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

[2022] AATA 4437

TWZK and Secretary, Department of Social Services (Social services second review) [2022] AATA 4437 (23 December 2022)

Division:GENERAL DIVISION

File Number(s):      2021/4017

Re:TWZK  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:               Senior Member George

Date of Decision:                   23 December 2022

Place:Adelaide

Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the Social Services and Child Support Division of the Tribunal on 13 May 2021, that affirmed the decision of the Respondent dated 10 June 2020, is set aside and remitted to the Respondent to be reconsidered and determined according to law.

…………[sgnd]…………………

Senior Member George

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – financial assets – deeming – where financial calculations had been mathematically incorrect – decision under review remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Senior Member George

23 December 2022

INTRODUCTION

1. TWZK is a recipient of the Disability Support Pension.

2. The background of this matter is set out in the decision of the Social Services and Child Support Division of the Tribunal (AAT1), dated 13 May 2021.[1] That background may be summarised as follows:

   (a)On 6 August 2019, TWZK reported a $275,274 Total and Permanent Disability (TPD) payment from his superannuation that was deposited into a Commonwealth Bank account. TWZK used this same bank account for his National Disability Insurance Scheme (NDIS) transactions.

   (b)On 16 August 2019, Centrelink assessed the sum total of $289,251 held in TWZK’s bank accounts as a financial asset subject to deeming rules. TWZK was then informed that from 22 August 2019 his DSP would be $865.56 per fortnight based on annual income calculated as $8,623.65.

   (c)On 10 June 2022, an Authorised Review Officer (ARO) decided that the decision of 16 August 2019 was correct and further found that the TPD deposit was a financial investment subject to deeming. Materially, the ARO made the following findings of fact:

   ·You received a Total and Permanent disability payment and the funds of $275,274.00 were deposited into you Commonwealth Bank of Australia account.

   ·The funds were not received from the National Disability Insurance Agency (NDIA).

   ·You use the Commonwealth Bank of Australia account specifically for the purpose of managing your National Disability Insurance Scheme (NDIS).

   ·The funds are subject to deeming.[2]

   [1] Exhibit R1, T Documents, T5, pages 22-23, paragraphs [1]-[10].

   [2] Exhibit R1, T Documents, T4, page 15.

3. The ARO went on to give the following material reasons for decision:

   Our records show the agency made a decision on 16 August 2019 to calculate your regular rate of Disability Support Pension payment using annual income of $8,623.65. The annual income amount took into account the deemed income from your Commonwealth Bank of Australia account that had a balance of $275,274.00. According to information you provided the agency, the funds deposited into the account were from a Total and Permanent Disability payment you received.[3]

   [3] Exhibit R1, T Documents, T4, page 15.

4. The Applicant lodged an application for review of the ARO decision with AAT1. On 13 May 2021, AAT1 affirmed the decision of the ARO. AAT1 found that “the deposit money of $275,274 is not a designated NDIS amount. It is a financial investment which is a financial asset. Financial assets attract a deemed income according to social security law”.[4]

   [4] Exhibit R1, T Documents, T5, page 25, paragraph [23].

5. On 17 March 2021, the Applicant lodged an application for a review of the decision of AAT1. The Applicant claimed that the decision in AAT1 was wrong for the following reasons:

   I seek to review Centrelinks decision as my information was not given appropriate consideration, & proper due process was not adhered to.

   I seek to appeal on the following grounds.

   -    Administrative error;

   -    Error of fact.

   -    Error of law.

   -    I was denied due process.

   -    Due process was not followed.

   -    Centrelink failed to process appeal within required the time.

   -    Centrelink staff acted Ultra vires in their decision.

   I seek to have the decision overturned & my access to Centrelink services restored.[5]

   [5] Exhibit R1, T Documents, T2, page 8.

6. The Applicant’s Statement of Issues, Facts and Contentions of 20 December 2021 raises several further issues, including that “Centrelink has incorrectly calculated my payments & should repay all outstanding arrears owed to myself”.[6] There is strength to the first limb of this contention.

   [6] Exhibit A1.

7. On 25 October 2022, the hearing proceeded by mixed audio-visual and in-person means. The Applicant was self-represented and the Respondent was represented by Mr Calaby.

8. The Applicant gave evidence on his own behalf and no other witnesses were called to give evidence in the hearing.

9. The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.

10. At the conclusion of the hearing, directions were made for the filing of further written submissions and the Respondent did so on 29 August 2022. In those submissions the Respondent continued to contend that the TPD payment is a ‘financial asset’ and not a ‘designated NDIS amount’ within the meaning of s 9(1) of the Social Security Act 1991 (Cth) (the Act) and therefore subject to deeming. However, the Applicant conceded that its financial calculations had been mathematically incorrect. This concession was quite properly made and only became apparent after the conclusion of evidence. It is accepted by the Tribunal.

