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

Taylor and Secretary, Department of Social Services (Social services second review) [2021] AATA 3130 (31 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8280
Re:Jackson Taylor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

File Number(s): 2020/8561
Re:Luca Taylor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:31 August 2021
Place:Sydney

The decision under review is affirmed.
.....................[sgd] .....................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Special Benefit Payment – where mother has applied on behalf of her children – whether applicants are eligible for special benefit payment – social security pension or other social security benefit is payable – applicant’s mother not unable to earn a sufficient livelihood due to age, physical or mental disability or domestic circumstance or any other reason – not suffering financial hardship through circumstances beyond applicants’ mother’s control – whether applicant is a full time student and not a SpB homeless person – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 729, 737 and 739
Social Security (Administration) Act 1999 (Cth) sch 2
CASES
Mokofisi and Department of Family and Community Services [1999] AATA 442
Re Te Velde and Director General of Social Services [1981] AATA 87
SECONDARY MATERIALS
A guide to Australian Government Payments (1 July – 19 September 2020): Security Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
31 August 2021

Ms Janina Taylor (the Applicants’ mother) is the mother of two minor children, Jackson (born 2012) and Luca (born 2015). On their behalf, on 11 August 2020, the Applicant’s mother lodged claims for payment of Special Benefit (SpB).
That claim was rejected by the Secretary, Department of Social Services (the Respondent) in two separate decisions on 13 August 2020 (re Jackson) and 14 August 2020 (re Luca). The Respondent’s decisions were affirmed by an Authorised review Officer (ARO) of the Department on 1 September 2020.
The Applicants’ mother sought to have that decision reviewed by the Social Services and Child Support Division of this Tribunal (AAT1) which, on 23 November 2020, affirmed the rejection decision made by the ARO.
On 3 December 2020, the Applicants’ mother sought to have that decision reviewed in this Tribunal which heard the matter on 20 August 2021. The hearing was conducted by telephone due to limitations imposed by the Tribunal’s COVID-19 protocols and in accordance with the Applicants’ mother’s preferred method of conduct.
It should be noted that the Applicants’ mother has several other related matters pending for resolution elsewhere in this Tribunal regarding other social service entitlements but in these proceedings the question of eligibility for SpB is the only matter for consideration.
LEGISLATIVE FRAMEWORK: SPECIAL BENEFIT
SpB is a payment of last resort, made available to an applicant where no other form of social service benefit appears available or appropriate. It is also highly discretionary in that the Secretary (or alternate decision-maker) has to be satisfied of a number of conditions, some of which are not defined in any precise form.
Payments are made under section 729 of the Social Security Act 1991 (Cth) (the Act) which provides:
(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.
Note: Special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).
(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
The rate at which SpB is paid is set out in the Social Security Guide (the Guide), specifically at section 5.1.6.10 as follows:
…The rate of SpB is a discretionary rate. However, the rate of SpB cannot exceed the rate of JSP [Jobseeker Payment], YA [Youth Allowance] or Austudy that would be payable to the person if they were qualified…
The date on which SpB calculations must be made is the date of the lodgement of the claim as specified by clause 3 of schedule 2 to the Social Security (Administration) Act 1999 (Cth).[1] Accordingly, any calculations of SpB must be on the basis of the Applicants’ and their mother’s position on 11 August 2020.
[1] Clause 4 schedule 2 of the Social Security (Administration) Act 1999 (Cth) which provides a qualification period of 13 weeks from the date of lodgement does not apply to special benefit payments.
Subsection 737(1) of the Act limits the payment of SpB where applicants are above a certain age or enrolled in full-time education or vocational training:
(1)Subject to subsection (3), a special benefit is not payable to a person:
(a) who has turned 18; or
(b) who satisfies both of the following:
(i) the person has not turned 16; and
(ii) the person is not a SPB homeless person;
