SINGH and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 728

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 728

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1836

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RAMBRIJ SINGH

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS  

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date24 September 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Special benefit - Applicant fails to meet the requirements for hardship payment - Applicant’s accessible funds exceed threshold for payment of special benefit – Available funds should not be disregarded on religious grounds – Decision under review affirmed. 

Social Security Act 1991 (Cth) ss 43, 729

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

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416

REASONS FOR DECISION

24 September 2010 Dr P McDermott, RFD, Senior Member  

1.      Mr Rambrij Singh (“the applicant”) is a recent migrant from Fiji.  He has on a number of occasions claimed special benefit.  His application for special benefit has been rejected.  I have to determine whether he should be granted special benefit.

HISTORY OF THE MATTER

2.      The applicant arrived in Australia from Fiji under an Assurance of Support on 5 July 2007.  He is a married man who is over 70 years of age.

The first application

3.      On 29 September 2009, the applicant made an application for special benefit which was lodged on 30 September 2010.  He indicated that he was claiming special benefit because:

My son called me to Australia and I stayed with him for two years and he does not want to support me.

4.      In his application form for special benefit, the applicant stated that he was temporarily living with friends in Ferntree Gulley in Victoria.  Mr Singh also indicated that his wife was in receipt of newstart allowance of $409 per fortnight.

5.      At the time of his first application for special benefit, the applicant indicated that he had a term deposit of $9,500 and an investment account of $19,484.53, totalling $28,984.53.  He also had a bank account with $712 in it. 

6.      On 6 October 2009, a Centrelink officer rejected the applicant’s application for special benefit.  The applicant sought review of that decision but it was affirmed on the basis that he had over $5,000 in available funds.

7.      On 29 January 2010, the applicant moved to his son’s house in Queensland.

The second application

8.      On 10 February 2010, the applicant made a further claim for special benefit.  On 19 February 2010, Centrelink rejected this new claim on the basis that he did not meet the conditions for a hardship payment.  On 1 March 2010, the applicant requested that his son (Bilendra Singh) be made his (correspondence) nominee.

9.      On 4 March 2010, the applicant sought review of the decision to reject his claim for special benefit because the funds in his accounts are reserved for him and his wife’s funerals.  On that date, Centrelink affirmed its decision to reject the applicant’s new claim.

10.     On 22 March 2010, an authorised review officer (“ARO”) spoke to the applicant’s son about the application for review.  On 24 March 2010, the ARO affirmed the decision.  The applicant sought further review of the decisions by the Social Security Appeals Tribunal (“SSAT”) which on 4 May 2010 affirmed the decisions under review.

The third application

11.     On 1 July 2010, the applicant made a further claim for special benefit.  At that time, he provided bank statements which indicated that his available funds comprised of an account in the amount of $2,300.68 and another account in the amount of $2,459.30, totalling $4,759.98.

12.     At the time of his third application for special benefit, the applicant indicated that the reason why his available funds had reduced from $28,984.53 previously declared was because of the following expenditure:

·     Car purchase - $2,700;

·     Car registration, license renewal, stamp duty, fuel, clothes & other expenses - $1,880;

·     Repayment to friend (trip to Fiji) - $2,600;

·     Second car purchase - $16,500.

13.     On 5 July 2010, Centrelink again rejected Mr Singh’s application for special benefit and this decision was affirmed by an ARO on 26 August 2010.

RELEVANT LEGISLATION AND POLICY

14. The relevant legislation is contained in s 729 of the Social Security Act 1991 (Cth) (“the Act”).

15. Special benefit can be paid to an applicant if no other social security pension or benefit is payable to the person (see s 729(2)(a) and (b) of the Act). No other social security pension or benefit is payable to the applicant. Although he is over 65 years of age, he does not meet the residential requirements for this pension (see s 43(1)(a) of the Act) as he is a recent migrant from Fiji.

