Jatan and Secretay, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 229

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   Q2005/522

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAM JATAN & BELAVATI JATAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date13 March 2006

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

.          .........[Sgd]........

SC Fisher

Member

CATCHWORDS

SOCIAL SECURITY – special benefit – liquid assets - policy guidelines

LEGISLATION

Social Security (Administration) Act 1999 Part 4, Division 5

Social Security Act 1991ss729, 729(1), 729(2), 729(3), 729(6), 729A,729AA, 729B, 729C and 730

Administrative Appeals Tribunal Act 1975 s43, s37, s34B

Guide to Social Security Law para 1.1E.140 and 3.7.1.70

AUTHORITIES

Secretary, Department of Social Security v. Murphy [1998] 809 FCA Drummond J

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248

Re Bantick and Secretary, Department of Family and Community Services [2003] AATA 472

Bramwell v Repatriation Commission (1998) 51 ALD 56

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598

Re Te Velde and Director-General of Social Services (1981) 3 ALN N111

Re Myddleton and Secretary, Department of Family and Community Services [2001] AATA 2

Re Vavaris and Director-General of Social Security (1982) 5 ALN N16

Klein v Domus Pty Ltd (1963) 109 CLR 467

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

R v Anderson; ex parte Ipec-Air Pty Limited (1965) 113 CLR 177

Secretary, Department of Social Security v Schofield (1992) 27 ALD 619

REASONS FOR DECISION

13 March 2006 Mr SC Fisher, Member      

Introduction And Background

1.      The current applications for review by the Administrative Appeals Tribunal made by Mr and Mrs Jatan (the Applicants jointly and Mr and Mrs Jatan individually) involve identical matters.  The Applicants lodged applications for special benefit on 9 February 2005. Both applications were rejected on the same day.  Subsequently, both applications proceeded through internal review within Centrelink and later on the primary level of external review was undertaken by the Social Security Appeals Tribunal, which made decisions concerning both applications on 29 July 2005 (which decisions were notified to the Applicants on 2 August 2005).  On 11 August 2005, the Applicant appealed to this Tribunal.

Jurisdiction

2. In a procedural sense, the Tribunal has jurisdiction in these appeals by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999.  In a substantive sense, the merits of these appeals are governed by the Social Security Act 1991 (“the Act”).

The Role of the Tribunal

3. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA Drummond J).  The Tribunal is guided by the norm that it should reach the correct or preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Re Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 602.

4.      This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as age pension and disability support pension.

The Material Before the Tribunal

5. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) and considered the following material provided by the Applicants and the Respondent:

§  Applicants' letters (2) dated 15 August 2005 to this Tribunal.

§  Applicants’ letters (2) dated 25 August 2005 to this Tribunal.

§  Applicants' letter dated 27 December 2004 to Centrelink.

§  Applicants' letter dated 9 February 2005 to Centrelink.

§  Applicants' letter dated 9 May 2005 to Centrelink.

§  Applicants' letter dated 10 May 2005 to Centrelink.

§  Applicants' letter dated 6 June 2005 to Centrelink.

§  Applicants' letter dated 28 June 2005 to the Social Security Appeals Tribunal.

§  Respondent’s Statement of Facts & Contentions (undated).

Hearing on the Papers

6. At the request of the parties, the Tribunal made this decision on the papers as it appeared to the Tribunal that the issues for determination in this case could be adequately determined in the absence of the parties within the meaning and operation of section 34B of the Administrative Appeals Tribunal Act 1975.

7.      The Applicants were self-represented.  The Respondent was represented by its Legal Services Branch.

8.      The Tribunal considered the documentary material very carefully.

Issue

9. The principal issue before the Tribunal is within a short compass. It is whether a discretion vested in the Respondent (and this Tribunal as an appellate decision-maker) under section 729 of the Social Security Act 1991 should be exercised in favour of each of the Applicants to grant each of them special benefit.

Submissions for the Applicants

10.     The submissions for the Applicants seeking to persuade this Tribunal that they should be granted special benefit came from the T- documents and the chain of correspondence cited at paragraph five above.

11.     It is fair to say that the Applicants advanced the following reasons why they should be granted special benefit:

A.   The Applicants suffer from declining old age.

B.   The Applicants suffer from multiple sicknesses.

C.   The Applicants do not have health insurance.

D.   The Applicants do not own a motor vehicle or a house of their own.

E.   The Applicants' savings were earmarked for future health care and medical procedures and funeral expenses.

Submissions for the Respondent

12.     The reasons advanced by the Respondent in its Statement of Facts and Contentions by special benefit should not be paid to each of the Applicants were as follows:

A.   The Applicants did not satisfy the preconditions under section 729(2) of the Act, which needed to be satisfied before in the discretion contained in section 729(1) could be exercised (Re Te Velde and Director-General of Social Services (1981) 3 ALN N111 and Re Myddleton and Secretary, Department of Family and Community Services [2001] AATA 2 at [37]).

