Rienks and Secretary, Department of Family and Community Services

[2003] AATA 1203

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1203

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/47

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JANE HELEN RIENKS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms Mary Imlach (Senior Member)

Date28 November 2003

PlaceHobart

Decision The Tribunal affirms the decision under review.

[Sgd Ms Mary Imlach]

Senior Member

CATCHWORDS

Social Security – newstart allowance – whether sufficient reason for move to area of low employment prospects.

Social Act 1991 – s634

Re Arcibal and Secretary, Department of Family and Community Services (2002) AATA 501

REASONS FOR DECISION

28 November 2003 Ms Mary Imlach (Senior Member)           

1.      This matter relates to an application for review of a Social Security Appeals Tribunal (SSAT) decision dated 6 February 2003, which affirmed a decision of Centrelink to impose a non-payment period of 26 weeks in respect to Dr Rienks’ Newstart Allowance.

2.      The matter was heard in Hobart on 17 September 2003.   The applicant appeared and was represented by Mr Hamish Locke of Community Legal Service.   Mr Brian Sparkes appeared for the respondent.

3. The T documents, pursuant to s37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence.   The matter was decided on the basis of the oral evidence of the applicant,  and the written and oral submissions of the parties.

Background to the Application

4.      The respondent cancelled the applicant’s newstart allowance for 26 weeks on the basis that Dr Rienks had moved to an area of low employment prospects without sufficient reason for doing so.   That decision was reviewed and affirmed by an authorised review officer on 16 December 2002, and following a hearing on 6 February 2003 the SSAT decided to affirm that decision.

Applicant’s Case

5.      Dr Rienks moved from Brunswick East in Victoria to Hobart, Tasmania in November 2002.

6.      The applicant left Fiji in December 2001 where she had been lecturing at the University of South Pacific because of the political turmoil taking place there.

7.      She returned to Melbourne and stayed at her brother’s house in Melbourne for nine months.

8.      Dr Rienks in answer to the question why she had made the decision to move to Hobart rather than other locations said that she had personal and professional contacts with whom she had been in contact about establishing a career in Hobart.

9.      She no longer wished to impose on her family and realised that to look for work and establish a new career she would need to live independently of her family and put more effort into seeking a job.

10.     She made the move to Hobart because accommodation and public transport was cheaper.    She estimated that to live comfortably in Melbourne as a single person she would need to earn $52,000 per year, but to live in Hobart would require as little as $35,000.

11.     Under cross-examination Dr Rienks said that she chose not to make a claim for newstart allowance in Melbourne.   She admitted that when she came to Hobart she still had $10,000 of her earnings.

12.     Dr Rienks also admitted that she did not move to Hobart to be with a family member or for the purposes of treating or alleviating physical disease or illness.

13.     Dr Rienks said that the move to Hobart was made because of an extreme circumstance in that she was facing financial ruin if she remained in Melbourne.

Applicant’s Submissions

14.     The applicant did not concede that the move to Hobart had reduced her employment prospects.

15.     Dr Rienks contended that she had moved from her original place of residence because of an extreme circumstance.    It was contended that the extreme circumstance in this matter was:

·     The applicant had no income and was paying constant outgoings.

·     She had lost 10 years of earnings.

·     She had lost a house deposit.

·     She had gone through a period of unemployment.

and that she believed she was facing financial ruin.

Respondent’s Case

16. In summary the respondent contended that the question whether or not the applicant reduced her employment prospects by moving to Hobart without sufficient reason was a question of fact. Subsections (a), (b) and (c) of s634(3) of the Social Security Act 1991  (“the Act”) did not apply and the application of (d) was an inappropriate use of the provisions.

Consideration

17.     The issues for the Tribunal to determine are:

(a)whether the applicant reduced her employment prospects by moving from Melbourne to Hobart in November 2002; and

(b)whether the applicant did so without sufficient reason.

18.     The respondent produced in evidence the Guide to the Social Security Law, paragraph 3.2.1.35 which sets out the policy of the Department in determining whether a person’s employment prospects are reduced on a move from one place to another, if the person does not have a sufficient reason to make the move.

19.     Specific evidence was produced by the respondent of the computer program used by the Department to establish the unemployment rate in Brunswick East, Victoria from where the applicant had moved and the unemployment rate in Hobart at 16 December 2002, the date Dr Rienks had moved to Hobart.   It showed that there was a 3.9% differential of worse unemployment in Hobart.   The differential was a factor to be taken into account in assessing whether or not the applicant had reduced her employment prospects.   It was clear to the Tribunal on the evidence produced that the applicant had reduced her employment prospects significantly by the move.   It was open to the applicant to provide evidence of a more detailed analysis in the area of biology, which was her expertise, but she chose not to bring such evidence.   It was incumbent on the applicant to show that in her particular sphere of expertise, biology, there were more opportunities of employment in Tasmania to rebut the evidence brought by the respondent.

20. The second issue to be determined is whether the applicant made the move to Hobart without sufficient reason. The definition of sufficient reason is contained in s634(3) of the Act.

21. The applicant contended that she believed she was facing financial hardship if she remained in Melbourne. She claimed that belief in her mind constituted an extreme circumstance as defined in the Act.

22.     It has already been established in the decision of Re Arcibal and Secretary, Department of Family and Community Services (2002) AATA 501 that mere financial hardship alone cannot constitute “an extreme circumstance”.

23.     The Tribunal has determined that the applicant has not established that she had sufficient reason to make the move from Melbourne to Hobart in November 2002.

24.     It has not been necessary to determine the question of the applicant’s residence as it will not affect the ultimate outcome of the matter.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Mary Imlach (Senior Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  17 September 2003
Date of Decision  28 November 2003
Counsel for the Applicant         Mr Hamish Lock
Solicitor for the Applicant          Hobart Community Legal Service
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink