Practice and procedure - extension of time - no prospects of substantive application succeeding - no purpose served by granting extension of time - applicant's principal grievance with advice she claimed was given by Centrelink - claim for compensation for detriment due to defective administration not a matter for the Tribunal - extension of time refused

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security (Administration) Act 1999

Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Re Nicholson and Secretary, Department of Social Security [1990] AATA 212; (1990) 21 ALD 537

Zizza v Federal Commissioner of Taxation [1999] FCA 37

1. Ms Hedvika Jovanovic's husband has mesothelioma. On 30 December 2010, she contacted Centrelink about a concession card and a carer allowance. On 27 January 2011, she lodged a claim for a carer allowance.
2. If a person who qualifies for a social security payment contacts Centrelink with the intention of lodging a claim for a payment and lodges a claim within 14 days of that contact, she or he is taken to have lodged the claim, and is entitled to be paid, from the date of the first contact (see: ss 11, 16 of the Social Security Act 1991 and ss 41, 42 of the Social Security (Administration) Act 1999).
3. Ms Jovanovic was eligible for the carer allowance when she both contacted Centrelink, and lodged her claim. However, because she lodged her claim more than 14 days after contacting Centrelink, Centrelink determined that she could only be paid from 27 January 2011, the date on which she lodged her claim.
4. On 7 July 2011, the Social Security Appeals Tribunal (SSAT) found that there were special circumstances, concerning her domestic situation, which meant it was not reasonably practicable for Ms Jovanovic to lodge her claim within 14 days of contacting Centrelink (see s 13(3A) of the Social Security (Administration) Act 1999). The SSAT determined that she was entitled to payment from 30 December 2011, when she contacted Centrelink.
5. On 16 August 2011, Ms Jovanovic lodged an application with this tribunal for review of the SSAT's decision, maintaining she should be paid the allowance from October 2007 when she first contacted Centrelink. She withdrew her application ten days later, apparently after a Centrelink officer advised it was open to her to make a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA). By s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), her application for review was taken to have been dismissed.
6. In December 2011, the Department of Families, Housing, Community Services and Indigenous Affairs notified Ms Jovanovic that her claim for compensation was rejected.
7. On 31 January 2012, approximately five months after the 28 days allowed by s 29(2) of the AAT Act, Ms Jovanovic lodged a second application for review, with an application for an extension of time in which to do so. She restated her claim that she was entitled to the carer allowance as of October 2007. This second application appears to have been prompted by the rejection of her compensation claim and because, as she told the Tribunal today, she was confused and felt she was getting nowhere.
8. On 10 February 2012, apparently following a conversation with Centrelink, Ms Jovanovic telephoned the Tribunal to say she wished to withdraw her application. A Tribunal officer sent her a Notice of Withdrawal form but, on 1 March 2012, Ms Jovanovic advised she wished to proceed with her application.
9. I have to decide whether Ms Jovanovic should be granted an extension of time.

SHOULD MS JOVANOVIC BE GRANTED AN EXTENSION OF TIME?

1. The Tribunal may extend the time for the making of an application for review if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7) of the AAT Act.
2. The principles by which a decision whether to grant an extension of time should be guided include, but are not limited to:
   • whether there is an acceptable reason for the delay;
   • whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;
   • any prejudice to the respondent;
   • public considerations including the unsettling of others and established practices;
   • the merits of the substantive application;
   • fairness between the applicant and others in a like position; and
   • whether it is fair and equitable in all the circumstances to extend time: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176.

No single factor is determinative; all relevant factors have to be weighed together: Zizza v Federal Commissioner of Taxation [1999] FCA 37.

1. A preliminary question arises, being whether Ms Jovanovic can make a second application at all. By s 42A(6) of the AAT Act, an application that is dismissed by the Tribunal is concluded unless reinstated under s 42A(9) or (10), neither of which is applicable in this case. However, this of itself would not seem to preclude a fresh application: see Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Re Nicholson and Secretary, Department of Social Security [1990] AATA 212; (1990) 21 ALD 537 at 544.
2. I do not propose to deal further with this question because, even allowing that a fresh application can be made, I am not satisfied that it would be reasonable, in all the circumstances, to grant Ms Jovanovic an extension of time.
3. A person wanting to be granted a social security payment must make a claim for payment. That claim must be in writing: ss 11(a) and 16 of the Social Security (Administration) Act 1999. Centrelink have confirmed that there is no record of any contact by Ms Jovanovic about a carer allowance prior to December 2010. Even if she had made contact before then, Ms Jovanovic agrees that she did not lodge an application for a carer allowance until 27 January 2011 (taken to be lodged on 30 December 2010).
4. There is no discretion by which arrears may be paid in Ms Jovanovic's circumstances. Her application for review of the SSAT's decision has no prospects of success and no purpose would be served in granting the extension of time.

CLAIM FOR COMPENSATION FOR DETRIMENT CAUSED BY DEFECTIVE ADMINISTRATION

1. Ms Jovanovic has made clear in her applications, and before the Tribunal, that her real grievance is the advice she says she was given by Centrelink in October 2007. She says her husband became ill in April 2007 and was diagnosed with mesothelioma a month later. She has cared for him since April 2007.
2. Ms Jovanovic says that, in October 2007, she went to the Centrelink office in Liverpool to inquire about the carer allowance. She says she waited in line for over two hours to speak to someone. When she told the officer that carers looked after her husband while she was at work, and she looked after him at other times, the officer advised she was not eligible for the allowance. She says the officer did not take her name or make a note of her inquiry. She says a woman who was a former employee of hers and her husband was present at the time and witnessed this conversation. Ms Jovanovic believes she may be able to locate the woman to confirm her account. She says it was not until much later, when a friend said she should have lodged a claim in any event, that she contacted Centrelink again and then lodged her claim.
3. Ms Jovanovic gave her evidence before the Tribunal frankly, and I have no reason to doubt her account.
4. A claim for compensation under the CDDA scheme is not a matter in which the Tribunal has jurisdiction. However, the Centrelink representative at the hearing advised that, since the decision to refuse her claim, Ms Jovanovic has provided information to Centrelink concerning her husband's illness, and the care she was providing him at the time, which she had not provided previously. As this information may have some bearing on her claim, the representative suggested Ms Jovanovic may wish to ask for her claim for compensation to be reconsidered, and Ms Jovanovic indicated she would do so.
5. For the reasons given above, Ms Jovanovic's application for an extension of time is refused. Her claim for compensation is a matter for Centrelink.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

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

Phyllis Lee, Centrelink Program Litigation Review Branch