Singh and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1265
•2 May 2024
Singh and Secretary, Department of Social Services (Social services second review) [2024] AATA 1265 (2 May 2024)
Division:GENERAL DIVISION
File Number(s): 2023/4388
Re:Balbir Singh
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak KC, Member
Date:2 May 2024
Date of written reasons: 29 May 2024
Place:Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Mr A. Maryniak KC, Member
Catchwords
SOCIAL SECURITY – Crisis Payment – Extreme Circumstances – Forced departure from home – cumulative factors –Social Security Act 1991 s 1061JH – whether applicant moved to a new home – reviewable decision affirmed.
Legislation
AdministrativeAppeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Secondary Materials
Department of Social Services, Social Security Guide (Guides to Social Policy Law, version 1.316, 20 March 2024)
REASONS FOR DECISION
Mr A. Maryniak KC, Member
29 May 2024
At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.
The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
An extract of the edited transcript is Annexure “A” hereunto and furnished for the Applicant and to the Respondent.
4. I certify that the following 18 (eight-teen) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member
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Associate
Dated: 29 May 2024
Date(s) of hearing: 2 May 2024 Applicant: Self-represented Advocate for the Respondent: Ms Monica Macor Solicitors for the Respondent: Sparke Helmore
ANNEXURE A
1. The Applicant seeks review of a decision of this Tribunal dated 14 June 2023, affirming a decision to reject the Applicant’s claim for Crisis Payment due to extreme circumstances forcing departure from home.
2. At issue is whether the Applicant can be paid Crisis Payment as a result of an extreme circumstance forcing her departure from home, pursuant to section 1061JH of the Social Security Act 1991 (Cth) (‘the Act’).
3. As the Respondent submitted and the Tribunal accepts, Division 1 Part 2.23A of the Act provides the circumstances in which a customer can qualify for Crisis Payment. Pursuant to subsection 1061JH(1), a customer will qualify for Crisis Payment due to ‘extreme circumstances forcing departure from home’ where a number of cumulative requirements are all satisfied, being;
(a) the person has left, or cannot return to, his or her home because of an extreme
circumstance; and(b) the extreme circumstance makes it unreasonable to expect the person to remain in, or return to, the home; and
(c) the person has established, or intends to establish, a new home; and
(d) at the time the extreme circumstance occurred, the person was in Australia; and
(e) the person makes a claim for crisis payment within 7 days after the extreme circumstance occurred; and
(f) on the day on which the claim is made:
(i) the person is in severe financial hardship (see section 19D); and
(ii) the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and
(g) during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been made payable to the person based on:
(i) the qualifications set out in this section; or
(ii) the qualifications set out in section 1061JHA (remaining in home after removal of family member due to domestic or family violence).
4. The Tribunal has considered the materials relied upon by the Applicant, including materials relied upon by the Applicant when this application was earlier heard and determined by this Tribunal on 14 June 2023, together with further materials provided to the Tribunal as recently as yesterday. The Tribunal has also considered the oral evidence of the Applicant, together with the submissions made by the parties during the hearing, and the Respondent’s Statement of Issues, Facts and Contentions (‘RSFIC’) dated 9 November 2023.
5. Essentially the Applicant, who has had significant previous and ongoing health challenges, submits that she was locked out of her own Centrelink account by Centrelink, and could not lodge a claim for a month. Whilst in psychiatric confinement she tried to call Centrelink but was redirected to myGov on a number of occasions, who informed her that a Centrelink manager had locked her out of her own account.[1] The Applicant expanded on that during her testimony, and also provided phone records to the Tribunal.
[1] See T1, p 4 of the T Documents (‘T-Docs’).
6. On the documentary material before it, the Tribunal is satisfied that the Applicant was referred on 14 December 2022 for an involuntary treatment order at St John of God Midland Emergency Department, with a differential diagnosis of various mental health conditions. That order expired at 2:59pm on 17 December 2022.
7. On 16 December 2022 that order was extended, detaining the applicant until 3:01pm on 18 December 2022. On 18 December 2022 that referral was revoked by a psychiatrist, satisfied that the Applicant was no longer in need of an involuntary treatment order. The Applicant has pointed to some documentation, which supports her claim that she was under that psychiatric care until at the latest 31 December 2023.
8. On 7 February 2023, the Applicant lodged a claim for Crisis Payment for other extreme circumstances. The eligibility requirements of section 1061JH are cumulative. That is, they all must be satisfied to establish eligibility. Two requirements remain in issue, the Respondent having conceded and the Tribunal being satisfied that the others are met on the evidence.
