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

[2024] AATA 260

Balbir Singh and Secretary, Department of Social Services (Social services second review) [2024] AATA 260 (27 February 2024)

Division:GENERAL DIVISION

File Number:2022/9279          

Re:Jasbir Balbir Singh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:27 February 2024

Place:Melbourne

The application is dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal is satisfied it has no reasonable prospect of success.

................[SGN]......................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – applicant applied for national health emergency crisis payment – application rejected as being made outside required timeframe – applicant did not lodge claim when she contended she had – applicant lodged later claim but found not to be facing financial hardship – rejection affirmed by authorised review officer – applicant sought review by Tribunal – Tribunal at First Review affirmed rejection decision – applicant sought Second Review – respondent asked for matter to be dismissed as no reasonable prospect of success – application dismissed

PRACTICE AND PROCEDURE – dismissal of an application under s 42B(1) of AAT Act – whether application has no reasonable prospect of success – on own evidence applicant did not meet requirement in Determination of financial hardship at time of claim – no utility in Second Review because no relief available to the applicant

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Coronavirus Economic Response – 2020 Measures No. 2) Determination 2020 (Cth)

Secondary Materials

Guide to Australian Government Payments (as applicable in December 2021)

Social Security Guide

REASONS FOR DECISION

Senior Member D. J. Morris

27 February 2024

INTRODUCTORY MATTER

1. Miss Balbir Singh has asked the General Division of the Tribunal to undertake a review (‘Second Review’) of a decision of the Social Services and Child Support Division (‘First Review’) dated 9 November 2022 which affirmed a decision to reject her claim for National Health Emergency Crisis Payment (‘NHECP’).

2. After Miss Balbir Singh had lodged her application for Second Review, the Respondent wrote to the Tribunal and the Applicant requesting that the matter be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) on the basis that there was no reasonable prospect of success of Miss Balbir Singh’s application succeeding.

3. On 9 January 2024, the Tribunal held an interlocutory hearing to consider the Respondent’s request for dismissal. Miss Balbir Singh made submissions opposing the request, and Ms Cindy Huang of Sparke Helmore Lawyers made submissions on behalf of the Respondent.

4. The Tribunal took into account a Statement of Facts, Issues and Contentions of the Respondent, and also a document titled Secretary’s Submissions in Support of Dismissal, dated 6 February 2023. The Tribunal also took into account a volume of ‘T’ documents lodged under s 37 of the AAT Act (‘TD’), and various extensive written submissions lodged by the Applicant.

5. The Respondent contended that the application has no reasonable prospect of success on two grounds. First, the Respondent contended that Miss Balbir Singh “has not complied with the requirements of the [Social Security] Guide in that the NHECP claim was not made within 14 days of the commencement of the Applicant’s isolation period” and, second, that the Applicant was not in ‘financial hardship’ as required by s 6(a) of a relevant determination.

6. During the hearing, there was disagreement between the parties about whether and when Miss Balbir Singh had lodged her application for NHECP. The Applicant submitted that she had several conversations with officers of Services Australia/Centrelink (an agency of the Respondent’s Department) about her NHECP claim.

7. The Tribunal therefore issued a direction under s 33(1)(c) of the AAT Act for the Respondent to lodge, by 23 January 2024, recordings of all conversations between the Applicant and Centrelink officers in the period 14 December 2021 to 14 June 2022, preferably date identified.

8. The recordings were lodged, and comprised 19 recorded conversations, several of them of a duration over 30 minutes. The Tribunal painstakingly listened to all the recordings.

9. As a result of the material before it, the Tribunal has decided it is satisfied that Miss Balbir Singh’s application for Second Review of the decision to reject her NHECP claim should be dismissed under s 42B(1)(b) of the AAT Act, because it has no reasonable prospect of success. However, as the following reasons show, why the Tribunal has come to that view is for different reasons than were contended by the Respondent.

   BACKGROUND

10. On 29 October 2021, the Applicant lodged a claim for disability support pension (‘DSP’) (TD, p 17).

11. On 18 February 2022, whilst the first DSP application was still being considered by Centrelink officers, the Applicant lodged a second claim for DSP including a claim for NHECP (TD, p 48-55).

12. On 5 April 2022, Miss Balbir Singh’s DSP application was granted, and she received DSP backdated from 29 October 2021.  

