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Singh and Secretary, Department of Social Services (Social services second review) [2017] AATA 2706 (18 December 2017)

Last Updated: 20 December 2017

Singh and Secretary, Department of Social Services (Social services second review) [2017] AATA 2706 (18 December 2017)

Division: GENERAL DIVISION

File Number: 2017/2726

Re: Kabul Singh

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member D K Grigg

Date: 18 December 2017

Place: Brisbane

The Tribunal affirms the decision under review

..................................[Sgd]...................................

Member D K Grigg

CATCHWORDS

SPECIAL BENEFIT – Guide to Social Security Law – long term available funds test -– decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

Guide to Social Security Law (2017, Cth)

REASONS FOR DECISION


Member D K Grigg


18 December 2017

INTRODUCTION & CLAIM HISTORY

  1. Mr and Mrs Singh are Indian citizens and permanent residents of Australia. Mr and Mrs Singh were granted bridging visas to commence living in Australia in 2001 and were granted Aged Parent (subclass 804) Visas on 16 January 2013.[1] An Aged Parent Visa permits parents of a settled Australian citizen, or permanent resident, to live in Australia permanently.
  2. Shortly after being granted the Aged Parent Visa, Mr and Mrs Singh returned to India until May 2016 after which they returned to Australia to live with their daughter.[2] Then, on 20 May 2016, shortly after returning to Australia, Mr and Mrs Singh lodged a claim for a Special Benefit payment.[3] Section 729 of the Social Security Act 1991 (Cth) (“the Act”), provides for when a person will qualify for a special benefit payment. It provides relevantly as follows:

(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

Note: Special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a) no social security pension is payable to the person during the period; and

(b) no other social security benefit is payable to the person for the period; and

...

(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason ...

(my emphasis)

  1. Mr Singh claimed that he was no longer able to work, that he and his wife were not able to support themselves and that they relied on their daughter for physical and financial support.[4]
  2. Pursuant to their special benefit claim forms Mr and Mrs Singh:[5]
  3. As Mr and Mrs Singh had provided Centrelink with no details regarding how they had been supporting themselves financially and no bank statements, Centrelink requested Mr Singh provide bank statements and details in relation to any overseas pension he receives.[6]
  4. On 3 August 2016 an officer at Centrelink spoke to Mr Singh’s daughter who confirmed she provided free board and lodging to her parents and that her father received an Indian pension.[7] The Centrelink file record indicates that the Centrelink officer asked Ms Singh whether her parents owned a house or any property overseas to which Ms Singh responded “just a small house”. Ms Singh was asked why the property in India had not been disclosed in the claim form and what the intention was in relation to the property. Ms Singh advised the Centrelink officer that her parents had no intention of selling the house as the whole family stays in the house when they are in India. Ms Singh was then advised to complete a real estate form and provide further details about the property and clear copies of bank statements.[8]
  5. On 12 August 2016 Centrelink was provided with bank records indicating Mr Singh was receiving an Indian pension of 17,326 Indian Rupees (equivalent to A$358.75)[9] per month.[10]
  6. On 19 August 2016 Mr Singh provided Centrelink with a statement which says:[11]

“The house I own in India is a two bedroom house and in Australian dollars is worth approximately $20,000.”

  1. On 10 October 2016 Centrelink wrote to Mr Singh to say he did not meet the conditions for a Special Benefit (Hardship) payment.[12]
  2. Mr Singh sought a review of Centrelink’s original decision to reject his claim for a Special Benefit payment.[13] The appeal to the ARO was unsuccessful. The ARO found that Mr Singh did not qualify for the Special Benefit payment because at the time of his Special Benefit claim he had long term available funds of more than $5,000.[14]
  3. Mr Singh then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal and provided additional material to support his claim including:[15]
  4. Ms Jasvir Singh wrote in her statement that:[16]
  5. The statement from the Village Elder provides:[18]

Kabul Singh...has a house in this village. It is a very old and small house and has no modern features. It is more than 65 years old. I do not believe that Kabul Singh would be able to obtain an income by renting this house. Because the house is in poor condition, and has no rental value. Jasvir Singh... thought that the house is worth of 1,000,000 indian rupee ($20,000). Because she is been living overseas for last 28 years but they tried to sell this house recently but no one is going to buy this such an old house in that area. The value of the house is dropped suddenly due to miserable condition of the house... I think that the current value of the house is no more than 230,000 Indian rupees ($5000) aprox.

