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

[2023] AATA 26

Chi and Secretary, Department of Social Services (Social services second review) [2023] AATA 26 (12 January 2023)

Division:GENERAL DIVISION

File Number(s):      2022/2284

Re:Johny Chi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mr S Evans, Member

Date of Hearing:     25 November 2022

Date of Decision:     12 January 2023

Place:Sydney

The reviewable decision dated 2 March 2022 is affirmed

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Mr S Evans, Member

Catchwords

SOCIAL SECURITY — Low income healthcare card — Qualification — Ascertained income – worker’s compensation — Allowable income — Disability Support Pension – whether Disability Support Pension allows extended access to Low income healthcare card – whether applicant made contributions to workers compensation

Legislation

Social Services Act 1991 (Cth)

Social Services Administration Act 1999 (Cth)

Cases

Secondary Materials

Social Security Guide

A Guide to Australian Government Payments – 1 January to 19 March 2021

REASONS FOR DECISION

Mr S Evans, Member

12 January 2023

Introduction

1. In October 2000 Johny Chi (the Applicant) was injured at work and has not held paid employment since.[1] In January 2018 he was granted Newstart allowance (NSA) backdated to 27 December 2017 and provided a health care card for the period 27 December 2017 to 17 January 2019.[2] On 16 March 2018 he was sent a pensioner concession card for the period 27 December 2017 to 17 January 2019.[3]

   [1] Annexure A to Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 3

   [2] RSFIC, [6]

   [3] RSFIC, [7]

2. On 25 May 2018 the Applicant began to receive gross weekly workers compensation payments of $839.29.[4] Consequently, the Applicant’s NSA and pensioner concession card were cancelled.[5]

   [4] Annexure A of RSFIC

   [5] Annexure B of RSFIC

3. On 18 January 2021 the Applicant lodged the claim for a Low Income Concession card (LIC) which is the subject of this review.[6] After his application was rejected on 29 January 2021 the Applicant sought review of the decision.[7] On 16 November 2021 an internal review by an Authorised Review Officer (ARO) affirmed the decision to reject his application.[8] The Applicant appealed the decision at the Social Services and Child Support Division (AAT1) of the Tribunal which affirmed the ARO’s decision to reject his application for a LIC on 2 March 2022.[9] The Applicant now seeks review at the General Division of the Tribunal. 

   [6] T4/35-38

   [7] T6/44

   [8] T8/49-52

   [9] T2/4

4. The matter was heard on 25 November 2022 with both the Applicant and the representative of the Secretary of the Department of Social Service’s (the Secretary) appearing in person. At commencement of the hearing the Applicant was afforded an opportunity to address the Tribunal. It soon became apparent that there was disagreement as to the nature of the reviewable decision. The Applicant expressed his dissatisfaction and left part way through the hearing. I have made a decision on the application taking into consideration the Applicant’s oral and written submissions in addition to the T-documents and the Secretary’s Statement of Facts, Issues and Contentions.   

   Legislation

5. The relevant legislation is set out in the Social Security Act 1991 (Cth) (the Act), and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

6. Government policy is set out in the Social Security Guide (the Guide) and is usually applied by the Tribunal in the absence of cogent reasons not to do so.

   THE issue to be determined

7. The issue to be determined is whether the Applicant is eligible to receive a LIC from 18 January 2021. Eligibility for a LIC is based on an applicant’s income over the eight weeks immediately prior to the date a claim is lodged. As the Applicant’s income was over the limit, the Secretary contends he is ineligible for a LIC.

8. In his application for review the Applicant writes that he requires a concession card to keep his ‘health in check’. He contends that as he was awarded DSP on 2 May 2019 it should be accepted that he suffers from significant health issues which necessitate him having access to a LIC. He also submits that as a former DSP recipient, he qualified for a concession card pursuant to section 1061ZD of the Act.

9. It is not in dispute that the Applicant was receiving weekly workers compensation payments of $839.28 per week when he applied for a LIC. However, the Applicant submits that his workers compensation may be exempt from the LIC income test owing to the operation of subsection 17(2A) of the Act.

   does the applicant’s meet the health care card income test?

10. Subsection 6A(1) of the Act defines a ‘concession card’ to include a health care card. Paragraph 1061ZO(2)(d) of the Act sets out the qualification criteria for a LIC including that a person is required to satisfy the health care card income test.

11. Section 1071A-1 of the Act sets out the health care card income test. It provides:

    1071A‑1  This is how to work out whether a person claiming a health care card satisfies the health care card income test on the day on which the person claims the card, whether or not the person is the holder of a health care card at that time.

    Method statement

    Step 1.   Work out the amount of the person’s ascertained income for the period of 8 weeks ending on the day on which the person lodged the claim.

