Tey and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 773
•1 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 773
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5120
GENERAL ADMINISTRATIVE DIVISION ) Re KOK YONG TEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member C R Walsh Date1 November 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
……….(sgd) C R Walsh..........
Senior Member
CATCHWORDS
SOCIAL SECURITY – sickness allowance – applicant claimed sickness allowance – applicant qualified for sickness allowance – whether sickness allowance payable to applicant – assets test – market value of vacant land – value of applicant’s assets exceeded ‘assets value limit’ – sickness allowance not payable to applicant – backdating start day for payment of sickness allowance - applicant’s claim for sickness allowance correctly rejected – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – section 11- section 666 – section 680 – section 1118
Social Security Administration Act 1999 (Cth) – section 36 – section 37- section 41 – section 42 – section 137 - Schedule 2, clauses 3 and 11CASES
Spencer v Commonwealth (1907) 5 CLR 418
Abrahams v Federal Commissioner of Taxation (1944) 70 CLR 23
Brisbane Water County Council v Commr of Stamp Duties (NSW) 80 ATC 4051REASONS FOR DECISION
1 November 2011 Senior Member C R Walsh Introduction
1. Mrs Tey has chronic degenerative disease of the right knee which causes her pain. This condition is gradually worsening with time and is permanent. Mrs Tey also has a right shoulder ‘supraspinatus’ tendon tear which causes her pain and a limited range of movement in the right shoulder. This condition is temporary. She is under specialist care in relation to both medical conditions.
2. Mrs Tey’s medical conditions have rendered Mrs Tey unfit for work. Most recently, Mrs Tey worked as a travel agent but she has also worked as an accountant.
3. For this reason, on 11 January 2010 Mrs Tey lodged a claim for sickness allowance (SA) with Centrelink.
4. On 15 February 2010 Centrelink wrote to Mrs Tey requesting additional information (specifically, documents) about her claim. That request included notice that she needed to return the relevant documents, or contact Centrelink, within 14 days to avoid her claim being rejected.
5. On 3 March 2010 Centrelink rejected Mrs Tey’s claim for SA as she had not lodged all required documentation, as requested. Mrs Tey subsequently lodged a Mod R “Real Estate Details” form with Centrelink.
6. On 17 March 2010 Mrs Tey was advised by Centrelink that her claim for SA had been rejected because the value of her assets was above the allowable limit.
7. Mrs Tey asked for a review of that decision and on 25 March 2010 a Centrelink Authorised Review Officer (ARO) affirmed the decision.
8. On 19 April 2010 Mrs Tey applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision of 25 March 2010. On 19 October 2010 the SSAT affirmed the ARO’s decision.
9. On 23 November 2010 Mrs Tey applied to this Tribunal for a review of the SSAT’s decision of 19 October 2010.
10. Mrs Tey has previously lodged a claim for SA on 19 May 2009 which was rejected by Centrelink on 9 June 2009. That decision was subsequently reviewed and affirmed by: (i) an ARO on 1 July 2009; (ii) the SSAT on 16 October 2009; and (iii) this Tribunal on 4 May 2011. In each case, it was found that Mrs Tey’s claim for SA in May 2001 was correctly rejected as her assets exceeded her “assets value limit” at that time: see Tey and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 294.
Procedural History of Mrs Tey’s Application
11. As noted above, on 23 November 2010 Mrs Tey lodged her application for review of the SSAT’s decision (dated 19 October 2010) with the Tribunal. On 16 December 2010, the parties attended their first directions hearing at the Tribunal. No directions were made at that directions hearing. The parties then attended a conference, before a Tribunal Conference Registrar, on 12 April 2011.
12. The matter was then listed for a telephone directions hearing on 16 June 2011 to provide a review of the progress of Mrs Tey’s application and to determine the next steps that should be taken.
13. Mrs Tey wrote to the Tribunal on 14 June 2011 objecting to a telephone directions hearing being held on 16 June 2011 on the following three grounds:
“(1)(a) It was made without consultation with me; (b) knowing that it was not my preference; and (c) against the decision of the Conference Registrar Ms Rowena Hodgson made on the 12 April 2011.
(2) It was made against procedural fairness. I am asking for advice on Social Security appeals, and I understand that I can have one free interview. Please make those arrangements for me, and have someone who is conversant with the Social Security Law relevant to my case.
(3)(a) On medical grounds:
I am on sick leave to 31 July 2011, a medical certificate has been forwarded to your Tribunal. I had been and currently under orthopaedic specialist care at Fremantle Hospital as an outpatient since March 2009. A MRI Scan had been Scheduled for my right knee tomorrow at Fremantle Hospital, and an appointment will be made for me then after with a specialist to review this Scan.
I have a second MRI Scan scheduled for my Right shoulder on 4 July 2011, and an appointment will be made then after with a specialist to review this Scan.
(b)On the grounds that I have three court cases current and to be heard and given reasonable time by the courts for the preparation to be heard:
(i)City of Gosnells v Tey in the Magistrates Court.
(ii)Tey v Daniel Martin Plotz in the Supreme Court of Appeal (represented).
(iii)Tey v Carpenter in the Supreme Court, which is the last to be heard on 5 September 2011.”
14. Despite Mrs Tey’s objections, Deputy President Hotop decided it was appropriate to proceed with the telephone directions hearing on 16 June 2011. At that telephone directions hearing (in which Mrs Tey did not participate as she was unable to be contacted by the Tribunal), Deputy President Hotop made directions that, inter alia:
“2.On or before 23 June 2011 the parties file with the Tribunal, and exchange, Hearing Certificates indicating any dates in September and October that will be unsuitable for a hearing in this matter.
…………………..
4.On or before 26 August 2011, the applicant file with the Tribunal all of the evidence on which she proposes to rely at the hearing, and serve a copy on the respondent.
5.The matter be listed for hearing as early as practicable in the period September-October 2011.”
15. Mrs Tey did not provide a hearing certificate to the Tribunal by 23 June 2011 (as required by Direction 2 above), nor did she ask for an extension of time within which to do so. In addition, Mrs Tey failed to comply with Direction 4 above.
16. The District Registrar subsequently listed the matter for hearing on 7 October 2011 in accordance with the Tribunal’s Listing and Adjournment Practice Direction, issued by the Tribunal’s President, Justice Downes, on 19 April 2005 (and effective 1 May 2005).
17. Mrs Tey then wrote to the District Registrar on 29 June 2011 objecting to the matter being listed for hearing on 7 October 2011 on the basis that her matter was not ready for hearing.
18. On 13 July 2011 the Tribunal’s President wrote to Mrs Tey addressing her complaints. At the conclusion of that letter, the President stated:
“If you believe the directions that have been made by Deputy President Hotop should be varied or the proposed hearing date should be vacated, you will need to make that request to the Tribunal. You will need to explain why you are seeking these changes. The Tribunal is likely to hold a further directions hearing to deal with your request and will then make a decision as to whether any change should be made.
You have requested in your letter of 29 June 2011 that a new directions hearing be held after 5 September 2011. I do not believe it would be appropriate to wait until after that date to deal with these matters. You should make any request as soon as possible.”
19. On 25 August 2011, Mrs Tey wrote to the Tribunal requesting that the hearing date of 7 October 2011 be changed to a directions hearing (i.e. that the hearing on 7 October 2011 be vacated) on medical grounds. Enclosed under cover of that letter were medical certificates for Mrs Tey covering the period from 2 July 2011 to 31 December 2011 and copies of the MRI scans she had on 15 June 2011 and 4 July 2011 in support of her application for adjournment. However, Mrs Tey did not provide any evidence that she would be unavailable (for example, due to a medical appointment or other medical reasons) for the hearing on 7 October 2011.
20. On 1 September 2011 Mrs Tey wrote to the District Registrar (copying in the President) again requesting to change the hearing date of 7 October 2011 on medical grounds.
21. On 12 September 2011, the District Registrar advised the parties that he had listed the matter for a telephone directions hearing on to discuss the following matters:
“1. The Applicant’s request to vacate the hearing listed on 7 October 2011.
2. The possibility the hearing could be held “on the papers”.
3.The Applicant’s non-compliance with the Tribunal’s directions of 16 June 2011, requiring Mrs Tey to file by 26 August 2011, all evidence in which she intends to rely at the hearing.”
22. On 15 September 2011, Mrs Tey wrote to the Tribunal objecting, amongst other things, to a directions hearing being held by telephone and to the assertion that her application could be held “on the papers”. In that letter, Mrs Tey also stated that “there is no reason that a directions hearing be listed prior to 7 October 2011 at which date I requested that it be changed to a directions hearing, and you have been forwarded medical evidence on 1 September 2011 in support of my request.”
