Carol Stien and Secretary, Department of Social Services
[2014] AATA 477
•4 July 2014
[2014] AATA 477
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2473
2014/2474
Re
Carol Stien
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 4 July 2014 Date of written reasons 15 July 2014 Place Adelaide For the reasons given orally at the conclusion of the hearing, the applicant’s application for a stay of part of the decision of the Social Security Appeals Tribunal dated 14 April 2014, pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975, is refused.
........................................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY - disability support pension - evidence obtained by respondent that applicant received excessive income during relevant period - decision of Social Security Appeals Tribunal affirming respondent’s decision to suspend and then cancel payment of disability support pension - applicant denies deriving excessive income.
PRACTICE AND PROCEDURE - application for stay - hardship, likelihood of recovery by respondent, prospects of success – applicant’s history relating to disability support pension unclear - necessary for substantive question to be decided by Tribunal - application for stay refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), subsection 41(2)
Social Security Act 1991 (Cth), ss 8(1), 1064, 1223
CASES
Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454
Re Secretary Department of Families, Housing, Community Services and Indigenous Affairs and Kelty [2009] AATA 255
Re Opie and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 769REASONS FOR DECISION
Senior Member R W Dunne
15 July 2014
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, the Tribunal determined to furnish to the applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Merrill Corporation. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
An extract from the said transcript is annexed hereunto and furnished to the respondent and to the applicant as it is the reason for the Tribunal’s decision.
I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne .......................[Sgd].................................................
Administrative Assistant
Dated 15 July 2014
Date(s) of hearing 4 July 2014 Applicant In person Advocate for the Respondent Mr A Schatz Solicitors for the Respondent Department of Human Services EXTRACT OF TRANSCRIPT OF PROCEEDINGS
…
SENIOR MEMBER: Good morning, Ms Stien.
MS C. STIEN: Good morning.
MR A. SCHATZ: I’m Schatz, for the respondent, if it please, your Honour.
SENIOR MEMBER: Now, the matter that’s before me this morning is in relation to your application for a stay. And this is a stay of a decision that was made – you’re seeking a stay of a decision that was made by the Social Security Appeals Tribunal, and I note from my file that that decision was made on 14 April 2014. You’ve seen a copy of that decision obviously?
MS STIEN: I would have, yes.
SENIOR MEMBER: Yes. Now, so I can understand where we’re coming from, I note that there were two parts to the decision of that tribunal. The tribunal affirmed the decision to raise and recover a debt but writes off the recovery of the debt until 1 January 2015. That was part one.
[Emergency warning system test]
SENIOR MEMBER: We’ll just wait for a moment because it will get noisy. Okay. I think that concludes those proceedings. The second aspect or part of the decision of the SSAT affirmed the decision to suspend and then cancel the payment of a DSP, disability support pension, to you. Now, I assume it’s that part of the decision that you’re seeking to stay. Is that correct?
MS STIEN: Correct.
SENIOR MEMBER: Yes. All right. Now, what are your – I noticed when you applied to have the stay in your application forms – bear with me – you say:
I do not have any money or income. I’m disabled and have ongoing and current medical issues. My disability support pension is my food, transport, rent, phone, utilities, medical and all living expenses. This case needs to be investigated and hopefully the facts are made clear on 29 July 2014.
Now, that date is the date of the next preliminary conference. Have you had a PC yet – a preliminary conference yet, with one of our conference registrars?
MS STIEN: I had one. No, I don’t - - -
MR SCHATZ: That’s the date of the first preliminary conference, if
that’s - - -
SENIOR MEMBER: Yes. Thank you. So you haven’t; that’s the first one. So you were aware of that and you say, “Hopefully the facts are made clear on 29 July”. What do you anticipate will take place on 29 July?MS STIEN: Well, do I call you, your Honour, or - - -
SENIOR MEMBER: Just Senior Member, that’s fine.
MS STIEN: Senior Member, well, I haven’t done this. I’m innocent of all of this, and the police are investigating. So there’s stacks and stacks of evidence as to whoever has perpetrated – used my identity. I was at the police station last night and they’re going to contact me this afternoon after he talks to his sergeant. But they want to know who’s doing it too because someone’s obviously using my identity, and still is, and defrauding Centrelink themselves, I assume.
SENIOR MEMBER: Yes.
