Roberts; Secretary, Department of Family and Community Services a nd [2003] AATA 269 (6 March 2003)

Last Updated: 26 March 2003

CATCHWORDS - SOCIAL SECURITY - extension of time to lodge appeal application to the Tribunal - disability support pension - preclusion period - whether fair and equitable in the circumstances - whether applicant prejudiced - impact on the health of the applicant - merits of the case - whether Centrelink acting as an adviser to the Department - extension of time application refused.

Social Security Act 1991 ss. 17 and 1184K

Administrative Appeals Tribunal Act 1975 s. 29

Commonwealth Services Delivery Agency Act 1997 ss. 3 and 7

Social Security (Administration) Act 1999 s. 3 and 234

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

Comcare v A'Hearn (1993) 45 FCR 441

Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619

Dickinson v Comcare (1998) 52 ALD 86

Maynard v Secretary, Department of Social Security [1993] FCA 698

Bouvet v Secretary, Department of Social Security [1992] FCA 216

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

DECISION AND REASONS FOR DECISION [2003] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2003/64

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And CRAIG ROBERTS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 6 March, 2003

Place: Adelaide

Decision: The Tribunal refuses the applicant's application for an extension of the time permitted for lodging an application for review of a decision of the Social Security Appeals Tribunal dated 13 January, 2003.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 19 February, 2003, the applicant, the Secretary of the Department of Family and Community Services ("the Secretary") applied for an extension of the time permitted for lodging an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 13 January, 2003. That decision was to set aside a decision of a delegate of the Secretary as affirmed on 20 November, 2002 not to change the end date of the preclusion period imposed when Mr Craig Roberts received an amount of compensation. In its place, it substituted a decision that the preclusion period concluded on 13 January, 2003.

2. At the hearing of the application for extension of time, the Secretary was represented by his advocate, Mr Underwood and Mr Craig Roberts by Mr Chris Roberts. Regard was had to the decision of the SSAT, a treating doctor's report by Dr Simon Cameron dated 28 February, 2003 and a letter from Mr Craig Robert's parents, Lynette K Roberts and David A Roberts. Oral evidence was given by Ms Adele Pugsley, an advocate with Centrelink and Ms Simone Cerone, an Administrative Assistant for the Advocacy and Administrative Law Team at Centrelink. I refused the application at the hearing on 6 March, 2003 and now set out my reasons.

THE ISSUE

3. The issue was whether the time within which the Secretary is permitted to lodge an application for review should be extended from 18 February to 19 February, 2003.

BACKGROUND

Legislative background - power to preclude the payment of benefits under Social Security Act 1991

4. Part 3.14 of the Social Security Act 1991 ("the Act") sets out the circumstances in which a person, who is otherwise entitled to receive a compensation affected payment under the Act, is precluded from receiving that payment. A "compensation affected payment" includes a disability support pension (s. 17). There was no question when this case was before the SSAT that the payment to which Mr Craig Roberts was otherwise entitled was a compensation affected payment and that the period of his preclusion had been correctly calculated as extending from 4 June, 1993 and concluding on 24 June, 2004. That continues to be the case. As in the SSAT, the only issue that is in dispute is the application of the ameliorating provisions of s. 1184K, which provides:

"1184K. (1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:

(a) not having been made; or

(b) not liable to be made;

if the Secretary thinks it is appropriate to do so in the special circumstances of the case.

1184K. (2) If:

(a) a person or a person's partner receives or claims a compensation affected payment; and

(b) the person receives compensation; and

(c) the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person's or the person's partner's receipt of, or claim for, the compensation affected payment;

the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1)."

The factual background

5. For the purposes of the application, there was no dispute between the parties as to the facts forming the background to the case. Mr Craig Roberts had received a lump sum payment of compensation of $340,021.19, including a component for economic loss, for a work injury that occurred on 10 June, 1992.. He received that on 7 November, 1995 and had previously received periodic compensation payments until 3 June, 1993. The sum of $21,000 of the lump sum payment was disregarded because of special circumstances and the amount used by officers of Centrelink in calculating the lump sum preclusion period was $319,021.19. The average weekly earnings ("AWE") at the time was $552.20. The result of the calculation was that Mr Craig Roberts was precluded from receiving payments under the Act for 577 weeks commencing on 4 June, 1993 and ending on 24 June, 2004.

6. He suffers from chronic back pain causing him to suffer, among other symptoms, disturbed sleep cycle and restricted movement. As a result of his condition, Mr Craig Roberts is able to walk only 300 metres and sit only for a half hour at a time. It is being treated with a combination of analgesia, codeine, NSAIs and Paracetamol drugs. In the past, he has been treated with physiotherapy, hydrotherapy, a facet injection in 1993, slow release morphine and pain clinic management in 1998 at the Flinders Medical Centre Pain Management Unit. His future treatment includes analgesic drugs, pain clinic review and a physical activity programme.

