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

[2020] AATA 429

Wilson and Secretary, Department of Social Services (Social services second review) [2020] AATA 429 (10 March 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0333

Re:Ebony Wilson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr R Reitano, Member

Date:10 March 2020

Place:Sydney

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), and upon written application by the Applicant dated 16 January 2020, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 16 January 2020.

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Mr R Reitano, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time to lodge application for review – principles to be applied – significant delay – where no prejudice from granting an extension – some prospects of substantive matter succeeding – extension of time granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Mr R Reitano, Member

10 March 2020

1. Miss Ebony Wilson (Miss Wilson) has applied to the Tribunal for an extension of time to file her application for a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1) on 11 April 2019. That decision affirmed the decision of an authorised review officer of Centrelink to affirm the decision to reject her claim for a carers allowance in relation to the care of her daughter, Miss FW.

2. I have decided to extend the time for the making of an application for the review of the decision of AAT1 to 16 January 2020. My reasons for that decision follow.

   Background

3. Miss Wilson lodged a claim for payment of carers allowance concerning the care of her daughter Miss FW on 31 July 2017 and on 23 August 2017.

4. On 7 February 2018 and 4 July 2018, some six and ten months later, Centrelink rejected her claims because it was said that her responses to the Care Needs Assessment Forms produced a result that meant that she did not attract what is described as a qualifying rating of ‘intense’. That rating required a score of more than 85 points.

5. Miss Wilson sought a review of those decisions and on 24 January 2019 an authorised review officer rejected her claim. The following day Miss Wilson made an application for a review of that decision to the Tribunal which review was dealt with by AAT1.

6. On 11 April 2019 AAT1 affirmed the decision of the authorised review officer because Miss Wilson’s responses in the Care Needs Assessment Form completed by her were not more than 85 points. The Tribunal noted in its decision that several matters were relevant to its decision, including the fact that some of the questions were not answered by Miss Wilson and that others were matters that Miss Wilson amended. AAT1 then reconsidered the responses in the amended Care Needs Assessment Form and assigned them a rating of 42, that is a little under half of the required 85 points.

7. On 3 September 2019 Miss Wilson filed an application for the review of the decision of AAT1 which was about 4 months out of time. By the time Miss Wilson sought an extension of time on 16 January 2020 she was almost 8 months out of time.

8. The precise circumstances about what happened between the decision of AAT1 on 11 April 2019, the filing of the application for review on 3 September 2019 and the application for an extension of time on 16 January 2020 are a little unclear, but it is important to say something about one of them. Miss Wilson says, and I accept, that she tried on three occasions to file an application for review by email. I do not doubt her explanation for not following things up in a timely way was concerned with her lot in life as a single mother with three young disabled children aged between about 3 years of age and 8 years of age. Presumably the attempts she made to file that application happened between 11 April 2019 and 3 September 2019.

9. On 31 May 2019 Miss Wilson lodged a further claim for a carers allowance with Centrelink in relation to the care of her daughter Miss FW. This was subsequently granted with a date of effect of 31 May 2019.

10. It is important in my consideration of the matter that a little less than two years had elapsed between the successful and unsuccessful applications for the carers allowance; her daughter Miss FW was a little over 5 years of age at the time the first application was made and had just turned 7 years of age at the time of the second application which, I add, was successfully made. Moreover, the score achieved in 2019 was significantly higher than both the 85 points required, and the 42 points achieved in 2019 when the matter was considered by AAT1.

    THE TEST

11. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) requires an application for review of a decision to be made within 28 days of the decision being given to the applicant. Section 29(7) allows the Tribunal to extend the time for the filing of an application; if the Tribunal is satisfied that it is reasonable in all the circumstances to do so The objective test laid down by ss.29(7) has been well rehearsed in the authorities since the seminal Judgement of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344. The question involves an objective weighing of all relevant factors.

    CONSIDERATION

12. It is obvious that there are factors here that weigh against an extension of time being granted: the delay of eight months being the most significant. The delay is significant, but it is in the context of no consequent or demonstrable prejudice for the Secretary. Delay is not prejudice. I accept that there should ordinarily be finality in administrative decision making. Finality in administrative decisions for its own sake is to be eschewed especially if there is sound reason to depart from it.

13. It is relevant that Miss Wilson filed her application for review on 3 September 2019 which would have meant her delay was slightly less than 4 months. It is also relevant that she tried to file her application at least three times but was unsuccessful in doing so.

14. The most significant matters that weigh in favour of extending time to file an application are that the Secretary is unable to point to any prejudice that would result from granting an extension and that it appears, at least on the face of it, and without determining the matter, that Miss Wilson has some prospects of succeeding should an extension be granted. The fact that Miss Wilson’s application for a carers benefit was successful when she re-applied for it less than two years later when her daughter Miss FW was only two years older engenders a feeling of unease about the correctness of the decision of AAT1.

15. It is true that Miss Wilson’s responses in the 31 May 2019 application cannot be used to establish a qualification for the benefit in 2017, but nonetheless the radically different results creates a need to consider the matter afresh to ensure that the outcome was the correct or preferable one. This involves no assumption by the Tribunal that circumstances in 2017 were the same in 2019. Rather it involves a common-sense assessment of the need to, at least, consider how things could have been so radically different over such a short period of time with a view to ensuring that the decision of AAT1 was the correct or preferable one. It may well be that there is some sound explanation for that difference, but at this stage that is not apparent as things stand. Miss Wilson on the face of things has a respectable argument for succeeding.

16. It is also important that as the claim stands now it relates only to the period 31 July 2017 to 31 May 2019. Miss Wilson has no other avenues to seek the payment that she says she is entitled to for that period.

    CONCLUSION

17. In all the circumstances I am satisfied that it is reasonable to extend the time for filing of Miss Wilson’s application for review to 16 January 2020.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R Reitano, Member

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Associate

Dated: 10 March 2020

Date of hearing:	25 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms C Campbell, Department of Human Services