TEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2011] AATA 294
•4 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5525
GENERAL ADMINISTRATIVE DIVISION ) Re KOK YONG TEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date4 May 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
SOCIAL SECURITY – sickness allowance – applicant claimed sickness allowance – applicant qualified for sickness allowance – payability of sickness allowance – assets test – value of applicant’s assets exceeded assets value limit – sickness allowance not payable to applicant – applicant’s claim for sickness allowance rejected – decision under review affirmed
Social Security Act 1991 (Cth), s 666, s 677, s 680, s 709, s 1068 and s 1118(1)
Social Security (Administration) Act 1999 (Cth), s 36(1) and s 37(1)
REASONS FOR DECISION
4 May 2011 Deputy President S D Hotop Introduction
1. On 15 May 2009 Kok Yong Tey (“the applicant”) contacted Centrelink about her intention to claim Sickness Allowance (“SA”) and on 19 May 2009 she lodged a claim for SA with Centrelink.
2. On 9 June 2009 an officer of Centrelink rejected the applicant’s claim for SA.
3. By letter dated 12 June 2009 to Centrelink, the applicant requested that the abovementioned decision of 9 June 2009 be reviewed by an Authorised Review Officer (“ARO”).
4. On 1 July 2009 an ARO affirmed the decision of 9 June 2009.
5. On 17 July 2009 the applicant applied to the Social Security Appeals Tribunal (“SSAT”) for review of the ARO’s decision of 1 July 2009.
6. On 16 October 2009 the SSAT affirmed the ARO’s decision.
7. On 17 November 2009 the applicant applied to this Tribunal for review of the SSAT’s decision.
The Procedural History of this Application for Review
8. On 9 March 2010 the Tribunal made directions that (inter alia):
· the respondent file and serve a Statement of Facts, Issues and Contentions, and evidence on which the respondent intended to rely at the hearing, on or before 20 April 2010;
· the applicant have leave until 7 June 2010 to file and serve a Statement of Facts, Issues and Contentions, and evidence on which she intended to rely at the hearing.
9. By letter dated 3 June 2010 the applicant applied to the Tribunal for an extension of time to comply with the second abovementioned direction.
10. By letters dated 14 June 2010 the Tribunal notified the parties that a directions hearing had been listed for 6 July 2010 and that the hearing had been listed for 23 August 2010.
11. At the directions hearing on 6 July 2010 the Tribunal refused an application by the applicant for an adjournment of the hearing listed for 23 August 2010.
12. By letter dated 17 August 2010 to the Tribunal, the applicant reiterated her objection to the hearing listed for 23 August 2010.
13. At the hearing on 23 August 2010 the applicant maintained her application for an adjournment of the hearing and also made an application that the Tribunal be reconstituted.
14. On 23 August 2010 the Tribunal made a direction that the hearing be adjourned pending a determination by the President as to whether the Tribunal should be reconstituted pursuant to s 21A(1), (3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
15. By letter dated 12 November 2010 the member, who then constituted the Tribunal for the purposes of the proceeding, advised that he was not available for the purposes of the proceeding.
16. On 16 December 2010 a delegate of the President, after consulting the parties to the proceeding, made a direction, in accordance with s 23(3) of the AAT Act, reconstituting the Tribunal for the purposes of completing the proceeding.
17. On 16 December 2010 the Tribunal (as reconstituted) made the following directions:
“1. On or before 31 December 2010 the applicant file with the Tribunal a Hearing Certificate indicating the dates in March and April 2011 that will be unsuitable for a hearing in this matter.
2.The applicant has leave to file with the Tribunal any further evidence upon which she proposes to rely at the hearing, and serve a copy on the respondent, on or before 28 February 2011.
3.The matter be listed for a hearing in March 2011 or as soon as practicable thereafter.”
18. On 31 December 2010 the applicant informed the Tribunal by email that her unavailable dates for the hearing were as follows:
· the whole of March 2011; and
· 1, 4, 11, 18, 14 (sic) of April 2011.
19. By letters dated 11 January 2011 the Tribunal notified the parties that the hearing had been listed for 5 April 2011.
20. By letter dated 28 February 2011 the applicant wrote to the Tribunal as follows:
“ I refer to direction 2. made by the Deputy President S D Hotop on 16 December 2010 to file any further evidence upon which I shall rely at the hearing, and to file such evidence by the 28 February 2011.
