Girlie Egan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 39

[2013] AATA 39  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2551
Re	Girlie Egan
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	29 January 2013
Place	Sydney

The Tribunal affirms the decision under review.

.........[sgd]...............................................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – Special Benefit – applicant subject to newly arrived resident waiting period – whether waiting period should be waived – whether substantial change in applicant’s circumstances beyond her control – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 729 and 739A

CASES

Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426

Re Chelechkov and Secretary, Department of Social Security (1988) 26 AAR 321
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secretary, Department of Social Security v Secara and Others (1998) 89 FCR 151

SECONDARY MATERIALS

Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law

REASONS FOR DECISION

Senior Member J F Toohey

29 January 2013

BACKGROUND

1. Girlie Egan is a citizen of the Philippines.  In February 2011, she married Raymond Egan, who is an Australian citizen.  In December 2011, she arrived in Australia on a visitor visa and has lived here since.  On 20 February 2012, she was granted a spouse visa subclass 309 (temporary) visa.  Ordinarily, the holder of such a visa must wait two years before being granted a permanent visa.  

2. Mr Egan suffers from a number of debilitating medical conditions and requires daily care, which Ms Egan provides.  He receives a Disability Support Pension (DSP) at the single rate.  Because Ms Egan is not an Australian resident, they do not qualify for the married rate of pension, and Mr Egan’s DSP is their sole income.

3. On 29 February 2012, Ms Egan applied to Centrelink for a carer payment and carer allowance in respect of her husband.  Her applications were rejected on the ground that she did not satisfy the residency requirement which is a criterion of eligibility for those payments.

4. An Australian resident is a person who resides in Australia and is:

   ·an Australian citizen; or

   ·the holder of a permanent visa; or

   ·the holder of one of certain special category visas: s 7(2). 

   Ms Egan concedes that she does not meet any of these descriptions.  If, as she anticipates will happen, she is granted a permanent visa in February 2014, she will become an Australian resident and will be eligible for any social security payment for which she qualifies. 

5. On 15 March 2012, Ms Egan applied for Special Benefit which is a payment available in some circumstances to a person who is not entitled to any other social security payment.  

6. These proceedings concern whether Ms Egan should be granted Special Benefit. 

   ELIGIBILITY FOR SPECIAL BENEFIT

7. Special Benefit is a discretionary payment available to a person to whom no other pension or benefit is payable, and who is unable to earn sufficient livelihood for herself or himself, and any dependents because of age, physical or mental disability or domestic circumstances or for any other reason: s 729 of the Social Security Act1991 (the Act).  

8. A number of qualifications and disqualifications apply to the payment of Special Benefit: see ss 732 to 739C of the Act.  In particular, if a person is subject to a newly arrived resident’s waiting period then, even if she or he would otherwise qualify for Special Benefit, it may not be payable.  It is not in dispute that Ms Egan is subject to a newly arrived resident’s waiting period of 104 weeks for Special Benefit: s 739A. 

9. By s 739A(7), the newly arrived resident’s waiting period may be waived if, in the opinion of the Secretary (and so the Tribunal), the person has suffered a substantial change in circumstances beyond her or his control.

10. According to the Guide to Social Security Law (the Guide), issued by the Secretary, before Special Benefit can be paid, a decision-maker must be satisfied that:

    ·the change in circumstances is substantial and beyond the person's control; and

    ·the person is in financial hardship and able to satisfy the available funds test (which requires that a newly arrived person’s available funds not be taken to be depleted purely because she or her cannot obtain or maintain employment); and

    ·the person has attempted to obtain a sufficient livelihood (for example, from their sponsor, or from employment); and

    ·their available funds or support options were depleted because of the change in circumstances. 

11. The Guide is government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    Timing of the change in circumstances

12. According to the Guide (at cl 3.7.2.20), if a person holds a temporary visa, a change of circumstances is only relevant for the purposes of s 739A(7) if it occurred after the person has arrived in Australia.  There is no express or implied limitation to this effect in the legislation, and the Federal Court has said there is no reason “in logic or in fairness why a temporal limitation by reference to the person's arrival in Australia should be specified”: Secretary, Department of Social Security v Secara and Others (1998) 89 FCR 151 at 159.

13. That said, the timing of any change in circumstances in relation to a person’s arrival may well be relevant to how much, if any, control the person has over those circumstances.  As the Tribunal observed in Re Chelechkov and Secretary, Department of Social Security (1988) 26 AAR 321 at 328-329:

    It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subsection (7). This is because subsection (7) will only apply to changes which are directly responsible for the migrant's state of poverty in Australia. ...

    It will be a question of fact in each case as to whether, at the time of the change relied upon under subsection (7), the applicant retained a realistic choice as to whether to continue with the migration or not. The further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process. If he/she had not reached that stage then it could not be said that the person's poverty in Australia was attributable to the change, but rather to the decision to migrate notwithstanding the change.

14. In Secara (above), the Court said (at 159):

    In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s 739A(7) may operate. Earlier than that point, as Mathews J pointed out, any financial adversity in Australia due to a change of circumstances may well not be attributable to the change but due to the decision to migrate notwithstanding the change.

15. In Secara at 163, Mansfield J said of s 739A(7):

    It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the Act.

    Has Ms Egan suffered a substantial change in circumstances beyond her control?

16. There is no dispute that Ms Egan’s financial circumstances are very difficult.  She and Mr Egan struggle to live on his single pension, and they rely on advances on his pension which are recovered from his fortnightly payments, and on charitable institutions.

17. What I have to decide is whether Ms Egan has suffered a substantial change in circumstances beyond her control such that the two-year waiting period should be waived.

18. Ms Egan worked as a primary school teacher in Indonesia and the Philippines for many years before coming to Australia.  She was evidently well-qualified and she intended to look for work as a teacher in Australia. 

