Atwell and Secretary, Department of Social Services (Social services second review)
[2023] AATA 3851
•24 November 2023
Atwell and Secretary, Department of Social Services (Social services second review) [2023] AATA 3851 (24 November 2023)
Division:GENERAL DIVISION
File Number: 2023/0749
Re:Mr Michael Atwell
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:24 November 2023
Place:Melbourne
The decision under review is affirmed.
.........................[sgd]...............................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – Jobseeker Payment – refusal of benefits – failure to provide requested information – complex asset test assessment – whether qualified – whether reasonable excuse for not providing information – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth)
Cases
Adkins and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 817
Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010
Hoefl and Secretary, Dept of Social Services (Social services second review) [2022] AATA 2130
Ibarcena and Department of Family and Community Services [2000] AATA 1141
Rapoff and Secretary, Department of Social Services [2014] AATA 676
Secretary, Department of Family and Community Services and Cocks [2002] AATA 1179Shiel v Department of Social Security [1999] FCA 1237
Secondary Materials
Guides to Social Policy Law: Social Security Guide (version 1.306, updated 3 April 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
24 November 2023
INTRODUCTION
Mr Michael Atwell (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him JobSeeker Payment (JSP) pursuant to section 593 of the Social Security Act 1991 (the Social Security Act).
Mr Atwell has lodged numerous claims for JSP:
(a)On 6 April 2021: Rejected by Centrelink on 1 July 2021 as he had failed to supply all of the required documentation to assess his claim; additionally, as he had failed to make a formal request for review within 13 weeks of the original determination, any back payment could only take effect from 29 November 2022 in accordance with subsection 107(3) of the Social Security (Administration) Act 1999 (the Administration Act). On 7 December 2022 an authorised review officer (ARO) affirmed the decision.
(b)On 29 August 2022: Rejected by Centrelink on 14 September 2022 as he had failed to supply all of the required documentation to assess his claim. On 16 November 2022, the ARO affirmed the decision on the basis that:
When a person claims a payment, they may be required to provide information to verify their circumstances. The information is used to determine whether the person is entitled to receive the payment.
On 29 August 2022, you submitted your claim for JobSeeker Payment and were asked to provide information to verify your circumstances. This included:
·A Module PT (Private Trust) form filled out for York Developers Pty. Ltd. and all requested supporting as listed in this form.
·Evidence of deregistration for the Atwell & Co Pty. Ltd. and Kyarra Blue Pty. Ltd.
·Evidence of a vested trust for Atwell & Co Unit Trust and Atwell Family Trust.
·Evidence from your financial institution that must show your account balances for the period 1 April 2022 to 29 August 2022.
On 14 September 2022, your JobSeeker Payment claim was rejected as you did not provide the requested the information. We were unable to determine that you were entitled to receive JobSeeker Payment.
On 16 September 2022, you contacted wanting to know why your JobSeeker Payment claim was rejected. You supplied bank Westpac and Commonwealth Bank business accounts.
On 30 September 2022, you requested that your JobSeeker Payment claim be reassessed.
On 7 October 2022, a Complex Assessment Officer sent a request for information letter to you asking for:
·Trust deeds/amendments for Atwell & Co Unit Trust and Atwell Family Trust
·Evidence that you are no longer an appointee of the trusts.
·Liquidator report for Atwell & Co Unit Trust, or latest Income Tax Return and financials.
·Liquidator report for Serviced Apartments Australia Pty. Ltd or latest Income Tax Return and financials.
·Evidence that Atwell Family Trust has ceased trading.
·Evidence of vesting of Atwell Family Trust and if not vested latest Income Tax Returns and financials or letter from accountant detailing the income, assets and liabilities of Atwell Family Trust.
·Module PC (Private Company) form, Income Tax Return and financials in regards to For Sale For Lease Group Pty. Ltd.
·Your latest personal Income Tax Return.
As at the date of this review you have not provided the information requested by the Complex Assessment Officer. You have also not provided a bank statement for your Commonwealth Bank account (####) for the period 1 April 2022 to 29 August 2022 as listed in your claim as your payment destination.
This means the decision to reject your JobSeeker Payment claim was correct.
(c)On 25 January 2023: Accepted by Centrelink on 23 March 2023 as he had supplied all of the required documentation to assess his claim – determining payment from 16 February 2023.
On 17 January 2023 the Social Services and Child Support Division of this Tribunal (AAT1), affirmed the ARO decision; finding:
In summary, Mr Atwell contended that he had run a very successful business for more than 25 years. He employed many people and paid his taxes. The COVID-19 pandemic destroyed his business and he now deserves to receive financial assistance from Centrelink.
Mr Atwell’s financial situation is complicated. He has been involved in a number of entities in the past (trusts and companies) and he indicated on his claim form that he continues to have “involvement” with all of the entities discussed here, even if not as a director/shareholder.
Centrelink’s role is to assess whether a person is qualified for a particular payment and whether the payment is payable to that person. This involves assessing a person’s income and assets. I therefore find that the information requested in the notice of 7 October 2022 was reasonable.
I note the Centrelink CAO did try to contact the liquidator and bookkeeper as suggested by Mr Atwell but was unable to reach either of them. Mr Atwell essentially argued that he does not have the funds to engage a solicitor and/or accountant to prepare the requested documents. He is therefore unable to provide these.
I have considered Mr Atwell’s argument but there seems to be no reason why he could not approach the director/s of the Atwell & Co Unit Trust, the Atwell Family Trust and Serviced Apartments Australia Pty Ltd (his ex-partner and his mother) and ask them to provide some of the requested information. They may also be in a position to ask the liquidator to contact Centrelink.
I further note that apparently a previous accountant (Mr Smarelli) was preparing financial documents for York Developers Pty Ltd and Serviced Apartments Australia Pty Ltd (in 2021) and there appears to be no reason why the relevant director could not provide this information.
As well, a complete set of bank statements for For Sale for Lease Group Pty Ltd for the 2020/21 and 2021/22 financial years could assist Centrelink in determining any income/ assets Mr Atwell may hold in that entity.
Overall I am not persuaded that Mr Atwell has a reasonable excuse for his failure to comply with the notice and I am thus satisfied that his claim of 29 August 2022 was correctly rejected.
There is no evidence and I find that Mr Atwell did not contact Centrelink within 13 weeks of the notice of 1 July 2021 to request a review of the decision to reject his claim. He asked for a review on 29 November 2022, more than a year later. In accordance with subsection 107(3) of the Administration Act any favourable determination made upon review of the decision, that is to grant the claim lodged on 6 April 2021, can only take effect from the date the review request was made, 29 November 2022.
The information required to determine Mr Atwell’s claim of 6 April 2021 was essentially similar to the information needed for the later claim. Mr Atwell failed to provide all of the information in response to the notice issued on 2 June 2021 and (as discussed above) he failed to provide the requested information in relation to his claim of 29 August 2022.
There is no additional evidence before me to conclude that Mr Atwell ought to be granted his claim of 6 April 2021 with effect from 29 November 2022. I am therefore satisfied that this claim was also correctly rejected.
On 8 February 2023, Mr Atwell applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the AAT1 decision, stating:
I unemployed have no income and legitimately qualify for job keeper I cannot supply the documents request as I have not been a director of the entity for over 12 years.
