Editors --- "Special benefit: newly arrived resident's waiting period; whether substantial change in circumstances" [2013] SocSecRpr 24; (2013) 15(3) Social Security Reporter, Article 9

• BERTHLMAWOS and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Legislation
• Discussion
• Decision

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Special benefit: newly arrived resident’s waiting period; whether substantial change in circumstances

BERTHLMAWOS and SECRETARY TO THE DFHCSIA

(2013/459)

Decided: 4th July 2013 by R.P Handley

Background

Berthlmawos, aged 40, married an Australian citizen, Nahkla, in Egypt on 27 July 2011. On 12 January 2012 a

Subclass 309 Provisional Spouse Visa was issued and Berthlmawos arrived in Australia on 12 August 2012. She was six months pregnant when she arrived and her daughter was born in November 2012. Berthlmawos had worked as an accountant for more than ten years in Egypt; she ceased work when her recently widowed mother was taken to hospital in a critical condition, and would only come to Australia with her husband when her mother’s condition had improved.

Nahkla had been injured at work in 2006 and he had been receiving workers’ compensation payments through QBE. Nahkla travelled to Egypt 2009 and in January 2010. On each occasion QBE told him that his payments would stop whilst he was away but would resume when he returned to Australia and supplied a new medical certificate. Nahkla informed QBE that he was leaving in August 2010 and he was told that his payments would stop while he was away but would resume on his return after he provided a new medical certificate.

When Nahkla returned to Australia in August 2012, with his new wife, he found letters from his new QBE case manager saying that unless a new medical certificate was received by 18 June 2011, it would be assumed that he no longer wished to receive benefits from QBE and his case would be finalised. Nahkla obtained a new medical certificate but QBE refused to reinstate his incapacity payments. Nahkla approached Centrelink about social security benefits and QBE informed Centrelink that Nahkla had been in receipt of incapacity payments until August 2012.

Nahkla owned his own home outright but was unable to work at the time of the AAT hearing partly because of his workplace injury and other conditions and partly because he was unable to leave his wife because she was so dependent upon him. Nahkla was in receipt of parenting payment partnered, family tax benefit and baby bonus (due to cease at the time of hearing).

Berthlmawos made an application for Special Benefit (SpB) in October 2012 and Centrelink and the SSAT found that she was subject to the newly arrived resident’s waiting period (NARWP) of 104 weeks and that she had not experienced a substantial change in her circumstances beyond her control since her arrival in Australia.

Issues

The issue for the AAT to determine was whether Berthlmawos had suffered a substantial change in circumstances beyond her control.

Legislation

Social Security Act 1991 (the Act) s.729 sets out the qualifications for SpB. The Department conceded that Berthlmawos was qualified for SpB but that s.739A prevented payment for 104 weeks unless the person has suffered a substantial change in circumstances beyond their control. 739A

(1) Subject to this section, a person who, on or after the commencement of this subsection:

(a) enters Australia; or

(b ) becomes the holder of a permanent visa; or

(e) becomes the holder of a visa that is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph; is subject to a newly arrived resident’s waiting period.

(5) If:

(a) a person is subject to a newly arrived resident’s waiting period; and

(b) neither subsection (3) nor (4) apply to the person; the waiting period starts on the day on which the person:

(c) first entered Australia; or

(d) becomes the holder of a permanent visa; whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

...

(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary’s opinion, has suffered a substantial change in circumstances beyond the person’s control.

Section 739C empowers the Minister to make guidelines which must be followed when making the determination about change in circumstances. The Guide to the Social Security Law (the Guide) addresses what constitutes a ‘substantial change in circumstances’ for Special Benefit at paragraph 3.7.2.20 and subsequent paragraphs. Under the heading ‘Changed circumstances that are NOT substantial for the purposes of SpB’, two examples are given. The second states:

Example 2: The SpB claimant and the partner decideto have a child during the NARWP period. The birth of a child is NOT considered to be a substantial change in circumstances as it is a lifestyle choice over which the couple did have control and SpB is not payable.

Examples of changed circumstances that would be considered substantial are where the SpB claimant has a prolonged illness or injury, is unable to work and has incurred significant costs.

Discussion

Berthlmawos spoke little English. Via an Arabic interpreter she explained that she and her husband had always intended to live in Australia, she knew about her husband’s incapacity payments and they had expected the payments to resume when he returned to Australia. She became stressed, especially when they received letters demanding payment and threatening legal action. Nahkla described that his wife had lived in a unit in Egypt in close proximity to others and that she felt scared and insecure living in a house in Australia. She worried about intruders and had difficulty sleeping. Nahkla installed shutters in the hope she would feel more secure. He was unable to leave her alone because of her mental health condition and, culturally, she had difficulty accepting the need to get help, but that she was now seeing a psychiatrist and a psychologist. Berthlmawos had been diagnosed with depression and anxiety, poor dental status, and back aches. Berthlmawos said she had none of those problems before coming to Australia. Nahkla also had proof of the medication needs for the family.

The couple provided proof of overdue utilities accounts and proof of a debt to Nahkla’s niece for $14,294 ($9,613 of which was for the purchase of the shutters).

Berthlmawos relied on three matters for her change of circumstances: the cancellation of the incapacity payments as their form of income; the evidence of anxiety and depression and dental problems; and her financial hardship. The Department argued that Nahkla had not consulted a solicitor about reinstatement of his QBE payments and that it was difficult to accept Berthlmawos’ severe depression had manifested only in Australia. The AAT stated that the Act is beneficial legislation and that Berthlmawos was an unrepresented litigant from a non-English speaking background. The AAT accepted that the QBE payments had ceased and that there was no evidence a solicitor might assist in a resumption of same. The AAT accepted the evidence of the mental health problems and accepted that the onset post-dated her arrival in Australia. The AAT accepted that the couple were reliant on limited social security income and were in financial hardship. The AAT accepted that the changes were substantial in nature and beyond their control.

Decision

The AAT set aside the decision under review and substituted a decision that Berthlmawos was not subject to the NARWP when she lodged her claim for special benefit.

[M.R.]