Pham and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3967
•28 October 2021
Pham and Secretary, Department of Social Services (Social services second review) [2021] AATA 3967 (28 October 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1137
Re:Thi Ngoc Thao Pham
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:28 October 2021
Place:Sydney
The decision under review is affirmed.
............................[SGD]............................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – special benefit – whether the applicant qualifies for special benefit – Long Term Available Funds Test - provisions of relevant legislation and policy considered – relevant case considered – applicant’s financial records considered – applicant’s circumstances considered – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)CASES
Myddleton and Department of Family and Community Services [2001] AATA 2
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
28 October 2021
INTRODUCTION
The Applicant, Thi Ngoc Thao Pham (‘Ms Pham’), made a claim for special benefit on 9 January 2019. Special benefit is a discretionary income support payment to people who are ineligible for any other pension or allowance and are in financial hardship and unable to earn a sufficient livelihood for themselves and their dependants.
Ms Pham’s application was rejected because a delegate of the Secretary of the Department of Social Services (‘the Secretary’) determined that the funds she had available to her exceeded the maximum allowed for potential recipients of special benefit. Ms Pham contends that she was in significant financial hardship at the time and was eligible for special benefit. She seeks review of the decision to refuse her application at the Tribunal.
BACKGROUND
Ms Pham is originally from Vietnam where she married an Australian citizen on 11 August 2013. On 7 March 2015 Ms Pham arrived in Australia as the holder of a Subclass 300 Partner (Provisional) visa, which allows the spouse of an Australian citizen to reside in Australia temporarily.
On 27 March 2017 Ms Pham and her spouse separated and Ms Pham became the primary carer of their two young children. On 29 March 2017 she was granted a Subclass 100 (Partnered migrant) visa allowing her to remain in Australia permanently.
On 4 April 2017 Ms Pham made her first application for special benefit, which was granted from 13 April 2017. On 11 September 2018 Ms Pham completed a special benefit review form in which she stated she commenced studying on 14 August 2018 and was expecting to complete her studies on 26 November 2018. On 5 November 2018 Ms Pham was notified by the Department of Social Services (‘the Agency’) that her special benefit had been cancelled from 15 July 2018 as she did not meet the conditions for a hardship payment.
On 9 January 2019 Ms Pham lodged a second claim for special benefit. On 11 February 2019 she was notified that her claim for special benefit had been rejected as she did not meet the conditions for a hardship payment.
On 21 February 2019 Ms Pham requested a review of the decision, which was affirmed by an Authorised Review Officer (‘ARO’) on 13 June 2019. On 1 August 2019 Ms Pham requested review of the ARO decision by the Social Services and Child Support Division of the Tribunal (‘AAT1’) which affirmed the decision not to pay special benefit on 20 January 2020. Ms Pham now seeks review of the AAT1 decision (‘the reviewable decision’) at the General Division of the Tribunal.
LEGISLATION AND POLICY
The relevant legislation for qualification and playability of special benefit is contained in section 729 of the Social Security Act 1991 (Cth) (‘the Act’) which provides:
(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…
Section 729 also specifically states:
Note: Special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment…
Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) provides that if a person makes a claim for a relevant social security payment but becomes qualified for the payment within the period of 13 weeks after the day on which the claim is made the claim is taken to be made on the first day on which the person is qualified for the social security payment. However, Clause 4(2) of Schedule 2 provides that this provision does not apply to an application for special benefit. Consequently, if Ms Pham’s application is to succeed, she must qualify for special benefit on the day of her claim. As such, when considering Ms Pham’s application, I must determine if she qualified for special benefit based on the facts and circumstances that were in existence as at the date of lodgement, being 9 January 2019.
The Social Security Guide (‘the Guide’) provides departmental policy relating to applications for special benefit. The Tribunal will usually apply departmental policy unless there are cogent reasons not to do so.
The Guide reference 3.7.1.30 instructs decision makers to consider the following factors when determining an application for special benefit:
·the intention of the special benefit legislation;
·ability to earn a sufficient livelihood;
·circumstances which have led to the hardship;
·other reasonable means of support;
·social worker involvement;
·the available funds test; and
·the income test.
