LINDSAY FEWSTER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 565

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0769

GENERAL ADMINISTRATIVE DIVISION		)
Re		LINDSAY FEWSTER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date31 July 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Liquid assets exceed maximum reserve – Liquid assets test waiting period imposed – Ordinary waiting period imposed – Applicant not in severe financial hardship – Decision affirmed.

Social Security Act 1991 (Cth), ss 14A(1), 19C(2), 593, 598, 601, 620, 621

REASONS FOR DECISION

31 July 2009 Mr S Karas, AO, Senior Member

1.      Lindsay Fewster, the applicant, claimed newstart allowance (“NSA”) on 11 November 2008 after becoming unemployed on 5 November 2008.  His claim for NSA was granted by Centrelink on 17 November 2008, with effect from 6 November 2008.  However, because of the applicant’s assets, Centrelink decided to apply a 13 week liquid assets test waiting period in addition to the ordinary waiting period of seven days.  As calculated by Centrelink, these periods were from 6 November 2008 to 4 February 2009 and from 5 February 2009 to 11 February 2009 respectively.

2.      The original decision maker reviewed and affirmed that decision on 19 November 2008, as did an Authorised Review Officer on 9 December 2008.  The applicant applied for review to the Social Security Appeals Tribunal which, on 29 January 2009, also affirmed Centrelink’s decision.  The applicant then applied for review to the Administrative Appeals Tribunal (“the Tribunal”) on 23 February 2009.

ISSUES AND LEGISLATION

3.      The issues for the Tribunal to determine are:

·   whether the applicant must serve the liquid assets test waiting period; and

·   whether the applicant must serve the ordinary waiting period; and

·   if one or both waiting periods must be served, whether all or part of either period can be waived.

The legislation relevant to this matter is the Social Security Act 1991 (“the Act”).

4. Section 593 of the Act sets out the qualification criteria for NSA. Section 601 of the Act sets out the activity test requirements. Under ss 598(1) and 14A(1) of the Act, if the applicant’s liquid assets exceeded $2,500 on the day after he ceased work or on the day he claimed NSA, he will not be qualified for NSA unless he serves the liquid assets test waiting period. The term “liquid assets” is defined in s 14A(1) of the Act and includes “amounts deposited with, or lent to, a bank or other financial institution by the person…”

5. Under s 620 of the Act, a person such as the applicant is subject to an ordinary waiting period. That period is of seven days’ duration: s 621 of the Act. However, the ordinary waiting period will not apply if the applicant is “in severe financial hardship”: s 620(1)(g) of the Act. The phrase “in severe financial hardship” is relevantly defined in s 19C(2) of the Act.

EVIDENCE AND CONSIDERATION

6.      Both parties to this matter have consented to the Tribunal making a decision “on the papers”, that is, without a hearing being held.

7.      From the documents before it, the Tribunal makes the following findings of fact:

·   The applicant ceased work voluntarily on 5 November 2008.

·   The applicant is separated, not a member of a couple and does not have any dependant children.

·   On 6 November 2008, the day after he ceased work, the applicant held cash assets totalling $50,851.23 in two bank accounts.

·   On 11 November 2008, the day he applied for NSA, the applicant held cash assets totalling $46,269.07 in two bank accounts.

·   The applicant had previously served a liquid assets test waiting period between September and December 2007 and an ordinary waiting period in February 2008.

8. As stated above, ss 598(1) and 14A(1) of the Act provide that the applicant must serve the liquid assets test waiting period if his liquid assets exceeded $2,500 at either of the relevant times. The Tribunal finds that the applicant had a “liquid asset” in excess of $2,500 at both relevant times: the day after he ceased work and the day on which he claimed NSA (see above for the respective amounts). Under ss 598(2A) and (2B) of the Act, the duration of the applicant’s liquid assets test waiting period is the maximum period of 13 weeks, that is, from 6 November 2008 to 4 February 2009.

9. Section 598(4A) of the Act sets out an exemption to the liquid assets test waiting period. The exemption applies to the applicant if he has served such a waiting period and the waiting period started at any time during the 12 months preceding the date he ceased work or claimed NSA. The applicant has served a liquid assets test waiting period; it started on 28 September 2007. The applicant ceased work on 5 November 2008. As the commencement of that waiting period was not within 12 months of the date of cessation of work, the applicant is not entitled to this exemption.

10. There is a discretion to waive some or all of the applicant‘s liquid assets test waiting period if he “is in severe financial hardship”: s 598(5) of the Act. The term “severe financial hardship” is defined in s 19C(2) of the Act. Given the applicant’s assets at the relevant times (discussed above), he is unable to benefit under provision 598(5) of the Act.

11. Under s 620(1)(g) of the Act, the applicant does not have to serve the ordinary waiting period of seven days if “severe financial hardship” exists. As noted above, given the applicant’s assets and circumstances at the relevant times, he was not experiencing “severe financial hardship” as defined in s 19C(2) of the Act. The Tribunal therefore finds that the ordinary waiting period of seven days is to apply, from 5 February 2009 to 11 February 2009.

12.     In the circumstances and from the documents before it, the Tribunal finds that the liquid assets test waiting period of 13 weeks and the ordinary waiting period of seven days both apply to the applicant.  No other waiting periods apply.

DECISION

13.     The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.

Signed:  .........................[Sgd]...................................................
  Mátyás Kochárdy, Research Associate

Heard on the Papers                  
Date of Decision  31 July 2009
Applicant was self-represented
Solicitor for the Respondent     Joe Guthrie, Departmental Advocate