I will be apply to the ombudsman office and then my local member if this is not resolved. This has become boreoarctic insanity.
The application was heard via telephone on 30 May 2023 and 10 October 2023. Mr Atwell was self-represented and Ms Kathryn Lieschke, solicitor at Sparke Helmore, appeared for the Respondent.
THE ISSUE IN CONTENTION
The issue in contention is whether Mr Atwell qualified for JSP prior to 16 February 2023.
LEGISLATION
The Social Security Guide describes JSP as an income support payment that provides financial assistance to people aged 22 years to age pension age who have capacity to work now or in the near future and prepared to meet mutual obligation requirements. To be eligible for JSP you must meet the income and asset tests.
Section 593(1) of the Social Security Act describes the qualifications required for an individual to receive JSP:
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a jobseeker payment in respect of a period if:
(a)the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
(ii) subsection (1A) applies in relation to the person for the period; and
(b)throughout the period the person satisfies subsection (1AC); and
(g) throughout the period the person:
(i) is at least 22 years of age and has not reached the pension age; and
(ii) is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(i)the person was not in receipt of a youth allowance during the period.
Section 593(1AC) of the Social Security Act requires that a person applying or being paid JSP is willing to actively seek paid work:
(1AC) A person satisfies this subsection if:
(a)the following apply:
(i) the person satisfies the employment pathway plan requirements;
(ii) the person satisfies the Employment Secretary that the person is willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person; or
(b)the following apply:
(i) the person is, under Subdivision C of Division 2A of Part 3 of the Administration Act, not required to satisfy the employment pathway plan requirements;
(ii) the person satisfies the Employment Secretary that the person would otherwise be willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person.
Note 1: For satisfies the employment pathway plan requirements, see subsection 23(1).
Section 611 of the Social Security Act provides that JSP is not payable if an individual’s assets exceed the value limit:
(1) Subject to section 654, a jobseeker payment is not payable to a person if the value of the person’s assets is more than the person’s assets value limit.
(2) A person’s assets value limit is worked out using the following table: work out which family situation applies to the person; the assets value limit is the corresponding amount in the assets value limit column.
Column 1
Column 2
Column 3
Assets value limit
Item
Person’s family situation
Column 3A
Either person or partner homeowner
Column 3B
Neither person nor partner homeowner
1.
Not member of a couple
$250,000
$450,000
Section 40A of the Administration Act sets out the requirement for JSP applicants and recipients to enter into employment pathway plans:
No existing employment pathway plan in force
(1) The Employment Secretary may require a person to enter into an employment pathway plan if an employment pathway plan is not in force in relation to the person and one of the following applies:
(a)either:
(i) the person is receiving, or has made a claim for, a jobseeker payment or a youth allowance; or
(ii) the Department is contacted by or on behalf of the person in relation to a claim for a jobseeker payment or a youth allowance
Section 63 of the Administration Act sets out the general requirements of a person who is applying for a social security payment, relevantly it details the requirements to provide information:
Secretary may require person to attend Department etc.
(1) Subsection (2) applies to a person if:
(a)the person is receiving, or has made a claim for, a social security payment; or
(b)the person is the holder of, or has made a claim for, a concession card; or
(c)the Department is contacted by or on behalf of the person in relation to a claim for:
(i) if the person is not undertaking full‑time study and is not a new apprentice—youth allowance; or
(ii) in any case—jobseeker payment;
to be paid to the person.
(2) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a)attend an office of the Department; or
(b)contact the Department; or
(c)attend a particular place for a particular purpose; or
(d)give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
Secretary may require person to provide proof of life certificate etc.
(2AA) Subsections (2AB) and (2AC) apply to a person if:
(a)the person has reached 80 years of age; and
(b)the person is receiving any of the following social security payments:
(i) age pension;
(ii) carer payment;
(iii) disability support pension; and
(c) the person was continuously absent from Australia throughout the previous 2 years.
(2AB) The Secretary may notify a person to whom this subsection applies that:
(a)the person is required, within the 13‑week period beginning when the notice is given, to give the Secretary a proof of life certificate that:
(i) relates to the person; and
(ii) was completed within that 13‑week period; and
(b)the requirement does not apply if the person enters Australia within that 13‑week period.
(2AC) If this subsection applies to a person, the Secretary must notify the person under subsection (2AB) at least once every 2 years.
Secretary may require person to undergo medical examination etc.
(3) Subsection (4) applies to a person if:
(a)the person is receiving, or has claimed, any of the following social security payments:
(i) disability support pension;
(ii) parenting payment;
(iii) youth allowance;
(iv) jobseeker payment;
(v) special benefit;
(vi) mobility allowance; or
(b)the Department is contacted by or on behalf of the person in relation to a claim for youth allowance or jobseeker payment to be paid to the person.
(4) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a) complete a questionnaire; or
(b)undergo a medical, psychiatric or psychological examination (whether or not at a particular place), and provide to the Secretary the report, in the approved form, of the person who conducts the examination;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing.
Method for giving notice
(5) The Secretary may notify a person under subsection (2), (2AB) or (4):
(a)by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary; or
(b)in any other way the Secretary considers appropriate.
Validity of notice not affected in certain circumstances
(6) A failure to specify the particular purpose in a notice given to a person for the purposes of paragraph (2)(c) does not affect the validity of the notice.
Consequence of not informing person of effect of failure to comply with requirement in notice
(7) If a person is notified under subsection (2), (2AB) or (4) and the notice does not inform the person of the effect of section 64, subsection 64(1) or (5) (as the case requires) does not apply to the person in relation to the requirement in the notice.
Section 64 of the Administrative Act details the effect of failing to comply with the requirements when applying for a social security payment, relevantly it details the effect of failing to provide information:
Person receiving, or claiming, social security payment
(1) If:
(a)a person is receiving, or has made a claim for, a social security payment; and
(b)the Secretary notifies the person under subsection 63(2), (2AB) or (4); and
(c)the requirement in the notice is reasonable; and
(d)the person does not comply with the requirement; and
(e)except if the person is receiving, or has made a claim for, a participation payment—the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
(1A) Subsection (1) does not apply if:
(a)the person is receiving a participation payment; and
(b)the person fails to attend an appointment that the person is required to attend by a notice under subsection 63(2); and
(c)the Secretary makes a determination under section 42AF or subsection 42SA(1) in relation to the person and the failure.
(2) Subsection (1) does not apply if:
(a)the person is receiving, or has made a claim for, youth allowance; and
(b)the notice included a statement to the effect that a failure to comply with the requirement in the notice could constitute a youth allowance participation failure.
Note: If a recipient of, or claimant for, youth allowance does not comply with a requirement notified under subsection 63(2) or (4), this may result in the payment not being payable to the person: see sections 550B and 551 of the 1991 Act.
(3) Subsection (1) does not apply if:
(a)the person is receiving, or has made a claim for, an austudy payment; and
(b)the notice included a statement to the effect that a failure to comply with the requirement in the notice could constitute an austudy participation failure.
Note: If a recipient of, or claimant for, an austudy payment does not comply with a requirement notified under subsection 63(2), this may result in the payment not being payable to the person: see sections 576A and 577 of the 1991 Act.
