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

[2024] AATA 3215

Zaidman and Secretary, Department of Social Services (Social services second review) [2024] AATA 3215 (12 January 2024)

Division:                  GENERAL DIVISION

File Number:           2023/4292

Re:  Mina Zaidman

APPLICANT

And  Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  Senior Member K. Parker

Date:  12 January 2024

Place:  Melbourne

The Applicant lodged an application seeking an extension of time for lodgement of an application for review of decision pursuant to sub-s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). For the reasons set out below, the Tribunal has decided not to grant the requested extension of time.

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

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – application for extension of time (EOT) for lodgement of application for review – Respondent opposed EOT Application – Applicant initially sought review of a decision in relation to the Applicant’s claims for the age pension for a past period – substantial delay in lodgement – Applicant informed Tribunal at EOT hearing she no longer intended to lodge an application for review of decision – consideration of other factors – Tribunal not satisfied that it is reasonable in all the circumstances to extend the time for lodgement of the substantive application for review – EOT Application not granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Cases

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member K. Parker 12 January 2024

INTRODUCTION

1.On 30 May 2023, the Applicant, Ms Mina Zaidman, lodged a partially completed and signed AAT Application for Extension of Time for Making an Application for Review of Decision form (EOT Application) with the Tribunal. At that time, it appeared that Ms Zaidman intended to seek review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) dated 10 February 2023 (review number 2022/M175070) (SSCSD Decision). The SSCSD Decision set aside a decision made on 11 August 2022 by an authorised review officer of Services Australia (ARO Decision). The ARO Decision confirmed an earlier decision by Services Australia’s predecessor, Centrelink, on 27 June 2017 (Original Decision) to commence payment of Ms Zaidman’s age pension under the Social Security Act 1991 (Cth) from 12 May 2017 and not from an earlier date in 2016 for which Ms Zaidman sought payment. By way of background, Ms Zaidman had made three claims for the age pension: the first two on 17 March 2016 and 18 April 2016 respectively, and the third on 16 June 2017.

2.The outcome of the SSCSD Decision was to remit this matter back to the Respondent with the following directions intended to get the process of assessing Ms Zaidman’s three claims for the age pension “back on track”:1

(a)Ms Zaidman be informed in writing of the information and documentation that is required in order to decide whether to grant her two first age pension claims made on 17 March 2016 and 18 April 2016;

(b)Ms Zaidman be given a reasonable opportunity to provide that information and documentation; and then

1 SSCSD Decision, [11].

(c)an ARO undertake a review of Centrelink’s decisions to reject Ms Zaidman’s first two age pension claims and also the decision to grant her third age pension claim but only with effect from 12 May 2017 (and not from an earlier date).

3.On 30 May 2023, Ms Zaidman also lodged with the Tribunal, in support of her EOT Application, a copy of a medical letter by Dr Jonathan Pinczower, dated 12 May 2023, which states as follows:

Mrs Zaidman is suffering from vertigo and other symptoms related to stress. I consider that the Centrelink dispute is contributing to her health problems.

She cannot provide contact details about her husband as he lives overseas at an unknown address and they have been separated for over 7 years.

4.From June to September 2023, endeavours were made by the Registry staff of the Tribunal to obtain from Ms Zaidman a fully completed AAT Application for Extension of Time for Making an Application for Review of Decision form and also a completed Application for Review of Decision form in relation to the SSCSD Decision. Those requests by Registry were not met by Ms Zaidman.

5.The Tribunal Registry’s records indicate that, on 15 November 2023, Ms Zaidman informed the Registry by telephone that:

(a)over the past few months, she had been in and out of hospital,

(b)she had undergone eye surgery;

(c)she had to travel to arrange for her mother’s funeral; and

(d)she had found it difficult to sit down and fill out a form.

6.The Tribunal notes that Ms Zaidman sent an email to the Registry of this Tribunal on 20 November 2023 stating as follows:

I am Mina Zaidman who applied for (unpaid -3/5 years since the year 2015) pension and till the year 2023 still did not get anything.

I am not interested in spending more time writing more letters and spending time –time that it's so important to me-particularly now.