23. On 22 September 2011, a directions hearing was held at the Tribunal (i.e. not by telephone) which was attended by both parties. At that directions hearing, Mrs Tey requested that her case be remitted to the SSAT for reconsideration on the basis that she did not attend the hearing before the SSAT and because she did not know what evidence the SSAT had based its decision on. The Tribunal sought to explain to Mrs Tey that the SSAT, like the Tribunal, was empowered to hear an application in the absence of a party provided that the party had received reasonable notice of the hearing. The Tribunal also explained to Mrs Tey that its discretion to remit a matter was limited under section 42D(1) of the Administrative Appeals Tribunal Act1975 (AAT Act) to remittal to “the person who made it”, in this case Centrelink (and not the SSAT). The Tribunal directed Mrs Tey to paragraphs 17 to 23 of the SSAT’s Reasons for Decision, which set out the evidence upon which it relied in reaching its decision.
24. At the 22 September 2011 directions hearing Mrs Tey also argued that the section 37 (or ‘T’ documents), which had been prepared by the respondent for the purpose of Mrs Tey’s review application, were somehow defective. The Tribunal drew Mrs Tey’s attention to the Tribunal’s Practice Direction relating to Section 37 of the Administrative Appeals Act 1975 (issued by the Tribunal’s President on 26 March 2007) which, amongst other things, provides that the decision-maker (in this case, Centrelink) must lodge with the Tribunal:
·“a legible copy of every other document or part of a document that:
- is in the decision-maker’s possession or under the decision-maker’s control; and
- is relevant to the review of the decision.”
25. The Tribunal also pointed Mrs Tey, at the 22 September 2011 directions hearing, to section 33(1AA) of the AAT Act which imposes an obligation on the decision-maker (Centrelink) to assist the Tribunal in all aspects of its review function which includes proper preparation of the section 37/‘T’ documents including the provision to the Tribunal of all documents relevant to the review application before it. On this basis, the Tribunal told Mrs Tey that it had to assume that the ‘T’ documents, which had been prepared by the Centrelink for the purposes of her application, were in order, unless Mrs Tey could prove otherwise. Despite this, Mrs Tey persisted with her argument that the section 37/’T’ documents incomplete, asserted that Centrelink was “in breach” of section 33(1AA) of the AAT Act and that it was trying to mislead the Tribunal. Mrs Tey was invited by the Tribunal to explain what documents she considered were missing from the section 37/‘T’ documents. In summary, Mrs Tey’s desire was that her entire Centrelink file should form part of the evidence before the Tribunal. Centrelink’s representative objected to this on the grounds of relevancy. Mrs Tey also requested that Centrelink provide copies, off their computer system, of quarterly asset limit test scales covering the period 17 January 2009 to 31 December 2011. It became apparent that the reason for this request was that Mrs Tey believes she is entitled to SA retrospectively with effect from 17 January 2009. Centrelink’s representative objected to this request on the grounds of relevancy.
26. Finally, at the 22 September 2011 directions hearing Mrs Tey maintained her application to have the hearing date of 7 October 2007 vacated. Having considered the submissions from both parties the Tribunal made directions (on 22 September 2011) which included the following:
“1.On or before 6 October 2011, the Applicant is to file with the Tribunal and serve a copy on the Respondent any evidence upon which the Applicant intends to rely at the Hearing.
2. The Hearing listed for 7 October 2011 is not to be vacated and is to proceed.”
27. In making Direction 2 (above), the Tribunal commented that given the procedural history of the matter it considered that Mrs Tey had been given a reasonable opportunity to prepare her case and that, based on the submissions of both parties, it could find no compelling reason that the hearing should not proceed, as listed. The Tribunal also referred to the President’s Listing and Adjournment Practice Direction.
28. Another directions hearing was held on 5 October 2011 to, in particular, further ventilate Mrs Tey’s concerns regarding the section 37/‘T’ documents which had been prepared by the respondent for the purposes of this application. After approximately two hours and fifteen minutes Mrs Tey maintained that the section 37/‘T’ documents were incomplete and that Centrelink was in breach of section 33(1AA) of the AAT Act. Mrs Tey also persisted with her request to have the hearing on 7 October 2011 vacated. Unconvinced that the section 37/’T’ documents were wanting in any way and convinced that Mrs Tey had a fair and reasonable opportunity tom prepare for her case, the Tribunal advised the parties that the hearing would proceed, as listed, on 7 October 2011.
