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

[2021] AATA 2404

Spielvogel and Secretary, Department of Social Services (Social services second review) [2021] AATA 2404 (20 July 2021)

Division:GENERAL DIVISION

File Number:          2021/0909

Re:Rosemarie   Spielvogel

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:20 July 2021

Place:Melbourne

The Application is dismissed under section 42B(1)(b) of the Administrative Appeals Tribunal Act.

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Member R West

Catchwords

SOCIAL SECURITY – Jobseeker payments – cancellation – assets exceed assets value limit –– unrealisable assets – lack of jurisdiction to consider whether hardship rules apply – no reasonable prospect of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Quiggin v Secretary, Department of Social Services [2019] AATA 3324

Ralph and Repatriation Commission [2006] AATA 258

REASONS FOR DECISION

Member R West

20 July 2021

1. The decision under review is the decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 11 January 2021, affirming the decision of Services Australia (Agency) to cancel the Applicant’s jobseeker payment on 25 September 2020, on the grounds that the value of her assets was more than the assets value limit.

   BACKGROUND

2. On 3 April 2020, the Applicant lodged an application for a Jobseeker Payment (the Application).[1]

   [1] T-Documents (T) 3 at pp. 12-34.

3. In a Real Estate Details and Business Details form lodged with the Application, the Applicant listed two properties at McCormacks Road and Closter Court in Bacchus Marsh.[2]

   [2] T4 at pp. 35-44.

4. On 10 September 2020, the Agency cancelled the Applicant’s Jobseeker payment from 25 September 2020,[3] under section 80 of the Social Security (Administration) Act 1999 (Administration Act)  ‘because the value of [her] and [her] partner’s assets is above the allowable limit’ (Original Decision).

   [3] T9 at pp. 117-118.

5. On 14 October 2020, an authorised review officer (ARO) affirmed the Original Decision.

6. On 11 January 2021, the AAT1 affirmed the ARO’s decision (Reviewable Decision).[4]

   [4] T2 at pp. 7-11.

7. On 21 January 2021, the Applicant applied to the General Division of the Tribunal for a review of the Reviewable Decision.

8. On 31 May 2021, the Respondent lodged a written submission with the Tribunal that the application for review be dismissed pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

   PRELIMINARY HEARING

9. A hearing in relation to the Respondent’s application was conducted by telephone on 8 June 2021. The Applicant was self-represented and assisted by her spouse, Peter Spielvogel, and the Respondent was represented by Ms Vincci Chan, a solicitor.

10. At the hearing the Applicant confirmed that she did not dispute that the combined assets of herself and her spouse were, at the relevant time, above the allowable limit under section 611 of the Social Security Act 1991 (Act) which is the threshold for the payment of the Jobseeker payment.  The Applicant explained that she and her spouse conducted a food van business catering to outdoor events such as music festivals and field days and had been hard hit by the COVID pandemic. She submitted that their McCormacks Road property should be disregarded under the assets test hardship provisions as an ‘unrealisable asset’. The Applicant confirmed that she had made enquiries about hardship provisions at the Respondent’s Ballarat office but had not made a formal application under section 1130 of the Act.

11. In making her submissions, the Applicant stated that she had not received a copy of the Respondent’s written submission. The Respondent confirmed that a copy had been sent to her.  In order to provide the Applicant with a full opportunity to present her case, the Tribunal directed the Respondent to send a further copy of the written submission to the Applicant by registered post and by email to her confirmed email address. At the conclusion of the hearing, the Tribunal directed that the Applicant have the opportunity to lodge a further written submission in response by 18 June 2021. The Tribunal indicated to the parties that it would determine the Respondent’s application after 18 June 2021, without a further hearing on the basis of the written submissions.

12. The Respondent confirmed that it had sent the copy of its written submission to the Applicant as directed. The Applicant did not lodge a further written response by close of business on 18 June 2021.

    CONSIDERATION

13. In the AAT1 proceedings, the Tribunal reviewed the ARO decision to affirm the Agency’s decision to cancel the Applicant’s Jobseeker payment under section 80 of the Administration Act.

14. The ARO’s decision concerned whether the Applicant’s Jobseeker payment should have been cancelled as the Applicant’s assets were more than the assets value limit. The ARO confirmed that the Agency’s decision to cancel the Jobseeker payments on this basis was correct. The Tribunal affirmed this decision in the AAT1 review.

15. The ARO did not consider whether the Applicant’s Jobseeker payments were not payable with respect to the financial hardship rules in section 1130 of the Act on the basis that neither the McCormacks Road property or the Closter Court property were an ‘unrealisable asset’ under subsection 11(12) of the Act. In the Reviewable Decision, the Tribunal affirmed the ARO Decision on the basis only that the Applicant’s assets exceeded the assets value limit. 

16. The Tribunal noted that:

    Mrs Spielvogel now appears to be arguing that some of the property should be disregarded under the assets test hardship provisions because it is an “unrealisable asset”…..

    I have no evidence that any of the property assets are “unrealisable assets” for the purposes of the law; for example, that the asset is on the market, but unable to be sold or there are legal restrictions preventing the asset from being sold.

    I also have no evidence that Mrs Spielvogel made an application to be assessed under the assets hardship rules. I therefore cannot consider this matter further.

17. In order for the financial hardship rules to apply, section 1129(1)(d) of the Act requires the Applicant to have lodged a request in a form approved by the Secretary. The Respondent confirmed that the Applicant had not lodged a ‘Claim for consideration under hardship’ form. The Applicant advised the Tribunal that she had not made such an application.

18. The financial hardship rules in section 1130 of the Act requires a consideration of the questions whether the assets identified are ‘unrealisable’ and whether the Applicant would suffer severe financial hardship if the asset were not disregarded in calculating their rate of benefit. No such consideration was given at any stage prior to the matter coming before this Tribunal.

19. The Respondent argues that the Tribunal in this proceeding lacks jurisdiction to consider the financial hardship rules in section 1130 of the Act on the basis that it was not a matter before the ARO or AAT1 and the jurisdiction of the Tribunal in this matter is not enlivened under section 179 of the Administration Act.

20. The Tribunal accepts that the Reviewable Decision was not concerned with the financial hardship rules and there was no decision of the Agency or the ARO related to those financial hardship rules.  Accordingly, the Tribunal in these proceedings lacks jurisdiction to consider whether the Applicant is entitled to the benefit of the financial hardship rules.[5]

    [5] See Quiggin v Secretary, Department of Social Services [2019] AATA 3324 at [24] and Ralph and Repatriation Commission [2006] AATA 258.

21. As the Applicant has conceded that the value of her and her partner’s assets is above ‘the allowable limit’ there is no apparent basis for disputing the correctness of the Reviewable Decision. In these circumstances the Tribunal is satisfied that the application has no reasonable prospect of success and it should be dismissed under section 42B of the AAT Act.

    DECISION

22. The Application is dismissed under section 42B(1)(b) of the AAT Act.

I certify that the preceding 22 (Twenty two) paragraphs are a true copy of the reasons for the decision herein of Member R West

...[sgd]..................................................................

Associate

Dated: 20 July 2021

Date of hearing:	8 June 2021
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Vincci Chan