Karlston and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 1291

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/74

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RICKY DAVID KARLSTON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date13 December 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................(Sgd).......................
Mr O Rinaudo
Member
CATCHWORDS
SOCIAL SECURITY – special benefit – eligibility – newly arrived resident waiting period - whether there has been a significant change in the applicant's circumstances
Social Security Act 1991
Re Chelechkov and Secretary, Department of Social Security (1998) 26 AAR 321
Secretary, Department of Social Security v Secara (1998) 89 FCR 151

Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 76 FCR 426

Re Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998)
Re Secretary, Department of Family and Community Services and Ewais [2000] AATA 487

Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 31 AAR 554

REASONS FOR DECISION

13 December 2002 Mr O Rinaudo, Member

Mr Karlston is a New Zealand citizen, who arrived in Australia on 31 May 2000. Following his arrival, he lodged applications for carer payment and special benefit with the respondent. His applications were refused on the basis that the applicant had not been a resident in Australia for two years from the date of his arrival. The Social Security Appeals Tribunal (SSAT) affirmed those decisions on review in November 2000.
In July 2001, the applicant again applied for special benefit. The applicant claimed that the two year waiting period should not be applied in his case as he had experienced a substantial change in his circumstances, that is, he developed a "prolonged illness" between July 2000 and July 2001.
The respondent granted the applicant special benefit from 17 July 2001. However, the Department ceased paying the benefit on 4 December 2001 when it determined that Mr Karlston's illness did not constitute a "significant change in circumstances". That decision was affirmed by an authorised review officer on 12 December 2001, and by the SSAT on 14 January 2002. The applicant sought a review of that decision by this Tribunal.
This matter was heard by the Tribunal on 10 September 2002 at Bundaberg. At the hearing, Mr Pearson represented the applicant and Mr McQuinlan represented the Department. The Tribunal had before it the T-documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), as well as a progress note prepared by Dr Don Quick, Consultant Psychiatrist (Exhibit 2). The Tribunal heard oral evidence from the applicant, Mr Karlston.
Factual Background
Mr Karlston arrived in Australia from New Zealand on 31 May 2000.
The applicant lodged a claim for carer payment, which was granted by the respondent on 28 June 2000. He received payments over a couple of months, until the respondent cancelled his payments on 14 July 2000. On 17 July 2000, a decision was made to raise and recover an overpayment of carer payment made to the applicant in the amount of $756.96. That decision was made on the basis that the applicant was subject to a two year "newly arrived resident's waiting period" under s 201AA(1) of the Social Security Act 1991 and therefore had not been entitled to receive the payments made to him. Carer payment is not payable to a person who is subject to the "newly arrived resident's waiting period" (s 201AA(1)). As there is no discretion in Part 2.5 of the Act to waive the two-year waiting period, the SSAT affirmed the decision. In relation to the applicant's claim for special benefit, the SSAT were not satisfied that the applicant's circumstances had changed significantly such as to warrant exercising the discretion in s 739A(7) to waive the two year waiting period.
On 19 July 2001, Mr Karlston lodged a fresh application for special benefit. That application was granted and he received payments until December 2001, when Centrelink determined that the applicant's payments should be cancelled. The respondent formed the view that the applicant had not experienced a substantial change in his circumstances. The applicant had been in receipt of income support payments in New Zealand, due to his post-traumatic stress disorder, prior to his move to Australia. The respondent determined that the fact that the applicant had been diagnosed as suffering from depression in July 2001 did not amount to a substantial change in his circumstances in light of his pre-existing post-traumatic stress disorder.
The applicant has been providing carer support for a person that is receiving disability support pension from Centrelink. That person fled New Zealand in fear of his family and to escape a New Zealand drug ring. The applicant left New Zealand with a view to supporting the person in Australia. He had intended to work whilst in Australia to support himself and his dependent, but instead became depressed and was unable to work. The applicant stated that his depression had been triggered by the change in his circumstances since the move to Australia.
Mr Karlston stated that he could not work as a result of his depression and was therefore suffering financial hardship.
Legislative Framework
Special benefit is a discretionary payment that is payable where no other form of income support is available to the applicant and where the applicant is unable to earn a sufficient livelihood. Section 729 of the Social Security Act 1991 (the Act) provides as follows:
"(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.
(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
…
(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
(ii)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph."
Putting aside the issue of the waiting period for the moment, the Tribunal notes that the applicant would, prima facie, qualify for the payment of special benefit. He is not entitled to receive carer payment or any other social security benefit or payment (due to the waiting period) and he is suffering from mental conditions (post-traumatic stress disorder and depression) which would prevent him from earning a sufficient livelihood. As such, the real issue before the Tribunal is whether the discretion to waive the two-year waiting period should be exercised in the applicant's favour.
As noted above, the applicant is subject to a two year "newly arrived resident's waiting period" before being eligible to apply for social security benefits (see ss 201AA, 201AB and 739A). In Re Chelechkov and Secretary, Department of Social Security (1998) 26 AAR 321, the former President of the Tribunal (Mathews J) said (at 326):