Is Sickness Allowance Payable to Mrs Tey?
29. Division 1 of Part 2.14 of the Social Security Act 1991 (SSA) sets out qualification for and payability of SA.
30. Section 666 of the SSA outlines the qualification criteria for SA. Mrs Tey’s qualification for SA under section 666(1) of the SSA on 11 January 2010 (being the date on which she claimed SA from Centrelink) is not in dispute. In support of her claim for SA, Mrs Tey provided Centrelink with a Centrelink Medical Certificate form Dr G Balint, dated 3 December 2009, which stated that Mrs Tey “is/has been unfit for work/study from 22/11/09 to 10/3/10 inclusive.” In addition, Mrs Tey provided Centrelink with a Statutory Declaration, dated 11 January 2010, which attached Medical Certificates for Mrs Tey for the period from 17 January 2010 to 10 March 2010.
31. It is also not disputed that when Mrs Tey claimed SA on 11 January 2011 she was divorced (i.e. she was not ‘partnered’ for social security purposes).
32. The central issue for determination in this case is whether SA was ‘payable’ to Mrs Tey when she lodged her claim for SA on 11 January 2010.
33. Section 680(1) of the SSA states that SA is not payable to a person if the value of the person’s assets exceeds the person’s “assets value limit”. Section 680(3) of the SSA provides:
“(3)A person’s assets value limit is worked out using the following Table: work out which family situation applies to the person; the assets value limit is the corresponding amount in column 3.
Assets value limit table Column 1 Column 2 Column 3
Assets value limitItem Person’s family situation Column 3A
Either person or partner homeownerColumn 3B
Neither person nor partner homeowner1. Not member of a couple $110,750 $190,250 2. Partnered (partner getting neither pension nor benefit) $157,500 $237,000 3. Partnered (partner getting pension or benefit) $78,750 $118,500
34. Importantly, Note 5 to section 680(3) of the SSA states that the assets value limits of items 1 and 3 in column 3A and item 3 in column 3B are indexed annually in line with CPI increases: sections 1191 to 1194 of the SSA.
35. The Supplementary ‘T’ documents (ST 22) contain a copy of a Centrelink publication entitled “A guide to Australian Government payments”, dated 1 January to 19 March 2010. The “Australian Government payments” covered in that publication include SA. In relation to SA, that publication provides:
“ Sickness Allowance (SA)
Basic conditions of eligibility
§Aged 21 or over but under age pension age, and
§Temporarily incapacitated for work (or full-time study and on Austudy or ABSTUDY).
§Must have a job or full-time study to which they can return.
§A medical certificate from a qualified medical practitioner must be supplied.
§Not payable to Youth Allowance recipients who become incapacitated for study.
Residence requirements
§Must be an Australian resident.
§Available to newly arrived migrants after 104 weeks in Australia as an Australian resident (some exemptions may apply).
§May be paid for up to 13 weeks of a temporary absence from Australia in certain limited circumstances.
Basic rates
§Single: see Newstart Allowance (page 21).
§Partnered: see Newstart Allowance (page 21).
§Pharmaceutical Allowance is paid. See Chart H (page 27).
Rent Assistance
§See Newstart Allowance (page 21).
Income test
§See Chart D (page 30).
Assets test
§See Newstart Allowance (page 21).”
36. The sub-heading “Assets test”, under the heading “Newstart Allowance”, contains the following information:
“ Assets test
§Homeowners see Chart A (page 28).
§Non-homeowners see Chart B (page 28).
§Payment may be deferred when liquid assets exceed $5500 (single) or $11 000 (couple or single with dependants).
§Hardship provisions may apply.”
37. Chart A (page 28) states:
“ Chart A – Assets test for homeowners
Family situation For full pension/allowance* For part pension#+
Single**
up to $178 000
less than $626 000
Partnered (combined)
up to $252 500
less than $928 000
Illness separated couple (combined)
up to $252 500
less than $1 148 500
One partner eligible
up to $252 500
less than $928 000
…
*Assets over these amounts reduce pension by $1.50 per fortnight for every $1000 above the amount (single and couple combined).
NSA/WA/PA/SA/SpB/Parenting Payment/YA and Austudy not payable if assets exceed these amounts.
…….” [Emphasis added]
38. The Tribunal is satisfied, based on the above evidence, that in January 2010 SA was not ‘payable’ to a person who owned the home in which they lived (for the purposes of section 680(1) of the SSA) if the person had assessable assets valued in excess of $178,000.
