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

[2020] AATA 113

Weston and Secretary, Department of Social Services (Social services second review) [2020] AATA 113 (22 January 2020)

Division:GENERAL DIVISION

File Number:           2019/7247

Re:Anthony Weston  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Member M East

Date:22 January 2020

Place:Perth

The Tribunal refuses to grant Mr Weston’s application for an extension of time to lodge an application for review of a decision made by the Social Security and Child Support division of the Administrative Appeals Tribunal pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

...........................[sgd].............................................

Member M East 

CATCHWORDS

SOCIAL SECURITY – extension of time – s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) – factors that are relevant when considering an extension of time – length of delay – explanation for delay – awareness of appeal rights – prejudice – merits of substantive application – alternative avenues of relief – Tribunal not satisfied extension of time reasonable in the circumstances – application for extension of time not allowed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A(b), 29(1)(d), 29(2), 29(7)

Evidence Act 1995 (Cth) – s 160
Social Security Act 1991 (Cth) – ss 7, 7(3)

Social Security (Administration) Act 1999 (Cth) – s 29

CASES

Brown v Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 45 FCR 441
Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Lucic v Nolan (1982) 45 ALR 411
Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76
Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990)
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113

REASONS FOR DECISION

Member M East

22 January 2020

THE APPLICATION

1. The Applicant is seeking review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 28 August 2019. The AAT1 decision affirmed the decision to reject the Applicant’s claim for disability support pension (DSP) which was lodged on 7 December 2018.

2. The Applicant lodged an application for extension of time for making an application to seek review of the AAT1 decision (the Reviewable Decision).

   THE ISSUE

3. The issue is whether the Tribunal should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to extend the time for the

   
   

   Applicant to make an application for review of the AAT1’s decision.

4. The Respondent opposes the extension of time application.

   EVIDENCE

5. The application for extension of time was heard by the Tribunal on 15 January 2020.

   
   

   The Applicant represented himself with assistance from his wife, Mrs Weston and the Respondent was represented by Mr Gary Khoo, by telephone, from the Department of Human Services.

6. The following exhibits were tendered:

   ·the application for extension of time received by the Tribunal on 6 November 2019 (Exhibit A1);

   ·the application for second review of decision dated 31 September 2019 received by the Tribunal on 6 November 2019 (Exhibit A2);

   ·a copy of the AAT1 decision (Exhibit A3);

   ·the Applicant’s patient health summary dated 28 August 2019 (Exhibit A4);

   ·poster entitled ‘Drugs and Driving’ (Exhibit A5);

   ·an excerpt from a medical certificate titled ‘Medical Certification of Permanent Incapacity (Continued)’ (Exhibit A6); and

   ·the Secretary’s Outline of Submissions with attachments A – D (Exhibit R1).

7. The Applicant and his wife, Mrs Weston, also gave oral evidence at the hearing.

   RELEVANT LEGAL PRINCIPLES FOR AN EXTENSION OF TIME

8. Pursuant to ss 29(1)(d) and 29(2) of the AAT Act, the application for review of a decision must be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision.

9. Section 29(7) of the AAT Act provides that the Tribunal may, upon application in writing, extend the time for the person making the application, if the Tribunal is satisfied in all the circumstances that it is reasonable to do so.

10. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be ‘satisfied that it is reasonable in all the circumstances’ to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.

11. A frequently cited authority is Hunter Valley Developments Pty Ltd v Cohen (1984)

    
    

    3 FCR 344 (‘Hunter Valley’) in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Hunter Valley, Wilcox J set out principles that were intended to be non-exhaustive guidelines which may be relevant when considering whether to grant an extension of time.

12. These principles are substantially similar to those applied in decisions concerning s 29(7) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at [17], where President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990):

    (a)Prima facie proceedings commenced outside the prescribed period will not be entertained.  An extension of time will be granted, however, if it is proper to do so.

    (b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)The merits of the substantial application are relevant.

    (f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

13. Some flexibility is permitted in applying the principles. The facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be relevant or not relevant at all.

14. Additionally, 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 precondition’ to the success of the application for an extension of time (Comcare v A’Hearn (1993)

    
    

    45 FCR 441 at 444).

    CONSIDERATION

15. In determining whether an extension of time should be granted, the relevant factors the Tribunal should consider include:

    ·the length of the delay;

    ·the explanation of the delay and whether that explanation is satisfactory;

    ·whether the Applicant was aware of his appeals rights and whether he rested on those rights;

    ·any prejudice to the Respondent or the general public arising from the grant of an extension of time;

    ·the merits of the substantive application; and

    ·alternative avenues of relief.

    Length of the delay

16. The Applicant’s application for review and his application for an extension of time were received by the Tribunal on 6 November 2019. The AAT1 dispatched its decision on

    
    

    4 September 2019 by post. Pursuant to s 160 of the Evidence Act 1995 (Cth), the Applicant is presumed to have received the AAT1 decision by 13 September 2019.

