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

[2019] AATA 1129

WFCN and Secretary, Department of Social Services (Social services second review) [2019] AATA 1129 (5 June 2019)

Division:  GENERAL DIVISION

File Number:      2019/1763

Re:         WFCN

APPLICANT

And        Secretary, Department of Social Services

RESPONDENT

Decision

Tribunal:  Member K. Parker

Date:      5 June 2019

Place:     Melbourne

The Tribunal refuses the application for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Member K. Parker

Catchwords

EXTENSION OF TIME APPLICATION – whether reasonable in all the circumstances to grant the extension of time – application lodged four years and ten months out of time – applicant claims that reviewable decision not sent to her and not advised of 28-day time limit - explanation for the delay – merits of the substantive application – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) – s 29, 37

Social Security Act 1991 (Cth) – ss 568, 569A, 569D, 1223, 1236, 1236A, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) (as at 14 April 2015) – ss 177

Cases

Re Clinic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381

Re Grafton and Commonwealth (1988) 16 ALD 533

Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 3 FCR 344

Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

Secondary Materials

National Archives of Australia – Records Authority – Social Security Appeals Tribunal Job no 2006/00118635, June 2008

REASONS FOR DECISION

Member K. Parker

5 June 2019

background

1. On 31 March 2019 WFCN lodged with the General Division of the Administrative Appeals Tribunal (this Tribunal) an application for an extension of time to lodge an application for review of a decision of the former Social Security Appeals Tribunal (SSAT) dated 19 March 2014.  The SSAT decision related to a debt that had been raised by the Commonwealth in respect of overpayment to WFCN of Austudy in the amount of $3,384.85, and a Student Start-up Scholarship in the amount of $1,025 (referred to collectively as the Debt).

2. On her application form to this Tribunal, WFCN stated that the reason she had requested an extension of time to lodge the review application was:

   On the review under what to do if you think this decision is wrong there is not a time limit mentioned.  In fact it specifically states there is no time limit to ask for a review about the money you owe us.

3. The SSAT (constituted by two Members) decided that the Debt had been properly raised against WFCN under s 1223 of Social Security Act 1991 (Cth) (Act).  The SSAT accepted that WFCN’s educational progress had been compromised due to health reasons.  However, the SSAT found on balance that WFCN’s circumstances “were not at the time, or are now, so unusual, out of the ordinary or exceptional such as would justify the waiver of public money to which she was not entitled” being waived under s 1237AAD of the Act. It was for these reasons that the SSAT affirmed the decision made by Centrelink to raise and recover the Debt from her.

4. On her application to this Tribunal, WFCN stated that the reason why she considered the decision under review was wrong was:

   There were extenuating medical circumstances that were not fully supplied to the tribunal by Centrelink and therefore not fully evaluated.  Only legislation has been applied instead.  In an internal review conducted by Centrelink the debt should have been reduced but was not.

5. When WFCN lodged her application form with this Tribunal, she attached a six-page detailed submission setting out why she considered that the Debt should not be recovered from her. The Tribunal has considered this submission.  WFCN has also produced to this Tribunal numerous documents which were not previously provided to the SSAT.  The Tribunal has also considered them carefully and many of these documents were discussed with WFCN at the extension of time hearings before this Tribunal.

6. The hearing of WFCN’s extension of time application took place on three separate days after being adjourned on two separate occasions.  The first adjournment occurred to provide WFCN with more time to consider the Secretary’s Outline of Submissions and set of documents (T-Documents) produced to the Tribunal. The T-Documents were given to WFCN under the Secretary’s obligations arising under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). 

7. The second adjournment occurred to allow for this Tribunal to check the SSAT’s system to ascertain whether the decision under review and covering letter was sent to WFCN in March 2014 and to check the address that it was sent to, after WFCN informed the Tribunal on the second hearing day that she had never received such correspondence.

consideration

1. Section 29(7) of the AAT Act gives the Tribunal discretion to extend the 28-day time limit to lodge an application for review of a decision where the extension of time application has been made in writing, which it has in this case; and if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. As a guiding principle, the time limit cannot be ignored unless there is a good reason to do so. Special circumstances need not be shown, but the decision-making body must not grant the extension unless it is positively satisfied it is proper to do so. The application for the extension of time must show an acceptable explanation for the delay and show that it is fair and equitable in the circumstances to extend the time – see the Federal Court of Australia decision of Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 3 FCR 344 (Hunter).

2. This Tribunal advised WFCN on the first day of the extension of time hearing that it would take into account the following factors as identified in Hunter, in deciding whether to grant an extension of time in this case.

