Doulaveras; Secretary, Department of Social Services and (Social services second review)
[2021] AATA 4506
•3 December 2021
Doulaveras; Secretary, Department of Social Services and (Social services second review) [2021] AATA 4506 (3 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3780
Re:Secretary, Department of Social Services
APPLICANT
Myroulla DoulaverasAnd
RESPONDENT
DECISION
Tribunal: Dr I Alexander, Senior Member
Date:3 December 2021
Place:Sydney
The decision under review is set aside and substituted.
...................................[sgd].....................................
Dr I Alexander, Senior Member
CATCHWORDS
SOCIAL SECURITY – termination redundancy payment – jobseeker payment – income maintenance period – applicant was not in severe financial hardship – decision set aside and substituted
LEGISLATION
Income Tax Assessment Act 1997 (Cth) s 995-1
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth) ss 80 and 117
REASONS FOR DECISION
Dr I Alexander, Senior Member
3 December 2021
BACKGROUND
On 30 March 1994, Ms Doulaveras started work as an employee with Qantas Airways Ltd (Qantas Group).
On 25 October 2019 Qantas Group deposited $149.947.06 in Ms Doulaveras’ account with Qudos Bank. The deposit was a termination redundancy payment.
On 1 November 2019, Ms Doulaveras exchanged contracts for the purchase of a two- bedroom unit for $430,000. She paid a deposit of $43,000 which she withdrew from her Qudos Bank account.
On 28 November 2019, Ms Doulaveras decided to withdraw the total amount of her superannuation investment in the Qantas Group superannuation fund. On 28 November 2019, the Qantas Group superannuation fund deposited $450,733.87 into Ms Doulaveras’ account with Westpac.
On 12 December 2019, Ms Doulaveras withdrew $407,000 from her Westpac account for the purpose of completing the purchase of her unit.
At that stage Ms Doulaveras was planning to return to work and had received an offer for part-time work. However, on 23 March 2020 the offer for work was withdrawn because of the COVID-19 pandemic.
On 15 April 2020, Ms Doulaveras lodged an on-line claim for JobSeeker payment (JSP). In the claim form she informed Centrelink that she had $54,385 in her Westpac account and $68,239 in her Qudos account, that is $122,624 in total.
On 2 May 2020, Ms Doulaveras lodged an undated Qantas Group ‘Estimate of Redundancy Payment’ which set out the details of an anticipated gross payment of $152,639.94.
In a letter dated 2 May 2020, Ms Doulaveras was informed that because of the amount of her available funds and her various termination payments, an Income Termination Maintenance Period (ITMP) starting on 11 December 2019 and ending on 22 February 2022 had been applied.[1]
t At the hearing it was agreed that the correct ITMP was from 25 November 2019 to 19 February 2022.
It is agreed that, as at 6 May 2020, Ms Doulaveras had a total balance of $121,268.14 in her two bank accounts.
In a letter dated 21 July 2020 an Authorised Review Officer (ARO) informed Ms Doulaveras that a review had been unsuccessful and that the original decision on 2 May 2020 had been affirmed. The ARO noted that Ms Doulaveras had told him that she had about $100,000 in her bank accounts and, therefore, he found that she was not ‘in severe financial hardship’ and that her ITMP cannot be waived.[2]
[2] Bank Statements: 1 July 2020 -$110.011.44.
On 13 January 2021, Ms Doulaveras transferred $50,000 from her Westpac account to an ‘accumulation account’ with QSuper.[3]
[3] QSuper is not connected with Qantas Group.
On 14 January 2021, Ms Doulaveras transferred $10,000 from her Qudos account to her QSuper account.
On 27 January 2021, Ms Doulaveras:
·transferred $3,095 from her Westpac account to her QSuper account leaving a closing balance of $300.30;
·transferred $4,090 from her Qudos account to her QSuper account leaving a closing balance of $199.58.
On 28 January 2021, Ms Doulaveras lodged a statement with Centrelink claiming that as she had now transferred all her remaining funds into ‘a new super account with QSuper’ she now had liquid assets of the less that $500 and, therefore, should be entitled to have her IMP waived ‘under the asset hardship provisions’.
On 29 January 2021, QSuper issued an ‘accumulation account balance’ statement indicating that Ms Doulaveras had $67,210.43 invested with QSuper.
On 4 May 2021, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) set aside the ARO’ s decision. The Member found as follows:
Mrs Doulaveras’ necessary medical expenses, and the payment back to a superannuation fund in January 2021 constitute reasonable expenditure for the purposes of section 19C of the Act. Furthermore, Mrs Doulaveras should be regarded as being in severe financial hardship (that is, having liquid assets of value less than the fortnightly amount at the maximum payment rate of the payment, benefit, pension or allowance that would be payable) by 28 January 2021.[4]
[4] $620.80 from 1 April 2021.
On 10 June 2021, the Secretary lodged an application with the Tribunal for a second level review of the AAT1’s decision.
On 1 July 2021, the Secretary lodged an application for an order that the decision under review be stayed pending the final hearing and determination of the decision under review.
