Uka and Secretary to the Department of Family and Community Servi Ces

[2003] AATA 1117

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1117

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1174

GENERAL  ADMINISTRATIVE DIVISION

Re:         JAMES UKA

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr J.R. Handley, Senior Member

Date:             7 November 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) J.R. Handley

Senior Member

SOCIAL SECURITY - advance payment of disability support pension - previous advance within last 12 months - debt owing to Commonwealth - absence of discretion - decision affirmed

Social Security Act 1991 ss1061A(4), 1061ED(2), (3)

REASONS FOR DECISION

7 November 2003  Mr J.R. Handley, Senior Member

1.      Mr Uka applies to review a decision made by the Social Security Appeals Tribunal (SSAT) on 16 October 2003.  The SSAT then decided to affirm a decision previously made by Centrelink to reject an application for an advance payment of disability support pension.

2.      The hearing was convened in Melbourne on 5 November 2003.  Mr Uka appeared without representation.  Mr Todd, a Centrelink advocate, appeared on behalf of the respondent.

3.      The circumstances giving rise to this unfortunate application may be briefly summarised as follows.

4.      Mr Uka is a disability support pensioner.  In May 2003, he received an advance payment of $500 against future disability support pension payments.  On 30 September 2003, he made another application to Centrelink for a further advance of $1300 against future disability support pension payments.

5.      Centrelink rejected the application for the further advance by reference to provisions within the Social Security Act 1991 (the Act).

6. Relevantly, s1061A(4) of the Act provides as follows:

1061A(4)     A person is not qualified for an advance payment if:

(a)the maximum amount of advance payment to which the person would be entitled under Division 4 is less than $250; or

(b)the person has received an advance payment, or an instalment of an advance payment, of a social security entitlement and has not fully repaid the advance payment; or

(c)the person has received the amount of an advance payment in a single lump sum, or has received the first instalment of such an amount, on or after 1 January 1997, and the period of 12 months from the day the lump sum or instalment was paid has not elapsed; or

(d)the person owes a debt to the Commonwealth (whether arising under this Act or not) that is recoverable under Part 5.2 by means of deductions from the person’s social security payment.

7.      Section 1061A(5) of the Act provides that subsection (4)(c) (above) does not apply in the context to a person receiving parenting payment, but that has no application in the present circumstances.

8. Section 1061ED(2) and (3) are recorded in the following terms:

1061ED(2)   Subject to section 1061EH, the amount of the advance payment is the smallest of the following amounts:

(a)the amount of advance payment sought;

(b)the maximum amount of advance payment payable to the person as worked out under subsection (3);

(c)$500.

1061ED(3)   For the purposes of paragraph (2)(b), the maximum amount of advance payment payable to the person is the amount worked out using the following formula:

6% x annual payment rate

where:

"annual payment rate" is:

(a)if the person was receiving a social security pension on the last payday before the application for the advance payment was made — the rate at which the pension was payable under the relevant Pension Rate Calculator or Pension PP (Single) Rate Calculator (as the case requires) to the person on that payday, excluding any amount payable by way of remote area allowance; or

(b)if the person was receiving a benefit PP (partnered) on the last payday before the application for the advance payment was made — the rate at which pension PP (single) is payable to the person under the Pension PP (Single) Rate Calculator on the person’s first pension PP (single) payday after the application for the advance payment was made, excluding any amount payable by way of remote area allowance.

9.      Mr Uka is presently 46 years of age.  He holds an Economics Degree and has almost completed a Law Degree.  He was previously an employee of the Federal Court of Australia but is now in receipt of disability support pension.  The advance of $500 made to him in May this year by Centrelink is being recovered at $38.50 per fortnight. 

10.     The basis for the application to Centrelink for the advance of $1300 is not apparent from the T documents.  The form, however, completed by Mr Uka, requesting that the primary decision be reviewed by an authorised review officer, records the reason for another advance payment as follows:

I am seriously in need of personal rehabilitation overseas.  I am presently under a lot of pressure here. 

This advance would be used to purchase an airline ticket overseas.   (T11, p.19)

11.     In his application to the SSAT, Mr Uka recorded:

I believe I have an urgent need for rehabilitation overseas.  As I am unable to save from my disability support income; the decision to refuse my request for an advance payment and my inability to find a suitable Nominee which is a condition for the advance payment.