Length of the delay

1. It was not in dispute between the parties that WFCN lodged her application for review by this Tribunal well over four years after the 28-day statutory time limit had expired.  This is an extremely long delay by any measure. 

Explanation for the delay

1. The Tribunal notes WFCN’s written reason for the delay, as set out in paragraph [2].

2. At the hearing, WFCN was given a further opportunity to explain her reasons for the delay.  WFCN submitted that she did not receive the SSAT decision when it was made in 2014 and that she was wholly unaware that she had a right to appeal the SSAT decision or that there was a time limit within which she must lodge her application for review. 

3. Following an adjournment of the hearing, the Tribunal, through its staff, accessed WFCN’s file on the SSAT’s system.  A screenshot was taken of the computer record maintained for WFCN’s SSAT file showing that a number of documents were despatched from the SSAT on 25 March 2014.   This screenshot was provided to the parties.  One of the documents despatched was a copy of the SSAT decision under review.  This decision was able to be downloaded from the system and this version of the SSAT included a reference to a “posted” date of “25 March 2014”. 

4. The SSAT computer screenshot also recorded that an additional electronic document was sent to all parties.  This document, which is the SSAT’s pro-forma covering letter, was not able to be downloaded from the system because such correspondence is deleted from SSAT files after a period of 13 months.  This practice is consistent with requirements for the retention and destruction of records for the function of Tribunal Management under the provisions of the “National Archives of Australia – Records Authority – Social Security Appeals Tribunal Job no 2006/00118635, June 2008”. Pursuant to s 177 of the Social Security (Administration) Act 1999 as it was on 14 April 2015, the pro-forma letter used by the SSAT included in it information setting out any application for review by this Tribunal must be made within 28 days pursuant to s 29(2) of the AAT Act.

5. The computer screenshot also indicated that the SSAT’s decision had been despatched to WFCN’s post office box address in the [unnamed State/Territory].  WFCN said at the hearing that she had been living in the [unnamed State/Territory] at this time.  There was no dispute raised by WFCN that this was the incorrect postal address for her at the time this decision was made.  In fact, it was the postal address provided by WFCN to the SSAT.

6. Based on the above, the Tribunal is satisfied that the SSAT decision and pro-forma covering letter referring to the 28-day time limit for lodging an application for review to this Tribunal was posted to WFCN at the correct postal address on 25 March 2014, after the SSAT made its decision.  On this basis, the Tribunal finds that a copy of the SSAT decision was given to WFCN at the latest by the end of the first week of April 2014 (to allow a generous period of time for the delivery of those documents by ordinary post) and consequently, that the time limit for her to lodge her application for review had expired by the end of May 2014.  WFCN lodged her application for review at the end of March 2019.  Accordingly, the Tribunal finds that WFCN’s application was lodged four years and ten months out of time.

7. The Tribunal is satisfied that WFCN did not have an acceptable explanation for the four-year and ten-month delay in lodged her application for review with this Tribunal, because the SSAT decision and pro-forma letter had been sent to her by the end of the first week of April 2014.  WFCN had an opportunity in the remaining weeks of April 2014, had she turned her attention to this correspondence at the relevant time, to pursue a review of the SSAT decision, or alternatively, in the months to follow, if her personal circumstances had prevented her from lodging an application immediately, to request an extension of time to lodge an application out of time at some point during the remainder of 2014.

8. Accordingly, the Tribunal concludes that WFCN did not have an acceptable explanation for the delay and that this factor weighs against the Tribunal granting WFCN’s application for an extension of time to lodge an application with the Tribunal.

Merits of WFCN’s case

1. WFCN disputes that the Debt was properly raised against her and also that it should not be recovered from her.  

2. The Tribunal has considered paragraphs [26] to [34] of the Secretary’s Outline of Submissions. The Secretary contends that the Debt was properly raised against WFCN because she was not entitled to receive Austudy payments from 29 July 2013 to 22 October 2013 as she did not satisfy the activity test contained in s 568(a) of the Act.

3. WFCN took no issue with the fact that she had not studied full time as from 29 July 2013, subject to the matters set out in paragraph [35]. In WFCN’s written submission attached to her application form to this Tribunal (consistent with the submission she made to the SSAT), she stated as follows:

   In 2013 I commenced a full time Masters program at [University].  I was notified by the University at the end of June/early July 2013 that the standard of my work was not considered acceptable for Masters level, that I would not be enrolled full time for semester 2 and I was out of the Master’s program.  This information devastated me, and by that time, I was physically and emotionally spent as well…

4. WFCN was overpaid Austudy payments because Centrelink was not made aware that she had ceased studying until about 23 October 2013.

