Van Duren and Secretary, Department of Social Services (Social services second review)
[2022] AATA 3400
•18 October 2022
Van Duren and Secretary, Department of Social Services (Social services second review) [2022] AATA 3400 (18 October 2022)
Division:GENERAL DIVISION
File Number(s):2022/5315
Re:Owen Van Duren
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
INTERLOCUTORY Decision
Tribunal:Mr S. Webb, Member
Date:18 October 2022
Place:Canberra
Application for extension of time refused.
…………[sgd]……….
Mr S. Webb, Member
PRACTICE & PROCEDURE – application for review of AAT 1st Review decision – prescribed time for making application – application out of time – discretion to extend time – reasonable explanation – no prejudice – no reasonable prospects of success – not appropriate to exercise discretion – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 2A, 29, 33
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, ss 40, 41, Schedule 2Cases
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516)
Daley v Child Support Registrar [2020] FCAFC 161
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27
Tu’uata Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011REASONS FOR DECISION
Mr S. Webb, Member
18 October 2022
Owen Van Duren claimed Disability Support Pension (DSP). His claim was refused. This decision was affirmed by the Social Services and Child Support Division of the Tribunal on first review (AAT 1st Review). Mr Van Duren applied for review of this decision in the General Division of the Tribunal (AAT 2nd Review).
The Secretary asserts Mr Van Duren’s application for AAT 2nd Review was lodged outside the 28 day timeframe prescribed under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Secretary contends, furthermore, it is not appropriate to grant an extension of time in all the circumstances.
It is this issue, alone, that is the subject of this decision.
The parties have been heard and each has had a reasonable opportunity to give the Tribunal written submissions and supporting materials.
Relevant facts
The following relevant facts are established by evidence, without controversy:
(a)On 12 March 2021, Mr Van Duren lodged a claim for DSP.
(b)On 3 May 2021, the claim was refused (primary decision).
(c)On 28 July 2021, Mr Van Duren requested review of this decision.
(d)On 2 February 2022, an Authorised Review Officer (ARO) decided to affirm the primary decision.
(e)On 18 February 2022, Mr Van Duren applied for review by the Tribunal.
(f)On 26 April 2022, the decision to refuse Mr Van Duren’s DSP claim was affirmed by the Tribunal on AAT 1st Review.
(g)On 4 May 2022, notice of the AAT 1st Review decision was given to Mr Van Duren in accordance with the express preference he nominated when applying for AAT 1st Review,[1] namely by email to his nominated email address. I am satisfied Mr Van Duren received the notice on 4 May 2022 even though a different date, 22 April 2022, appears in the Application for Extension of Time for Making an Application for Review of a Decision (Extension of Time application) lodged by his representative, Ms Sara Zorzi, on 22 June 2022. Clearly, 22 April 2022 cannot be correct as it precedes the date on which the AAT 1st Review decision was made (26 April 2022).
[1] Secretary’s Outline of Submissions, 29 July 2022, Attachment D, page 4.
(h)The 4 May 2022 notice sets out information about Mr Van Duren’s review rights in respect of the AAT 1st Review decision:
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).[2]
[2] Secretary’s Outline of Submissions, 29 July 2022, Attachment C.
(i)The 28 day period for making an application for review of the AAT 1st Review decision elapsed on 1 June 2022.
(j)On 22 June 2022, Ms Zorzi lodged the Extension of Time application on Mr Van Duren’s behalf. She set out the following reasons for the application:
I am seeking an extension of time to make an application for review of the decision to uphold the original decision of declining [Mr Van Duren] for DSP as [Mr Van Duren] has a disability and was not aware this decision had been formally made and he was not aware of the time frame to request review of the decision.
[Mr Van Duren] only engaged advocacy one month after the decision was made, he was not supported at time of the decision.
(k)On 15 July 2022, the Secretary opposed the Extension of Time application.
(l)On 20 July 2022, the Tribunal issued directions for each party to provide written submissions and supporting materials.
(m)On 19 August 2022, the parties were heard in an interlocutory hearing before me. Mr Van Duren applied for more time in which to provide further relevant materials. This was granted and directions were issued.
(n)On 1 September 2022, Ms Zorzi gave the Tribunal addition medical records on which Mr Van Duren wanted to rely.
(o)On 16 September 2022, the Secretary provided further written submissions.