13. On 14 June 2022, the Applicant’s claim for NHECP was rejected and she was sent a letter advising that the rejection was on the basis that she had not claimed her payment within the required timeframe (TD, p 56).

14. Miss Balbir Singh asked for that decision to be internally reviewed. The matter was referred to an authorised review officer (‘ARO’), who is a Department officer not involved in the original decision. On 28 June 2022, an ARO confirmed the rejection decision (TD, p 39).

15. On 9 July 2022, the Applicant lodged an application for review by the Tribunal, i.e. First Review. On 9 November 2022 the First Review affirmed the decision to reject the claim for NHECP. The First Review found that the Applicant had not lodged her claim ‘within 14 days of the commencement of her isolation period and she did not contact Centrelink within 14 days of the commencement of her isolation period.’ and, in addition, that she was not in ‘financial hardship’ in the terms required by the Social Security (Coronavirus Economic Response-2020 Measures No 2) Determination 2020 (‘the Coronavirus Determination).

16. On 11 November 2022, Miss Balbir Singh applied to the General Division of the Tribunal for Second Review, as she is entitled to do.

    THE RESPONDENT’S SUBMISSION

17. The Respondent submitted that, under s 42B(1) of the AAT Act, the Tribunal may dismiss an application for review, at any stage of a proceeding, where it is satisfied that the application is (a) frivolous, vexatious, misconceived or lacking in substance; or (b) has no reasonable prospect of success; or (c) is otherwise an abuse of the process of the Tribunal. In this matter, Ms Huang made clear that it was not contended that Miss Balbir Singh was being vexatious in seeking Second Review or abusing process, but the Respondent did contend that there was no reasonable prospect of her succeeding in terms of merits review of the rejection decision.

18. The Respondent cited section 1061JIA of the Social Security Act 1991 (Cth) (‘the Act’) which states:

    Qualification – national health emergency

    (1)         A person is qualified for a crisis payment if;

    (a)On the day on which the claim for the crisis payment is made:

    (i)The person has made a claim (whether on the same day or an earlier day) for a social security pension or benefit; and

    (ii)The person is qualified for the pension or benefit; and

    (b)The person satisfies the requirements determined in an instrument under subsection (2).

    (2)         The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (1)(b). The Minister must be satisfied that the requirements relate to a national health emergency.

    (3)         Without limiting subsection (2), the requirements may depend on the Secretary being satisfied of one or more specified matters.

19. The Coronavirus Determination relevantly states, at cl. 6:

    Qualification for crisis payment – national health emergency

    For the purposes of paragraph 1061JIA(1)(b) of the Social Security Act 1991, the following requirements are determined:

    (a)         the Secretary is satisfied that the person is in financial hardship;

    (b)         the Secretary is satisfied that the person:

    (i)Is in quarantine or self-isolation as a result of advice from, or a requirement made by, the Commonwealth, a State or a Territory or a health professional regarding the coronavirus known as COVID-19; or

    (ii)Is caring for an immediate family member, or a member of the person’s household, who is covered by subparagraph (i); or

    (c)The Secretary is satisfied that the quarantine or self-isolation referred to in paragraph (b) commenced before 1 October 2022.

20. The Respondent also cited the relevant provisions in the Social Security Guide which was current at the time of the reviewable decision:

    3.7.4.45 Qualification for CrP – national health emergency (NHE)

    A person must make a NHE CrP claim within 14 days after the commencement of the quarantine or isolation period. The 14 day claim period may be met by contacting Services Australia about a claim in that period and making a claim within 14 days after the contact day.

    Need for a claim

    A person is required to make a claim for a NHE CrP either:

    ·on the day the person makes a claim for a social security pension or benefit; or

    ·after the person has made a claim for a social security pension or benefit.

    Claim within 14 days

    A person must make a NHE CrP within 14 days after the commencement of the quarantine or isolation period. The 14 day claim period may be met by contacting Services Australia about a claim in that period and making a claim within 14 days after the contact day.

    Required to be in quarantine or self-isolate for a period commencing before 1 October 2022

    In order to prevent the possible transmission of COVID-19, a person must be:

    required to be in quarantine or self-isolation as a result of advice from, or a requirement made by the Commonwealth, a state or territory or a health official regarding COVID-19, or

    caring for an immediate family member, or a member of the person’s household, who is required to be in quarantine or self-isolation as a result of advice from, or a requirement made by the Commonwealth, a state or territory or a health professional regarding COVID-19.

    The quarantine or self-isolation period for the person or the person they are caring for must have commenced before 1 October 2022. A person does not qualify for a NHE CrP for a quarantine or isolation period that commenced on or after 1 October 2022.

    To satisfy the condition that a person is required to be in quarantine or isolation, a NHE CrP claimant, or the person they are caring for (immediate family member or member of their household), must have a COVID-19 test with the date of the test being the commencement date for the qualifying self-isolation or quarantine period. Evidence of the test showing the date it was conducted must be provided when a NHE CrP claim is made.

21. It was not in contest that Miss Balbir Singh was in isolation for the period 14 December 2021 to 28 December 2021, nor that she was in self-isolation on the basis of advice from, or requirements of, in her case, the Western Australian Government. It was also not in contest that the Applicant had provided the result of a rapid antigen test.

22. However, the Respondent contended that the Applicant lodged her claim for NHECP on 18 February 2022, which was “outside the 14-day permissible claim period provided for by Instruction 3.7.4.45 of the Guide” and, based on the dates she was in quarantine, the Respondent submitted that the latest date the Applicant could submit a claim for NHECP was 8 January 2022.

23. The Respondent also contended, in a section of the Submissions on Dismissal headed ‘Severe financial hardship,’ that Miss Balbir Singh was not entitled to be paid NHECP because she was not in financial hardship, noting that she indicated in her combined claim for DSP and NHECP lodged on 18 February 2022, that she had savings totalling $4,978 (TD, p 53).

24. The Respondent acknowledged that there is no definition of ‘financial hardship’ in the Act or in the Coronavirus Determination but referred to qualification for other forms of crisis payments under the Act which require a claimant to be in ‘severe financial hardship’ and that that term is defined in s 19D(2) of the Act as:

    A person who is not a member of a couple is in severe financial hardship for the purposes of qualifying for a crisis payment if the value of the person’s liquid assets (within the meaning of subsection 14A(1)) is less than the fortnightly amount at the maximum rate of the social security pension or the social security benefit that is payable to the person.

25. The Respondent noted that at the time of Miss Balbir Singh’s isolation period (14 December 2021 to 28 December 2021) and her 18 February 2022 claim, the Guide to Australian Government Payments indicated that the DSP rate per fortnight for a single adult was $882.20. The Respondent noted that the savings the Applicant reported of $4,978 at the time was (then) more than five times the value of a regular fortnightly payment of DSP.

26. The Respondent conceded that the legislative definition relates to ‘severe financial hardship’ but contended she was also not in ‘financial hardship’ for the purposes of s 6(1) of the Coronavirus Determination, and that Miss Balbir Singh has not provided any other corroborative evidence of being in financial hardship at the time.

    APPLICANT’S SUBMISSIONS

27. The Applicant told the Tribunal that she did contact Centrelink ‘multiple times’ during the period of self-isolation and that she was informed that she did not need to lodge anything else.

28. She told the Tribunal that she had previously worked as a medical practitioner but has been unemployed in that profession since 2019 and had large debts, including unpaid student loans. Miss Balbir Singh said that her parents and siblings have assisted her with daily living expenses and that the funds that she had declared was not actually ‘owned’ by her but was ‘owned’ by her parents, who had retired from the workforce.

29. Miss Balbir Singh said she did claim for crisis payments with her original claim for DSP. In terms of citing an amount of ‘$4,978’ in terms of savings, she said that number was from an old claim for Jobseeker Payment in 2014 and that the number had been ‘saved’ and when she employed a typist to help her lodge her claim “I didn’t have time to change that. I apologise for not being focussed. I have been in financial crisis since being unemployed.”

30. Miss Balbir Singh said she estimated she made 30 phone calls between 8 November 2021 and the end of February 2021 and “clearly these related to my DSP and Covid crisis payment.”

31. The Applicant made the point to the Tribunal that when she was in isolation at the end of 2021 it was the Christmas and New Year period, and her typist was not available. She said Centrelink told her not to do anything else and that her crisis payment would be processed with her DSP claim. “Unfortunately, I was told many months later that it had not been processed and had been rejected. I trusted Centrelink. I had to focus on my injury claims and financial claims and needed a typist to focus on those things.”

32. The Tribunal directly asked Miss Balbir Singh whether she submitted that she claimed for crisis payment, and she said she did. She submitted that she decided to lodge a second claim for DSP and was ‘scolded’ by Centrelink because they said her earlier claim was still under consideration. She said that she was told the crisis payment had been paid to her.

33. The Tribunal noted that the Member at First Review had listened to recordings of phone calls. Miss Balbir Singh responded that “I am very sure I did hear covid crisis payment.” She said that her October 2021 application was a ‘two in one’ application.

34. The Tribunal noted that making contact is not enough, a person must also have subsequently lodged a claim. The Applicant responded that she was unwell, and it was the Christmas period.

    CONSIDERATION

35. The Tribunal makes clear that Miss Balbir Singh’s eligibility for DSP is not in contest before it. She was granted DSP on 5 April 2022, but that payment was backdated to 29 October 2021, which was the date when she first applied for DSP.

36. The Respondent suggested that because the Social Security Guide (‘the Guide’) stipulates that a claim for NHCEP must be made within 14 days after the commencement of the quarantine or isolation period and that these requirements are ‘not inconsistent’ with the claim requirements as stipulated in Part 3 of Division 1 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’).  Accordingly, the Respondent contends that there are ‘no cogent reasons’ to depart from the application of the Guide.

37. The problem with this contention is that there is no legislative requirement for a claim for NHCEP to be made within 14 days of a quarantine or isolation period. The relevant provisions in Part 3 of the Administration Act are only applicable where there has been an instrument made under s 14A of the same Act, and there is no evidence before the Tribunal that such an instrument has been made. However, keeping in mind that social security law should be interpreted with beneficial intent, and the Coronavirus Determination, read strictly, requires that a person is in quarantine or self-isolation at the time of claim, the Tribunal accepts the leeway that the Respondent suggests should be allowed, and that it would be consistent with policy for other social security payments for that leeway to be 14 days.

38. The Tribunal is satisfied that Miss Balbir Singh did not make a claim for the NHECP when she lodged her claim for DSP in October 2021. Only one of the 19 recordings of conversations that Miss Balbir Singh had with various officers of Centrelink in the period 14 December 2021 to 14 June 2022 refers to the crisis payment. On 1 June 2022, the Applicant rang the complaints and feedback line, returning a call earlier that day from a complaints officer. She was told that the complaints officer was not currently at her workstation. The officer who took the call offered to leave the complaints officer a note. The following exchange then took place:

    Applicant:Can you put in the note for her I was supposed to get Covid supplement because I was in quarantine for two weeks in December of 2021.

    Officer:When you said a Covid supplement, are you referring to our disaster payments?

    Applicant:Yes, I think that is what it is. You know, all the people who have to go into quarantine and stuff like that can get like additional assistance benefit.

    Officer:There are two. There’s the one for people that are already on an income like Disability Support Pension, that is usually a crisis payment...

    Applicant:No, that’s the one that everyone gets isn’t it, every six months or eight months, or something…

    Officer:The crisis payment is when you are on Disability Support Pension or Jobseeker and you’ve had to self-isolate…

    Applicant:          That’s the one.  

    Officer:It was crisis payment? Ok. There is the other one, which is pandemic leave disaster payment, which means you were working, and you missed out on work.

    Applicant:          No.

    Officer: That’s not it, sure. Is there anything else you would like a message to leave her?

    Applicant:          No, that’s it.

    Officer:Ok, just to clarify: you would like me to leave her a message, hopefully she will receive tomorrow morning, in relation that you should have received a crisis payment for Covid in December ’21?

    Applicant:          Yes.

    Officer:              Is there anything else you want to be a bit more specific about?

    Applicant:          No.

    Officer:              Ok, and you are requesting a call back?

    Applicant:          Yes.

    Officer:              Ok, is there anything else I can do for you?

    Applicant:          No, thank you so much.

    Officer:              Thanks for being so patient, have a lovely day.

    Applicant:          You too, bye.

1. I am satisfied there is no other reference to the NHECP in the 19 recordings. This request for a note to a complaints officer is consistent with the Applicant’s belief that she made a claim for NHECP in October 2021, but the facts before the Tribunal do not support that belief. She did not make a claim for NHECP until 18 February 2022, when she made her combined claim for DSP and NHECP.

2. Section 11 of the Administration Act sets out the general rule that, subject to certain specific exceptions which are not relevant in this case, a person who wants to be granted a social security payment (or a concession card) must make a claim for the payment or card in accordance with Part 3, Division 1 of the Act.

3. The Tribunal does not agree with the submissions of the Respondent that the Applicant is not entitled to the NHECP in respect of her isolation in December 2021 because her claim was lodged outside ‘the 14-day permissible claim period’. There is no claim period specified in the law that is before the Tribunal, only a policy interpretation of a provision of the Coronavirus Determination.

4. However, as set out above, the Coronavirus Determination requires that a claimant for NHECP must satisfy the Secretary (or the Tribunal, standing in the Secretary’s shoes) that the person is in financial hardship (cl. 6(a)).

5. In her DSP claim lodged on 18 February 2022, Miss Balbir Singh declared that she had a saving bank account with a balance of $4,978 and her share of these funds was 100 per cent. She said she had no cash on hand. At the hearing, the Applicant said she had large debts, and the money is ‘owned’ by her parents. She said her parents were aged and did not have large financial reserves.

6. While the Tribunal may accept at face value the uncorroborated submissions from the Applicant that she has debts from her academic studies, it must also accept her declaration that at the time of her claim for NHECP she had almost $5,000 in a savings bank account that was wholly controlled by her. The possible source of these funds does not affect the fact that they were at the time financial assets within her complete control, as she declared.

7. It is notable that the Coronavirus Determination stipulates that a person must be in ‘financial hardship,’ not ‘severe financial hardship.’ The omission of the intensive adjective must be interpreted as lowering the bar for satisfaction that that requirement is met.

8. Section 19D of the Act is quoted above and states that a person is in ‘severe financial hardship’ for the purposes of qualifying for a crisis payment if their liquid assets value is less than the fortnightly rate of the social security pension or benefit payable to them. In this case, that is the DSP. Noting that the Coronavirus Determination stipulates ‘financial hardship,’ not ‘severe financial hardship,’ the Tribunal considers a reasonable interpretation of how to assess this in a particular case, which is in general conformity with the legislative intention of s 19D, is to double the amount of liquid assets available to a person, in respect of the rate of their relevant pension or benefit.

9. The Tribunal’s conclusion in this respect is bolstered by the fact that there was no other material proffered by the Applicant that might support or corroborate a conclusion that she was in financial hardship at the relevant time.

10. The Respondent submitted that at the time of the isolation period in December 2021 and the combined claim in February 2022, the Guide to Australian Government Payments listed the DSP rate for a single adult was $882.20 per fortnight. Given that the amount of savings available to the Applicant at this time was more than five times this fortnightly rate, the Tribunal finds, even applying the lower bar that the Coronavirus Determination envisages, that Miss Balbir Singh was not in ‘financial hardship’ at the time of the claim.

11. Therefore, in summary, the Tribunal makes the following findings. There was no claim for NHECP in October 2021 or subsequently until the Applicant’s combined claim for DSP and NHECP in February 2022. The crisis payment element of that claim cannot succeed because the Tribunal is satisfied that Miss Balbir Singh was not in financial hardship, which is a legislative requirement set out in the Coronavirus Determination, which is required to be met under s 1061JIA(2) of the Act.

12. The Tribunal is also satisfied that there is no reasonable prospect of success of the Applicant succeeding on Second Review. It is understandable, because of the many interactions with Centrelink that the Applicant had over the relevant period, that she may have genuinely thought she had lodged a NHECP claim before she did.  I said in the hearing that the Member at First Review recorded in her reasons that she undertook a thorough exercise listening to recordings of the Applicant’s various conversations with Centrelink, which did not support her contention. I undertook a similar exercise at the urging of Miss Balbir Singh. The evidence from these recordings does not support her belief.

13. I am also satisfied, as a matter of fact, on the assets reported by Miss Balbir Singh, that she was not eligible for NHECP under the Coronavirus Determination when she made her claim because she was not in financial hardship. Therefore, there is no utility in the matter proceeding to a Second Review because there is no favourable relief that is available to the Applicant as someone not eligible for a payment.

    DECISION

14. The application is dismissed under s 42B(1) of the AAT Act because the Tribunal is satisfied it has no reasonable prospect of success.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................[sgn].......................................................

Associate

Dated: 27 February 2024

Date of hearing:	9 January 2024
Applicant:	Self-Represented
Counsel for the Respondent:	Ms Cindy Huang
Solicitors for the Respondent:	Sparke Helmore