ISSUES TO BE DETERMINED
The issue to be determined is whether Ms Pham qualified for special benefit on 9 January 2019.
EVIDENCE
Following her divorce, Ms Pham negotiated a property settlement with her ex-husband from which she received a payment of $41,760.00 on 17 August 2018. When she applied for special benefit on 9 January 2019, Ms Pham contends that she had had just $659.52 in available funds.
In the reviewable decision, the AAT1 noted that Ms Pham had transferred a total of $33,000 to other bank accounts on 22 August 2018. The transfers are labelled as ‘savings for kids’, and another $5,000 to a bank account referred to as ‘saving’.
Ms Pham subsequently filed a statement by chartered accountant Steven Quach which sets out her expenditure between 14 August 2018 and 10 January 2019 totalling $39,615.56. The categorised expenditure included cash withdrawals of $14,510, $2793.61 on entertainment, $4,950.00 on a mircroblading course, $1,629.84 on hairdressing equipment, $2,240.06 on a phone and laptop, and $1774.70 on motor vehicle repairs and transport expenses.
Ms Pham gave evidence that by the time she applied for special benefit she had spent almost all of her divorce settlement. She explained that until the divorce settlement, she did not have any money and wanted to use the opportunity to provide a better life for her children and to take them on outings so that they might have a ‘happier life’.
She also spent money visiting friends in Sydney and twice paid for her mother to visit Australia from Vietnam. She told the Tribunal that she needed her mother for ‘mental support’. She submits that she was required to repay $5,000 she had borrowed from friends in Sydney and others in Vietnam.
During cross examination by the Secretary’s representative, Ms Pham was asked to account for some of her spending in more detail. She was taken to a bank statement which records her having spent $1,239 at a jewellery store on 6 October 2018. She explained that the jewellery was for her and her children and indicated it helped lift her mood. Taken to a record of her withdrawing $200 at a casino, Ms Pham explained that she only withdrew money at a casino on one occasion.
On 30 November 2018 Ms Pham met with a Centrelink social worker. The social worker’s notes of the meeting indicate that Ms Pham informed the social worker that she had $10,000 remaining from her divorce settlement at that time. The remainder had been spent bringing her family from Vietnam to assist her at home and on her ‘studies, child care, and other daily living expenses’. The social worker records having explained to Ms Pham that:
…[she] would be able to test her eligibility for Special Benefit when her bank account gets under $5000 however she would be required to provide extensive evidence regarding where this money was spent and she still may not be eligible for payment at that time.
A letter from Migrant and Refugee settlement services dated 23 January 2019 advises that Ms Pham’s first special benefit payment was suspended on account of her having saved some funds for a ‘rainy day relief’. Ms Pham, the author writes, ‘is under immense pressure not knowing how she would be able to make ends meet’ whilst providing for her children. Ms Pham confirmed at the hearing that the letter was written after she had provided the service with an ‘outline’ of her financial situation including her expenditure of the divorce settlement.
Ms Pham submits that she was in an abusive relationship with her former husband and was treated poorly by his family. When she left her ex-husband she did not know ‘anything’ as she was in a new country with different laws. She claims that her situation was made worse by receiving incorrect advice from Centrelink which led her to incur childcare expenses she would otherwise have avoided.
CONSIDERATION
The discretion in subsection 729(2) of the Act is unfettered. In assessing whether the discretion in section 729 should be applied, decision makers, including the Tribunal standing in the shoes of the decision maker, are directed to consider the policy contained in the Social Security Guide.
In Myddleton and Department of Family and Community Services [2001] AATA 2 (‘Myddleton’), the Tribunal observed that before exercising the discretion contained within section 729, the Tribunal ‘must consider any policy matters relevant to a determination of qualification’ for special benefit before observing:
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 policy matter which the Tribunal considers relevant is that specifically contained in policy 3.7.1.70 the Long Term Available Funds Test and ancillary policy guidelines detailed previously in this decision, which note that if a person has available funds of more than $5,000.00, then Special Benefit is not payable regardless of marital status or the number of dependants. In such circumstances the policy requires the Special Benefit to be rejected.