  1. Several photographs of what is apparently Mr and Mrs Singh’s property were attached to the village elder’s statement.
  2. The SSCSD rejected Mr Singh’s claim and affirmed the ARO’s decision on
    28 March 2017.[19]
  3. Mr Singh has sought a review of the SSCSD’s decision by this Tribunal and his daughter submits on his behalf that:[20]

ISSUE FOR DETERMINATION

  1. The issue for determination is whether Mr Singh is eligible for a Special Benefit payment.

ELIGIBILITY REQUIREMENTS

  1. The Secretary submits that a Special Benefit is a discretionary payment of last resort and payment should only be made where the claimant has insufficient livelihood and no other means of support.[21] The Note in section 729(1) the Act specifically provides that a special benefit payment is a discretionary benefit and is available only to a person who is not able to get any other income support payments.
  2. The Secretary also referred the Tribunal to the policy contained in the Guide to the Social Security Law ("the Guide") which is used by the Department in determining entitlement to benefits. The Tribunal is not bound to apply the Guide, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[22]
  3. The Guide provides in sections 3.7.1.50 and 3.7.1.70 that where a claimant is likely to require assistance for more than 13 weeks, a long term available funds test applies as follows:

What is the long term available funds test?

The available funds tests are primarily about liquid funds (1.1.L.60). The following table explains the long term available funds test when the person has no exceptional or unforeseen expenses (1.1.E.140):

If the person's available funds are...
Then SpB...
more than $5,000,
is NOT payable, regardless of partner status or the number of dependants. No preclusion period applies, and the claim should be rejected.
$5,000 or less,
MAY be payable, subject to other conditions outlined in this chapter.

When applying the long term available funds test, the value of non-liquid assets that could reasonably be realised should be included in the person's available funds. This includes assets located overseas.

Example: Non-liquid assets that could reasonably be realised include a second house that could be sold or rented, a car, or a life insurance policy that could be surrendered.

If the person subsequently lodges another claim and the amount of available funds has been reduced, the delegate must establish that the person has not deliberately placed themself in hardship.

  1. In determining whether a claimant is eligible for Special Benefit the Guide specifically provides that it is appropriate to consider the value of any assets that could reasonably be realised which includes overseas assets such as real estate.[23]