7. In addition, Mr Craig Roberts suffers from reactive depression, which is secondary to poor pain control and loss of social support. The symptoms from which he suffers as a result of this condition include social isolation, despair, anhedonia and poor concentration. He is currently undergoing cognitive behavioural therapy and taking anti-depressant medication. His condition affects his ability to function severely and causes him to suffer a panic disorder and poor cognitive function. Until 16 November, 1995, Mr Craig Roberts was in receipt of a disability support pension ("DSP").

8. After receiving his lump sum, Mr Craig Roberts purchased a home and also started a hire car business when he bought a Fairlane. The business proved unsuccessful and both the motor vehicle and the house were sold. That occurred in January, 1999. During this period, Mr Craig Roberts stopped attending the Flinders Medical Centre Pain Management Unit for treatment and taking the slow release morphine he had been prescribed. Instead, he started to take over the counter analgesics after his girlfriend, whom he later married, complained that they contributed to his having a bad temperament.

9. Mr Craig Roberts again entered the hire car business but this time with the assistance of his wife. On 30 March, 1999, he bought another Fairlane and later a Statesmen. He borrowed $10,000 from his mother and $33,000 from AGC. His marriage lasted only three months and he and his wife separated in mid 1999. Mr Craig Robert's business failed and the Fairlane was sold leaving him with a loss of $14,000 on the transaction.

10. Mr Roberts has had a gambling addiction, for which he has sought counselling from Mr Jack Hazebroek between May and August, 2002 and with Mr Vincent Glenn, a Break Even Financial Gambling Counsellor at the Adelaide City Mission, and which is now controlled. He has no assets and has had no income since May, 2001. He owes a debt to AGC and the monthly instalments on that debt are being paid by his mother. Mr Craig Roberts is totally dependent financially on his parents.

Power to extend time

11. Pursuant to s. 29(2) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") and unless varied by another enactment, a person has 28 days within which to apply for review of a decision. There is no variation effected by the Act. A person may apply for an extension of the time allowed to lodge an application pursuant to s. 29(7) of the AAT Act and may do so even though the time for an application has expired (s. 29(8)).

12. In considering applications to extend time in various jurisdictions in the Tribunal, regard has been had to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305. Without intending to set out an exhaustive list, his Honour set out a number of principles to guide a court in reaching a decision on an application for an extension of time. The essential features of those principles are set out in the head note to the case which reads:

"(a) the fact that the applicant bears the onus of rebutting the prima facie rule that no ... proceedings commenced outside the prescribed period will be entertained by the court by showing an `acceptable explanation of the delay' and that it would be `fair and equitable in the circumstances' to extend the time;

(b) any action taken by the applicant, apart from the actual making of an application for review under the ADJR Act, which continues to make the decision-maker aware that the finality of his decision is being contested;

(c) any prejudice to the respondent which may have resulted from the delay;

(d) any unsettling of people, other than the respondent, or of established practices;

(e) the merits of the substantial ... application;

(f) considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-a-vis the parties but against the wider public interest which must also be taken into consideration."

13. These principles have been developed in later cases such as Comcare v A'Hearn (1993) 45 FCR 441 (Black CJ, Gray and Burchett JJ), Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 (Kiefel, J) and Dickinson v Comcare (1998) 52 ALD 86 (Finn J). In Comcare v A'Hearn, for example, the Full Court of the Federal Court said that, although it will normally be expected that the applicant will give an explanation for his or her delay in lodging an application, such an explanation is not an essential pre-condition to the Tribunal's exercising its discretion (page 444). At the same time, it is clear that the fact that the lack of a satisfactory explanation for the delay (even if it appears credible) may, in some circumstances, strongly weigh against the grant of an extension of time (Security, Department of Social Security v Van Den Boogaart at page 621).

14. In Maynard v Secretary, Department of Social Security [1993] FCA 698 (unreported, 26 August, 1993) Northrop J pointed out:

"An unfettered discretion conferred by statute cannot be fettered by decisions of a court. In exercising the power conferred by s 11 of the Judicial Review Act, the Court must act judicially and on relevant facts. If it is wrong, an appeal court can put the trial judge right. The reference to other authorities may be interesting but essentially they are illustrations of other cases, in most cases the facts of which are completely different to the facts before the Court. They may be helpful in understanding what may be relevant. They are not binding in any sense at all and to that extent it is often unwise to refer to too many cases because it detracts from the real issue that the Court must decide on the facts before it.