All the information is on your tables.

Since I applied for the unpaid pension I am becoming more and more sick- People getting their pensions without any problems ---

I am going to submit a complaint with Services Australia and if I am not satisfied with Services Australia and going to contact the Commonwealth Ombudsman.

I am looking forward to hearing that my unpaid pension is ready for me as it is becoming very funny as to Why i am not having my money like normal people.

I am interested to hear that my pension is ready to collect.

7.On 19 December 2023, the Tribunal was informed that the Respondent opposed the EOT application. The Respondent lodged submissions opposing the EOT with the Tribunal on 3 January 2024, stating that “the justice of the case does not require the exercise of the Tribunal’s discretion to extend the time for making an application. There is no question to be agitated on appeal”.

8.Upon the Tribunal receiving the EOT Application, it was clear that Ms Zaidman had not lodged a substantive application within the 28-day statutory time frame prescribed under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Accordingly, the Registry listed this matter for an interlocutory hearing of an extension of time application (EOT Hearing), which took place before this Tribunal on 11 January 2024. Ms Zaidman appeared at the EOT Hearing and was self-represented. English is her second language. She is fluent in English and did not require an interpreter. The Respondent was legally represented at the EOT Hearing.

9.Ms Zaidman informed the Tribunal at the EOT Hearing, for the first time, that she had no intention of lodging an application for review of decision with the Tribunal, does not have time to do so, and would not be doing so.

10.At the EOT Hearing, the Respondent’s lawyer said that the Respondent relied upon his Statement of Facts, Issues and Contentions dated 3 January 2024 (Respondent’s SFIC), and did not intend to make any further submissions.

11.After hearing from both parties and considering the written material before the Tribunal, the Tribunal has decided not to grant the EOT Application for the reasons set out below.

ISSUE

12.The issue arising in this matter is whether the Tribunal should exercise its discretion under sub-s 29(7) of the AAT Act to extend the time for Ms Zaidman to lodge a substantive application for review of the SSCSD Decision, should she wish to do so.

CONSIDERATION

13.Subsection 29(2) of the AAT Act prescribes a 28-day time limit for lodging an application to the Tribunal for review of a decision. Subsection 29(2) relevantly provides:

Prescribed time for making applications—general

(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or

(b) …

14.Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement of an application for review of decision, if it is satisfied that “it is reasonable in all the circumstances to do so”.

Tribunal may extend time for making application

(7)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.

15.The factors the Tribunal will consider in making this assessment are:2

(a)the length of the delay in lodging an application for review of a decision;

(b)the explanation given for the delay;

(c)the Tribunal’s preliminary impression as to the merits of the prospective application for review of the decision;

(d)whether the Respondent has suffered any prejudice on account of the delay;

(e)whether Ms Zaidman had rested on her rights of review;

(f)public interest; and

2 Hunter Valley Developments v Cohen (1984) 3 FCR 344.

(g)any other matter the Tribunal considers appropriate (such as alternative avenues of review and the new information put forward by Ms Zaidman at the EOT Hearing that she no longer intended to lodge an application for review of decision ).

16.The Tribunal has considered the new information put forward by Ms Zaidman at the EOT Hearing that she no longer intends to lodge an application for review of decision with the Tribunal because she does not have the time to do so and that she would not be doing so. This factor sways the balance of convenience almost entirely in favour of not granting the EOT Application. Logically, there is no point in ordering an extension of time if Ms Zaidman has no intention of lodging an application for review of decision. For completeness, the Tribunal will consider the following additional factors.

17.First, the SSCSD Decision was dispatched by email to Ms Zaidman on 14 February 2023. In terms of the length of the delay occasioned to date in the lodgement of any application for review of decision, the 28-day time limit under s 29 of the AAT Act expired on 14 March 2023. The period of the delay is now over nine months, which is a substantial delay. This weighs heavily against granting the EOT Application.

18.Secondly, the Tribunal must consider any explanation given for the delay in lodgement. The Tribunal finds that the reason Ms Zaidman did not lodge an application for review of decision within the required time frame, or at all, is because she had no intention of doing so. This finding is based on Ms Zaidman’s statement to the Tribunal at the EOT Hearing. This is not an acceptable explanation for the delay in the context of deciding an EOT Application. This factor weighs against granting the EOT Application.