17. The last day for lodging the application for review was 11 October 2019. The Applicant lodged his application on 6 November 2019 and was therefore three weeks and five days out of time.

18. The Tribunal notes that the length of the delay is relatively short, however maintains that in this case to grant an extension is inconsistent with the principle that there should be finality and certainty in administrative decision making. 

    Explanation for delay

19. The Applicant in his request for an extension of time stated that he was ‘suffering burst aneurysm, brain strokes, epilepsy, still waiting for a couple more tests which in WA can take up to 6 months, exercise for better stability, being ill winter flu bed ridden’.

20. The Respondent conceded at the hearing that whilst the Applicant had not provided any evidence explaining how these conditions had affected his ability to lodge his application within time, they nonetheless accepted that the Applicant was suffering from significant health issues and that these could have impacted his capability.

21. The Tribunal therefore gives this factor some weight in favour of exercising its discretion to extend the time for lodging the application.

    Awareness of appeal rights

22. The Applicant did not submit that he was unaware of his appeal rights. The Applicant was advised of his right of review of the decision by the Tribunal when he was sent the decision made by AAT1. Information regarding the time limits for applying for a review was also provided at this time.

23. The Tribunal finds that this weighs against it exercising its discretion in the Applicant’s favour.

    Prejudice to the Respondent or the General Public

24. The Respondent concedes that the Respondent would not suffer any direct or material prejudice due to the delay.

25. The Tribunal observes that the absence of prejudice is not itself sufficient to justify the granting of an extension (see Lucic v Nolan (1982) 45 ALR 411 at 416).

26. An objective of the Tribunal is to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ (s 2A(b) of the AAT Act). In this instance, there is a relatively short delay in the application for review. The Tribunal finds that the absence of prejudice in the context of all the circumstances of this matter is a factor that weighs in favour of the Applicant when considering whether the Tribunal should exercise its discretion.

    Merits of the substantive application

27. As noted above, when deciding whether to grant an extension of time to an applicant,

    
    

    the Tribunal may consider the merits of the applicant’s substantive application. The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76), but, rather, should assess whether the applicant has an ‘arguable case’

    
    

    (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).

28. The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 and

    
    Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

    [2011] AATA 276).

29. The Respondent contends that the Applicant’s application has limited, if any, prospects of success and that this weighs heavily against the granting of an extension of time and has provided submissions on this point.

30. The Applicant is claiming entitlement to a DSP for the medical conditions of mental health condition (including post-traumatic stress disorder), brain aneurysm and seizure disorder and crush fracture of the vertebrae during the qualification period from the date of application, 7 December 2018 and 13 weeks thereafter.

31. The Respondent submits that the Applicant’s mental health condition, brain aneurysm and seizure disorder are not fully diagnosed, treated and stabilised during the qualification period.  They further submit that the crush fracture of the vertebrae, whilst fully diagnosed attracts a zero impairment rating.

32. The Tribunal, whilst considering the merits of the substantive application, is not required to undertake a substantive review of the merits of the application.

33. The Tribunal has had regard to the AAT1’s decision and the various medical reports attached at Annexure D of the Respondent’s Outline of Submissions and whilst not making a firm conclusion on the merits of the Applicant’s claim, the Tribunal finds that the medical evidence as submitted tends to indicate quite limited prospects of success for the Applicant.

34. That is, the evidence summarised in the Respondent’s submissions, together with the attached medical reports, indicates that the claimed conditions of mental health condition, aneurysm and seizure disorder are not fully diagnosed, treated and stabilised at the relevant time. That is, at 7 December 2018 and 13 weeks thereafter (during the qualification period).  The Tribunal agrees that based on the available evidence, the crush fracture of the vertebrae is fully diagnosed but attracts a zero impairment rating.

35. The Tribunal finds that this factor weighs heavily in favour of it exercising its discretion in favour of the Respondent.

    Alternative avenues of relief

36. The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application

    
    

    (see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at [18] and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [48]).

37. The Respondent submits that it is open to the Applicant to submit a fresh application for DSP at any stage once the medical reviews and treatments for his conditions have been completed and assessed.

38. The Tribunal, in light of the concerns it has regarding the merits of the substantive claim during the qualification period and the need for further medical investigations to be done and treatments to be completed, considers it is preferable for the Applicant in these circumstances to pursue a fresh claim for DSP.

39. The Tribunal finds this weighs in favour of the Tribunal exercising its discretion in favour of the Respondent.

    CONCLUSION

40. Having carefully weighed all the factors outlined above, the Tribunal is not satisfied that it is reasonable in all the circumstances to grant an extension of time to allow the Applicant to lodge an application for review of the AAT1 decision dated 28 August 2019.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member M East

............................[sgd]............................................

Associate

Dated: 22 January 2020

Date of hearing:

15 January 2020

Applicant:

Representative for the Respondent:

Solicitors for the Respondent:

In person

Gary Khoo

Department of Human Services