Decisions of Interest January-June 2020

adminSocial security rights review

Kara and Secretary, Department of Social Services (Social services second review) [2020] AATA 393 (5 March 2020)

This case concerns participation exemptions for a Program of Support (POS).

Mrs Kara had been on and off the DSP since 1993. In August 2016 her DSP was cancelled because she travelled oversees for longer than the allowed portability period of 4 weeks. In December 2016 she applied for restoration of the DSP. Mrs Kara had not participated in a POS during the three-year period prior to lodging her claim. She also did not apply for an exemption from this requirement. The Secretary rejected her claim on this basis. However, the reason Mrs Kara had not completed a POS in the previous three years was because she was receiving DSP during that period.

The member described Mrs Kara as caught in a ‘Catch 22’ situation and applied s94F of the Social Security Act in determining that these were special circumstances that allowed for an exemption. In doing so the member set out at [76] a number of factors which go to establishing whether or not special circumstances exist. The member referred to s 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 as indicating that it may be possible that there are circumstances in which an Applicant is unable to participate in a POS and these reasons are to be taken into consideration by the Secretary when determining whether or not that person has “actively participated” in a POS. The member therefore remitted the matter to Centrelink for consideration of whether the POS requirement had been met in light of Mrs Kara status as a DSP recipient during the relevant period.

The member also noted that Mrs Kara had been told by a Centrelink officer that it would be easier to lodge a new claim rather than to apply for pension restoration. The member speculated that had Mrs Kara applied for pension restoration, the question of the POS might never have arisen.

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El Armaly and Secretary, Department of Social Services (Social services second review) [2020] AATA 984 (30 March 2020)

This case concerns an overpayment of Newstart Allowance and DSP as a result of a recipient failing to declare an interest in certain assets.

This case provides guidance on:

  • assets test provisions in relation to trusts
  • the relevance of English language skills and education in relation to recipients understanding and accurately communicating to Centrelink the status of their assets
  • the relevance of English language skills and education in relation to creating legal arrangements in respect of assets.

Mrs El Armaly received Newstart from 2000 to 2002 and DSP from 2002 to 2016. In September 2016 she was found to owe $23,825 for overpayment of Newstart, and $212,337 for overpayment of DSP due to her interest in three properties:

  • her family home in Brunswick (Brunswick)
  • a semi-rural property in Avalon (Avalon 1)
  • an immediately rural property in Avalon (Avalon 2)

Both Mrs El Armaly and her former husband are unable to read in English. Mrs El Aramy had only been to school for three years and could not write, only sign and write her own name.

When Mrs El Armaly separated from her husband in 2001 they signed a document titled ‘Personal Agreement Deed’ which stated that Mrs El Armaly had no interest in the Brunswick property and it belonged entirely to her husband, and that her husband had no interest in Avalon 1 and it belonged entirely to Mrs El Armaly. In 2014, they signed formal transfer of land documents for both properties effectuating their agreement. They had not undertaken the transfer previously due to financial considerations and only did so after being contacted by Centrelink about their assets.

Avalon 2 was bought by Mrs El Armaly with a loan approved in her name and a deposit paid by her husband. She wanted the property to belong to her son Tony and signed a document stating that she acknowledged that the property belonged to him, that Tony would make payments on the mortgage until the land was paid off, and that it was then up to the parties to transfer the land to his name. The document was written by an advisor in the Lebanese community and was presented to Mrs El Armaly as a legal document. Tony made the repayments until the loan was paid off but did not change the title.

When Mrs El Armaly applied for Newstart in 2000 she declared that she had no interest in a trust. She said she relied on people around her to help fill out forms. There was no answer given on the form to the question as to whether she received assistance in filling it out.

The member concluded that no family member understood the concept of a trust in its simplest sense. At law, Mrs El Armaly was the joint proprietor of both Brunswick and Avalon until 2015 when transfers of title were executed. However, counsel for Mrs El Armaly argued that the 2001 agreement constituted an express trust that operated to erase her financial interest in Brunswick and vest ownership of Avalon 1. The member considered that despite Mrs and Mrs El Armaly’s limited literacy and legal understanding, they had intended the agreement to operate as a trust and it should therefore be construed as such. The member made the same conclusion regarding Mrs El Armaly’s agreement with her son. The properties were thus not attributable assets and Mrs El Armaly was not liable for overpayment.

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Atkinson and Secretary, Department of Social Services (Social services second review) [2020] AATA 979 (27 April 2020)

This case concerns Maximum Portability Periods for DSP in circumstances where a recipient is absent from Australia for a total of more than 28 days.

This case provides guidance on qualification for unlimited Maximum Portability Periods for DSP recipients.

The member set out the principles that apply to Maximum Portability Periods at [15]-[27]. In order to qualify for an unlimited Maximum Portability Period a recipient must make an application for such qualification under subsection 1218AAA(1) while they are still in Australia and undertake portability assessment by a Job Capacity Assessor. In order to be granted an unlimited portability period, they must be assessed as having a ‘severe impairment’, meaning that they are unable to do any work independently of a program of support. The Secretary can only extend a person’s portability period when the person is outside Australia in special circumstances. The member emphasised that recipients are not entitled to request that a determination about their qualification for unlimited portability be made retrospectively [38-40]

Mr Atkinson was diagnosed with mild spastic congenital paraplegia in 1992. He was granted DSP in 2002. He departed Australia for the USA in January 2016 and informed Centrelink that he would spend a month there; however, he did not return until February 2017. His DSP was initially suspended, and then cancelled in December 2016. On his return to Australia, Mr Atkinson underwent a JCA assessment where he was given an impairment rating of 10 points only and assessed as having a future work capacity of 15 to 22 hours per week. He was therefore unable to qualify for DSP.

The member considered that Mr Atkinson had not fulfilled the requirements of subsection 1218AAA(1) and could not satisfy the outside Australia exemption as there were no special circumstances in his case that prevented him from returning to Australia. The member further considered that even if Mr Atkinson had applied for a determination regarding portability, he did not have a ‘severe impairment’ for the purposes of extending the portability period. The member considered medical evidence about Mr Atkinson’s health at the time of his departure and found that his conditions would not have attracted 20 points or more under a single impairment table. Further, his work history showed that he was able to undertake work independently of a program of support. He had undertaken occasional work in hospitality of between 8 and 30 hours a week in roles that involved sitting and accommodated his condition. The member concluded that even if Mr Atkinson had applied for a determination, he would not have satisfied section 1218AAA(1)(b) as he did not have a severe impairment, or section 1218AAA(1)(d) because he was able to work independently of a program of support. The decision under review was therefore affirmed.

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Psomadellis and Secretary, Department of Social Services (Social services second review) [2020] AATA 1011 (1 May 2020)

This case concerns the granting of a time extension for lodging an application for review of a decision with the AAT2.

Mr Psomadellis suffered from a range of physical impairments, chronic fatigue syndrome and depression. He was seeking a review of an AAT1 decision about DSP more than 4 months outside the 28-day time limit. During this time, Ms Psomadellis had sought further medical evidence in the form of medical reports and letters. This process took him additional time due to his mental health condition.

The member considered that it was reasonable in all the circumstances to extend the time for lodging an application, having regard to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. The member agreed with the Secretary’s submission that Mr Psomardellis was informed of his appeal rights and the length of delay weighed against an extension being granted. However, he considered that Mr Psomardellis had not ‘rested on his rights’ as he was seeking further evidence and the delay in doing so was a consequence of his mental health condition.

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