39. The term “asset” is defined in section 11(1) of the SSA to mean property or money, including property or money outside Australia. The term “property” is not defined in the SSA and, therefore, it takes the meaning it has under general law. Accordingly, “property” includes money, goods, real estate, personal property, accommodation bonds and debts owing to the person.
40. However, by virtue of section 1118 of the SSA for the purposes of calculating the value of a person’s assets for the purposes of the SSA “the value of any right or interest of the person in the person’s principal home” is to be disregarded.
41. The policy contained in Social Security Guide (SS Guide) 4.6.6.10, titled “General Provisions for Valuation of Assets”, provides that:
“Assets are generally assessed at their net market value (1.1.M.35). The net market value is the amount you would expect to receive if you sold the asset on the open market, less any valid debts or encumbrances (1.1.E.105).” [Emphasis added]
42. It is well-established that the ordinary meaning of “market value” is the price that a willing but not anxious buyer would have to pay to a willing but not anxious seller for the item: Spencer v Commonwealth (1907) 5 CLR 418. This test was later adopted in Abrahamsv Federal Commissioner of Taxation (1944) 70 CLR 23 wherein “market value” was said to be “the price which a willing but not anxious vendor could reasonable expect to obtain and a hypothetical willing but not anxious purchaser could reasonably expect to have to pay……if the vendor and purchaser had got together and agreed on a price in a friendly negotiation.” “Market value” has also been described as the best price that may reasonably be obtained for property if sold in the general market. If there is no general market, such a market is to be assumed. In addition, all possible buyers should be taken into account, even a buyer who, for his or her reasons, is prepared to pay an excessive price: Brisbane Water County Council v Commr of Stamp Duties (NSW) 80 ATC 4051.
43.The SS Guide (1.1.M.35) defines “market value” as:
“….the point at which a willing purchaser and a willing, but NOT anxious vendor, would reach agreement.
The market value of an asset (1.1.A.290) is ONLY decreased by the value of an encumbrance (1.1.E.105) secured against it. The market value of an asset is NOT reduced by any costs which may be incurred IF the asset was to be sold”.
44. The evidence before the Tribunal was that on 11 January 2011 (being the date on which Mrs Tey claimed SA) Mrs Tey’s “assets” comprised the following:
(i)the home in which she lives at 9 Barclay Road, Kardinya (T5 and T6 of the section 37/’T’ documents, comprising a Centrelink “Claim for Disability Support Pension or Sickness Allowance” form, signed by Mrs Tey on 11 January 2010, and a Centrelink Mod R “Real estate details” form, signed by Mrs Tey on 3 March 2010, respectively );
(ii)vacant land at 45 Tarradee Cct, Thornlie (T6 of the section 37/T documents, being a Centrelink Mod R “Real estate details” form, signed by Mrs Tey on 3 March 2010);
(iii)$73.40 in ANZ Bank account number 56068594 (T7 of the section 37/’T’ documents, being a Centrelink “Income and Assets” form, signed by Mrs Tey on 11 January 2010 and page 86 of the section 37/’T’ documents and a document from ANZ Bank, dated 3 March 2010, on page 86 of the section 37/’T’ documents);
(iv)$12,000 in ANZ Bank account number 496789155 (T7 of the section 37/’T’ documents, being a Centrelink “Income and Assets” form, signed by Mrs Tey on 11 January 2010 and a document from ANZ Bank, dated 3 March 2010, on page 86 of the section 37/’T’ documents); and
(v)$150,000 in Bendigo Bank account number 138691142 (T7 of the section 37/’T’ documents, being a Centrelink “Income and Assets” form, signed by Mrs Tey on 11 January 2010 and a document from Bendigo Bank, dated 34 November 2009, on page 87 of the section 37/’T’ documents).
45. Therefore, on 11 January 2010 (being the date on which Mrs Tey claimed SA) the total value of money held by Mrs Tey in bank accounts was $162,073.40.
46. Pursuant to section 1118 of the SSA, the value of Mrs Tey’s principal home in Kardinya is to be disregarded when assessing the value of her assets for the purposes of the assets test.
47. Consequently, to determine whether the value of Mrs Tey’s assets on 11 January 2010 exceed the relevant assets value limit, the critical issue for determination by the Tribunal is the ‘value’ of Mrs Tey’s vacant land in Thornlie.
48.According to the SS Guide (4.6.6.10):
“A customer is NOT expected to obtain professional valuations for any asset. If a customer does however provide a written valuation, this CAN be used to determine market value IF the valuation:
·was done by a professionally qualified valuer, AND
·conforms with AVO standards.”
49. Mrs Tey never provided Centrelink, the SSAT or this Tribunal with her own valuation of her vacant land in Thornlie. However, on 3 March 2010, Mrs Tey did lodge a Mod R “Real estate details” form with Centrelink in support of her claim for SA. At question 10 of that form Mrs Tey was asked:
“What is the estimate of the current market value of the property, including land and buildings?” [Emphasis added]
50.Immediately following the above question, the Mod R form states:
“Please give us an estimate of the value. You do not need to have the property professionally valued. We may have the Australian Valuation Office do this at no cost to you.” [Emphasis added]
Next to that statement, Mrs Tey wrote “Noted”.
51. In the box provided at question 10, Mrs Tey wrote “Not Known” and next to this question Mrs Tey wrote:
“This question is irrelevant but estimate based on Australian Valuation General appears OK.”
52. In relation to customer estimates of property values, the SS Guide (4.6.6.10) relevantly provides:
“For some assets a valuation is required. For ALL other assets, the customer’s estimate is accepted as reasonable UNLESS it appears that the value has been understated AND the value is likely to affect the customer’s payment.
As stated above, Mrs Tey failed to provide Centrelink with an ‘estimate’ of her vacant land in Thornlie at question 10 of her Mod R “Real estate details” form.
53. At question 27 of the Mod R form Mrs Tey indicated that her vacant land in Thornlie was unencumbered.
54. At question 33 of the Mod R form (on page 7), Mrs Tey signed an authority authorising a valuer of the Australian Valuation Office (AVO) “to enter and inspect the property for the purposes of a valuation in relation to the Social Security (Administration) Act 1999.” Immediately next to question 33 (on page 7) of the Mod R form is a box containing the following information about having a property valuation:
“Why is a valuation required?
The social security law required that the value of assets (e.g. property, shares in a company, units in a unit trust) is included when calculating the amount of pension, benefit or allowance payable.
Who values properties?
Valuers from the Australian Valuation Office (AVO) carry out valuations on behalf of Centrelink. The AVO is an independent valuation authority which provides professional and confidential valuation services to government departments and their agencies.
How is the value of a property decided?
The value of real estate is its current market value, less any allowable debts on the property. The ‘current market value’ is the price the owner could expect to receive if the property was sold.
The AVO maintains and has access to extensive data banks of property sales, lot plans, town planning information, etc., and uses this knowledge in assessing the current value of properties. The valuer may also inspect the value from the roadside or undertake a full inspection.”
55. On 9 March 2010 (7 days after Mrs Tey provided Centrelink with a Mod R “Real estate details” form in which she disclosed her ownership of the vacant land in Thornlie but failed to provide an estimate of its value) a valuation request for Mrs Tey’s property at 45 Tarradee Cct, Thornlie was submitted by Centrelink with the AVO. The “Details Listing” for that valuation indicates that the AVO valued Mrs Tey’s vacant land in Thornlie at $225,000 (T8 of the section 37/’T’ documents). The “Details Listing” for that valuation also shows that the valuation request was received by an AVO valuer, Mr David Penny, on 11 March 2010, that the valuation was completed on 17 March 2010 and that his valuation method was “Roadside Inspection”. On that valuation, Mr Penny commented “Sales evidence supports the adopted valuation figure.” (T15 of the section 37/’T’ documents).
56. On 12 April 2010 a further valuation request was submitted with the AVO. The “Details Listing” for that valuation reveals that this valuation request was received by an AVO valuer, Mr David Penny, on 13 April 2010 and was completed by him on 17 March 2010. The “Details Listing” for that valuation also shows that Mr Penny valued the property on 1 June 2009 and that his valuation method was “Local Knowledge”. On that valuation, Mr Penny commented that “Sales evidence supports the adopted valuation figure.” That valuation also reveals, under the heading “Historic Values”, that Mrs Tey’s vacant land in Thornlie had previously been valued by the AVO on 1 June 2006 at $215,000 and again on 1 May 2009 at $215,000 (T15 of the section 37/’T’ documents).
