Bartlett; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 68

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 68

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/323

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And MARK BARTLETT

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date28 February 2007

PlaceAdelaide

Decision The Tribunal affirms the decision under review. 

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – entitlement to Newstart Allowance – raising and recovery of Centrelink debt due to overpayment of Newstart Allowance – decision affirmed.

Social Security Act 1991 ss 8(1), 1062(1) and (2), 1068(1) and 1222A

REASONS FOR DECISION

28 February 2007   Senior Member R W Dunne   

1.      This was an application by the Secretary, Department of Employment and Workplace Relations (the “applicant” or “Centrelink”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 24 October 2005.  The SSAT set aside the decision of an Authorised Review Officer dated 9 February 2005 to raise and recover a debt of $22,096.07, comprising Newstart Allowance overpaid to the respondent (Mark Bartlett) during the period 28 February 1998 to 15 June 2001 (“Debt Period”).

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit A1), together with the following:

(a)      applicant’s statement of facts and contentions (Exhibit A2);

(b)statement of Savings Bank ledger transactions for the respondent from 1 January 2001 to 30 March 2001 (Exhibit A3);

(c)       respondent’s statement of facts, issues and contentions (Exhibit R1);

(d)      medical report from Dr J Hugh Allen dated 7 August 2006 (Exhibit R2);

(e)copies of Totalisor Agency Board (“TAB”) betting slips (Exhibit R3);

(f)respondent’s yearly time book for the period from 7 September 2000 to 6 July 2001 (Exhibit R4);

(g)character reference (undated) from Mr Terry Warke (Exhibit R5); and

(h)character reference dated 13 November 2006 from Mr Stephen Stark, Principal – Woodside Primary School (Exhibit R6).

Mr Christian Goldsworthy represented Centrelink and Mr Michael de Rohan represented the respondent. 

issues for the tribunal

3.      The issues for the Tribunal are:

·whether the respondent has been overpaid Newstart Allowance;

·if there has been an overpayment, whether the debt is recoverable by Centrelink;

·whether all or part of the debt should be waived; and

·whether the debt should be written-off.

It was common ground that the amount of the debt of $22,096.07 had been correctly calculated by Centrelink.

legislation

4.      The relevant legislation is found in the Social Security Act 1991 (the “Act”) and reads as follows:

“8(1)    In this Act, unless the contrary intention appears:

…

income, in relation to a person, means:

(a)an income amount earned, derived or received by the person for the person’s own use or benefit; or

(b)      a periodical payment by way of gift or allowance; or

(c)      a periodical benefit by way of gift or allowance;

but does not include an amount that is excluded under subsection (4), (5) or (8).

Note 1:          See also sections 1074 and 1075 (business income), sections 1076-1084 (deemed income from financial assets), sections 1095 to 1099DAA (income from income streams), section 1099F (exempt bond amount does not count as income) and section 1099K (refunded amount does not count as income).

Note 2:          where a person or a person’s partner has disposed of income, the person’s income may be taken to include the amount which has been disposed of—see sections 1106-1112.

Note 3:          income is equivalent to ordinary income plus maintenance income.

income amount means:

(a)      valuable consideration; or

(b)      personal earnings; or

(c)      moneys; or

(d)      profits;

(whether of a capital nature or not).

income from personal exertion means an income amount that is earned, derived or received by a person by way of payment for personal exertion by the person but does not include an income amount received as compensation for the person’s inability to earn, derive or receive income through personal exertion.

ordinary income means income that is not maintenance income or an exempt lump sum.

Note 1:          for maintenance income see subsection 10(1).

Note 2:          amounts received as a series of periodic compensation payments may result in reduction of the person’s rate of social security pension or benefit under Part 3.14: if this happens the amounts are not counted as ordinary income (see section 1176).

Note 3:          For provisions affecting the amount of a person’s ordinary income see sections 1072 and 1073 (ordinary income concept), sections 1074 and 1075 (business income), sections 1076-1084 (deemed income from financial assets) and sections 1095-1099DAA (income from income streams).

…

1062(1)The following are the usual steps in the rate calculation process:

(a)      start with a maximum basic rate;

(b)add any additional amounts that are subject to income or assets testing;

(c)      apply the income and assets tests;

(d)add any additional amounts that are not subject to income or assets testing.

(2)The overall rate calculation process is usually described in an early Module of the relevant Rate Calculator.

…

1068(1)The rate of:

(a)newstart allowance; or

(b)sickness allowance; or

(c)partner allowance; or

(ca)mature age allowance under Part 2.12B; or

(d)widow allowance;

is to be calculated in accordance with the Rate Calculator at the end of this section.

