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1. Policy statement

The NSW Government provides a range of COVID-19 economic support measures to support businesses and individuals impacted by NSW public health orders.

On 2 September 2021, the government announced that a Hardship Review Panel will be established to assess businesses that do not qualify for COVID-19 business support, on a case-by-case basis.

1.1 Objectives

The objective of these guidelines is to set out the circumstances under which the Hardship Review Panel may approve COVID-19 support for businesses that do not otherwise qualify.

For the purpose of these guidelines, COVID-19 business supports include:

  • 2021 COVID-19 business grant – a one-off grant of $7,500 to $15,000 (depending on the decline in turnover) to help impacted businesses and not-for-profits across NSW.
  • 2021 COVID-19 micro-business grant – a fortnightly grant of $1,500 to help impacted micro-businesses and not-for-profits across NSW.
  • 2021 JobSaver payment – fortnightly payments of 40% of pre–COVID weekly payroll to help maintain employee headcount and provide cash flow support to impacted businesses and not-for-profits across NSW; $1,000 weekly for non-employing businesses and not-for-profits.

1.2 Scope

These Guidelines apply to the Chief Commissioner of State Revenue, Deputy Secretary of Treasury, the Chief Executive Officer of Service NSW, and all staff members who are delegated to perform their functions.

1.3 Ethical conduct

All activities must be conducted in an ethical and transparent manner and comply with the values, principles, and articles in each department’s Code of Conduct.

Staff will ensure they are not, or are not perceived to be, in a conflict of interest with any applicant. Those staff who have, or may be perceived to have, a vested interest in the outcome of an application should disclose any conflict to their manager and discuss whether they should exclude themselves from any role in the decision.

2. Policy components

2.1 Responsibilities

Each of the following parties has specific assigned responsibilities under this policy:

  • Chief Commissioner of State Revenue
  • Deputy Secretary, Economic Strategy and Productivity Group, of Treasury
  • Chief Executive Officer of Service NSW.

All the parties listed above have the following shared responsibilities:

  • ensuring that their staff comply with these guidelines when making decisions or recommendations
  • ensuring that the most recent approved version of these guidelines is available to staff
  • ensuring that appropriate delegations are approved and described within a delegation instrument, which is made available to officers responsible for making decisions or recommendations under these guidelines
  • ensuring adequate resources – including computer systems – are available to perform any requirements set out in the guidelines.

Chief Commissioner of State Revenue

In addition to the above shared responsibilities and other specific assigned responsibilities under this policy, the Chief Commissioner of State Revenue is specifically responsible for:

  • approving these guidelines
  • chairing the Hardship Review Panel
  • making all final decisions under these guidelines about whether applicants should receive COVID-19 business support.

2.2 Definitions

Unless a contrary intention appears, the following definitions apply for the purpose of these guidelines.

  • Business means businesses and not-for-profit organisations.
  • COVID-19 business support means any of the following COVID-19 business support measures:
    • 2021 COVID-19 business grant,
    • 2021 COVID-19 micro-business grant, and
    • 2021 JobSaver payment.
  • Financial hardship has the meaning set out in section 4.2 of these guidelines.
  • Hardship Review Panel (or ‘the panel’) means a panel comprising Revenue NSW, Treasury and Service NSW, whose function is set out in section 3.2 of these guidelines.
  • Revenue NSW means the Chief Commissioner of State Revenue, whose role is provided for under section 60 of the Taxation Administration Act 1996, or any staff delegated to perform their functions. Note, the role of Chief Commissioner of State Revenue is currently held by the Deputy Secretary of Revenue NSW.
  • Service NSW means the Chief Executive Officer of Service NSW, or any staff delegated to perform their functions.
  • Treasury means the Deputy Secretary, Economic Strategy and Productivity Group, of Treasury, or any staff delegated to perform their functions.

3. About the Hardship Review Panel

3.1 Panel membership

The panel will include Revenue NSW, Treasury and Service NSW.

The Minister for Customer Service, in consultation with the Treasurer, has power to change membership of the panel.

3.2 Functions of the panel

The panel’s role is to assess businesses that do not qualify for COVID-19 grants, on a case-by-case basis.

Panel members will consider evidence supplied and factors in these guidelines, then make a recommendation to Revenue NSW about whether a business or group of businesses should receive any of the COVID-19 business supports. Where panel members cannot jointly agree on a recommendation, dissenting views will be noted.

Revenue NSW will review the panel’s recommendations, including any dissenting views, and make a final determination on whether the business can receive any of the COVID-19 business supports.

Applications will be assessed in the absence of applicants, having regard to evidence supplied by the applicants and the factors outlined in these guidelines. Panel members may seek additional information from applicants or other sources to inform its recommendation.

The panel will determine appropriate governance measures and procedures to follow, including whether the panel will meet to assess applications or whether panel members will make their recommendations via submissions to the Chief Commissioner of State Revenue for final determination.

3.3 Application outcomes

Revenue NSW has the power to direct Service NSW to grant COVID-19 business supports. The value of support provided will be the amount listed in the relevant guidelines published by Service NSW (refer to section 7 for links to related guidelines). Revenue NSW does not have the power to change the value of support provided.