(4) If:
(a)a social security payment is not payable to a person because of subsection (1); and
(b)the Secretary is satisfied that it is no longer reasonable for that subsection to apply to the person in relation to the requirement in the notice given to the person under subsection 63(2), (2AB) or (4);
the Secretary may determine that, on and after a day specified by the Secretary, subsection (1) ceases to apply to the person in relation to that requirement.
Person holding, or claiming, concession card
(5) If:
(a)a person is the holder of, or has made a claim for, a concession card; and
(b)the Secretary notifies the person under subsection 63(2); and
(c)the requirement in the notice is reasonable; and
(d)the person does not comply with the requirement; and
(e)the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person ceases to be, or is not, qualified for the concession card.
(6) If:
(a)a person has ceased to be, or is not, qualified for a concession card because of subsection (5); and
(b)the Secretary is satisfied that it is no longer reasonable for that subsection to apply to the person in relation to the requirement in the notice given to the person under subsection 63(2);
the Secretary may determine that, on and after a day specified by the Secretary, subsection (5) ceases to apply to the person in relation to that requirement.
EVIDENCE
Mr Atwell’s Centrelink record annotated on 16 November 2022 records:
On 29 August 2022, submitted claim for JobSeeker Payment and were asked to provide information to verify circumstances. This included:
b-c?A Module PT (Private Trust) form filled out for York Developers Pty. Ltd. and all requested supporting as listed in this form.
b-c?Evidence of deregistration for the Atwell & Co Pty. Ltd. And Kyarra Blue Pty. Ltd.
b-c?Evidence of a vested trust for Atwell & Co Unit Trust and Atwell Family Trust.
b-c?Evidence from financial institution that must show your account balances for the period 1 April 2022 to 29 August 2022.
On 14 September 2022, JobSeeker Payment claim was rejected as you did not provide the requested the information. We were unable to determine that you were entitled to receive JobSeeker Payment.
On 16 September 2022, you contacted wanting to know why your JobSeeker Payment claim was rejected. Supplied bank Westpac and Commonwealth
Bank business accounts.
On 30 September 2022, customer requested that JobSeeker Payment claim be reassessed.
On 7 October 2022, a Complex Assessment Officer sent a request for information letter to asking for:
b-c?Trust deeds/amendments for Atwell & Co Unit Trust and Atwell Family Trust
b-c?Evidence that you are no longer an appointee of the trusts.
b-c?Liquidator report for Atwell & Co Unit Trust, or latest Income Tax Return and financials.
b-c?Liquidator report for Serviced Apartments Australia Pty. Ltd or latest Income Tax Return and financials.
b-c?Evidence that Atwell Family Trust has ceased trading.
b-c?Evidence of vesting of Atwell Family Trust and if not vested latest Income Tax Returns and financials or letter from accountant detailing the income, assets and liabilities of Atwell Family Trust.
b-c?Module PC (Private Company) form, Income Tax Return and financials in regards to For Sale For Lease Group Pty. Ltd.
b-c?Your latest personal Income Tax Return.
As at the date of this review customer has not provided the information requested by the Complex Assessment Officer. also not provided a bank statement for Commonwealth Bank account #94140 for the period 1 April 2022 to 29 August 2022 as listed in your claim as your payment destination.
This means the decision to reject JobSeeker Payment claim was correct.
Legislation and policy considered in this formal review
b-c?Sections 593,601 and 643 of the Social Security Act 1991.
b-c?Sections 36, 37, 63 and 64 of the Social Security (Administration)Act 1999.
Mr Atwell’s Centrelink record annotated on 29 November 2022 records:
Customer requested a formal review of the decision made on 01 July 2021 to Reject their Claim for Jobseeker Payment (JSP) submitted on 06 April 2021 (Claim ID: 0043794386), for the reason 'Failure to supply documentation'. During the JSP Claim of 06 April 2021 the Customer advised of involvement in a number of Private Trusts and Private Companies, and Complex Assessment Officer (CAO) Action was sought. On 02 April 2021 a QSS32 Letter (the request) was sent by CAO Logon: IUR to the Customer's home address; as advised in the preceding JSP Claim and recorded on the Customer's Services Australia record, asking for additional information required for the CAO Assessment. On 30 June 2021 the CAO appears to have documented receipt of some information regarding the request. CAO Logon IUR attempted to contact the Customer on Mobile: 0411882588 at 1214hrs 30 June 2021 and 1401hrs 01 July 2021, to discuss the need for further information, but both contact attempts were unsuccessful. The Customer's JSP Claim submitted on 06 April 2021 was subsequently rejected for failure to supply documents.
The Customer advises of being oblivious to these contact attempts, advising the mobile phone in question did and does accept private numbers, but they (the Customer) received no messages or notification of missed calls on the dates the CAO reportedly attempted to call them.
Customer believes they had provided sufficient information to have the CAO Assessment conducted and the JSP claim finalised, and wishes to lodge a formal review regarding the decision to reject their claim for JSP made on 06 April 2022.
Mr Atwell’s Centrelink document created on 25 January 2023 records:
Customer has been requested to return:
For customer:
Evidence for all of your bank account balances as at 26 October 2022 to the date you submit this claim.
Proof of self employment / business income
Proof of deregistration for ATWELL & CO UNIT TRUST
Proof of deregistration for ATWELL FAMILY TRUST
Proof of deregistration for ATWELL & CO PTY. LTD.
Proof of deregistration for KYARRA BLUE PTY.LTD. DERGISTER...
Proof of deregistration for YORK DEVELOPERS PTY.LTD.
Mr Atwell’s Centrelink document created on 9 February 2023 records:
ADDITITIONAL INFORMATION: Cust is claimed JSP but was rejected-
INCOME. The source of the INCOME is the PRIVATE TRUST/COMPANY coded since 2007. Customer stated they no longer have interest in the TRUST/COMPANY. Customer is agitated hence please assess and advised if customer is payable JSP
ANNOTATE BY XST ON 9 FEB 2023
Outstanding documents not provided. If based on current information on record he will be rejected over income. The documents he must provide have been requested multiple times. CAO will write to him again to request for the necessary documents for us to move on.
The personal written statement is not evidence by any supporting documents. CAO can see that two of the company linked has been deregistered. But he is still currently involved in a company FOR SALE FOR LEASE GROUP PTY LTD" he did not provide mod PC for that company and all the associated documents as per page 19 Q75. He was attributed as 50% controller of the two trusts. He has to provide evidence that he had been removed from the trust via a deed or amendements to the trust deed, family court order that show that he had to be removed. if not he has to provide the two trust financials and ITR or letter from the accountant to advise the current states of the trust and the latedst balance sheet. [sic]
ACT doc closed. QSS32 sent.
RATA for a company SERVICED APARTMENTS AUSTRALIA PTY LTD which currently in administration. We need to know what is the assets and liability of the entity.