11. Accordingly, the Respondent sought a decision setting aside the decision under review and that it be remitted for reconsideration with the following directions:

    a.     the balance of monies held in the Applicant’s Commonwealth Bank accounts are a financial asset in accordance with subsection 9(1) of the Social Security Act 1991 (the Act); and

    b.    the Applicant’s deemed income from his financial assets as at 16 August 2019, as calculated in accordance with Part 3.10 of Division 1B of the Act, was $7,641.53 per annum.[7]

    [7] Respondent’s Further Submissions Regarding the Correct Application of Deeming Rates to the Applicant’s Rate of Disability Support Pension, dated 29 August 2022, paragraph [25].

12. The Applicant was granted until 5 September 2022 to reply to these submissions but did not do so.

13. On 23 September 2022, Maleys Barristers and Solicitors acting for the Applicant contacted the Tribunal seeking leave to file further submissions on the following grounds:

    [TWZK] is concerned that his evidence and submissions as to the primary issue (of whether funds held in [TWZK’s] Commonwealth Bank account should be subject to deeming) was not properly put to the Tribunal. We are also concerned that some difficulties may have arisen with [TWZK’s] having conduct of the hearing as a self-represented litigant, arising from his disability.[8]

    [8] Email correspondence from Ms Sephyr Cooper to the Adelaide Registry of 23 September 2022.

14. The granting of leave was opposed by the Respondent and was refused.

    LEGISLATIVE FRAMEWORK

15. The rate of DSP is calculated under s 1064 of the Act. This requires the application of an income test and an asset test. The lower rate of payment resulting from either of those tests in then applied.

16. Relevantly, s 9(1) of the Act provides that a ‘financial asset’ is ‘a financial investment’, which in turn includes ‘available money’ and ‘deposit money’. Further, and relevantly to the Applicant’s case, a ‘designated NDIS amount’ is “(a) an NDIS amount is that deposited in an account with a financial institution; and (b) any return on the NDIS amount that a person earns, derives or receives”.

17. The Tribunal notes that it does not have jurisdiction to deal with complaints made by the Applicant about his access to Centrelink services, or to specifically direct the restoration of any such services.

    CONSIDERATION

18. The evidence in this matter is voluminous for what is ultimately a matter where both parties agree that the decision under review should be set aside.

19. The Applicant regards this matter as a test case and gave the following evidence:

    Make no bones about it, this is a test case. How this case is determined will determine whether or not other people on the NDIS will be able to contribute to their plan or whether they should do what Centrelink thinks and just withdraw the money, waste it and then go back to the NDIS and ask for more money.

    This is a test case. I do not know if any other case has addressed this. Is the funding contributed by the NDIS recipient to his exclusive or to his or her exclusive NDIS account exempt from Centrelink as it would appear in the legislation.[9]

    [9] Transcript, page 76, lines 36-45.

20. The evidence before the Tribunal does not suggest that this is indeed a test case and, under s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), it is the Tribunal’s duty to provide a mechanism for review that is proportionate to the importance and complexity of this matter.

21. The Applicant gave hours of oral evidence and submissions, much of which is circuitous and does not engage with the Act in a meaningful sense. The Applicant’s solicitor’s concerns that “some difficulties may have arisen” in TWZK’s self-representation are well-placed. For example, the Applicant’s submissions on the asset and income test include the following dialogue:

    When [the Respondent] earlier referred to the assets test, I do not have to inform Centrelink of any god damn item that the NDIS buys me. The asset and income test doesn’t require me to go into Centrelink and tell them if the NDIS has repaired my god damn toilet or if the NDIS has bought someone a wheelchair or an arm rail for the shower.

    I’m not required to tell Centrelink jack and it’s the assumption, it’s their attitude that they’re entitled to whatever they want that caused this problem in the first place. And it’s that anger and the personalisation of what the  Centrelink staff in Darwin did that caused them to make the mistakes they did.

    They deemed me at the wrong amount. They also deemed the wrong figure. And this is my point. Their methodology was flawed.[10]

    [10] Transcript, page 64, lines 27-40.

22. The Tribunal is conscious that the Applicant is under a disability and was self-represented, although such occurrences are unfortunately commonplace in this jurisdiction. In the Applicant’s own words:

    I’ve got a disability. I’ve got a brain injury. I’m flat out getting through the day as it is. I shouldn’t have to sit around here and unravel this. You know what I mean? I find it grossly unfair that they know that they deal with the most vulnerable people of society and yet they still choose to treat them like this for their own purposes. That’s not fair.[11]

    [11] Transcript, page 50, lines 39-43.

23. Without criticising the Applicant, the Tribunal expresses the view that the Applicant would have been much better served by engaging his solicitor prior to the hearing rather than after submissions had closed.

