Williams and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1962
•26 October 2017
Williams and Secretary, Department of Social Services (Social services second review) [2017] AATA 1962 (26 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4808
Re:Peter Williams
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:26 October 2017
Place:Sydney
The application for an extension of time is refused.
.................[sgd]...................................................
Dr L Bygrave, Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether substantive matter has merit – newstart allowance – overpayment – whether debt should be waived – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Social Security Act 1991 (Cth) ss 8, 1068, 1223, 1236, 1237A, 1237AAD
CASES
Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Groth v Secretary, Department of Social Security [1995] FCA 1708Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Dr L Bygrave, Member
26 October 2017
INTRODUCTION
On 23 August 2017, Mr Peter Williams lodged an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) on 29 March 2017.
The SSCSD decision on 29 March 2017 affirmed a decision made by the Department of Human Services (Centrelink) on 21 November 2016 that asked Mr Williams to repay a Newstart Allowance (NSA) debt of $2,401.30.
The Secretary opposes the extension of time sought.
BACKGROUND
Mr Williams receives payments of NSA.
On 10 October 2016, Centrelink raised and recovered a debt of $5,120.45 because the correct amount of Mr Williams’ earnings was not taken into account in his NSA payments for the period 21 July 2010 to 25 June 2012. An authorised review officer of Centrelink reviewed and varied the decision on 21 November 2016, reducing the debt to $2,401.30.
The SSCSD affirmed Centrelink’s decision on 29 March 2017 and posted the decision to Mr Williams on 10 April 2017.
On 23 August 2017, Mr Williams lodged an Application for Extension of Time for Making an Application for Review of Decision with the General Division of the Tribunal.
The application was heard in Sydney on 19 October 2017. Mr Williams attended the hearing by telephone and was self-represented.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with s 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
Pursuant to s 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] as follows:
(a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(b)a distinction is to be made between an applicant who has ‘rested on his rights’ and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether the respondent or the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application;
(f)‘considerations of fairness as between the applicant and other persons’ in a similar position.
These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.
All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.
REASONS FOR DELAY
The delay in Mr Williams seeking a review of the decision by the SSCSD is three months after the 28 days limit.
Mr Williams provided the following explanation for the delay:
The decision was wrong. I being [sic] robbed of money that I don’t owe because of your mis-calculations…
At the Tribunal hearing, Mr Williams said that he initially ‘felt demoralised’ but later thought about it and decided he wanted to appeal the SSCSD decision.
I find that the reasons for the delay in lodging a review of the decision did not prevent Mr Williams from seeking a review of the decision.
While this principle weighs against the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both the Secretary and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I have regard to Chouman and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 222, in which the Tribunal stated:
... to grant an extension of time in this matter would be unfair to other applicants in similar situations who have not submitted late applications.
The grant of an extension of time in this matter would set an unwelcome example and cause inconvenience to Centrelink and the Tribunal in having to deal with large numbers of such applications. There is a general public interest in ensuring finality in decision-making.[1]
[1] [2009] AATA 222, paras [30-31].
I accept that the Secretary and the general public would have expectations about the finality of the decision-making process in relation to Mr Williams’ application. However, given the delay is three months, I am satisfied that there would be limited prejudice to the Secretary and the general public if the extension of time is granted. This factor neither weighs against or for the applicant.
MERITS OF SUBSTANTIVE MATTER
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
The issues in the substantive application are whether Mr Williams was overpaid NSA in the amount of $2,401.30 for the period of 21 July 2010 to 25 June 2012; and if so, whether there are any grounds to waive the debt.
Relevant legislation and consideration
The rate of NSA is calculated in accordance with s 1068 of the Social Security Act 1991 (Cth) (the Act) and is affected by factors such as a person’s income. Income is defined in s 8(1) of the Act as an amount ‘earned, derived or received’ by a person for the person’s ‘own use or benefit’.
Mr Williams provided a payroll report to Centrelink on 20 October 2016 that set out the income he received from 4 July 2010 to 30 June 2012. Centrelink used this payroll report to calculate that Mr Williams had been overpaid NSA in the amount of:
(a)$490.85 for the period 23 July 2010 to 16 September 2010; and
(b)$1,910.45 for the period 14 December 2010 to 25 June 2012.
The Secretary contended Centrelink correctly recalculated the rate of NSA Mr Williams was entitled to receive for the period of 23 July 2010 to 25 June 2012, revealing that he was overpaid in the amount of $2,401.30 for that period.
Mr Williams told the Tribunal the earnings set out in his payroll report were correct but ‘there was no way he owed money’ because he ‘had reported his income’. While Mr Williams viewed the calculation by Centrelink as wrong, he provided the Tribunal with no evidence to substantiate and explain his claim.
I have considered the payroll information Mr Williams provided to Centrelink as well as the calculations by Centrelink, which set out the amounts of NSA paid to Mr Williams and the amounts he was entitled to receive in the periods of 23 July 2010 to 16 September 2010 and 14 December 2010 to 25 June 2012.
Based on the evidence before the Tribunal, I am satisfied Mr Williams was overpaid NSA in the amount of $2,401.30 for the period of 23 July 2010 to 25 June 2012. I am also satisfied this overpayment is a debt due to the Commonwealth under s 1223(1) of the Act.
Are there any grounds for writing off or waiving all or part of the debt?
Section 1236 of the Act provides the Secretary may write off a debt in particular circumstances such as whether it is irrecoverable at law, or the debtor has no capacity to repay the debt or their whereabouts are unknown, or it is not cost effective for the Commonwealth to take action to recover the debt. There is no evidence before the Tribunal to suggest that any of these conditions are met and I am not satisfied that the debt should be written off.
Pursuant to s 1237A of the Act, the Secretary must waive the right to recover all or part of a debt if it is ‘attributable solely to an administrative error made by the Commonwealth’. As there is no evidence before the Tribunal of sole administrative error by the Commonwealth in relation to this debt, I am not satisfied the debt should be waived due to administrative error.
Section 1237AAD of the Act provides the Secretary may waive the right to recover all or part of a debt in special circumstances, other than financial hardship alone. Relevantly, in Groth v Secretary, Department of Social Security [1995] FCA 1708 the Federal Court said:
… The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss… it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied... [emphasis added].[2]
[2] [1995] FCA 1708.
At the Tribunal hearing, the Secretary’s representative stated the current balance of Mr Williams’ debt was $1027 and he was repaying the debt in the amount of $82.59 each fortnight from his NSA payments.
Mr Williams told the Tribunal he currently had health problems but acknowledged he was able to travel to the Philippines in June/July 2017 for approximately four weeks; his airfare and accommodation were paid for him.
Unfortunately for Mr Williams, there is nothing which takes his situation out of the ‘usual or ordinary case’ and no occurrence that is ‘unfair, unintended or unjust’ that would support him experiencing ‘special circumstances’ and the waiver of his debt.
In considering all of the relevant circumstances and weighing the available evidence, I am of the view that Mr Williams’ substantive matter has limited merit. This weighs against the extension of time being granted.
CONCLUSION
Taking into account all of the information before me, including the explanation of the delay and the merits of the substantive application, I am not satisfied that it is reasonable in the circumstances to grant the extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
...........................[sgd].........................................
Associate
Dated: 26 October 2017
Date(s) of hearing: 19 October 2017 Applicant: In person Solicitors for the Respondent: Ms J Eslick, Department of Human Services
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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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Remedies
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