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

[2021] AATA 4463

Nematzadeh and Secretary, Department of Social Services (Social services second review) [2021] AATA 4463 (1 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/4202; 2021/4507

Re:Narges Nematzadeh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:L Rieper, Member

Date:1 December 2021

Place:Sydney

Decision under review affirmed.

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L Rieper, Member

CATCHWORDS

SOCIAL SECURITY – Special Benefit Payment – whether the applicant was qualified for special benefit payment – compensation payment – applicant had considerable funds available to her – not suffering financial hardship – ongoing income support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 729

Social Security (Administration) Act 1999 (Cth) sch 2

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

L Rieper, Member

1 December 2021

Introduction

1. Mrs Nematzadeh seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal on 25 May 2021.

2. The issue to be determined is whether Mrs Nematzadeh was qualified for special benefit at the time of claims made by her on 11 October 2018[1] or 4 August 2020.[2]

   [1] T10, T-Documents, 54 – 80.

   [2] T16, T-Documents, 97-123.

3. A hearing was held on 18 November 2021 via videoconference. Mrs Nematzadeh appeared on her own behalf assisted by an interpreter, and the Secretary was represented by Dr Thompson of Sparke Helmore.

   Legislation

4. Special benefit is an income support payment. It is described in section 729 of the Social Security Act 1991 (Cth) (the Act) as a discretionary benefit that is available only to a person who is in financial hardship, is unable to earn a sufficient livelihood because of their age (or other circumstance) and does not qualify for any other income support payment.

5. Pursuant to Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) the period in which a person may qualify for a social security payment is the period within 13 weeks of the day on which the claim is made. However, clause 4(2) of Schedule 2 says that this provision does not apply to an application for special benefit. That means that in order to be successful Mrs Nematzadeh needs to have qualified for special benefit on either 11 October 2018 or 4 August 2020.

   Evidence

6. Mrs Nematzadeh is an Iranian citizen who resides in Australia and is the holder of a visa subclass 790.[3] It is not in dispute that she does not qualify for any other income support payment.

   [3] T23, T-Documents, 174.

7. Mrs Nematzadeh was granted special benefit by Centrelink on or about 10 February 2017.[4]

   [4] Ibid.

8. On 24 May 2018 Mrs Nematzadeh provided Centrelink with a completed ‘Mod C’ form by which she advised that she had received a compensation payment of $156,992.29 on 22 May 2018.[5]

   [5] T5, T-Documents, 25-28.

9. On 29 June 2018 Centrelink wrote to Mrs Nematzadeh advising her that her special benefit had been cancelled from 7 May 2018 because she did not meet the conditions for a hardship payment.[6]

   [6] T7, T-Documents, 41.

10. Mrs Nematzadeh lodged a fresh claim for special benefit on 11 October 2018 stating that she needed special benefit because she was not getting a Centrelink payment, she needed to pay her rent, she was not looking for work because she had a disabled daughter and she ‘really need(ed) to pay for things’. Mrs Nematzadeh said that she lived with her two daughters, Fatemeh, aged 25 and Zeinab, aged 20. In answer to a question about gifting, Mrs Nematzadeh advised that she had given Fatemeh $50,000 on 17 August 2018, a further $50,000 on 21 August 2018 and $42,228 on 14 September 2018.[7]

    [7] T10, T-Documents, 74.

11. Accompanying the claim was a transaction listing from St George Bank for an account in Mrs Nematzadeh’s name. It showed withdrawals matching each of the amounts Mrs Nematzadeh said she had gifted.[8]

    [8] T10, T-Documents, 81.

12. Mrs Nematzadeh also provided Centrelink with a copy of a transaction listing for an account in her name with the Commonwealth Bank.[9] The document shows that Mrs Nematzadeh received ‘settlement funds’ of $150,000 on 4 May 2018 and $6,992.29 on 22 May 2018. It also shows that she withdrew $150,718.24 on 7 May 2018 and $6,878 on 1 June 2018.  Mrs Nematzadeh was asked during the hearing if she transferred the funds to her St George Bank account. She was not sure but thought that was what had happened.

    [9] T14, T-Documents, 90-92.

13. A Centrelink file note of a discussion on 11 October 2018 between a Centrelink customer service officer and Mrs Nematzadeh, assisted by an interpreter, reads (in part):

    I had read the previous docs and can see that her special benefit was previously cancelled as she received a compensation payment for approximately $150,000. The cus s aid (sic) that she has given this money to her 25 year old daughter Fatemeh …. Fatemeh hopes to buy a house with this money, if she can get a loan from the bank.[10]

    [10] T22, T-Documents, 150.

14. On 12 October 2018 Centrelink wrote to Mrs Nematzadeh advising her that her claim for special benefit had been rejected.[11]

    [11] T11, T-Documents, 84.

15. Mrs Nematzadeh lodged another claim for special benefit on 4 August 2020.[12] She said that she was in severe financial hardship, could not work because she was the sole carer of a daughter with severe physical disabilities, was reliant solely on the income of her eldest daughter and the family of three could not afford basic necessities, such as adequate food.  She answered no to questions about whether she had claimed or received compensation and she answered no to a question asking whether she had given away any cash, assets, property or income in the last five years.

    [12] T16, T-Documents, 97-123.

16. On 10 August 2020 Centrelink wrote to Mrs Nematzadeh advising that her latest claim for special benefit had been rejected.[13]

    [13] T17, T-Documents, 130.

17. Mrs Nematzadeh contacted Centrelink on 16 October 2020 seeking a review of the decision to reject her special benefit claim.[14]

    [14] T22, T-Documents, 153.

18. A file note was made of a discussion on 21 October 2020 between Mrs Nematzadeh, assisted by an interpreter, and a Centrelink customer service officer. According to the file note Mrs Nematzadeh was asked what had happened to the funds she had previously received, and she advised that:

    ·15% of the payout had been paid to a person who had assisted her to make the compensation claim.

    ·$20,000 was given to a man named Saed Mustafa who wanted to open a restaurant in Merrylands (a suburb of Sydney). Mrs Nematzadeh had no paperwork to prove the transaction and the man had moved overseas and taken her money.

    ·$110,000 was given to her daughter, Fatemeh, to help purchase land. Fatemeh’s loan application had been rejected and she refused to return the money to Mrs Nematzadeh.

19. On 29 October 2020 a Centrelink authorised review officer issued two decisions having considered the rejections of each of Mrs Nematzadeh’s special benefit claims. The officer affirmed both decisions.

20. Those decisions were in turn affirmed by the Social Security and Child Support Division of this Tribunal on 25 May 2021. The reasons for decision state that Mrs Nematzadeh gave evidence that she had $37,000 worth of receipts for expenses she had incurred including her daughter’s TAFE fees, the purchase of a car and furniture.[15]

    [15] T2, T-Documents, 9.

21. Prior to the hearing Mrs Nematzadeh filed a bundle of receipts and other documents with the Tribunal which were taken into evidence during the hearing. The bundle included:

    (a)A typed agreement titled ‘Privete (sic) agreement between Narges Nematzadeh and E Dadyar My Motor Vehicle Accident on 15 of June 2015’. The agreement purports to authorise Mr Dadyar to assist Mrs Nematzadeh to find a solicitor and to act as an interpreter for a fee. A handwritten addition indicates that the payment was to be 15% of her settlement sum. The agreement appears to have been signed by Mrs Nematzadeh on 1 June 2016. There is a handwritten note indicating that Mr Dadyar had received $16,000 on 11 May 2018 and a further handwritten note (in different coloured ink) indicating that he had received an additional $4,000.

    (b)A handwritten and signed note dated 17 December 2018 stating that on 10 December 2018 Syed Mustafa had received $20,700 from Mrs Nematzadeh and was to repay it by instalments of $700 per month.

    Mrs Nematzadeh gave evidence that Mr Mustafa’s father paid back some of the money. Included in the bundle was a document which appears to list repayments totalling $7,200 made between 3 September 2020 and 23 September 2021.

    (c)Various receipts dated from 2017 to 2021. The Tribunal has been unable to verify whether the receipts total $37,000 as a number of the receipts are illegible.

