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

Jamalluddin and Secretary, Department of Social Services (Social services second review) [2022] AATA 361 (6 January 2022)
Division:GENERAL DIVISION
File Number(s): 2020/1909
Re:Jamalluddin Jamalluddin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Cox
Date:6 January 2022
Place:Adelaide

The decision under review is affirmed.
...........................[Sgnd]..........................
Member Cox

CATCHWORDS
SOCIAL SECURITY – Special Benefit Payment – whether the applicant was qualified for special benefit payment – applicant had considerable funds available to him – whether applicant able to earn sufficient livelihood – not suffering financial hardship – decision under review affirmed
LEGISLATION
Social Security Act 1991
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Member Cox
6 January 2022
BACKGROUND

On 26 November 2012 the Applicant arrived in Australia.
The Applicant’s employment history includes working for SAAB Trolley Service from
21 March 2016 to 19 July 2016, Adelaide Poultry from 20 July 2016 to 31 May 2019, and as an Uber driver from 18 November 2019 to 6 January 2020.
On 14 July 2017 the Applicant was granted a Subclass 790 Safe Haven Enterprise visa (the Visa).
The Applicant was absent from Australia from 30 September 2017 to 10 January 2018 and 2 October 2018 to 26 December 2018.
On 13 January 2020 the Applicant claimed special benefit (SpB).
On 17 January 2020 Services Australia (the Agency) rejected the claim.
On 28 January 2020 the Applicant requested a review of the decision of 17 January 2020.
On 20 February 2020 an authorised review officer (ARO) affirmed the decision of
17 January 2020 to reject the claim.
The ARO gave the following reasons for her decision:
“Special Benefit can only be paid when no other social security payment is payable and the person is in financial hardship through circumstances that are beyond their control.

I note from your record that you have worked since arriving in Australia.

Your financial documents confirm that you have been operating as an Uber driver. Your average income was around $1,000 per week from November 2019 to January 2020. During the same period you made payments to a Commonwealth Bank account of about $20,000. This suggests that the full extent of your financial circumstances have not been disclosed

You told the agency that you used a credit card to buy a car for your Uber driving but had to sell it because you had no other means to pay the debt. You have not provided proof of this.
You told me that you stopped driving and sold the car in November due to a mental health condition. However, you have not provided proof that your capacity to work was seriously affected by your condition at that time, or that you were not able to find other work.

Based on the available evidence I have found that your financial hardship is not due to circumstances beyond your control. This means you are not qualified for Special Benefit.

