MOMIN SYED and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 103

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2009] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5168

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOMIN SYED

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Mrs Josephine Kelly, Senior Member

Date of oral decision        19 January 2009

Date of written reasons   16 February 2009

Place  Sydney

Decision The decision of the Social Security Appeals Tribunal dated 14 October 2008, imposing an income maintenance period under the Social Security Act 1991 from 1 May 2008 to 22 May 2009, is affirmed.

....................[sgd]..........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – newstart allowance – income maintenance period – redundancy payment received from applicant’s employer – whether in severe financial hardship - whether unavoidable or reasonable expenditure incurred – held not in severe financial hardship – the decision under review is affirmed

Administrative Appeals Tribunal Act 1975 – sections 37, 43

Social Security Act 1991 – sections 14A, 19C, 1068-G7AH, 1068-G7AM,

WRITTEN REASONS FOR ORAL DECISION

16 February 2009 Mrs Josephine Kelly, Senior Member      

1. At the conclusion of the hearing of this matter the terms of the decision, and a summary of the reasons for decision, were stated orally. The Applicant requested written reasons for the decision under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2.      On 1 May 2008 Mr Momin Syed received a gross redundancy payment of $63,141.66 from his employer, Aristocrat Technologies Australia Pty Ltd (Aristocrat).  The payment included redundancy pay, long service leave and annual leave.   Mr Syed received a net payment of $60,267.47 which was credited to his Commonwealth bank account on 1 May 2008.  He contacted Centrelink about claiming newstart allowance on the same day. On 8 May 2008, Centrelink decided to impose an income maintenance period (IMP) on Mr Syed between 1 May 2008 and 22 May 2009. The IMP is the period during which a person is not entitled to receive income support payments because the person has received certain payments including redundancy payments. The original decision-maker affirmed the decision, and an authorised review officer (ARO) affirmed the decision on 4 June 2008. On 14 October 2008 the Social Security Appeals Tribunal (SSAT) affirmed the ARO's decision. Mr Syed now seeks review by this Tribunal.

ISSUES

3.      The issues in this case are:

(a)Should Mr Syed be subject to an IMP from 1 May 2008 to 22 May 2009?

(b)If so, should the whole or part of the IMP not apply? Two questions arise:

(i)Am I satisfied Mr Syed is in severe financial hardship; and

(ii)If so, am I satisfied Mr Syed is in severe financial hardship because he has incurred unavoidable or reasonable expenditure while subject to an IMP?

THE CASE FOR MR SYED

4.      Mr Syed represented himself at the hearing. In summary, he told me that he had spent all of the $60,000 he had received as a redundancy payment on 1 May 2008 and now needs assistance from Centrelink. He claimed before me that he has been in severe financial hardship since November 2008 and therefore wishes to have the IMP waived from the date of the hearing.   He is not working at present and can only work 10 hours a week. He has to support his wife, who is also not working and is ill, and their three children who are all students under 25 years of age. Mr Syed said that he had recently found out that he might have bowel cancer and was to undergo an investigative operation shortly after the hearing of this matter.

CONSIDERATION

5. In addition to the documents provided pursuant to s 37 of the AAT Act, the evidence in the proceedings included bank statements from the Commonwealth, St George and ANZ Banks, statements from Bluestone Mortgage, various receipts, invoices and international money transfers, and correspondence from Mr Syed setting out how the money had been spent. Mrs Syed’s employment separation certificate was also in evidence.

Should an IMP have been imposed on Mr Syed?

6. The payment of newstart allowance in relation to IMP is dealt with in section 1068-G7AH of the Social Security Act 1991 (the Act) which provides that if a person receives an employment termination payment, then the payment may be deemed to be ordinary income for an “income maintenance period” equal to the period to which the payment relates.

7.      I am satisfied that the IMP was properly imposed. 

Should the whole or part of the IMP not apply?

8.      The Secretary, or on review this Tribunal, may determine that the whole, or any part of the IMP does not apply to Mr Syed, if satisfied that he is in severe financial hardship because he has incurred unavoidable or reasonable expenditure while an IMP applies to him (section 1068-G7AM of the Act). 

Is Mr Syed in severe financial hardship?

9.      The first question is whether Mr Syed is in severe financial hardship. The effect of s 19C(3) of the Act is that Mr Syed will be in severe financial hardship if the value of his and Mrs Syed’s liquid assets (within the meaning of s 14A(1) and (2) of the Act) were less than  twice the fortnightly amount of the maximum payment rate, which was $788.80 as of 8 May 2008. 

10.     The question of whether I am confined to considering Mr Syed's circumstances at a particular date was not argued before me.  I do not have to consider that matter further because on the evidence, I am not persuaded that Mr Syed was in severe financial hardship at any time from the time of claim to the date of hearing.   The evidence provided by Mr Syed was contradictory and unreliable.  I am not satisfied that he has provided full and complete disclosure of his and his wife's financial circumstances.  Mr Syed seems to provide information only when it has become quite untenable to do otherwise.   Following is a summary of some of the evidence which has caused me to come to these conclusions.

11.     Mr Syed lodged an intent to claim an income support payment on 1 May 2008 and a claim for Newstart Allowance on 8 May 2008.  A letter of the same date advised him that the IMP would be imposed. 

12.     A Commonwealth bank receipt which he gave to Centrelink at that time  stated that he had $2,082.28, well above the applicable $788.80 limit. It is not apparent to which account that receipt referred, however, I infer that it was not for the joint account held by Mr and Mrs Syed with the Commonwealth Bank (the joint account) for which a list of transactions shows that the $60,267.47 redundancy payment was credited to Mr and Mrs Syed's joint account on 1 May 2008.  There is no balance figure around that time in the joint account in the amount of $2,082.28.    

13.     A file note dated 4 June 2008 made by a Centrelink officer recorded that when Mr Syed requested a review of the decision made on 8 May 2008 he said that he did not have enough money to support himself and his family until May 2009 and that all his money had been used to pay debts. 

14.     I find that the evidence establishes that the balance of the joint account on 5 June 2008 was $2,242.28.  From 1 May to 5 June the following transactions of interest occurred. The sum of $10,472.80 was paid to Bluestone Group for the Syeds' mortgage.  On several days, several Eftpos withdrawals occurred on the same day for hundreds and occasionally these totalled a thousand or more dollars.  Mr Syed's explanation was that he bought lots of foodstuffs in bulk, including rice and butter.  I do not accept that explanation.  There were no receipts supporting such bulk purchases.

15.      On 8 May $36,005.40 was withdrawn from the joint account; on 2 June $35,000 was deposited, and on 4 June $30,005.40 was withdrawn.  Mr Syed's evidence was that these three transactions occurred because he initially planned to send money to Bangladesh with a person and then changed his mind and decided to send it by international money transfer. 

16.     On 11 May 2008 $215.52 was transferred to Bangladesh to a bank account for the credit of Mr Syed Mobidul Islam.

17.     On 7 July 2008 $2,096.44 was transferred to Bangladesh to the benefit of Mrs Syed.

18.     On 11 July 2008 $43,037.22 was credited to the joint account from Aristocrat.  I find that this was a redundancy payment to Mrs Syed. 

19.     On 24 July 2008, $A31,585.60 was transferred to Bangladesh for the benefit of Mrs Syed.   On the same day $33,113.60 was withdrawn from the joint account.  On 29 July 2008 a deposit of $27,900 was made into the joint account.   At the hearing Mr Syed said that this was a workers' compensation payment for Mrs Syed.

20.     On 8 August $30,390.55 was withdrawn from the joint account, leaving a balance of $237.70.  Although neither Mr nor Mrs Syed was working according to Mr Syed, there were some substantial deposits in August and September 2008 totalling some $20,000.  

21.     Mr Syed said in oral evidence that he had not transferred funds to Bangladesh before 2008, however, he provided several international money transfer applications for earlier years, most of which were for relatively small amounts, for example, $600 and $2,589 in 2006, however one dated 17 April 2003 was for $14,000.  

22.     A receipt recording a withdrawal from a Commonwealth Bank card on 6 February 2008 showing a balance of $33,257.50 was provided by Mr Syed. This transaction does not appear in the joint account record and was clearly for another account.  Clearly at times before Mr Syed received his redundancy payment, he had access to substantial amounts of funds.

23.     On 25 June 2008 a St George bank account was closed – the closing withdrawal was $39.60

24.     It is apparent from a number of documents that by 14 November 2008, the date of the SSAT's hearing, Mr and Mrs Syed had applied unsuccessfully for disability support pension and their children had also applied for Centrelink benefits.

25.     Mr Syed told the SSAT that his wife's claim for compensation had been rejected and that he had paid $27,000 for his brother's operation in India.  This was after Mrs Syed had in fact received a redundancy payment and workers compensation totalling approximately $70,000, as set out above.

26.     Mr Syed lodged his application in this Tribunal on 29 October 2008.  In the accompanying letter, Mr Syed set out how he had spent his redundancy payment. Although he states that the money was “distributed for my home loan, Dr Specialist (sic) Phsio Credit Fault (sic), Father operation in Bangladesh (sic)”, the detailed list refers to no amount for that operation.  He told me in evidence, as he had told the SSAT, that his father had died in January 2008.  The list of expenses refers to alleged home loan payments and expenses for his wife and children and medical expenses.  He also stated in that letter that his wife was not working and had been ill for a long time.  He did not disclose that she had received redundancy and workers compensation payments.   

27.     On 9 December 2008 Mr Syed provided to Centrelink a bundle of documents.  They included documents relating to a workers compensation claim Mr Syed has against Aristocrat for an injury which he alleged occurred during the last week of his employment in April.  In a statement for that purpose, Mr Syed wrote that on 1 May 2008 he had received news from Bangladesh that his brother had been hospitalised with cancer and was nearly dying.  Medical reports, invoices and receipts show that Mr Syed's daughter was admitted to hospital on 15 December 2008 for surgery for the removal of bilateral cervical ribs and had had various consultations prior to that. 

28.     The material also contained a rejection of Mrs Syed's claim for DSP dated 6 February 2008 which noted the information used to assess the claim included  Combined Annual Income of $4.22, being information used to assess her claim.  At that time Mr Syed was working for Aristocrat and I infer from the joint account records, earning approximately $850 a week after tax.   

29.     I infer that many of the medical reports about Mrs Syed related to her workers compensation claim.   Many were before the relevant time frame, and in the absence of receipts, do not establish that Mr Syed paid for the consultations and reports in any event.

30.     On 18 December 2008 Centrelink received a letter from Mr Syed in which he set out another summary of his expenditure since 30 April 2008 “showing how I spent my $620000 (sic) redundancy payout”.    He referred to a money transfer on 30 May 2008 of $215.52 "to brother sickness (sic)", and to an amount of $5,700 from 10 August to 20 October for the cost of an air ticket and pocket money for his wife to go overseas to see her “Mam, Dad and My brother died funeral (sic)”.  There was no reference to the transfer of $A31,585.60 to Mrs Syed in Bangladesh on 24 July 2008.

31.     Mr and Mrs Syed received more than $130,000 between 1 May and 24 July 2008.   The first time Centrelink became aware of the payments received by Mrs Syed in July 2008 was when it obtained information from the Commonwealth Bank for the purpose of this hearing in January 2009.    Therefore, at the hearing Mr Syed had to acknowledge that those payments had been made.  His evidence is simply not credible.

32.     As I am not satisfied that Mr Syed was at any relevant time in severe financial hardship, the question of whether it was because he had incurred unavoidable or unreasonable expenditure does not arise.

33.     As I remarked at the hearing, it is open to Mr Syed to re-apply for social security benefits, however, he would be wise to be entirely forthright and disclose all of his financial circumstances to Centrelink.

DECISION

34.     The decision of the SSAT dated 14 October 2008, imposing an income maintenance period under the Act from 1 May 2008 to 22 May 2009, is affirmed.

I certify that the preceding 34 paragraphs are a true copy of the written reasons for the oral decision herein of Mrs Josephine Kelly, Senior Member.

Signed: …[sgd]….…..…….

Associate

Date of hearing:  19 January 2009

Date of oral decision:  19 January 2009

Date of written reasons:  16 February 2009

Representative for the Applicant:             Self-represented

Representative for the Respondent:       Mr George Lozynsky, Centrelink Legal Services and Procurement Branch