9. First, had the Applicant established or intended to establish a new home at the relevant time?[2] The Social Security Guide at 3.7.4.30 states: ‘A person must have established a new home, or they must be intending to establish a new home as a result of the extreme circumstance.’[3] Examples considered to be suitable verification include taking out a residential lease; change of address or motor vehicle registration and driver’s licence; change of contact details at child’s school, or mail redirection.
[2] s 1061JH(1)(c).
[3] Department of Social Services, Social Security Guide (Guides to Social Policy Law, version 1.316, 20 March 2024) (‘the Guide’).
10. The Applicant provided a prior to crisis address in Cloverdale, Western Australia, on her crisis claim form dated 7 February 2023.[4] Further, during the hearing the Applicant accepted she had lived at the Cloverdale address, prior to being removed from the Eden Hill address she was residing at, at the time of the crisis. The Applicant has also confirmed a number of times in material before the Tribunal and whilst giving testimony, that she moves between different locations and accommodations, including at the relevant time following the crisis.
[4] T5, p 32.
11. On the evidence, the Tribunal is not satisfied that the Applicant had established or intended to establish a new home, as a result of the extreme circumstances. She had resided at the Cloverdale address at times prior to the crisis. It was not a new home. Therefore, the Applicant does not satisfy and meet the requirements of section 1061JH(1).
12. For completeness, even though the requirements of section 1061JH(1) are cumulative, the Tribunal also provides its reasons as to subsection 1061JH(1)(e), namely, is the Tribunal satisfied that the Applicant made the claim for Crisis Payment within seven days after the extreme circumstance occurred?
13. The Applicant maintains she contacted the Respondent’s agency many times since 2 January 2023 to let the agency know of the crisis. The Guide states that the seven‑day claim period may be met by contacting Services Australia about a claim in that period and lodging a claim within 14 days after the contact date.
14. Regardless of whether the Applicant’s psychiatric confinement ended on 18 December 2022 as confirmed by the documentary evidence, or around 31 December 2022 as claimed by the Applicant, no claim was lodged until 7 February 2023, which is out of time on both scenarios. The Applicant claims she had contacted the Respondent’s agency a number of times in January 2023, relying upon various phone records which do not establish anything beyond the fact that calls were made. Against that, the Tribunal notes that those claims by the Applicant are not supported by the documentary evidence relied upon by the Respondent,[5] which indicates that no contact regarding Crisis Payment was made by the Applicant during the period prior to the claim being lodged. In particular, the Tribunal notes the comments in annexure A to the RSFIC which do not support and are contrary to the Applicant’s claims regarding the phone calls. On balance, the Tribunal prefers the documentary evidence of the Respondent. In any event, too greater time difference exists between any claimed contact by the Applicant and the day on which the claim was lodged, being 7 February 2023.
[5] See RSFIC [5.20].
15. The Tribunal has also considered the Applicant’s claim in the context of section 13 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’). Whilst the Respondent concedes and the Tribunal is satisfied that the Applicant meets some of the requirements of subsection 13(3A) of the Administration Act, subsections 13(3A)(b) and (e) remain in issue. As was discussed with the Applicant during the hearing, again the requirements of subsection 13(3A) are cumulative in that unless all are met, the Applicant will not be assisted. By reason of the findings made above, the Applicant does not satisfy subsection 13(3A)(b), hence subsection 13(3A) is not satisfied.
16. Further, again for completeness, the Tribunal finds that it was reasonably practicable for the Applicant to lodge her crisis claim earlier than 7 February 2023, as the Applicant had ongoing contact with the Respondent’s agency regarding other matters during the relevant period. Both annexure A and also the ‘document upload history’ provided by the Applicant to the Tribunal,[6] show a number of lodgings and interactions with the agency during January 2023. The Applicant even managed to lodge a separate unrelated compensation claim on 23 January 2023. This was some 15 days prior to the lodgement of her crisis claim.
[6] Applicant’s Appendix 4, ‘Document Upload History’ dated 06/02/2023.
17. In light of the Applicant’s testimony and findings, in particular with respect to the non‑establishment of a new residence, the Tribunal determined during the hearing that any cross‑examination of any employee of the Respondent agency would not have assisted the Tribunal in determining this application, which is also consistent with section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
18. By reason of the matters set out above, the Tribunal affirms the decision under review.
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