Where an application is unsuccessful, Revenue NSW will write to the applicant to notify them of the outcome. This may include where requested evidence has not been provided by the applicant.

All decisions by the panel are final and cannot be appealed.

4. Eligibility criteria

4.1 Who can apply?

To be eligible to apply to the Hardship Review Panel, businesses must demonstrate that they:

  • do not meet the eligibility criteria for COVID-19 business support or have had an application for COVID-19 business support refused, for example, because they cannot demonstrate a 30% decline in turnover (15% for certain not-for-profit organisations) or do not meet the minimum aggregated annual turnover requirements, and
  • are experiencing financial hardship as a result of NSW public health orders.

Businesses that may apply to the Hardship Review Panel include, but are not limited to:

  • pre-revenue businesses that have incurred business set-up and operating costs
  • businesses unable to demonstrate annual turnover of more than $30,000 to qualify for the micro-business grant, and
  • businesses with unusually lumpy or irregular revenue.

4.2 What is financial hardship?

For the purpose of these guidelines, businesses may be deemed as experiencing financial hardship if they can demonstrate that, without COVID-19 business support, they:

  • are at imminent risk of closure,
  • are unable to pay for operating expenses such as rent or employee-related expenses, and/or
  • will be forced to reduce employee headcount.

In the case of non-employing businesses, financial hardship may also be established if the business owner can demonstrate that they are unable to provide themselves or their immediate family a modest standard of living with food, shelter, clothing, medical treatment, and other basic requirements.

When establishing financial hardship, all businesses must also demonstrate that:

  • they have not engaged in excessive and non-essential expenditure,
  • their decline in revenue is due to the impact of NSW public health orders, rather than the result of normal business operations, and
  • it is not practical to rearrange finances or draw upon non-essential assets to continue to operate.

4.3 Exclusions

The Hardship Review Panel will not consider applications from businesses that:

  • have an application currently being assessed by Service NSW,
  • have already been assessed by Service NSW, and found to be eligible, but are seeking to reapply for a different amount based on changes to eligibility criteria (e.g. changes to the comparison periods); these businesses should contact Service NSW to discuss their circumstances,
  • have previously applied to Service NSW and wish to withdraw and re-submit their application based on changes to eligibility criteria (e.g. changes to the comparison periods); these businesses should contact Service NSW to discuss their circumstances,
  • have previously submitted an application that has been identified by Service NSW as potentially fraudulent or where there are disputes about previous debts owed, and
  • are non-employing businesses that received the Commonwealth Disaster Payment but wish to receive COVID-19 business support for the same period.

5. Factors to be considered by the panel

The panel may consider any factor when determining whether to recommend or approve a COVID-19 business support payment.

5.1 Impact of NSW public health orders on the business

When assessing the business, the panel must consider the impacts of NSW public health orders, including:

  • whether the business is within a highly impacted industry, and
  • whether the business is in a local government area of concern.

5.2 Characteristics of the business

When assessing the business, the panel will consider the characteristics of the business, including:

  • whether the business supports employment,
  • the extent to which public health orders could have reasonably been expected to impact the revenue of the business,
  • the steps the business has taken to mitigate the impact of public health orders on its revenue,
  • the extent to which lost revenue is likely to be recovered outside a 2-week comparison period,
  • whether the business predominantly employs Aboriginal and Torres Strait Islander people,
  • whether the business provides goods or services to a community that would not otherwise be available (for example, in a regional or remote area),
  • whether the business has unavoidable fixed costs, such as rent, for which no other support is available, and
  • the business’s past performance.

6. Evidence

6.1 COVID-19 business support

When applying for a COVID-19 business support for the first time, applicants should provide the documentation required under the program guidelines where available. This may include, for example, the business’s Australian Income Tax Return, Business Activity Statements, and payroll reports where relevant.

See section 7 of these guidelines for links to the COVID-19 business support program guidelines.

6.2 Evidence supplied to the panel

When an applicant asks for a review by the Hardship Review Panel, all documentation submitted in their original COVID-19 business support application will be supplied to the panel by Service NSW.

6.3 Additional evidence

When applying to the Hardship Review Panel, applicants should also supply additional information that demonstrates eligibility under these guidelines.

The review panel may request any documentation needed to make its assessment.

This may include, but is not limited to:

  • evidence of business expenses (for example, bills for utilities, rent or wages)
  • evidence of a business’s revenue (including decline in revenue)
  • evidence of the impact that NSW public health orders have had on employee headcount
  • copies of the business’s recent filings with the Australian Tax Office or other government agencies (with their Tax File Number redacted)
  • copies of lease agreements or other fixed cost contracts the business has entered
  • a statement from an independent party about the impact the business has in the community, in terms of employment and delivery of goods and services (for example, a statement from a local government councillor or member of parliament)
  • a business owner’s qualitative insights about their experience of financial hardship
  • a letter from the business’s qualified accountant, registered tax agent or registered BAS agent
  • any other relevant documentation.

7. Related policies and documents