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

Wiltz and Secretary, Department of Social Services (Social services second review) [2020] AATA 4971 (8 December 2020)
Division:GENERAL DIVISION
File Number: 2020/5629
Re:Charles Wiltz
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:8 December 2020
Place:Perth

The Tribunal refuses to grant the Applicant’s application to extend the time for the making of an application to the Tribunal for review of the AAT1 Decision dated 5 June 2020 as the Tribunal is not satisfied that it is reasonable in all the circumstances to do so pursuant to
s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – factors that are relevant when considering an extension of time – awareness of appeal rights and explanation for delay – length of delay – prejudice to the Respondent Secretary and public – Applicant does not have an arguable case – Tribunal not satisfied extension of time reasonable in all the circumstances – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A(b), 2A(d), 29(1)(d), 29(2), 29(7)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Social Security Act 1991 (Cth) – ss 8, 8(1), 8(2), 8(4), 8(5), 8(8), 1064, 1072, 1223, 1237A, 1237AD

CASES
Brown v Commissioner of Taxation (1999) 42 ATR 118
Comcare v A’Hearn (1993) 45 FCR 441
Hickey v Australian Telecommunications Commission (1983) 47 ALR 517
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Lucic v Nolan (1982) 45 ALR 411
Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76
Re Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 121 ALD 202
Re Johnson and Commonwealth [1990] AATA 1
Re Kim and Minister for Immigration and Border Protection [2018] AATA 155
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Rollins and Principal Member of the Veterans’ Review Board (2011) 54 AAR 91
Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Zizza v Commissioner of Taxation (1999) 42 ATR 371

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
8 December 2020
THE APPLICATION

The Applicant is seeking to appeal a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) dated 5 June 2020.
The AAT1 affirmed a decision of Services Australia (Centrelink), formerly the Department of Human Services, dated 12 September 2019, to raise two debts for the overpayment of disability support pension (DSP) during the Relevant Periods of 1 May 2018 to 31 May 2019 (debt amount of $22,598.80) and 1 June 2019 to 30 August 2019 (debt amount of $5,638.61) (R1/Annexure D).
BACKGROUND
The Applicant started receiving a DSP in 2000. While he was in receipt of a DSP, the Applicant received letters from Centrelink advising him that he needed to notify Centrelink of any income he received from any source. For example, a letter dated

22 June 2017 advised the Applicant, amongst other things, that he should notify Centrelink if he was receiving any earnings, pensions, annuities or other income including “other government payments” and “income from other countries” (R1/Annexure A, 2).
The Secretary also submitted that the Applicant received similar letters during the Relevant Periods on 28 July 2018, 3 September 2018, 16 November 2018 and

10 December 2018 (R1/[6]).
The written reasons for the AAT1 Decision further explained that (R1/Annexure G, 41):
On 6 May 2019 the Department of Veterans Affairs of the United States of America made a “rating decision” in respect of Mr Wiltz’s bipolar disorder and his cannabis use disorder. On 7 June 2019 it wrote to him and informed him that he had been granted a “VA benefit” and he would be paid US$2,973.86 per month from 1 May 2018, and US $3,057.13 per month from 1 December 2018 [R1/Annexure B]. On 9 July 2019, Mr Wiltz informed Centrelink that he had received a lump sum payment. On 12 July 2019 he provided documentation concerning his VA benefit.
On 11 September 2019, Centrelink updated the Applicant’s record to take the Applicant’s VA Benefit payments into account (R1/Annexure E, 37). This resulted in overpayments of DSP during the Relevant Periods. That was because Centrelink considered the payments to be “income” for the purposes of social security law. On 12 September 2019, Centrelink raised two debts of $22,598.80 and $5,638.61 for the overpayment of DSP during the Relevant Periods (R1/Annexure D).
An authorised review officer of Centrelink reviewed the decision made on 12 September 2019 and affirmed the decision on 14 February 2020 (R1/Annexure E).
The Applicant then sought review by the AAT1. However, on 5 June 2020, the AAT1 affirmed the decision of 14 February 2020 (A1) (AAT1 Decision). The AAT1 gave oral reasons for its decision. On 5 June 2020, the record of the AAT1 decision was sent to the Applicant with a letter of the same date (A1).
On 16 September 2020, the Applicant filed an application seeking review of the AAT1 Decision in the General Division of the Tribunal (AAT2), and an extension of time to apply for the review. An extension of time application was required because the 28-day time limit for filing the application had expired on 3 July 2020. Therefore, at the time the Applicant’s application was filed it was 75 days late.
Written reasons were subsequently provided to the Applicant on 17 September 2020 (R1/Annexure G).
An interlocutory hearing to determine the extension of time application was held on