Issues
The sole issue for determination is whether it is reasonable in all the circumstances to grant Mr Van Duren an extension of time in which to apply for review of the AAT 1st Review decision under s 29(7) of the AAT Act.
When deciding this issue, the prescribed 28 day time limit should not be over-looked or too lightly put aside as delay is a factor which may count against an exercise of the discretion in favour of an applicant for relief.[3] The Tribunal is required to consider all relevant circumstances and to weigh together all relevant factors.[4] Consequently, it is appropriate to consider:
(a)the length of the delay in applying for review;
(b)knowledge of the prescribed time limit;
(c)any explanation for the delay;
(d)prejudice to the Respondent or anyone else should the extension be granted;
(e)the nature and prospects of the application should it be allowed to proceed; and
(f)alternative remedies should the extension not be granted.
[3] Daley v Child Support Registrar [2020] FCAFC 161 at [43].
[4] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451; Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516).
Length of delay
The length of the delay applying for review in this case is 22 days.
While the delay is not long, shortness of delay, alone, is not determinative. Whether long or short, delay is a factor which may count against the exercise of discretion to grant additional time in which to make an application for review.
Knowledge of prescribed time limit
Information about the prescribed time limit in which to apply for review of the AAT 1st Review is set out in the notice of that decision given to Mr Van Duren on 4 May 2022.
Ms Zorzi asserts Mr Van Duren was not aware the AAT 1st Review decision had been formally made and he was not aware of the timeframe in which he could apply for review.
As Mr Van Duren did not give oral evidence at the interlocutory hearing, this assertion has not been tested.
It is possible Mr Van Duren did not read the notice or the AAT 1st Review decision. Were that to be established, and it is not (the notice was sent by email to Mr Van Duren’s nominated email address and there is no evidence he did not read the notice), one would need to look to the reasons for not doing so. In this case, there was every reason for Mr Van Duren to read the notice and the AAT 1st Review decision, as only by doing so would he know how the AAT 1st Review of his DSP claim turned out.
Mr Van Duren applied for AAT 1st Review of the ARO decision in a timely manner, 16 days after the date of the ARO’s decision. Quite clearly, he was not impeded by literacy or comprehension difficulties at that time in February 2022.
Even if Mr Van Duren did not have the support of an advocate on or soon after 4 May 2022 (as Ms Zorzi asserts), there is nothing in the materials before the Tribunal to suggest Mr Van Duren was unable to read written information at the time. I note on 27 April 2022, Dr Jaba Saved, treating psychiatrist, reported Mr Van Duren reading on his phone following discharge from hospital 3 weeks earlier.[5]
[5] Report of Dr Jaba Saved, 27 April 2022, pages 1 and 2.
On the reports of Dr Saved on 27 April 2022, 3 May 2022, 9 May 2022, 23 May 2022 and 8 June 2022, Mr Van Duren was experiencing psychotic, delusional and depressive symptoms at that time which were treated with the antipsychotic and antidepressant medications, namely Olanzapine and Lexapro. He was also suffering from significant pain symptoms which were treated with Panadeine Forte, Endone and physiotherapy. I accept this may have adversely affected Mr Van Duren’s capacity to fully comprehend and act upon the 4 May 2022 notice and the AAT 1st Review decision.
On 4 August 2022, Dr Saved reported:
Mr Van Duren continues to suffer disabling symptoms of PTSD including difficulty sleeping, nightmares, difficulty concentrating and agoraphobia … Mr Van Duren has moderate impairment concentrating on tasks, self care and independent living and planning or his needs….
On balance, it is probable Mr Van Duren read but may not have fully understood the 4 May 2022 notice and the AAT 1st Review decision and he then consequently sought assistance from an advocate. In all likelihood, it was knowledge of the notice and the AAT 1st Review decision, albeit incomplete, that caused him to obtain advocacy support. It is possible he did not fully comprehend the 28 day limit on applying for further review of the AAT 1st Review decision.
Explanation for delay
The Secretary asserts Mr Van Duren has provided no explanation for the delay.
This is incorrect.
The explanation for the delay in Mr Van Duran applying for further review of the AAT 1st Review decision is that provided by Ms Zorzi in the Extension of Time application. There are two components to her explanation.
