Broomhall and Secretary, Department of Social Services Chief Executive Centrelink (Social security)
[2024] ARTA 475
•25 October 2024
Broomhall and Secretary, Department of Social Services Chief Executive Centrelink (Social security) [2024] ARTA 475 (25 October 2024)
Applicant/s: Mrs Broomhall
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/B190077
Tribunal: Member K Hamilton
Place:Brisbane
Date:25 October 2024
Decision:The Tribunal varies the decision under review so that the start date for Ms Broomhall’ jobseeker payment is 7 March 2024.
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – JobSeeker payment – principal home – proceeds of sale from the property – correct start date for JSP is 7 March 2024 – decision under review varied
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
This application concerns a decision made by Services Australia – Centrelink (Centrelink) to grant Ms Broomhall jobseeker payment (JSP) from 7 March 2024.
Ms Broomhall submitted claims for JSP on 8 December 2023, 15 December 2023 and 30 December 2023.
On 2 March 2024, Centrelink made a decision to grant Ms Broomhall JSP with effect from 7 March 2024, after Ms Broomhall had served a liquid assets test waiting period (LAWP) and an ordinary waiting period (OWP).
Ms Broomhall requested an internal review of Centrelink’s decision to grant her claim for JSP from 7 March 2024, and not from an earlier date. On 2 July 2024, a Centrelink authorised review officer (ARO) changed the decision, finding that Ms Broomhall was not subject to a LAWP and the start date for her JSP was 6 January 2024.
On 8 August 2024, Centrelink conducted an own motion review of the decision to grant Ms Broomhall’ JSP from 6 January 2024 and changed the decision so that the start date of Ms Broomhall’ JSP was 28 February 2024.
On 30 July 2024, Ms Broomhall applied to the Administrative Appeals Tribunal (AAT) seeking independent review of Centrelink’s decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was held on 25 October 2024, with Ms Broomhall participating by telephone. The Tribunal had regard to documents produced by Centrelink as relevant to Ms Broomhall’ application, numbered as pages 1–135. Centrelink’s decision of 8 August 2024 was not included in the documents produced by Centrelink, and the Tribunal requested Centrelink to provide this document prior to hearing. Centrelink’s letter of 8 August 2024 was duly provided and numbered by the Tribunal as pages C1–C2.
ISSUES
The issue which arises in this case is what is the correct start date for Ms Broomhall’ JSP. This requires consideration of:
· Whether Ms Broomhall is subject to a LAWP, and if so, what is the start and end date of that period?
· Whether Ms Broomhall is subject to an ordinary waiting period, and if so, what is the start and end date of that period?
· Can any part of the LAWP, or the OWP, be waived on the basis that Ms Broomhall is in severe financial hardship?
Ms Broomhall confirmed at hearing that she was not seeking waiver of any part of the LAWP or OWP on the basis of severe financial hardship. Rather, she contended that the proceeds from the sale of her property at [Suburb 1] should be exempt from being considered an asset for the purposes of applying a LAWP, on the basis that this property was her principal home.
CONSIDERATION
The relevant legislation is contained in:
· the Social Security Act 1991 (the Act); and
· the Social Security (Administration) Act 1999 (the Administration Act).
Clause 5 of Schedule 2 to the Administration Act provides that, if a person is subject to exclusion periods, which include waiting periods, their start date is the first day after the end of those periods.
If the value of a person’s liquid assets exceeds the person’s maximum reserve, the person is not qualified for JSP for a period unless the person has served a LAWP in relation to the claim before the beginning of that period: section 598 of the Act.
Subsection 598(2A) of the Act provides a formula for calculating the duration of a LAWP, as follows:
Section 14A of the Act sets out definitions for the liquid assets test. Liquid assets are the person’s cash and readily realisable assets and includes the liquid assets of the person and their partner. For a member of a couple, the maximum reserve amount is $10,000. Section 598 of the Act provides that the divisor for a member of a couple is $1,000. The maximum length of a LAWP is 13 weeks: subsection 598(2B).
In Ms Broomhall’s circumstances, the LAWP starts on the day following the day on which the person ceased work. As Ms Broomhall ceased work on 29 November 2023, her LAWP commences from 30 November 2023. The Social Security Guide (at 3.1.2.20) recognises that “The LAWP can be self-served in part or in full” prior to a person lodging a claim.
Ms Broomhall confirmed at hearing that she was outside of Australia from 3 December 2023 to 29 December 2023. A claim for JSP can only be made by a person who is an Australian resident who is in Australia at the time of the claim: section 29 of the Administration Act. This means that Ms Broomhall’ claims lodged on 8 December 2023 and 15 December 2023 are taken not to have been made.
Ms Broomhall told the Tribunal that she returned to Australia on 29 December 2023 and lodged a further claim for JSP the following day, 30 December 2023. Centrelink’s documents did not contain a copy of the claim lodged on 30 December 2023. However, the ARO accepted that Ms Broomhall had made a claim for JSP on 30 December 2023 and I accept Ms Broomhall’s evidence that she did in fact submit a claim on that date.
Ms Broomhall’s earlier claim forms for JSP state that the total amount of money available to her as at the date following her ceasing work on 29 November 2023 was $99,319 (claim submitted 8 December 2023) or $102,128 (claim submitted 15 December 2023). If all of these funds were included as Ms Broomhall’s liquid assets, the maximum LAWP of 13 weeks would apply.
