Suzie Berthlmawos and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 459

[2013] AATA  459

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1303
Re	Suzie Berthlmawos
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	4 July 2013
Place	Sydney

The decision under review is set aside and a decision substituted that Ms Berthlmawos was not subject to the newly arrived resident’s waiting period at the time she lodged her claim for special benefit and, consequently, she is entitled to payment of special benefit.

.........................[SGD]....................................

Deputy President RP Handley

CATCHWORDS

SOCIAL SECURITY – Special Benefit claim - applicant qualified for Special Benefit – whether Special Benefit payable – whether applicant subject to newly arrived resident’s waiting period – whether applicant suffered a substantial change in circumstances beyond her control – decision set aside

LEGISLATION

Social Security Act 1991 ss 729, 739A, 739B, 739C

Social Security (Class of Visas – Qualification for Special Benefit) Determination 2009

CASES

Alboaskar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 183

Secretary, Department of Social Security v Secara 91998) 89 FCR 151

REASONS FOR DECISION

Deputy President RP Handley

DATE 4 July 2013

1. Ms Berthlmawos (the Applicant) has applied for review of a decision of the Social Security Appeals Tribunal (SSAT), affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Department) to reject Ms Berthlmawos’ claim for Special Benefit.

   BACKGROUND

2. Ms Berthlmawos was born in 1970 and is aged 43. On 27 July 2011, she married Mr Nahkla, an Australian citizen, in Egypt before migrating to Australia, arriving on 12 August 2012. Ms Berthlmawos holds a Subclass 309 Provisional Spouse Visa which was issued on 12 January 2012. She was six months pregnant on arrival in Australia, and gave birth to a daughter in November 2012.

3. On 10 October 2012, Ms Berthlmawos made a claim for Special Benefit. Centrelink rejected her claim on 17 October 2012, a decision which was affirmed by the original decision maker on 6 November 2012 and by an authorised review officer on 20 November 2012. This decision was reviewed by the SSAT which, on 18 February 2013, affirmed the decision on the grounds that Ms Berthlmawos was subject to the newly arrived resident’s waiting period of 104 weeks residence in Australia and had not experienced a substantial change in her circumstances beyond her control since arriving here.

4. On 18 March 2013, Ms Berthlmawos applied to the Tribunal for a further review of the SSAT decision.

   RELEVANT LEGISLATION AND ISSUES

5. The relevant legislation is the Social Security Act 1991 (the Act). Section 729 of the Act sets out the qualifications for Special Benefit, and states:

   (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; and

   (f)the person:

   (i)is an Australian resident; or

   (v)is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph; and

   …

   (h)an assurance of support does not apply to the person at any time during the period (see subsection (2C)).

6. The Secretary does not dispute that Ms Berthlmawos is qualified for Special Benefit. However, the fact that a person is qualified for Special Benefit does not necessarily mean that Special Benefit is payable. In Ms Berthlmawos’ case, s 739A must be considered. In the circumstances set out in s 739A, a person will be subject to a newly arrived resident’s waiting period of 104 weeks unless the person has suffered a substantial change in circumstances beyond their control. Section 739A states:

   739A(1)  Subject to this section, a person who, on or after the commencement of this subsection:

   (a)enters Australia; or

   (b)becomes the holder of a permanent visa; or

   (e)becomes the holder of a visa that is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph;

   is subject to a newly arrived resident’s waiting period.

   (5)If:

   (a)a person is subject to a newly arrived resident’s waiting period; and

   (b)neither subsection (3) nor (4) apply to the person;

   the waiting period starts on the day on which the person:

   (c)first entered Australia; or

   (d)becomes the holder of a permanent visa;

   whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

   …

   (7)Neither subsection (1) nor (2) apply to a person if the person, in the Secretary’s opinion, has suffered a substantial change in circumstances beyond the person’s control.

7. The provisional spouse visa held by Ms Berthlmawos falls within a class of visas that the Minister has determined are subject to the newly arrived resident’s waiting period: Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2009, clause 4.

