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

[2023] AATA 38

Campbell and Secretary, Department of Social Services (Social services second review) [2023] AATA 38 (23 January 2023)

Division:GENERAL DIVISION

File Number(s):      2021/6199

Re:Mr John Campbell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Deputy President Dr P McDermott RFD

Date:23 January 2023

Place:Brisbane

I affirm the decision under review

..............................[SGD]..............................

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – statutory construction – whether liquid assets test waiting period correctly applied – whether applicant’s superannuation benefit considered as a liquid asset – whether liquid assets test waiting period can be shortened – where maximum liquid assets test waiting period applied – where decision under review affirmed

LEGISLATION
Income Tax Assessment Act 1997 (Cth)
Income Tax Assessment 1997 Regulations 2021 (Cth)
Retirement Savings Account Regulations 1997 (Cth)
Social Security Act 1991 (Cth)
Social Security (Coronavirus Economic Response – 2020 Measures No. 7) Determination 2020
Superannuation Industry (Supervision) Regulations 1994 (Cth)

CASES  
Elton and Repatriation Commission [2020] AATA 5361

Grant v Repatriation Commission [1999] FCA 1629

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

23 January 2023

INTRODUCTION

1. Mr Campbell (‘the applicant’) lodged an application for review of a decision by the Social Services and Child Support Division (‘SSCSD’) dated 20 August 2021 which affirmed a decision to apply a Liquid Assets Waiting Period (‘LAWP’) of 13 weeks to his jobseeker payment. The applicant’s application for review was lodged with this Tribunal on 2 September 2021.[1] The reasons provided by the applicant for him seeking review were:

   $20,000 (wife and I) was obtained under the release of superannuation for the covid pandemic, the cut off date being the end of December. Had this superannuation not been obtained, I would have received my support entitlements. Effectively my superannuation subsidised government support. There was no government advice on this. The government cannot do this without violating democratic principles.

   My wife did not have her support suspended because of her $10,000 ear release of superannuation, so I have been discriminated against.

   If the government determined that I had too much money, then my entitlements should have been paid back into our superannuation accounts.[2]

   (Sic)

   [1] Exhibit A, T Documents, T1, pages 1-4.

   [2] Ibid.

   Background

2. On 14 November 2020, the applicant ceased employment due to a shortage of available work. On 29 December 2020, the applicant lodged a claim for jobseeker payment. As part of his claim, the applicant disclosed his relationship to the respondent as well as information about his and his partner’s available funds and money held in various bank accounts.

3. On 15 January 2021, the applicant was granted jobseeker payment from 13 February 2021. In doing so, the respondent determined that a liquid assets test waiting period (‘LAWP’) of 13 weeks applied from 14 November 2020 to 12 February 2021. The applicant requested a review of the decision to apply a LAWP and on 10 March 2021 an Authorised Review Officer (‘ARO’) affirmed Services Australia’s decision.[3]

   [3] Exhibit A, T Documents, T2, pages 5-7.

4. On 20 August 2021, the SSCSD affirmed the decision of the ARO.[4]

   [4] Ibid.

5. A telephone hearing was held and after further submissions were sought from both the applicant and respondent.

   ISSUES

6. The applicant’s qualification and eligibility for jobseeker payment is not in contention in this matter. The issue for my determination in this matter is whether the LAWP of 13 weeks should be applied to the applicant’s jobseeker payment.[5]

   [5] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, page 1, at [2].

   Relevant Legislation

7. The relevant law and principles applicable to this matter are mainly found in the Social Security Act 1991 (Cth) (‘the Act’).

8. Subsections 14A(1) and (2) of the Act provide the following:

   14A Social security benefit liquid assets test definitions

   (1) For the purposes of Parts … 2.12 …:

   liquid assets, in relation to a person, means the person’s cash and readily realisable assets, and includes:

   (a) the person’s shares and debentures in a public company within the meaning of the Corporations Act 2001; and

   (b)  amounts deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately); and

   (c)  amounts due, and able to be paid, to the person by, or on behalf of, a former employer of the person;

   but does not include:

   (d)  a roll‑over superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or

   (daa)  a superannuation lump sum (within the meaning of that Act) that is a contributions‑splitting superannuation benefit (within the meaning of that Act); or

   (dac) the surrender value of a life policy (within the meaning of the Life Insurance Act 1995); or

   (da)  an amount of an AGDRP that the person received, if the Secretary is satisfied that the length of time since receiving the payment is still reasonable in the circumstances; or

   (db)  an amount of an AVTOP that the person received, if the Secretary is satisfied that the length of time since receiving the payment is still reasonable in the circumstances; or

   …

   maximum reserve, in relation to a person, means:

   (a) if the person is not a member of a couple and does not have a dependent child—$5,000; or

   (b) in any other case—$10,000.