Herewith, I respectfully request for an extension of time to 31 March 2011 on the following grounds:
1. I am an unrepresented applicant.
2.I have limited knowledge in the Social Security Law, and therefore I need more time to understand it to provide the Tribunal with further evidence I wish to rely (sic).
3.I am currently recovering my (sic) injuries on sick leave, a certified medical certificate to 31 March 2011 had been forwarded to your Tribunal …”
That request for an extension of time was opposed by the respondent.
21. On 2 March 2011 the Tribunal made a direction granting the applicant “a final extension of time in which to file and serve evidence until 31 March 2011 at the latest”.
22. On 31 March 2011 the applicant filed with the Tribunal a document entitled:
“ APPLICANT’S FURTHER EVIDENCE UPON WHICH SHE WOULD RELY AT A FORTHCOMING HEARING OF WHICH A DATE WILL BE SET, IN COMPLIANCE WITH DIRECTION DATED 2 MARCH 2011 GIVEN BY THE DEPUTY PRESIDENT.”
The contents of that document are as follows:
“ IN THE ADMINISTRATIVE APPEALS TRIBUNAL Appeal No 2009/5525
AT PERTH IN WESTERN AUSTRALIA
Further evidence or evidence the applicant will rely upon during the hearing: Index:
1.All additional documents given to, and matters raised and referred to by the applicant before the Administrative Tribunal Registrars during all directions hearing relating to this case at the commencement to this day. (sic)
2.Applicant’s written ADDRESS TO THE SOCIAL SECURITY APPEAL (sic) TRIBUNAL handed over to Ms S Brakespeare on day of hearing the 16 October 2009, ‘KYT1(a) and ‘KYT1(b). Documents referred to in the ADDRESS will be provided to the Administrative Appeals Tribunal (AAT) on the day of the hearing.
3.Applicant’s Net Assets (to be provided on the day of the hearing).
(a)The Appellant (sic) requests to amend her total net assets, and that all her current assets and contingent liabilities be taken into account at the time of the AAT hearing to assess her claim entitlement for this sickness benefit claim including all her medical reports already or yet to be submitted to Centrelink or yet to be provided to AAT to date of hearing.
(b)The Appellant (sic) requests that the valuation of her block of vacant land in Thornlie Western Australia be taken at purchase price value in the absence of certified evidence from a licensed and qualified land valuer which had not been provided to the applicant by Centrelink. The registration as a professional so named as licensed valuer must be administered and approved by an Act of Parliament in Australia for the purpose of valuation if to be used by Centrelink NOT any so-called valuer as nominated by Centrelink.
(c)The applicant will provide the Administrative Appeals Tribunal on the day of the hearing relevant documentary evidence relating to the purchase price of the applicant’s vacant land in Thornlie, Western Australia, being Lot 312 at 45 Tarradee Circuit.
4.All documents and correspondence sent by the applicants (sic) to Centrelink at the commencement of this Sickness Benefit Claim to the day of the hearing relevant to this claim, and to her defence.
5.The applicant sought leave to file Outline of argument to AAT.” (original emphasis)
A copy of the applicant’s written address to the SSAT, referred to in para 2, was attached.
23. By letter dated 1 April 2011, which was delivered to the Tribunal on 4 April 2011, the applicant wrote to the Tribunal as follows:
“ Matter: Request for a hearing date sometime in July 2011
I enclose a copy of my recent Medical Certificate dated 1 April 2011.
About three weeks ago, I had a fall when I was walking on flat ground. And it took me quite sometime to get up from this fall. I told my Doctor, Dr Balint about this fall, and I showed him the bruises on both my knees at my recent visit. My body is telling me of those pains. My right shoulder is consistently giving me pains, and unless I give myself a lot of rest, it is not going to recover, and I am a right hander.
I trust that due consideration is given to this request. And I shall thank you.” (original emphasis).
24. The applicant’s request for an adjournment of the hearing listed for 5 March 2011 was opposed by the respondent.
25. In the early afternoon of 4 April 2011 Registry staff contacted the parties by telephone with a view to arranging a directions hearing (by telephone) later that day for the purpose of considering the applicant’s request for an adjournment of the hearing listed for 5 April 2011. The applicant, however, informed the Registry staff that she was unable to participate in a telephone directions hearing that afternoon because she was out of the house but that she would attend the Tribunal in person the following morning.
26. At the commencement of the hearing at 10.05 am on 5 April 2011 the applicant appeared in person and maintained her application for an adjournment of the hearing, essentially on two grounds, namely:
· the medical certificate, dated 1 April 2011, enclosed with her written request for an adjournment (see paragraph 23 above);
· she required further time to obtain evidence and prepare her case.
The applicant made oral submissions in support of her application for an adjournment. The respondent made oral submissions in opposition to that application.
27. The Tribunal, having considered the parties’ submissions and the Tribunal’s Listing and Adjournment Practice Direction, concluded that the applicant had not provided sufficiently cogent reasons as would justify the making of such a late application for an adjournment of the hearing, and warrant the granting of such application for an adjournment. In particular, the Tribunal:
· noted that the abovementioned medical certificate, dated 1 April 2011, was of a very general nature and did not indicate that the applicant would be unable to attend the hearing (indeed, the applicant did attend the hearing and made submissions);
· was satisfied, having regard to the procedural history of this matter (as set out in paragraphs 8–22 above), that the applicant had been afforded a fair and reasonable opportunity to prepare her case.
Accordingly, the Tribunal formally refused the applicant’s application for an adjournment of the hearing.
28. The substantive hearing of the applicant’s application for review subsequently commenced, and was completed, on 5 April 2011.
The Evidence
29. The applicant tendered in evidence:
· the document filed by her on 31 March 2011, set out in paragraph 22 above (Exhibit A1); and
· her letter (and the enclosed medical certificate), dated 1 April 2011, lodged with the Tribunal on 4 April 2011, in which she requested an adjournment of the hearing listed for 5 April 2011 (see paragraph 23 above) (Exhibit A2).
30. The respondent tendered in evidence:
· bundle of documents comprising documents T5 (pp 39–64), T7, T9 and T12, included within the “T Documents” lodged with the Tribunal by the respondent on 9 December 2009 (Exhibit R1);
· Centrelink publication entitled “A guide to Australian Government payments … 20 March–30 June 2009” (Exhibit R2);
· medical certificate regarding the applicant, dated 4 March 2009, for the period from 17 January 2009 to 4 May 2009 (Exhibit R3); and
· Centrelink document regarding Australian Valuation Office valuation of applicant’s land at 45 Tarradee Circuit, Thornlie, Western Australia (Exhibit R4).
Background Material
31. Documents T5 (pp 39–64), T7, T9 and T12 (referred to in paragraph 30 above) comprise background material in respect of the present application for review.
32. Document T5 (pp 39–64) is a copy of the completed Centrelink “Claim for Disability Support Pension or Sickness Allowance” form which the applicant lodged with Centrelink on 19 May 2009. In that form the applicant indicated that (inter alia):
· she was claiming Sickness Allowance, not Disability Support Pension;
· she was born in August 1948;
· her current marital status is : divorced;
· she does not have a partner;
· she lives in a home owned by her.
In response to question 144 in the form (which asked whether she had received or claimed any of various specified social security payments in the last 14 days), the applicant indicated: “No”. Alongside the “No” box in the form, the following statement appears:
“ You … will need to complete and attach an Income and Assets form (SA369) included in this pack. If you do not have this form, call us on 13 2717 or go to our website at (original emphasis)
Question 168 in the form, which is in the nature of a checklist, asks the claimant to indicate which of a specified list of documents the claimant is providing with the form. The list includes the following:
“ Income and Assets form (SA 369) (if you answered Yes at question 123 or if you answered No at question 144)”. (original emphasis)
The box which relates to that document is not ticked. The only box in the list of documents which is ticked is that which refers to medical reports.
33. The final item in the abovementioned form is as follows:
“ 169 Statement
I declare that:
· the information provided in this form is complete and correct.
· I have received and read the Information Booklet, which includes the privacy notice.
I understand that:
· giving false or misleading information is a serious offence.
· Centrelink can make relevant enquiries to ensure I receive the correct entitlement.
· I must notify Centrelink of any changes to this information within 14 days of the changes occurring.” (original emphasis)
Immediately below that item appears the applicant’s signature and the date “15 May 2009”.
34. Document T7 is a copy of a letter from a Centrelink officer to the applicant, dated 21 May 2009, whose contents are as follows:
“ We are writing to ask for more information to help us make the right decision about your claim for Sickness Allowance.
