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

[2018] AATA 4769

GWML and Secretary, Department of Social Services (Social services second review) [2018] AATA 4769 (12 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2469

Re:GWML

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:12 November 2018

Date of written reasons:        13 December 2018  

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 12 November 2018, the reviewable decision dated 24 April 2018 has been affirmed by the Tribunal.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – application for benefit – whether ordinary waiting period should be waived – whether applicant subject to liquid assets waiting period – severe financial hardship – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 14A, 19C, 598, 620, 621

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

13 December 2018

1. The applicant is a mechanical engineer by trade but has not worked since 2010.

2. He originally came to Australia from Egypt. He has had to travel to Egypt from time to time for family reasons and his most recent visit was from 4 December 2016 until 12 December 2017.

3. As the applicant was on Newstart when he went to Egypt, this ceased after a period of time and he had to reapply when he returned to Australia which he did with effect 13 December 2017.

4. He was subject to a liquid assets test which in the case of Newstart is based on the liquid assets a person holds on the day that person applies for (in the applicant’s case) a Newstart allowance.

5. The applicant had looked at a departmental web site that clearly indicated that he should enter the amount of cash he had on hand (in his case $10,117.26 in 2 bank accounts) but that for pension assessment purposes money held in bank accounts to pay day to day expenses such as outstanding bills would not be counted. In other words the assessment would look at the net amount after deducting debts and expenses due.  

6. Unfortunately, the site he looked at only covered 6 types of pensions (such as Abstudy and Austudy) but did not cover Newstart allowance. The tribunal shares the applicant’s frustration at the fact there are different rules for different pensions for such things like a liquid assets test.

7. However, by giving the full amount in his 2 bank accounts, and not deducting the money he needed to pay for bills and debts owed beforehand (because he had no reason to believe he needed to) the applicant’s liquid assets were assessed to be the $10,117.26.

8. It should be noted that in section 14A of the Social Security Act 1991 (Cth) (the Act) the liquid assets test definition includes monies held in a bank or financial institution as assets, but does not include any provision to deduct debts that may be owing at the time.

9. The effect of this was that instead of having to wait only 7 days before receiving his Newstart allowance, the applicant had to wait a further 10 weeks on top of that until 28 February 2018 before he could be paid Newstart (13 December 2017 to 27 February 2018).

10. The liquid assets waiting period (LAWP) is calculated at the rate of $500 per week for every dollar over $5,000 held by an applicant.

11. As the applicant had $10,117.26 in the bank he was $5,117.26 over his entitlement and he therefore had to wait 10 weeks (the weekly allowance is rounded down so $5,117.26 is treated as $5,000) pursuant to the rules governing the LAWP.

12. The applicant upon his return to Australia had to pay bills and debts totalling $5,123.92. Included in this sum was a reimbursement of $2,627.92 to his brother for some bills he had paid on the applicant’s behalf whilst the applicant was away.

13. Had he extrapolated this sum out of his liquid assets in the bank and told the respondent the net figure of $4,993.34, or paid the bills and debts due before applying for Newstart he would be under the $5,000 threshold. For the understandable reasons given above he didn’t.

14. He has two possible avenues of relief.

15. The first and least helpful one is the right to waive the ordinary waiting period (OWP) of 7 days if he experienced a financial crisis. However the financial crisis has to relate to the 4 week period prior to the date of claim i.e. - between 15 November 2017 and 13 December 2017 (see section 620 and 621 of the Social Security Act 1991 (Cth) (the Act). There is no evidence to suggest this was the case here.

16. Waiving the LAWP of 10 weeks (13 December 2017 to 20 February 2018) requires the applicant being able to satisfy the severe financial hardship test. (See section 598(5) of the Act). He needs to be in such hardship as a result of unavoidable or reasonable expenditure incurred whilst serving the LAWP (ie between 13 December 2017 to 20 February 2018). It does not include his expenditure or cost of living pressures prior to the LAWP (the $5,117.26) or those after the LAWP.

17. Severe financial hardship is defined in section 19C(2) of the Act to be if his liquid assets are less than the fortnightly payment he was entitled to under his Newstart allowance - in his case $538.80 per fortnight.

18. Unavoidable or reasonable expenditure during the LAWP in his case included overdue bills, council rates, electricity and utility payments, and food and car expenses.

19. The applicant took the tribunal through his expenses and showed how he would have spent most of his remaining savings during the LAWP period.

20. One thing that was not clear was what he had spent approximately $7,250 on between 21 December and 29 December 2017. It appears that during that period he had withdrawn $8,000 from his savings account, and put around $750 into his cheque account. He appears to have only spent $767.26 up until 21 December 2017. He may well have paid all his outstanding bills and debts, plus any new ones during that 8 day period. The evidence was by no means clear on this point.

21. The evidence was also not clear on how his total liquid assets as at 19 January 2018 were only $262 yet on 16 February 2018 they had risen to $382.95. He did not, after all receive NSA until 28 February 2018. He indicated that he did not have to borrow any money from anyone during the period and whilst he said he had sold some family items to give himself a bit of leeway those sales seemed to relate to a more recent period and not the LAWP.

22. It was therefore not clear if he was in severe financial hardship. Had the figure in February been less than the January 19 figure the tribunal may well have altered the LAWP so as to allow him a few hundred dollars extra by adjusting the period. However, as a result of the above unexplained increase in the money he had in the bank between 19 January 2018 and 16 February 2018, this mitigated against my finding of severe financial hardship and indeed I am at a loss as to what, if any amount could be waived.

23. It is unfortunate that the applicant did not research what was required to apply for Newstart because if he did we would not be here and I agree with him it is unfair that for some types of pensions and allowances a net figure is used but for others it’s a gross figure when calculating liquid assets.

24. As a result of this inconsistency between different types of pension assessments he has missed out on 10 weeks Newstart payments which in his case amounted to $2,694.

25. I am sure he will not make the same mistake again if he has to go overseas again.

26. As he felt strongly about the inconsistency between pensions and the incomplete and potentially misleading information on the departmental website the tribunal suggested that it may be something he may wish to take up with his local federal member of parliament with a view to having the law changed and/or departmental rules altered.

27. There is one further issue raised during the hearing that concerned the applicant.

28. He told the tribunal that he did not receive much help when he made several contacts with the department and was also told conflicting things. I could well imagine him becoming quite vocal and forceful in putting his point of view. Indeed he did so in front of me. But at no time did I find him to be doing so in anything other than within the bounds of common courtesy. He was merely strongly putting his arguments in a way that was still well within the bound of propriety.

29. I am concerned with the notation on Page 196 of the T docs, which the applicant with good reason drew to my attention that states under the heading ANNOTATE BY V8Q ON 18 JAN 2018 “Rude and Arrogant man...”.

30. This is totally unnecessary in my view. In his circumstances I can understand him being concerned and forceful in his dealings with a seemingly unresponsive bureaucracy. There is also nothing to indicate why this comment was made or any evidence put forward so as to back it up.

31. It appears to be a gratuitous one liner which in my view should not be on the file and should be removed forthwith and I indicated as such to the representative of the respondent in open tribunal.

32. As an addendum to this matter I should also add that he then passed me a letter that directed, in the eventuality he was successful in his claim, for any monies due to him to be paid instead - 75% to his church and 25% to St Vincent de Paul. I handed the letter back to him with the comment that that was a very fine gesture.

33. However, it is somewhat academic as a result of my decision which is - that the decision of the AAT1 is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 13 December 2018 

Date of hearing:	12 November 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services