MS STIEN: I’ve got nothing to do with it at all. And there is so much evidence, it’s – and no one has investigated.
SENIOR MEMBER: But you – before the SSAT, before the Social Security Appeals Tribunal, you gave evidence. And at that tribunal you say you were introduced by a female friend to a man called Dominic Zambonya.
MS STIEN: Correct.
SENIOR MEMBER: So you know that name Zambonya.
MS STIEN: Zabognya.
SENIOR MEMBER: And you’re aware that Zabognya lives at the Mile End address?
MS STIEN: Correct.
SENIOR MEMBER: So there are certain factors about – there is your connection. You say you know nothing about it but you – it seems to me, looking at what the SSAT has said, you do know something about it.
MS STIEN: From – in the first three months, when the account was opened, yes. And nothing since until I heard from Social – Centrelink.
SENIOR MEMBER: Well, when did you find out about the account
being - - -MS STIEN: From Centrelink.
SENIOR MEMBER: So Centrelink found – you found out from Centrelink.?
MS STIEN: Yes.
SENIOR MEMBER: You didn’t know anything about the account?
MS STIEN: No, that it was being used. And we’re not even really sure who is using it. The police are investigating that.
SENIOR MEMBER: And the evidence again, or part of the background, the SSAT is saying you received income in excess of $400,000 from trading on eBay in the period from 1 July 2009 to the date your DSP was suspended, which was 4 June 2013. So there’s a period of, well, four years nearly. But you know nothing about that?
MS STIEN: Not a thing. Not a thing. I don’t even know how to operate a computer. I’ve never had a computer in my house. The attorney-general has seen all of that. I know nothing about eBay accounts. Nothing. I wouldn’t even know how to get into a computer.
SENIOR MEMBER: The difficulty we have of course – and it is a difficulty – there’s a DSP overpayment. This debt of $74,000-odd that you’ve been, well, apparently overpaid. Overpaid in the sense that there’s this other money that the respondent is, I assume, alleging that you received. But you say you didn’t?
MS STIEN: Not a cent. And I have lived so poorly, and there’s so much evidence backing it. The head of St Vincent de Paul has written a letter. They have been involved in my life for the last 13 years on a regular basis. So many people: my local doctors, my local pharmacist, people in my daily life, my family.
SENIOR MEMBER: You say there’s so much evidence. Eventually this matter has to go to a hearing.
MS STIEN: Yes.
SENIOR MEMBER: And that evidence will have to be got out?
MS STIEN: Yes, which I’m concerned for my safety as well but - - -
SENIOR MEMBER: In what sense?
MS STIEN: I’m really – if it is this person has done it, I’m concerned that he will threaten my life. He has done that. I’m concerned that he will try and cover his tracks. He will bribe people.
SENIOR MEMBER: But this is Mr Zabognya?
MS STIEN: Yes. There is a witness who knows the man for years and years and years, and who actually introduced me to him. And she has got – she wants to give evidence.
SENIOR MEMBER: Yes. I notice again looking at the SSAT decision, that you borrowed two to three thousand dollars from Mr Zabognya.
MS STIEN: Yes.
SENIOR MEMBER: So you borrowed money from him.
MS STIEN: That’s when I first met him, yes.
SENIOR MEMBER: Yes. And I think - - -
MS STIEN: That’s why I met him, yes.
SENIOR MEMBER: Sorry?
MS STIEN: That is why I met him, of which I paid back 13,000, nearly 14,000.
SENIOR MEMBER: Again a debt - - -
MS STIEN: A $3,000 loan.
SENIOR MEMBER: What, the balance was interest?
MS STIEN: Interest, yes.
SENIOR MEMBER: Yes. When did you do that? When did you pay that back?
MS STIEN: I have – I can’t say exactly. I have to check my paperwork at home. It would have – no, I’d have to check it.
SENIOR MEMBER: So where did you get $13,000 to pay him back?
MS STIEN: Well, out of my disability support pension, I was paying it and a bit – yes. And that’s – I received threats. Very, very awful threats. If I was late with payments or to not be late with payments. And there was a loan contract which my family – I always kept. As far as I know there was only the original copy. And I made sure that I had that and it was signed and all legal and everything. My family viewed that, my mother and one of my brothers viewed that. And my friend, the finance manager – a fill-in CEO when the MD is away of the Advertiser – he viewed that.
SENIOR MEMBER: This is a loan contract between - - -
MS STIEN: Yeah, that’s separate. That was between that person though, who has obviously used my identity and earned all this money on Centrelink, and has defrauded Centrelink himself, I understand. He’s on disability support pension himself.
SENIOR MEMBER: So if your - - -
MS STIEN: But he’s a very wealthy man.
SENIOR MEMBER: You seem to know a fair bit about him.
MS STIEN: Well, I’ve heard – I’ve learnt, in hindsight.
SENIOR MEMBER: Do you know where he is?
MS STIEN: I know he’s in Adelaide now. He was overseas. Centrelink knew that. I was in contact with Centrelink because I – the account got in debit of $250, and I got a letter saying that. And I told Centrelink that I don’t have the money to clear that debit.
SENIOR MEMBER: What’s that debit?
MS STIEN: I don’t know. I don’t – I’ve never used the account. It was some sort of PayPal debit. Sorry, I’ve got the flu as well.
SENIOR MEMBER: I notice that you – before the SSAT you were represented by Mr Tilstow.
MS STIEN: Correct.
SENIOR MEMBER: Of the Welfare Rights Centre.
MS STIEN: Correct. I was told to do that.
SENIOR MEMBER: But they’re no longer acting for you?
MS STIEN: No. They said they couldn’t now.
SENIOR MEMBER: Yes. All right. So your stay is just to enable you to continue to receive your DSP until such time as this matter comes on for a hearing.
MS STIEN: Yes.
SENIOR MEMBER: Now, if at the time of the hearing the DSP that you continue to receive and the amount of the debt, which the respondent alleges you’ve got, how do you intend to pay that?
MS STIEN: Well, Senior Member, I didn’t commit the crime.
SENIOR MEMBER: But there’s a debt. I realise you didn’t - - -
MS STIEN: Well, shouldn’t the person who committed the crime pay the debt?
SENIOR MEMBER: Well, where did the money go? Did the money go to Mr Zabognya? All the DSP went to - - -
MS STIEN: Obviously.
SENIOR MEMBER: But this is the DSP we’re talking about.
MS STIEN: No. You mean my disability support? That’s what I live on.
SENIOR MEMBER: But - - -
MS STIEN: And I’ve had to live off my medical money for the last year.
SENIOR MEMBER: There’s a DSP overpayment of $74,000.
MS STIEN: Because of these earnings apparently.
SENIOR MEMBER: Yes. Where did that – so that DSP is the amount you received in that period from 2009 to 2013?
MS STIEN: Yes.
SENIOR MEMBER: All right. So what you’re seeking from this tribunal is I would grant a stay in relation to the suspension of the payment of your disability support pension. When was the last time you got a payment?
MS STIEN: The last time I got a payment was on 23 April. There has been so many things changed. I went the next fortnight to get my disability support pension; it wasn’t there. Because I had bills and that. And I went straight from the bank to Centrelink where I was there for four and a half hours. On 4 June – I was there for four and a half hours, and I was told one and/or two things, and my disability support would be reinstated until 29 July. One was to fill in the stay application, which I already had filled in a form but I think that may have been the incorrect form, I’m not sure, that was sent out. And/or close the account, which I notified Centrelink at the time that it was in $250 – excuse me – debit. I couldn’t close the account on 4 June.
SENIOR MEMBER: This is a Bank SA account, is it?
MS STIEN: NAB.
SENIOR MEMBER: A NAB account. But where’s your DSP bit paid?
MS STIEN: My Bank SA.
SENIOR MEMBER: It’s paid Bank SA. So you say that when you went to your Bank SA account in April - - -
MS STIEN: Yes, my pay wasn’t there.
SENIOR MEMBER: - - - your DSP wasn’t there. Where - - -
MS STIEN: And I believed – I was of the understanding that it would be. We – the Welfare Rights guy, we had sorted it out with Centrelink that I would receive my disability support until 29 July. And then, as I said, I went to get my pay, it wasn’t there. Went straight up to Centrelink to see what was going on, and then I was told that – do the stay application and/or close the bank account. I notified them it was in debit of $250. I didn’t have the $250 to clear the account. And I didn’t want to do it anyway because the police don’t want it because they are investigating it.
SENIOR MEMBER: They didn’t want to close the NAB account?