22. In relation to the agreement with Mr Dadyar, Mrs Nematzadeh gave evidence that when she asked for a receipt, Mr Dadyar would only provide a receipt for $16,000. He offered to provide a receipt for the additional $4,000 but would only do so if she paid a fee of $2,000.

23. Mrs Nematzadeh could not remember when she obtained the note from Mr Mustafa but agreed it was probably after 21 October 2020 when she told Centrelink she did not have any paperwork in relation to the transaction. She admitted that the document was incorrect in three respects:

    (a)  It was created after the date it bears, being 17 December 2018.

    (b)  The money was not paid on 10 December 2018 but in various instalments on dates Mrs Nematzadeh could not recall.

    (c)   The amount paid was not $20,700 but $20,000. Mrs Nematzadeh said Mr Mustafa added an additional $700 as a ‘gift’.

24. In cross-examination Mrs Nematzadeh said that the money she gave to Mr Mustafa probably came from the $20,000 - $30,000 in cash she kept when she withdrew her insurance money out of the bank.

25. There was another aspect of Mrs Nematzadeh’s evidence which differed from what appears in the claim forms and Centrelink’s other records. Mrs Nematzadeh gave evidence that the money she gave to her daughter, Fatemeh, was available to her after she transferred it to Fatemeh.  She qualified this by saying that there was a period when she and Fatemeh were not getting along and Fatemeh withheld access to the money, but she could not recall when that was.  For the rest of the time, she had the same access to the money as if it was in her own bank account. 

26. Mrs Nematzadeh said that when the family needed to purchase items such as furniture, she and Fatemeh would go shopping together. She also said that she paid for a car for Fatemeh. She could not recall precisely when that was but the bundle of receipts she produced contained an undated receipt from the National Australia Bank for a $14,900 bank cheque on which someone has handwritten ‘car receipt mazda 2016’ and a registration notice for a 2016 Mazda 300 dated 15 December 2020. The Tribunal is satisfied that the purchase of the car took place on or about 15 December 2020 given that was when it was registered.

    Consideration

27. Guidance in applying the discretion in section 729 of the Act and determining qualification for and the payability of special benefit is provided in the Social Security Guide (the Guide) at part 3.7.1. The Guide is intended to support decision making by assisting in understanding the related law and policy, and its application. While this Tribunal is not bound by departmental policy, in Drake v Minister for Immigration and Ethnic Affairs[16], the Full Federal Court held that the Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. The Tribunal is satisfied that the Guide should be taken into account in this matter.

    [16] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

28. The Guide (at part 3.7.1.50) divides claims into those where the claimant is likely to need support for less than 13 weeks (the ‘short term category’) and those where the claimant is likely to need support for more than 13 weeks (the ‘long term category’). It is clear from the evidence that Mrs Nematzadeh was not seeking special benefit because of a short-term financial crisis. In each of her claims the reasons she gave for needing special benefit indicate that she was seeking ongoing income support.

29. For long term category claims, the Guide (at part 3.7.1.70) sets out a ‘long term available funds test’ which says that if a person has available funds of more than $5,000 then the person is not qualified for special benefit regardless of their partner status or the number of dependants.

30. The Secretary submitted the Tribunal should be satisfied from the evidence that Mrs Nematzadeh had available funds of more than $5,000 on the date of each claim.

    Claim 1-11 October 2018

31. In May 2018 Mrs Nematzadeh received compensation exceeding $156,000. 

32. As at 31 July 2018 Mrs Nematzadeh had $141,827.73 in her St George Bank account. 

33. Mrs Nematzadeh gave evidence that she could not recall what had happened to the approximately $15,000 difference in those two amounts. It is possible that the $15,000 formed part of the $20,000 - $30,000 which Mrs Nematzadeh said that she kept in cash and used, in part, to pay Mr Mustafa. 

34. However, even if the Tribunal accepts that Mrs Nematzadeh paid $20,000 to Mr Dadyar on 11 May 2018 and gave $20,000 to Mr Mustafa in instalments over an unknown period of time, that leaves in excess of $110,000 apparently in the possession of Fatemeh but available to Mrs Nematzadeh.