if the person is enrolled in a full-time course of education or of vocational training.
This in turn takes consideration to section 739 of the Act which provides a definition of “SPB homeless person” to mean:
(a) the person is not a member of a couple; and
(b) the person does not have a dependent child; and
(c) the person meets the conditions in subsection 1067A(9) (which is about being independent).
At this stage it is necessary to record that the Applicants’ mother is not an Australian citizen but rather a New Zealand citizen who holds a special category visa available to New Zealanders resident in Australia. She is a single parent who has custody of the two minor children, both of whom (via their father) are Australian citizens.[2]
[2] The question of the Applicant’s residential status and hence her eligibility for other social security payments is one of the other matters elsewhere in consideration before this Tribunal.
This enlivens the provisions of section 3.7.2.80 of the Guide which provides (inter alia):
“In certain circumstances, SpB may be paid to a child under 16 years who is an Australian citizen or the holder of a permanent visa, who resides in Australia, but whose custodial parent or guardian is not a permanent resident of Australia (1.1.A.320) and is therefore precluded from receiving any social security payment.
SpB can ONLY be paid if the family is in genuine hardship and it has been established that the parent/s or guardian has no means of adequately supporting the child. Such cases should be considered on their merits and referred to a social worker.”
The Respondent accepts that the children are Australian citizens in the custody of a non-permanent resident but that, given the Applicant’s mother’s status as the holder of a special category visa, she is eligible for payment of some Australian social security benefits.[3]
THE APPLICANTS MOTHER’S INCOME/AVAILABLE FUNDS
[3] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [34]-[35].
Social Security payments
With respect to Social Security payments, the Applicants’ mother:
·was qualified for Newstart Allowance (now Jobseeker Payment) as from 8 October 2020;[4]
·receives Family Tax Benefit (FTB) for her two children and, as of 11 August 2020 this was paid at the rate of $239.12 per fortnight;[5]
·received a one-off payment of FTB arrears on 22 July 2020 (for the 2019-2020 FY) in the sum of $2,262.45; and
·also received two payments (3 April and 17 July 2020) of $750.00 as emergency COVID-19 payments.
[4] The date of this eligibility is a matter elsewhere in consideration before this Tribunal.
[5] Attachment A to the Respondent’s SFIC. The figures of $302.12 given in the AAT1 decision (at [7]) is incorrect.
Child Maintenance
The Applicants’ mother receives child maintenance/support payments from her former partner which, at the time of the application being lodged (the relevant time), amounted to $727.92 per fortnight.[6]
[6] This amount varies: T-docs at 133 but the figure in the Respondent’s SFIC [69(1)] of $967.04 is incorrect.
Termination payment
On 11 July 2019 the Applicants’ mother received a termination payment from her previous employer in the sum of $113,166.88. Although the Employment Separation Certificate shows a payment of $120,341.68, it is the former figure which the Tribunal accepts was paid into the Applicants’ mother’s bank account.[7]
[7] Attachment B to the Respondent’s SFIC.
The position of the Respondent is that receipt of this payment rendered the Applicants’ mother ineligible to receive Newstart Allowance until an income maintenance (preclusion) period had expired after that date. The Respondent maintains that this properly resulted in the Applicants’ mother being paid Newstart/Jobseeker as from 8 October 2020.
This matter was considered by a separate AAT1 hearing (not the matter now before this Tribunal for review) which determined that, for the purposes of calculating the income maintenance period, the sum received by the Applicants’ mother should be assessed as being $102,638.95. This figure was derived from allowing a deduction of $17,702.73 from the nominal $120,341.68 as necessary and unavoidable payment of a car lease.[8]
[8] AAT1 Decisions (14 September 2020) at [15].
This determination was remitted to the Respondent to recalculate the income maintenance period accordingly. This in turn led to the determination that the income maintenance period concluded on 1 August 2020 and hence, as at 11 August 2020 the Applicants’ mother was eligible to be paid the one-off (six month) Newstart/Jobseeker payment.
This Tribunal is not required to determine matters in relation to the income maintenance period but does note that the Applicants’ mother had a very strong argument in support of the proposition that the available funds figure should have been calculated by deducting the car lease payments from the actual sum received ($113,166.88) rather than the nominal sum ($120,341.68).