MS STIEN: No. No. Because someone’s using it and they want to find out who. And I was there for four and a half hours. They got social workers to talk to me. And then, so then I’ve done all that and I still haven’t got my disability support pension. And I’ve got a letter from the head of St Vincent’s de Paul, desperately saying how – help I need with food and my doctors, etcetera. I’m in a disabled house, I’m about to get evicted from. It just goes on and on.
SENIOR MEMBER: Yes. Look, it’s a very sad state of affairs, if all of what you say is correct. And at this stage I’ve got no reason to doubt what you say, but what I’ve then got is a decision of the SSAT that I’ve got to look at, and even a member – the SSAT member had doubts, because even though this money was taken out of the NAB account, did it all go to Mr Zabognya - - -
MS STIEN: I assume so.
SENIOR MEMBER: - - - or did any payment come to you?
MS STIEN: I assume so.
SENIOR MEMBER: You received nothing?
MS STIEN: No, not a thing. I didn’t even know about it. And it’s still being used, Senior Member. It’s still being used to this day.
SENIOR MEMBER: The NAB account is?
MS STIEN: Yes. To this day he’s still using it. I think he just – I think – I would never say anything.
SENIOR MEMBER: How does it he use it? Is there money in it?
MS STIEN: ATM.
SENIOR MEMBER: Is there money in it?
MS STIEN: Yes. I got a statement. Now, this is – have I got the right one – April-June, and it’s still being used.
SENIOR MEMBER: So how much money is in the account?
MS STIEN: There was $73 in it then.
SENIOR MEMBER: $73?
MS STIEN: Yes. Well, it goes up and down. And as the judge in the Social Security Court noted, the money gets taken out straight away.
SENIOR MEMBER: Where does that money come from?
MS STIEN: eBay sales, apparently.
SENIOR MEMBER: So these are eBay sales made through someone using your name?
MS STIEN: Yes. And, like, the attorney-general located the computer.
SENIOR MEMBER: That was being used?
MS STIEN: Yes. Because apparently – this is what I understand – apparently the attorney-general must be looking into people selling cars. And they – he must have advertised under my name apparently, I think – I’m not computer literate. And the attorney-general went there to – posing to buy a car, and they said to him – it must have been a Gumtree account, I think, because the attorney-general mentioned Gumtree. He said, “Have you got a Gumtree account,” when they visited me. And I said, “No.” He said, “Have you ever had a Gumtree account?” And I said, “No.” And he said, “Do you know Dominic Zabognya?” And I said, “Yes.” And he said, “Well, we have to go back and talk to him because he’s sold seven cars under your name.” And - - -
…
SENIOR MEMBER: All right. Well, look, at this stage, thank you for what you’ve said, I’ll ask Mr Schatz. You know that the respondent opposes your application for a stay? Do you know that?
MS STIEN: Yes.
SENIOR MEMBER: Okay.
MS STIEN: This is the respondent, yes.
SENIOR MEMBER: Yes. Mr Schatz is acting for the respondent. Yes.
MS STIEN: Thank you.
SENIOR MEMBER: He will now tell you why.
MS STIEN: Thank you.
SENIOR MEMBER: And me.
MR SCHATZ: Thank you, Senior Member. I have some cases here for you. Three cases that I’ve given the applicant for her, and I’ve explained to the applicant why the respondent is taking the position that he is. And I’ve also got a copy of the last document, the electronic document reporting what happened on 4 June. You’ve heard the applicant talk about what happened when she last went to Centrelink on 4 June. So if I could hand those up, that will assist you in dealing with the stay application. So there’s three cases. You don’t really need to look at the Delkou one. That’s just the - - -
SENIOR MEMBER: Yes, I know Delkou.
MR SCHATZ: You know Delkou. The other cases I’m handing up, one is called Opie and one is called Kelty. So Opie is the most recent decision of the – get the document. Here it is. So Opie is a decision by Deputy President Bean from 2012. I’m not sure whether you’re aware of that one, Senior Member, but Deputy President Bean helpfully summarised the principles that you should consider when working out whether or not to exercise your discretion under section 41(2) of the Administrative Appeals Tribunal Act to stay the effect of the SSAT decision. And at paragraph 7 of that case she says:
It is clear from the applicable authorities that where ongoing payments will result from a stay order –
and that’s what will happen here –
there are three principal considerations for the Tribunal in deciding whether to grant a stay.