Note:Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.

…

1222ADebts due to the Commonwealth

If an amount has been paid by way of social security payment, or by way of fares allowance under the Social Security (Fares Allowance) Rules 1998, the amount is a debt due to the Commonwealth if, and only if:

(a)a provision of this Act, the 1947 Act, the Social Security (Fares Allowance) Rules 1998 or the Data-matching Program (Assistance and Tax) Act 1990 expressly provided that it was or expressly provides that it is, as the case may be; or; or

(b)the amount:

(i)should not have been paid; and

(ii)was paid before 1 January 1991; and

(iii)was not an amount to which subsection 245B(2) of the 1947 Act applied.”

background

5.      The respondent, who is 45 years of age, lives with his wife and son in the Adelaide hills.  He is employed as a shop assistant with State Hydroponics Home Brewing Supplies (“State Hydroponics”).  He started as a casual employee in early 1998 and was, at the time, also receiving Newstart Allowance.  Due to staff movements, he obtained more work in early 2000 and became permanent part-time in mid-2001.  Mr de Rohan referred the respondent to his 2000/2001 yearly time book (Exhibit R4).  The weekly wages shown in the time book corresponded with various Centrelink employment income details (appearing in Exhibit A1, T10 and T11 at pages 81-95).  During the Debt Period, Mr Bartlett was lodging fortnightly forms with Centrelink in which he provided details of his earnings from work with State Hydroponics.  Mr Bartlett was an amateur punter.  He obtained additional funds by betting on horse racing at the TAB.  He had wins and losses, but would generally win more than $20 per week.  This he would put aside in a tin from where his future bets would come.  Mr Bartlett was referred to his TAB betting tickets (Exhibit R3) and to his winnings during 2000 and 2001.  On one occasion, on 7 November 2000, for an outlay of $12 he was successful in winning on a “boxed tri-fecta”, which paid $1,365.75.  He said that, when a winning of this magnitude occurred, he would not draw Centrelink benefits from his bank account, but would leave them to make quarterly payments for electricity and the like.  He would also use his TAB winnings to buy food for the family.  Mr Bartlett’s evidence was that, at no time during the Debt Period or at any other time, did he provide to Centrelink incorrect information about his income.  There were income amounts shown in his time book which covered the periods  reflected in Centrelink records and this was the same for earlier periods.  However, he said that he had not kept time books for the earlier periods.  He said that his wife, Joanne, was also paid Centrelink benefits during the Debt Period, from which the family made drawings from time to time.  Fortnightly loan repayments on the family residence were made from his wife’s bank account.  Funds in Mr Bartlett’s bank account, including his Newstart Allowance, were used to pay quarterly bills.  Other monies and assistance came from Mr Bartlett’s mother.  She lived in New South Wales and would regularly visit Mr Bartlett and his family and stay with them.  This usually occurred in about February or March each year.  During her visits, she would help out by paying household bills, for grocery shopping, and in filling the family car with petrol.  She would also give the family money for birthdays, on some occasions as much as $100-$200.  On one occasion, Mr Bartlett’s mother bought the family a new refrigerator.

6.      In cross-examination by Mr Goldsworthy, Mr Bartlett said that, in about March 1997, he had applied for a housing loan and in his application he said that his earnings were $21,320 per annum.  Then, in about February 2002, he applied for a credit card and in his application he said that his earnings were $31,176 annually or $600 per week.  In his credit card application, the value of his motor car was shown as $40,000.  He said that this was a typographical error and the correct value was $4,000.  Mr Bartlett admitted that he had misled the financial institutions regarding the information he had provided to them about his earnings, but he had done so in order to purchase his home and to obtain a credit card facility.  In further cross-examination, Mr Bartlett said that he was able to make the most with the money he had available.  He would shop cheaply for meat at Port Adelaide.  He was able to make a side of lamb last the family for a fortnight.  With his motor car, he was able to pay for services and repairs over an extended period.  In relation to his taxation affairs, he said that he had not received group certificates for the early years, as his income had not been high enough.  However, he had lodged taxation returns for four years in 2003.  In re-examination by Mr de Rohan, Mr Bartlett said that, on some occasions, he had made no withdrawals from his Commonwealth Savings Bank account until some time after his Newstart Allowance had been deposited.  He reiterated that this was because the monies in his bank account were being kept to pay for quarterly accounts, and he had other monies, such as TAB winnings and his wife’s income, for every day living expenses.