Please supply 40 points of identification from enclosed list. You have already supplied bank card, Medicare card and Australian passport.
Would you please provide the following:
Income and Assets module
Module F and 2007/08 tax business and personal tax returns
All bank account balances at 17 January 2009
Centrelink medical certificate from 5 May 2009
Letter to verify that you have a contract to return to when fit
How have you supported yourself since 17 January 2009. If working please supply profit and loss statement from then till now
Please mail the information we have requested to this office or take it to your nearest Centrelink Customer Service Centre. If you would like any original documents returned to you, let us know so we can return them by registered mail.
Section 192 of the Social Security (Administration) Act 1999 allows the Secretary or a delegate to require any person to give information relevant to Centrelink customers receiving their correct entitlement. This is a notice requesting information under Division 1 of Part 5 of the Social Security (Administration) Act 1999 and given to you under s 196 of that Act.
If you have any questions or would like more information or you are unable to provide the requested documents please call us on the number shown at the top of this letter. You need to contact us or give us the documents within 14 days from the day you receive this letter to avoid your Sickness Allowance being rejected.”
35. Document 9 is a copy of a letter from the applicant to Centrelink, dated 28 May 2009, whose contents are as follows:
“ I confirm that on 17 May 2009, I posted to your Centrelink above address the following completed and signed documents;
- The 26 of 26 pages of Claim for Sickness Allowance FORM. Relevant to my application I answered all of the 169 questions it asked.
- The original medical certificate issued and signed by Dr SAM YOUNG of Fremantle Hostipital (sic) on 4/3/09 for the period 17/1/09 to 4/5/09 of my entitlement to sickness allowance claim.
- The original letter from my general GP (sic) Dr Gabor Balint advising that I had been his patient since 14/01/09.
- The copy of my recent appointment on 20/5/09 with ORTHOPAEDIC surgeon Mr GENAT at the Fremantle Hospital.
- The copy of medical report from Mr Rob Genat the ORTHOPAEDIC SURGEON DATED 25 March 2009.
- The copy of my PHYSIO present and future attendances at the Fremantle Hospital since March 2009.
- The copy of my MRI Right Knee X-Ray : derangement; and (sic)
On Thursday 21 May 2009, I posted to you at the above address,
- The original Centrelink Medical Certificate FORM completed and signed by myself and Mr ROB GENAT ON 20/5/09 for the period 4/5/09 to 20/7/09 of my sickness allowance claim.
On Friday 22 May 2009, I received your letter of 21 May 2009. For 70 extra points for identification purposes, I enclose a copy of my Australian citizenship paper. This completes your question 43 requirement of your Sickness Allowance Claim Form. I also request a copy from you Section 192 of the Social Security (Administration) Act 1999 including Division 1 of Part 5 of the Social Security (Administration) Act 1999. I consider that there has been an intrusion (sic) of the Privacy Act by your asking me the following questions which were not relevant and not covered in your Centrelink Sickness Allowance Claim FORM:
‘Would you please provide the following’:
- Income and Assets module
- Module F and 2007/08 tax business and personal tax returns
- All bank account balances at 17 January 2009
- Letter to verify that you have a contract to return to when fit.
- How have you supported yourself since 17 January 2009.
- If working please supply profit and loss statement from then till now., AND I ask,
(1) Have I broken the Law? And (2) has Centrelink infringed my privacy and the Privacy Act by asking me to answer and to supply the above requested information relating to my Sickness Allowance Claim of which the main relevant documents listed on page 1 of this letter had been supplied with, and all questions asked in your Sickness Allowance FORM were answered? (sic)
I am a licensed, self employed travel agent. Travel Agent Licence number : 9TA255 which is issued by the West Australian Government.
To this end, my application for Sickness Allowance Claim with Centrelink is complete, and ask that you process my claim application without delay.
Also please return all original documents to me after you have copied them.
Your response to this letter by 10 June 2009 will be appreciated.” (original emphasis)
36. Document T12 is a copy of a notice from Centrelink to the applicant, dated 9 June 2009, which relevantly states as follows:
“ Rejection of your claim for Sickness Allowance
·We cannot pay you Sickness Allowance because we did not receive the documents we requested from you.