Ms Broomhall said that nearly all of these funds were proceeds of sale of the [Suburb 1] property. She contended that this property was her principal home and therefore the proceeds of sale should be disregarded in applying a LAWP. If these funds were excluded from Ms Broomhall’ liquid assets, Ms Broomhall said that her savings were just under $10,000 at the time of her claim, meaning she would not be required to serve a LAWP.
Subsection 14A(4) of the Act provides that if a person sells their principal home, and intends to apply the whole or part of the proceeds of sale to acquiring another principal home within 12 months, then the proceeds of sale likely to be so applied are to be disregarded for the purposes of determining the person’s liquid assets.
Section 1118 of the Act also provides that if a person sells their principal home, so much of the proceeds of sale that are intended to be applied to purchase another residence that is the principal home of the person can be disregarded from the assets test for the purposes of the Act.
In Secretary, Department of Social Security and Gelders [1993] AATA 115, the Tribunal found that ‘assets’ for the purposes of the liquid assets tests are to be determined subject to section 1118. This case was, however, decided prior to the insertion into the Act of subsection 14A(4), which is a specific provision that defines the meaning of liquid assets for the purposes of, among other things, qualification for JSP and the application of the LAWP to JSP.
A specific provision will override a provision of general application. I consider that section 14A provides a specific definition of ‘liquid assets’ which must be applied in calculating a LAWP.
It is not, however, necessary in this matter for me to conclude whether subsection 14A(4) of the Act applies for the purposes of section 598 of the Act to the exclusion of section 1118. Both provisions contain a similar exemption for proceeds of sale of a principal home where such proceeds are intended to be applied to the purchase of a new principal home, however subsection 14A(4) exempts such proceeds for a period of 12 months, whereas the exemption from the assets test under section 1118 can be applied for a period of up to 24 months (or longer in particular circumstances).
For the reasons below, I am not satisfied that the funds held by Ms Broomhall at the time of her claim were proceeds from the sale of her principal home. Those proceeds of sale therefore cannot be disregarded either under section 14A(4) or section 1118 of the Act.
The term “principal home” is not directly defined in the Act but essentially means the home in which the person lives for the greatest amount of time each year: see the Social Security Guide at topic 4.6.3.30. In Re Samek and SDSS [1988] AATA 684, the Tribunal noted:
The concept of "the principal home" assumes, however, that there is more than one property which is used as a home. If one moves from home to home, then the home in which one spends most time would, logically, be the principal home. But in the context in which it appears, to talk of one home being a principal home, and another being a secondary home, the respective "homes" must be "property" which can be valued for the purposes of the Act. Thus, as between the city house and the holiday house owned by a retired couple in my earlier example, the city house would remain their principal home for as long as they spent the bulk of their time there. But once they spent the bulk of their time in their holiday house, it would become their principal home.
What is a person’s principal home is “a matter of fact and degree” (Re Helsham and Repatriation Commission [1986] AATA 145). A caravan or campervan can be a person’s principal home. What is necessary is a continued association with a property in which the person resides for the bulk of their time.
A property will not be a person’s principal home where they have ceased to reside in a property for an extended period. A property that is rented or leased to a tenant, particularly where the premises are leased on commercial terms and the tenant has an exclusive right of occupancy, cannot be the principal home of the landlord.
In Re Schultz and SDSS [2016] AATA 837, the owner of the property had moved out of their house, renovated and leased the property. The property was later sold without the owner ever returning to occupy the property. The property was found not to be the owner’s principal home from the date he vacated it.
Similarly, in Re Bennett and SDSS [1990] AATA 47, the applicant rented out his unit for a number of years before selling, and then claimed the proceeds of sale were exempt from the assets test. The unit was found not to be the applicant’s principal home as he had not lived in the property for a lengthy period.
In the present case, Ms Broomhall confirmed to the Tribunal that she purchased the [Suburb 1] property in October 2021. The property was rented out immediately. Ms Broomhall and her family remained living in their previous residence, which they had sold in June 2021 before purchasing the [Suburb 1] property, as the purchaser of their previous home allowed them to live in the home rent free for 6 months.
Ms Broomhall and her family then travelled around Australia for an extended period. Their intention was to return to the [City 1], however Ms Broomhall’ husband secured a 9-month contract in Perth.
In October 2023, Ms Broomhall sold the [Suburb 1] property. She and her family returned to the [City 1] in January 2024 intending to purchase a new home.
Ms Broomhall confirmed that she and her family had never resided in the [Suburb 1] property at any time. That property was therefore never her principal home and the proceeds of sale from that property are not exempt for the purposes of applying the assets test or the liquid assets test.
Applying the formula in section 598 has the result that Ms Broomhall is subject to a maximum 13‑week LAWP that starts on 30 November 2023 and ends on 27 February 2024.
As Ms Broomhall was not receiving an income support payment within the previous 13 weeks before she claimed JSP, she must also serve an ordinary waiting period of 7 days: section 620 and 621 of the Act. Section 621 of the Act requires that an ordinary waiting period start on the day after the end of any LAWP that is applicable to the person.
Ms Broomhall’s ordinary waiting period commences on 28 February 2024 and ends on 6 March 2024. This means that, subject to Ms Broomhall satisfying all other criteria for qualification and payability for JSP, the correct start date for her JSP is 7 March 2024.
DECISION
The Tribunal varies the decision under review so that the start date for Ms Broomhall’ jobseeker payment is 7 March 2024.
| Date(s) of hearing: | Friday, 25 October 2024 |
| Representative for the Applicant: | Self |
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