BELLIGOI and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 810

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0355

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANTHONY BELLIGOI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr P Wulf, Member

Date22 October 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]............................

Member

CATCHWORDS

SOCIAL SECURITY - Newstart allowance - Applicant in receipt of lump sum commission payments while receiving newstart allowance - Such income precludes the applicant from receiving newstart allowance until the end of a 12 month period – Decision under review affirmed.

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Act 1991 (Cth) ss 8, 608, 1067, 1068, 1073,

REASONS FOR DECISION

22 October 2010 Mr P Wulf, Member

1.      Mr Anthony Belligoi (the applicant) has appealed against a decision of the respondent to not grant him newstart allowance.

2.      A Centrelink officer, by letter dated 3 September 2009,[1] informed the applicant that it had been decided, on the basis of the information provided by him in combination with his employment history that newstart allowance was not payable to him as a result of income derived from a previous employer.

[1] Exhibit 1, T14/98-99

3.      That decision was affirmed by a Centrelink authorised review officer (“ARO”) on 25 November 2009[2] and the latter decision was in turn affirmed by the Social Security Appeals Tribunal (“SSAT”) on 4 January 2010.[3]

[2] Exhibit 1, T25/170-179

[3] Exhibit 1, T2/3-6

4.      The applicant has applied to this Tribunal for review of the decision.

THE ISSUE AND THE TRIBUNAL’S DETERMINATION

5. The issue for the Tribunal’s determination is if the applicant should be paid newstart allowance pursuant to s 1067-G7B of Social Security Act 1991 (Cth) (“the Act”), in consideration of commission payments received by the applicant within a 12 month period prior to and during the applicant’s claim lodged on 11 December 2008 (“the relevant period”).

6.      For the reasons which follow, the Tribunal has determined that newstart allowance cannot be payable to the applicant in the relevant period.

THE RELEVANT LEGISLATION

7. The relevant provisions in this matter are contained within ss 8 and 1068 of the Act, these being: the definition of income; and, the rate calculator for newstart allowance respectively.

8.Under s 8 of the Act, income is defined as:

(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).

9. Section 1068 of the Act provides the calculation rates for, among other things, newstart allowance as contained in the modules included as part of that section.

10. The ARO and the SSAT investigated this matter on the basis that s 1073 of the Act applied in the case of Mr Belligoi.

11. Section 1073 states that:

Certain amounts taken to be received over 12 months

(1)Subject to points 1067G‑H5 to 1067G‑H20 (inclusive), 1067L‑D4 to 1067L‑D16 (inclusive), 1068‑G7AA to 1068‑G7AR (inclusive), 1068A‑E2 to 1068A‑E12 (inclusive) and 1068B‑D7 to 1068B‑D18 (inclusive), if a person receives, whether before or after the commencement of this section, an amount that:

(a)       is not income within the meaning of Division 1B or 1C of this Part; and

(b)       is not:

(i)        income in the form of periodic payments; or

(ii)ordinary income from remunerative work undertaken by the person; or

(iii)      an exempt lump sum.

the person is, for the purposes of this Act, taken to receive one fifty - second of that amount as ordinary income of the person during each week in the 12 months commencing on the day on which the person becomes entitled to receive that amount.

(2)Subsection (1) applies to a person who has claimed one of the following allowances:

(a)       newstart allowance;

(b)       sickness allowance;

(c)       youth allowance;

(d)       widow allowance;

(e)       partner allowance;

(f)       mature age allowance under Part 2.12B;

even if the person:

(g)has to serve an ordinary waiting period or a liquid assets test waiting period in respect of the allowance claimed; or

(h)is subject to an income maintenance period in respect of the allowance claimed; or

(i)        is subject to a seasonal work preclusion period;

during the period of 12 months referred to in subsection (1).

12. However, as part of this appeal, the respondent now contends that the ARO and the SSAT erred in law, and erroneously applied the incorrect section of the Act when making their determination as to whether Mr Belligoi should be paid newstart allowance, even though they came to the same conclusion.

13. The respondent now contends that Mr Belligoi was by law, not eligible for newstart allowance as a result of the application of s 1068‑G7B of the Act and that this in fact is the section that should be applied by the Tribunal.

14. Pursuant to s 1068‑G7B of the Act:

If a person whose claim for an allowance has been granted receives a lump sum amount after the claim was made that:

(a)       is paid to him or her in relation to remunerative work; and

(b)       is not a payment to which point 1068‑G8 applies; and

(c)       is not an exempt lump sum;

the person is, for the purposes of this Module, taken to receive one fifty ‑ second of that amount as ordinary income during each week in the 12 months commencing on the day on which the person becomes entitled to receive that amount.

15. The respondent contends that as a result of s 608 of the Act, newstart allowance is not payable if the allowance rate is nil as a result of income received during the relevant period.

16. The Tribunal notes that s 1068‑G7B of the Act relates to “a person whose claim for an allowance has been granted receives a lump sum amount after the claim was made”. It will base its decision on this section of the Act.

THE EVIDENCE

17.     The evidence before the Tribunal comprised of:

· the “T Documents” (T1-28/1-183) lodged by the Secretary, Department of Education, Employment and Workplace Relations in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     the oral evidence of the applicant; and,

·     the respondent’s Statement of Facts and Contentions.

