Nolan and Secretary, Department of Education [2024] AATA 3309 (17 September 2024)

PRACTICE AND PROCEDURE - benefit cancelled - applicant not notified of cancellation breach of legislation - question about whether this invalidates cancellation decision - respondent requests time to consider this question before substantive hearing if time extended - desirable for respondent to be given time to consider position

Administrative Appeals Tribunal Act 1975 (Cth)

A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

1. Mrs Eran Nolan is the Applicant in this matter. Her husband, Mr Ryan Nolan, represented her at the hearing. Mr and Mrs Nolan have a son, who will be called 'E'. E was born in 2017. From December 2018, Mrs Nolan was in receipt of childcare subsidy ('CCS') in relation to E.
2. On 15 September 2021, Services Australia, the agency ('Agency') administering CCS on behalf of the Department of Education ('the Department') sent a notice to Mrs Nolan via her 'myGov' account requiring E to meet immunisation requirements by 18 November 2021.
3. The notice relevantly said:

You need to make sure that [E] is up-to-date with their [sic] immunisations by 18 November 2021. If the Australian Immunisation Register shows that they meet the immunisation requirements by this date, you do not need to do anything else.

If they have missed immunisations, you will need to talk to a doctor or vaccination provider and start a catch-up scheduled by 18 November 2021.

If there is a valid medical reason why they have not been fully immunised, you need to talk to an eligible doctor about an immunisation medical exemption.

You do not need to tell us when they start a catch-up schedule or receive an immunisation medical exemption. Your vaccination provider will update the Australian Immunisation Register with this information.

If the Australian Immunisation Register has not been updated by 18 November 2021 your Child Care Subsidy for [E] will be cancelled. This means that you will have to pay the full amount of child care fees for them. If your Child Care Subsidy is cancelled, you will need to claim once again once your child's immunisation status is up-to-date with the Australian Immunisation Register.

1. The Respondent advised that on 17 September 2021 this notice was "ingested" into Mrs Nolan's myGov account and therefore was capable of being retrieved by her from that date, but told the Tribunal that the Applicant did not read it before her myGov account was closed on 17 October 2021. Mrs Nolan created a new myGov account on 10 May 2022 and the notice was "ingested" a second time. The Applicant read it on 21 June 2022.
2. On 19 November 2021, the Agency decided that the Applicant was no longer eligible for CCS on the basis that E had ceased to meet the immunisation requirements 63 days before, pursuant to s 67CC(2)(c) of the A New Tax System (Family Assistance)(Administration) Act 1999 ('the Act').
3. The Agency decided to cancel the Applicant's CCS. But it did not tell her.
4. It was not in contention that, from 28 November 2021, E met the immunisation requirements. On 21 June 2022, Mrs Nolan contacted the Agency to query the absence of CCS payments. She then lodged a new claim for CCS, which was granted, with back payment from 30 May 2022, and not an earlier date.
5. On 22 January 2023, an authorised review officer of the Agency, who is an officer not involved in the original decision, affirmed both the cancellation decision and the start date decision. On 23 February 2023, Mrs Nolan applied for a review of the start date decision by the Social Services and Child Support Division (SSCSD) of the Tribunal ('first review'). On 14 March 2023, the Applicant applied to the SSCSD for first review of the cancellation decision.
6. The matters were heard together at first review and on 31 May 2023, the Tribunal affirmed the two decisions.
7. On 13 June 2023, the Tribunal's Registry sent Mrs Nolan a notice of the first decision by email. On 20 July 2024, the Applicant lodged an application for second review and an application for an extension of time.
8. A hearing was constituted for 28 August 2024 for the Tribunal to hear submissions from the Applicant or her representative on the request for an extension of time. Both parties were notified.
9. On 5 August 2024, the Agency representing the Respondent sent an email to the Tribunal advising that the Secretary of the Department of Education opposed the extension of time, and advised that submissions would be provided in due course.
10. On 26 August 2024, the Agency representing the Respondent sent a further email to the Tribunal advising that the Secretary now consents to Mrs Nolan's application for an extension of time, and requested that the hearing be vacated.
11. The Tribunal declined to vacate the hearing, because s 29(7) of the Administrative Appeals Tribunal Act 1975 ('the AAT Act') provides that time may only be extended if the Tribunal considers it is reasonable in all the circumstances to do so. As the lateness of this application was significant, the Tribunal asked the Respondent for submissions as to why it now agreed that time should be extended.
12. On 27 August 2024, the day before the scheduled telephone hearing to consider the extension of time request, the Agency on behalf of the Respondent lodged written submissions changing its position for a third time, and now opposing the request for an extension of time.