24. Significant aspects of the Applicant’s evidence are difficult to follow and are uncorroborated by documentary evidence. The Applicant’s evidence is that the lack of provision, or creation, of material documents by the Respondent is deliberate and therefore the documents before the Tribunal are incomplete.[12] The Tribunal is not satisfied as to the correctness of this evidence.

    [12] Transcript, page 29, lines 19-28.

25. In any event, the substance of the Applicant’s evidence is that he is deeply dissatisfied with Centrelink and the administration of the Act in conjunction with the National Disability Insurance Scheme Act 2013 (Cth).

26. The substance of the Applicant’s argument is not neatly encapsulated within any specific paragraph of 78 pages of the transcript, but is illustrated in the following words:

    Keep in mind, my position, my argument is that, yes, it’s a narrow issue and that’s my contention, it’s a narrow issue. The issue before the Member, before the tribunal, is can I put my total permanent disability money in my NDIS account for future medical needs as Centrelink told me I could, because when all this was occurring I spoke to level 2 in policy and they told me, yes, you can put that money in your account and, yes, it will be exempt from Centrelink.

    The problem arose when the untrained, uneducated worker in the Darwin office took it upon themselves to ignore all the politicians and judges and lawyers and Queen’s Counsels who wrote the NDIS Act and took it upon themselves to interpret them as they saw fit. That’s where I’ve got a problem. Where someone who’s clearly is not a lawyer in Centrelink, who has no legal experience - this is what annoys me, right. We have these politicians and judges and experts who come up with the policies and the legislation. [13]

    [13] Transcript, page 13, lines 1-12.

27. Reframed in different words, the Applicant’s argument is as follows:

    The problem arises from the fact that I put that money in my exclusive NDIS account, right? Centrelink level two policy told me I could do that and the low level pencil pushers in the Darwin office, the desk jockeys told me they had a different opinion. And the people that I’ve had issues with for nearly 30, 40 years decided they wanted to take a different view from everyone else and they cut my pension off, right?

    They suspended it there and then. After - long after I’d inform them, long after the money had been put in my account, when they had gone away and reviewed evidence and I’ve said, look, you’re wrong, your figures are wrong, your methodology is wrong, your understanding is wrong, they cracked the shits, suspended me and banned me from the building, right?[14]

    [14] Transcript, page 66, lines 1-12.

28. The Applicant’s Statement of Issues, Facts and Contentions does not meaningfully assist the Tribunal navigate the contents of the Applicant’s Bundle of Documents that comprise Exhibit A2. As such, it is difficult to ascertain the reasons why the Applicant relies upon various documents or how they support his oral evidence and submissions.

29. Lastly, although the Applicant raised issues of procedural fairness in AAT1 in his application, his oral evidence was limited to the following allegation:

    … I wasn’t able to present my case to their appeal. Their appeal didn’t consider all the evidence. It denied me procedural fairness. Their case did not address any of my concerns. They addressed their concerns from their point of view. They railroaded me. That verdict is wrong and I think it should be reviewed. I think it should be varied. I think it should be thrown out.[15]

    [15] Transcript, page 22, lines 36-41.

30. The serious allegation that the decision in AAT1 was the result of ‘railroading’ is not corroborated by any other evidence. The Tribunal is not satisfied that the Applicant was denied procedural fairness in AAT1.

    CONCLUSION

31. Noting the consensus of the parties that the decision under review should be set aside, the question for the Tribunal is whether directions should be made as have been sought by the Respondent on 29 August 2022.

32. The Tribunal has considered the evidence before it and weighed compelling aspects of the Respondent’s case against the forensic disadvantage suffered by an Applicant who is under a disability and was self-represented at his hearing. It is material to the Tribunal’s consideration that the Applicant is now legally represented and better placed to engage with the evidence, albeit after the close of submissions.

33. On balance the Tribunal considers that the fairest and most just approach, consistent with s 2A(b) of the AAT Act, is to is set aside the decision under review and remit it to the Respondent to be reconsidered and determined according to law. In doing so, it is unnecessary for the Tribunal to make finding as to whether certain monies held by the Applicant are a financial asset and, if so, any sum of deemed income.

    Decision

34. Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the Social Services and Child Support Division of the Tribunal on 13 May 2021, that affirmed the decision of the Respondent dated 10 June 2020, is set aside and remitted to the Respondent to be reconsidered and determined according to law

I certify that the preceding 34 paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[sgnd]......................................

Associate

Date of Decision:	23 December 2022
Date of Hearing:	25 October 2022
Solicitor for the Applicant:	Ms Sephyr Cooper Maleys Barristers & Solicitors
Solicitor for the Respondent:	Mr Calaby Services Australia

ANNEXURE A - EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
A1	Applicant’s Statement of Facts Issues and Contentions	A	20 December 2022	20 December 2022	8 August 2022
A2	Bundle of Applicant’s Documents	A	Various	19 October 2022	8 August 2022
R1	T Documents	R	Various	15 July 2021	8 August 2022