   (2) For the purposes of Parts … 2.12 …, a person’s liquid assets are to be taken to include:

   (a) the liquid assets of the person’s partner; and

   (b) the liquid assets of the person and the person’s partner.

   …

9. Section 598 of the Act provides:

   598Liquid assets test waiting period

   (1)  Subject to subsections (4A), (5), (6), (7), (8) and (8B), if:

   (a)  the value of a person’s liquid assets exceeds the person’s maximum reserve on:

   (i)  if subparagraph 593(1)(a)(ii) does not apply in relation to the person—the day following the day on which the person ceased work or ceased to be enrolled in a full time course of education or of vocational training; or

   (ia)  if subparagraph 593(1)(a)(ii) applies in relation to the person—the day on which the person becomes incapacitated for work or study; or

   (ii)  in any case—the day on which the person claims a jobseeker payment; and

   (b)  the person is not a transferee to a jobseeker payment;

   the person is not qualified for a jobseeker payment for a period unless the person has served the liquid assets test waiting period in relation to the claim before the beginning of that period.

   Note 1:       For liquid assets see section 14A.

   Note 2:       For maximum reserve see section 14A.

   Note 3:       For served the waiting period in relation to a liquid assets test waiting period, see subsection 23(10A)

   (2)  The liquid assets test waiting period in relation to the claim is to be worked out under subsections (2A), (2B) and (2C).

   (2A)  Work out the number of formula weeks (disregarding any fractions of a week) in relation to the claim using the formula:

   Liquid Assets – Maximum reserve amount

   ___________________________________

   Divisor

   where:

   liquid assets means the person’s liquid assets.

   maximum reserve amount means the maximum reserve in relation to the person under subsection 14A(1).

   divisor means, in relation to a person:

   (a)  if the person is not a member of a couple and does not have a dependent child—$500; or

   (b)  otherwise—$1,000.

   (2B) If the number of formula weeks is equal to or greater than 13 weeks, the liquid assets test waiting period in relation to the claim is 13 weeks.

   (2C) If subsection (2B) does not apply, the liquid assets test waiting period in relation to the claim is the number of weeks equal to the number of formula weeks.

   …

   (3A) If the person is a member of a couple, the liquid assets test waiting period in relation to the claim starts on the last occurring of the following days:

   (a)  either:

   (i)  if subparagraph 593(1)(a)(ii) does not apply in relation to the person—subject to subsection (3B), the day following the day on which the person ceased work or ceased to be enrolled in a full time course of education or of vocational training; or

   (ii)  if subparagraph 593(1)(a)(ii) applies in relation to the person—subject to subsection (4), the day on which the person became incapacitated for work or study;

   (b)  if, when the claim is made, the person’s partner has ceased work—the day following the day on which the person’s partner ceased work;

   (ba) if, when the claim is made, the person’s partner has ceased to be enrolled in a full time course of education or of vocational training—the day following the day on which the person’s partner so ceased;

   (c)  if, when the claim is made, the person’s partner is incapacitated for work—the day on which the person’s partner became incapacitated for work.

   …

10. The LAWP may be reduced in certain circumstances, such as unavoidable or reasonable expenditure and severe financial hardship as provided for by subsection 598(5) of the Act, which provides:

    (5)  If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while serving a liquid assets test waiting period, the Secretary may determine that the person does not have to serve the whole, or any part, of the waiting period.

    …

11. Severe financial hardship for a member of a couple is defined in subsection 19C(3) of the Act as:

    Meaning of in severe financial hardship: person who is a member of a couple

    (3)  A member of a couple who makes a claim for parenting payment, jobseeker payment, austudy payment, special benefit, disability support pension, carer payment or one of the following allowances:

    (e)  youth allowance;

    is in severe financial hardship if the value of the couple’s liquid assets (within the meaning of subsections 14A(1) and (2)) is less than twice the fortnightly amount at the maximum payment rate of the payment, benefit, pension or allowance that would be payable to the person:

    (f)  if the person’s claim were granted; and

    (g)  in the case of a person to whom an income maintenance period applies, if that period did not apply.