8. When considering whether a person has suffered a substantial change in circumstances, the Secretary must act exercise his/her powers in accordance with relevant guidelines. Section 739B states:

   The Secretary must exercise the powers under subsection 739A(7), in accordance with guidelines from time to time in force under section 739C.

   Section 739C empowers the Minister to make guidelines by legislative instrument. The relevant guidelines, the Guide to the Social Security Law (the Guide) address the issue of what constitutes a ‘substantial change in circumstances’ for Special Benefit at paragraph 3.7.2.20 and the paragraphs that follow. Under the heading ‘Changed circumstances that are NOT substantial for the purposes of SpB’, two examples are given. The second states:

   Example 2: The SpB claimant and the partner decide to have a child during the NARWP period. The birth of a child is NOT considered to be a substantial change in circumstances as it is a lifestyle choice over which the couple did have control and SpB is not payable.

   Among examples of changed circumstances that would be considered substantial are where the Special Benefit claimant has a prolonged illness or injury, is unable to work and has incurred significant costs.

9. The Secretary contends that although Ms Berthlmawos is qualified for Special Benefit, Special Benefit is not payable because she has not suffered a substantial change in circumstances beyond her control and is, therefore, subject to a newly arrived resident’s waiting period of 104 weeks commencing, in her case, on her date of entry into Australia (12 August 2012).

   EVIDENCE

10. Ms Berthlmawos and Mr Nahkla gave evidence at the hearing. Mr Nahkla spoke reasonable English but sometimes required the assistance of the interpreter. Ms Berthlmawos, who speaks Arabic, spoke only with the assistance of the interpreter. She speaks little or no English. Notwithstanding some language difficulties, I found their evidence to be entirely credible.

11. Mr Nahkla said that he was injured at work in 2006, pursuant to which he was receiving incapacity payments from his employer’s workers compensation insurer (QBE) and, in respect of which, he was paid lump sum compensation in respect of a 14% whole person impairment for injuries to his right and left ‘upper extremity’.

12. Mr Nahkla said that on 16 August 2009, he travelled to Egypt for family reasons, returning to Australia on 13 January 2010. Before leaving, he phoned QBE to ask about his incapacity payments. QBE told him that his payments would stop while he was away but he should contact them on his return, supply a new medical certificate and his payments would resume. When he did so, providing a medical certificate dated 19 January 2010, his payments resumed. Therefore, before departing for Egypt in August 2010, he again phoned QBE to inform them that he was leaving, was told that his payments would stop while he was away, and would resume when he notified QBE of his return and submitted a new medical certificate.

13. On returning to Australia on 12 August 2012, Mr Nahkla found letters from a new QBE case manager dated 1 April 2011 introducing herself, and dated 10 June 2011 saying that if a medical certificate was not received within seven days, it would be assumed that he did not wish to claim further benefits and finalisation of his claim would commence. Mr Nahkla obtained a new medical certificate dated 25 September 2012, which he said he provided to QBE, but they refused to resume his payments. Mr Nahkla said despite his pursuing this with QBE and WorkCover, QBE have refused to reinstate his incapacity payments; he has not approached a solicitor for advice about this.

14. Mr Nahkla expressed his reluctance at having to rely on social security benefits. He noted that when he first approached Centrelink about social security benefits, about two months after returning to Australia and QBE having refused to reinstate his incapacity payments, Centrelink were informed by QBE that he was receiving incapacity payments until August 2012, which was not correct. Mr Nahkla’s account of his dealings with Centrelink at about this time indicated that the service he received was less than adequate.

15. Mr Nahkla said he is unable to work at the moment. He produced a Disability Support Pension (DSP) Medical Report completed by Dr Mitra Shahri, General Practitioner, on 24 June 2013, to be submitted to Centrelink with his application for DSP. This is the first time he has applied for DSP. Mr Nahkla said some of his medical problems are attributable to his injury while others are not. Mr Nahkla stated he would have difficulty working, and in addition he is also unable to leave his wife currently because of her condition and her being so dependent upon him, especially because she does not speak English. He said her condition is sometimes very bad and he worries for her. Living in Australia has proved very challenging for her and, culturally, it has been very difficult for her to accept the need to get help with her mental health problems. Having previously lived in a unit in Egypt in close proximity with others, his wife finds it very difficult living in a house like his: she is scared and worries about their security and about intruders, has difficulty sleeping and talks in her sleep. Mr Nahkla even installed shutters in his house in the hope that his wife would feel more secure.