There was no dispute as to the veracity of the information summarised in the Respondent’s Statement of Facts, Issues and Contentions dated 5 May 2023 submitted to these proceedings. Given the sheer volume and complexity of the information involved, the Tribunal (having verified the facts against the Centrelink records) adopts the facts as outlined in the Respondent’s submission:
Facts
Applicant’s Trust and Company Involvement
Prior to the Applicant lodging his first and second claim, the Applicant had involvement with a number of companies and trusts
(a)The Applicant has 50% control of Atwell Family Trust (Family Trust)
(i) York Developers Pty Ltd (York) is a trustee company of Family Trust
(b)Units in the Atwell & Co Unit Trust (Unit Trust) are wholly owned by the Family Trust and distributions are made only to the Family Trust
(i) Atwell & Co Pty Ltd (Atwell & Co) is a trustee company of Unit Trust
(c)The Applicant is a co-director of Serviced Apartments Australia Pty Ltd (Apartments Australia)
(i) York is the sole shareholder in Apartments Australia
(d)The Applicant is a director for For Sale For Lease Group Pty Ltd (For Sale For Lease) and owns 100% of the shares
The Applicant’s First JSP Claim
On 6 April 2021, the Applicant lodged the first claim with the Agency. The Applicant declared the following:
(a)Possession of an investment in the form of a trust/company loan to Kyarra Blue Pty. Ltd (Kyarra Blue) of $0,
(b)Possession of an investment in the form of a trust/company loan to Abode Property Real of $0,
(c)Possession of an investment in the form of a trust/company loan to the Family Trust of $36,714,
(d)Possession of a Commonwealth Bank savings account (####) with a balance of $2,000,
(e)Employment by Apartments Australia, and
(f)The Applicant is involved with
(i) The Unit Trust,
(ii) The Family Trust,
(iii) York,
(iv) Atwell & Co,
(v) Kyarra Blue Pty Ltd. and
(vi) Apartments Australia.
On 6 April 2021, the Applicant provided the following documents alongside his first claim:
(a)Private Company details (MOD PC) form for Apartments Australia
(b)A residential tenancy agreement for 3 Vicars Street Hawthorn
(c)A bank statement for Apartments Australia for the period 1 January 2021-31 March 2021
(d)An Electronic Lodgment Declaration form for the lodgment of the Applicant’s taxes in 2020
(e)A Notice of Meeting of Creditors for Atwell & Co held on 13 November 2019
On 2 June 2021, the Agency issued a notice to the Applicant requesting information to make a decision about the Applicant’s first claim. The notice requested the Applicant to provide the following information within 14 days of receiving the notice:
(a)A private trust details (MOD PT) form for both the Unit Trust and Family Trust.
(i) A copy of the Trustee Meeting Minutes declaring a vestment date should the Unit Trust and Family Trust be vested.
(b)The 2019/2020 trust tax returns for the Unit Trust and Family Trust should both trusts not have been vested.
(c)A copy of the 2019/2020 trust financial statements including the profit and loss, balance sheets and depreciation schedule3 for the Unit Trust and Family Trust.
(d)A copy of the Applicant’s full personal income tax return for the 2019/2020 financial year.
(e)A copy of the amended trust deed removing the Applicant from roles within the trusts should he no longer be involved in the Unit Trust or Family Trust.
On 15 June 2021, the Applicant provided a response to the Agency’s request for information alongside a MOD PT form containing limited information regarding the Unit Trust [T33]. The Applicant referred the Agency to contact his accountant Mr Tony Smarelli and stated he had ‘no income or involvement’ from the Unit Trust or Family Trust.
On 30 June 2021, the Applicant provided:
(a)Company extract (current and historical) for York
(b)Company extract (current and historical) for Atwell & Co
(c)Company extract (current and historical) for Apartments Australia.
Despite the Applicant’s responses and documents provided on 15 June 2021 and 30 June 2021, the Applicant did not provide the following within 14 days of the 2 June 2021 notice:
(a)Completed MOD PT forms for both the Atwell & Co Unit Trust and Atwell Family Trust.
(i) A copy of the Trustee Meeting Minutes declaring a vestment date should the Atwell & Co Unit Trust and Atwell Family Trust be vested.
(b)The 2019/2020 trust tax returns for the Atwell & Co Unit Trust and Atwell Family Trust should both trusts not have been vested
(c)A copy of the 2019/2020 trust financial statements including the profit and loss, balance sheets and depreciation schedule4 for the Atwell & Co Trust and Atwell Family Trust.
(d)A copy of the Applicant’s full personal income tax return for the 2019/2020 financial year.
(e)A copy of the amended trust deed removing the Applicant from roles within the trusts should he no longer be involved in the Atwell & Co Unit Trust and Atwell Family Trusts.
On 1 July 2021, the Agency decided to reject the Applicant’s first claim for JSP. The Agency had not received the documents it had requested from the Applicant on 2 June 2021 (the first JSP original decision).
On 16 August 2022, the Applicant provided one page of a MOD PT form which only contained his signature and no other information.
The Applicant’s Second JSP Claim
On 29 August 2022, the Applicant lodged the second claim with the Agency. The Applicant declared the following:
(a)Possession of an investment in the form of a trust/company loan to Kyarra Blue Pty. Ltd of $0
(b)Possession of an investment in the form of a trust/company loan to Abode Property Real of $0
(c)Possession of an investment in the form of a trust/company loan to the Family Trust of $36,714
(d)Possession of a Commonwealth Bank savings account (###) with a balance of $3,000 and
(e)The Applicant is involved with:
(i) The Unit Trust,
(ii) The Family Trust,
(iii) York,
(iv) Atwell & Co, and
(v) Kyarra Blue Pty Ltd.
As part of the claim process, the Applicant was requested to provide
(a)a MOD PT form for York,
(b)evidence of all bank account balances as at 1 April 2022 to 29 August 2022, and
(c)proof of deregistration for Unit Trust, Family Trust, Atwell & Co, Kyarra Blue Pty Ltd., and
(d)Proof of self-employment/ business income – tax return.
The Applicant did not respond to the Agency’s request for documents regarding York, the Unit Trust, Family Trust, Kyarra Blue and his personal tax return.
On 7 October 2022, the Agency issued a notice to the Applicant requesting information to reassess the Applicant’s second claim. The notice requested the Applicant to provide the following information within 14 days of receiving the notice:
(a)A copy of the Trust Deed or amended Trust Deed showing the Applicant is not an appointor of either the Unit Trust or the Family Trust.
(i) a letter from a solicitor who prepared the amendments and that stamping was not required, should the trust deeds amendments not be stamped by the relevant state authority.
(b)A liquidator report for the Unit Trust or the latest tax return and financial statements for the Unit Trust if a liquidator report was unavailable.
(c)Information regarding whether the Family Trust had ceased trading including when this occurred.
(i) the Deed of Vestment or Minutes of the Trustees Meeting at which the vesting date and distribution of assets was documented should the Family Trust have been vested,
(ii) a letter from the Family Trust accountant advising the Family Trust has ceased to trade and listing the assets and liabilities held by the trust should the Family Trust ceased to trade but not be vested, or
(iii) the latest tax return and financial statements including profit and loss statements, balance sheets, deprecation schedule and any notes for the Family Trust if the Applicant was unable to provide the above documents.
(d)A liquidator report for Apartments Australia, or the latest tax return and financial statements if the liquidator report was not available.
(e)A fully completed Private Company (MOD PC) form for For Sale For Lease and the latest tax return and financial statements.
(f)A copy of the Applicant’s latest tax return.
On 7 October 2022, the Agency unsuccessfully attempted to contact the liquidator of the Unit Trust and the Applicant’s bookkeeper.
