WEBB and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 232
•31 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 232
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0341
GENERAL ADMINISTRATIVE DIVISION ) Re JENNIFER WEBB Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member K Bean Date31 March 2010
PlaceAdelaide
Decision The Tribunal decides not to grant an extension of time for the making of an application for review of the decision of the SSAT dated 22 September 2009.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
PRACTICE & PROCEDURE – application for extension of time – reviewable decision affirmed imposition of income maintenance period pursuant to Social Security Act 1991– consideration of principles applicable to extension of time – whether the applicant was given and whether she received a copy of the SSAT decision – prospects of substantive application extremely poor – extension of time refused
Social Security (Administration) Act 1999 s 177
Acts Interpretation Act 1901 ss 28A(1), 29(1)Social Security Act 1991 ss 14A, 19C(4), (5) & (7), 1068-G7AM
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 7 ALD 315; 58 ALR 305
Phillips v Australian Girls Choir Pty Ltd [2001] FMCA 109
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540Re Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 92 ALD 715
REASONS FOR DECISION
31 March 2010 Senior Member K Bean 1. The applicant, Jennifer Webb, is married to John Webb. Mr Webb ceased employment with National Foods Dairy Foods Limited on 27 June 2008, and subsequently received a gross redundancy payment of $95,8011.22, from which he received approximately $80,000 net after tax was deducted.
2. On 19 September 2008, Mrs Webb contacted Centrelink to claim Newstart Allowance. On 2 October 2008, Centrelink applied an income maintenance period (IMP) to Mrs Webb’s Newstart Allowance payments for the period 27 June 2008 to 14 May 2010 due to the redundancy payments received by Mr Webb.
3. Mrs Webb requested a review of this decision on 5 November 2008 and an Authorised Review Officer concluded on 6 November 2008 that the decision should be varied and the IMP should be reduced to the period 27 June 2008 to 26 April 2010. Mrs Webb appealed to the SSAT on 14 November 2008 and the SSAT on 15 January 2009 affirmed the decision under review.
4. On 22 June 2009, Mrs Webb wrote to Centrelink seeking waiver of the IMP on the basis that she had insufficient funds to live on for the remainder of the IMP.
5. On 22 June 2009, a Centrelink officer decided not to waive the IMP, which is due to end on 26 April 2010. Mrs Webb requested a review of that decision and an Authorised Review Officer concluded on 22 July 2009 that the decision was correct. Mrs Webb appealed to the SSAT again on 31 July 2009 and on 22 September 2009 the SSAT decided to affirm the decision under review.
6. In an undated letter received by the Tribunal on 27 January 2010, Mrs Webb wrote to this Tribunal in relation to the IMP and this letter was taken to be an application to this Tribunal for review of the decision of the SSAT of 22 September 2009 (although the letter did not actually refer to the SSAT decision).
7. Mrs Webb’s application to this Tribunal was not lodged within 28 days of Mrs Webb being given a copy of the SSAT’s decision as required by s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Mrs Webb has accordingly applied for an extension of time to apply to this Tribunal for review of the SSAT’s decision and that application is opposed by the respondent.
issue before the tribunal
8. The issue before me is whether I should exercise my discretion to grant an extension of time for the institution of proceedings in this Tribunal.
relevant facts
9. On the evidence before me, it appears that Mrs Webb and her husband are currently in circumstances of extreme hardship, both financially and in terms of their physical health. Mrs Webb stated in her evidence that she had suffered a serious back injury at work as a consequence of which she was currently unable to work. She also stated that her husband was currently gravely ill and she was caring for him at home. She stated that as a result of their financial difficulties, they had lost their home and in late September 2009 had moved from that home in Murray Bridge to a caravan on Hindmarsh Island. She said that she and her husband currently receive $161 per fortnight and as they pay $80 a week in rent, she had no money left over to buy food. For the purposes of the issue before me, the respondent did not dispute this evidence of Mrs Webb and I have no reason to doubt it.
10. As to what had happened to the $80,000 received by her husband in 2008, Mrs Webb said that she and her husband had lent more than $35,000 of this to their son who had not repaid any of this money. In addition, they gave $12,000 to their grandchildren and she admitted that she had spent about $20,000 on gambling. She also mentioned that she and her husband had previously lent $50,000 to her son which had not been repaid and this was part of the reason they had recently lost their house. Mrs Webb had told the SSAT previously that she and her husband had also spent $10,500 on a new roof, although she has not provided any evidence to corroborate this.