…”
The Applicant’s Case
37. The only evidence tendered by the applicant in support of her case comprised Exhibits A1 and A2 (referred to in paragraph 29 above) whose contents are set out in, respectively, paragraph 22 and paragraph 23 above. She did not give oral evidence under oath or affirmation and declined to submit to questioning by the respondent. In those circumstances, the respondent did not seek leave to question her. She did not call any witnesses.
The Respondent’s Case
38. The respondent’s case comprised:
· the documents referred to in paragraphs 31–36 above (Exhibit R1);
· Exhibits R2, R3 and R4 referred to in paragraph 30 above.
39. Exhibit R2 is a copy of a Centrelink publication entitled “A guide to Australian Government payments … 20 March–30 June 2009”. The various “Australian Government payments” covered in that publication include SA. In relation to SA, that publication states as follows:
“ 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 16).
§Partnered: see Newstart Allowance (page 16).
§Pharmaceutical Allowance is paid. See Chart H (page 23).
Rent Assistance
§See Newstart Allowance (page 16).
Income test
§See Chart D (page 20).
Assets test
§See Newstart Allowance (page 16).”
The sub-heading “Assets test”, under the heading “Newstart Allowance”, contains the following information:
“ Assets test
§Homeowners see Chart A (page 19).
§Non-homeowners see Chart B (page 19).
§Payment may be deferred when liquid assets exceed $2500 (single) or $5000 (couple or single with dependants).
§Hardship provisions may apply.”
Chart A states as follows:
“ Chart A – Assets test for homeowners
Family situation For full pension/allowance* For part pension#+
Single**
up to $171 750
less than $555 750
Partnered (combined)
up to $243 500
less than $882 500
Illness separated couple (combined)
up to $243 500
less than $1 011 500
One partner eligible
up to $243 500
less than $882 500
…
*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.
…”
40. Exhibit R3 is a copy of a medical certificate issued by Dr Sam Young, dated 4 March 2009, which certifies that the applicant “was unfit from 17/1/09 to 4/5/09”.
41. Exhibit R4 is a copy of a Centrelink document regarding an Australian Valuation Office valuation of vacant land at 45 Tarradee Circuit, Thornlie, Western Australia (“the property”) which indicates that:
· the date of valuation of the property was 1 June 2009;
· the method of valuation of the property was “local knowledge”;
· the value of the property as at 1 May 2009 was $215,000.
The Relevant Legislation
The Social Security Act 1991 (Cth)
42. The Social Security Act 1991 (Cth) (“SS Act”), as in force at all material times, relevantly provided:
“ Part 2.14—Sickness allowance
Division 1—Qualification for and payability of sickness allowance
Subdivision A—Basic qualification
666 Qualification for sickness allowance
(1) A person is qualified for sickness allowance in respect of a period if:
(a)the person is incapacitated for work or study throughout the period because of sickness or an accident; and
(b)the incapacity is caused wholly or virtually wholly by a medical condition arising from the sickness or accident; and
(c) the incapacity is, or is likely to be, of a temporary nature; and
(ca) one of the following applies:
(i)immediately before the incapacity occurred the person was in employment (whether the person was self‑employed, or was employed by another person, on a full‑time, part‑time, casual or temporary basis) and the Secretary is satisfied that, when the incapacity ends, the employment will be again available to the person (whether or not the same kind of work will be available);
(ii) …;
(iii) …; and
(e)before the period begins the person has turned 21; and
(f)before the period ends the person has not turned, or is not likely to turn, pension age; and
(g)throughout the period, the person:
(i) is an Australian resident; or
(ii) …
Note 1:see section 677 for the circumstances in which sickness allowance is not payable to a person even though the person is qualified for the allowance.
Note 3:for pension age see section 23.
(2)In this section:
work, in relation to a person, means work that the person has contracted to perform under a contract of employment that:
(a)the person had immediately before the person becomes incapacitated; and
(b)continues after the person becomes incapacitated.
…
Subdivision B—Situations where allowance not payable (general)
677Sickness allowance not payable if allowance rate nil
(1)Subject to subsection (2), sickness allowance is not payable to a person if the person’s sickness allowance rate would be nil.
(2)Subsection (1) does not apply to a person if the person’s sickness allowance rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:
(a) the social security law; or
(b) Division 2 of Part VIIA of the Veterans’ Entitlements Act.
680Assets test—allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]
(1)A sickness allowance is not payable to a person if the value of the person’s assets is more than the person’s assets value limit.
(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 Note 1:for member of a couple, partnered (partner getting neither pension nor benefit) and partnered (partner getting pension or benefit) see section 4.
Note 2:for homeowner see section 11.
Note 3:if item 2 applies to a person, the value of all the assets of the person’s partner is to be taken as being included in the value of the person’s assets (see subsection 680(1)—this is why the assets value limit is so high. If, on the other hand, item 3 applies to a person, the value of the person’s assets is only half the combined value of the person’s assets and the assets of the person’s partner (see subsection 680(2)).
Note 4:if a sickness allowance is not payable to a person because of the value of the person’s assets, the person may be able to take advantage of provisions dealing with financial hardship (sections 1131 and 1132).
Note 5: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 (see sections 1191 to 1194).
Note 6:the assets value limit of item 1 in column 3B is adjusted annually (see subsection 1204(1)).
Note 7:the item 2 assets value limits are adjusted annually so that they are twice the corresponding item 3 limits (see subsections 1204(2) and (3)).
…
Division 4—Rate of sickness allowance
709How to work out a person’s sickness allowance rate
A person’s sickness allowance rate is to be worked out using Benefit Rate Calculator B at the end of section 1068.
…
Part 3.6—Benefit Rate Calculator B1068Rate of widow allowance, Newstart allowance (18 or over) sickness allowance (18 or over) partner allowance, and mature age allowance under Part 2.12B
(1)The rate of:
(a)newstart allowance; or
(b)sickness allowance; or
(c) partner allowance; or
(ca)mature age allowance under Part 2.12B; or
(d)widow allowance;
is to be calculated in accordance with the Rate Calculator at the end of this section.
Note:Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.
…”
Benefit Rate Calculator B comprises various “Modules” including “Module G – Income test”. It is unnecessary to set out those Modules in these reasons.
43. Part 3.12 of the SS Act contains general provisions relating to the “assets test”. Section 1118 has, at all material times, relevantly provided:
“1118 Certain assets to be disregarded in calculating the value of a person’s assets
(1)In calculating the value of a person’s assets for the purposes of this Act (other than sections 198F to 198MA (inclusive), Division 1B of Part 3.10, Division 2 and sections 1133 and 1135A), disregard the following:
(a)if the person is not a member of a couple—the value of any right or interest of the person in the person’s principal home that is a right or interest that gives the person reasonable security of tenure in the home;
…”
The Social Security (Administration) Act 1999 (Cth)
44. The Social Security (Administration) Act 1999 (Cth) (“Administration Act”), as in force at all material times, relevantly provided:
“ 36 Obligation of Secretary to determine claim
(1)Subject to subsection (2), the Secretary must, in accordance with the social security law, determine claim for a social security payment or a concession card, either granting or rejecting the claim.
…
37Grant of claim
(1)Subject to section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a)the claimant is qualified for the social security payment; and
(b)the social security payment is payable.
…”
45. Pursuant to s 3(2) of the Administration Act and s 23(1) of the SS Act, the phrase “social security payment” in ss 36(1) and 37(1) of the Administration Act includes “sickness allowance”.
Analysis
46. It is common ground that the applicant, at all material times, was:
· qualified for SA pursuant to s 666(1) of the SS Act;
· not a “member of a couple” within the meaning of the SS Act;
· a “homeowner” within the meaning of the SS Act.
47. The critical issue in this matter is whether SA is payable to the applicant, pursuant to Subdivision B of Division 1 of Part 2.14 of the SS Act, in respect of her abovementioned claim lodged on 19 May 2009.
48. The parties’ submissions in relation to that issue centred on the application of the “assets test” in the SS Act.
49. The applicant’s primary submission was that she was not required to provide information regarding her assets to Centrelink for the purpose of her claim for SA in May 2009. She asserted that, included in the Centrelink information package which she had obtained for the purpose of making her claim for SA, was a “coloured leaflet” which contained information to the effect that details of a claimant’s income and assets were required to be provided in respect of a claim for a “sickness pension” but that such details were not required to be provided in respect of a claim for “sickness benefit” which she was claiming. She said that she was unsure whether she still had that leaflet at home and that she had been trying to find it but that this had been difficult and she had not been able to find it.