B.   The Applicants do not qualify for disability support pension or newstart allowance as the Applicants are of age pension age. The Applicants satisfy sections 729(2)(a) and (b) of the Act.

C.   The Respondent conceded that the Applicants are not able to earn a sufficient livelihood due to their age and medical conditions, thus satisfying section 729(2)(e) of the Act.

D.   The Respondent contended that Mr Jatan’s civil pension paid to him by the Fijian Ministry of Finance of approximately $9,924 per annum was an alternative source of support. On the authority of Re Vavaris and Director-General of Social Security (1982) 5 ALN N16, which held that the public purse should not be called upon if the person has an alternative source of support, Mr Jatan should not be paid special benefit as he has this alternative source of support by way of his Civil Pension.

E.   The Respondent contended that applying the Long Term Available Funds Test to Mrs Jatan barred her from access to special benefit taking into account the Applicants' available funds of $79,739.65.

F.    The Respondent contended that the situation governing the Applicants was indistinguishable from Re Myddleton and Secretary, Department of Family and Community Services [2001] AATA 2 where the applicants in that case had $80,000 in available funds and did not qualify for special benefit.

G.   The Respondent argued that the decisions below ought to be affirmed.

Findings of Fact

13.     The Tribunal considered carefully the material before it.  The Tribunal makes the following findings of fact:

A.Mrs Jatan was born on 5 July 1937.

B.Mr Jatan was born on 22 February 1932.

C.Mr and Mrs Jatan obtained permanent resident visas on 1 February 1999 and last arrived in Australia on 15 December 2002.

D.Mr and Mrs Jatan came to Australia to live near family members and to obtain access to Australian medical facilities.

E.Mr and Mrs Jatan became Australian citizens on 23 January 2005.

F.Mr and Mrs Jatan qualify for access to the Australian public health system.

G.Mr and Mrs Jatan do not qualify for age pension because they have not had 10 years' qualifying residence in Australia.

H.Mr and Mrs Jatan suffer from various medical conditions which preclude them from seeking and obtaining suitable work.

I.Mr and Mrs Jatan have $79,739.65 in available liquid assets.

Legislation

14. The substantive aspects of this appeal are governed by Part 2.15 of the Act, in particular 729 of the Act, relevant portions of which are extracted below:

“729  Qualification for special benefit

729(1)A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

Note:special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

729(2)The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a)no social security pension is payable to the person during the period; and

(b)no other social security benefit is payable to the person for the period; and

(bb)the person is not disqualified for a benefit PP (partnered) for the period solely because of the operation of section 500C (unemployment due to industrial action); and

(bc)the person is not disqualified from parenting payment for the period solely because of a failure to meet the requirement of paragraph 500(1)(c) (requirement to enter into a participation agreement); and

(bd)if the person is qualified for parenting payment but the payment is not payable to the person for the period—that result is not produced because of the operation of section 500ZA (person failing to comply with a participation agreement); and

(c)the person is not disqualified for a newstart allowance for the period because of the operation of section 596; and

(d)if the person is qualified for a newstart allowance but the allowance is not payable to the person for the period—that result is not produced because of the operation of one or more of the following:

(i)section 625 (person failing to enter into a Newstart Activity Agreement);

(ia)section 626 (person failing to comply with a Newstart Activity Agreement);

(ii)       section 624 (person failing to satisfy activity test);

(iii)      section 628 (unemployment due to voluntary act);

(iv)      section 629 (unemployment due to misconduct);

(v)       section 630 (refusal of job offer);

(va)     section 630AA (failing to provide information);

(vi)section 631 (person failing to comply with notification requirement);

(viii)     section 633 (seasonal workers);

(ix)section 634 (move to area of lower employment prospects); and

(da)the person is not disqualified for a youth allowance for the period because of the operation of:

(i)        section 541A (failure to satisfy the activity test); or

(ii)section 544 (requirements relating to Youth Allowance Activity Agreements); and

(db)the person is not disqualified for an austudy payment for the period because the person fails to satisfy the activity test within the meaning of section 569; and

(dc)youth allowance is not payable to the person for the period and that result is not because of the operation of:

(i)section 550 (application of activity test non‑payment period); or

(ii)section 553B (move to an area of lower employment prospects); or

(iii)      section 81 of the Administration Act; and

(dd)austudy payment is not payable to the person for the period and that result is not because of the operation of:

(i)section 576 (application of activity test non‑payment period); or

(ii)       section 81 of the Administration Act; and

(e)the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f)        the person:

(i)        is an Australian resident; or

(v)is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph; and

(g)       if the person is:

(i)the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which this subparagraph applies; and

(ii)       a person to whom subsection (2A) applies;

the person meets the additional criteria set out in paragraph (2B).