11. When she appeared before the SSAT on 15 January 2009, Mrs Webb also stated that she and her husband had spent the money received by Mr Webb on the following:
·$8,000 for a caravan;
·$1,000 to purchase a refrigerator, $900 to purchase a freezer and $900 to purchase a washing machine;
·$1,000 to purchase car tyres;
·$2,450 for repairs to the car gearbox;
·$800 for a gas conversion to their car;
·rewiring of their house at a cost of $2,800;
·$500 for a Ventolin machine for Mr Webb to manage his asthma;
·$980 house and contents insurance for 12 months;
·$285 for caravan insurance and $98 for caravan registration for 12 months;
·$400 for car registration; and
·the remainder of the redundancy had been spent on living expenses, including going out for meals together.
12. In her evidence before me Mrs Webb stated that she did not recall receiving the most recent SSAT decision and that she was moving house in September 2009, when the SSAT decision was forwarded to her. Mrs Webb also agreed with the proposition when it was put to her that she had decided to challenge the SSAT decision because of her and her husband’s dire financial situation.
13. The respondent also tendered copies of a number of documents relevant to the issues before me. The most relevant of these are:
·A bundle of Centrelink records in relation to Mrs Webb’s contacts with Centrelink between the date of the SSAT decision and when she lodged her application with this Tribunal[1];
·a copy of a letter from the SSAT dated 28 September 2009 forwarding their decision to her at her Murray Bridge address[2]; and
·a copy of a Centrelink record showing that Mrs Webb’s address was recorded as being the Murray Bridge address for Centrelink purposes until 25 September 2009[3].
[1] Exhibit 2
[2] Exhibit 4
[3] Exhibit 5
principles to be considered in an extension of time application
14. Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”.
15. Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 7 ALD 315; 58 ALR 305. The applicable principles were summarised by Federal Magistrate McInnis in Phillips v Australian Girls Choir Pty Ltd [2001] FMCA 109, in a decision subsequently cited with approval by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, as follows:
“1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”
16. Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights.[4]
[4] Pearce, D., Administrative Appeals Tribunal, Butterworths (2nd Edition, 2007), pp 56-62, [5.6]-[5.20].
17. I propose to address each of the most relevant criteria below. However, as it potentially has a significant bearing on the application of the above principles to the circumstances of this matter, I will first address the issue of whether Mrs Webb was given a copy of the SSAT decision, whether she in fact received the decision and any implications flowing from the answers to each of those questions.
was the ssat decision given to mrs webb and did she receive it?
18. The SSAT decision was forwarded to Mrs Webb on 28 September 2009 and she wrote to this Tribunal in relation to the IMP on or about 27 January 2010. Significantly, she did not refer in her letter to the SSAT decision but simply quoted her Centrelink reference number. As noted above, following enquiries being made of Centrelink, this letter was treated as an application for review of the SSAT decision.
19. Mrs Webb has stated that she does not recall receiving the decision and was moving house in September 2009. This raises the question of whether Mrs Webb was given the SSAT decision, and the separate question of whether she actually received it. In relation to whether she was given the SSAT decision, the following provisions are relevant.
20. Section 177 of the Social Security (Administration) Act 1999 (the SSAA) relevantly provides as follows:
“177 Procedure following SSAT decision
(1) When the SSAT makes its decision on a review, the SSAT must:
(a) prepare a written statement that:
(i) sets out the decision of the SSAT on the review; and
(ii) sets out the reasons for the decision; and
(iii)sets out the findings on any material questions of fact; and
(iv)refers to evidence or other material on which the findings of fact are based; and
(b)give each party to the review a copy of the statement referred to in paragraph (a) within 14 days after the making of the decision in relation to the review; and
…”
21. Section 28A(1) of the Acts Interpretation Act 1901 provides as follows:
“28A Service of documents
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
…”
22. Section 29(1) of the Acts Interpretation Act 1901 also provides as follows:
“29 Meaning of service by post
(1)Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
…”
23. The combined effect of the above provisions is that, for the purposes of compliance with s 177 of the SSAA, providing it was forwarded to her last known address, Mrs Webb is deemed to have been given the SSAT decision within the time that it would generally be expected to have been delivered by ordinary post.
24. There is evidence before me that the decision was forwarded to Mrs Webb at her Murray Bridge address (which I am prepared to infer was the last address known to the SSAT) on 28 September 2009. As there is nothing before me to suggest that the SSAT decision did not duly arrive at her Murray Bridge address, I accept that for the purposes of s 177 of the SSAA, she is taken to have been given the SSAT decision within a few days of it being forwarded to her on 28 September 2009.
25. As the time limit set by s 29 of the AAT Act also operates by reference to when the decision is “given” to an applicant, the above provisions also have the effect that for the purposes of that provision, Mrs Webb is taken to have been given the SSAT decision shortly after it was posted to her. This has the further consequence that, even if she did not actually receive the SSAT decision at that time, she requires an extension of time pursuant to s 29 in order to be able to pursue her application to this Tribunal.
26. However the fact that Mrs Webb is taken to have been given the SSAT decision shortly after it was sent to her does not necessarily mean that she received it at that time[5]. Nor does it mean that any failure by her to receive the decision could not be relied upon as an explanation for her failure to challenge the decision earlier.
[5] See Re Lambert and SDFCS&IA (2006) 92 ALD 715 at [29] – [43]
27. There is some doubt on the evidence before me as to when Mrs Webb received the SSAT decision and indeed whether she received it at all. Centrelink’s records show that she changed her address with them on 26 September 2009, however the SSAT decision was sent to her previous address on 28 September 2009. There was no evidence before me as to whether Mrs Webb made arrangements to have her mail forwarded to her after she and her husband moved and, if so, what those arrangements were. She said she had no recollection of receiving the decision and, as noted above, when she wrote to this Tribunal she simply quoted her Centrelink reference number and did not refer to the SSAT decision.
28. In the course of her evidence before me, Mrs Webb did not clearly assert that she did not receive the decision, although she consistently stated that she did not recall when she received it. If she did not receive it, is unclear what prompted her letter to this Tribunal, however she had made an application to this Tribunal in relation to the previous SSAT decision and this may account for her choice to write to this Tribunal when her circumstances had deteriorated and she felt she and her husband could not survive on the remaining funds available to them. On the other hand, her action in writing to this Tribunal in relation to the IMP is also consistent with her having become aware, at least at some time prior to when she wrote that letter (in late January 2010) that the SSAT had decided not to change the decision under review, and that she could pursue the matter further before this Tribunal.
29. The only other evidence before me which is relevant to this issue consists of Centrelink’s records of contacts with Mrs Webb during the relevant period. Significantly, these show that Mrs Webb attended the Victor Harbor office on 8 October 2009. The notes made of this contact are scant but suggest that Mrs Webb updated her details with Centrelink at this time. There is no record of any discussion of the SSAT decision during this contact, however a separate record shows that that decision was received by Centrelink and recorded against Mrs Webb’s record on 28 September 2009. Therefore if Mrs Webb was not already aware of the SSAT decision at the time of this contact with Centrelink, I consider it likely that there would have been some discussion of the outcome of her application to the SSAT at that time.
30. The next recorded contact between Centrelink and Mrs Webb occurred on 29 December 2009 when Mrs Webb telephoned a Centrelink Call Centre to again query the IMP and put forward reasons as to why the IMP should be reduced. Again there is no record of any discussion of the SSAT decision or of Mrs Webb enquiring as to the outcome of that decision. If Mrs Webb had not been aware of the outcome of the SSAT proceedings at this time, I also consider there would have been likely to have been some discussion of this at the time of this contact. On balance therefore, I consider that each of these records is more consistent than otherwise with Mrs Webb having become aware of the SSAT decision either prior to or at the time of her attendance at the Victor Harbor office on 8 October 2009.
31. In summary the evidence on this issue is somewhat unclear and there is nothing before me which I regard as conclusive. Doing the best I can on the material before me however, I am satisfied that Mrs Webb either received the SSAT decision or at the very least became aware of the content of that decision by 8 October 2009. Particularly having regard to her previous AAT application, I am also satisfied that either at or before that time she was aware of her right to challenge that decision in this Tribunal.
32. I will now proceed to address each of the criteria most relevant to determining whether an extension of time should be granted.
has mrs webb provided an acceptable explanation for the delay?
33. Although I am satisfied that Mrs Webb either received or was aware of the SSAT decision by 8 October 2009, I also accept that she had a great many adverse circumstances to contend with in the latter part of 2009, that she and her husband were forced to move out of their home in September 2009 and that she also ceased work at around that time. I accept for the purposes of this application that she has suffered a significant back injury and that her husband is gravely ill and she has been caring for him in a caravan on Hindmarsh Island.
34. While Mrs Webb’s circumstances are and have been extremely difficult however, I am not satisfied that they entirely explain the delay between when she received or became aware of the SSAT decision in early October 2009 and when she sought to challenge it in late January 2010. Her circumstances did not prevent her from approaching Centrelink in person in October 2009, and I am not satisfied that they prevented her from writing to this Tribunal until January 2010. On the evidence I consider that the timing of her application to this Tribunal is rather explained by her deteriorating financial situation.