12.     Mr Uka acknowledged that the legislation prescribed the basis for qualification for an advance payment and the disqualification against another advance payment in his present circumstances.  However, he said that the respondent and the SSAT did not take account of his personal circumstances.

13.     Mr Uka said that he has been in Australia for 15 or 16 years.  He said that he has experienced social tension which was underground and not apparent whilst he was studying his law subjects.  However, he said that he has been the subject of discrimination with respect to employment, housing and socialising, for which he has sought assistance from the Equal Opportunity Commission.  He has also made an application for compensation upon Comcare Australia (which has been denied), but which he had hoped would strengthen his ability to demonstrate his need for rehabilitation funding. 

14.     Mr Uka said that he is presently unable to manage his financial affairs and the pension presently being paid to him is not sufficient to meet his day‑to‑day living expenses.  From the T documents lodged by the respondent, it appears that his public housing is in jeopardy because he is unable to meet rental payments.  Mr Uka also said at the hearing that he no longer qualifies for food parcels or assistance from welfare agencies.  In fact, Mr Uka said that he has a sense that welfare agencies "would prefer me to leave the country".

15.     Mr Uka has also suffered from problems associated with poker machines and other forms of gambling.  He understands that this is a disease and that he had resorted to poker machines in order to acquire additional moneys.  Furthermore, he said that he is no longer able to obtain assistance from persons who were his friends.

16.     Mr Uka is of the belief that the only means to resolve his financial and emotional difficulties is to leave Australia, by "going to some place to give me peace of mind". 

CONCLUSION AND REASONS FOR DECISION

17.     Mr Uka cannot qualify for an advance payment. 

18. Within the provisions of s1061A(4) of the Act, the applicant is a person who presently has received an advance payment, he has not fully repaid it, a period of 12 months has not elapsed from the date of the last advance payment and he is a person who owes a debt to the Commonwealth which is recoverable.

19.     There is no discretion available under s1061A, nor can I find a discretion anywhere else within the provisions of the Act.

20.     Additionally, even if there were a present entitlement - which for the above reasons there is not - any advance payment would be limited to the sum of $500 under s1061ED of the Act.  That section provides that the amount of the advance payment is to be the smallest of either the amount sought, the maximum amount payable under subsection (3) or $500.  Mr Todd advised that, upon his calculations, the maximum entitlement under subsection (3) would be in the vicinity of $700.  Having regard, therefore, to the provisions of subsection (2), the smallest of the three amounts applicable under that subsection (the $1300 sought, the sum of $700 payable under subsection (3) and the sum of $500) is in fact the sum of $500.  It follows, therefore, that, even if there was a present entitlement to an advance payment, it would be limited to the sum of $500 and the application for a payment of $1300 would not be permitted.

21.     It would be inappropriate in the circumstances of this application to conclude that the decision under review should be affirmed (which it must be) without attention being given to the personal circumstances of Mr Uka.

22.     It is clear from what was learnt at the hearing that Mr Uka is in a spiral of financial, social and emotional decline for which he presently sees no solution.  It appears that he suffers from an illness, which apparently qualified him for disability support pension.  He has lost employment that he previously had, he no longer has friends and colleagues, his accommodation is in jeopardy, his pension is being significantly reduced, he no longer qualifies for food assistance from welfare agencies and he has an overwhelming sense of discrimination.  His solution is to leave Australia and reside elsewhere and it was for that reason that he sought an advance payment.

23.     I note from the T documents that there has been a contact between Mr Uka and a social worker at Centrelink.  I would encourage contact be made with Mr Uka to assist him in managing or coping with some or all of the personal circumstances that presently confront him.  It is likely that there are agencies or institutions locally available - without cost - which may be of assistance to Mr Uka.  I would also urge that consideration be given to reducing the amount of withholdings from his pension, which would - if reduction is possible - give him greater funds each fortnight.

24.     The decision under review is affirmed.

I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision of:

J.R. Handley, Senior Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  5 November 2003

Date of decision:  7 November 2003
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr M. Todd, Centrelink