On 19 October 2022, the Applicant responded to the Agency’s notice requesting information dated 7 October 2022. The Applicant’s response indicated:
(a)The Unit Trust and the Family Trust had not traded or received any money in 15 years,
(b)The Applicant could not afford a solicitor,
(c)The Applicant is not a director or shareholder and cannot obtain liquidator reports for the Unit Trust,
(d)The Family Trust ceased trading in 2013 and had not been vested,
(e)The Applicant is not a director or shareholder of the Family Trust, which has been in liquidation for over 7 years,
(f)The Agency should contact a third party for a MOD PC form/financial documents regarding For Sale For Lease, and
(g)The Applicant had previously provided a copy of his personal tax return.
The Applicant’s Third JSP Claim
Subsequent to the Applicant’s application for review by the AAT2, the Applicant lodged a third claim for JSP on 25 January 2023 (the third DSP claim).
As part of the claim process, the Applicant was requested to provide:
(a)Evidence of bank account balances as at 26 October 2022 to 25 January 2023.
(b)Proof of self-employment/business income.
(c)Proof of deregistration for the Unit Trust, the Family Trust, Atwell & Co, Kyarra Blue, and York.
On 9 February 2023, the Agency issued a notice requesting information to assess their claim for JSP. The notice requested the Applicant to provide his personal tax return, a fully complete MOD PC form for For Sale For Lease, trust deeds/financials for the Unit and Family Trusts, and a liquidator report for Apartments Australia.
On 10 March 2023, the Agency issued a notice requesting information to assess the Applicant’s claim for JSP. The notice requested the Applicant to provide information regarding Serviced Apartments Melbourne Group Pty Ltd (Apartments Melbourne), a company which had not been disclosed by the Applicant to the Agency previously. The notice also requested the Applicant’s personal tax income returns, financial documents for the Unit and Family Trust and liquidator report for Apartments Australia.
The Applicant responded to the Agency’s 10 March 2023 notice but did not provide all of the requested documents. The Applicant provided:
(a)Company tax return for For Sale For Lease
(b)Creditor lists for For Sale For Lease and Apartments Melbourne
(c)Financial reports for Apartments Melbourne
(d)MOD PC form completed 17 March 2023
On 21 March 2023, the Agency completed a beneficiary assessment for the Applicant using inter related entity documents and information on record and the documents provided by the Applicant.
The Respondent in response to the Tribunal’s request submitted a supplementary Statement of Facts, Issues and Contentions on 11 July 2023 detailing the information utilised to grant Mr Atwell’s third claim for JSP:
On 25 January 2023, the Applicant lodged the third claim with the Agency. The Applicant declared the following information:
(a)Possession of an investment in form of a trust/company loan to the Atwell Family Trust with a balance of $36,714
(b)Possession of a Commonwealth Bank savings account (###) with a balance of $7,000
(c)The Applicant is involved with:
(i) The Atwell & Co Unit Trust,
(ii) Atwell Family Trust,
(iii) York Developers Pty Ltd,
(iv) Atwell & Co Pty Ltd, and
(v) Kyarra Blue Pty Ltd (deregistered).
As part of the claim process the Applicant was requested to provide:
(a)A completed MOD for “For Sale For Lease Group Pty Ltd”,
(b)Individual tax return,
(c)Company tax return, including a profit and loss statement and balance sheet,
(d)Trust deeds/amendments for Atwell & Co Unit Trust and Atwell Family Trust showing the Applicant has been removed
(e)A letter from the Applicant’s lawyers if the trust deed amendments have not been stamped,
(f)If the trusts have been vested a copy of the resolution to vest the Atwell & Co Unit Trust and Atwell Family Trust and details for how the assets have been distributed,
(g)If the aforementioned entities are not trading then information from the accountant confirming the entities have ceased trading and details of the assets and liabilities, and
(h)Liquidator reports for Serviced Apartments Australia Pty Ltd or the most recent income tax returns and financials.
The Applicant provided the following information:
(a)A notice of assessment for the Applicant’s personal tax return issued on 17 August 2022
(b)2017/2018 financial report and tax returns for Serviced Apartments Melbourne Group Pty Ltd (FST1 and FST2),
(c)2021/2022 amended company return for For Sale For Lease Pty Ltd signed 9 March 2023 (FST5),
(d)A “MOD PT” form for York Developers dated 8 February 2023
(e)A “MOD PC” form for Atwell & Co dated 8 February 2023
(f)A “MOD PC” form for For Sale For Lease Group dated 20 February 2023
(g)On 20 February 2023 further information about Atwell & Co Unit Trust and At well Family Trust as follows “no income to distribute nothing received”
(h)On 20 February 2023 further information about the Atwell & Co Unit Trust and Atwell Family Trust as follows “no assets not traded or received anything in 12 years or more” and “ceased trading in 2007. Selina Nazrin is accountant email”
(i)On 20 February 2023 further information about Serviced Apartments Australia Pty Ltd as follows “not yet been provided latest report uploaded 20/2/2023”.
A letter from Smart Accounting & Finance Pty Ltd dated 2 March 2023 verifying that the Applicant “has no income or no distributions from THE TRUSTEE FOR ATWELL FAMILY TRUST…..for the 2022 financial year”.
On 17 March 2023 further information about Serviced Apartments Melbourne Group Pty Ltd as follows “this company has been in liquidation for 3 years” and confirmed that the company was in liquidation and has no assets. The Applicant noted that the “liquidator has claimed 100% of funds or account in fees”.
CONTENTION
Mr Atwell
Mr Atwell contended he was entitled to JSP as he was unemployed, experiencing financial hardship, had no assets, no access to any available funds and had supplied all information requested by Centrelink.
Mr Atwell submitted that he had paid his taxes, successfully run a business, employed people and in his hour of need should have access to benefits to assist him make ends meet. Mr Atwell submitted that his serviced apartment business operating in Melbourne CBD had been destroyed because of the excessive Covid lockdowns in Victoria. Mr Atwell submitted that years of work and financial investment in this thriving business was now zero and he was entitled to support from the government to survive.
Mr Atwell submitted:
·he was genuinely eligible to receive JSP as he had had no income since 2021;
·he had provided Centrelink all the information requested of him, that he had access to or was able to obtain, at the time of his first and second claims for JSP;
·he had not been able to afford an accountant or lawyer to draw up all the documents required by Centrelink;
·he had scraped together $3,000 to get an accountant to finalise all his outstanding financial issues in respect of the Atwell Family Trust and he had provided the information in respect of the Atwell Trust and or Atwell & Co Pty Ltd to Centrelink and had finally been granted JSP;
·as he had finally been granted JSP on the basis of exactly the same income and assets he should be back paid to the date of his first claim of 6 April 2021;
·whilst not completely happy, he would accept back payment from 29 August 2022, the date of his second claim;
·he could not comprehend why Centrelink had held up payment of his JSP on the basis of a trust that had not been accessed for 15 years, for which taxes had been paid but no income derived;
·he had paid $3,000 to get evidence that this trust never traded, whilst he struggled to pay rent;
·Centrelink had required him to provide a zero dollar tax return on a trust that didn't provide any income;
·his personal tax returns should have been sufficient for Centrelink to see if he was receiving any income;
·he had lost everything; he had a business turning over $20 million one day and overnight he was out of business;
·the business went into liquidation as he could not pay the rent and had to sign some personal guarantees, he is very annoyed at losing his business;
·he had given as much information as he could;
·he has started two new businesses, and needs JSP as he does not have capital to buy stock and he should have had that capital as he should have been receiving JSP from the last two and a half years;
·that he understood the sticking point with Centrelink had been the Atwell Family Trust and he had simply been unable to provide any more information than he had;
·he had utilised trusts for his various business exercises to protect his assets and not to avoid paying tax or hide income; all his income had been declared in his personal tax returns.
Respondent
The Respondent contends that JSP was not payable to Mr Atwell as he did not comply with the reasonable requirements as notified by the Agency under section 63(2) and (4) of the Administration Act and did not have a reasonable excuse for not complying with the requirements in the Agency’s notice.
The Respondent contends the Agency was correct in rejecting Mr Atwell’s first and second claim because:
(a)the Agency’s notices issued on 2 June 2021 and 7 October 2022 complied with subsections 63(2) and 64(1) of the Administration Act. The requirements for Mr Atwell to provide information regarding his personal finances and involvement with trusts and companies were reasonable in deciding his claims for JSP;
(b)Mr Atwell had not complied with the requirements in the Agency’s notices within 14 days of receiving the notices issued on 2 June 2021 and 7 October 2022;
(c)the Secretary was not satisfied that Mr Atwell had a reasonable excuse to not comply with the Agency’s notices issued on 2 June 2021 and 7 October 2022; and
(d)in any event, the Agency had insufficient information to calculate the rate of JSP for Mr Atwell and a claim for JSP could not be granted.
The Respondent further contended that even if the Tribunal were to accept that Mr Atwell was entitled to JSP from his first claim submitted on 6 April 2021 (which was not conceded by the Respondent), this could only be backdated to when he requested a review by the ARO on 29 November 2022 under subsection 107(3) of the Administration Act.
The Respondent submitted the Federal Court and previous Tribunal decisions have considered the various iterations of sections 63 and 64 of the Administration Act in a number of matters:
·In Shiel v Department of Social Security [1999] FCA 1237 (‘Shiel’), the Federal Court considered the equivalent provisions of sections 63 and 64 (as it was then) and stated the following regarding the requirement to obtain information:
First, it is apparent from the context in which par 1304(1)(c) of the Act appeared that the Parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits …
The context to which I have referred in the preceding paragraph included the circumstance that, under subs 1304(1) of the Act, the Secretary might require information and documents relevant, not only to the question of the rate of social security payment under the Act that was or had been applicable to a person, but also to the questions of whether a person who had made a claim for a social security payment under the Act was or had been qualified for that payment and of whether such payment was or had been payable to a person who was or had been receiving it.
·In Adkins and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 817, Deputy-President Nicholson considered the reasonableness of applying section 64(1) and decided:
The sixth contention is that the questions asked in the sub-categories are onerous. Counsel for the respondent recognised that as the case. However, as best estimates were open to be given, that should not inhibit the giving of responses. The seeking of the information being within power, it does not lie with the applicant’s parents to decide whether or not they wish to respond to the information sought.
The factor which is decisively against the applicant’s contentions is that section 63(4)(f) of the Administration Act makes it clear that the payment claimed is not payable where a notice under section 63(2) containing reasonable requirements has been given and not complied with by the applicant.
In the context of the statutory provisions referred to above, I do not consider it is open for it to be found that the requirements of the notice were unreasonable. Questions 9–14 relate to family spending. Question 9 addresses accommodation. Question 10 and 11 relate to transport costs. Question 12 relates to education costs. Question 13 concerns general living expenses. Question 14 applies to less obvious forms of spending. Questions 15 to 18 deal with savings. Question 25 relates to the family’s benefit receipts. While much of the information sought in this latter question is already held by Centrelink, the form refers also to benefits from other agencies such as the Department of Veterans’ Affairs. While the scope of inquiry in the FAMT form may arguably be approached in a more constrained way, that does not make the requirements of the notice unreasonable. Given the complexity of Module G for which purpose the form is seeking information, the information sought is not unreasonable
·In Ibarcena and Department of Family and Community Services [2000] AATA 1141 (‘Ibarcena’), the Tribunal stated:
On the face of the information available to the respondent Department the Tribunal finds that the respondent was justified in its conclusions. The applicant was in receipt of income other than his pension entitlements. The respondent had also received information from ACC Technologies Pty Limited that the applicant had been employed by them on a casual basis from 14 January 1998 until 9 March 1998 together with details of the income earned during that period.
It is noted that the provisions of section 63(5) of the Social Security Administration Act provide that failure to comply with a reasonable request for information may effectively result in cancellation of the Newstart Allowance.
Once of the functions of the respondent Department is to ensure the appropriate allocation of public monies, that is to those most in need and who meet the legislative provisions for qualification. In order to perform this function the Department needs relevant information upon which to make a decision for eligibility and then determine a rate of pension. This necessarily requires that a Department have access to details of income. The Tribunal accepts that access to the applicant's taxation return would be a most relevant source of information. The Tribunal does not accept that a request for a copy of such documentation is intrusive or unreasonable, nor would it be likely to disclose irrelevant personal information.
·In Rapoff and Secretary, Department of Social Services [2014] AATA 676, the Tribunal confirmed the above approach and found:
Mrs Rapoff did not have a “reasonable excuse” for not complying with the requirement. Mrs Rapoff advised Centrelink on 19 December 2013 that her reason for not providing all of the information requested in the 16 December 2013 Letter was because her husband is blind and he would not complete any details regarding his income and assets on her age pension claim form. Mr Rapoff said that Mrs Rapoff’s age pension claim has nothing to do with him. Mrs Rapoff subsequently advised Centrelink, on 9 January 2014, that her reason for not providing all of the information requested in the 16 December 2013 Letter was that she was unable to complete the partner details in her age pension claim form due to the fact that her husband is blind and, in any event, her husband’s assets are not assessable. Before the SSAT, Mrs Rapoff’s given reason for not providing the information requested by Centrelink was that it is unfair that her husband’s income and assets are taken into account in relation to her age pension when they were disregarded in relation to his pension. In her application to this Tribunal, Mrs Rapoff stated that “The assets are in my husband’s name. So I cannot provide his details under the Privacy Act”. At the hearing, Mrs Rapoff told the Tribunal that she had repeatedly asked her husband to provide her with information about his income and assets, in support of her claim for age pension, but that he consistently refused. The Tribunal acknowledges that Mrs Rapoff’ husband’s refusal to provide her with the necessary information about his income and assets in support of her claim for age pension puts her in an unfortunate and difficult situation. Nonetheless, none of the reasons given by Mrs Rapoff for her non-compliance with Centrelink’s request for information concerning her husband’s income and assets constitute “reasonable excuses” for the purposes of s 64(1)(e ) of the Administration Act ; and It is reasonable for s 64(1) of the Administration Act to apply to Mrs Rapoff in the circumstances.
It follows that Centrelink made the correct decision to reject Mrs Rapoff’s claim for age pension on the ground that she failed to provide the information requested by Centrelink by the specified date.
The Respondent submitted in the context of these determinations that Mr Atwell’s first and second claims were correctly rejected for the following reasons:
(a)The Secretary could notify Mr Atwell that he was required to give information regarding his financial circumstances and involvement with trusts and companies under paragraphs 63(2)(d) and 63(4)(a) of the Administration Act by issuing notices on 2 June 2021 and 7 October 2022. Paragraph 63(2)(d) of the Administration Act applies as Mr Atwell was claiming a ‘social security payment’. Section 23 of the Social Security Act provides that a ‘social security payment’ includes a ‘social security benefit’. Mr Atwell ‘s first and second claims are a ‘social security benefit’ as this further includes JSP.
(b)The Agency validly issued notices dated 2 June 2021 and 7 October 2022 under paragraphs 63(2)(d) and 63(4)(a) of the Administration Act in that:
(i)The notices specifically detailed the information that Mr Atwell was required to provide to the Agency, and the specified time in which he was required to provide this (within 14 days);
(c)The Agency validly issued notices dated 2 June 2021 and 7 October 2022 under subsection 63(5) of the Administration Act in that:
(i)The notices were in writing and were sent by post to the last known address; and
(ii)The notices stated the consequences for Mr Atwell not providing information, including that his claim for JSP may be rejected. The notices stated Mr Atwell was to ‘return them to this office within 14 days of receiving this letter or your claim for JobSeeker may be rejected’.
(d)Mr Atwell had not provided the information requested by the Agency, including information regarding the Atwell Family Trust despite the requests for information made on 2 June 2021 and 7 October 2022.
(e)As a result, subsection 64(1) of the Administration Act applied such that Mr Atwell’s first and second JSP claim were not payable as:
(i)The Agency validly required information under subsection 63(2) of the Administration Act as:
1 The requirement to provide a personal tax return, and information regarding his involvement with his trusts and companies were reasonable requests. The benefit rate calculator B and Module G of the Social Security Act 1991 require that Mr Atwell’s ordinary income be taken into account in calculating an entitlement for JSP and ordinary income is defined as income from all sources received by Mr Atwell. Without this information, it is not possible for the Agency to determine the correct rate/entitlement of JSP for Mr Atwell.
(ii)As discussed in matters such as Shiel and Ibarcena above, one of the functions of the Agency is to ensure the appropriate allocation of public monies and one of the ways the Agency carries out this function is by requiring Mr Atwell to provide the relevant information to determine his qualification and rate of JSP. It is not for the Applicant to decide not to provide the required information, or to pick and choose the information to provide, or to direct the Agency to obtain it elsewhere.
(iii)Mr Atwell repeatedly failed to provide the information requested, as he continually failed to provide his tax return and had provided incomplete or blank MOD PC/MOD PT forms.
1 The Agency had made efforts to contact Mr Atwell’s liquidators and bookkeeper but were not successful in obtaining the information.
2 Sections 63, 64 and 68 of the Administration Act place the obligation on income support recipients to provide the information necessary to calculate their social security payments. It would be an insurmountable administrative burden if the Agency was required to obtain every piece of relevant information to properly determine and calculate the entitlement of the millions of income support recipients currently receiving social security payments.
(iv)Mr Atwell did not have a reasonable excuse for non-compliance with the Agency’s notices issued on 2 June 2021 and 7 October 2022 as:
1 While Mr Atwell has submitted he has been removed from roles in the trusts, no reason has been given as to why he could not provide evidence such as amended trust deeds to corroborate this claim.
2 Mr Atwell has provided a declaration of electronic lodgement of his personal tax return in 2020, however no reason has been given as to why he could not provide the tax return itself.
3 Mr Atwell has not explained why he is unable to obtain information regarding For Sale For Lease Group Pty Ltd despite being the director and sole shareholder of the company.
(v)Mr Atwell has been able to respond to the Agency’s requests for documents by providing some documents (although not the documents requested) to the Agency thereby demonstrating his capability to comply with requirements under section 63 of the Administration Act.
As a result, Mr Atwell‘s claim for JSP was not payable under subsection 64(1) of the Administration Act.
(f)As Mr Atwell’s JSP was not payable, his first and second claims were correctly rejected.
The Respondent further submits that even if the Tribunal were to decide that paragraph 64(4)(b) of the Administration Act applied with respect to the first claim (which the Respondent does not concede), such that subsection 64(1) no longer prevents payment of their JSP claim, there would have been insufficient information to calculate the rate of JSP payable to Mr Atwell. As such, it is contended that Mr Atwell’s claims for JSP would not be payable in any event.
The Respondent submits that any arrears relating to a successful determination on Mr Atwell’s first claim could not be backdated to when he lodged his claim under subsection 107(3) of the Administration Act, as a favourable decision regarding the first claim could only take effect from 29 November 2022:
(a)Mr Atwell received notice of the Agency’s decision to reject his first claim on 1 July 2021. The 13 week period after the first JSP original decision was 30 September 2021.
(b)Mr Atwell requested review of the first JSP original decision after 30 September 2021. Mr Atwell requested a review on 29 November 2022, meaning subsection 107(3) of the Administration Act applies such that any determination that the first claim be granted (as a result of the application for review) takes effect on the day on which the application for review was made.
The Respondent contended Mr Atwell’s claim that Centrelink could assess his income from his personal returns was not correct. The Respondent submitted Centrelink will always make additional enquiries to ascertain if an individual is a beneficiary of a trust as that income will not be declared in an individual’s tax return. The Respondent submitted Centrelink was required to look at associated trusts and attribute a benefit to that individual. That in more complicated financial structures, such as Mr Atwell’s, Centrelink could not make an assessment of assets and income off an individual's tax return alone.
The Respondent further notes that the information provided by the Applicant during the third JSP claim postdates the first and second claims, indicating it was not produced until after the first and second claims were lodged and after the AAT1 decision. The Respondent contended that the additional information did not assist Mr Atwell with respect to qualifying for JSP for his first and second claim.
CONSIDERATION
At all times the fundamentals of Australia’s social security system must be remembered; the Social Security Guide states: Australia has an income support system that is designed to be a safety net for people unable to support themselves without calling on the resources of the community. The income and assets tests are used to target the system so that it remains sustainable and affordable for Australian taxpayers. The tests help ensure that the funds available for social security expenditure are directed to those in the community most in need. The tests are kept under review to ensure that they are meeting the requirements of the community for well-targeted income support.
To be eligible for JSP, Mr Atwell did not merely need to be unemployed, he had to demonstrate he was in need of support. To determine Mr Atwell’s eligibility, Centrelink was required to calculate his income and assets by the application of prescribed tests.
The Tribunal standing in the shoes of the decision-maker must assess if Mr Atwell’s income and assets are under the value limit set in the legislation to determine his eligibility for JSP. This is not an easy feat as Mr Atwell has surrounded himself with a myriad of complex company, business and trust structures with varying degrees of complete and assessable documentation to arrive at any conclusion of what income Mr Atwell may derive from any of these vehicles. The Tribunal queried Mr Atwell as to the rationale for the various structures he had set up to run his numerous business ventures to which he advised it was to protect his assets. The Tribunal was not convinced by this rationale as by his own admission Mr Atwell had no assets.
The Tribunal found Centrelink’s letters issued to Mr Atwell on 2 June 2021 and 7 October 2022 to request information in respect of his assets and incomes were valid and complied with section 63 of the Administration Act. The Tribunal did not consider this was bureaucratic insanity but a reasonable exercise of Centrelink’s obligations to assess eligibility for social security payments. Given Mr Atwell’s complex structure of financial instruments it was necessary for the Complex Assessment unit of Centrelink to seek information to determine Mr Atwell’s actual assets and income – a simple reliance on his assertions and assessment of his personal tax returns could not provide an accurate picture of his actual assets and income.