1. A telephone directions hearing was held on 28 August 2024. Mr Ryan Nolan represented the Applicant. Mrs Aarabi Ravindeeran, a senior legal officer of the Agency, represented the Secretary of the Department of Education.
2. At the outset, Mrs Ravindeeran apologised to the Applicant and the Tribunal for the changes in the Respondent's position. Mrs Ravindeeran submitted that, considering the usual principles that guide whether time should be extended, the weight was against the Applicant on all of them except for the principle relating to the merits of the case.
3. Mrs Ravindeeran said that the Respondent conceded that the Applicant was never notified of the cancellation of the CCS for E, and that this appears to be a breach of the Act. However, she said she was instructed by the Education Department that the fact the notice (reproduced above), which was sent to Mrs Nolan on 17 September 2021, set out that the CCS would be cancelled could be argued to constitute notice. In regard to the various changes of position of the Respondent concerning the extension of time request, Mrs Ravindeeran said she was required to seek instructions from the Department of Education, because that is the Department of State which administers the Act, not the Agency (which is responsible for the practical day to day payment of the CCS).
4. Mr Nolan said that the reason E was not vaccinated in time in November 2021 is because, at the time, he was unwell with cold-like symptoms and their local general practice advised not to bring him in, given the COVID-19 pandemic and lockdown restrictions. Mr Nolan said that, as soon as E was well enough, Mrs Nolan took E to their general practitioner, and he received the scheduled immunisations on 28 November 2021. Mr Nolan said it was only several months later that he asked his wife why the cost of childcare had increased so much. That is what precipitated her to contact the Agency, and to find out that the CCS for E had been cancelled. He said that the childcare centre E attended did not provide any advice to them.
5. The Tribunal asked Mr Nolan about the explanation in the application for an extension of time which said:

We are requesting an extension of time due to a series of unforeseen circumstances. Initially, we were advised to try a different review process, which we pursued diligently but it was also unsuccessful. Following this, I was unsure of the appropriate next steps and sought advice by writing to my local MP...

1. The Tribunal asked who advised Mr Nolan to try a different review process. Mr Nolan said that he was referring to the Member at first review, who helpfully explained review options at the end of the hearing, and he understood the Member suggested they go back to the Agency for further consideration.
2. The Tribunal asked Mr Nolan if he remembered receiving a letter from the Tribunal at the time that he and Mrs Nolan received the first review decision, which set out the process for seeking second review. Mr Nolan said he did remember a letter but not the detail contained in it. He said that he contacted the Honourable Bill Shorten, his local Member of Parliament, and it took some time for the Member to respond. The Tribunal notes that the Applicant provided a letter from their local MP who apologised for the delay in responding, before setting out helpful suggestions for pursuing the matter with the Tribunal and the Agency.

1. Section 29(2) of the AAT Act provides that, unless a statute otherwise provides, the time for lodging an application for review is within 28 days after notice of a decision (in this case the notice of the first review decision) is given to an Applicant.
2. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J helpfully set out a list of factors to consider in extending time, whilst making it clear that it was a non-exhaustive list, and that each consideration for such a request will depend on the individual circumstances of the case.
3. The factors the learned Judge listed were:

(a) The extent of the delay; > > (b) The explanation for the delay; > > (c) Any prejudice to the Respondent or the general public arising from an extension of time; > > (d) Whether the Applicant has rested on his or her review rights; > > (e) The merits of the substantive application for review; and > > (f) Any alternative avenues of relief for the Applicant should time not be extended.

4. In this case, in terms of the extent of the delay, the Applicant was just over one year late in lodging her application for review. The Respondent submitted that this was an excessive delay, and it would be open for the Tribunal to conclude that Mrs Nolan had rested on her rights.
5. The Tribunal notes that this is a long period, and ordinarily the time itself would weigh heavily against extending time. However, having heard Mr Nolan's oral submissions and having the advantage of reading the letter from Mr Shorten, the Tribunal understands that there was a misunderstanding by the Applicant and her husband about avenues of review, notwithstanding that I am reasonably satisfied a letter setting out avenues of review was sent by the Tribunal accompanying the first review decision. This muddied the waters.
6. In terms of any prejudice to the Respondent, the Tribunal accepts the written submissions from the Secretary that it is not prejudiced, except for the requirement to defend a matter after a significant time has elapsed since the matter was considered to be finalised.
7. In terms of wider prejudice to the general public, the Respondent submitted that, as a general proposition, it is in the public interest that there is an end to the appeal process, and that time limits are imposed to ensure that there is a predictable and orderly conclusion to a matter.
8. The Respondent submitted that,

...the public interest, and the interests of those applicants who comply with the prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur.

1. The Tribunal agrees with that submission as a general proposition. Persons who comply with statutory time limits could view the grant of an extension of time, in a case comparable to theirs, as unfair, if they had taken trouble to adhere to the statutory time limits. However, in this case, for reasons that will now follow, I am confident that the justice of the case in this particular instance merits extension of time.
2. In respect of the merits of the substantive application for review, I accept the Respondent's submissions that they weigh in favour of the Applicant.
3. Although the Tribunal is not required to make a substantive finding on this particular question, I am confident that the manner in which Mrs Nolan's CCS was purportedly cancelled in fact invalidates the cancellation decision.
4. Section 67CE(1) of the Act states:

The Secretary must give written notice to an individual for whom any of the following determinations are made, no later than 7 days after making the determination:

(a) a determination under section 67CC about the individual's eligibility for CCS for a child.

1. The Parliament has made this a mandatory requirement. The Act imposes an obligation on the Secretary to inform an individual (in this case Mrs Nolan) about her eligibility for CCS for E, and, further, requires that he do this no later than seven days after making a determination.
2. A submission was put before me by the Respondent, that it could be said that the Applicant had 'notice' in the letter sent to her MyGov account on 15 September 2021 that the CCS would be cancelled if E were not vaccinated by 18 November 2021. That is so, but that letter, reproduced above, does not constitute a notice within the terms stipulated in

s 67CE(1) of the Act. That letter is merely a general warning to a parent or guardian with a child for whom CCS is being paid, that the child must be vaccinated, and alerting the recipient of a consequence if they fail to arrange the vaccination. I would liken that letter as equivalent to a case where a driver has committed an infringement and thereby accumulated demerit points on their driver licence. The driver receives advice telling him or her that they now have x demerit points, and if they accumulate y demerit points, the driver licence is liable to be cancelled. But such a 'warning' notice does not itself constitute cancellation of the driver licence. 3. This argument of the Respondent is inadequate: s 67CE(1) of the Act clearly provides that the order of action is a determination about eligibility, and then the furnishing of a written notice of that determination to the individual. The second cannot happen before the first. 4. In other words, by the way s 67CE is couched, the Secretary's duty to give a written notice is triggered when he makes the determination (not some date earlier), and, having made it, then he must send a copy of it to the person within seven days thereafter. In Mrs Nolan's case, this simply did not happen. 5. In the papers before the Tribunal, there was no evidence that a s 67CE determination had been made. It might have been, but it was not before me. However, the Respondent conceded that, in any event, no advice was given to the Applicant about the cancellation of CCS, which is required by the second limb of that subsection. 6. It seems to me poor administrative practice for the Respondent to have neglected this statutory obligation, and then to have tried to defend its omission. I place no blame at the foot of Mrs Ravindeeran because she is not an officer of the Respondent's Department, and was merely following instructions in the submissions made to the Tribunal. I note that oral submissions were put at the hearing that, if the Tribunal did decide to extend time, then the Respondent would like to consider its position about the validity of the cancellation. 7. Whilst it may be accepted that the Applicant should have arranged for E to be vaccinated earlier than he was, the reasons that Mrs Nolan advanced to the Tribunal are compelling. They are that E was displaying cold-like symptoms and, in the teeth of the COVID-19 pandemic and statutory lockdowns imposed by state governments, her local general practice asked for him to not be brought to the surgery until those symptoms had gone, to protect the health of other patients and staff. Once he recovered, E was then promptly brought to his local GP and vaccinated. 8. The rules that were put in place by the Parliament and administered by the government were designed to have a punitive effect against a parent (or guardian) who did not vaccinate their child who was attending a childcare centre with other children, for a non-medical reason (or what might be more accurately termed a misguided and ill-informed reason or, more colloquially, a 'hippy pseudo-science reason'). These particular legislative provisions were designed to protect public health. I am confident that the legislative intent behind the ultimate sanction of the cancellation of CCS was never intended to punish responsible parents like the Nolans. 9. Therefore, although I am only making a preliminary finding, I consider that the Applicant has a strong case to make that the purported cancellation of her CCS was void in law because the Respondent's departmental officers did not follow the mandatory requirements of the Act, and that the Applicant's CCS should be restored from that date as if the cancellation never occurred. That is why the Tribunal has extended time.

1. Pursuant to s 29(7) of the AAT Act, and being satisfied that it is in the interests of justice, the Tribunal extends time for the Applicant to lodge an application for second review to

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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