The first is Mr Van Duren was not aware the AAT 1st Review decision had been formally made. For the reasons I have explained, I do not accept the factual underpinning of this component is made out. It is difficult to comprehend why Mr Van Duren sought assistance from an advocate if he was unaware of the AAT 1st Review decision. This component of Ms Zorzi’s explanation for the delay is not consistent with the scant materials available and it is not supported by evidence. That being so, it is not a satisfactory explanation for the delay.
The second component of Ms Zorzi’s explanation for the delay is Mr Van Duren was not aware of the timeframe for applying for review of the AAT 1st Review decision and he did not obtain advocacy support until one month after the decision was made.
On Dr Saved’s reports, Mr Van Duren experienced psychotic and delusional symptoms from 20 April 2022 until 4 August 2022, at least. In Dr Saved’s opinion Mr Van Duren’s psychiatric disorders impaired his cognitive capacity to concentrate on tasks and planning. There is no evidence Mr Van Duren experienced psychotic or delusional symptoms in February 2022, when he applied for AAT 1st Review without any need for advocacy support.
Doing the best with the available materials it is probable Mr Van Duren experienced a psychotic episode which began in or about April 2022. This change in his mental health occurred in the context of other ongoing psychiatric disorders diagnosed by Dr Saved, all of which impaired his cognitive functioning.
When considered in the context of Mr Van Duren’s mental health conditions at the time, the second component of Ms Zorzi’s explanation for the delay is reasonable.
It has not been suggested Mr Van Duren rested on or waived his rights in respect of the AAT 1st Review decision.
I am satisfied there is an adequate explanation for the delay of 22 days.
Prejudice
The Secretary asserts the only prejudice which would arise should an extension of time be granted is in respect of the cost of defending an application for which the Applicant has limited prospects of success.
Under s 33(1AA) and (1AB) of the AAT Act, the Secretary is required to assist the Tribunal to make its decision and to fulfill the objectives set out in s 2A of the AAT Act. This requirement and any costs relating to it is not within the conception of prejudice against the Secretary should the extension of time be granted.
Nature and prospects of the application
The Secretary asserts the application lacks merit.
The application pertains to Mr Van Duren’s DSP claim on 12 March 2021.
Under the start day rules set out in s 41, s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act), in order for DSP to be payable under this claim, Mr Van Duren would need to qualify for DSP on the day he made the claim or within 13 weeks thereafter.
The qualification thresholds for DSP are set out in s 94 of the Social Security Act 1991 (SS Act), essentially including:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment;
and
(b) the person’s impairment is of 20 points or more under the
Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the
program administered by the Commonwealth known as the
supported wage system; and
(d) …
With regard to the threshold set out in s 94(1)(b), the Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Determination). Part 2 of the Determination sets out rules that must be complied with. Under rule 6(3) an impairment rating can only be assigned to an impairment if the impairment is permanent. Rule 6(4) provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.
There is no controversy Mr Van Duren has one or more impairments and he meets the requirements of s 94(1)(a). Medical records and reports placed before the Tribunal confirm Mr Van Duren suffers from Post-Traumatic Stress Disorder (PTSD) and possibly other psychiatric conditions.
Mr Van Duren submits he suffers PTSD as a result of an assault in September 2020 while he was in prison and sustained nasal and upper right limb injuries. He asserts he obtained treatment for PTSD while in prison. Even though there is no material to support this assertion, it is possible this occurred as he alleges.
On 9 March 2021, Dr Efeovbokhan noted nasal and right upper limb conditions and referred Mr Van Duren for a CT scan and x-ray.[6]
[6] Documents produced under summons by Idameneo Pty Ltd, clinical noted on 9 March 2021.
On 16 March 2021, Dr Efeovbokhan noted Mr Van Duren complained of psychological symptoms, including depression and flash backs. The doctor referred Mr Van Duren to Mental Health Access for treatment and to Dr Eghtedari for ear, nose and throat review.
On 6 June 2021, Dr Javin, a psychiatrist, recorded Mr Van Duren’s psychiatric history and his complaint of mental health issues after September 2020. The doctor diagnosed Chronic PTSD with differential diagnoses of Major Depressive Episode and Adjustment Disorder with depressive and anxious/avoidant features. Dr Javin set out recommendations for treatment, including:
- Trial of an SSRI antidepressant. Zoloft 25mg daily, increasing to 50mg daily after one week, or Lexapro 5mg daily increasing to 10mg daily after one week.