19.Thirdly, in relation to the merits of Ms Zaidman’s foreshadowed application for review of decision, it would be inappropriate to make definitive findings as to the merits of such an application at this stage of considering an EOT Application. Instead, the Tribunal is required to form a preliminary impression about the merits and to form a view about whether such an application, if allowed to proceed, is at least, arguable. The Tribunal is satisfied that this is so. It could not be said that any proposed substantive application would be without merit as it would involve a detailed consideration about whether the presiding member who made the SSCSD Decision should have set aside and remitted the matter for reconsideration by the Respondent subject to the directions made, or whether there was sufficient information before the Tribunal for the member to have set it aside and to have substituted it with a

decision to grant Ms Zaidman the age pension as from the date of her first claim in 2016. Any such application would involve several questions of fact and law to be assessed and determined. The appropriate place for those assessments to occur is at a substantive hearing.

20.The Tribunal does not accept the Respondent’s contention that there is “no question to be agitated on appeal”. While the SSCSD Decision was not adverse to Ms Zaidman’s interests, it did not resolve the issues in dispute between the parties. It merely established a new reconsideration or review process, devised by the SSCSD member, which the member considered appropriate to be adopted by the parties to properly address the matters in dispute between them. Ms Zaidman was not happy with this new process imposed by the SSCSD member. Instead, she wanted to be paid her age pension as from the date of the first claim. She does not wish to be subjected to a new process. At the EOT Hearing, the Respondent’s representative accepted that this statement was intended to be a point going to the merits of any such application for review of decision. Even so, it cannot be said that the prospective application for review of decision would be without merit. Ms Zaidman may or may not succeed in relation to her contentions that there is sufficient information before the Tribunal for her first two age pension claims to be determined and that this is what should take place. But her case is at least arguable.

21.The Tribunal finds that the low threshold of her case being arguable, has been met for the purposes of deciding this EOT Application. This factor weighs in favour of granting the EOT Application.

22.Fourthly, the Respondent could not point to any prejudice that the Respondent would suffer from the delay in lodgement of the proposed application for review of decision. The prejudice identified by the Respondent related to the burden of requiring the Respondent to engage in a process of review should the EOT Application be granted. This is not prejudice occasioned by the delay itself and, as such, is not relevant to the Tribunal’s consideration.

23.The Tribunal accepts that the subject matter of the prospective application for review of decision dates back to Ms Zaidman’s first two claims for age pension, made in 2016. However, the SSCSD Decision was only made in February 2023. The Tribunal is not satisfied that it is clear on the evidence that the Respondent would suffer prejudice were Ms Zaidman permitted to proceed with an application for review of decision. The

Respondent had been actively working on this matter in 2023 as it sought to implement the directions of the SSCSD Decision, as set out in the Respondent SFIC in January 2024. The Tribunal finds that it is unlikely that the Respondent would suffer prejudice occasioned by the delay in lodgement, were Ms Zaidman permitted to proceed with an application for review of decision.

24.Accordingly, the Tribunal concludes that this factor weighs in favour of granting the EOT Application.

25.Fifthly, the Tribunal has considered whether Ms Zaidman has “rested on her rights”. The Tribunal is satisfied that Ms Zaidman has rested on her rights of review as she has not taken action since February 2023 to pursue a review of the SSCSD Decision, until such time as she lodged the EOT Application and even when she did so it was incomplete and unaccompanied by an application for review of decision. Ms Zaidman explained why this was so at the EOT Hearing, being that she has no intention to lodge an application for review of decision because she does not have the time to do so and will not do so. Of course, this is Ms Zaidman’s prerogative. However, the Tribunal finds that Ms Zaidman has “rested on her rights”. Accordingly, the Tribunal considers this to be a factor weighing against granting the EOT Application.

26.Sixthly, the public interest gives rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal. The delay in lodgement in this application was substantial. The Tribunal considers that this factor weighs against granting the EOT Application.