"The general scheme of the Amendment Act was … to create a two year waiting period for most newly arrived residents, during which they are ineligible to receive most of the benefits otherwise payable under the Act. ... In relation to pensions and benefits to which the waiting period applies, other than special benefits, there is no discretion to waive the waiting period. The only power to waive the period is that contained in s 739A(7). Unless the applicants can come within the terms of this provision then they cannot succeed in these proceedings."
The respondent contends that the applicant is not entitled to special benefit as he does not meet the requirements for the waiver of the waiting period, in that he has not suffered a substantial change in his circumstances that are beyond his control (s 739A(7)). The respondent contends that the applicant was already suffering from post-traumatic stress disorder prior to his departure from New Zealand and therefore has not suffered a change in his circumstances.
The exception in s 739A(7) requires three things: that there be a change in the circumstances of the applicant; that that change be substantial; and that the change be beyond the control of the applicant.
On the question of when the change in circumstances can occur, the Tribunal said in Chelechkov (at 328-329):
"The Social Security Act 1991, as we all know, is beneficial legislation. As such, it should be interpreted generously. In the absence of an express provision limiting the operation of subsection (7) to changes which occur after a migrant arrives in Australia, I do not think it appropriate to imply such a restriction. …
Each case needs to be determined according to its own facts. 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."
In Secretary, Department of Social Security v Secara (1998) 89 FCR 151, the Full Federal Court said (at 159):
"There is no word or words in s 739A(7) which either expressly or by inference limit the time at which the change in circumstance may occur. I do not see any reason in logic or in fairness why a temporal limitation by reference to the person's arrival in Australia should be specified. Take for example, a person migrating to Australia who has arranged employment in Australia, but whose proposed employer ceases trading before the employment actually commenced. Assuming such a change in circumstances is both 'substantial' and beyond that migrant's control, why should s 739A(7) apply only if the ceasing to trade occurred after the migrant arrived in Australia? It may have occurred immediately before the journey to Australia commenced, but after the person was irrevocably committed to migrating to Australia. It may have occurred whilst that person was in transit. One can readily multiply examples.
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." (per Mansfield J, with whom Von Doussa and O'Loughlin JJ agreed)
The Court further stated (at 164):
"… I consider the circumstances to which s 739A(7) is directed are facts, matters and events going to an intending migrant's capacity to be self-sufficient, in the sense of not being entitled to receive certain benefits under the … Act, for a period of two years following arrival in Australia and to the reasons why that person no longer enjoys that capacity or should be relieved of the disentitling effect of those provisions."
On the question of what will constitute a substantial change in circumstances, the Tribunal said in Chelechkov (at 332-333):
"In my view, the beneficial nature of the Social Security legislation, together with dictates of basic fairness, compel the conclusion that the test of what constitutes a 'substantial' change under subsection (7) must have a subjective as well as an objective component."
In Secara, the Full Court suggested that "substantial" meant "of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon".
The substantial change in circumstances must be "beyond the person's control". In Secara, the Full Court considered that circumstances "beyond the person's control" were not confined to external factors or matters, but also extended to matters which were entirely internal, such as forgetting an appointment (see, Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 76 FCR 426) or the loss of uninsured baggage (see, Re Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998) and Re Secretary, Department of Family and Community Services and Ewais [2000] AATA 487.
Consideration
The Tribunal finds that Mr Karlston was suffering from post-traumatic stress disorder whilst residing in New Zealand. The Tribunal accepts that depression is a symptom of post-traumatic stress disorder, as discussed by the SSAT in its reasons for decision. The question then is whether the applicant's depressive illness amounts to a substantial change in the applicant's circumstances.
In Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 31 AAR 554, the Federal Court held that the onset of a serious illness or a serious aggravation of an existing illness or injury could amount to a substantial change in an applicant's circumstances. However, the Tribunal in this case is not satisfied that the applicant's depression amounts to a substantial change to the state of his health, in that he was already suffering from post-traumatic stress disorder at the time of his migration to Australia. There is insufficient medical evidence to establish that there has been a significant change in the applicant's health. The medical evidence that is available fails to have regard to the applicant's history of post-traumatic stress disorder in reaching the diagnosis of depression, and therefore provides little assistance to the Tribunal in determining whether there has been a substantial change in the applicant's health or his circumstances.
The Tribunal finds that the applicant had not, at the time of the decision, experienced a substantial change in his circumstances so as to warrant the waiver of the two-year "newly arrived resident's waiting period".
Accordingly, the Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  10 September 2002
Date of Decision  13 December 2002
Solicitor for the Applicant         Mr K Pearson, Corser Sheldon & Gordon
Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate

[2002] AATA 1291

13 December 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Eligibility

Legitimate Expectation

Special Benefit