Burgess and Secretary, Department of Employment and Workplace Relations

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 756
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/213

GENERAL ADMINISTRATIVE DIVISION )

Re DARREN BURGESS

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B J McCabe
Date6 September 2006
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
SENIOR MEMBER

CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – advance payment – applicant not entitled to advance payment of social security entitlement
Social Security Act 1991 s 1061A, 1061ED
REASONS FOR DECISION

6 September 2006
Senior Member B J McCabe

introduction

1. Section 1061A of the Social Security Act 1991 permits the respondent to make an advance payment of a social security entitlement to a recipient in certain circumstances. The maximum amount of the advance payment available to an applicant is calculated in accordance with s 1061ED. Darren Burgess is in receipt of the disability support pension (DSP) and he asked the respondent for an advance payment. The Secretary says the maximum amount that can be advanced is $500. Mr Burgess says he is entitled to receive $31,500. The Social Security Appeals Tribunal agreed with the respondent. Mr Burgess has asked this Tribunal to reconsider the matter.
2.      The applicant cannot succeed for reasons I will briefly explain.
3.      Mr Burgess represented himself at the hearing, which was held in Grafton. Mr Belcher appeared on behalf of the respondent.
4.      I note the applicant has provided a bundle of documents to the Tribunal following the hearing. They do not appear to shed any light on the matters in issue in this case. It is unclear whether they even relate to this matter.
mr burgess’s argument
5.      Mr Burgess receives DSP. He is aware the legislation permits him to seek an advance payment of DSP. He says he would like to make an investment in income producing activities so that he can get back on his feet. He explained in his evidence that he has been unable to obtain financial accommodation from a bank because of his circumstances. He said Centrelink should act as a banker providing credit that would enable him to get back in the workforce. To that end, he has sought an advance of his DSP calculated as follows. He says he is aware each advance is in the amount of $500, or thereabouts. He is currently 38 and says he expects to live until he is 103. He wants to be paid in one lump sum what he takes to be his life-time entitlement (ie, for another 63 years) to advance payments of DSP. He says he is entitled to $31,500 in advance payments now.
the legislation
6. The Secretary does not dispute that Mr Burgess is entitled to seek an advance payment. The dispute is in relation to the amount. Section 1061ED(2) sets out the maximum amount of the advance. The legislation is quite clear: a person is not entitled to receive more than $500 in an advance. He or she may be entitled to a lower amount. Section 1061A(4)(c) says that an advance can only be made once within a 12 month period, and no advance can be paid if an earlier advance has not been repaid: s 1061A(4)(b).
7.      The effect of the legislation is beyond doubt. The Secretary is not authorised to accumulate advances into a lump sum greater than $500. The person requesting an advance may only seek one advance at a time, and each advance will be assessed against the criteria in the Act. Mr Burgess’s application for lump sum advances does not meet those criteria. His application was properly refused.
conclusion
8.      The decision under review is affirmed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.
Signed:         .....................................................................................
  Associate      Adam Ryan
Date of Hearing  10 July 2006
Date of Decision  6 September 2006
The applicant represented himself.
The respondent was represented by Mr Belcher, a departmental advocate.

Burgess filed an application with the Administrative Appeals Tribunal seeking review of a decision by the Department of Employment and Workplace Relations that they were not entitled to an advance payment of their disability support pension. The dispute centred on whether the applicant was entitled to an advance payment under section 1061A of the Social Security Act 1991, and the proper interpretation of section 1061ED. The Tribunal was required to determine if the applicant satisfied the eligibility criteria for an advance payment of their social security entitlement and whether there were any errors in the Department's decision-making process.

The Tribunal considered the provisions of the Social Security Act and the relevant case law. It found that the applicant did not meet the criteria for an advance payment as they had not provided the necessary evidence to substantiate their claim. The Tribunal also noted that the applicant had not demonstrated that they were unable to meet their living expenses without an advance payment, which is a requirement under section 1061A of the Act. Furthermore, the Tribunal held that the Department's decision was not erroneous and was made in accordance with the law.

Accordingly, the Tribunal affirmed the decision of the Department that the applicant was not entitled to an advance payment of their disability support pension. The Tribunal found that the applicant had not satisfied the eligibility criteria for an advance payment and that the Department's decision was correct. The Tribunal's decision was final and binding, and the applicant had no further right of review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established