A final determination of this matter rests now with another Member of this Tribunal.
RESPONDENT’S FURTHER POSITION
Regardless of these dates, the Respondent asserts that the Applicants’ mother had access to a certain level of funds which were available for the support of her children as of the date of her application.
The Notes made by the ARO on 1 September 2020 include the following:
“The information that Janina Taylor provided to us on 13 August 2020 shows that she has funds totalling $158,368.85 available to her, albeit held in her two home loan accounts.”[9]
[9] Tribunal documents (T-documents) at 86.
The “albeit” references a prior comment in the same Notes to the effect that:
“Janina stated that she does not have access to the funds in her home loan account.”[10]
[10] Ibid at 85.
The Respondent is particularly critical of the way in which the Applicants’ mother disposed of some of the funds which she had received by way of her termination payment. In particular, the Respondent contends that repayment of some $80,000 to her mother for a loan made five years previously (from 14 July 2020)[11] and deposits (totalling some $34,000) into her two home loan accounts were payment which were not reasonable nor unavoidable at the time and given the circumstances. It is the Respondent’s contention that the Applicants’ mother should have been more careful with the management of her funds in the preclusion period before she became eligible for Jobseeker payment.[12]
[11] Respondent’s SFIC at Attachment C. The SFIC at [46] is seriously in error in describing this as “a loan made 25 years ago”.
[12] Respondent’s SFIC at [45]-[51].
The question of what funds were available to the Applicants’ mother at the relevant time is contested. The ARO has noted an amount of $158,368.85 however the Applicants’ mother told the AAT1 that, for a variety of reasons, the correct amount was in the order of $30,000. This was explained on the basis that the larger sum was actually a loan which had been taken out for house renovations which had not proceeded when the Applicants’ mother and her partner separated.[13]
[13] T-documents at 5, AAT1 decision at [8].
The Respondent has calculated that of the $113,166.88 available to the Applicants’ mother by way of termination payment, some $44,673.84 was spent until the date of application as “reasonable costs of living and unavoidable or reasonable expenditure”.[14] This left a balance of $68,493.04 which it deemed to be “available funds when applying the relevant available funds test.”[15]
[14] Respondent’s SFIC at [49].
[15] Ibid at [50].
The reduction of the funds available to the Applicants’ mother at the time of her SpB application triggers consideration of the difference in the SpB system between the “short term funds available test” and the “long term funds available test”.
The Assessment of SpB claims provisions at 3.7.1.30 of the Guide relevantly, state:
“The delegate must consider the following factors when making a decision about SpB:
·the intention of the SpB legislation
·ability to earn a sufficient livelihood
·circumstances which have led to the hardship
·other reasonable means of support
·social worker involvement
·the available funds test, and
·the income test.
…
Circumstances leading to hardship
SpB is only payable where a person is unable to earn sufficient livelihood. The person’s circumstances must be carefully considered to determine whether their inability to earn a sufficient livelihood was unavoidable or reasonable or whether they have placed themselves in financial hardship by:
·persevering with an unprofitable business venture
·spending their money on unnecessary items, or
·disposing of money, by gifting or other means without adequate return.
SpB should NOT be paid if the delegate believes the person could have avoided the situation of financial hardship.
…
Deemed available funds
The amount of expenditure that was neither unavoidable nor reasonable should be deemed to be available funds and the delegate should include the deemed amount when applying the relevant available funds test.
Example: If a person unnecessarily spends $3,000, leaving them with $2,500 in available funds, then the amount of available funds held by the person should be deemed to be $5,500.
Exception: The delegate may choose not to deem all or a portion of a person’s expenditure that was neither unavoidable nor reasonable as available funds if there are compelling reasons to exclude this expenditure taking into account the individual circumstances of the person.”
Sections 3.7.1.60 and 3.7.1.70 deal with short and long term available funds testing with reference to “liquid funds”.