On 7 July 2021, the Tribunal stayed the operation of the AAT decision with the exception of payment of JSP according to the AAT1 decision from 7 July until the decision of the Tribunal on the Secretary’s application for review.[5]
[5] Ms Doulaveras has been receiving JSP since 7 July 2021.
In these proceedings the Secretary was represented by counsel. Ms Doulaveras was self-represented but assisted by her son-in-law, Mr A. Sanders.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by video conference.
STATUTORY PROVISIONS AND ISSUES
Section 593 of the Social Security Act 1991 (Cth) (the Act) provides that person is qualified for JSP in respect of a period if ‘the person satisfies the Secretary that throughout the period the person is unemployed’.
Ms Doulaveras satisfied the qualification requirements at the time of her claim on 15 April 2020.
I note that where an applicant for jobseeker has terminated their employment and, as result of the termination, is entitled to a to a lump sum from the former employer, the applicant is taken to have received ‘ordinary income’ as defined in section 8 of the Act for a period equal to the period called ‘the income maintenance period’ to which the payment relates.[6]
[6] S1068-G7AH of the Act.
The ‘period to which the payment relates’ is defined in ss 1068-G7AQ and 1068-G7AKA and during this period the person is not entitled to receive JSP. It is agreed the correct period is 25 October 2019 to 19 February 2020.
Section 1068-G7 AM of the Act provides that:
If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while an income maintenance period applies to the person, the Secretary may determine that that the whole, or any part, of the period does not apply to the person.
Section 19C(2) of the Act provides that a person, who is not a member of a couple and who makes a claim for JSP:
is in severe financial hardship if the value of the person’s liquid assets (within the meaning of subsection 14A(1)) is less than 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 persons claim were granted …
Ms Doulaveras contends that her liquid assets since 28 January 2021 have been less than $620.80.
Relevantly section 14A(1) of the Act defines ‘liquid assets’ in relation to a person as:
the person’s cash and readily realisable assets, and includes:
(a) the person’s shares and debentures in a public company …
(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 …
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 the Act) that is a contributions-splitting superannuation benefit (within the meaning of the Act) …
Section 995-1 of the Income Tax Assessment Act 1997 (Cth) (ITAA) provides that ‘roll-over superannuation benefit’ has the meaning given by s 306.10 of the Act which states that:
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; (emphasis added) …
It is agreed that since 29 January 2021 Ms Doulaveras had at least $67,210.43 in her accumulation account with QSuper. At the hearing, Ms Doulaveras confirmed that the current balance of the accumulation account is about $69,000.
Ms Doulaveras contends that the accumulation account is not a ‘liguid asset’ for the purposes of s 19C(2) of the Act on the basis that it was a ‘roll-over benefit’ from the residual funds that she had withdrawn from her Qantas Group superannuation account.
Therefore, the determinative issue in matter is whether the funds transferred into Ms Doulaveras’ accumulation account is a ‘roll-over benefit for the purposes of Section 19C(2) of the Act and therefore not a ‘liquid asset’.
Consideration
At the hearing, Ms Doulaveras told the Tribunal that, after all her investment in Qantas Group superannuation fund had been withdrawn, she had always intended to ‘roll-over’ some of the money into another superannuation fund , to support her retirement.
However, when Ms Doulaveras transferred all the funds from her Qantas Group superannuation fund into her Westpac account, all of those funds became liquid asset ‘outside the super system’.[7]
[7] Rollover or transfer of super benefits – Australian Taxation Office (ato.gov.au).
In January 2021, Ms Doulaveras transferred her remaining cash assets into a new QSuper accumulation account with the belief that this transfer was in the nature of a ‘roll-over superannuation benefit’.
However, as the transfer of funds was from Ms Doulaveras’ own liquid assets and not from a ‘complying superannuation plan’ it was not a roll-over superannuation benefit for the purposes of section 19C(2) of the Act.
Furthermore, the accumulation account balance statement, issued on 29 January 2021, clearly states that the $67,210.43 deposited in the account was an ‘unrestricted non-preserved amount’ and that ‘this is the part of your super that you’re able to withdraw as cash at any time’.
It is clear from the available evidence that at all times, since 29 January 2021, Ms Doulaveras had a liquid a cash asset of more than $67,000, which she chose not to access for her financial needs.
For reasons, set out above, I am satisfied that at no time since her application for JSP on 15 April 2020 was Ms Doulaveras in ‘severe financial hardship’.
Therefore, I am satisfied that there can be no waiver of any part of Ms Doulaveras’ IMTP.
DECISION
For reasons set out above, the reviewable decision is set aside and in substitution it is decided that that Ms Doulaveras is subject to an income maintenance period starting 25 October 2019 and finishing on 19 February 2022.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member
...................................[sgd]....................................
Associate
Dated: 3 December 2021
Date of hearing: 15 November 2021 Solicitor for the Applicant: Dr Stephen Thompson, Sparke Helmore Lawyers Respondent: Self-Represented
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Statutory Construction
-
Remedies
0
0
0