1 December 2020. The Applicant represented himself and the Respondent was represented by Ms Joseph from Services Australia. The parties appeared by telephone.
THE ISSUE
The issue is whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time within which the Applicant’s application to the AAT2 to review the AAT1 Decision may be made.
The Respondent opposes the extension of time.
RELEVANT LEGAL PRINCIPLES
Prescribed Time
A person seeking review of a decision must lodge an application with the Tribunal within the prescribed time of 28 days (s 29(1)(d) and s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Extension of Time
Section 29(7) of the AAT Act provides that:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
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.
A frequently cited authority is Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (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) (ADJRA). In Hunter Valley, Wilcox J (at 348-9) set out principles that were intended to be “non-exhaustive guidelines” (see Brown v Commissioner of Taxation (1999) 42 ATR 118 per Hill J at 126-7 [32]-[34] (Brown)) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J (at 348), the principles were intended “… to guide, not in any exhaustive manner, the exercise of the court's discretion”.
These principles are substantially like those applied in decisions concerning s 29(7) of the AAT Act such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 (Mulheron). In Mulheron at 314 [17]-[18], President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 (Johnson):
(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.
Some flexibility is permitted in applying the principles. In Mulheron, President O’Connor J stated, at 314 [18], that “[t]he balancing of these factors will depend on the individual case”. Thus, the facts and circumstances of a specific case may warrant particular attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all. In Zizza v Commissioner of Taxation (1999) 42 ATR 371, the Full Court of the Federal Court, when discussing the principles set out by Wilcox J in Hunter Valley, observed (at 375-6 [13]) that: “[i]t would be an error to regard the summary as complete, or to treat each of the 6 principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation”.
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 pre-condition” to the success of the application for an extension of time (Comcare v A’Hearn (1993) 45 FCR 441 at 444).
CONSIDERATION
Length of delay
In accordance with ss 29(1)(d) and 29(2) of the AAT Act, the Applicant was required to lodge his application for review of the AAT1 Decision within 28 days from the date of receipt of the AAT1 Decision (dated 5 June 2020). This means that the last day for the Applicant to lodge his application for review of the AAT1 Decision on time was 3 July 2020.
The Applicant’s application for an extension of time was lodged with the Tribunal on 16 September 2020. This is a delay of 75 days.
The Tribunal notes the following statement of French J (as he then was) in Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 (at 96). His Honour stated the following in the context of an extension of time application for review under the ADJRA:
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.
The length of the delay of 75 days is significant, and to grant an extension after such a time may be inconsistent with the necessity of certainty and finality in administrative decision making. This weighs against the Tribunal exercising its discretion to grant an extension of time.
Awareness of appeal rights and explanation for the delay
The Applicant was sent a letter dated 5 June 2019 with the AAT1 Decision. The letter stated that he could apply for a second review of the decision and that, “[t]here are time limits for the filing of an application for review (28 days from giving of the statement of the AAT’s decision)” (R1/Annexure F).
At the interlocutory hearing on 1 December 2020, the Applicant agreed that he did receive the letter, but that he did not know that he could appeal. He stated that when he realised what the decision was, he was angry with the decision, stopped reading the letter and “tossed” it in the bin.
In his application for an extension of time the applicant gave the following reason for requesting the extension of time:
I was not aware of the 28 day time limit and I thought the decision from AAT WAS FINAL AND I WANT CIVIL ACTION IF NOT RESOLVED SIMPLE
CHARLES WILTZ
HUMAN THAT WAS PHYSICALLY DAMAGED IN USA MILITARY
The Tribunal finds that the Applicant did receive the letter dated 5 June 2020 advising him of the 28-day time limit for lodging an appeal. In the Tribunal’s opinion, a failure to read the letter advising the Applicant of his appeal rights because he was angry upon receiving the decision is not an adequate reason to grant an extension of time, and weighs against the Tribunal exercising its discretion to grant the extension of time.
Prejudice to the Respondent or the General Public
The Secretary has conceded that the Secretary would not be prejudiced by the extension of time being granted. However, the absence of prejudice is not itself enough to justify the granting of an extension (Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523 cited in Hunter Valley at 349).
As noted by Deputy President Todd in Johnson at [19] (see paragraph [18] above), any wider prejudice to the general public in terms of disruption to established practices is also a relevant consideration for the Tribunal in considering whether or not to grant an extension of time. The Tribunal further notes an objective of the Tribunal is to provide a mechanism of review that “promotes public trust and confidence in the decision-making of the Tribunal” (s 2A(d) of the AAT Act). If lengthy extensions are granted by the Tribunal, this confidence may be undermined. Fairness as between the Applicant and other persons in a like position is also relevant. Applicants who have lodged applications out of time have previously been denied review by the Tribunal, and others may not have sought review at all because the statutory time limit has passed.
In addition, a further 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). The 28-day time period set out in s 29(2) of the AAT Act is consistent with the achievement of that objective. However, in this case the delay is 75 days, which is, in the Tribunal’s opinion, a considerable delay and therefore inconsistent with that objective. The Tribunal finds that the wider prejudice to the general public weighs against the granting of the extension of time.
Merits of the substantive application
In Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 Von Doussa J relevantly stated, at 122, that:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.
The Tribunal is not required to undertake a substantive review of the merits of the application but rather should assess whether the applicant has an arguable case (Brown at 131 [56]).
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, Re Rollins and Principal Member of the Veterans’ Review Board (2011) 54 AAR 91 (Rollins) and Re Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 121 ALD 202).
The Applicant argued at the interlocutory hearing on 1 December 2020 that the monies he received from his United States VA Benefit should not be considered as income or assets. He stated that the monies were “not income” but were in the nature of “statutory compensation” for the damage done to his body whilst he was in the United States military and that he does not owe Centrelink any money. In summary, the Applicant’s view was that he did not believe that the Australian government should be able to access money he received by way of statutory compensation from the United States government. However, the question is not how the Applicant believes his VA Benefit monies should be defined, but whether they are regarded as income under the Social Security Act 1991 (Cth) (Social Security Act).
The rate of DSP is worked out using the Rate Calculator contained within s 1064 of the Social Security Act. In summary, a person’s income and assets must be considered when calculating a person’s eligibility for, and rate of, DSP.
“Income” is defined in s 8(1) and s 1072 of the Social Security Act. Section 8 provides:
income, in relation to a person, means:
(a)an income amount earned, derived or received by the person for the person's own use or benefit; or
(b)a periodical payment by way of gift or allowance; or
(c)a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
Sections 8(4), 8(5) and 8(8) list amounts that are “excluded amounts” which are not considered income for the purpose of the Social Security Act. Some types of military pensions are listed in this section, but not the VA Benefit that the Applicant was receiving.
Section 8(2) of the Social Security Act relevantly provides:
(2)A reference in this Act to an income amount earned, derived or received is a reference to:
(a)an income amount earned, derived or received by any means; and
(b)an income amount earned, derived or received from any source (whether within or outside Australia).
In summary, income is broadly defined, and includes income received by any means and from all sources (including from outside Australia). Also, the type of benefit the Applicant is receiving from the United States is not excluded from the definition of income. Thus, it appears to the Tribunal that the Applicant’s VA Benefit was properly regarded as income, and that when it was considered it had the effect of reducing his rate of DSP resulting in the overpayment.
Further, on 4 December 2020, pursuant to a direction of the Tribunal, the Secretary provided calculations to the Tribunal showing how this debt was calculated, and the Tribunal is satisfied that the correct amount of debt was raised. Unfortunately for the Applicant, the effect is that the Applicant is likely to have received monies to which he was not entitled due to his United States VA Benefit being regarded as income, making the overpayments debts due to the Commonwealth (s 1223 of the Social Security Act). Based on the limited evidence currently before the Tribunal, it does not appear that the debts arose due to a sole administrative error made by the Commonwealth and so recovery cannot be waived under s 1237A of the Social Security Act. Nor do there appear to be any special circumstances that would make it appropriate to exercise discretion to waive the debt under s 1237AAD of the Social Security Act.