16. Mr Nahkla confirmed that he owns his home outright and does not have a mortgage. He is currently reliant on his social security benefits for income. Centrelink records provided by the Secretary shows that Mr Nahkla is receiving Parenting Payment Partnered of $459.40 per fortnight, Family Tax Benefit of $314.02 per fortnight and Baby Bonus of $346.15 per fortnight. Mr Nahkla said he did not become aware of the Baby Bonus until sometime after their baby was born. Centrelink records show that payments of Baby Bonus commenced on 23 January 2013 with a back payment, it would appear, to the time the child was born. Mr Nahkla said Baby Bonus payments will cease shortly.

17. Mr Nahkla produced copies of his niece’s bank records which he said indicate the payments she has made on his behalf because of his current financial situation. These loan payments total $14,294.33. Of this, $9,613.71 was for the purchase of shutters for the house, referred to above. He acknowledged that his niece has not placed any pressure on him to repay this money but he will repay the money loaned when he can. Mr Nahkla said their current financial situation is very difficult. He needs to buy medication for himself, his wife and for their baby and produced a set of receipts for the purchase of various medications.

18. Ms Berthlmawos and Mr Nahkla provided copies of various overdue accounts: telephone, gas, water, Council rates and other charges, and for credit card payments. Ms Berthlmawos also provided a list of their monthly expenses which she said exceed their monthly income. 

19. Ms Berthlmawos said she and her husband were married on 26 July 2011 in Egypt. For more than 10 years she worked as an accountant, but her father died three years ago and Ms Berthlmawos stopped work when her mother was taken to hospital in a critical condition. Ms Berthlmawos said the reason for the delay in her and her husband coming to Australia was she only felt able to leave Egypt when her mother’s condition had improved. Ms Berthlmawos said she knew about her husband’s incapacity payments before they were married and believed regular payments would resume on his return to Australia. They had always intended to live together in Australia.

20. Ms Berthlmawos said she was pregnant when she and her husband arrived in Australia but, otherwise, she had no other health concerns. She has never previously suffered from nor been treated for anxiety and depression while living in Egypt. She said the statement by her general practitioner, Dr Remon Botros, in a letter dated 15 March 2013, referring her to Dr Sameh Anis, Psychiatrist, for treatment, that she has a “long history of depression and anxiety” is wrong.  Her health problems started when her husband was not receiving any income after their arrival. She became very stressed, especially when he received letters demanding payment of the debts and threatening legal action. She became very nervous all the time and had difficulty concentrating. Eventually, her husband took to see a doctor who prescribed medication, but this caused side effects. The doctor subsequently changed the medication but Ms Berthlmawos said she was still suffering symptoms. She also went to see a psychologist, Zeinab Allaw, for treatment which helped a little, and to see Dr Anis who prescribed Zoloft. She sometimes stops taking this medication because it makes her tired.

21. Ms Berthlmawos said she also suffers from back pain and aching. She has experienced problems with her wisdom teeth and has been advised that she needs surgery to remove them. She provided a copy of a medical certificate from Dr Thao Minh Quach of Rooty Hill Medical and Dental Centre, “completed” on 20 April 2013, stating that Ms Berthlmawos “is receiving medical treatment for recurrent tooth aches/poor dental status needing dental review as soon as possible”.  Ms Berthlmawos said she had none of these problems before coming to Australia

    DISCUSSION

22. The issue for the Tribunal is whether Ms Berthlmawos has suffered a substantial change in circumstances beyond her control.

