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

[2021] AATA 1100

Heydenrych and Secretary, Department of Social Services (Social services second review) [2021] AATA 1100 (9 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4947

2020/4948

2020/4951

Re:Leon Heydenrych

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:9 April 2021  

Date of written reasons:        3 May 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing for this matter, the Tribunal decides that the decision under review dated 10 August 2020 is affirmed.

............ ....................[SGD]........................................

Mr S Evans, Member

CATCHWORDS

NEWSTART ALLOWANCE and JOBSEEKER PAYMENT – AAT second review – applicant’s claim for Newstart Allowance and Jobseeker Payment rejected as he was not in Australia at the time of applying – decision under review affirmed by oral decision – written reasons given after hearing.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Negri v Secretary, Department of Social Services [2016] FCA 879

REASONS FOR DECISION

Mr S Evans, Member

3 May 2021

INTRODUCTION

1. Leon Heydenrych seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) which affirmed a decision of a delegate  of the Secretary of the Department of Social Services (“the Respondent”) to reject his claims for Newstart Allowance (“NSA”) and Jobseeker Payment (“JSP”). The claims were made whilst Mr Heydenrych was in South Africa and unable to return to Australia due to the COVID-19 pandemic. 

   Hearing

2. The application was heard on 9 April 2021. Mr Heydenrych was self-represented and both he and the representative of the Secretary appeared via video conference in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

3. At the hearing, Mr Heydenrych was provided an opportunity to present his case. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave oral reasons for its decision as permitted under subsection 43(2) of the AAT Act. Mr Heydenrych subsequently sought a statement in writing of the reasons for the decision under subsection 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with subsection 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which these findings were based.

4. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services [2016] FCA 879, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided to affirm the original decision to refuse Mr Heydenrych’s applications.

   BACKGROUND

5. The facts in this matter are uncontroversial. Mr Heydenrych is an Australian citizen and on 17 January 2020 he travelled to South Africa to visit his elderly mother who was experiencing health issues. On 11 February 2020, Mr Heydenrych applied online for NSA and his claim was rejected by a delegate of the Secretary on the basis that he was not in Australia at the time he lodged the claim. 

6. On 28 March 2020, Mr Heydenrych lodged a claim for JSP which was rejected on 6 May 2020 on the basis of Mr Heydenrych not being in Australia at the time he applied.

7. Undeterred, on 7 May 2020 Mr Heydenrych lodged a further claim for JSP which was rejected on 18 May 2020.  

8. Mr Heydenrych sought review of the decisions to reject his claims at the AAT1 on 21 May 2020. The AAT1 dismissed the application for review because the decisions had not been reviewed by an Authorised Review Officer (“ARO”). The decisions were subsequently reviewed by an ARO who affirmed the decision to reject his applications. Mr Heydenrych sought to appeal the ARO’s decision at the AAT1, which affirmed the ARO’s decision to reject the claims on 10 August 2020. 

9. Mr Heydenrych now seeks review of the AAT1 decision at the General Division of the Tribunal by application lodged 16 August 2020. 

   ISSUE TO BE DETERMINED

10. The sole issue to be determined is whether Mr Heydenrych’s claims for NSA and JSP were correctly rejected due to him not being present in Australia at the time they were lodged.

    EVIDENCE

11. The facts in this matter are largely uncontroversial. Mr Heydenrych departed Australia on 17 January 2020. At the time of his departure Mr Heydenrych was in receipt of the Carer Payment and Carer Allowance, both of which were cancelled on 4 February 2020. Before the Tribunal is an e-ticket for a flight from Johannesburg with an arrival date in Sydney on 2 December 2020. The flight was arranged by the Department of Foreign Affairs and Trade (“DFAT”) with a booking creation date of 15 October 2020. 

12. Included in the documentary evidence which is before the Tribunal are screenshots of Mr Heydenrych’s myGov account which record that he applied for Special Benefit and Crisis Payment for National Health Emergency on 4 June 2020. 

13. Also in evidence is part of a letter from the Respondent addressed to Mr Heydenrych dated 5 June 2020 which is titled “Rejection of your claim for Special Benefit” and states in part “We cannot pay you Special Benefit because we may be able to pay you another Centrelink payment that is more suitable. Please contact us for more information.” 