35. For these reasons, I am not satisfied that Mrs Webb has provided an acceptable explanation for the delay between when she received or became aware of the SSAT decision in early October 2009 and when she sought review of that decision in this Tribunal, in late January 2010.
prejudice
36. The respondent appropriately did not contend there was any prejudice likely to be suffered by it if an extension of time was granted.
other actions taken by the applicant
37. There is nothing to suggest that Mrs Webb took any action to contest the correctness of the SSAT decision prior to lodging her application with this Tribunal.
fairness
38. Considerations of fairness as against other applicants would also militate against the granting of Mrs Webb’s application. However she and her husband are suffering dire financial hardship relating in part to the decision under review and to some extent that distinguishes her circumstances from those of many other applicants.
the merits of the substantive application
39. In order to succeed in her substantive application, Mrs Webb would have to satisfy the Tribunal that there are grounds to reduce the IMP. At the time of Mrs Webb’s application for Newstart Allowance, the circumstances in which an IMP could be reduced were set out in s 1068-G7AM of the Social Security Act 1991 (the Act), which provides as follows:
“1068‑G7AM If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while an income maintenance period applies to the person, the Secretary may determine that the whole, or any part, of the period does not apply to the person.
Note 1: For in severe financial hardship see subsection 19C(2) (person who is not a member of a couple) and 19C(3) (person who is a member of a couple).
Note 2: For unavoidable or reasonable expenditure see subsection 19C(4).
Note 3: If an income maintenance period applies to a person, then, during that period:
(a) the allowance claimed may not be payable to the person; or
(b) the amount of the allowance payable to the person may be reduced.”[6]
[6] The provision which currently applies is s 1068B – D15 which is in identical terms.
40. Section 19C of the Act deals with “severe financial hardship” and provides in effect that if the liquid assets of a person claiming Newstart Allowance who is a member of a couple fall below the fortnightly amount at the maximum payment rate of the benefit otherwise payable, then the person is said to be in severe financial hardship (s 19C(3)) of the Act).
41. “Liquid assets” as defined in s 14A of the Act, mean the person’s cash and readily realisable assets, and includes shares, amount on deposit with financial institutions and money owed by a former employer.
42. The term “unavoidable or reasonable expenditure” is defined in s 19C(4) of the Act as follows:
“19C Severe financial hardship definitions
…
(4)Unavoidable or reasonable expenditure, in relation to a person who is serving a liquid assets test waiting period or is subject to a seasonal work preclusion period, or a person to whom an income maintenance period applies, includes, but is not limited to, the following expenditure:
(a)the reasonable costs of living that the person is taken, under subsection (6) or (7), to have incurred in respect of:
(i)if the person is serving a liquid assets test waiting period—that part of the period that the person has served; or
(ii)if the person is subject to a seasonal work preclusion period—that part of the period that has expired; or
(iii)if an income maintenance period applies to the person—that part of the period that has already applied to the person;
(b)the costs of repairs to, or replacement of, essential whitegoods situated in the person’s home;
(c) school expenses;
(d) funeral expenses;
(e)essential expenses arising on the birth of the person’s child or the adoption of a child by the person;
(f)expenditure to buy replacement essential household goods because of loss of those goods through theft or natural disaster when the cost of replacement is not the subject of an insurance policy;
(g) the costs of essential repairs to the person’s car or home;
(h) premiums in respect of vehicle or home insurance;
(i) expenses in respect of vehicle registration;
(j) essential medical expenses;
(k)any other costs that the Secretary determines are unavoidable or reasonable expenditure in the circumstances in relation to a person.
However, unavoidable or reasonable expenditure does not include any reasonable costs of living other than those referred to in paragraph (a).”
43. Sections 19C(5) and (7) of the Act define “reasonable cost of living” as follows:
“19CSevere financial hardship definitions
…
(5)The reasonable costs of living of a person include, but are not limited to, the following costs:
(a) food costs;
(b) rent or mortgage payments;
(c) regular medical expenses;
(d) rates, water and sewerage payments;
(e) gas, electricity and telephone bills;
(f) costs of petrol for the person’s vehicle;
(g) public transport costs;
(h)any other cost that the Secretary determines is a reasonable cost of living in relation to a person
….