12. Unavoidable or reasonable expenditure is defined in subsection 19C(4) of the Act, which provides:

    Meaning of unavoidable or reasonable expenditure

    (4)Unavoidable or reasonable expenditure, in relation to a person who is serving a liquid assets test waiting period or is subject to a seasonal work preclusion period, or a person to whom an income maintenance period applies, or in relation to working out if a person is subject to an ordinary waiting period, includes, but is not limited to, the following expenditure:

    (a)the reasonable costs of living that the person is taken, under subsection (6) or (7), to have incurred in respect of:

    (i)     if the person is serving a liquid assets test waiting period—that part of the period that the person has served; or

    (ii)    if the person is subject to a seasonal work preclusion period—that part of the period that has expired; or

    (iii)   if an income maintenance period applies to the person— that part of the period that has already applied to the person; or

    (iv)   in relation to working out if the person is subject to an ordinary waiting period—the 4 weeks immediately before the person’s start day mentioned in paragraph 500WA(1)(a), 549CA(2)(a), 620(1)(a) or 693(a);

    (b)the costs of repairs to, or replacement of, essential whitegoods situated in the person’s home;

    (c)school expenses;

    (d)funeral expenses;

    (e)essential expenses arising on the birth of the person’s child or the adoption of a child by the person;

    (f)expenditure to buy replacement essential household goods because of loss of those goods through theft or natural disaster when the cost of replacement is not the subject of an insurance policy;

    (g)the costs of essential repairs to the person’s car or home;

    (h)premiums in respect of vehicle or home insurance;

    (i)expenses in respect of vehicle registration;

    (j)essential medical expenses;

    (k)any other costs that the Secretary determines are unavoidable or reasonable expenditure in the circumstances in relation to a person.

    However, unavoidable or reasonable expenditure does not include any reasonable costs of living other than those referred to in paragraph (a).

    Applicant’s Contentions

13. The applicant did not file any material prior to the hearing. At the hearing, the applicant confirmed this was the case, and that all evidence he believed to be relevant had already been filed.

14. The applicant asserted that he had followed the advice of the then Prime Minister in seeking funds from his superannuation as he was in financial distress. The applicant stated that he only had until the end of December 2020 to do this.

15. The applicant further submitted at the hearing that if he was not immediately eligible for jobseeker payment due to the LAWP, then the monies he would have been paid if he were entitled, should be deposited back into his Superannuation Fund. It appears to be the case from the applicant’s completed application for review form, that he considers that he has effectively used his superannuation to subsidise government support that he would have otherwise been entitled to.

16. Under cross-examination, the applicant confirmed that he had in excess of $20,000 in his bank account at the time of his jobseeker claim (this being 29 December 2020). The applicant further confirmed that he had in excess of $12,000 in a separate bank account in late February 2021.

17. The applicant, in his closing submission to this Tribunal stated:

    As superannuation is not included in the assets test and early release of superannuation does not affect payments for those on income support ( as was the case with my wife ), and with the directive from the Prime Minister that citizens can access up to $10,000 from their superannuation fund should they be facing financial hardship due to the COVID pandemic if they apply before the end of December, then it made sense to apply knowing that I would not be re-entering the workforce in the midterm due to a permanent injury; I cannot see how Centerlink can argue that this superannuation I received can substitute for my entitlement of income support.

    Both my wife and I are currently still on income support and I unlikely to re-enter the workforce in the midterm due to a permanent injury.

    Had my wife and I not received early release of superannuation, I would not been denied income support.[6]

    (Sic)

    [6] Applicant’s closing submission, undated.

18. The applicant’s primary contention is that the monies withdrawn from his superannuation fund should not be considered when calculating any LAWP as superannuation assets are not to be included when calculating the LAWP.

19. With the exception of the evidence given to the SSCSD that he intended to buy a car with the withdrawn funds, the applicant has not contended that the provisions which allow for a reduction of the LAWP apply to his circumstances.

    Respondent’s Contentions

20. I have found assistance in the Statement of Facts, Issues and Contentions of the respondent (Exhibit B), which outlines the submissions of the respondent in relation to whether the LAWP has been calculated correctly and whether or not it can be reduced in accordance with the requirements of the Act as follows:

    Section 598 of the Act relevantly provides that if a person’s liquid assets exceed the person’s maximum reserve amount on the day after the person ceased employment, or the day they claimed jobseeker payment, the person is not qualified for jobseeker payment unless they have served the LAWP in relation to the claim before the beginning of that period.[7]

    [7] Ibid n4, at [11].