23. I agree with what Senior Member Toohey said about the timing of the change in circumstances in Ruqaya Alboaskar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 183, at [21] to [23]:

    21. According to the Guide (at cl 3.7.2.20), if a person holds a temporary visa, a change of circumstances is only relevant for the purposes of s 739A(7) if it occurred after the person has arrived in Australia. That policy is reflected in the decision of the Centrelink Authorised Review Officer who stated that the newly arrived resident’s waiting period could only be waived where there has been “a substantial change in circumstances since arrival” (original emphasis). Those statements are not correct.

    22. There is no express or implied limitation to this effect in the legislation, and the Tribunal and the Full Federal Court have held otherwise. In Secretary, Department of Social Security v Secara (1998) 89 FCR 151, Mansfield J said, at 159, there is no reason “in logic or in fairness why a temporal limitation by reference to the person's arrival in Australia should be specified”. He agreed with then President of the Tribunal, Justice Matthews, in Re Chelechkov and Department of Social Security (1998) 26 AAR 321 where she said at [329]:

    It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subs (7). This is because subs (7) will only apply to changes which are directly responsible for the migrant's state of poverty in Australia.

    ...

    
    

    It will be a question of fact in each case as to whether, at the time of the change relied upon under subs (7), the applicant retained a realistic choice as to whether to continue with the migration or not. The further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process. If he/she had not reached that stage then it could not be said that the person's poverty in Australia was attributable to the change, but rather to the decision to migrate notwithstanding the change.

    23. Mansfield J continued (at 159):

    In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s 739A(7) may operate. Earlier than that point, as Matthews J pointed out, any financial adversity in Australia due to a change of circumstances may well not be attributable to the change but due to the decision to migrate notwithstanding the change. ... It will then be a matter of applying s 739A(7) to the particular facts before the relevant decision maker.

24. In Ms Berthlmawos’ case, the SSAT made the same mistake although, as will appear from the discussion that follows, it is not material to my decision.

25. There are three matters relied on by Ms Berthlmawos to establish that she has suffered a substantial change in circumstances beyond her control. The first is that she expected her husband’s incapacity payments to resume on his return to Australia and that this would be their source of income. I am satisfied from Mr Nahkla’s evidence that he believed, for the reasons referred to above (see paragraph 12), that his payments would resume on his return to Australia and submitting a medical certificate to QBE. This had happened after a previous visit to Egypt in 2009. I accept that when QBE refused to reinstate his payments, he pursued this unsuccessfully with both QBE and WorkCover. That he has not pursued this by seeking advice from a solicitor should not in the circumstances be held against him when there is no evidence as to whether this might assist him in seeking a resumption of payments.

26. Secondly, Ms Berthlmawos has provided evidence that she is suffering from anxiety and depression, back pain and dental problems. Ms Martini submitted that there is a lack of medical evidence as to Ms Berthlmawos’ medical condition prior to her coming to Australia and that it is difficult to accept that Ms Berthlmawos’ anxiety and depression should have manifested as such a severe condition only in Australia.

27. In my view, it should be remembered that the Act is beneficial legislation and that Ms Berthlmawos is an unrepresented applicant from a non-English speaking background. She has provided a number of medical reports attesting to her condition since arriving in Australia. Her treating psychiatrist, Dr Anis, in a certificate dated 13 May 2013, states that he assessed Ms Berthlmawos at Blacktown Hospital on 17 October 2012 when she was pregnant. He saw her again on 29 April 2013 at the St John of God Hospital. Dr Anis states that Ms Berthlmawos:

    … has been diagnosed with Conversion disorder with recurrent episodes of convulsions. The initiation of the symptoms is preceded by conflicts or other stressors. The symptom [sic] causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

    In my opinion: Suzie Berthlmawos has complex Post Traumatic Stress Disorder and recurrent episodes of Conversion Disorder.

    She needs long term psychotherapy and rehabilitation to address the unresolved conflicts and improve her coping skills.