19. Ms Egan does not appear to have made any inquiries about employment opportunities before arriving in Australia.  A letter from a school near her current home indicates that her qualifications would be recognised here.  However, according to a letter from a social worker to the Social Security Appeals Tribunal in May 2012, a Migrant Settlement Project Worker was helping her gain English qualifications so she could get employment as a primary school teacher but she could not afford the cost of the examinations she was required to sit.

20. Ms Egan gave evidence that up until several months ago, she had written to a number of schools inquiring about positions but nothing was available.  More recently, she has stopped applying for positions, and she did not apply for positions in the 2013 school year because her husband’s need for care means she is not available for work, and they would both prefer that she care for him rather than have someone come in.  As well, she now has her own health problems.

21. Ms Egan says her circumstances changed after Mr Egan fell in February 2012 while they were out buying a new car.  They had already bought one new car after their old car broke down, and they had to buy another car after an accident in which they hit a kangaroo.  Both purchases were a drain on their finances. 

22. Ms Egan says her husband has been in constant pain since he fell and his weight has increased from about 120 kilograms to about 150 kilograms because of his reduced mobility.  He now needs daily care and the only relief he can get from his back pain is to lie in a bath several times a day.  She helps lift him in and out of the bath and her own health is now suffering.  She suffers from bilateral elbow pain, which her doctor attributes directly to lifting Mr Egan in and out of the bath, against his advice, and to back pain after Mr Egan fell on her, pushing her back against the tap. 

23. Mr Egan was under his former doctor’s care in February 2012.  The doctor’s clinical notes are in evidence.  They show that Mr Egan saw the doctor on 23 February 2012 complaining of lower back pain; the doctor noted “chronic back pain as a result of a workplace injury – compensation”.  The next reference in the clinical notes to lower back pain is a reference to chronic back pain in May 2012.  There is no reference in the clinical notes to a fall in February 2012, or any time.  When asked about this at the hearing, Mr Egan said he did not tell his doctor about it because, for a long time, he did not think it significant. 

24. According to notes of a conversation with a Centrelink Authorised Review Officer, in April 2012, Mr Egan described various circumstances that had made their lives very difficult.  In December 2011 he had to move to their present accommodation some distance from town after his mother died; his brother took a large amount of cash belonging to Mr Egan from her house and legal proceedings are on foot in relation to her estate.  His health had gone downhill since December 2011 and he now needs a carer.  They had always intended that Ms Egan would work as teacher but she now has to care for him.

25. Against this background, I do not accept that the fall was as significant as Mr Egan says.  It makes no sense, if it was as serious as he says, for him to attribute his back pain to a previous injury and not mention the fall.  Moreover, it is clear from a report from his former doctor in September 2012 that Mr Egan had been under his care since February 2011 and he had multiple chronic conditions including morbid obesity, chronic back pain and Major Depression. 

26. Mr Egan’s current doctor has provided written reports and spoke to the Tribunal by telephone.  He believes there has been a substantial change in Mr Egan’s condition and noted that his weight had increased substantially (although the clinical notes indicate the increase is somewhat less than Ms Egan says).  The doctor gave measured, thoughtful evidence and I have no reason to doubt it, but he has been treating Mr Egan only since August 2012, and he agreed that his knowledge of Mr Egan’s medical history was limited.

27. The same doctor has been treating Ms Egan since August 2012.  He gave evidence that he has no doubt that the bilateral elbow pain, and chronic back pain which she now suffers, is a direct result of lifting her husband in and out of the bath, in particular since he fell on her when she was lifting him out of the bath, pushing her against a tap. 

28. The doctor gave evidence that Mr Egan needs around six hours of help each day with ordinary activities of daily living.  He has told Ms Egan she must stop lifting her husband for the sake of her own health but she continues to do so because she wants to care for him.  It is not clear what outside assistance might be available to Mr Egan but neither of them wants someone else coming in to care for him.

    CONSIDERATION

29. A substantial change in circumstances for the purposes of s 739A(7) need not arise from a single event; it could arise from a progression or accumulation of events.  But the longer the period over which a change occurs, and the greater the number of factors giving rise to it, the more difficult it is to attribute a person’s poverty in Australia to that change for the purposes of s 739A(7).

30. I accept that Mr Egan’s health has deteriorated over time and his need for care has increased.  However, for the reasons I have given, if he did have a fall in February 2012, I am not satisfied that it contributed in any significant way to his present condition.  It is clear from his doctor’s report that he suffered from morbid obesity and chronic back well before Ms Egan arrived in Australia.  Moreover, it is clear that other circumstances, including the death of Mr Egan’s mother, having to move to an isolated location, losing money to Mr Egan’s brother, and Ms Egan’s employment prospects, most of which occurred before Ms Egan arrived in Australia, have all contributed to their present financial difficulties. 

31. “Circumstances beyond a person’s control” suggests an occurrence or occurrences which a person could not realistically prevent.  Something that a person could have done something about but, for whatever reason, did not do so, does not meet that description: Department of Employment, Education & Youth Affairs v Ferguson (1997) 76 FCR 426.

32. It is understandable that Ms Egan wants to care for her husband but it is clear that she continues to do so against her doctor’s advice and at continued risk to her own health.  Her decision to do so has contributed, in large part, to her own health problems and to her decision not to explore employment opportunities, and cannot be said to be beyond her control.  I am not satisfied that Ms Egan has suffered a substantial change in circumstances beyond her control.  It follows that the two-year waiting period should not be waived.

33. I affirm the decision under review.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

.......[sgd].................................................................

Associate

Dated  29 January 2013

Date(s) of hearing	18 December 2012
Applicant	In person
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch