Madan Dutta and Secretary, Department of Employment
[2015] AATA 327
•15 May 2015
[2015] AATA 327
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5925
Re
Madan Dutta
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 15 May 2015 Place Sydney The Tribunal affirms the decision under review.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECUIRTY – Special Benefit – applicant eligible for Special Benefit – whether to exercise discretion to grant Special Benefit – policy considerations - long term available funds test – whether large purchase was exceptional or unforseen expense – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth); s 729
CASES
Re Myddleton and Department of Family and Community Services [2001] AATA 2
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Professor R McCallum AO, Member
15 May 2015
INTRODUCTION
Mr Madan Mohan Dutta, the Applicant, was born in India in 1939. In 2004, he immigrated to Australia to be with his adult children and their families. On 17 April 2012, Mr Dutta received an aged parent visa which entitled him to permanent residence in Australia.
Mr Dutta lodged a claim for Special Benefit (SpB) on 12 May 2014. Centrelink refused his claim. Mr Dutta sought review of the Centrelink decision from an Authorised Review Officer (ARO), and then from the Social Security Appeals Tribunal (SSAT). Mr Dutta now seeks review of the SSAT decision by this Tribunal.
After making a new application, Mr Dutta has been receiving SpB since 18 February 2015. Therefore, Mr Dutta is only seeking back payment of SpB for the period between 12 May 2014 and 18 February 2015.
SPECIAL BENEFIT
Special Benefit payments are described in Part 1.2.6.10 of the Guide to Social Security Law (the Guide) as follows:
SpB aims to provide income support for people who, due to reasons beyond their control are:
·in financial hardship, AND
·unable to earn a sufficient livelihood for themselves and their dependants.
To receive SpB it must be established that the person is not eligible for any other pension or allowance. SpB is a discretionary payment.
In Mr Dutta’s circumstances, the relevant provision governing the payment of SpB is section 729 of the Social Security Act 1991 (Cth) (the SS Act), which states as follows:
Qualification for special benefit
(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;
...and
(h)an assurance of support does not apply to the person at any time during the period (see subsection (2C)).
THE RESPONDENT’S CONCESSIONS
In the Respondent's Statement of Facts and Contentions, it is conceded that Mr Dutta satisfies the criteria for SpB, which are set out in subsection 729(2) of the SS Act. In other words, the Respondent accepts that Mr Dutta is not eligible for the Age Pension, that he is unable to earn a sufficient livelihood, that at the date of claim he was an Australian resident, and that he is not subject to an assurance of support.
THE ISSUES BEFORE THE TRIBUNAL
The primary issue which I am required to decide is whether to exercise the discretion in subsection 729(1) of the SS Act in favour of granting Mr Dutta SpB from 12 May 2014. If I exercise the discretion in favour of Mr Dutta, I am then required to decide whether, at the date of claim, he had completed the newly arrived person's waiting period of 104 weeks, pursuant to subsection 739A(5) of the SS Act.
THE EVIDENCE
I have examined the following documents which are before this Tribunal:
·the Respondent's Statement of Facts and Contentions; and
·the documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), which are known as the T documents.
Mr Dutta gave sworn evidence, and his was the only oral evidence at the hearing. He recounted that he had immigrated to Australia in 2004 and that in 2013 he was living in a rented house with one of his daughters and her family. This house had two toilets. In January 2014, Mr Dutta's daughter and her husband purchased an old house with only one toilet, which they moved into in April 2014.
On or about 6 May 2014, Mr Dutta withdrew $5,500 from his bank. He said that he had put aside this money for his funeral expenses. Mr Dutta said that he did not withdraw the money to give it to his daughter. He said he withdrew the money so that it could be used to renovate the laundry in his daughter’s house and to install a second toilet. Mr Dutta said that since his hernia operation in 2010, he has had to urinate frequently and that the second toilet was necessary, presumably so as not to disturb his daughter and her family.
It was suggested to Mr Dutta that he had withdrawn the $5,500 so that he would be in financial hardship and could apply for SpB. Mr Dutta denied that there was any linkage between the withdrawal and his subsequent application for SpB. He said that a second toilet was necessary, and that the money withdrawn was spent on its installation.
CONSIDERATION
The first issue which I am required to decide is whether I should exercise the discretion in subsection 729(1) of the SS Act in favour of granting Mr Dutta SpB from 12 May 2014. The Guide sets out the policy for exercising the discretion concerning SpB contained in section 729 of the SS Act.
In Re Myddleton and Department of Family and Community Services [2001] AATA 2, Senior Member Bullock commented upon the SpB policy as set out in the Guide. The Senior Member said at [39]:
The Tribunal is firmly of the view in exercising the discretion contained within subsection 729(1) of the Act, that it must consider any policy matters relevant to a determination of qualification for Special Benefit. This is not to say that a decision-maker must slavishly follow policy but merely that the Tribunal has regard to the policy, as it supports the legislative intent, in this case for Special Benefit.
The approach of the Senior Member is in accord with the view taken by Brennan J (as he then was) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Accordingly, I shall have regard to the policy as set out in the Guide when making this decision.
As Mr Dutta is in need of long term assistance, the relevant portion of the SpB policy is the “long term available funds test”, which is set out in Part 3.7.1.70 of the Guide. Here, I note that he has been in receipt of SpB since 18 February 2015. Under the long term available funds test, where a person has funds of $5,000, SpB is not payable. Mr Dutta had more than $5,000 in the bank which he withdrew on or about 6 May 2014. On 8 May 2014, he signed the SpB form and lodged it on 12 May 2014.
The policy concerning the long term available funds test further provides (at 3.7.1.70 of the Guide):
If the person states that their funds have been depleted by any large purchase, they are required to produce confirmation of that purchase...If the purchase was not an exceptional or unforeseen expense, then the person's liquid funds should be deemed to include the amount of the purchase.
Mr Dutta explained that he withdrew $5,500 to pay for a second toilet and for laundry renovations at the house of his daughter and son-in-law, where he was living. He provided an invoice from Castlereagh Home Improvements dated 26 May 2014 which detailed this work and which is before the Tribunal.
If I am satisfied that the toilet installation and laundry renovations constitute “an exceptional or unforseen expense”, the $5,500 which Mr Dutta withdrew from his account is to be disregarded when exercising the SpB discretion.
Mr Dutta said in evidence the installation of the second toilet was necessary as he has had to urinate frequently since his hernia operation in 2010. However, he produced no medical evidence concerning his condition, and he did not fully explain why it was not possible for him to use the existing toilet.
Accordingly, I find that the installation of the toilet and the consequential renovations to the laundry were not an exceptional or unforeseen expense. I therefore include in Mr Dutta's liquid funds the $5,500 which he spent on the toilet and renovations.
From all of the evidence, I also infer that one of the reasons why Mr Dutta withdrew $5,500 from his bank was that he hoped to receive SpB.
I do not exercise the SpB discretion in favour of Mr Dutta.
As I have decided that Mr Dutta did not qualify for SpB on 12 May 2014, it is not necessary for me to determine whether, at the date of claim, he had completed the newly arrived person's waiting period pursuant to subsection 739A(5) of the SS Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
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Associate
Dated 15 May 2015
Date of hearing 14 April 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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