16. Special benefit can only be paid to an applicant if the Secretary is satisfied that the person is unable to earn a sufficient livelihood (see s 729(2)(e) of the Act). There are policy guidelines which provide guidance on whether or not the discretion to grant special benefit should be exercised: Guide to the Social Security Law, paragraphs 3.7.1.30, 3.7.1.50 and 3.7.1.70.  These policy guidelines state that in assessing whether or not an applicant has an insufficient livelihood, regard must be had to their available funds.  The policy provides that where an applicant’s available funds are more than $5,000, then special benefit it not payable.

17.     It is settled that this Tribunal is not bound by policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). The Tribunal will depart from guidelines where there are cogent reasons in a particular case: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

CONSIDERATION

18.     This application concerns the applications for special benefit made on 29 September 2009 and 10 February 2010.  The application for special benefit that was made on 1 July 2010 is not the subject of this application before this Tribunal.

19.     Having regard to the evidence before me, I find that at the times when the applicant claimed special benefit on 29 September 2009 and 10 February 2010, he had funds from his bank accounts which totalled $28,984.53.  This is more than $23,000 over the threshold for the payment of special benefits.  I have formed the opinion that the decisions of Centrelink to reject the application are the correct and preferable decisions to make.

20.     One matter that has concerned me is the assertion of the applicant’s son who advised the ARO on 23 February 2010 that the investments of the applicant should be disregarded for the religious reason that a funeral ceremony may extend over a 15-20 day period and therefore money is needed to be set aside for this purpose.[1]  The applicant, through an interpreter, stated that after his death the duty of his family would be to pay for the priest as well as to pay for meals provided to visitors of the family home.

[1] T12/65.

21.     I have given some consideration to whether the religious contention put by the applicant is a sufficient reason to displace the policy contained in the Guide.  There was no detailed itemised cost of a funeral that was placed in evidence before me.  The tenor of the statements made to the applicant through an interpreter was that a sum in the vicinity of $15,000 would cover the costs of a funeral for both he and his wife.

22. What is of concern to me is that the applicant is now not in possession of the necessary funds which would allow him to pay for a funeral. Centrelink have informed the applicant of how his funds could be placed into a funeral bond or funeral fund (s 19E of the Act)[2].  Instead the applicant had expended the funds on discretionary expenditure such as the purchase of two motor vehicles and a trip to Fiji.  The applicant claimed that the first motor vehicle was defective but is still a registered vehicle.  It was not clear to me why the applicant would still maintain the registration of two motor vehicles.  The applicant lives in a location close to buses.  Having regard to this discretionary expenditure by the applicant, I have placed no weight upon the assertion made by the applicant’s son that considerable funds are required for the funeral of the applicant and his wife.

[2] T12/66. 

23.     I should mention that I have not placed much weight upon the assertion made by the applicant on 29 September 2009 that his son does not want to support him.  The fact that on 29 January 2010, the applicant moved to the son’s house is inconsistent with the assertion of the applicant.

24.     The fact that the applicant has funds of $4,759.30 which is under the policy limit of $5,000 is also a matter of some concern to me.  This appears to be calculated to bolster the case of the applicant by having funds that do not exceed the policy limit.  However, the vehicles possessed by the applicant are realisable assets and presumably could be readily sold.

25.     I should record that the applicant declined to give evidence before me either on oath or on affirmation.  Instead he preferred to make statements through an interpreter.  This was so even despite the fact that I advised him, through an interpreter, that I would give greater weight to a statement made by him under the sanction of an oath or affirmation.  He was made aware that he could take the oath on his holy book.  The applicant did not request that an oath be taken on his holy book.

DECISION

26.     I affirm the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .........................[Sgd]....................................................
              Kate Slack, Research Associate

Date/s of Hearing  7 September 2010
Date of Decision  24 September 2010
Applicant was self-represented
Solicitor for the Respondent     Rick McQuinlan, departmental advocate