The Tribunal notes Centrelink is bound by legislation to determine an individual’s true resources and notes by way of illustration Part 3.18 of the Social Security Act which has been enacted to deal with the attribution to an individual’s income and assets which form part of a private company or private trust. As numerous other decision makers have observed, Parliament took a robust and practical approach when it enacted Part 3.18: in the matter of Hoefl and Secretary, Dept of Social Services (Social services second review) [2022] AATA 2130 the Member stated:
It was designed to minimise the potential operation of legal fictions that often underpin trust and company law and shine a bright light on the reality of what underlies the corporate and trust governance before a decision-maker. In short, when determining if an individual(s) who has (have) had the great advantage of being a beneficiary of complicated company and trust structures, which most persons do not, the task of a decision-maker is to go beyond the legal forms, and to make a determination on what appears, from the evidence, to be the reality of the operation and control of the relevant entities.
In Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010, Perry J observed:
Part 3.18 was inserted…so as to ensure that social security customers who held their assets in private companies or private trusts received comparable treatment under the means test to those customers who held their assets directly.
In her determination Her Honour also referred to the Second Reading Speech to the Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testings) Bill 2000 (which inserted Part 3.18), which explained:
Under current social security and veterans’ affairs legislation, assets held in private trusts and private companies generally cannot be assessed under the social security means test. This means that individuals can use private trusts or private companies to hold and control assets outside the bounds of the current means test.
People who arrange their affairs this way are therefore often treated more favourably under the means test than a person holding similar levels of assets directly. Thus well-off or even quite wealthy people can receive income support payments.
This isn’t how the community expects the income support system to operate. It is also at odds with the principle that people with similar levels of private resources should receive similar levels of payment. This measure is about providing a level playing field for all social security customers, no matter how they choose to hold their assets or income.
In Secretary, Department of Family and Community Services and Cocks [2002] AATA 1179, the Tribunal provided the following background to the new social security attribution regime:
The Social Security and Veterans’ Entitlements Legislation Amendment (Private Trust & Private Companies — Integrity of Means Testing) Act 2000 (Cth) (the Amending Act) represents a significant policy change by the Federal Government regarding the assets and income of welfare recipients. By attributing assets and income to persons who benefit from trusts and companies, it is the stated intention of government that ‘income support entitlements are based on a persons level of resources not on the way in which he/she holds those resources.
The Tribunal finds Mr Atwell was required to provide the information requested by Centrelink in accordance with section 63 of the Administration Act to assess his personal level of resources to determine if he was eligible to receive JSP. The Tribunal finds it was not unreasonable to request Mr Atwell to provide information about his numerous financial entities to determine his eligibility for JSP.
The Tribunal finds Mr Atwell did not comply with the requirements of section 63 of the Administration Act to provide information as requested in the letters from Centrelink dated 2 June 2021 and 7 October 2022.
As the Tribunal has found Mr Atwell has not complied with a reasonable request to provide information, it next needs to explore if Mr Atwell had a reasonable excuse for not complying with the requirement.
Fundamentally Mr Atwell contended that Centrelink had advised him that he had not been granted JSP as he had not provided details of the Atwell & Co Unit Trust and Atwell Family Trust. Mr Atwell contended he was unable to source this information as he was not a beneficiary of the trust, the liquidators would not assist him with his enquiries, he could not afford a lawyer or accountant to do 15 years of zero dollar returns and it was simply beyond his control. Mr Atwell advised the Tribunal he had subsequently obtained an affordable accountant but had been required to borrow money to pay the accountant who had produced the documentation which he submitted for his third JSP claim, which was successful. Mr Atwell contended this demonstrated he had a reasonable excuse for not complying with Centrelink’s request for information in respect of his first and second claims for JSP.
Given Mr Atwell’s third application for JSP was granted after Centrelink completed a beneficiary assessment of his assets and income using interrelated entity documents, information on record and the documents provided by him, the Tribunal sought additional information from the Respondent to assess if Mr Atwell’s claims of inability to provide information in respect of the Atwell & Co Unit Trust and Atwell Family Trust had been the stumbling block to the first and second claims for JSP.
The Respondent contended there was significant additional information Mr Atwell had not supplied in his first and second claims which was required to assess his eligibility for JSP, beyond the lack of details in respect of the Atwell trusts. The Respondent contended Mr Atwell had failed to provide his personal tax returns, his Commonwealth Bank account statements and information regarding For Sale For Lease Group Pty Ltd, for which he is director and sole shareholder.
The Tribunal notes Mr Atwell in his third JSP application was able to provide information that he had an investment in the form of a trust/company loan to the Atwell Family Trust with a balance of $36,714, a Commonwealth Bank savings account with a balance of $7,000, 2017/2018 financial report and tax returns for Serviced Apartments Melbourne Group Pty Ltd, 2021/2022, amended company return for For Sale For Lease Group Pty Ltd, information in respect of York Developers Pty Ltd as well as further information about Atwell & Co Unit Trust and Atwell Family Trust.
The Tribunal, based on all the evidence, was not persuaded by Mr Atwell’s contention that his JSP had been rejected because he could not produce documentation in respect of the Atwell & Co Unit Trust and Atwell Family Trust. The Tribunal did not consider it was unreasonable for Mr Atwell to produce documentation in respect of all the entities he declared he was involved in
The Tribunal found Mr Atwell did not have a “reasonable excuse” for not complying with the requirement to produce evidence of his various entities and was not persuaded that the only material Mr Atwell had not produced was in respect of the Atwell Family Trust. The Tribunal found on the evidence that Mr Atwell had not complied with numerous requests to provide relevant information to Centrelink.
The Tribunal finds that as Mr Atwell failed to comply with a reasonable request to provide information for which he did not have a reasonable excuse. Subsequently he was not entitled to JSP in accordance with section 64 of the Social Security Act.
The Tribunal can appreciate Mr Atwell’s bemusement at the whole process as he has now been deemed eligible for JSP payment based on Centrelink’s assessment of his assets and income. However, the problem was of Mr Atwell’s making as he failed to provide information reasonably requested of him at the time to assist Centrelink with assessing his JSP eligibility. The Tribunal notes Centrelink was not able to assess his actual assets and income until he provided further details including bank statements and his personal tax returns. This information was not unreasonable or impossible for Mr Atwell to provide. It was Mr Atwell’s responsibility to provide this information to Centrelink to determine his eligibility for a benefit.
The Tribunal found Mr Atwell was not entitled to JSP from a date earlier than 16 February 2023 as Centrelink could not assess his eligibility due to his failure to provide reasonable information. The Tribunal also notes to be eligible for JSP an individual must be willing to look for and take paid employment, the Tribunal had no information to assess if Mr Atwell was seeking work during this period. There was no evidence to indicate Mr Atwell was unable to seek paid work.
DECISION
The decision under review is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the written reasons for the decision herein of Ms A E Burke AO, Member
.....................[sgd]....................................
Associate
Dated: 24 November 2023
Dates of hearings: 30 May 2023 and 10 October 2023 Applicant: Self-Represented Advocate for the Respondent Ms Kathryn Lieschke Solicitors for the Respondent: Sparke Helmore
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