The Guide differentiates between applicants who are reliant on special benefit for less than 13 weeks, which are in the short term category, and those who are likely to depend on the benefit for more than 13 weeks, who are in the long-term category. Given the nature of Ms Pham’s application and her stated circumstances at the time I am satisfied that it is appropriate to consider her application for long-term assistance.
The Guide at 3.7.1.70 provides the Long Term Available Funds Test for special benefit. The test provides a methodology for a determining whether liquid funds exceed $5,000, in which case special benefit is not payable. Ms Pham contends that the liquid funds she had at hand at the time she made her application consisted of the $659.52 she had in her bank account. Taking into account the statement from Ms Pham’s chartered accountant, I am not satisfied that Ms Pham has accounted for all of the money she received from her divorce settlement, nor an additional $7,600 she received between October and December 2018. I make this finding based on the large transfers of money she initially allocated to savings, the absence of receipts for much of her claimed expenditure and the large amount of cash – by her accountant’s estimation to be over $14,510 - she claims to have withdrawn.
In considering the circumstances which led to Ms Pham’s hardship, it is not in question that Ms Pham spent money on items which were unnecessary, though there is some disagreement between the parties about what was unavoidable and reasonable expenditure. The Secretary contends that $19,245.11 was spent on unnecessary items. Notably Ms Pham spent $4,950 on a microblading course, $1,629.84 on hairdressing equipment, $2,240.06 on a phone and laptop, and $1774.70 on motor vehicle repairs and by her own evidence spent at least $3,000 paying for her mother to travel from Vietnam to Australia. Her bank statements indicate she spent $1,239.00 on jewellery for her and her children. The Guide stipulates that ‘expenditure that was neither unavoidable nor reasonable should be deemed to be available funds’ when applying the Long Term Available Funds Test. I accept that expenditure including the microblading course, hairdressing equipment, laptop, travel expenses and jewellery was not essential and should be deemed available funds in accordance with 3.7.1.30 of the Guide.
I also consider that the account of Ms Pham’s spending appears incomplete and leaves a significant proportion of her known income unaccounted for. I place limited weight on the breakdown provided by her accountant, as it appears to be based in large part on self-reporting by Ms Pham rather than receipts and other documentary evidence.
Having regard to the policy set out in the Guide, I am satisfied that Ms Pham had access to funds exceeding $5,000.
To be eligible for special benefit Ms Pham must meet the requirements set out in paragraph 729(2)(e) which requires that the person is unable to earn sufficient livelihood because of age, physical or mental disability or domestic circumstances or for any other reason. Ms Pham has two children who were aged five and three at the time she applied for special benefit. She was training at TAFE NSW to complete a Certificate II in Salon Assistance. She told the Tribunal that the microblading course she paid for was to learn a skill that would help earn a living. At the time of her application she held a visa which entitled her to work full time and I am satisfied that it was open for her to earn a livelihood and that she had the skills to do so.
Ms Pham indicated that she suffers from anxiety and stress and contends that her domestic circumstances prior to leaving her ex-husband were extremely difficult. Noting the dearth of probative evidence in relation to these contentions, even if these conditions were present they would not be sufficient to demonstrate that Ms Pham was unable to work when she applied for special benefit. Consequently, I find that Ms Pham does not satisfy paragraph 792(2)(e) of the Act.
Having regard to Ms Pham’s evidence, it appears that between meeting the Centrelink social worker on 30 November 2018 and applying for special benefit on 9 January 2019, Ms Pham spent nearly $10,000. In doing so she knowingly placed herself in financial hardship. It was within her control to avoid this outcome and she chose not to do so.
CONCLUSION
Having found that Ms Pham does not meet the requirements set out in paragraph 792(2) of the Act, and that she has deemed available funds in excess of $5000 at the time of her application for special benefit, the decision under review will be affirmed.
DECISION
For the reasons outlined above, the decision under review being that of AAT1 dated 20 January 2020, is affirmed.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
...............................[SGD].........................................
Associate
Dated: 28 October 2021
Date(s) of hearing: 7 September 2021 Applicant: Self-Represented Solicitor for the Respondent: Ms G Heggen, Services Australia
0
1
0