And she talks about those principles having been summarised by Professor Pearce, and refers to Delkou in the footnote. But they are really this. You need to consider:
any hardship which a party to the review may suffer by reason of the grant or refusal of a stay.
So in this case it would be the applicant, Ms Stien, who would suffer hardship potentially, if you don’t grant the stay order.
SENIOR MEMBER: Yes.
MR SCHATZ:
The likelihood of recovery by the Commonwealth of moneys to be paid.
So if you do grant the stay and the further money is paid, the likelihood of the Commonwealth being able to recover that. And the third one is:
The prospect of success of the substantive application.
And you will see that in that case, at paragraph 34 she went on and she said:
Given his relatively weak prospects of success, in order to justify the grant of a stay I consider that it would have been necessary for MrOpieto demonstrate that he would suffer substantial financial hardship if a stay were not granted.
And she went on, and in that case she didn’t consider the likelihood of that to be established. Rather, she was satisfied that he had means to support himself, and she considered it to be appropriate that he do so, rather than risk incurring a substantial debt, which the Commonwealth may have some difficulty in recovering. So what I will do is I will address each of those three points. So the hardship point, the repayment point, and the prospects point, in turn.
And starting with the hardship point first, you will see – you may be tempted to think that this case is distinguishable from Opie because in that case he had a capacity to support himself, and in this case the applicant doesn’t. But this is where the Kelty case comes into it as well. So if I ask you to look at the Kelty authority, at paragraph 13 you will see that the respondent’s advocate in that case indicated to the tribunal that:if the appeal is successful –
in that case it was the Secretary that was appealing –
and a stay is not granted, Mr Kelty would be required to repay the full amount of the Disability Support Pension and would have no entitlement to Newstart Allowance as it cannot be paid retrospectively. On the other hand if a stay is granted Mr Kelty would continue to receive Newstart Allowance.
And he would:
receive all arrears due, that is the difference between Newstart Allowance and DSP if the appeal is not successful.
Further down the same page at paragraph 16, the tribunal ultimately concluded in that case, on the facts of that case that:
the real potential for hardship in this case is if the appeal is successful and a stay is not granted, Mr Kelty will liable for the full repayment of DSP as he would not be retrospectively entitled to Newstart Allowance.
SENIOR MEMBER: But that was an unusual case, wasn’t it?
MR SCHATZ: Yes, slightly. But this case is much more similar to the Kelty and Opie cases, than might first appear. The respondent submits that in this case the primary reason for any hardship currently suffered by the applicant isn’t so much the decision that was made to suspend and then cancel her disability support pension, but rather what happened after that time. So if you go to, for example, the Social Security Appeals Tribunal decision in T2, page 16, you’ll see in paragraph 71 that at the time that decision was made, which is 14 April 2014, the tribunal said:
Ms Stien could lodge a further claim for DSP or some other income support payment. If the NAB account is closed and there is no evidence of her receiving income from any source, then subject to meeting all other criteria, her claim should be granted.
I then ask you to look at the hand-out that I’ve just handed up to the tribunal, and I’ve given the applicant a copy of that as well. And you’ll see that at the end of the relevant document, on the first page – there’s a number of documents there but I’m asking you to look at the first page, 4 June, right down the bottom, it says:
Advised she can claim a new payment but would need to show she had closed down a bank account. No other options available
for - - -
SENIOR MEMBER: I’m sorry, I’ve lost you. This is just this two-page document?
MR SCHATZ: Yes. So you will see that there’s a whole heap of text on 4 June.
SENIOR MEMBER: Yes.
MR SCHATZ: You go right down to the end, the last two sentences.
SENIOR MEMBER: Yes.
MR SCHATZ: So, well, if we start the last three.
Advised the customer that Centrelink cannot make a payment unless a stay order of the SSAT decision is received.
SENIOR MEMBER: Yes.
MR SCHATZ: It then goes on:
Advised she can claim a new payment but would need to show she has closed down her bank account. No other options are available for the customer.
Now, so this is what Centrelink told the applicant. And you’ve heard her essentially say that earlier.
SENIOR MEMBER: Yes.
MR SCHATZ: On 4 June. Now, that’s a month ago. My understanding, based on my instructions, is that that remains the respondent’s position, that if she provides bank account statements for the relevant accounts. Now, I understand that she’s saying today that she can’t close the account because it’s $250 in debit, but she also referred to having received bank account statements. She may have even referred to them during her submissions and looked at them.