(7)For the purposes of paragraph (4)(a), the amount of reasonable costs of living that a person who is a member of a couple is taken to have incurred, may not exceed:
(a)in the case of a person who is serving a liquid assets test waiting period—twice the amount of allowance that would have been payable to the person during that part of the waiting period that the person has already served, if the person were not subject to the period; or
(b)in the case of a person who is subject to a seasonal work preclusion period—twice the amount of allowance or parenting payment (as the case may be) that would have been payable to the person during that part of the person’s preclusion period that has already expired, if the person were not subject to the period; or
(c)in the case of a person to whom an income maintenance period applies—twice the amount of allowance or parenting payment (as the case may be) that would have been payable to the person during that part of the income maintenance period that has already applied to the person, if the period did not apply to the person.
…”
44. In relation to Mrs Webb’s circumstances, the SSAT found that she incurred the following unavoidable or reasonable expenditure during the IMP:
·purchase of essential white goods of a refrigerator, freezer and washing machine at a cost of $2,800;
·purchase of car tyres totalling $1,000;
·payment of repairs to a car gearbox at a cost of $2,450;
·gas conversation to their car at a cost of $800;
·rewiring of their home at a cost of $2,800;
·purchase of a Ventolin machine for Mr Webb at a cost of $500;
·payment of their home and contents insurance of $980; and
·payment of car registration at a cost of $400.
45. The SSAT accordingly concluded that there were grounds to disregard that expenditure, totalling $11,730, under s 1068-G7AM of the Act. However, the SSAT then did the relevant calculation and found that if $11,730 was disregarded from Mrs Webb’s liquid assets at the date of commencement of the IMP of approximately $80,000 net, minus Mr and Mrs Webb’s reasonable cost of living for the period of the IMP that had already been served (37 fortnights at $409 x 2 = $30,266), the remaining balance of $38,004 was greater than $818 (twice the fortnightly payment amount of Newstart Allowance) and therefore the IMP could not be reduced.
46. Having regard to all of the material before me including Mrs Webb’s evidence, the only additional expenditure I have been able to identify which could potentially come within the definition of “unavoidable or reasonable expenditure” is Mr and Mrs Webb’s expenditure of $10,500 in relation to a new roof for their previous house. I consider it doubtful as to whether it could be established that this fell within the definition of “unavoidable or reasonable expenditure”[7]. However, even if this was also disregarded, together with Mr and Mrs Webb’s reasonable cost of living for the period that has already been served to date (46 fortnights at $417.70 x 2 = $38,428.40), the remaining balance of approximately $19,000 is greater than $835.40 (twice the fortnightly payment of Newstart Allowance) and would not allow for the IMP to be reduced. Even if the caravan purchased by Mr and Mrs Webb for $8,000 was also disregarded there would still be no basis for reduction of the IMP. Further these issues have now been considered twice by the SSAT and I consider it most unlikely that any further expenditure likely to change the result will come to light if the matter proceeds to a final hearing.
[7] s 19C(4)(g)
47. Mrs Webb gave evidence before me that of the $80,000 received by her and her husband, approximately $67,000 was spent on gambling or loaned or given to her son and grandchildren and this is broadly consistent with the evidence she has given to the SSAT on two previous occasions. As there is no basis upon which those expenditures could be considered “unavoidable or reasonable” within the meaning of the legislation, it follows from that evidence that there are no proper grounds for reduction of the IMP. I have also given consideration to the question of calculation of the IMP and this appears to me to have been correctly calculated.
48. It follows that in my view Mrs Webb has extremely poor prospects of succeeding in her substantive application.
49. It is also of some relevance that Mrs Webb’s IMP expires on 26 April 2010 and given the timing of her application to this Tribunal, it would be difficult to convene a final hearing such as to allow a decision to be made by this Tribunal much before the expiration of the IMP.
conclusion
50. As noted above, I have no reason to doubt Mrs Webb’s evidence to the effect that she and her husband are in dire financial hardship and if she had had an arguable case “on the merits”, she would have had a good case for an extension of time to be granted. As outlined above however, the legislation applicable to her circumstances is very detailed and confers no real discretion to treat a particular case differently. Partly for that reason, her case on the merits is extremely weak and I have concluded that it would serve little purpose for me to grant her an extension of time.
51. I have also had regard to the fact that there are a matter of weeks remaining before the IMP applicable to Mrs Webb expires and in those circumstances, further consideration of the matter by this Tribunal is only likely at best to have minimal impact on her situation in practical terms.
52. For these reasons, even though her circumstances are deserving of great sympathy, I have decided not to grant the extension of time sought by Mrs Webb.
decision
53. The Tribunal decides not to grant an extension of time for the making of an application for review of the decision of the SSAT dated 22 September 2009.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .............J Coulthard...........................................
AssociateDate of Hearing 25 February 2010
Date of Decision 31 March 2010
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms J Okmasich
Centrelink Advocacy Branch
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