What is necessary to keep in mind is that the statute does impose a limitation period but at the same time there is a power to extend that period. The extension can be made before or after the expiration of the time. Having regard to that clear intention of the Legislature, the Court must consider the facts and determine whether there has been proof of sufficient matters to justify the granting of the indulgence to the person seeking the extension of time. Involved in this, a number of matters must be considered, including any explanation as to why the matter was not brought within the prescribed time, the effect on the applicant if the time is not extended and the effect on other persons, including the respondent or third parties who could be affected if leave is granted and the application succeeds in due course. Often some of these features are referred to as what is fair and reasonable, sometimes referred to as prejudice, but essentially what is to be considered is the effect of either making or refusing to make an order for the extension of time." (pages 3-4)

15. It is also clear from the authorities, however, that the time within which an application may be lodged will not be extended if there is no possible hope of the application's succeeding if it were to be reviewed on the merits (Bouvet v Secretary, Department of Social Security [1992] FCA 216 (Unreported, Northrop J, 7 April, 1992). This aspect was also considered by von Doussa J in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 when he said:

"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. ..." (page 122)

Should an extension of time be granted to the Secretary?

16. There was no dispute between the parties that the Secretary was only one day out of time in lodging his application. As Mr Underwood submitted, s. 29(7) of the AAT Act gives the Tribunal discretion to extend the time. In many cases an extension of one day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order. As the authorities make clear, whether an extension will be granted is determined by balancing all relevant factors and not simply by one.

17. On the basis of the evidence of Ms Pugsley, I find that Centrelink received an electronic copy of the SSAT's decision on 21 January, 2003 and a paper copy of it on 22 January, 2003. Ms Pugsley calculated that the period for lodging an application to the Tribunal expired on 20 February, 2003.

18. Centrelink scrutinises each decision of the SSAT and this task is undertaken by its Advocates. A document is prepared recommending either implementation of the decision or that an application for review be lodged in the Tribunal. In accordance with the usual practice of Centrelink, that document does not include the date on which Centrelink received the SSAT's decision. It is referred to a senior officer in Centrelink. If the senior officer decides that the decision should be implemented, it is referred to the appropriate officer in Centrelink for implementation. If the senior officer decides that an application for review should be made, the decision is referred to the Department of Family and Community Services ("the Department") as only an officer of that Department can approve such an application's being made. The document prepared by Ms Pugsley was referred to the senior officer of Centrelink and then on to the Department. The officers of the Department did not separately check the date calculated by Ms Pugsley.

19. Mr Underwood submitted that the Department, or rather the Secretary, was misled into thinking that it, or he, had a longer period of time than he had. I have difficulty with this submission for two reasons. The first arises from the fact that the miscalculation made by Ms Pugsley was a miscalculation easily made. It is so easily miscalculated that it could be expected that it would be checked by more than one person and particularly by the officers of the Department on, or shortly after, they received Ms Pugsley's synopsis on 24 January, 2003. From Mr Underwood, though, I understand that the system that is in place between the Department and Centrelink does not permit independent checking of the date by the Department. That is so because the synopsis in the document sent by Centrelink to the Department does not mention the date on which the SSAT's decision was received by Centrelink.

20. The second arises from Mr Underwood's seeking to draw such a sharp distinction between the role of Centrelink and the role of the Department. In doing so, he sought to draw on the principles set out in Comcare v A'Hearn in which the Full Court said that delay occasioned by the fault of solicitors for Mr A'Hearn might be taken into account in favour of an application and may warrant granting an extension of time. That brings me to consider whether it is appropriate to draw such a sharp distinction and so the inter-relationship between Centrelink and the Department. Centrelink, which is also known as the Commonwealth Services Delivery Agency, was established on 1 July, 1997 by the Commonwealth Services Delivery Agency Act 1997 ("CSDA Act"). Its Chief Executive Officer may enter arrangements with the principal officer of a Commonwealth authority for the provision of Commonwealth services (CSDA Act, s. 7(1)). "Commonwealth services" mean "... a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise" (CSDA Act, s. 3). Arrangements may include arrangements for doing anything incidental or related to the provision of the Commonwealth services e.g. making specified employees or classes of employees available to exercise powers or perform functions delegated to them under specified enactments (CSDA Act, s. 7(2)). Such arrangements have been entered into between the principal officer of the Department of Family and Community Services ("Department") and the Chief Executive Officer of Centrelink in relation to pensions, benefits and allowances paid or payable under the Act.

21. Pursuant to s. 234(1) of the Social Security (Administration) Act 1999 ("Administration Act"), the Secretary may delegate all or any of his or her powers under the social security law (i.e. certain Acts including, for the purposes of this case, the Administration Act and the Act (Administration Act, s. 3)) to an officer. Pursuant to s. 234(2), he may also delegate them to the Chief Executive Officer of Centrelink ("the CEO") or to an employee of Centrelink.

