Ayoub Nassimi and Secretary, Department of Social Services
[2015] AATA 423
•16 June 2015
[2015] AATA 423
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5016
Re
Ayoub Nassimi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 16 June 2015 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
SOCIAL SECURITY – overpayments and debt recovery – whether Applicant earned income during the relevant period – whether Applicant overpaid disability support pension during the relevant period – whether debt recoverable – decision affirmed
LEGISLATION
Social Security Act 1991 s 8(1), 8(2), 8(8)(z), 1064, 1072
Social Security (Administration) Act 1999 s 68
CASES
Read v Commonwealth [1988] HCA 26
Frederick George Rose v Secretary, Department of Social Security [1990] FCA 52
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
16 June 2015
The Applicant seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) made on 6 August 2014 which set aside a decision of the Department of Human Services (the Department) and referred the decision back to the Department with the direction that only the deposits made to Mr Nassimi’s account between 16 June 2010 and 10 December 2011 were income for the purposes of the Social Security Act 1991 (the Act) and the debt owed for over payments of Disability Support Pension (DSP) was to be recalculated on this basis and then recovered in full. The debt owed by Mr Nassimi to the Commonwealth was recalculated by the Department to be $16,424.42 and this debt was to be recovered in full.
ISSUES
The issues in this case are:
(a)whether the Applicant received “income” as defined in s 8 of the Act during the debt period;
(b)if so, whether he has been overpaid DSP during the period; and
(c)if so, whether the debt is recoverable by the Commonwealth.
BACKGROUND
The Applicant has been in receipt of DSP since 6 January 2005 on the basis that he has had no other income since this time.
In 2014 Centrelink conducted a review into his payments and obtained evidence about his bank accounts. His bank statements showed that regular deposits of cash in varying amounts were made into one of his accounts. He was interviewed by the officers investigating the payments and provided an explanation which was not accepted. At the Applicant’s request the matter was then reviewed by an Authorised Review Officer (ARO) who rejected his submissions. The SSAT then set aside the decision and referred it back to the Department as noted above.
LEGAL PRINCIPLES
The amount of DSP is worked out using the rate calculators in s 1064 of the Act. Among the variables taken into account by the rate calculator is the persons “ordinary income”.
Section 8(1) of the Act defines income to mean an income amount earned, derived or received by a person for the person’s own use or benefit. “Income amount” is defined to mean the valuable consideration of all moneys whether of a capital nature or not. The definitions are very wide. Under s 8(2) “an income amount earned, derived or received” is a reference to an income amount derived or received from any source whether within or outside Australia. Under s 8(8)(z) a periodical payment or benefit by way of gift or allowance from a parent, child, brother or sister of a person is not income for the purposes of the Act.
Section 1072 provides that a reference to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction.
Under s 68 of the Social Security (Administration) Act 1999 (the Administration Act) a recipient is required to notify Centrelink of any matters that might affect their social security payments. During the relevant period letters were sent to the Applicant which required him to notify Centrelink of any income he received as well as other changes to his circumstances.
CONSIDERATION OF THE ISSUES
Issue 1 – Whether the Applicant received income during the debt period
In Read v Commonwealth [1988] HCA 26 at [3] the High Court noted that the definition of “income” in the Act is in the widest terms “to ensure that public expenditure is directed to those who stand in actual need of the periodic support which income-related pensions provide”. The purpose of the definition is to ensure that it brings within its net as wide a range of categories and sources of income as possible: see Frederick George Rose v Secretary, Department of Social Security [1990] FCA 52 at [12].
In the present case significant amounts of money were deposited to the Applicant’s bank accounts during the debt period.
The Applicant gave a number of explanations for the deposits, including the following:
(i)money was received as a gift from his family in Morocco to assist him in travelling to Morocco to visit them;
(ii)some money was received from his late grandmother’s inheritance;
(iii)his wife, Ms Bacha, used his bank account to deposit her savings as she did not have a bank account of her own;
(iv)he did favours for his Sydney-based Moroccan friends by delivering money on their behalf to their friends and family in Morocco; and
(v)he wished to obtain a better credit rating and credit card from his bank and therefore transferred funds backwards and forwards between his two accounts.