14. ARO notes dated 10 June 2020 record that Mr Heydenrych was informed by telephone that he was not eligible for NSA, JSP, Carer Payment, Carer Allowance or a Special Benefit as he was not in Australia.[1] 

    [1] T44 at p. 410

15. The ARO confirmed the decision to reject Mr Heydenrych’s claims by letter, which states in part:    

    The Department of Social Services has given approval that people on certain payments can have their payments overseas extended until 30 June 2020, without the need for evidence, if they meet the following criteria:

    ·if a person is on an affected payment and they either:

    owere overseas and current on 31 January 2020; OR

    oleft Australia between 1 February 2020 and 18 March 2020 and were payable on departure.

    Neither of these provisions apply to you: your Carer Payment and Carer Allowance were cancelled with effect from 17 January 2020 and you have not submitted a valid claim for Newstart Allowance.

    This means that the decision to reject your claim for Newstart Allowance is correct, and there is no basis in law to pay you while you are outside Australia. 

    APPLICABLE LAW

16. The relevant legislation in this matter is contained in the Social Security (Administration Act) 1999 (Cth) (“the Administration Act”) which provides that a person who wants to be granted a social security payment must make a claim for payment in accordance with Part 3 Division 1. Subdivision H sets out the residence requirements for claimants. Section 29 sets out the general rule: 

    29  General rule

    (1)       Subject to sections 30, 30A, 31 and 31A, a claim for a social security payment or a concession card may only be made by a person who:

    (a)       is an Australian resident; and

    (b)       is in Australia.

    (2)       Subject to sections 30, 30A, 31 and 31A, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

17. Sections 30, 30A, 31 and 31A provide exceptions to the general rule for certain types of social security payments. None of the exemptions provided for apply to Mr Heydenrych’s circumstances. 

    CONSIDERATION

18. Mr Heydenrych argues that he travelled to South Africa in order to visit his 78 year-old mother who was ill. Having arrived in South Africa he wished to return to Australia but was unable to do so on account of the international travel restrictions which were in place owing to the COVID-19 global pandemic. 

19. When he eventually returned to Australia, he found that he had a debt for his quarantine hotel accommodation and flights which he submits amounted to up to $15,000. He withdrew from his superannuation in order to have enough money to survive whilst in South Africa. 

20. As I explained to Mr Heydenrych when delivering the oral decision, the Administration Act does not afford relevant discretion in relation to the requirement under the general rule in paragraph 29(1)(b) that a claim for a social security payment is required to be made by a person who is in Australia. 

21. Mr Heydenrych questioned how the law anticipated dealing with his particular circumstances and suggested that his inability to access benefits was a breach of his human rights. In written submissions he suggests that the Tribunal should consider the impact of the events leading to his application on his mental health, finances and wellbeing. 

22. Whilst overseas travel entails an element of risk and uncertainty, and the cancellation of Mr Heydenrych’s Carer Payment and Carer Allowance might have been anticipated, there is no question that Mr Heydenrych found himself in a situation that was largely the consequence of circumstances he could neither control or have reasonably anticipated. He was unable to return to Australia until such time as DFAT was able to arrange a flight for him. 

23. In the course of the hearing the representative for the Secretary noted that the claims for Special Benefit, which as mentioned above appear to have been rejected on account of the possibility of Mr Heydenrych being paid another benefit, were not part of the decision under review. The Tribunal cannot consider the decision to reject the Special Benefit claims as the decision under review relates only to Mr Heydenrych’s NSA and JSP claims. 

24. Mr Heydenrych indicated during the course of the hearing that he may wish to have the decision to deny him special benefits reviewed. Should Mr Heydenrych seek to do so, he would need to have these decisions reviewed by an ARO. 

25. In relation to Mr Heydenrych’s applications for NSA and JSP, the general rule at subsection 29(1) of the Administration Act requires that a claimant to be in Australia when a claim for a social security payment, including JSP and NSA, is made. When a claimant is not in Australia the claim is taken not to have been made. As there is no relevant discretion to be applied the decision under review will be affirmed. 

    DECISION

26. For the reasons stated above, the decision under review was affirmed.  

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.................................[SGD].......................................

Associate

Dated: 3 May 2021

Date(s) of hearing:	9 April 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Dr S Thompson, Services Australia