    Step 2.   Work out the amount of the person’s allowable income for the period.

    Step 3.   If the person’s ascertained income for the period is less than the person’s allowable income for the period, the person satisfies the health care card income test.

    Step 4.   If the person’s ascertained income for the period equals or exceeds the person’s allowable income for the period, the person does not satisfy the health care card income test.

12. The Guide at 3.9.1.70 provides the income limits for LIC claimants. The limits in relation to the period 1 January 2021 to 19 March 2021 for a single person with no children such as the Applicant was $571 per week.[10]

    [10] See also A Guide to Australian Government Payments – 1 January to 19 March 2021, 34

13. In his application for a LIC the Applicant confirms regularly receiving weekly workers compensation payments of $839.28. There is no suggestion that he was not in receipt of these payments in the 8 week period prior to lodging his claim on 18 January 2021. As I am satisfied that the Applicant’s income was more than the allowable limit of $571 per week, he does not meet the health care card income test.

    IS the Applicant is Eligible for a Concession Card?

14. In his written submission the Applicant argues that as a former recipient of DSP, he may be eligible for a concession card by operation of 1061ZD of the Act.[11] Section 1061ZD provides for extended qualification for concession cards for 52 weeks to former recipients of DSP. Section 1061ZD(3) relevantly provides:

    (3)  Subject to subsection (4), this section applies to a person if:

    (a)  the person has been receiving a disability support pension; and

    (b)  because there is an increase in the person’s ordinary income from employment (and after any working credit balance of the person is reduced to nil), the disability support pension ceases to be payable to the person.

    [11] T1/3

15. In a separate decision of the Tribunal, the Applicant was deemed to qualify medically for DSP on 2 May 2019.[12] The Applicant was then paid DSP from the date of his claim through until 24 May 2018 when he began receiving workers compensation payments.[13]

    [12] Annexure G of RSFIC

    [13] Annexure D of RSFIC

16. The Applicant cannot rely on section 1061ZD to be deemed eligible for a concession card as his DSP was cancelled with effect from 25 May 2018 – more than 52 weeks before he applied for a LIC – placing him outside the extended qualification period.

    is the applicant’s compensation income?

17. Section 1071A4 of the Act provides a definition of income which includes payments of compensation. The Applicant contends that the workers compensation he receives may be exempt owing to the operation of section 17 of the Act which defines compensation and relevantly provides:

    Compensation

    (2)  Subject to subsection (2B), for the purposes of this Act, compensation means:

    (a)  a payment of damages; or

    (b)  a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or

    (c)  a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

    (d)  any other compensation or damages payment;

    (whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.

    (2A)  Paragraph (2)(d) does not apply to a compensation payment if:

    (a)  the recipient has made contributions (for example, by way of insurance premiums) towards the payment; and

    (b)  either:

    (i)  the agreement under which the contributions are made does not provide for the amounts that would otherwise be payable under the agreement being reduced or not payable because the recipient is eligible for or receives payments under this Act that are compensation affected payments; or

    (ii)  the agreement does so provide but the compensation payment has been calculated without reference to the provision.

18. Relying on 17(2A), the Applicant contends that his workers compensation may be exempt from the income test.[14] The exemption provided in section 17(2A) may apply to compensation or damages which are not captured by 17(2)(d) which includes payments under a scheme of insurance or compensation under a Commonwealth, State or Territory law. As the Applicant’s workers compensation payments are captured by the definition of compensation provided in section 17(2)(b), the exemption provided by section 17(2A) is not material.

    [14] Undated submissions of the Applicant, 2-3

    conclusion

19. The Applicant is seeking access to a LIC so that he may access medical care. Applying the health care card income test, the compensation he received was income which clearly exceeds the allowable limit of $571 per week in the eight weeks preceding lodgement. There does not appear to be any dispute over this.

20. The Applicant is of the view that having previously been deemed medically eligible for DSP he is entitled to a health care card. The fact that he suffers from medical conditions and was previously deemed medically eligible for DSP is not in question. However, his application is not supported by the extended qualification period for DSP recipients, nor is his income exempt from the health care card income test. As such, he must meet the criteria set out in paragraph 1061ZO(2)(d) to be granted a LIC, including the income test set out in section 1071A-1. As the Applicant was in receipt of income exceeding the allowable limit $571 per week in the eight weeks preceding lodging his claim, his application cannot succeed and the reviewable decision will be affirmed.

    DECISION

21. For the reasons stated above, the reviewable decision dated 2 March 2022 is affirmed.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 12 January 2023

Date of hearing:	25 November 2022
Applicant:	In person
Solicitors for the Respondent:	Mr T Chang, Services Australia