7.      The evidence by telephone of Mr Mark Miles, who was Mr Bartlett’s employer at State Hydroponics, was that he had known the respondent for about 10 to 12 years.  Mr Bartlett had started working for him one day a fortnight in February 1988.  His hours became more regular in April 2001, through the “Employment Options” scheme.  Mr de Rohan referred Mr Miles to a letter he had received from Centrelink on 16 February 2004, requesting details of Mr Bartlett’s earnings during the period from 1 February 1998 to 16 February 2004 (Exhibit A1, T12 at pages 97-98).  He said that his response to Centrelink on 24 February 2004 (Exhibit A1, T12 at page 99), that Mr Bartlett’s earnings from February 1998 to February 2004 had been $255 per week, was incorrect.  The correct position was stated in subsequent letters he and his wife had sent to Centrelink on 15 September 2004 (Exhibit A1, T12 at pages 135-137) .  Mr Bartlett had only been employed as a casual during the Debt Period and the earnings of $255 per week did not come into effect until after April 2001.  Mr Miles said that the respondent was very methodical and that he had filled out his Centrelink forms regularly every fortnight.  He understood he liked betting on the horses, but that he was not a big punter and would usually only spend about $10 per week.  He said that he had taken sick leave from time to time, but that this was due to the Centrelink debt that was hanging over his head.  From an employment perspective, Mr Bartlett was a trusted and trustworthy employee.

8.      The evidence by telephone of Mr Bartlett’s mother was that she came to Adelaide to visit her son regularly, sometimes twice a year, but mostly during the summer months.  She was retired, but worked in a bottle shop in Nelson Bay, New South Wales.  She would always assist her son and his family financially by buying furniture, paying for groceries and meat and generally helping out.  Her generosity often caused arguments to occur with her son.  She would always give money to the family for birthdays and for Christmas and, on one occasion, bought the family a new refrigerator for $1,000. 

consideration

9.      Mr Bartlett was frank and straightforward in giving his evidence and the Tribunal is satisfied that he was truthful in his presentation.  He acknowledged that he had made false statements to obtain his home loan and his credit card.  However, he insisted that he had always provided Centrelink with the correct details of his earnings on his Newstart fortnightly forms, and also that he met all the requirements to receive the Newstart Allowance, particularly during the Debt Period.  Mr Goldsworthy, for the applicant, submitted that there was inferential material before the Tribunal which demonstrated that the respondent must have been receiving other income, apart from that which he disclosed in his Newstart fortnightly forms.  He submitted that incorrect information had been supplied by the respondent in obtaining his home loan and his credit card.  His bank statements disclosed lengthy periods when he did not access his Centrelink entitlements.  Although there was no evidence of cash deposits being made into his bank account, Mr Goldsworthy submitted that the respondent would have been paid in cash and the source of those payments was his employer, State Hydroponics.  On this point, the Tribunal noted that Centrelink was seeking to place considerable emphasis on the letter from Mr Miles dated 24 February 2004 and seemed to have ignored the subsequent letters of explanation from Mr Miles and his wife dated 15 September 2004.  Centrelink also appeared to have given no weight to the statutory declaration made by Mr Miles on 15 September 2004 (Exhibit A1, T17 at page 138).

10.     Mr de Rohan submitted that there was evidence before the Tribunal of other money coming into the household which explained why there were periods when the respondent had not accessed the Centrelink benefits in his bank account.  These other monies comprised:

·Centrelink benefits paid to Mr Bartlett’s wife during the Debt Period;

·TAB winnings, which in some cases were quite large and often found their way into Mr Bartlett’s “cash tin” to pay for household items; and

·gifts in cash and kind provided by Mr Bartlett’s mother at various stages during her visits to Adelaide and on the occasions of birthdays and Christmas.

Mr de Rohan also submitted that there was evidence before the Tribunal which accurately compared the income received by Mr Bartlett in his time book with similar amounts disclosed in the Centrelink printouts relating to the Debt Period (Exhibit A1, T10 at pages 81-83 and T11 at pages 94-95). 

11.     The Tribunal accepts Mr Bartlett’s oral evidence and the evidence of Mr Miles, his employer at State Hydroponics, and the respondent’s mother.  The Tribunal is unable to accept Mr Goldsworthy’s submission that there was inferential material before the Tribunal that the respondent must have been receiving income in the Debt Period in addition to that disclosed to Centrelink.  It follows that the respondent has not been overpaid Newstart Allowance in the Debt Period, and it is unnecessary for the Tribunal to consider the other issues that have been raised.

12.     For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ............J Coulthard...........................................
  Associate

Date of Hearing  20 November 2006       
Date of Decision  28 February 2007

Advocate for the Applicant       Mr C Goldsworthy

Centrelink Legal Services Branch      

Solicitor for the Applicant          Mr M de Rohan

Legal Services Commission