JobSeeker, COVID-19 & the AAT

The Administrative Appeals Tribunals (AAT) review decisions made by government departments by assessing the relevant facts, law and policy to make the legally correct decision or, where there can be more than one correct decision, the preferable decision.

Following the review of a decision by Centrelink’s Authorised Review officer (ARO) or Subject Matter Expert (SME) about social security pensions, benefits and allowances relating to

  • rejection of a claim;
  • suspension or cancellation of a payment;
  • rate of payment;
  • incurring and recovering a debt

the Social Services & Child Support Division of the AAT can conduct a “first review”, where they may affirm, vary ,or set aside the decision and either substitute its own decision; or return it to Centrelink to make a new decision.

Background

A inherited a 50% share of real property from her mother’s estate. Completion of the sale of real property occurred on 26 September 2018; following which A deposited approximately $738000.00 into a bank account (the Deposit).

The Deposit was a financial asset under the asset test for the JobSeeker benefit exceeding the asset limit of $473,750. However, under the federal government’s COVID-19 measures introduced from March to September 2020, the Deposit was deemed an exempt asset under s 1118(1B) of the Act. (the exemption)

Section 1118(2B) provides that for subsection (1B), the exemption may be extended for up to a total period of 24 months from the date of completion of the sale if:

  • i. a person who has sold his or her principal home is making reasonable attempts to purchase, build, repair or renovate another residence; and
  • ii. the person has been making those attempts within a reasonable period after selling the principal home; and
  • iii. the person has experienced delays beyond his or her control in purchasing, building, repairing or renovating the other residence.

A was granted JobSeeker allowance from 26 June 2020, (the date she applied) until the expiration of the exemption on 25 September 2020.

The hearing

In DFRP and Secretary, Department of Social Services (Social services second review) [2021] AATA 5080 A sought to review the decision of the Social Services and Child Support Division of the AAT made on 9 July 2021, which affirmed the decision of Services Australia to cancel A’s JobSeeker payments as her assets exceeded the allowable limit for JobSeeker payments under the Social Services Act 1991 (Cth).

Section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that the prescribed time for lodging an application with the AAT is within 28 days after notice of a decision is given to an Applicant.

A lodged application’s for a Second Review of Decision and an Extension of Time for Making an Application for Review of Decision with the AAT on 9 September 2021.

The application for review of the Decision was required to be lodged with the AAT by 23 August 2021 therefore the application was 17 days out of time.

However, s 29(7) provides that the AAT may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.

Where the respondent is opposed to the extension of time, s 29(10) of the AAT Act requires the AAT to give the parties a reasonable opportunity of presenting their respective cases.

The decision

The AAT held that prescribed time limits should be complied with, however, in this case, given A’s circumstances, the length of the delay, wouldn’t cause prejudice to the Respondent or infringe on the interests of the public.

A provided no evidence that she met s1118(2B). Importantly as the maximum period permitted for the extension is 24 months from the completion of the sale of real property an extension to the exemption under s 1118(2B) would have expired on the day following the cancellation of A’s JobSeeker benefits.

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