In brief, the short term funds test applies to people who are in immediate short term need of support. If a person’s available funds “when the person has no exceptional or unforeseen expenses” are “EQUAL to or LESS than the equivalent of 2 weeks SpB plus FTB at the maximum applicable rates” then they are eligible for payment. If their funds exceed this amount, they are subject to a potential preclusion period before SpB can be paid. If the preclusion period would be in excess of 4 weeks, then SpB is no longer payable.
Long term funds are related to where a person is in long term need of benefit and a specific example is given of “an Australian citizen child in the custody of a non-permanent resident.” SpB is specifically not payable, regardless of partner status or number of children where a person’s available funds are more than $5,000.
While this would imply that the Applicants’ mother would be assessed for long term benefits, the only period which is relevant is that between 11 August 2020 (when the application was lodged) and 8 October 2020 (when the Applicants’ mother started to receive Jobseeker payments). This would clearly lead to a conclusion that the relevant assessment would be in terms of short term benefits only.
DISCUSSION
SpB is a discretionary payment which can only be paid when:
·no other social security payments can be paid to the person; and
·the person is in financial hardship through circumstances which are beyond their control pursuant to section 729 of the Act.
In respect of the first of these criteria, the Applicants’ mother was eligible for payment of Jobseeker allowance as at 11 August 2020 but was not in receipt of such a payment because she was precluded from receipt of payment as a result of her termination payment of 11 July 2019.
This leads to the uncomfortable conclusion that “a social security pension” was payable at the relevant time but was not being paid, for a proper reason (the preclusion period).
As noted, there is a dispute between the parties as to the date when that preclusion period should have ended; the Respondent claims that to be 8 October 2020 whereas the AAT1 found it to be 1 August 2020. The matter remains unresolved and is currently before another member of this Tribunal for determination.
As from 8 October 2020 the Applicants’ mother was paid Jobseeker allowance, as a one-off payment for six months (COVID-related) and hence ceased to be eligible for SpB at that date. In the event that the Tribunal elsewhere upholds the Respondent’s position, then at the very best the Applicants’ mother would have been denied a social security payment for only the period between 11 August 2020 and 8 October 2020.
The second leg of the eligibility criteria is that the Applicants’ mother was in financial hardship through circumstances beyond her control. The Respondent’s position on this has been outlined above and amounts to saying that the Applicants’ mother mismanaged her financial resources after receipt of the termination payment in a way which, if leading to financial hardship, led there by virtue of her own decisions and not as a result of circumstances beyond her control.
The Respondent has concluded that the “deemed” amount of money available to the Applicants’ mother for her care and maintenance and that of her children, at the time of her application, was $68,439.04.
Paragraph 729(2)(e) of the Act also requires a decision-maker to be satisfied that an applicant “is unable to earn a sufficient livelihood for the person and the persons dependents (if any) because of age, physical or mental disability or domestic circumstance or for any other reason”.
There is no suggestion that the Applicants’ mother suffers any physical or mental disability.
No “domestic circumstances” have been advanced as to preclude the Applicants’ mother from earning a living (accepting the immediate constraints of the COVID-19 pandemic).
Although the term “any other reason” may be seen as particularly expansive, in Re Te Velde and Director General of Social Services the Tribunal made it clear that any consideration of “any other reason” would need to link that reason to the “circumstances by reason of which the applicant satisfied the precondition.”[16]
[16] [1981] AATA 87 at [49].
The Applicants’ mother, at the relevant time was in receipt of FTB ($239.12 per fortnight) and child support ($727.92 per fortnight). In addition, she had received FTB arrears ($2,262.45) and two COVID-related Economic Support Payments ($1,500). Finally, she had access to savings, although the amount of those savings is a matter of significant dispute between the parties and cannot be determined by this Tribunal.
RESPONDENT’S FURTHER SUBMISSIONS