1. The Tribunal has also been provided with a copy of a prescription for Zoloft for Ms Berthlmawos, signed by Dr Anis and dated 29 April 2013. Ms Berthlmawos’ appointment with Dr Anis on 29 April 2013 was on a referral from her general practitioner, Dr Remon Botros, dated 15 March 2013. In his letter of that date, Dr Botros referred to Ms Berthlmawos’ “long history of depression and anxiety”. However, Ms Berthlmawos gave evidence that she had never previously been treated for anxiety and depression while living in Egypt and that her health problems began when her husband was not receiving any income after their arriving in Australia in August 2012. She said she became very stressed, especially when her husband received letters demanding payment of debts and threatening legal action.

2. I am satisfied from Ms Berthlmawos’ evidence that the onset of her anxiety and depression postdates her arrival in Australia and there is evidence of this in October 2012 when, on 17 October 2012, she was treated by Dr Anis at Blacktown Hospital. I also note that Ms Berthlmawos has been treated by a psychologist, Zeinab Allaw. In a report dated 20 May 2013, Ms Allaw states that Ms Berthlmawos was referred for treatment by her general practitioner. She states:

   On assessment, Mrs Berthlmawos presented with symptoms such as low mood, insomnia, irritability, and low self-esteem, lack of energy and motivation. Mrs Berthlmawos’ husband who accompanies her to all sessions, also reported that she suffers from bizarre delusions, and disorganised thinking, that may sometimes be accompanied by significant social and occupational dysfunction. He also stated that she sometimes have [sic] great difficulty to distinguish between what is real and unreal, think clearly, manage emotions, and relate to others. These obstacles are getting in Mrs Berthlmawos [sic] ability to function normally, which in return [sic] has made her dependent on the presence of her husband next to her all the time.

3. Ms Allaw said she is treating Ms Berthlmawos with Cognitive Behaviour Therapy. She recommended that Ms Berthlmawos “should avoid any stressful situation which may aggravate her fragile mental state”.

4. In addition to her mental health problems, Ms Berthlmawos said she is suffering from back pain and aching, and dental problems. The latter is referred to in a letter from her general practitioner, Dr Quach, dated 20 April 2013. Dr Quach states that Ms Berthlmawos “is receiving medical treatment for recurrent tooth aches/poor dental status needing dental review as soon as possible”. While I accept that this is the case, I do not regard these physical problems as sufficient in themselves to establish a substantial change in circumstances.

5. The third matter relied on by Ms Berthlmawos is financial hardship. She is reliant for financial support on Mr Nahkla who is currently receiving Parenting Payment Partnered, Family Tax Benefit and Baby Bonus. Payments of Baby Bonus, which was first paid on 23 January 2013 (albeit with a back payment covering the period since their child was born in November 2012), will cease shortly. Mr Nahkla also fully owns his own home. He gave evidence about his borrowings from his niece and about the medications he needs to buy for himself, his wife and their baby. I am satisfied that notwithstanding that Mr Nahkla has some limited social security income and owns his own home, he and his wife are in financial hardship.

6. I am satisfied from the evidence discussed above that Ms Berthlmawos has suffered a substantial change in circumstances beyond her control since arriving in Australia. That substantial change comprises the change in Mr Nahkla’s financial circumstances as a result of his being denied a resumption of ongoing workers compensation incapacity payments on his return to Australia - Ms Berthlmawos being totally dependent on her husband for financial support - and the mental health problems suffered by Ms Berthlmawos.  I am satisfied that these changes were substantial in nature and beyond their control. Thus, s 739A(7) of the Act applies in Ms Berthlmawos’ case and she is not, therefore, subject to the newly arrived resident’s waiting period at the time she lodged her claim for special benefit. As stated above, the Secretary accepts that Ms Berthlmawos was otherwise qualified for special benefit at the date she lodged her claim.

   DECISION

7. The decision under review is set aside and a decision substituted that Ms Berthlmawos was not subject to the newly arrived resident’s waiting period at the time she lodged her claim for special benefit and, consequently, she is entitled to payment of special benefit.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

............................[SGD]................................

Associate

Dated  4 July 2013

Date(s) of hearing	28 June 2013
Date final submissions received	28 June 2013
Applicant	In person
Advocate for the Respondent	K Martini
Solicitors for the Respondent	Program Litigation and Review Branch, Department of Human Services