The applicant’s evidence

18.     The applicant appeared to have conceded at the beginning of the matter that the respondent was correct in its decision although for the purposes of natural justice it was appropriate to hear the entire matter so that all of the facts could be fully ventilated and heard at the hearing.  It is a shame that this was the case and as the applicant put it in words to the effect that he got caught up in the whole process and finally ended up before the Tribunal.

19.     Notwithstanding the potential confession, the applicant’s oral evidence can be summarised as follows:

(a)Mr Belligoi had previously worked for Fisher and Paykel prior to injuring his hand which deemed him by Centrelink to be unemployable;

(b)Mr Belligoi obtained work as a real estate agent for Ray White in Alexandra Hills under a contract to pay him $1,243.14 bi-monthly from 16 July 2007 to 21 October 2008;[4]

[4] Exhibit 1, T21/127-143

(c)This $1,243.14 bi-monthly payment was offset by any commissions Mr Belligoi received through the listing and/or sale of properties;[5]

(d)On or about 22 October 2008, Mr Belligoi changed his contractual arrangements with his employer to be paid commission on a part-time basis rather than as per the previous contract;

(e)Mr Belligoi was unable to sustain the required listings and sales to be able to live off the income he received from the real estate agency.  Mr Belligoi stated that he was good at listing but less than successful at actually selling the properties he or others listed;

(f)Between August 2008 and July 2009, Mr Belligoi was paid some monies from the real estate agency;[6]

(g)Mr Belligoi left the business after it was purchased by LJ Hooker on or about 2 October 2009;

(h)Mr Belligoi had stopped receiving payments from the old and new owners at that time;

(i)Mr Belligoi fell off his bicycle on or about 14 October 2009, shattering his elbow and as a result of this accident, he was unable to work for at least five months while he had his arm in a sling;

(j)Mr Belligoi was in financial difficulties as he was paid nothing up until 10 March 2010 and has only been paid very small amounts since that date.  He was also having trouble either keeping and/or finding accommodation;

(k)Mr Belligoi has subsequently been able to find a place in a 12 week training course that will allow him to work in nursing homes; and,

(l)It would appear that Mr Belligoi is now receiving newstart allowance and hopefully should be gainfully employed within a reasonable time of completing the course.

[5] Exhibit 1, T21/138

[6] Exhibit 1, T21/123-125

The respondent’s evidence

20.     The respondent’s evidence was predominantly in the T Documents and based on the Secretary’s Statement of Facts and Contentions.

ANALYSIS

21.     It is clear that Mr Belligoi has not had an easy life over the last few years especially with respect to not having any constant financial backing and being in a position where he could have been evicted from his home.  He was injured at work and categorised as being unemployable, but to his admirable credit, Mr Belligoi has undertaken and continues to undertake training so he can be an employed member of the community.

22. While the Tribunal fully acknowledges these matters and applauds Mr Belligoi’s continued efforts and diligence, it is required to make decisions based on the applicable law set by the Parliament and amended from time to time, and in these circumstances, the relevant legislation is the Act.

23.     On 11 December 2008, Mr Belligoi commenced receiving newstart allowance.  After learning about his income, the respondent cancelled Mr Belligoi’s payments on 13 August 2009.  Mr Belligoi was receiving payments from his employer while on newstart allowance.  Centrelink became aware of this income including a number of commissions payments of $5,951.47 in February 2009, $4718.25 in February 2009, $4718.25 in June 2009, and $12,171.15 in July 2009 and as a result, cancelled his newstart allowance payments.

24. The Tribunal finds that Mr Belligoi’s payments fall within the definition of income as defined in s 8 of the Act.

25. These payments also fall within the context of s 1068‑G7B of the Act as Mr Belligoi made his application for newstart allowance in December 2008[7] but then received payments from his previous employer up to July 2009.

[7] Exhibit 1, T6/72

26. Therefore, Mr Belligoi’s commission from the real estate agent falls within the second limb of s 1068‑G7B of the Act, this being that Mr Belligoi received “a lump sum amount after the claim was made”.  On this basis, the relevant section is the right one for this appeal.

27.     Further, the bi-monthly income and commission payments made to Mr Belligoi are remunerative lump sums and are held for 12 months and they are therefore taken to be received as one fifty‑second of that amount as ordinary income during each week in the 12 months commencing on the day on which the person becomes entitled to receive that amount.

28. Mr Belligoi would therefore become entitled to payments on the one fifty‑second scenario from July 2009 and accordingly, Mr Belligoi’s rate of newstart allowance would be nil under s 608 of the Act.

CONCLUSION

29. When applying the relevant sections of the Act, Mr Belligoi’s commissions from his previous employment as a real estate agent are income and therefore preclude him from receiving newstart allowance under s1068-G7B of the Act until the 12 month period expires.

30.     For the reasons given, I must affirm the decision under review.

DECISION

31.     The Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

Signed: ......................[Sgd].......................................................
              Kate Slack, Research Associate

Date/s of Hearing  26 August 2010
Date of Decision  22 October 2010
Applicant was self-represented
Solicitor for the Respondent     Simon Letch, departmental advocate