Leona Cassin and Secretary, Department of Employment
[2015] AATA 84
•18 February 2015
[2015] AATA 84
Division GENERAL ADMINISTRATIVE DIVISION File Number
2015/0331
Re
Leona Cassin
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 18 February 2015 Place Brisbane The application for an extension of time is refused.
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Senior Member Bernard J McCabe
CATCHWORDS
APPLICATION FOR EXTENSION OF TIME – Reasonable excuse for delay – Merits of the case – Liquid asset waiting period – Legislative formula – No severe financial hardship – Unlikely to succeed at substantive hearing – Application for extension of time refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)
Social Security Act 1991 (Cth) ss 14A; 19C; 598; 620; 621
REASONS FOR DECISION
Senior Member Bernard J McCabe
18 February 2015
Ms Leona Cassin is the applicant in these proceedings. She has asked the Tribunal to review a decision of the Secretary of the Department of Employment to impose what is known as the liquid assets waiting period when she applied for Newstart allowance on
8 July 2013. Unfortunately, her application for a review was not lodged with this Tribunal until over a year after the Social Security Appeals Tribunal (the SSAT) completed its review of the original decision. That is a problem, because individuals who are unhappy with decisions of the SSAT are told they have 28 days to make an application to this Tribunal.
The Tribunal has the power under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to extend the time for making an application. The discretion to extend time is available where “the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.
I do not propose to go through the many cases where the courts and the Tribunal have discussed what factors should be taken into account in the exercise of the discretion. Each case turns on its own facts. The challenge for me is to be satisfied – after having regard to all of the relevant circumstances – it is reasonable to extend time.
I listed a telephone hearing this morning so we could discuss whether it was appropriate to extend time in this case. Ms Cassin appeared by telephone. She was assisted by a support person in parts of the conversation.
Ms Cassin is currently very unwell. She suffers from a number of mental health conditions, including post-traumatic stress disorder and bi-polar disorder. She told me she is receiving treatment and unable to work. Ms Cassin told me (and the support person confirmed) she was unwell when she ceased work in 2013 and her ability to provide accurate information to the Centrelink officers and the SSAT may have been compromised. Ms Cassin also explained she has problems with short term memory and comprehension.
Ms Cassin said her health conditions prevented her from applying to the Tribunal within the usual time frame. I accept her explanation for the delay is reasonable, even though the delay – in excess of 12 months – is comparatively long.
Mr McQuinlan, who represented the Secretary, did not argue the Secretary would be at a disadvantage if the Tribunal were to allow Ms Cassin to go on with the application.
Mr McQuinlan said the facts of the case appeared to be clear enough, so there would be little difficulty in reconstructing what occurred notwithstanding the delay in lodging the application.
I note Ms Cassin faces more serious consequences if she were not permitted to go on with these proceedings. While she is currently receiving Newstart allowance and she has applied for the disability support pension, she is effectively seeking a period of back-pay. She wants the Secretary to pay her the amount she would have received in Newstart payments if the liquid assets waiting period did not apply. She says she needs that money badly as she owes money to friends and is having difficulty meeting her mortgage and paying other expenses.
Mr McQuinlan says the real problem in this case is that Ms Cassin is unlikely to succeed at a hearing. In those circumstances, it is said, I should not let the matter proceed given the decision of the Tribunal upon review is unlikely to change what has already been decided.
It is not appropriate for me to conduct a mini-trial when trying to assess whether an application has merit. I need only be satisfied there are real issues that remain in dispute. In order to make the assessment, I must form an impression of the strength of the applicant’s case.
The Secretary’s argument proceeds as follows:
·
Any person applying for Newstart benefits is required to wait for seven days – the ordinary waiting period – before he or she can be paid: ss 620-621,
Social Security Act 1991(Cth) (“the Act”). An applicant may not be entitled to payments during a further period if that person has more than a certain amount of money (the maximum reserve) in the bank on the day he or she claimed Newstart benefits, or the day after he or she ceased work: s 598(1). That further period is known as the liquid asset waiting period, and it is imposed because individuals are expected to rely on their own funds before calling on social security assistance. The maximum reserve at the relevant time was $5,000: s 14A.