The point of it is, what Centrelink is looking for is her to satisfy them that she’s not earning more than $100,000 a year, as they suspect from the documentation they’ve gotten. And so they’ve asked her to do it. The SSAT has said, if you do that they can reinstate you and put you on a payment.
Now, my understanding is there’s no impediment to her going on, for example, Newstart or even potentially DSP if she meets the criteria, as long as she puts in the application and puts in that supporting documentation, which she can get without paying the $250. All she has to do is put in the statements that show that she’s not receiving a significant income during this period. Now, if the statements show there is income going in and out, then that’s a consideration that would have to be thought about at that point in time. But that’s what they’re saying.
They’re not saying we’re not going to pay you a DSP, or we’re not going to pay your Newstart Allowance. They’re saying, there are two relevant periods here. There’s the period that relates to the review, which is the previous debt, the payment of previous Newstart Allowance, during the period where on the evidence before the ARO, and on the evidence before the SSAT, they couldn’t conclude that she wasn’t receiving that money.
…
MR SCHATZ: And then the final pint, which is the prospects of success, is that the SSAT found – and you can see that the Member was not unsympathetic. You know, the Member had their own concerns about it; enough concerns to stay recovery action to allow investigation. But starting at paragraph 68, still on page 16:
Given the evidence in its possession and the lack of an explanation from Ms Stien, it seems to the tribunal that Centrelink had no choice but to suspend payment of DSP, and that its suspension decision was legally correct.
And I should say, in this context, when one reads the ARO decision, you can also see that the ARO wasn’t saying necessarily, “We don’t believe you”. They were saying, “Persuade us.” They were giving her that opportunity and saying, “Contact us.” And when she didn’t contact them after a number of occasions, that was when they made the decision based on the material they had. And it’s a similar thing here. The SSAT says, “Persuade us. We want you to produce to us evidence to substantial what it is you’re saying.”
And you’ve heard her say to you, “I don’t know who this guy is.” Then it turns out she has borrowed money from him. Then it turns out that for the first three months she was aware of the account. When you look closer at the material you will see that she, on her own case, went with him to the bank and opened it together. She gave him the key cards.
SENIOR MEMBER: Did you actually do – you did that? That’s what was suggested - - -
MS STIEN: Yes.
SENIOR MEMBER: - - - in the SSAT decision.
MS STIEN: Yes. When he met me, and he was talking to me – my girlfriend was there – and I was talking about my accident and how I can’t work and ra, ra, ra. And he suggested, because I like antiques, and he suggested – he said, “Have you heard about eBay?” And I had because a neighbour’s friend liked antiques too and often swapped and traded and stuff like that. That’s all I knew though. And he said, “It’s something you could, you know, get interested in and spend your time doing.” And I said, “I don’t even know how to operate a computer. I don’t know anything about eBay.” And he said, “I’ll set it all up for you and teach you.”
SENIOR MEMBER: He never did?
MS STIEN: No. Three months after – because I had so much medical stuff going on – I went and told him, and there was people with me, that I won’t be able to learn the eBay. Perhaps later, you know, in future years. I don’t know. I’ve got too much medical going on. And it’s not a problem, and that’s all; I thought everything closed.
…
MR SCHATZ …
So, in summary, she will be under even more hardship if the stay order is granted, on one view of it. Either that, or she has financial resources, in which case she doesn’t have financial hardship. Any difficulties in recovering the previous debt will only be increased if the debt is even more. And in relation to prospects, she would – they appear on the current material to be weak, and in that context it’s incumbent upon her to satisfy you that she will suffer significant financial hardship. And, as I’ve said, there’s a way out of that in terms of going in and getting an income support payment. So if it pleases the tribunal, they’re the respondent’s submissions.
SENIOR MEMBER: Thank you, Mr Schatz. Now, you’ve heard all Mr Schatz has said.
MS STIEN: Yes. I didn’t know we were talking about my work history. Yes, I was involved in computers, of course, in the ‘80s. And I have not touched a computer since, and I do not know how to operate a computer or an iPhone. And it is significantly different. I have tried. I have tried to do a computer course, which I couldn’t do. That’s to do with my injuries anyway.
Also a number of things he said was incorrect, but the thing about the $350, the account, the $350, yes, I informed them that I received the letter saying that the account was in debit, and then this new one has only just come, saying that it’s being used. That’s only just come – arrived.
SENIOR MEMBER: Well how does that help me? How does that - - -
MS STIEN: Well, just a number of things he said was incorrect.
SENIOR MEMBER: No, well, I mean, that’s what Mr Schatz has said. I want you to tell me what you’ve got that gives me some indication that I should grant the stay.
MS STIEN: Well, everyone who’s involved in my daily life, my doctor, pharmacist, St Vincent de Paul the head boss, everyone, knows what I do with my life and what I’m physically and mentally capable of, and what has gone in the last 13 years. And I’m near death. I’m not eating. I can’t get medical treatment. The medical money that was – the payout was for medical, which is only – that was a farce in itself, and the reports he’s referred to are based on incorrect facts. That is still to be sorted out – Mr Woods’ report anyway.
You know, my doctors have written and saying, you know, I need my disability support.
SENIOR MEMBER: Well, you need some money. What about Newstart Allowance?
MS STIEN: St Vincent de Paul - - -
SENIOR MEMBER: What about Newstart Allowance?
MS STIEN: I - - -
SENIOR MEMBER: What about applying for another DSP? We’re looking forward, going forward now. Not the past.
MS STIEN: Well - - -
SENIOR MEMBER: There’s nothing stopping you to apply for a DSP.
MS STIEN: They have all my medical stuff, why I’m on - - -
SENIOR MEMBER: So you - - -MS STIEN: - - - disability support.
SENIOR MEMBER: Well - - -
MS STIEN: They already have all that.
SENIOR MEMBER: - - - have you made an application for DSP, a new DSP?
MS STIEN: Well, I was told my payments would be there.
SENIOR MEMBER: I beg your pardon?
MS STIEN: I was – back on the 4th of – when I went to get my pay – my last pay I received on 21 April.
SENIOR MEMBER: Yes.
MS STIEN: The next fortnight, I went to get my disability support pension. I have bills. I’m in a disabled house I’m about to be thrown out of. Let alone the medical things that I need. Let alone eating. I went to get that pay. That pay was not there. I went to Centrelink. I was four and a half hours in Centrelink and with the Welfare Rights. It was arranged I would get my disability support until 29 July. And I had to fill in a stay application and/or close the bank account, which I explained from day 1 that it has never been me. And if they are serious in knowing, they would want to see who it is too.
SENIOR MEMBER: Yes.
MS STIEN: So the police don’t want it closed. I informed them of that.
SENIOR MEMBER: Well, I think - - -
MS STIEN: And I was told that I would get my disability support payments. Fill in the stay application and/or close the account and/or get it from the police, which I’ve done all of. And my disability support will be paid until 29 July. And, yes, if I’m proved wrong, I have to pay the debt.
SENIOR MEMBER: You see, I’ve got a problem. I’ve got cases – authorities that I have to be bound by. Mr Schatz has referred me to three decisions, one of this tribunal’s Deputy President, and the reasons why stays have not been granted. I can understand your reasons or need for having the stay, but given the circumstances of your case, the complexity of it, there is a very – risk that you won’t get up on the substantive question. That is, whether you should be entitled to get DSP at all. What Mr Schatz is suggesting is you try to see if you can get a new DSP or Newstart Allowance. Have you tried that?
MS STIEN: I’m on disability support for a reason.
SENIOR MEMBER: Have you tried to get Newstart Allowance?
MS STIEN: No.
SENIOR MEMBER: You say you’re on Newstart Allowance.
MS STIEN: No, I’m on disability support.
SENIOR MEMBER: DSP. But that has been stopped, hasn’t it? It was at least suspended on 4 June.
MS STIEN: Yes, suspended because of this income.
SENIOR MEMBER: That’s right. But if we just isolate that past period, is there any reason why, if you go to Centrelink with details of your bank statements, the fact that your bank statement – the NAB account is closed and what’s this - - -
MS STIEN: The police don’t want the bank - - -
SENIOR MEMBER: Sorry?
MS STIEN: The account closed.
SENIOR MEMBER: Well - - -
MS STIEN: The police don’t want the account closed.
SENIOR MEMBER: Well, it may well be to your advantage to convince them it should be closed. If there’s a way of getting you some income, some sort of pension, disability support or Newstart, that you have to do that. And what’s this $145,000 term deposit?
