Burgess; Secretary, Department of Family and Community Services

[2000] AATA 1008

DECISION AND REASONS FOR DECISION [2000] AATA 1008

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/444

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    DARREN BURGESS        
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date16 November 2000   

PlaceBrisbane

Decision      The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 14 March 2000 and in substitution therefor determines that the respondent did knowingly and recklessly provide false information to Centrelink.       

(Sgd)         DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY – newstart allowance – whether the respondent knowingly or recklessly provided false information.

Re King and Secretary, Department of Social Security (1994) 34 ALD 583
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at 445

REASONS FOR DECISION

16 November 2000           Deputy President DP Breen, Presidential Member                  

1. This was an appeal by the Secretary, Department of Family and Community Services against a decision of the Social Security Appeals Tribunal dated 14 March 2000.  That Tribunal set aside the earlier decision of the Authorised Review Officer who found that Mr Burgess had knowingly or recklessly provided false or misleading information to Centrelink on his Newstart forms.

2. The matter was heard by me in Ballina on 16 October 2000.  The applicant was represented by Mr N Foster, Departmental Advocate and the respondent, Darren Burgess, represented himself.  Oral evidence was taken from Mr Burgess and the "T" Documents were also taken into evidence.

3. From July to September 1999, the respondent undertook casual work at Woolworths whilst still receiving Newstart Allowance. On three consecutive claim forms during that period he declared his income to be $64.64. He in fact earned over $1,400 during those three months. In November 1999 the applicant raised a debt of $710.45 against Mr Burgess and imposed an 18% activity test breach under Section 630AA of the Social Security Act 1991.

4. Section 630AA is in the following terms.

   "(1)     If a person:

   (a)refuses or fails, without reasonable excuse, to provide information in relation to a person's income from remunerative work (the failure); or

   (b)knowingly or recklessly provides false or misleading information in relation to the person's income from remunerative work (the provision of information);

   when required to do so under a provision of this Act, a newstart allowance is not payable to the person.

   (2)If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:

   (a)if the failure or the provision of information is the person's first or second activity test breach in the 2 years immediately before the day after the failure or the provision of information – an activity test breach rate reduction period applies to the person; or

   (b)if the failure or the provision of information is the person's third or subsequent activity test breach in the 2 years immediately before the day after the failure or the provision of information – an activity test non-payment period applies to the person."

1. Mr Burgess gave evidence as to the reason he filled in his form the way that he did.  He said that when he was self-employed some six years earlier, his accountant had told him if he did any paid work he was to put down the minimum amount he could be paid for a shift on his newstart form.  At the end of six months he would then declare the full income earned and it would be adjusted by Centrelink.

2. In December 1997 a debt had been raised by Centrelink against the respondent because he had under-declared his income.  He was not made subject to an activity breach test at that stage but was told how to declare his income properly and warned of penalties for future under-declarations.  The Newstart forms also state clearly that all earnings must be declared before deducting tax or other deductions.  Despite this, the respondent three times declared less than he was earning and, on all other forms during the relevant period, declared no income at all.

3. In the case of Re King and Secretary, Department of Social Security (1994) 34 ALD 583, the term "false" is interpreted as being something which is objectively untrue, irrespective of the belief of the person providing the information.  Objectively, the earnings declared by the respondent were untrue.  He declared less than $200 when he earned over $1,400.  As such, the respondent has provided false information to Centrelink.  The question for the Tribunal is – did he do so knowingly or recklessly?

4. The term "knowingly" has been defined in the context of this Act as requiring actual knowledge (see Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at 445). The respondent knew that he was earning more than $64.64 per fortnight. He also knew that he was earning money in the fortnights when he did not declare any. As such, he knew that he was not declaring all earnings before tax and other deductions as required by Question 2 on the form. Therefore, the respondent knew that he was providing false information to Centrelink.

5. The final question is whether the respondent acted "recklessly".  The respondent relied on advice given to him some six years previously in an entirely different context.  He was no longer self-employed at the relevant time.  He relied on this to the dereliction of the direct advice given by Centrelink only 18 months earlier and the specific request on the form.  This clearly shows recklessness by the respondent.

6. As the respondent has knowingly and recklessly provided false information to Centrelink in relation to his newstart forms, subsection 630AA(1)(b) of the Social Security Act applies to him.  There is no discretion under this Section to consider the reason for the falseness of the information or the provision as such.  Therefore, the Section must be applied.  The allowance is not payable and the penalty arises.

7. The Tribunal notes that the preclusion period has already expired and that the setting aside of the decision will not cause Mr Burgess further hardship but will  simply reinforce to him the requirement to provide correct information to Centrelink in the future.

8. For the above reasons the Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 14 March 2000 and in substitution therefor determines that the respondent did knowingly and recklessly provide false information to Centrelink.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  16.10.00
Date of Decision  16.11.00 
Solicitor for the Applicant         Mr N Foster, Departmental Advocate
Rep. for the Respondent         Respondent appeared in person