    …

    Subsections 14A(1) and (2) of the Act provide that for the purposes of Part 2.12 of the Act (which contains the LAWP provisions contained within section 598 of the Act) ‘liquid assets’ is defined as a person’s and their partner’s liquid assets, including their cash and readily realisable assets.[8]

    [8] Ibid, at [12].

    …

    Subsection 14A(1)(e) of the Act as at 14 November 2020 provided that the maximum reserve for a partnered person to be $10,000.[9]

    …

    The LAWP is worked out in accordance with the formula set out in section 598(2) of the Act. That is, the totality of a person’s liquid assets are identified, the maximum reserve amount is then subtracted from that amount and the resulting figure is then divided by the relevant divisor at the time.[10]

    As at 14 November 2020, subsection 598(2A)(b) of the Act provided that the relevant divisor for a member of a couple is $1,000.[11]

    …

    Subsection 598(2B) of the Act also provides that if the LAWP formula above determines a period equal to or greater than 13 weeks, the liquid assets test waiting period in relation to the claim is 13 weeks.[12]

    …

    The exception to serving a LAWP is contained in subsection 598(5) of the Act. That section provides a discretion to a decision maker to determine that a person does not have to serve the whole or part of a LAWP if the decision maker is satisfied that a person is in severe financial hardship because they incurred unavoidable or unreasonable expenditure while serving the LAWP.[13]

    Subsection 19C(3) of the Act provides that a person who is a member of a couple is in severe financial hardship if the value of their liquid assets is less than twice the maximum fortnightly amount of the payment they have claimed. In this case, that figure is $1,475.20.[14]

    Subsection 19C(4) of the Act provides that an unavoidable or reasonable expenditure in relation to a person serving a LAWP can include reasonable costs of living that person is taken to have incurred in respect of that part of the LAWP that the person has served or, amongst other things, the costs of essential repairs to the person’s car.[15]

    [9] Ibid at [13].

    [10] Ibid, at [14].

    [11] Ibid, at [15].

    [12] Ibid, at [18].

    [13] Ibid, at [20].

    [14] Ibid, at [21].

    [15] Ibid, at [22].

21. The respondent contends that the correct formula to be applied to calculate the Applicant’s LAWP is as follows:

    ($32,000[16] - $10,000)/$1,000 = 22 weeks.[17]

    [16] The Applicant stated that he and his partner had $10,000 in an ANZ bank account and $22,000 cash on hand on his jobseeker claim, lodged on 29 December 2020. See Exhibit A, T-Documents, T6, pages 58-60.

    [17] Ibid n4, at [17].

22. The respondent therefore contends that the applicant was subject to the maximum LAWP of 13 weeks, running from 14 November 2020 to 12 February 2021.[18]

    [18] Ibid, at [19].

23. The respondent has addressed the evidence given by the applicant during the review by the SSCSD that he and his partner each withdrew $10,000 from their respective superannuation funds, with the intention to purchase a car. This intended purchase did not eventuate, and consequently these funds were retained by the applicant.[19]

    [19] Ibid, at [23].

24. The respondent relies on the evidentiary material which shows that the applicant had more than $1,475.20 whilst serving the LAWP and that therefore the applicant was not in severe financial hardship within the meaning of subsection 19C(3) of the Act. The respondent contends therefore, that the LAWP cannot be reduced in accordance with subsection 598(5) of the Act.[20]

    [20] Ibid n4, at [24].

25. The respondent provided closing submissions in which they addressed the effect of the Social Security (Coronavirus Economic Response – 2020 Measures No. 7) Determination 2020 (‘the Coronavirus Determination’) on the present application.[21] During the hearing I requested that the respondent file a copy of the Coronavirus Determination which I stated would be entered as Exhibit C. I took this action as it did not appear to me that the applicant had the benefit of reviewing the Coronavirus Determination in its entirety.

    [21] Respondent’s Closing Submission dated 12 May 2022.

1. Item 14 in Schedule 1 of the Coronavirus Determination varied the Act so that the LAWP did not apply to certain persons applying for jobseeker payment:

   14 Variation of section 598

   Section 598 of the Social Security Act 1991 is varied by omitting subsection (8C) and substituting the following subsection:

   (8C) Despite subsection (1), a person is not subject to a liquid assets test waiting period if:

   (a) any part of that period occurs during the period starting on 25 March 2020 and ending on 24 September 2020; and

   (b) the person claims a jobseeker payment on or before 24 September 2020.

2. The respondent further contends that the starting date of the applicant’s LAWP is the date he ceased employment which was 14 November 2020 and that date is the earliest possible date the LAWP could be applied from.[22] The respondent further contends that as the applicant’s LAWP commenced on 14 November 2020 that the exemption from serving the LAWP pursuant to paragraph (a) of subsection 598(8C) of the Act as inserted by Item 14 of Schedule 1 of the above Coronavirus Determination does not apply to the applicant’s circumstances.[23]

   [22] Ibid.

   [23] Ibid.

3. The respondent contends that as the applicant’s claim for jobseeker payment was lodged on 29 December 2020 the exemption from serving the LAWP, pursuant to paragraph (b) of subsection 598(8C) of the Act (as inserted by Item 14 of Schedule 1 of the Coronavirus Determination) does not apply to the applicant.[24]

   [24] Ibid.

   consideration

4. I start by thanking both the applicant and respondent for their assistance in determining this matter. I consider that the applicant has conducted himself in an exemplary manner throughout the review process. The applicant has been open and honest throughout the entire process and made full disclosure of both his assets and relationship.

5. The submission of the applicant that money in a superannuation fund is not included in the assets test, and therefore, the funds that he withdrew from his superannuation should not be included in the assets test is not consistent with the Act. Whilst I can appreciate the logic in the applicant’s argument, the fact remains that he withdrew the funds from his superannuation fund, which meant that those monies were liquid assets and therefore subject to an assessment under s 598 of the Act.

6. It is unfortunate that the applicant is in the position he is regarding his application before this Tribunal. I consider that the applicant has acted honestly and with integrity since lodging his application for jobseeker. The applicant stated that he relied upon the public statements of the then Prime Minister when withdrawing monies from his superannuation fund.

7. There was some brief discussion at the hearing in this matter which alluded to the fact that the applicant may have had more money readily available than the $32,000 used to calculate the LAWP. Due to the application of subsection 598(2B) of the Act, I do not consider this to be an issue of any relevance. Nor do I consider that the applicant attempted to hide any liquid assets from the respondent.

8. The applicant’s submission that had he applied for the superannuation fund withdrawal after being approved for jobseeker that he would not be in this situation may very well be the case. The difficulty for the applicant in these circumstances is that while he states he relied on public statements of the then Prime Minister, I am bound to apply the clear provisions of the Act.

9. Although the parties have not provided any submissions in relation to whether the withdrawal of the applicant’s superannuation funds could be considered a superannuation benefit which is exempt from the LAWP calculation, I consider than I am obliged to consider this issue. In reaching this conclusion I have followed the decision of Deputy President Forgie (whose extensive contributions to the jurisprudence of this Tribunal is here acknowledged) in the matter of Elton and Repatriation Commission[25] who stated at [47]:

   I also note that there is material pointing to aspects of the factors in cll 6(j) and (k). They were not raised by the parties but I am obliged to consider any case raised by the material and am not limited to the case put on their behalf.

   [25] [2020] AATA 5361; see also Grant v Repatriation Commission [1999] FCA 1629.

10. I have endeavoured (in accordance with the objectives of the Tribunal[26]), to outline my consideration of the applicant’s submission that as $20,000 of the amount used to calculate the LAWP was previously superannuation funds that it should be exempt from any LAWP calculation. I note that subsections 14A(1)(d) and 14A(1)(daa) of the Act (outlined above in paragraph 8) provide that a roll-over superannuation benefit and a superannuation lump sum that is a contributions-splitting superannuation benefit (both within the meaning of the Income Tax Assessment Act 1997 (Cth)) (the ‘ITA’) are not considered to be liquid assets for the purposes of calculating the LAWP.

    [26] Administrative Appeals Tribunal Act 1975 (Cth), section 2A.

11. In order to determine whether the applicant’s withdrawal from his superannuation can be construed as a contributions-splitting superannuation benefit pursuant with subsection 12A(1)(daa) of the Act, I turn my attention to the ITA. Section 915-1(1) of the ITA provides the following definition for a contributions-splitting superannuation benefit:

    contributions‑splitting superannuation benefit has the meaning given by the regulations.