27.Finally, the Tribunal has taken into account that Ms Zaidman had been afforded the opportunity to actively participate in a reconsideration or review process pursuant to the remittal and directions issued as a result of the SSCSD Decision and to do so by cooperating and providing, as best as she was able, further information as had been requested by the Respondent. The Tribunal acknowledges that Ms Zaidman might have experienced difficulties obtaining some of the requested information from her ex-husband, that she was likely to have been in London in February 2023 and that she had eye surgery in September 2023 and again in November 2023. But there was no evidence put before the Tribunal demonstrating that Ms Zaidman had made any real endeavour to engage in the process. No further information was provided except for a letter from her doctor dated

12 May 2023. As clarified by Ms Zaidman at the EOT Hearing, she explained that she did not have the time to pursue a review of the SSCSD Decision and simply wanted to be paid the pension for the past period.

28.The Tribunal is satisfied that Ms Zaidman had an avenue of review available to her arising from the SSCSD Decision. Due to her stated lack of interest in providing any further information to Services Australia, Ms Zaidman has made a conscious choice not to engage in this process. The Tribunal has reason to believe this would happen again if she were permitted at some point in the future, to proceed with an application for review by this Tribunal. This is further confirmed by the statements made in Ms Zaidman’s email to the Tribunal on 20 November 2023, and the indication by Ms Zaidman at the EOT Hearing that she has no intention of making an application for review of the decision.

29.The Tribunal considers that this factor weighs against granting the EOT Application.

ASSERTION BY MS ZAIDMAN THAT RESPONDENT FAILED TO IMPLEMENT SSCSD DECISION

30.Ms Zaidman in her communications with the Tribunal asserted that the Respondent had not implemented the SSCSD Decision. Before the EOT Hearing, the Tribunal provided the Respondent with an opportunity to respond to this assertion. The Respondent provided a written description of the steps it had taken to implement the SSCSD Decision.

31.The Respondent asserts in its SFIC that Services Australia sent correspondence to Ms Zaidman on 16 March 2023 to request some information.3 The customer notes appear to indicate that the requested information comprised the following:

1.    Complete enclosed private company forms Mod PC for Moadim and Share investing limited. Provide all the documents the form requests.

2.    Provide all pages of your and your ex-partners 2015 and 2016 business and individual tax returns, and associated financials.

3.    Provide all ex-partners payslips from employment from 13 March 2016 to 26 March 2016, and from 10 April 2016 to 23 April 2016.

4.    Provide bank statements for your and ex-partners bank accounts [numbers omitted].

3 Respondent’s SFIC, [28].

Statements must advise account holders name, account number and balance at 17 March 2016.

5.    Provide bank statements to verify what was done with the proceeds of the term deposit [number omitted] that matured on [date omitted] 2016. Provide bank statements to verify these funds being transferred between accounts.

6.    Provide a share statement for your / ex-partners Global energy venture shares, at 17 March 2016.

7.    Bank account [number omitted] also confirms rental income $1288 received from Wendy on 18 March 2016 and 20 April 2016. Complete a real estate form if property was owned by your/ ex-partner, provide rates notice & title documents.

8.    Provide a written list of all monies gifted to family and friends, from 2011 to current. List to include the dates and the amounts of each gift.

9.    Complete the enclosed compensation form for any compensation your or ex- partner receive or has claimed. Additional forms Mod C, can be downloaded off the Services Australia Centrelink website.

10.  Provide statement for all superannuation held for you / ex-partners, statement to advise investment options, number of units and balance at 17 March 2016.

32.This opportunity to provide the requested information was not taken up by Ms Zaidman.

33.Services Australia wrote to Ms Zaidman again on 20 April 2023 to advise that no further action could be taken because she had not provided the requested information.4 Services Australia requested that the requested information be provided by Ms Zaidman within 14 days. The requested information was not provided.