Note 1: for Australian resident see subsection 7(2).

729(3)  The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.

729(6)  If:

(a)a person was receiving a social security pension, a service pension or income support supplement; and

(b)the person claims a special benefit within 14 days of the day on which the last instalment of the person’s pension was paid; and

(c)the person becomes qualified for a special benefit at some time during the 14 day period but after the first day of that period;

the person is taken to be qualified for a special benefit for the whole of the 14 day period.

Note:   subsection (6) operates when a person transfers from a pension to a special benefit and the person is not qualified for a special benefit immediately after the day on which the person’s last instalment of pension is paid. The subsection deems the person to be so qualified. As a result, the person may be paid a special benefit for the period beginning on the day after the day on which the person’s last instalment of pension was paid. The subsection aims to ensure that there is minimal disruption to a person’s payments when a person transfers from a pension to a special benefit.”

15. Companion provisions to section 729, such as sections 729A, 729AA, 729B, 729C and 730 (together with other relevant provisions of Part 2.15 of the Act) do not fall for consideration in this appeal unless the Applicants satisfy the Tribunal that the discretion vested in the Tribunal under section 729(1) should be exercised in their favour.

Tribunal’s Reasons

The interrelationship between sections 729(1) and 729(2)

16.     The Tribunal follows Re Myddleton and Secretary, Department of Family and Community Services [2001] AATA 2 at [37] and Re Te Velde and Director-General of Social Services (1981) 3 ALN N111 in holding that section 729(2) is the gateway to the exercise of the discretion vested in it under section 729(1).

The application of section 729(2)

17. Most of the paragraphs of section 729(2) are not relevant to the circumstances of this appeal.

18. The Tribunal notes that the Applicants do not qualify for disability support pension or newstart allowance as the Applicants are of age pension age. The Applicants satisfy sections 729(2)(a) and (b) of the Act.

19. The Tribunal notes the very proper concession of the Respondent that the Applicants are unable to earn a sufficient livelihood for themselves individually and collectively because of age, physical or mental disability or domestic circumstances or for any other reason within sections 729(2)(e). The Tribunal would have come to the same conclusion if this concession had not been made.

20. While the structure of section 729(2) is not entirely felicitous (because of the successive or cascading exclusions any decision maker must work through before the discretion contained in section 729(1) can be exercised), it was clear to the Tribunal that the Applicants satisfied the other elements of section 729(2) in this case. This meant that the occasion for the exercise of the section 729(1) was triggered.

The exercise of the section 729(1) discretion

21. It is clear to the Tribunal from the Note to section 729(1) that any grant of special benefit is a discretionary benefit of last resort. Taken together, sections 729(1) and 729(2) structure special benefit as a discretionary benefit. Special benefit is not one of those income support payments or benefits which are payable automatically once qualifying and payability criteria are satisfied. In Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473, Dixon CJ underscored the importance of examining or reviewing any given statutory discretion in light of the scope and purpose of the provision housing the discretion and distilling its real object. In this vein, it appears to this Tribunal, the evident scope and purpose of section 729 is to provide a regime for the payment of an income support benefit or payment (captioned "special benefit") in circumstances where a claimant is not eligible for other specific or targeted income support payments or benefits. The Tribunal distils the real object of section 729 as providing an income support payment or benefit of last resort.

22. The discretion contained in section 729 is ostensibly at large albeit constrained by the signpost represented by the Note to section 729(1). This discretion, however, does not operate inside a policy vacuum. Centrelink decision-makers are guided by a document called Guide to Social Security Law.  The Social Security Appeals Tribunal cited paragraphs 1.1.E.140 and 3.7.1.70 from the Guide to Social Security Law to the effect that under the so-called Long-Term Available Funds Test for Special Benefit, if somebody has available funds of more than $5,000, special benefit should be denied.  The Social Security Appeals Tribunal found that the Applicants they have available funds of approximately $79,000, and accordingly made a decision that the Applicants should be denied special benefit because of their available liquid funds.  The critical question on review by this Tribunal is whether the decision was right or wrong.