5. The Tribunal also notes the submissions set out in paragraph [32] and [33] of the Secretary’s Outline of Submissions to the effect that WFCN was not qualified for a Student Start-up Scholarship payment for the period 29 July 2013 to 22 October 2013. This was because she was not qualified for Austudy for the period and eligibility for the scholarship payment hinged on whether she was eligible to receive Austudy payments.

6. At the hearing, WFCN queried whether she remained eligible for Austudy payments for some time after 29 July 2013 on the basis that she should be regarded as a “concessional study-load student”. Taking into account the wording of s 569A of the Act, the Tribunal considers that WFCN will face a number of significant challenges in pursuing her substantive application on this basis.

7. The Tribunal notes that the Department had recorded that WFCN had a study workload of 0.25 from 7 August 2013 (refer T-Document T5) and 0 from 30 August 2013 (refer T-Documents T6). WFCN did not dispute this assertion of fact when it was put to her on the third day of the extension of time hearing. The Tribunal will consider for the present purpose that WFCN is able to establish this as a matter of fact. 

8. However, the definition of “concessional study-load student” as set out in s 569D of the Act required that in order for her to be considered a “25% concessional study-load student” she had to be enrolled in the course for a particular study period (i.e. and not some part of it). WFCN also needed to undertake at least one quarter of it in circumstances where an officer in the Commonwealth Rehabilitation Service or an appropriate medical practitioner who had a detailed knowledge of her physical condition had stated, in writing, that she had a substantial physical disability and could not successfully undertake the normal amount of full-time study in respect of the course because of the disability; or a medical practitioner specialising psychiatry had stated in writing that she had a substantial psychiatric disability and could not successfully undertake the normal amount of full-time study; or a psychologist had stated in writing that she was intellectually disabled and could not undertake the normal amount of full-time study. 

9. Some considerable time was spent on the third day of the hearing reviewing all of the medical evidence that this Tribunal had been provided with, and seeking to address it, one-by-one, with WFCN, to see whether it could support her substantive case if an extension of time were granted and her substantive matter were to proceed.  The Tribunal also undertook a further review of this material following the hearing, including the medical report sent to it on 31 May 2019.

10. Upon review, the Tribunal has been unable to identify any medical evidence that would provide WFCN with a reasonable chance of being able to establish that she should have been regarded as a “25% concessional study-load student” for all (or any) part of Semester 2 in 2013.  The preliminary impression formed by this Tribunal is that the medical evidence does not certify that WFCN’s physical or psychiatric condition during Semester 2 of 2013 met the definitional requirements of this provision, even if it had affected her functioning at a general level.   Some of the medical evidence referred to her position during a time frame that was not relevant for present purposes.

11. On balance, the Tribunal considers that WFCN’s prospects of being able to establish that the Debt was not properly raised, are poor.

12. The Tribunal has also considered the merits of the other aspect of WFCN’s case regarding whether the Debt should be recovered from her. This involved a consideration of whether the Debt should be written off or waived under s 1236 or s 1237A of the Act based on the available evidence.

13. Firstly, the Tribunal was unable to identify any evidence suggesting that the circumstances listed under s 1236(1A) of the Act applied to WFCN. For this reason, the Tribunal considers it unlikely that the Debt will be written off under s 1236 if her application proceeds to a substantive hearing.

14. Secondly, the Tribunal was unable to identify any evidence suggesting that the Debt arose attributable solely to an administrative error made by the Commonwealth. Instead, the Debt arose because WFCN did not keep Centrelink informed, in a timely manner, about the change in her study load. For this reason, the Tribunal considers that the Debt is unlikely to be waived under s 1236A of the Act if WFCN’s case were permitted to proceed to a substantive hearing.

15. Finally, the Tribunal has considered whether WFCN might be able to establish that “special circumstances” existed (other than financial hardship) which would make it desirable to waive the Debt under s 1237AAD of the Act. The Secretary had accepted that WFCN has met the requirements under ss 1237AAD(a)(i) and (ii) of the Act as there was no evidence that the Debt resulted from her knowingly making a false statement or representation or failing or omitting to comply with a legislative requirement. However, the Secretary contends that while WFCN’s situation was difficult, it did not constitute “special circumstances” which were either “unusual, exceptional or uncommon” being sufficient enough to distinguish her circumstances from those of other social security recipients.

16. The Tribunal has reviewed the written submissions provided by WFCN and read the numerous supporting documentation provided by her and the Secretary.  The Tribunal accepts that at the relevant time, WFCN was affected by her back condition and surgery.  She was also disappointed by the decision of the University not to enrol her for Semester 2 of 2013 based on an assessment of the standard of her work at that time.  In her written submission, WFCN said she turned off her phone and did not speak to her family for weeks.  She stated (refer page T-Document T4/page 21) that “Notifying Centrelink as to the change to my circumstances did not occur to me as I didn’t even know I needed to”.  The Tribunal is unable to accept this last contention of WFCN given that she had received letters from Centrelink informing her of her obligation to notify it if her circumstances in relation to her study changed.

17. The Tribunal notes WFCN’s statement in her submission that after she was removed from the full-time course, she negotiated with [disability services] at the University and was enrolled for the second semester of 2013 on a part time basis, so to her mind she was still undertaking study and should have been eligible for Austudy.  The Tribunal considers that if WFCN was able to undertake those negotiations at this time, it follows that she was also able to call Centrelink to tell them what was happening and to advise them of her changes to her study load.  On 30 August 2013, her study load reduced from 0.25 to 0 and still WFCN did not contact Centrelink to advise them that she was no longer studying.

18. In conclusion, the Tribunal was unable to identify any circumstances that are likely to be considered “special circumstances” if this matter were to proceed to a substantive hearing. The Tribunal considers that WFCN is unlikely to be able to establish that the Debt or some part of it should be waived under s 1237AAD of the Act.

19. For the reasons set out in the above paragraphs, the Tribunal considers that WFCN’s overall prospects of success of her substantive case are poor, based on the preliminary assessment of the evidence and submissions undertaken.  Accordingly, this factor weighs against the Tribunal granting WFCN’s extension of time application.

Resting on rights

1. In previous decisions, the Tribunal has expressed that an applicant cannot simply rest on his or her rights to seek a review, do nothing, and then seek the indulgence of the Tribunal – see Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Clinic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381.

2. The Tribunal is willing to accept that through no fault of the SSAT, WFCN has, for whatever reason, either not collected or opened the SSAT letter attaching its decision made in March 2014, and was operating under the belief that no such decision had been made.  However, it is extremely difficult to reconcile why WFCN made no attempt in the four or so years, to follow up what decision had been made in relation to her SSAT application for which she participated in a substantive hearing.  This was a matter pointed out and put to WFCN by the Secretary’s representative on the third day of the extension of time hearing. 

1. The Tribunal acknowledges that over the last four or so years, WFCN has had a lot going on in her life as evident from the detailed submissions attached to her application and the time line provided by her with the supporting documents forming Exhibit “A1”.  However, upon review of those matters, the Tribunal is satisfied, on balance, that to some degree, WFCN has rested on her rights.  Whilst not forming a critical factor for the Tribunal in this case, the Tribunal considers that to a certain extent, it weighs against granting an extension of time to WFCN to lodge an application for review.

Prejudice to the respondent

1. The Secretary contended that the delay in this case did not cause any prejudice. This factor weighs in favour of granting WFCN’s extension of time application to lodge an application for review.

Wider prejudice to the general public in terms of disruption to established practices

1. The Tribunal considers that the general public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty, if an extension of time to lodge an application is granted where the justice of the case does not permit that this should occur. 

2. In this case, the length of the delay was excessive.  There have been many cases decided by this Tribunal where the delay has been significantly shorter than the delay in WFCN’s case (for some of them shorter by the order of two or three years), where the Tribunal has refused to grant an extension of time to lodge an application for review.  The Tribunal accepts that each case must be assessed based on its individual circumstances, however, this factor does place some weight in favour of not granting an extension of time for lodging an application for review to WFCN. 

conclusion

1. The Tribunal considers that WFCN’s explanation for the delay is not acceptable, and that the period of delay (being four years and ten months) is very significant.  The Tribunal has formed a preliminary view that the prospects of WFCN succeeding in her substantive application are poor, for the reasons outlined above. The Tribunal acknowledges that there has been no prejudice suffered by the Secretary in the delay but the remaining factors referred to above, weigh overwhelmingly in favour of refusing WFCN’s application for an extension of time to lodge an application for review with the Tribunal.  The Tribunal is satisfied that it would not be a beneficial use of the time and resources of both parties to this application and of the Tribunal to permit WFCN’s application to be lodged and proceed to a full hearing.

2. Accordingly, on balancing up the factors, the Tribunal is not satisfied that it is reasonable in all of the circumstances to grant an extension of time to WFCN.  Accordingly, her application for an extension of time to lodge an application for review is refused and she is not permitted to lodge her application for review on 31 March 2019 as she has sought to do. 

   I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

Associate

Dated: 5 June 2019

Dates of hearing:

1, 15 and 30 May 2019

Applicant:

Self-represented by telephone

Advocates for the Respondent:

Vincci Chan and Ailsa Bramley

Solicitors for the Respondent:

Department of Human Services, Litigation and Information Release Branch