12. The Income Tax Assessment 1997 Regulations 2021 (Cth) (‘the ITA Regulations’) provide:

    995‑1.04  Definition of contributions‑splitting superannuation benefit

    For the purposes of the definition of contributions‑splitting superannuation benefit in subsection 995‑1(1) of the Act, contributions‑splitting superannuation benefit means:

    (a)  a payment made in accordance with subregulation 4.42(2) of the RSA Regulations; or

    (b) a payment made in accordance with subregulation 6.45(2) of the SIS Regulations.

13. In accordance with the above, I now turn my attention to the Retirement Savings Account Regulations 1997 (Cth) (‘the RSA Regulations’), and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘the SIS Regulations’).

14. With respect to the definition of a contributions-slitting superannuation benefit, regulation 4.42 of the RSA Regulations provides:

    4.42  Decision on application

    (1)  An RSA provider may accept an application made under subregulation 4.41(1) if all of the following conditions are satisfied:

    (a)  the application complies with regulation 4.41;

    (b)  the RSA provider has no reason to believe the statement mentioned in subregulation 4.41(3) is untrue;

    (c)  the amount to which the application relates is not more than the maximum splittable amount for the relevant financial year.

    Note:          An RSA provider may voluntarily provide a service that allows an RSA holder to roll over, transfer or allot an amount to the applicant’s spouse (a splittable contribution). The RSA provider is not required to offer the service.

    (2)  An RSA provider that accepts an application in accordance with subregulation (1) must as soon as practicable, and in any case within 30 days after receiving the application, roll over, transfer or allot the amount of benefits for the benefit of the receiving spouse.

    …

15. There is no evidence to indicate that the applicant’s withdrawal of funds from his superannuation fund falls within the scope of subregulation 4.42(2) of the RSA Regulations.

16. I now turn my attention to the SIS Regulations, regulation 6.45 provides:

    6.45  Decision on application

    (1)  A trustee may accept an application made under subregulation 6.44(1) if all of the following conditions are satisfied:

    (a)  the application complies with regulation 6.44;

    (b)  the trustee has no reason to believe that the statement mentioned in subregulation 6.44(3) is untrue;

    (c)  the amount to which the application relates is not more than the maximum splittable amount for the relevant financial year.

    Note:          A superannuation fund trustee may voluntarily provide a service that allows a member to rollover, transfer or allot an amount to the applicant’s spouse (a splittable contribution). The fund is not required to offer the service.

    (2)  A trustee that accepts an application in accordance with subregulation (1) must as soon as practicable, and in any case within 30 days after receiving the application, roll over, transfer or allot the amount of benefits for the benefit of the receiving spouse.

    …

17. Subregulation 6.44(1) of the SIS Regulations provides:

    6.44  Application to roll over, transfer or allot an amount of contributions

    (1)  A member of a regulated superannuation fund may, in a financial year, apply to the trustee of the fund to roll over, transfer or allot an amount of benefits, for the benefit of the member’s spouse, that is equal to an amount of the splittable contributions made to that fund by, for, or on behalf of the member in:

    (a)  the last financial year that ended before the application; or

    (b)  the financial year in which the application is made—where the member’s entire benefit is to be rolled over, transferred or cashed in that year.

    Note: This arrangement applies at the request of the member, and is not an arrangement by which the member’s superannuation interest is subject to a payment split under Part VIIIB or VIIIC of the Family Law Act 1975. Part 7A of these Regulations deals with those payment splitting arrangements.

18. There is no evidence that the release of money from the applicant’s superannuation was actioned pursuant to the above subregulations of the SIS Regulations.

19. In order to determine whether it is possible that the applicant’s superannuation withdrawal falls within the definition of subsection 12A(1)(d) of the Act, I turn my attention to the ITA as required by the Act. A roll-over superannuation benefit is defined in section 306-10 of the ITA as:

    306‑10  Roll‑over superannuation benefit

    A *superannuation benefit is a roll‑over superannuation benefit if:

    (a)  the benefit is a *superannuation lump sum and a *superannuation benefit; and

    (b)  the benefit is not a superannuation benefit of a kind specified in the regulations; and

    (c)  the benefit satisfies any of the following conditions:

    (i)  it is paid from a *complying superannuation plan;

    (ii)  it is an *unclaimed money payment;

    (iii)  it arises from the commutation of a *superannuation annuity; and

    (d)  the benefit satisfies any of the following conditions:

    (i)  it is paid to a complying superannuation plan;

    (ii)  it is paid to an entity to purchase a superannuation annuity from the entity.