23.     In effect or substance, the Applicants argued that this standard, across-the-board policy should not be applied to them to disqualify them from special benefit.  The Applicants argued that their circumstances (outlined in paragraph 11 above) should attract the favourable exercise of the discretion to grant them special benefit.  These implicit contentions invoke the well-known tension between the application of a general governmental policy and the circumstances of individual cases.  The Applicants may be taken to have argued that their applications for special benefit should be decided on their own particular merits rather than in light of or framed by the $5,000 available funds rule.  This contention finds some support in what Deane J said in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 647; 3 ALN N62, namely that:

"The tribunal is not bound by either its own previous decisions or by the content of government policy.  There has been and will be cases in which the tribunal concludes that it should refuse to follow a previous decision of the tribunal or reject or disregard the dictates of a relevant policy of the government.  The existence of such cases serves to emphasise the fact that each applicant to the tribunal is entitled to have his or her application for review decided on its own particular merits.  The desire for consistency should not be permitted to submerge the ideal of justice in the individual case."

24.     Nevistic v Minister for Immigration and Ethnic Affairs is authority for the proposition that government policy cannot triumph over justice in individual cases when it comes to administrative justice.

25.     In contrast, the Respondent contended that ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 mandated that consistency in approach should be the hallmark of the actions of decision-makers in deciding special benefit applications (including this Tribunal on review). The Respondent contended that this Tribunal should follow its earlier decision in Re Myddleton and Secretary, Department of Family and Community Services [2001] AATA 2 and apply the $5,000 available funds rule against the Applicants in this case. The Respondent appealed to the need for consistency in decision-making to buttress that contention.

26.     In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, this Tribunal constituted by a Presidential Member (Brennan J) said:

"If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to be Tribunal.  One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions on comparable cases, and one of the most useful aids in achieving consistency is a guiding policy.”

27.     Policies embody broad goals or objectives, which fall for consideration and application in the circumstances of individual cases.[1]  In effect, the Applicants contend that the $5,000 available funds rule should not be applied adversely to them. The considerations advanced by the Applicants in a long chain of correspondence between themselves and Centrelink (also made available to this Tribunal) point to health considerations, financial considerations and future expected funeral expenses as the levers to displace the policy.  The Tribunal considered these considerations very closely and carefully.

[1] See R Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge, Massachusetts, 1977), p 22, who says that a policy is a kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community.

28. This Tribunal must exercise the section 729 discretion according to rules of reason and justice and not according to private opinion or disposition: R v Anderson; ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J and Secretary, Department of Social Security v Schofield (1992) 27 ALD 619 at 631.

29.     It appeared to the Tribunal that the reason for the $5,000 available funds rule is the expectation that if a person has more than $5,000 in available liquid funds, then that person should draw on those financial resources to provide for their own material well-being instead of drawing on the public purse in the shape of special benefit.  The evidence before the Tribunal well justifies a finding that the Applicants have $79,739.65 in available liquid assets.  The Applicants said that they had earmarked much of the $79,739.65 available liquid assets for future medical expenses (including surgery), but no specific surgical procedure was mentioned in correspondence between themselves and Centrelink.  The Applicants have also earmarked some of the $79,739.65 standing to their credit to pay for future funeral expenses.

30.     Re Myddleton and Secretary, Department of Family and Community Services [2001] AATA 2 at [40] cited Re Blackburn and Secretary, Department of Social Security (1982) 4 ALN N76 which reinforced that a compassionate approach should be taken to matters of qualification for special benefit.  In this case and in that spirit, the Tribunal took into account the age of the Applicants and their inability to work because of their adverse health.

31.     The Tribunal also took into account that Mr Jatan receives a civil service pension from the Government of Fiji.  The evidence before the Tribunal discloses that the amount of that civil service pension is on par with the amount of special benefit (allowing for fluctuations in exchange rates between the Australian dollar and the Fijian dollar).

32.     Special benefit is an income support benefit of last resort.  Taking into account:

A.   The policy behind special benefit; and

B.   The reasons for the $5,000 available funds rule; and

C.   The need for consistency in decision-making; and

D.   The individual circumstances of the Applicants (including their financial assets of $79,739.65 in available liquid assets form, the civil service pension payable to Mr Jatan, their age and declining health),

the Tribunal concludes that the preferable decision in this case is that the discretion contained in section 729 of the Social Security Act 1991 should not be exercised in favour of the Applicants to grant them special benefit.

33.     The Tribunal acknowledges that the Applicants will be disappointed by this decision.  The Tribunal observes, however, that very few claimants for Social Security benefits in Australia have a pool of nearly $80,000 in liquid assets on which to draw for their sustenance and material well-being.  It is proper that the Applicants utilise their own financial resources before they draw on special benefit.

Tribunal’s Conclusion

34.     On the basis of the evidence before it, and for these Reasons, the Tribunal concludes that the Applicants do not qualify for special benefit.

Tribunal’s Decision

35.     The Tribunal affirms the decisions under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member

Signed:         Leisa Pendle, Associate

Date of Hearing  Matter heard on the papers 
Date of Decision  13 March 2006