Muir and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by Ms Muir for review of a decision by the Secretary, Department of Social Services, to impose an income maintenance period (IMP) on her Disability Support Pension (DSP). Ms Muir had received a Fair Entitlements Guarantee (FEG) payment following the liquidation of her employer, which included amounts for unpaid wages and accrued leave entitlements. The Department treated this lump sum payment as income, triggering an IMP that reduced her DSP. Ms Muir contended that a portion of the FEG payment represented wages she had already earned and leave she had already taken, and that she had incurred significant debt during the period she was not being paid by her employer.

The Tribunal was required to determine whether the IMP imposed on Ms Muir was correctly calculated, specifically whether the FEG payment, or any part of it, should have been excluded from the calculation of the IMP. A key issue was whether Ms Muir had demonstrated severe financial hardship that would warrant waiving the IMP, and whether the FEG payment constituted a termination payment or a payment for entitlements already accrued and taken. The Tribunal also considered the definition of "leave payment" and "termination payment" under the relevant social security legislation.

The Tribunal found that while Ms Muir had experienced financial hardship, the expenses she incurred did not occur during the IMP period, and therefore could not be considered for the purposes of severe financial hardship. However, the Tribunal accepted Ms Muir's argument that a portion of the FEG payment related to leave already taken and wages already earned, and that this portion should be excluded from the IMP calculation. The Tribunal noted that the FEG payment was for 5.3 weeks of annual leave and 1.09 weeks in lieu of notice, and that Ms Muir had provided evidence that some of this leave had already been taken.

Consequently, the Tribunal set aside the decision under review and remitted the matter to the Secretary to recalculate Ms Muir's IMP, excluding the equivalent of six days from the calculation. This adjustment was based on the Tribunal's finding that a portion of the FEG payment represented entitlements that had already been utilised by Ms Muir.