57. Further, attached to a letter from Mr Michael Eagle, Managing Valuer with the AVO (dated 17 January 2011), was a Valuation Report which was provided by the AVO in response to Mrs Tey’s contention that the AVO valuation of her vacant land in Thornlie was “Excessive”. That report stated that the “subject property has been inspected and sales evidence reviewed and it is recommended that the original valuation as at 1 June 2009 being $215,000 stand.” (ST 21 of the Supplementary section 37/’T’ documents).
58. Mr David Penny appeared before the Tribunal at the hearing and gave evidence. Mrs Tey refused to remain in the hearing room to hear Mr Penny’s evidence for the reason that, in her opinion, he is not a properly qualified valuer. In summary, Mr Penny’s evidence before the Tribunal was as follows:
·Mr Penny has a Diploma in valuation (which is now a university degree at Curtin University, Western Australia) and has undertaken oral emainations with The Australian Valuers Institute;
·Mr Penny is licensed as a valuer under the Land Valuers Licensing Act 1978 (WA) and he currently works as a valuer for the AVO;
·Mr Penny worked as a valuer for the government in the early 1970s. He then worked for a major real estate company as a valuer. He then entered residential real estate and worked as a residential sales person for quite some time. He then ran his own residential real estate office for about fourteen years. Since 2005, he has been working full-time as a valuer; and
·Mr Penny confirmed before the Tribunal that that he had completed all of the valuations of Mrs Tey’s vacant land in Thornlie which had been undertaken by the AVO. He also advised the Tribunal that his “original valuation” of Mrs Tey’s Thornlie property was based on “local knowledge, which just means that we do it in the office, basically, off computer records.” According to Mr Penny:
“The very first valuation I did was value….it was valued at $225,000, and then Mrs Tey objected to that, and I was requested to do another [valuation] or to go out and do what we call an objection report, where I actually went out to the property and inspected it and looked at sales in the area, and I adopted a figure of $215,000 following doing a full inspection”.”
Mr Penny further stated that the second valuation mentioned above was the valuation completed by him on 17 January 2011.
59. In the absence of any other evidence as to the value of Mrs Tey’s vacant land in Thornlie as at 10 January 2010 (when Mrs Tey claimed SA), the Tribunal accepts the AVO valuation of that land which was completed by Mr Penny on 17 March 2010 (which valuation was completed by Mr Penny some 14 days after Mrs Tey lodged her Mod R “Real estate details” form, detailing her ownership of the Thornlie property, with Centrelink on 3 March 2010). Based on that evidence, the value of Mrs Tey’s vacant land in Thornlie as at January 2010 was $225,000.
60. Therefore, the total value of Mrs Tey’s assets on 11 January 2010 was $387,073.40, comprising $162,073.40 (being the total value of her bank accounts, on that date) plus $225,000 (being the market value of her vacant land in Thornlie, on that date). Consequently, the total value of Mrs Tey’s assets in January 2010 (namely, $387,073.40) is clearly in excess of the applicable assets value limit on that date (being, $178,000). It follows that whilst Mrs Tey may qualify for SA under section 666 of the SSA as a result of her medical conditions, SA is nevertheless not payable to Mrs Tey pursuant to section 680 of the SSA.
61. Section 36(1) of the Social Security (Administration) Act 1999 (Administration Act) provides that Centrelink must, in accordance with the social security law, determine a claim for a social security payment, either granting or rejecting the claim.
62. Section 37(1) of the Administration Act provides that Centrelink must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that both:
“(a)the claimant is qualified for the social security payment; and
(b)the social security payment is payable.” [Emphasis added]
63. The phrase “social security payment” in sections 36(1) and 37(1) of the Administration Act includes “sickness allowance”: see section 3(2) of the Administration Act and section 23(1) of the SSA.
64. Since the Tribunal has concluded that SA was not payable to Mrs Tey on 11 January 2010 when she lodged her claim for SA (as the value of her assets on that date exceeded the applicable “assets value limit” for the purposes of section 680 of the SSA for ) it considers that: (i) Centrelink’s decision to reject the claim is correct in accordance with section 36(1) of the Administration Act; and (ii) a decision to grant Mrs Tey’s claim cannot be made by Centrelink pursuant to section 37(1) of the Administration Act. That is, in relation to (ii), subsection 31(1) of the Administration Act requires that both paragraph (a) and (b) of that subsection be satisfied and paragraph (b) has not been met in this case .
