Webster and Secretary, Department of Social Services (Social services second review)
[2022] AATA 479
•18 March 2022
Webster and Secretary, Department of Social Services (Social services second review) [2022] AATA 479 (18 March 2022)
Division:GENERAL DIVISION
File Number: 2021/9452
Re:Louisa Webster
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member S Barton
Date:18 March 2022
Place:Perth
The application for an extension of time in which to lodge an application for review is refused.
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Member S Barton
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – social security – Parenting Payment – member of a couple – length of delay – explanation for delay – prejudice to Respondent – merits of the application – alternative avenue of relief – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 29(2), 29(7)
Evidence Act 1995 (Cth) – ss 160, 163
Social Security Act 1991 (Cth) – ss 4(2), 4(3)
CASES
Boxall and Secretary, Department of Social Services [2018] AATA 676
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2017] FCA 916
Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878
Swanton v Military Rehabilitation and Compensation Commission (2017) 73 AAR 56REASONS FOR DECISION
Member S Barton
18 March 2022
BACKGROUND
The Application
The Applicant seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 24 March 2017, which affirmed the decision of a Services Australia (the Agency) Authorised Review Officer (ARO), determining that the Applicant’s parenting payment be paid at the rate relevant to a person who was a member of a couple.
On 14 December 2021 the Applicant applied to the Tribunal for an extension of time within which to apply for a review of the decision of the AAT1. The issue before the Tribunal is whether it is reasonable to grant this application for an extension of time.
Facts
The Applicant was receiving parenting payments at the rate relevant to a person who was not a member of a couple.
On 27 September 2016, the Agency determined that the Applicant would receive parenting payments at the rate relevant to a person who was a member of a couple.
The Applicant requested an internal review of the decision and on 16 December 2016, an ARO affirmed the decision.
On 17 January 2017, the Applicant sought a review of the ARO's decision by the AAT1 and on 24 March 2017, the AAT1 affirmed the ARO’s decision.
The 28-day time limit for the Applicant to lodge an application for a review expired on 19 May 2017.
On 14 December 2021, the Applicant lodged an application for extension of time to apply for a review of the AAT1 decision.
MATERIAL BEFORE THE TRIBUNAL
The interlocutory hearing took place on 9 March 2022. The Applicant appeared via teleconference, was self-represented and gave oral evidence. The Respondent was represented by Ms Elyshia Saunders who appeared via teleconference.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s application for extension of time, dated 14 December 2021 (Exhibit A1);
(b)Statutory Declaration of the Applicant, dated 23 November 2021 (Exhibit A2);
(c)Letter of Josie Dorling (Applicant’s neighbour), dated 23 November 2021 (Exhibit A3);
(d)Letter of Robin Paul (Applicant’s neighbour), dated 23 November 2021 (Exhibit A4); and
(e)Secretary’s Outline of Submissions, with Annexures A-L, dated 20 January 2022 (Exhibit R1).
ISSUES
Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) details the manner of applying for a review of a decision. Section 29(2) provides a general prescribed time for making an application, which is 28 days of the Applicant receiving notice of the decision. However, s 29(7) provides that, upon application in writing by a person, this time period may be extended if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The issue before the Tribunal is whether it is satisfied, in all circumstances, that it would be reasonable to agree to an application for the extension of time.
Section 29(7) is ordinarily interpreted in the light of principles set out in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344. This decision of the Federal Court, and subsequent decisions made by the Tribunal, have set out a non-exhaustive list of considerations that may guide the decision of whether an extension of time may be granted. These considerations include the following:
(a)the length of delay;
(b)explanation for the delay;
(c)prejudice to the Respondent or the wider public arising from a delay;
(d)merits of the application under review, that is, its prospect for success; and
(e)alternative avenues of relief.
Length of Delay and Explanation
The Respondent calculates the time period the Applicant had to lodge an application for review to be 18 April 2017 – 16 May 2017 (R1/2). However, the Tribunal calculates the relevant time period to be 21 April 2017 – 19 May 2017, in accordance with sections 160 and 163 of the Evidence Act 1995 (Cth). The Applicant lodged her review on 14 December 2021, four years, six months and 25 days after the time period had closed.
French J (as he was then) in Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 (at 96), quoted in Boxall and Secretary, Department of Social Services [2018] AATA 676 at [24], emphasised the importance of time limits imposed for extension of time applications:
The exercise of the discretion to extend time... must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration.
Given the well-established principle that there needs to be finality in administrative decision making and the requirement for limitation periods, a delay of over four and a half years is considerable and must be given significant weight.
When asked why there had been such a delay, the Applicant stated that in the period after she received notice of the AAT1’s decision, she was dealing with the breakdown of her marriage and all its attendant stresses, suffered ill health and one of her children was incarcerated.
The circumstances of the Applicant’s life in 2017 may have warranted consideration as to whether it would be reasonable to extend the time period. However, the Applicant sought the review many years later, which was prompted by a call from the Agency relating to her parenting payment debt. Her explanation for a four and a half year delay can only be given limited weight.
Prejudice
The Respondent contends that the Secretary would be prejudiced, given the delay and the associated difficulties with the memory of potential witnesses and investigating the evidence (R1/10). The Tribunal accepts this contention and also notes that after over four and a half years, the Respondent was entitled to view the matter as settled.
The Tribunal must also consider the interests of the public, the necessity of timeframes for administrative decision making and the interests of those applicants that appear before the Tribunal having complied with time limits, which the Applicant has not done.
Merits of the Application
With respect to the merits of the proposed review, it is not necessary for the Tribunal to undertake a complete consideration of the matter. It must, however, assess the merits in a 'fairly rough and ready way' as noted in Jamal v Secretary, Department of Social Services [2017] FCA 916, [12], quoted with approval in Swanton v Military Rehabilitation and Compensation Commission (2017) 73 AAR 56, [32].
The relevant legislation for the decision the Applicant has sought to review is the Social Security Act 1991 (Cth) (the Act).
Sections 4(2) and 4(3) of the Act set out the member of a couple test. Section 4(2) provides as follows:
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; ...
Section 4(3) provides as follows:
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other majority assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship.
The Applicant has stated that she was not in a relationship with her former partner during the relevant period. There was the pooling of financial resources: her former partner paid the mortgage on the household home and she paid some of the day-to-day household expenses. The Applicant stated that she was the primary caregiver for the children, she stated it was also known that she was not in a relationship with her former partner, providing letters from two neighbours to support this contention. The Applicant also stated that her former partner was away at times with his work as a shearer, and that her former partner’s girlfriend would visit the home they shared.
The challenge for the Applicant is that there is, beyond the letters of her neighbours, very limited supporting evidence that would suggest the Tribunal could make a different decision to that of the AAT1.
Alternative Avenue of Relief
Denying the extension of time request would deny the Applicant from relief in this matter. However, future avenues of relief from the Agency remain, in the event they are warranted by her circumstances.
DECISION
The application for an extension of time in which to lodge an application for review is refused.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member S Barton
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Associate
Dated: 18 March 2022
Date of hearing: 9 March 2022 Applicant: Self-represented by telephone Counsel for the Respondent: Ms E Saunders Solicitors for the Respondent: Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Procedural Fairness
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Standing
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Jurisdiction
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