MS STIEN: That’s medical payment and that has been used for medical. And Centrelink has got all those details.
SENIOR MEMBER: Yes. Well, when you say it’s used for medical, $145,000.
MS STIEN: All allocated for medical, and only about a quarter of it. And what do you think I’ve been living on for the last year.
SENIOR MEMBER: Well, you were on DSP until June, weren’t you?
MS STIEN: No, I’ve been off it for over a year.
SENIOR MEMBER: June 2013.
MS STIEN: May, I think it was stopped or something. Or June, yes, June.
SENIOR MEMBER: Well, I’ve got to consider the cases. I’ve got to consider the circumstances of your case.
MS STIEN: Yes.
SENIOR MEMBER: And it’s not an easy one. It is not an easy case. There are factors that the SSAT has identified that concern me, as no doubt it concerns ARO, the Centrelink people. And in all honesty, I can’t expose you to a situation where if things go wrong you’re just going to have to pay back whatever DSP you get going forward. Newstart Allowance might be a different kettle of fish.
But in relation to what has happened with this current decision, the decision of the Social Security Appeals Tribunal, in relation to that decision and your application to have that part of the decision that I mentioned stayed, I can’t do that. I’m not in a position to do that. It might seem unfair to you but in the end result we will have to bring this case on. This case will have to come on for a hearing. And that can be done as soon as we get the evidence. And that’s going to involve obviously police and other people, to get evidence. If you know where Mr Zabognya is, why not – can’t you refer the police to where he is?
MS STIEN: They know where he is. He has been overseas.
SENIOR MEMBER: Right. So he’s back, is he?
MS STIEN: Yes, he’s back.
SENIOR MEMBER: So they know he’s – where he - - -
MS STIEN: Yes.
SENIOR MEMBER: - - - is in Adelaide.
MS STIEN: Yes.
SENIOR MEMBER: Why can’t they take action?
MS STIEN: They are. They’re – they are.
SENIOR MEMBER: But you don’t – you’ve got to ring them back and find out.
MS STIEN: Yes.
SENIOR MEMBER: Okay. All right. Well, I encourage you to do that. But based on Mr Schatz’s submissions, and the evidence that I’ve got, and the cases that I’ve got, I regret that I have to say that I can’t grant your stay, that I must refuse your stay. But I would encourage you, for the reasons I’ve indicated, you go back to Centrelink and see if you can get some other – an alternative. Newstart Allowance or possibly even a new Disability Support Pension.
…
MR SCHATZ: - - - her Bank SA account showing that it doesn’t have $145,000 in it.
MS STIEN: They’ve got that. And the police did that last night.
MR SCHATZ: Okay. So that can be given. Don’t forget, at the first PC which is - - -
MS STIEN: I’ll be dead.
MR SCHATZ: - - - on 29 July, that material can be given. If that’s right, we will get instructions on it.
SENIOR MEMBER: Yes.
MR SCHATZ: I’m not saying – I still have very much an open mind about this.
SENIOR MEMBER: Yes.
MR SCHATZ: But I have my instructions, and my instructions are that based on that material, that - - -
SENIOR MEMBER: Yes. No. I understand. Well, as I say, Ms Stien, I’m refusing your application for a stay, and Mr Schatz has suggested ways around it, as best you can. You’re saying Centrelink has got all the information. I’ve got no evidence of that. In fact, some of the evidence I’ve got suggests not. So I regret I have to refuse your application for a stay.
MS STIEN: How – what – how – what do I – do I have to go to Centrelink and ask them? And they’ve said no.
SENIOR MEMBER: No, look, I can’t help you with that. I can only – I’m dealing with the stay. I can’t look at how you should conduct your life in these circumstances. I don’t have the power to do that. So - - -
MS STIEN: And if Centrelink says no, because that’s what they’re
saying - - -SENIOR MEMBER: I don’t know what Centrelink is saying.
MR SCHATZ: My understanding is they’re saying yes, subject to proof that she’s not earning that amount and doesn’t have those assets. That’s what they’re saying, my understanding is, there’s no reason why she couldn’t go onto Newstart.
SENIOR MEMBER: Mr Schatz has given me his understanding. That’s all I can have, and all I need. So in these circumstances - - -
MS STIEN: So it will stay unresolved?
SENIOR MEMBER: - - - this tribunal hearing is adjourned. I’ve reached a decision.
MS STIEN: Thank you.
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