The Tribunal takes note of the Respondent’s further submission that, in the event of the Applicants’ mother’s circumstances (and through her, the circumstances of the Applicants) having been found qualified for SpB, that benefit would still not have been paid in relation to the elder child, Jackson.
As Jackson (then aged 8 years) was at school in August 2020,[17] he must be taken to be “enrolled in a full-time course of education” [18] and there is no evidence that, at that time he was “a SpB homeless person”. The Applicant’s Claim for SpB shows that the child was residing with his parent “in a home”.[19] Jackson thus fails to meet the requirements set out in section 737 of the Act and could not have been granted SpB.
[17] T-documents at 46.
[18] Mokofisi and Department of Family and Community Services [1999] AATA 442 at [33].
[19] T-documents at 41.
The Respondent has made a calculation as to any potential SpB entitlements for Luca, being aged 5 years at the time, and not in school, according to oral evidence given by the Respondent at the hearing.[20] As the younger child, the rate of SpB for Luca would have been $612 per fortnight[21] from which deductions must be made to accommodate the payment of both FTB and Child Support assistance[22] which would reduce Luca’s eligibility rate to $128.48 per fortnight.
[20] Respondent’s SFIC at [39]-[42].
[21] The single rate with dependent child for Jobseeker recipient.
[22] Respectively $239.12 and $727.92 per fortnight for both children, hence $483.52 per child.
The sheer complexity of matters arising in SpB decisions is illustrated by the fact that the Respondent takes it as appropriate to calculate a rate for Luca as per the guidelines established in the Guide to Australian Government Payments[23] rather than to rely on the advice in the Social Security Guide, which at 5.1.6.10 excludes from payment of SpB applicants who are not otherwise qualified for Jobseeker, Youth Allowance or Austudy, none of which would have been available to Luca.
[23] A guide to Australian Government Payments (1 July – 19 September 2020) at 32: >
The Tribunal finds no basis for other than accepting the Respondent’s submissions in regard to both children.
CONCLUSIONS
It is perhaps unfortunate that the various matters concerning the Applicants’ mother, namely issues of her residency status, the income maintenance period and the SpB claim, were not all heard together given the degree to which they are inter-linked.
However, the Respondent put to the Tribunal that whatever the determinations made in relation to the first two matters, the issues in relation to the eligibility for SpB would remain the same. That may well be the case.
SpB requirements are such that where a person is eligible for another social security payment; where they are unable to earn and sufficient livelihood (for themselves and their dependents) and cannot demonstrate that they are in financial hardship through circumstances beyond their control, such payments cannot be made.
The Applicants’ mother was eligible for another social security payment at the time of making her application, albeit it was a one-off, unusual and emergency payment made in relation to the COVID-19 crisis. The application thus falls at that hurdle.
Additionally, the Applicants’ mother had access to certain liquid funds, although to exactly what extent is unknown and open to dispute. It appears that even with the benefit of the doubt extended to the Applicants’ mother in terms of what was appropriate expenditure from her termination payment, her deemed available funds would have precluded her from accessing SpB. The application must also fall at this hurdle.
In any event, even if the Applicants’ mother had qualified for SpB consideration, the circumstances of Jackson are such that he would not have been eligible because he was in full-time education and was not homeless.
In relation to Luca, he may have been eligible depending on what exceptions may have been found so as not to apply the obvious provisions of section 5.1.6.10 of the Guide. In the event, his rate of payment would have been $128.48 per fortnight and would have been payable only between 11 August 2020 and 8 October 2020. That is a period of 4 fortnights (8 weeks + 2 days) so that total sum in question would have amount to somewhere in the vicinity of less than $520.00.
Even such a small amount would, no doubt, have been of assistance to a single parent with two young children to support.
It cannot but be noted that the Commonwealth’s costs in litigating this matter would have far exceeded $520.00.
The Applicants’ longer-term position will be more affected by the decisions being made elsewhere in this Tribunal regarding the other matters in dispute which may resolve in their mother’s favour. In the event they do not, there may be an avenue open for the Applicants to reapply for SpB given that the Applicants’ mother may not be eligible for any other social security benefit with the withdrawal of the special Jobseeker payments which were available to her in August 2020.
DECISION
The decision under review is affirmed.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.....................................[sgd]...................................
Associate
Dated: 31 August 2021

Date(s) of hearing: 20 August 2021

Advocate for the Applicant: Ms J Taylor

Solicitors for the Respondent: Ms E Ulrick, Services Australia

[2021] AATA 3130

31 August 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Standing

Statutory Construction

Remedies

Procedural Fairness

Date(s) of hearing:	20 August 2021
Advocate for the Applicant:	Ms J Taylor
Solicitors for the Respondent:	Ms E Ulrick, Services Australia