with Tribunal officers. Interlocutory hearings usually proceed by telephone. Mr Twentyman was informed that consistent with the Practice Direction, the hearing into his extension of time would not be able to proceed in-person and instead would be conducted over the telephone.  

10. On the day of the scheduled hearing, Mr Twentyman was contacted on the telephone number he provided the Tribunal at the scheduled time. The call was answered by an unidentified female who sought Mr Twentyman. A man, presumably Mr Twentyman, could be heard telling the person who took the call to tell “them” that he was not available.

11. As Mr Twentyman was not present for the scheduled hearing, both he and the Respondent were notified that the application would be determined based on the material before the Tribunal. By way of a direction dated 11 December 2020, both parties were afforded until 24 December 2020 to make additional written submissions in relation to the application if they so wished. A further submission was received from the Respondent and no further submission was made by Mr Twentyman.  

    CONSIDERATION

12. The reviewable decision was dated 14 September 2020 and in his application for review of the decision, Mr Twentyman advised that he received notice of the decision the same day. He had until 12 October 2020 to submit his application within the prescribed time. He offers no explanation as to why an application for review was not lodged until 23 October 2020.

    Explanation for the delay

13. Whether an Applicant has an acceptable explanation for the delay will be relevant, but ‘there is no rule that such an explanation is an essential pre-condition’ to the success of the application for an extension of time (Comcare v A’Hearn (1993) 119 ALR 85).

14. Mr Twentyman has offered no explanation for the delay. The length of the delay, being 11 days, is not significant but it remains inconsistent with the principle of certainty and finality in administrative decision making.

15. It is the case that the original decision was made five years prior to his application for review by the AAT1. It would appear that the impetus for Mr Twentyman seeking review was a subsequent inspection of his MyGov account balances and allowance should be made for the circumstances which prompted him to appeal the decision.

    Awareness of appeal rights

16. Mr Twentyman has been before the Tribunal on other occasions. The Tribunal is aware of a separate application, also concerning a decision made by the Respondent, where Mr Twentyman was required to appeal to the Federal Court following a refusal for an extension of time to apply for review of a decision, which at that time had been made a decade prior. This is Mr Twentyman’s prerogative, but in the Tribunal’s view it is reasonable to expect that Mr Twentyman would have some appreciation of the requirements for submitting an appeal in circumstances where he has been before the Tribunal previously.   

    Whether there was any prejudice

17. The Respondent acknowledges that the delay in filing his application for review was not significant. It submits, however, that the five-year delay between the Authorised Review Officer (“ARO”) decision and Mr Twentyman seeking review at the AAT1 indicates that he rested on his rights at that time.

18. It is also the case that if Mr Twentyman were successful in having the extension of time granted, a de novo review would consider the application afresh including consideration of whether a notional entitlement to newstart allowance and rent assistance was appropriate. If this was not found to be the case, Mr Twentyman’s disability support pension debt may be recoverable in full.

    Merits of the substantive matter

19. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of Mr Twentyman’s application for review.

20. In his application for review, Mr Twentyman writes that his total debt is claimed by the Respondent to be $27,929.01 and that he has paid back $16,865.81 with a total amount owing of $11,063.20. He contends ‘that is completely wrong because my total debt is only $11,473.05’. It is further submitted that he has ‘overpaid’ the Respondent $5,122.76.  

21. The ‘repayment’ amount Mr Twentyman identifies includes a sum of $15,923.79 which was credited to his outstanding debt when a previous decision maker determined on 15 May 2015 that Mr Twentyman had a notional entitlement to newstart allowance and rent assistance for a period during which he accrued the disability support pension debt.

22. Should an extension of time be granted, Mr Twentyman may apply for consideration under the “special circumstances” provisions under section 1237AAD of the Social Security Act 1991 (Cth). There is no evidence that Mr Twentyman’s circumstances are out of the ordinary and in circumstances where he is currently receiving fortnightly jobseeker payments of $830.70 and repaying the debt in $15.00 fortnightly instalments.

    Other avenues for relief

23. When considering an extension of time application, the Tribunal will often have regard to whether there are alternative avenues for relief available to the Applicant.

24. In consideration of other avenues for relief, the Respondent notes that Mr Twentyman may negotiate repayment arrangements with the agency at any time.

    CONCLUSION

25. Whilst the length of delay is minimal, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time to allow Mr Twentyman to make an application for review of the AAT1 decision. The Tribunal has taken into account the following considerations which weigh against granting an extension of time:

    (a)Mr Twentyman has not provided an explanation for the delay;

    (b)Mr Twentyman was sufficiently aware of his appeal rights to have made the appeal in the required time;

    (c)The public interest of having finality and certainty in administrative decision making and the fairness to other Applicants in a similar position who may have been denied relief;

    (d)Mr Twentyman is able to renegotiate his repayment terms with the Respondent if he chooses;

    (e)Mr Twentyman’s application lacks merit and appears based in large part on a misunderstanding on his part.

    Mr Twentyman has not presented an arguable case for a substantive hearing into the matter which he has raised.

    DECISION

26. For the reasons outlined above, the Tribunal refuses Mr Twentyman’s application under subsection 29(7) of the AAT Act for an extension of time to lodge an application for review of a decision of the AAT1 dated 14 September 2020.

I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 4 February 2021

Date of hearing:	11 December 2020
Date final submissions received:	16 December 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms B Erak, Services Australia