Applying the Long Term Available Funds Test

  1. As referred to above, at the time of making his claim, Mr Singh declared that he had no income and owned no property. Ms Singh told the Tribunal she does not know why her parents did not disclose details about her father’s pension and their property in India in the claim form.
  2. Subsequent to the claim being made, Ms Singh, as nominee, informed Centrelink of the pension and the property and advised it was worth A$20,000.
  3. After the ARO decision to refuse the Special Benefit application Mr Singh and his daughter asserted that they had mistakenly overstated the value of the property and provided statements from a Village Elder and a real estate agent, Sanjeev Verma, to assert that the property was only worth A$5,000.[24]
  4. Mr Singh did not provide a written statement explaining why he had originally stated the property was worth A$20,000.
  5. At the hearing Ms Singh said she had been mistaken about the value of her parent’s property because she had not lived in India for a long time and had not appreciated the value of housing and the fact that her parents’ property had deteriorated. She said that she relies on the statements of the Village Elder and the real estate agent that the property is now only worth A$5,000.
  6. The Secretary submits that the timing of the “correction” of the value of the property in India is significant because:
  7. The Tribunal notes the coincidence that the property was valued at $5,000 only after Mr Singh and his daughter became aware of the long term funds test threshold of $5,000 and considers the likelihood of a property’s value being exactly that of the threshold at the time of the ARO’s rejection of Mr Singh’s claim is implausible.
  8. Leaving aside the timing of the current valuation of the property in India, there is difficulty for the Tribunal is trying to assess the true value of the property based on the evidence currently before it. Whilst there are statements from a Village Elder and a real estate agent that the property is only worth $5,000, there is no evidence of the basis upon which that valuation has been made.
  9. As noted by the Secretary, the statements do not provide any details regarding the description of the house or its furnishings, what attempts have been made to sell or lease the property, the average price or value of other homes in that location. There is also no evidence of the real estate agent’s qualifications or that of the Village Elder’s. The Village Elder’s statement may simply rely on what he has been told by Ms Singh.
  10. The ARO decision records that as at November 2016 no attempt had been made to sell the property. Given that as at November 2016 Mr Singh believed that his property was worth $20,000 and he says he was in such hardship that he needed to apply for a Special Benefit, it seems odd that no attempt was made to recoup some funds by selling the property. Ms Singh confirmed in her submission of 14 March 2017 that the decision “was recently taken to try to sell or lease the family property in India”.[25] This is nearly a year after the Special Benefit claim was made.
  11. The real estate agent states that he showed the house to some of his clients but they were not interested because of the cost to renovate the property. However, no information has been provided about what has to be renovated or any evidence of these costs. Presumably this is why the property is not of a high value. Further, as noted by the Secretary, a purported instruction to sell the property is at odds with the evidence previously provided by the applicants to Centrelink that they had no intention of selling the property because the family continues to use it when visiting India. The Village Elder also states that Mr Singh tried to sell the house recently however there is no evidence before the Tribunal that Mr Singh tried to sell the property prior to January 2017.
  12. The property clearly has some value given that it is where the whole family resides when they go overseas. The Tribunal notes that Mr and Mrs Singh resided in the property between 2013 and 2016. Even if the property was not in good condition it was clearly habitable during that period.
  13. In addition, as noted above, both Mr and Mrs Singh declared in their Special Benefit claim form that they owned no property either in Australia or overseas. It has only come to Centrelink’s attention that they in fact did own property when they spoke to Ms Singh regarding her parents’ claim. The claim forms state that a person providing the information is declaring that the former is complete and correct and that giving false or misleading information is a serious offence. No explanation has been provided by the applicant as to why the information provided in the Special Benefit claim forms was false.
  14. The Tribunal is not able to be satisfied on the evidence available that the property is only worth A$5,000 or less. There is also no reliable evidence before the Tribunal that the property is unrealisable, particularly given that it can be, and is at times, lived in. The evidence of Ms Singh is that her parents do not want to sell their property and only considered doing so in order to obtain the Special Benefit payment. At the hearing Ms Singh asked why her parents would sell the property if the Australian Government will not pay them a pension. This is a curious thing to say because Special Benefit payments are for people who “due to reasons beyond their control are in financial hardship and unable to earn a sufficient livelihood”.[26] If citizens have assets worth A$5,000 or more at their disposal, they are obliged to realise those assets first before making a claim.
  15. Further, Mr Singh is in receipt of a pension and is fully supported at present by his daughter which weighs against any discretion being exercised in any event.
  16. Ms Singh told the Tribunal that she is struggling financially to continue to support her parents. That may be true but at this stage and indeed since the Special Benefit claim was made, Ms Singh has been able to support her parents. The fact that Mr and Mrs Singh do not have to pay for food and accommodation is a relevant factor in determining whether Mr Singh is in hardship. The Guide sets out in section 3.7.1.30 that:

A claim for SpB CANNOT be granted until all the domestic and social circumstances of the person are considered...