· The liquid assets waiting period is calculated using a formula set out in s 598(2A). For a person in Ms Cassin’s circumstances, the formula contemplates the amount of money in the bank (less the maximum reserve) being divided by $500. That equation produces a number which will be the number of weeks for which the liquid assets waiting period is to apply. Section 598(2B) caps the liquid assets waiting period at 13 weeks.
·
Centrelink officers found (and the SSAT agreed) Ms Cassin ceased work on
28 June 2013. Her bank statements showed she had a credit balance of $14,524.01 as at 29 June 2013. The amount in the bank was clearly a liquid asset which had to be taken into account. When Centrelink officers applied the formula in s 598, it became clear the maximum 13 week liquid asset waiting period (together with the one week ordinary waiting period) had to apply from the day after Ms Cassin became unemployed.
Ms Cassin disputes that conclusion on two bases. Firstly, she says Centrelink and the SSAT relied on inaccurate information. She said she did not cease work until
8 July 2013, the same day she applied for Newstart benefits. The problem with that argument is that Ms Cassin’s bank statements provided to Centrelink indicated she still held between $12,000 and $13,000 in her bank account at that time. If the calculation required under s 598 were done on those figures, Ms Cassin would still be subject to a
13 week waiting period on top of the ordinary waiting period – albeit that the waiting period would have commenced and presumably ended two weeks later. If that is correct, Ms Cassin received benefits at the end of September and early October 2013 that she was not entitled to receive.
Ms Cassin’s second argument is that she had already committed to expending the funds in her account before she became unemployed. She said she had entered into a contract to build a fence on her property. The work had proceeded slowly because of rain. She said she owed the builder approximately $8000 for the work. She had not paid the debt when she applied for Newstart on 8 July, but she suggested the money in her account which had been earmarked to pay that debt was effectively no longer hers. She argued that money should be excluded from the calculation under s 598, perhaps because the net amount in the account (if one disregards the $8,000 earmarked in respect of the fence) falls below the $5,000 maximum reserve.
Section 14A of the Act provides that liquid assets includes:
amounts deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately)….
It is clear that Ms Cassin’s liquid assets include all of the monies in her bank accounts at the relevant time. The provision does not refer to the net amount of her liquid assets (that is, the amount left over after debts have been taken into account). I cannot apply a discount to the figure shown on her bank statements in order to bring her below the maximum reserve or modify the operation of the formula in s 598.
The Act does not permit the Secretary to determine a liquid assets waiting period should not apply, or that it should be shorter than the figure suggested by the application of the formula. That can only be done if the discretion set out in s 598(5) is available.
That provision says:
If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while serving a liquid assets test waiting period, the Secretary may determine that the person does not have to serve the whole, or any part, of the waiting period.
The expression in severe financial hardship is defined (at least in relation to a person in Ms Cassin’s circumstances) in s 19C(2). That section says one will only be regarded as experiencing severe financial hardship if the amount of the person’s liquid assets falls below the maximum fortnightly amount of benefit he or she would expect to receive if qualified. That amount is just over $500. Mr McQuinlan pointed out there is no evidence that Ms Cassin’s liquid assets ever fell that low: while she drew down on her bank account during the liquid asset waiting period, her bank account still disclosed a balance of over $3,000 in August 2013 according to records on file. But there is a further difficulty. Section 19C(4) provides a detailed explanation of the sort of expenditures that would be regarded as unavoidable or reasonable expenditure for the purposes of the section. Spending money on fence construction is unlikely to fall within the definition.
It is possible the Tribunal might conclude the expenditures were unavoidable or reasonable expenditure in the circumstances within the meaning of s 19C(4)(k), but the argument does not appear promising.
CONCLUSION
Ms Cassin is in very poor health. She is obviously distressed by the operation of what she takes to be an unfair law. Unfortunately, there is little prospect of her succeeding in her application before the Tribunal. In the circumstances, it is not reasonable for me to extend the time for making an application.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 18 February 2015
Date of hearing 17 February 2015 Applicant In person Advocates for the Respondent Department of Human Services
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