50. The respondent submitted that the abovementioned form or leaflet, to which the applicant referred, “never existed”.
51. The Tribunal is not satisfied that there was a Centrelink document, current at the time when the applicant made her claim for SA in May 2009, which contained information to the effect that a person claiming SA was not required to provide to Centrelink details of their income and assets for the purpose of such a claim. Furthermore, if a Centrelink document containing such information had existed at that time, it would plainly have been contrary to ss 680, 709 and 1068, and Benefit Rate Calculator B, of the SS Act which, at all material times, have provided for the application of the “assets test” and the “income test” to claims for, inter alia, SA. It may be that the applicant misread or misunderstood the contents of a document in the relevant Centrelink information package.
52. The Tribunal concludes, therefore, that the “assets test” and the “income test” in the SS Act were applicable in connection with the applicant’s claim for SA in May 2009 and that the matter of the payability of SA to her in respect of that claim falls to be determined in accordance with the application of the “assets test” and the “income test” in the SS Act.
The “assets test”
53. As regards the “assets test”, pursuant to s 680(1) of the SS Act, SA “is not payable to a person if the value of the person’s assets is more than the person’s assets value limit”. A person’s “assets value limit” is worked out using the Table in s 680(3). Pursuant to Note 5 at the end of s 680(3), “the assets value limits of items 1 and 3 in column 3A … are indexed annually in line with CPI increases …”. In the applicant’s case, the “assets value limit” of item 1 (“not member of a couple”) in column 3A (“homeowner”) is applicable. The Tribunal is satisfied, on the basis of Exhibit R2 (see paragraph 39 above), that the “assets value limit” applicable in the case of the applicant’s claim for SA in May 2009 was $171,500, and that, by reason of s 680(1) of the SS Act, SA would not be payable to her in respect of that claim if the value of her assets at that time exceeded that amount.
54. The only asset of the applicant at the time of her claim for SA in May 2009 (other than her “principal home” which is, pursuant to s 1118(1) of the SS Act, to be disregarded in calculating the value of her assets for the purposes of the “assets test”), about which there is evidence before the Tribunal in this matter, is her block of land at 45 Tarradee Circuit, Thornlie, Western Australia. It is common ground that the applicant purchased that block of land in early 2006 and that it has been unencumbered at all material times.
55. As regards the relevant value of that block of land, the applicant submitted that a “fair value” of that land is the amount she paid for it in 2006, namely, $145,000. The respondent, on the other hand, submitted that the appropriate value of that land is $215,000, being the value, as at 1 May 2009, determined by the Australian Valuation Office as set out in Exhibit R4 (see paragraph 41 above).
56. The Tribunal notes that the applicant has not provided any evidence regarding the value of the abovementioned block of land as at May 2009 (when she made her claim for SA) and the Tribunal does not accept that the amount of $145,000, for which she purchased that land in early 2006, should be regarded as the appropriate value of that land in May 2009. The respondent, on the other hand, has provided some evidence regarding the value of that land in May 2009, namely, Exhibit R4 which refers to a valuation of that land, as at 1 May 2009, by the Australian Valuation Office in the amount of $215,000. In the absence of any other evidence as to the value of that land as at May 2009, the Tribunal accepts the Australian Valuation Office valuation referred to in Exhibit R4 and, on the basis of that evidence, finds that the value of the applicant’s block of land at 45 Tarradee Circuit, Thornlie, Western Australia, as at the time of her application for SA in May 2009, was $215,000.
57. Accordingly, the Tribunal finds that, when the applicant claimed SA in May 2009, and at all material times, the value of her assets exceeded her “assets value limit” of $171,500.
The “income test”
58. As regards the “income test”, there is no evidence before the Tribunal regarding the amount of the applicant’s income at any material time. Having regard to the finding in paragraph 57 above, however, it is unnecessary for the Tribunal to consider the application of the “income test” in this case.
Conclusion
59. The Tribunal concludes, therefore, that, pursuant to s 680(1) of the SS Act, SA is not payable to the applicant in respect of her claim made in May 2009. Having regard to that conclusion, it is appropriate, pursuant to ss 36(1) and 37(1) of the Administration Act, that the applicant’s claim for SA made in May 2009 be rejected.
Decision
60. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 5 April 2011
Date of Decision 4 May 2011
Representative of the Applicant Self-representedRepresentative of the Respondent Mr P Maishman
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