22. When the relationship is examined, it is apparent that Centrelink is a body separate from the Department and the Secretary but a body whose functions are integrally intertwined with those of the Department and the Secretary by virtue of the arrangements that have been entered between them for the delivery of services under the Act and the delegations that the Secretary has given to officers of Centrelink. The relationship they enjoy is not that of a legal adviser and its client. Centrelink is not engaged as a legal adviser but to provide Commonwealth services being a service, benefit, program or facility provided by the Commonwealth and they are, in the context of this case, the benefits and programs provided under the Act. It is undertaking a task that the Secretary with his Department could, and previously did, undertake but it is not doing so in the role of an adviser. Therefore the principles in Comcare v A'Hearn are not applicable.

23. On the basis of the evidence of Ms Cerone and the statements made by Mr Chris Roberts, I find that Ms Cerone received a telephone call from an employee of the Welfare Rights Centre on 19 February, 2003. Ms Cerone was asked whether an application would be made to the Tribunal and she advised the caller that the deadline was 20 February, 2003 and that sometimes the Department lodged on the deadline. A half an hour later, she received a telephone call from Mr Chris Roberts, who asked her about a claim for DSP that had been lodged on behalf of Mr Craig Roberts. He also asked her about whether an application would be lodged and Ms Cerone repeated her earlier advice on the subject.

24. I am satisfied that the claim for DSP had been made well before the expiry of the time for the lodgement of any application to review the SSAT's decision. If he were successful in the SSAT, neither he nor Mr Chris Roberts wanted there to be any delay in his receiving his entitlement. By lodging it early, his medical assessment could be completed and a decision made to pay him very quickly if the SSAT's decision were to shorten the preclusion period. This was a matter that was very important to Mr Craig Roberts. It was so important to him that he had persisted in his attempt to lodge his claim after Centrelink had refused to accept his initial attempt. He had persisted because of his total dependence upon his parents and his need to have money very quickly.

25. I am satisfied that Mr Craig Roberts' suffers from depression, isolation and despair among his other conditions. He cried for several hours when he found that the application had been lodged and was shaky for several days. As Mr Underwood said, it could be said that Mr Craig Roberts would have had this reaction had the application been lodged within time. I accept that this might have been so but I do not accept that this means that it is of no consequence. Through his own actions and those of Mr Chris Roberts, Centrelink, and so the Department on whose behalf it carries out functions under the Act, had been made aware of the precarious state of his health and of the importance to him of being granted a DSP. It is reasonable to expect that it knew that its making an application could have an impact upon his health. That fact should not stop it from making an application within time if it considers it appropriate to do so but it is a factor that is relevant in an extension of time application. The prejudice that is caused to Mr Craig Roberts by the delay is peculiar to his particular state of health. Unfortunately, Mr Craig Robert's general practitioner was not available to give evidence but Mr Underwood did not contradict Mr Chris Roberts' statement of Mr Craig Roberts' health. On the basis of that statement, I accept that the state of Mr Craig Roberts' health is precarious at the best of times and is made more so by the Department's attempting to lodge an application after the due date even if only by a day.

26. I have looked to the merits of the case. It is not appropriate to consider those merits in detail when considering an application for an extension of time. It is a case that requires consideration of whether or not there are special circumstances. Mr Underwood questioned some of the evidence given by Mr Craig Roberts at the SSAT hearing as to his expenditure. Mr Chris Roberts responded that Mr Craig Roberts had documentary evidence to support his evidence. If the Department were able to produce evidence challenging the nature of Mr Craig Roberts' expenditure, there would be merit in the Secretary's case on a substantive hearing. As matters stand, all that can be said is that the Secretary's case may have merit.

27. Taking all of these matters into account, I formed the view that the Secretary should not be permitted to lodge an application after the expiration of the time permitted by s. 29 of the AAT Act. The delay is very short but, when considered in the context of a case where the delay is attributable to factors caused by the manner in which the Secretary and his Department choose to perform their functions and all that can be said is that the Secretary's case may have merit, the factors favouring the extension of time are outweighed by the substantial prejudice that is likely to be caused to Mr Craig Roberts' health. This decision is consistent with the public interest which is broad enough to take account of the particularly harsh consequences that may befall one member of the public and particularly so when that one member had made Centrelink aware of the importance to him of the DSP when he lodged his claim for that payment at a time to minimise delay in its payment.

28. For the reasons I have set out, I refused the applicant's application for an extension of the time permitted for lodging an application for review of a decision of the Social Security Appeals Tribunal dated 13 January, 2003.

I certify that the twenty-eight preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President)

Signed: ...sgd. P. Paczkowski..............................

P. Paczkowski Associate

Date/s of Hearing 6 March, 2003

Date of Oral Decision 6 March, 2003

Date of Written Reasons 21 March, 2003

For the Applicant Mr J. Underwood, departmental advocate

For the Respondent Mr Chris Roberts, advocate

Welfare Rights, Adelaide