Alfred Pavilupillai and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 109
[2013] AATA 109
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3015
Re
Alfred Pavilupillai
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 28 February 2013 Place Melbourne The Tribunal affirms the decision under review.
................[sgd]...................................
Mr Conrad Ermert, Member
NEWSTART ALLOWANCE – Assets test – deemed claim date – assets test limits – hardship provisions – income-earning assets – part-payment of allowance – decision affirmed
Legislation
Social Security (Administration) Act 1999 section 13(1)
Social Security Act 1991 sections 11(12), 611(1) & (2), 1131(1)(f)
REASONS FOR DECISION
Mr Conrad Ermert, Member
28 February 2013
INTRODUCTION
Mr Pavilupillai, the applicant, owns an investment property in Watson Street, Preston (the Watson street property) in addition to his primary residence. The Watson street property has been valued by the Australian Valuation Office at $550,000. On 2 March 2012 Mr Pavilupillai contacted Centrelink, the service provider for the respondent, and indicated an intention to submit a claim for newstart allowance. He submitted the claim on 13 March 2012.
An officer of Centrelink rejected the claim because Mr Pavupillai’s assets were over the $265,000 limit allowable for his eligibility for the allowance. An Authorised Review Officer (ARO) of Centrelink affirmed this decision. On 2 July 2012 the Social Security Appeals Tribunal (SSAT) affirmed the ARO decision.
This matter is an application for review of the SSAT decision.
THE HEARING
Mr Pavilupillai represented himself at the hearing and gave evidence under oath, with the assistance of an interpreter in the Tamil language. Mr Mark Hester of the Centrelink Program Litigation and Review Branch represented the respondent.
I took into evidence:
·the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents, Exhibit R2);
·a letter from Mr Pavilupillai to this Tribunal dated 15 November 2012 (Exhibit A1);
·a copy of a City of Darebin Valuation and Rates Notice in respect of 28 Watson Street, Preston, dated 9 August 2012 (Exhibit A2);
·a copy of a Centrelink information sheet on the assets test (Exhibit A3);
·a medical report by Dr Mary Sathianathan dated 15 November 2012 (Exhibit A4);
·a Social Security Rights Victoria information sheet (Exhibit A5);
·a medical report by Dr Mary Sathianathan dated 4 February 2013 with three attachments (Exhibit A6);
·a City of Darebin rate instalment notice in respect of 28 Watson Street, Preston, dated 3 January 2013 (Exhibit A7);
·a City of Darebin rate instalment notice in respect of 173 Gower Street, Preston, dated 3 January 2013 (Exhibit A8); and
·the Secretary’s Statement of Facts and Contentions dated 15 August 2012 (Exhibit R1).
THE LEGISLATION
The relevant legislation is contained in the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security Act 1991 (the Act).
Section 13(1) of the Administration Act provides for a deemed claim date when a person contacts Centrelink expressing an intention of making a claim, in advance of lodging the claim.
Section 611(1) of the Act provides A newstart allowance is not payable to a person if the value of the person’s assets is more than the person’s assets value limit.
Section 611(2) of the Act sets out how the assets value limit is calculated.
Section 11(12) of the Act sets out the hardship provisions for the assets test and section 1131 provides the rules of access to those provisions. Section 1131(1)(f) provides that, to access the benefits of the hardship rules a person must lodge a request with Centrelink.
THE ISSUES
In this case there is no dispute regarding the deemed claim date of 2 March 2012. At the start of his evidence Mr Pavilupillai declared that he did not dispute that his assets exceeded the accepted limit of $265,000 which applied at his deemed claim date.
The only issue for me to determine is Mr Pavilupillai’s request that he be paid a part payment of newstart allowance. I take this to be a request for access to the hardship provisions. Hence I must determine whether Mr Pavilupillai can access the hardship provisions of the Act.
THE EVIDENCE
In his oral evidence Mr Pavilupillai conceded that his assets exceeded the $265,000 limit. He said he had sought advice from Centrelink and a Legal Aid lawyer. The Centrelink officer advised him to sell the Watson Street property and invest the money in a superannuation fund. The Legal Aid lawyer also advised Mr Pavilupillai to sell the property.
Mr Pavilupillai said that his wife refused to sell the property. He also said that he did not want to sell the property as he could not get a reasonable price in the current housing market. Mr Pavilupillai stated that after expenses he received only $290 per week from the rental of the property.
Mr Pavilupillai stated that the Legal Aid officer told him he could ask for a part-payment of his allowance. Mr Pavilupillai also stated that an officer of Centrelink told him that as he was not getting any money from Centrelink he could ask for assistance.
SUBMISSIONS
Mr Pavilupillai relied on a statement in the Centrelink information sheet on the Assets Test (Exhibit A3) that says Some assets are deemed to earn income, while certain assets are not included in the assets test. Mr Pavilupillai submitted that his investment property earns him an income of $290 per week and therefore it should not be included in the assets test.
Mr Pavilupillai also relied on a statement in an information sheet produced by Social Security Rights Victoria (Exhibit A5). That statement is Social Security Rights Victoria Inc. (SSRV) believes that all individuals are entitled to an adequate income. Mr Pavilupillai contends that after paying all his household bills he does not have an adequate income.
Mr Hester relied on the Secretary’s Statement of Facts and Contentions provided to the Tribunal on 15 August 2012. Mr Hester submitted that section 611 of the Act stipulates that newstart allowance is not payable to a person if their assets exceed the asset value limit, which in this case is $265,000. He submitted that it was not in dispute that the combined assets of Mr and Mrs Pavilupillai exceeded $265,000 in March 2012, and that this was based on Mr Pavilupillai’s own evidence.
Mr Hester understood that Mr Pavilupillai was contending that the Watson Street property was an asset for his retirement and should be characterised as part of his superannuation. Mr Hester submitted that there was no evidence that the property formed part of a superannuation fund.
In regard to Mr Pavilupillai’s contentions about the Watson Street property not being an asset because it earns income, Mr Hester submitted that newstart allowance is subject to both an income and an asset test. He contended that the asset test has been correctly applied to the Watson Street property.
CONSIDERATION
I will deal first with the issue of access to the hardship provisions of the Act. Section 1131(1)(f) of the Act provides that, to access the benefits of the hardship rules, a person must lodge a request with Centrelink. Mr Pavilupillai has not lodged such a request with Centrelink. Accordingly there is no decision to review and I have no jurisdiction to make a determination in regard to the hardship provisions.
In regard to Mr Pavilupillai’s request to have the Watson Street property assessed as income, I note that the Centrelink information sheet relied on by Mr Pavilupillai has no legislative force. It is general in nature and makes no specific reference to relevant provisions of the Act that support his contentions. Section 611 of the Act is clear in providing that newstart allowance is not payable to a person if the value of their assets is more than the limit. There are no exceptions in this section that relate to income-earning assets. The only relief from the provisions of section 611 are the hardship provisions on which I have no jurisdiction in this case.
The information sheet produced by Social Security Rights Victoria also has no legislative basis. It is general in nature and makes no references to the Act or its provisions. It is of no value to my considerations.
In regard to Mr Pavilupillai’s request for part-payment of an allowance, there are no provisions in the relevant sections of the Act that allow for part-payment. If Mr Pavilupillai did receive advice of such a provision, he was poorly advised.
In conclusion, I find that at 2 March 2012 Mr Pavilupillai’s assets exceeded the assets test limit of $265,000. Under the provisions of section 611 of the Act, newstart allowance is not payable to Mr Pavilupillai, either in full or in part. There are no provisions in the Act that allow for Mr Pavilupillai’s investment property to be considered an income-earning asset and not included in his assets for the assets test limits.
DECISION
I affirm the decision under review.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member. ..........[sgd]..........................................
K Randall, Associate
Dated 28 February 2013
Date of hearing 7 January 2013 Applicant In person Advocate for the Respondent Mr Mark Hester Solicitors for the Respondent Centrelink Program Litigation and Review Branch
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