In summary, it does not appear to the Tribunal that the Applicant has an arguable case. In other words, he appears to have limited prospects of success if the matter were to proceed to a substantive hearing.
Alternative avenues of relief
When considering an extension of time application, the Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant (see, for example, Rollins at 94-5 [18] and Re Kim and Minister for Immigration and Border Protection [2018] AATA 155 at 48).
The Secretary submitted that the Applicant could enter into a debt repayment plan with Centrelink to assist him to repay the debt. The Secretary further submitted that the Applicant is not prevented from applying for further pensions, benefits, or allowances in the future (R1/[60]-[61]). Should the amount of the Applicant’s VA Benefit change in the future, he would also be able to provide that information to Centrelink which may result in an increase to the amount of his DSP.
CONCLUSION
In summary, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time to allow the Applicant to seek review of the AAT1 Decision. The Tribunal has taken into account the following considerations, which in the Tribunal’s opinion, weigh against the granting of an extension of time:
(a)the length of the delay of 75 days, which is substantial;
(b)the Applicant was sent a letter with the AAT1 Decision advising him of his appeal rights;
(c)the Applicant’s explanation for the delay was that he received the letter but did not properly read it and was not aware of the statutory time limit. The Tribunal does not regard this explanation to be sufficient;
(d)although there is limited prejudice to the Secretary, the Tribunal has taken into account the public interest in having finality and certainty in administrative decision-making, and fairness to other applicants in a like position who may have been denied relief, or who may not have sought it in the first place due to the statutory time limit;
(e)the Applicant does not appear to have an arguable case if the matter were to proceed to a substantive hearing; and
(f)the Applicant can enter into a debt repayment plan with Centrelink to assist him to repay the debt. Also, he can make further applications to Centrelink if his income changes in the future.
DECISION
For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application to extend the time for the making of an application to the Tribunal for review of the AAT1 Decision dated 5 June 2020 as the Tribunal is not satisfied that it is reasonable in all the circumstances to do so pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate
Dated: 8 December 2020

Date of hearing: 1 December 2020

Applicant: Self-represented

Representative for the Respondent: Ms A Joseph, Services Australia

[2020] AATA 4971

8 December 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	1 December 2020
Applicant:	Self-represented
Representative for the Respondent:	Ms A Joseph, Services Australia