SpB should NOT be granted if the person:

Example 1: The person may be receiving in kind support on a regular basis, to the extent that its value is sufficient to be regarded as obtaining or earning a sufficient livelihood or not causing immediate hardship. This might include payment of bills, spousal maintenance and provision of accommodation, food and/or clothing.

...

Example 3: The person may be able to seek an overseas pension.

(my emphasis)

  1. There is simply no evidence of hardship. Further, the evidence, for the reasons referred to above, is that Mr Singh has at least $5,000 worth of assets, receives a monthly pension from India, and is cared for by his daughter, who provides him with accommodation, food and other living necessities.

DECISION

  1. The decision under review is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

................................[Sgd].....................................
Associate

Dated: 18 December 2017

Date of hearing:
8 December 2017
Applicant:
By telephone
Advocate for the Respondent:
Mr Rick McQuinlan, Senior Lawyer
Solicitors for the Respondent:
Department of Human Services

[1] Exhibit 1, T Documents, T5 and T6, pages 42 – 97, Mr and Mrs Singh's Claims for Special Benefit dated
20 May 2016.
[2] Exhibit 1, T Documents, T13, page 116, Centrelink records; Oral evidence of Jasvir Singh.
[3] Exhibit 1, T Documents, T5 and T6, pages 42 – 97, Mr and Mrs Singh's Claim for Special Benefit dated
20 May 2016.

[4] Exhibit 1, T Documents, T5, page 42, Mr Singh's Claim for Special Benefit dated 20 May 2016.
[5] Exhibit 1, T Documents, T5, pages 42-69, Mr Singh’s Claim for Special Benefit dated 20 May 2016; T6, pages 70-
97, Mrs Singh’s Claim for Special Benefit dated 20 May 2016.
[6] Exhibit 1, T Documents, T13, page 116, Centrelink records.
[7] Exhibit 1, T Documents, T13, page 115, Centrelink records.
[8] Exhibit 1, T Documents, T13, page 115, Centrelink records.
[9] Exhibit 1, T Documents, T14, page 133, Foreign pension - details 17,326 Indian Rupees per month was
calculated by Centrelink to be worth $AUS 358.75 per month.
[10] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2017, Attachment 2.
[11] Exhibit 1, T Documents, T7, page 98, Statement of Mr Singh dated 18 August 2016.
[12] Exhibit 1, T Documents, T8, page 100, Letter from Centrelink to Mr Singh dated 10 October 2016.
[13] Exhibit 1, T Documents, T9, page 102, Letter from Mr Singh to Centrelink dated 20 October 2016.
[14] Exhibit 1, T Documents, T10, pages 103 – 108, Decision of Authorised Review Officer and notes dated
22 November 2016.
[15] Exhibit 1, T Documents, T11 and T12, pages 109-114, Statement of Ms Jasvir Singh dated 14 March 2017 and
Documents lodged with the SSCSD regarding Mr Singh’s assets.
[16] Exhibit 1, T Documents, T11, page 110, Statement of Ms Jasvir Singh dated 14 March 2017.
[17] Exhibit 1, T Documents, T12, page 111, Report of Sanjeev Verma, Simran Property Linkers (undated).
[18] Exhibit 1, T Documents, T12, page 112, Statement of Head of Village.
[19] Exhibit 1, T Documents, T2, pages 2 – 7, SSCSD’s Decision and Reasons for Decision dated 28 March 2017.
[20] Exhibit 1, T Documents, T1, page 1, Application for Review received 4 May 2017.
[21] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2017, para 25.
[22] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
[23] See also Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2017, para 27.
[24] Exhibit 1, T Documents T12, pages 111-114, Statement of Sanjeev Verma of Simran Property Linkers (undated)
and Statement of Village Elder dated 30 January 2017.
[25] Exhibit 1, T Documents, T11, page 109, Submission of Ms Jasvir Singh dated 14 March 2017.
[26] Guide, at Part 1.2.6.10.

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