In view of the wide definition and the available evidence, the deposits in the Applicant’s bank account justify a conclusion that they were for his own use and benefit because they were under his control. It is therefore necessary to consider the evidence to determine whether it indicates that the deposits were not for his own use or benefit.
The evidence does not satisfy me that the monies in question were not for his own use or benefit. There are substantial discrepancies in the Applicant’s evidence and much of his material is uncorroborated, as outlined by the SSAT at [22] and [28] – [30] of their reasons. He did not produce any reliable independent evidence to the Respondent to substantiate his “explanations”.
At the hearing before me no additional significant evidence was produced by the Applicant to substantiate his submissions, with the exception of the sums said to have been advanced by his wife’s mother to establish her daughter when she moved to Australia, together with a payment from the inheritance and several other transfers referred to in paragraph [31] of the SSAT decision. I accept these amounts were not income for the purposes of s 8 of the Act.
As to the balance of the payments, the Applicant has not persuaded this Tribunal on the available evidence that his assertions as to the source and purpose of the deposits ought to be accepted in view of the lack of specificity and insufficiency of independent supporting evidence.
Issue 2 – Was there overpayment during the debt period
This Tribunal is satisfied that, apart from the monies referred to in [31] of the SSAT decision, the bank deposits were income within the meaning of the Act. I agree with the SSAT’s decision that any deposits outside the period 16 June 2010 to 14 December 2011 should not be treated as income. Only payments received within this period should be used to calculate the Applicant’s debt in accordance with the provisions outlined in s 1073 of the Act. Since neither the SSAT nor this Tribunal is in a position to make appropriate calculations, the correct course was for the matter to be referred to the Department to recalculate the overpayment amount based on the findings of the SSAT.
Issue 3 – Is the debt recoverable
The Act contains provisions which allow for waiver of all or part of a debt in specified circumstances. These may be applied to all or part of a debt that has arisen solely because of an administrative error.
In the present case there is no evidence that the debt arose solely because of an administrative error and therefore the debt cannot be waived on this premise.
The Act also provides that the Secretary may decide to write-off a debt if it is irrecoverable or the debtor has no capacity to repay the debt or the debtor is not receiving a social security payment under the Act, and it is not cost effective for the Commonwealth to take action to recover the debt. The Act also provides a debt may be waived where there are special circumstances other than financial hardship alone that makes it desirable to waive the debt.
The circumstances of the Applicant are that he is in receipt of DSP. He is separated from his wife and their child because of the stress of dealing with the debt, and resides in housing accommodation and pays 25 per cent of his income in rent. The evidence is that the Applicant now lives on a low income from his pension and that he cannot work because of chronic pain in his right arm. He is in very tight and difficult financial circumstances and his wife has had to seek support from charities.
The present Tribunal is not satisfied that repayment of the debt at an appropriate rate would cause the Applicant undue hardship, or that there are special circumstances other than financial hardship that make it desirable to waive. In order to constitute special circumstances, there must be something out of the ordinary or some circumstance which makes the matter special apart from financial hardship.
This Tribunal is not satisfied that his circumstances overall are sufficient to be classified as “special” for the purposes of waiver, taking into account the fact that any repayments of the debt may be appropriately scaled down to diminish the impact of his financial hardship.
CONCLUSION
The Tribunal finds that the Applicant did have “income” in the period from 16 June 2010 to 14 December 2011 which was not taken into account when calculating his rate of DSP and accordingly that he has been overpaid. It further concludes that the debt as determined by the Department in accordance with the SSAT’s decision must be repaid in full.
DECISION
The decision under review is affirmed.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President ...............................[sgd].........................................
Associate
Dated 16 June 2015
Date of hearing 2 April 2015 Date final submissions received 13 April 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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