Backdating Payment of Sickness Allowance
65. Much was made by Mrs Tey, in the directions hearings preceding the substantive hearing in this matter, about the inadequacy of the section 37/’T’ documents which had been prepared by the respondent for the purposes of her application. It became apparent to the Tribunal in the course of the pre-hearing directions hearing that this assertion by Mrs Tey was founded in her belief that she is entitled to be back paid SA effective from 17 January 2009 when she was first certified by a doctor as being unfit for work as a consequence of her medical conditions. It is for this reason that Mrs Tey persistently requested that Centrelink provide the Tribunal with copies of its quarterly asset limit test scales covering the period from 17 January 2009 to 31 December 2011.
66. As mentioned above, Mrs Tey left the hearing room before Mr Penny, the AVO’s valuer, gave his evidence. After the conclusion of Mr Penny’s evidence, the hearing attendant looked for Mrs Tey outside the hearing room in an attempt to have her re-join the hearing. Unfortunately, Mrs Tey could not be found. Accordingly, the Tribunal decided to continue with the hearing in her absence.
67. Centrelink’s representative made submissions to the Tribunal concerning Mrs Tey’s contention that she is entitled to be back paid SA. In the circumstances, Centrelink’s representative offered to provide Mrs Tey and the Tribunal a copy of its quarterly asset limit test scales covering the period from 17 January 2009 to 31 December 2011, despite his earlier objection to this on the grounds of relevancy. On this basis, the Tribunal made an order that the respondent provide those documents to Mrs Tey and the Tribunal on or before a week following the hearing date. The issue of whether the payment of SA to Mrs Tey can be backdated is considered below.
68. A ‘social security payment’ (including SA) is not payable to a person before the person’s “start day”: sections 41 and 42 of the Administration Act. Schedule 2 of the Administration Act sets out different ways of calculating “start days” for different payment types. The general rule is that if a person claims a payment and is qualified on the day the claim is made, that day is the “start day”: clause 3 of Schedule 2 of the Administration Act.
69. However, there are exceptions to this rule, based on special provisions for backdating the “start day” to a day other than the day on which the claim is made. A “start day” may be backdated where a person becomes incapacitated for work as a result of a medical condition and continues to suffer from that condition: clause 11 of Schedule 2 of the Administration Act. Where a person claims within five weeks of the date of their incapacity for work began, payments may be backdated to the date of incapacity up to a maximum of five weeks. Where the person claims more than five weeks after the incapacity for work began, payment can be backdated by up to four weeks. The Secretary must be satisfied that the person has continued to suffer from the medical condition between the date of incapacity and the date of the claim, and that the medical condition was the sole or principal cause for the delay in claiming: clause 11 of Schedule 2 of the Administration Act.
70. Mrs Tey’s medical evidence indicates that she has suffered from the medical conditions that have caused her to be unfit to work since 17 January 2009. Her application for SA in this case was made on 11 January 2010, being more than five weeks after her incapacity for work began for the purposes of cluse 11 of Schedule 2 of the Administration Act. Thus, if it were found that SA was ‘payable’ to Mrs Tey under section 680 of the SSA, there may be some scope for the Secretary (Centrelink) to back pay Mrs Tey SA for up to four weeks from the date of her claim. Although, in order to do this, the Secretary would need to be satisfied that the sole or principal cause of Mrs Tey’s delay in claiming was her medical conditions (and not, as a result, for example of all of her on-going litigation in other jurisdictions). This issue is, however, a moot point since the Tribunal has found, for the reasons provided above, that SA was not ‘payable’ to Mrs Tey on 10 January 2010 since the total value of her assets exceeded the relevant assets value limit on that date. If SA is not by law ‘payable’ to Mrs Tey it logically follows that there is no payment which can be backdated.
71. Further, the Tribunal reviewed the quarterly asset limit test scales, covering the period from 17 January 2009 to 31 December 2011, provided by Centrelink’s representative and finds that there is nothing in them which changes the above decision.
72. Finally, the Tribunal makes the observation that there is nothing in the backdating provisions which would have the effect of enlivening Mrs Tey’s May 2009 application for SA: section 137 of the Administration Act.
Decision
73.For the above reasons, the Tribunal affirms the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh
Signed: (sgd) T Freeman..................
AssociateDate/s of Hearing 7 October 2011
Date of Decision 1 November 2011
Representative for the Applicant Mrs K Y Tey
Self-represented
Representative for the Respondent Mr P Maishman
Senior Advocate
Centrelink
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