35. The evidence before the Tribunal does not include copies of Fatemeh’s bank statements and so the Tribunal cannot be certain as to the amount of funds she held as at 11 October 2018. However, there is no suggestion that she or Mrs Nematzadeh had spent anything like $110,000 by that date. Indeed, the bundle of invoices that Mrs Nematzadeh has provided indicated that she was continuing to spend large sums of money well after that date. An example is the car she bought for Fatemeh on or about 15 December 2020.

36. The Tribunal is mindful of Mrs Nematzadeh’s evidence that at some point in time Fatemeh denied her access to her funds. Such an event could have caused short-term financial hardship. Mrs Nematzadeh’s spending pattern at the time of her claim cannot be determined because none of the legible receipts provided to the Tribunal coincide with the making of her claim. It is possible that the illegible receipts are from 2018 and are illegible because they have faded with time. 

37. Regardless of that, Mrs Nematzadeh’s evidence was that she kept $20,000 - $30,000 in cash when she withdrew her settlement funds from the bank. She can account for up to $20,000 that she gave in instalments to Mr Mustafa but she does not know when that was. It seems unlikely to the Tribunal that she had disposed of all, or even the majority, of those funds by 11 October 2018.

38. The Tribunal is therefore satisfied that Mrs Nematzadeh had considerable funds available to her as at 11 October 2018 and that she was not in financial hardship. 

    Claim 2-4 August 2020

39. The purchase of the car for $14,900 on or about 15 December 2020 shows that at 4 August 2020 when Mrs Nematzadeh made her second claim, she must have still had access to funds exceeding $5,000.

40. The bundle of receipts Mrs Nematzadeh provided to the Tribunal also includes:

    (a)A receipt for $561 paid to the Department of Foreign Affairs and Trade on 28 September 2020.

    (b)A receipt dated 25 November 2020 for $600 from Karimian Carpet and Furniture.

    (c)A receipt dated 8 December 2020 for a cash payment of $489 to Specsavers (although the receipt is in the name of Mrs Nematzadeh’s daughter, Zeinab).

    (d)A receipt dated 2 February 2021 for $600 from TAFE NSW.

    (e)A receipt for $2,330 for a payment made on 1 July 2021 to Madakto Art Center.

    (f)A receipt for $250 from Distinct Dental Centre dated 8 December 2020.

    (g)A receipt for $500 from Distinct Dental Centre dated 15 December 2020.

    (h)A receipt for $1,200 from Distinct Dental Centre dated 15 December 2020.

    (i)A receipt for $800 from Distinct Dental Centre dated 15 February 2021.

41. As noted above some of the receipts Mrs Nematzadeh provided are illegible and the list above does not include receipts for small amounts such as groceries. In any event the receipts that Mrs Nematzadeh has produced show that she had access to funds exceeding $20,000 after she made her second claim on 4 August 2020.

42. There is no evidence that Mrs Nematzadeh came into funds from another source after 4 August 2020, other than the repayments of $7,200 received from Mr Mustafa’s father, and the Tribunal understands that the receipts were put forward as evidence of how Mrs Nematzadeh spent her settlement funds.

43. The Tribunal is satisfied that the making of the claim did not coincide with the period Mrs Nematzadeh says she was denied access to her funds by Fatemeh. That is because one of the receipts shows that she spent $351.93 on plants and planters at Flower Power on 2 August 2020, just two days before her claim. The purchase is not consistent with someone without access to funds or in financial hardship.

44. The Tribunal is therefore satisfied that as at 4 August 2020 Mrs Nematzadeh had access to funds exceeding $5,000 and was not in financial hardship. 

    Conclusion

45. The Tribunal has found that on each of the dates that Mrs Nematzadeh made claims for special benefit she was not in financial hardship. That means she did not qualify for special benefit and the decision under review must be affirmed.

46. It is not necessary for the Tribunal to go on and consider whether Mrs Nematzadeh was unable to earn a sufficient livelihood at that time of either claim.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of L Rieper, Member

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Associate

Dated: 1 December 2021

Date of hearing:	18 November 2021
Applicant:	Self-Represented
Solicitors for the Respondent:	Dr Stephen Thompson, Sparke Helmore Lawyers