20. It appears likely that the release of money from the applicant’s superannuation fund was facilitated by regulation 4.22B of the RSA Regulations, which provides:

    4.22B  Release of benefits on compassionate ground—coronavirus

    (1)  A person may apply to the Regulator for a determination that an amount of the person’s preserved benefits, or restricted non‑preserved benefits, in a specified RSA or RSAs may be released on the ground that it is required to assist the person to deal with the adverse economic effects of the coronavirus known as COVID‑19 if:

    (a)  unless paragraph (b) applies—subregulation (1A) applies in respect of the person; or

    (b)  in a case where regulation 4.01B (temporary residents) applies to the person:

    (i)  the person is covered by subregulation (1B); and

    (ii)  subregulation (1C) applies in respect of the person.

    (1AA)  For the purposes of subregulation (1), treat a permanent resident of New Zealand as being a permanent resident.

    (1A)  For the purposes of paragraph (1)(a), this subregulation applies in respect of the person if:

    (a)  the person is unemployed; or

    (b) the person is eligible to receive any of the following under the Social Security Act 1991:

    (i)  jobseeker payment;

    (ii)  parenting payment;

    (iii)  special benefit; or

    (c) the person is eligible to receive youth allowance under the Social Security Act 1991 (other than on the basis that the person is undertaking full‑time study or is a new apprentice); or

    (d) the person is eligible to receive farm household allowance under the Farm Household Support Act 2014; or

    (e)  on or after 1 January 2020 the person was made redundant, or their working hours were reduced by 20% or more (including to zero); or

    …

21. There is no evidence which indicates that the applicant’s superannuation withdrawal falls within the scope of the definition of a roll-over superannuation benefit as defined by s 306-10 of the ITA. Additionally, if it is in fact the case that the applicant accessed their superannuation funds under regulation 4.22B, then it would be expressly excluded from being considered such a benefit due to the operation of subsection 306-10(b) of the ITA.

22. There is no evidence to indicate that any of the statutory exceptions to the LAWP should apply in these circumstances, nor has the applicant advanced such a contention. It is evident that the applicant had funds in excess of the maximum reserve amount for someone in his circumstances. Regardless of the intention of the applicant to use these funds to purchase a car, the fact remains that this purchase did not eventuate. Therefore, I am unable to consider the necessary and reasonable expenditure exemptions contemplated by subsection 19C(4) of the Act. I do not have any authority to shorten or waive this period on these grounds.

23. Subsection 598(2B) provides that the LAWP to be applied to any LAWP calculation which results in a LAWP in excess of 13 weeks, is 13 weeks. In the present circumstances, the applicant’s LAWP has been correctly applied, and no exemptions apply. The LAWP to be applied to the applicant is that of 13 weeks, commencing on 14 November 2020 and ending on 12 February 2021.

24. Further, I consider the fact that the applicant contends that he only had until the end of December to apply for his superannuation withdrawal is not material in determining this matter. I have formed this opinion due to the operation of subsection 598(8C) as inserted by Item 14 of Schedule 1 of the Coronavirus Determination which as I have already discussed, only applies to applications for jobseeker payments made between 25 March and 24 September 2020 and in which any part of the LAWP falls within that date range.

    conclusion

25. The actual statement of the then Prime Minister which the applicant states he relied on is not in evidence. In my opinion it has no relevance because my duty is to apply the clear terms of the Act. There is no cogent evidence before me which enables the LAWP to be shortened in the applicant’s circumstances. I am therefore required to determine whether the waiting period of 13 weeks was correctly calculated.

26. I accept that based on the evidence contained within Exhibit A, as well as the applicant’s admission at the hearing that he had at the very least, $32,000 available in liquid assets. The formula to determine the LAWP in the present circumstances is as follows:

    ($32,000 - $10,000)/$1,000 = 22 weeks

    Although the calculation pursuant to the formula prescribed by the Act results in a period of 22 weeks, due to the operation of subsection 598(2B) of the Act the LAWP cannot exceed 13 weeks.

27. I accordingly find that the LAWP of 13 weeks was correctly determined.

    decision

28. I affirm the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..................................[SGD]......................................

Associate

Dated: 23 January 2023

Date(s) of hearing:	3 May 2022
Date of final submission:	10 June 2022
Advocate for the Respondent:	Jade Rapson
Solicitors for the Respondent:	Services Australia