Chazan and Secretary, Department of Employment and Workplace Relations

[2006] AATA 285

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 285

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2004/1523

GENERAL ADMINISTRATIVE DIVISION )

Re michael chazan

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date16 March 2006

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL         )       No.      N2004/1523
  )
GENERAL ADMINISTRATIVE DIVISION            )

Re          MICHAEL CHAZAN

Applicant

And       SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal        :      Senior Member M D Allen

Date               :      16 March 2006

Place             :       Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and remitted to the Respondent with the direction that the sum of $1,487.60 is to be omitted from its calculations regarding overpayment but otherwise the amounts as assessed by the Authorised Review Officer are correct.

(Sgd) M.D. ALLEN
  .............................
   Senior Member

CATCHWORDS

SOCIAL SECURITY – overpayment of Mature Age allowance and Newstart allowance – applicant in receipt of income not declared to Centrelink – what constitutes “income” – whether applicant’s situation constitutes special circumstances – decision under review set aside and matter remitted to respondent with direction that the sum of $1487.60 be omitted from its calculations of overpayment but otherwise amounts assessed are correct.

Social Security Act 1991

Secretary, Department of Social Security v Read (1987) 15 FCR 456

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:          (E.Pope)
          ..................................................................................…………

Associate

Date of Hearing  16 March 2006

Date of Decision  16 March 2006

Solicitor for Applicant  Applicant self-represented

Advocate for Respondent              Ms Hannelore Schuster, Centrelink Legal Services Branch

DRAFT JUDGMENT  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/1523
By SENIOR MEMBER M.D. ALLEN
MICHAEL CHAZAN and
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
SYDNEY, 16 MARCH 2006

MR ALLEN:   This matter is an application by Michael Chazan, also known as Michael Spitz, in which name the application for review was lodged.  The application itself sought review of a decision of a Social Security Appeals Tribunal made 1 November 2004 which set aside a prior determination by the respondent regarding the recovery of debts, being an overpayment of Newstart allowance and Mature Age allowance, but only set it aside to the extent that certain payments were not to be taken into account.

It would appear that the applicant was during 1999 in receipt of Newstart allowance. The documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 do not reveal when the applicant commenced to receive Newstart allowance except that there is at document T-13, a notification that Newstart had been cancelled and T-14 is a document received on 7 September 1999 applying for Newstart allowance.  On 18 September 2000 the applicant’s benefit was changed to Mature Age allowance upon his turning 60 years of age. 

Following a data matching exercise it was determined that the applicant had been in receipt of income which income had not been declared to Centrelink, therefore overpayments were raised as follows.  For the period 12 September 1999 to 3 August 2000 the sum of $23,555.07; for the period 4 September 2000 to 18 April 2003, the sum of $10,632.73, and for 3 May 2003 to 11 July 2003 the sum of $1667.26.  The original decision to recover the above overpayments was varied by the SSAT as it did not have before it evidence of a number of deposits to the applicant's bank account.  The relevant statements of account have now been obtained.

The most contentious payments to the applicant were sums paid to him by his sister who currently resides in the United States of America.  Apparently when the applicant and his siblings managed to immigrate from South Africa, he was unable to take any assets with him, whereas his sister did manage to get some assets out of that country and as a result, promised her mother than she would help support her brother. To this end she has forwarded moneys to him from the United States of America.

Although paragraph 8(8)(z) of the Social Security Act 1991 excludes from the definition of income a periodical payment by way of gift or allowance or a periodical benefit by way of gift or allowance from the person's father, mother, son, daughter, brother or sister, such gifts are regarded as income for the purpose of assessing the rate of Newstart or Mature Age allowance. Section 1068-G5 of the Social Security Act states inter alia:

“Subject to point 1068-G6 in this Module, a person's ordinary income includes a periodical payment or benefit by way of gift or allowance from the father, mother, son, daughter, brother or sister of the person” -

and adds:

“Note: point 1068-G5 reverses paragraph 8(8)(z) which excludes these amounts.”

The term "periodical" was discussed, albeit as obiter and in dissent by Mr Justice Fisher in Secretary, Department of Social Security v Read (1987) 15 FCR 456 at 459. His Honour said:

“There is a further indication in the definition that the legislature had in mind that that which is “income” is something periodically received.  This is to be found in the express inclusion in the definition of “any periodical payment or benefit by way of gift or allowance.”  If the word "income" in the definition is construed without restriction, a gift of cash would come within the scope of the words "moneys received" and would not require express  inclusion.  However, the legislature has seen fit expressly to include such a gift probably because it would not normally be “income” as that word is generally understood.  It has also considered it necessary to attach a qualification, namely that the payment by way of gift must be periodical in nature, thereby requiring it to bear another characteristic of income, namely that it be of a recurring nature.  If the definition of income encompasses all receipts of money, whether of a capital nature and whether received periodically or not, the express inclusion of periodical payments of gifts or allowances is surplusage and unnecessary.”

This, to my mind, clearly indicates that the gift of moneys from the applicant's sister, being regularly received although not conforming to any regular time of receipt, constituted income in the hands of the applicant.

Other deposits were queried by the applicant as to whether they were in fact income as defined in section 1068-G5. Apart from an amount of $1487.60, being a refunded airfare, no evidence has been adduced by the applicant to corroborate the nature of the payments and I have no basis upon which to interfere with the decision of the Authorised Review Officer regarding the sums and explanations given to him by the applicant in a series of interviews on 16 February 2004 and 19 March 2004. For example, the applicant claimed that certain deposits were by his son who was purchasing a motor vehicle but wished his father to buy it in his name, no doubt for insurance reasons. I accept that this is a valid reason but no evidence has been produced by the son or from other documents such as registration certificates to corroborate the applicant's statement.

Section 1236 of the Social Security Act provides for the writing off of a debt if it is irrecoverable. However, paragraph 1236(1A)(d) provides that write-off is not an option if the person is receiving a Social Security benefit, as is the case here. Section 1237AAD Social Security Act provides for the waiver of a debt.  It states:

“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or false representation or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances other than financial hardship alone that make it desirable to waive; and

(c) it is more appropriate to waive than write to off the debt or part of the debt.”

I find the applicant has not knowingly made a false statement with regard to payments received from his sister. T-17 is an example of a standard form letter sent to the applicant. It requires him to report to Centrelink any income received by him under the heading, “What is Income?”. It is stated that income includes gifts or allowances of a regular nature. This is not the wording of the statute which refers to a periodical payment by way of gift or allowance. I can readily understand how a person with even an excellent grasp of the English language can regard a gift or allowance arriving at irregular intervals not to be income as that term is defined in the Centrelink letter. There were, however, other amounts which were clearly income and not declared by the applicant, for example payment for working at HIMA Group, AAGNC and Migration Partners. Even if I am wrong on this matter, section 1237AAD requires that there be special circumstances other than financial hardship alone.

It cannot be denied that Mr Chazan is in straitened financial circumstances.  In addition to his reliance upon social welfare payments he has regular expenditure for necessary medication relating to a cardiac condition and, of course, given his age he is unattractive to employers.  I must however, in the terms of the section find additional special circumstances.  The term "special circumstances" has been defined in a number of cases both before the Federal Court and this Tribunal.  In essence it means that I must find something that takes this particular case out of the ordinary or that it can be shown that there is somehow something untoward or unfair in recovering the full or part of the amounts due and owing as a result of the overpayments.

Going through all the circumstances in this case and realising the applicant's straitened financial circumstances, I cannot find that he is in any different situation from any other person who has an overpayment due and owing as a result of a failure to declare income under the Social Security Act.  As I said, I recognise he is in straitened financial circumstances but in addition to that I can find nothing that would qualify as special circumstances.

The decision of the Tribunal will be, however, that the decision of the Social Security Appeals Tribunal is set aside and this matter is remitted to the respondent with a direction that the sum of $1487.60 is to be omitted from its calculations regarding any overpayment, but otherwise the amounts assessed by the Authorised Review Officer are correct.

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