- Referral to a psychologist under a GP mental health care plan for CBT/exposure therapy for PTSD or EMDR,[7]
[7] Report of Dr Javin, 16 June 2021, page 4.
On 29 June 2021, Dr Efeovbokhan made a GP Mental Health Treatment Plan for Mr Van Duren noting he commenced treatment with Escitalopram (Lexapro) and future treatment included CBT and psychotherapy.
On 31 August 2021, Dr Urolagin (a general practitioner) referred Mr Van Duren to the Next Step High Intensity Service for psychological interventions relating to his PTSD. Mr Van Duren attended an assessment under this Service on 29 November 2021. He was found unsuitable for Next Step services and he was discharged.
On 20 April 2022, Dr Javin reported Mr Van Duren was experiencing delusional symptoms as well as PTSD and:
… lower back and left radiculopathic pain secondary to left subarticular disc herniation with cranial disc herniation at L1/S1 level with impingement of left L5 nerve root recent Calvary admission 28/3/2022 to 2/4/2022.
The doctor recommended Mr Van Duren should continue with Lexapro and Olanzapine (an antipsychotic medication).
On 27 April 2022, Dr Javin reported diagnoses of First Episode Psychosis and Chronic PTSD (among other ailments). On 3 May 2022, Dr Javin increased the dose of Olanzapine for Mr Van Duren.
On these medical records, it appears Mr Van Duren’s physical and psychological impairments were not fully diagnosed, fully treated and fully stabilised on the day he claimed DSP, 12 March 2021, or within 13 weeks thereafter. Other medical records placed before the Tribunal do not raise any contrary indication. If this is correct, no rating can be assigned under the Impairment Tables and he would fail to meet the second essential qualification criteria for grant of DSP.
Thus, on a preliminary examination of the available materials (bearing in mind what the majority said in Tu’uata Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[8] at [15]-[20]), there is very little prospect of Mr Van Duren’s DSP claim succeeding, should his application be allowed to proceed. On this point his application appears futile, without any reasonable prospect of success.
[8] [2022] HCA 28.
It must be acknowledged this assessment of the merits of Mr Van Duren’s application is conducted in a rough and ready way, without any materials being tested.[9] No more is required at this stage, for present purposes.
[9] Jackamarra v Krakouer [1998] HCA 27 at [9].
Alternative remedies
There is no alternative remedy for Mr Van Duren’s application should an extension of time not be granted.
There is no bar, however, to prevent him lodging a fresh claim for DSP once his impairments have been fully diagnosed, fully treated and fully stabilised for the purposes of the Determination.
Conclusion
Even though the Tribunal is not a court, it should, nevertheless, weigh up what fairness and justice requires in the particular circumstances of the case. The interests of each party must be weighed with the interests in the Tribunal providing a mechanism of review in accord with the statutory objectives set out in s 2A of the AAT Act, namely a review that is:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
The length of the delay is not great. This weighs against exercise of the discretion to grant further time for him to apply for review of the AAT 1st Review decision.
I am satisfied Mr Van Duren knew of the time limit on making an application for review of the AAT 1st Review. Nevertheless, on Ms Zorzi’s account and the materials given to the Tribunal on his behalf, there is a reasonable explanation for the delay in applying for review of this decision and for failing to adhere to the prescribed time limit.
No prejudice is likely to arise should the application be allowed to proceed.
In the circumstances of Mr Van Duren’s case, his application lacks reasonable prospects of success. The likely futility of his application weighs heavily against grant of an extension of time. Granting additional time in order to enable his application to proceed is not fair or just to either party.
On balance and considering all the relevant circumstances, I am satisfied it is not appropriate to exercise the discretion in s 29(7) of the AAT Act to allow further time for Mr Van Duran’s application for review of the AAT 1st Review decision.
Decision
Application for extension of time refused.
I certify that the proceeding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
………………….[sgd]…………………..
Associate
Dated: 18 October 2022
Date of Hearing: 19 August 2022
Date final submissions received: 16 September 2022
Representative for the Applicant: Sara Zorzi, ADACAS Advocacy
Solicitor for the Respondent: James Bernesconi, Department of Social Services
0
6
0