34.The Respondent states that Ms Zaidman contacted Services Australia on 8 May 2023. She was asked to answer “proof of record ownership” questions. She did not do so, and, for this reason, Services Australia did not “book an appointment” with Ms Zaidman.5

35.On 30 May 2023, in Ms Zaidman’s letter to the Tribunal, accompanying her EOT Application, she simply states that she was “trying to get an unpaid pension” from 2016, even though she asserted that she was entitled to have a pension from 2014. Ms Zaidman stated that she had been to “many departments asking for help” but has had no positive results. She said she was sending her letter together with some information “for Canberra and not Centrelink to make a decision”. She stated she was looking forward to receiving a positive reply. The supporting document provided with the EOT Application was Dr Pinczower’s

4 Respondent’s SFIC, [29].

5 Ibid, [30].

letter dated 12 May 2023, referred to above, seeking to explain why Ms Zaidman was unable to provide the requested information.

36.The Tribunal is satisfied that Ms Zaidman’s assertion that the Respondent had not implemented the SSCSD Decision is unsubstantiated. Further information was requested by Services Australia on behalf of the Respondent in compliance with the directions forming part of the SSCSD Decision. The Tribunal considers that a reasonable opportunity was provided to Ms Zaidman to provide the requested further information in accordance with the Direction of the member in the SSCSD Decision.

37.The Tribunal acknowledges that Services Australia had refused to book an appointment for Ms Zaidman on 8 May 2023 when Ms Zaidman telephoned Services Australia, because she had refused to answer questions asked of her, which would have enabled Services Australia to properly identify her. Such questions were reasonable and are commonplace when a member of the public contacts a government agency or body about their personal matters. Ms Zaidman acted unreasonably in refusing to answer those identification questions and was the cause of the blockage in communication between her and Services Australia at this time.

38.In light of these matters, the Tribunal is satisfied that the Respondent made all reasonable endeavours to take steps to implement the SSCSD Decision. The requested information (or at least some part of it) could have been provided by Ms Zaidman to Services Australia in the two months preceding her telephone call to Services Australia on 8 May 2023.

39.The Respondent, or Services Australia on his behalf, has not failed to implement the SSCSD Decision. Instead, Ms Zaidman had failed to enable the Tribunal’s directions to be implemented due to her non-compliance with Services Australia’s reasonable requests for information in order to allow the appropriate decision-maker to make an informed reconsideration decision about her age pension claims.

CONCLUSION

40.The primary factor weighing against the Tribunal exercising its discretion to grant this EOT Application is Ms Zaidman’s indication at the EOT Hearing that she does not intend to lodge an application for review of decision.

41.Further, the Tribunal has concluded that there are several factors weighing against granting the EOT Application, specifically:

(a)the length of the delay in lodgement of the prospective application for review is substantial (being over nine months);

(b)the explanation for delay in lodgement to date is unacceptable and Ms Zaidman has “rested on her rights” of review;

(c)Ms Zaidman elected not to take up an opportunity presented to her under the further review process established by the directions made in the SSCSD Decision to engage in a reconsideration process by the Respondent; and

(d)the public interest giving rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal.

42.The Tribunal has concluded that there are factors weighing in favour of granting the EOT Application, specifically:

(a)based on a preliminary assessment of the evidence, the Tribunal is satisfied that the proposed application for review of decision could not be said to be lacking in merit and would be, at least, arguable;

(b)the Respondent has not suffered any prejudice as a result of the delay in lodgement of the proposed application for review of decision since February 2023; and

(c)the proposed application for review of decision involves a claim for the age pension for a past period under beneficial legislation (that is, Social Security Act 1991) and there are no alternative avenues of review.

43.The Tribunal considers that the factors weighing against granting the EOT Application, and in particular the factor referred to in paragraph [40] above, far outweigh the factors weighing in favour of it and that the balance of convenience weighs in favour of the Respondent.

44.Accordingly, the Tribunal decides not to grant the EOT Application and refuses to make an order pursuant to sub-s 29(7) of the AAT Act to extend the date for lodgement of the application for review of decision until the present time or to some date in the future.

I certify that the preceding

44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

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

Associate

Dated: 12 January 2024

Dateofhearing:

11 January 2024

Applicant:

Self-represented

Solicitorforthe Respondent:

Mr Tim de Uray

Deputy General Counsel, Services Australia