As you are not qualified for Special Benefit, the decision to reject your claim was correct.”
On 26 February 2020 the Applicant submitted an application for review of that decision to the Tribunal (AAT1).
AAT1 properly confined its review to whether the Applicant was entitled to SpB on the date of the first claim. AAT1 was primarily concerned with whether the Applicant had available funds of more than $5,000 which, according to policy set out in the Social Security Guide is a threshold question, if available funds are more than that, then the benefit is not payable.
AAT1 found that over the period 25 November 2019 until 10 January 2020, amounts totalling $25,000 had been deposited into the Applicant’s credit card account, including amounts in excess of $5,000 in the two weeks prior to the application for SpB.
The Applicant explained the origin of these funds deposited into his credit card as gambling winnings. He explained cash advance withdrawals from the credit card as the funds he needed to facilitate that gambling.
The Applicant noted two exceptions, deposits of $8,925 and $900, which were funds sourced from the sale of a motor vehicle.
The Applicant lost a lot of money by gambling and he attributed his family’s reaction to that as one of the principal causes of his mental and psychological problems.
The Applicant told AAT1 that he had been left with nothing and was unable to afford to travel to see his family.
The Applicant told AAT1 he stopped working as an Uber driver at about the same time his bank account showed the final deposit from that source, which was about 6 January 2020. However, he continued to gamble.
The Applicant had a Centrelink medical certificate (T15, p 92) signed by his general practitioner that said he would be unable to undertake his usual work or study for a period of one month ending on 1 March 2020. The diagnosis was major depression. At the time of the AAT1 hearing the Applicant had not sought treatment for his depression.
AAT1 addressed the policy that a person’s liquid funds should be deemed to include amounts of purchases that are neither exceptional nor unforeseen and said:
“In my view, the discretion inherent in identifying the amount of a person’s available funds in circumstances where a person’s funds reduced dramatically in the weeks leading to the application for the payment should not be exercised to disregard the fact that large sums of money were available to Mr Jamalluddin but were instead expended on gambling or reducing credit card debt incurred by gambling. Such expenditure does not amount to expenditure that is unforeseen or relevantly exceptional.”
The ARO also posed a test of whether the Applicant’s hardship was due to circumstances beyond his control. AAT1 noted that those particular words are not used in the Social Security Guide (the Guide), topic 3.7.1.70 “Long term available funds test for SpB”, but the guide does require an assessment of the circumstances in which a person’s available funds reduced below the amount of $5,000 identified in the guide. In that context, AAT1 said the question of whether the Applicant’s financial hardship is due to circumstances beyond his control is legitimate and one which must inevitably be answered adversely.
AAT1 exercised its discretion in accordance with policy set out in the guide and said:
“I do not view his available funds as being less than $5,000 in all the circumstances. I accept that the policy states that if available funds, viewed in this way, exceed $5,000 the application should be rejected.”
Accordingly, on 17 March 2020 AAT1 affirmed the decision of 17 January 2020 to reject the Applicant’s claim for SpB.
On 23 March 2020 the Applicant made a new claim for SpB. This is not a review of that decision or the Applicant’s circumstances when it was made.
REASONS FOR APPPEAL
On 1 April 2020 the Applicant made an application to the Tribunal for review of the AAT1 decision and gave the following reasons:
“Since January I have been jobless and wasn’t able to work or find anything. My mental situation wasn’t good, I was in dark stage of life. As soon as I was getting better to get back on my feet, something else had to come and make things worse. The current corona virus situation is making things a lot worse. I am struggling and have no money to pay rent or buy food. I am behind on my rent. I have been borrowing money from friends so I can feed myself. But now they are asking for their money to be paid back to them as they aren’t working from the virus situation. I have applied to a lot of places to work but I haven’t even gotten a response back. If no one can help me during these times, I’ll soon be in the streets with nowhere to go. Please I need help from someone and need guidance. Please I just need help until I can find a job. I am willing to work anywhere.”
These reasons for appeal relate largely to the Applicant’s circumstances at the beginning of the coronavirus pandemic which are not the same as his circumstances at the time of his claim, which are the subject of this appeal.
On 15 April 2020 the new claim made by the Applicant for SpB was granted from
23 March 2020.
This is a review of the Applicant’s circumstances on 13 January 2020 when he made the first claim for SpB which was rejected on 17 January 2020. It is not a review of the start date for the second claim made on 23 March 2020.
EVIDENCE TAKEN AT THE HEARING
The Applicant told the Tribunal that he had applied for SpB because he had become addicted to gambling, had psychological problems and could no longer work as an Uber driver as he was on heavy medication for his depression which resulted in headaches and dizziness.
The Applicant told the Tribunal that his depression was related to his gambling problem which resulted in him not being able send money home to Afghanistan for his wife, child, mother and sister who did not have a male in the household to support them. His gambling addiction meant he could not afford to go home to see his family and the isolation from them was a factor in his depression.
The Applicant said his Uber business had previously been profitable. He had been able to cover the financing costs on the car (which he had bought with a credit card and cash), cover the car running costs, pay his own living expenses (rent and food) which were about $250 per week and send $700 a month to his family in Afghanistan, which he did through Western Union.
The Applicant told the Tribunal he was forced to sell the car to reduce his credit card debt on 25 November 2019, for which he received $8,925 and subsequently bought another vehicle for $7,000 which he paid in cash.
The Tribunal examined the Applicant’s bank and credit card statements.
Between 18 November 2019 and 6 January 2020, the Applicant received eight payments from Uber totalling $8,286.56.
The Applicant was able to identify from his bank and credit card statements a large number of gambling transactions during the period 17 November 2019 to 10 January 2020, these were:
(a)seven transfers to his Sportsbet account totalling $4,330 for cricket wagers with a return to his bank account of only $500; and
(b)fifteen debits from his bank and credit card accounts for casino betting totalling $10,105.80 with ten credits from the same source totalling $14,811.60.
There were other significant transactions, a credit card debit of $1,350 which the Applicant said was to pay for car parts for his own vehicle and another of $4,194.12 which the Applicant said was to purchase a car for someone else, with that person repaying him in cash.
The Tribunal found that the Applicant had large amounts of money flowing through his bank accounts and credit cards. In the two weeks before he claimed SpB, these included $9,248 of winnings from gambling and payments from Uber of $1,690. The Tribunal finds that the Applicant had more than $5,000 in the period before he made the claim.
The Applicant told the Tribunal he had a gambling addiction and that this was the cause of him disposing of his available funds.
He had a medical certificate dated 30 January 2020 which diagnosed major depression but not gambling addiction, see paragraph 18 above.
The Applicant also provided letters from his general practitioner dated 23 June 2020 which provided diagnoses of depression and stress. These letters discussed his separation from his family in Afghanistan but did not refer to gambling.
In the absence of evidence of addiction provided by either a clinical psychologist or medical practitioner, the Tribunal finds it more likely that the Applicant’s gambling was a product of his lifestyle choices.
APPLICATION OF LEGISLATION AND POLICY
Section 729(2) of the Social Security Act 1991 (the Act) contains a number of preconditions for a grant of SpB. Relevantly the Applicant is the holder of the Visa, which is a temporary visa, and no other social security pension or benefit is payable to him.
Exercise of the discretion provided by section 729(1) of the Act to grant SpB to a person who meets the preconditions of section 729(2) of the Act is generally guided by policy contained in the Agency’s Social Security Guide (the Guide).
The Guide, at topic 3.7.1.30 “Assessment of SpB claims”, says the delegate must consider the following factors when making a decision about SpB:
·the intention of the SpB legislation
·ability to earn a sufficient livelihood
·circumstances which have led to the hardship
·other reasonable means of support
·social worker involvement
·the available funds test, and
·the income test.
At the time the Applicant made his claim for SpB, there was insufficient evidence to find that he did not have the ability to earn a sufficient livelihood. The medical certificate that was subsequently provided said he would be unfit for work from 30 January 2020 to
1 March 2020.
The guide, at topic 3.7.1.10 Qualification for SpB, says that to qualify for SpB, a person must be in financial hardship and unable to obtain or earn a sufficient livelihood for themselves and any dependents.
For the purposes of the Act, it is inappropriate to consider the Applicant’s family who are overseas as appropriate recipients of an income support payment.
As the Applicant is the holder of the Visa, it is appropriate to apply the long-term available funds test set out in topic 3.7.1.70 of the guide. For the reasons set out in paragraph 36 above, the Applicant does not pass that test.
DECISION
The decision under review is affirmed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for the decision herein of Member Cox.

............................[Sgnd].............................
Legal Administrative Assistant

Dated: 6 January 2022

Date of hearing: 18 December 2020

Applicant:

Self-Represented

Advocate for the Respondent:
Mr Christian Visser

Services Australia

[2022] AATA 361

6 January 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies