Dull and Department of Family and Community Services

[2000] AATA 751

DECISION AND REASONS FOR DECISION [2000] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/352 

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

DECISION AND ORAL REASONS FOR DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date1 August 2000

PlaceBrisbane

Decision      For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.     

(Sgd) WJF Purcell
  Senior Member
CATCHWORDS

SOCIAL SECURITY – overpayment of Newstart Allowance – failure by applicant to declare commission earned from real estate sales – whether applicant was employed for the purposes of the Act – decision affirmed 
Social Security Act 1991 s 593(1), 1224(1), 1237 AAD
Brown v Secretary, Department of Social Security, (1991) 25 ALD 757
De Boer v Secretary, Department of Social Security, AAT 1993 Decision Number 2990

ORAL REASONS FOR DECISION

1 August 2000        Miss WJF Purcell (Senior Member)        

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 22 March 2000, which affirmed the decision of an Authorised Review Officer of 8 April 1997 to raise and recover an over-payment of Newstart Allowance in the amount of $7801.15 for the period 2 March 1996 to 3 March 1997.  The over-payment was re-calculated by the Secretary of the Department on 4 August 1997 to $7769.48.

2. The evidence before the Tribunal comprised the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).  The applicant appeared on his own behalf and gave oral evidence.  Mr Neil Foster, a Departmental advocate, represented the respondent (the Department).

3. The applicant lodged a claim for Newstart Allowance on 16 January 1996 and indicated that he had not worked since being made redundant by his employer on 15 November 1991.  He stated that he had worked at the Land Tax Office of the Queensland State Government as a compliance auditor/clerk for 36 years.  Newstart Allowance was granted and the applicant was required to fill in a fortnightly form and during the period 4 March 1996 to 3 March 1997 he filled in a form every fortnight and indicated on each that he did not start a permanent full-time job or do any part-time or casual work in that fortnight, nor did he receive any other money.

4. On 10 February 1997 a data match with the Australian Taxation Office revealed that Nationwide Realty (Nationwide) at Ipswich employed the applicant as a real estate salesman.  On 4 March 1997 a delegate of the Department wrote to Nationwide Realty seeking details of the applicant's employment.  On 6 March 1997 the manager returned the completed questionnaire which disclosed that the applicant had been employed full-time since 27 March 1996 and that he had worked eight hours a day, five days a week since then.  Details of the commission that the applicant earned were also provided.
   Date of Payment                   Amount          
   21/6/1996                  $1,015.32       
   11/10/1996                $1,233.75       
   25/10/1996                $507.60         
   21/11/1996                $511.13         
   20/12/1996                $633.33         
   15/1/1997                  $531.11         
   13/2/1997                  $575.75         
   21/2/1997                  $417.36         
   TOTAL          $5,425.35       

1. The applicant's Newstart Allowance was cancelled on 10 March 1997.  An overpayment of $8,301.05 was calculated.  On 2 April 1997 the applicant requested review of the decision, and on 2 April 1997 the Regional Manager of the Department's Ipswich office affirmed the decision.  An Authorised Review Officer varied this decision on 8 April 1997 reducing the amount of the debt to $7801.15.  This adjustment was made as the over-payment had previously been calculated on the basis that the applicant had commenced work on 2 March 1997, when it should have been 27 March 1997.  The amount was re-calculated again, on 4 August 1997, to $7769.48.

2. On 19 January 1998 the applicant appeared in the Ipswich Magistrates Court and was convicted of knowingly obtaining a Social Security benefit when not entitled.  The sentence included a reparation order requiring the applicant to repay an amount of $6876.64 which was the balance of the debt at that time.

3. On 12 January 2000 the applicant applied for review of the Authorised Review Officer's decision.  On 22 March 2000 the SSAT affirmed the decision, and the applicant has applied to this Tribunal for review of that decision.

4. The applicant maintains that he was unemployed during the relevant period.  He did not work for Nationwide.  He was not committed to them.  Despite the fact that he earned commission, and paid tax on that money, he was not employed as a real estate agent, because he was not a registered real estate person.  He had no authority to sell real estate.  Nationwide has broken the law, but he was not employed there, so no action took place.  He was not employed, he was training, and was paid a few commissions.

5. The applicant submits that in the fortnights he did not receive commission he was entitled to Newstart Allowance.  It was only in the eight fortnights that he was paid commission, that he was not entitled to Newstart Allowance; and the over-payment should be re-calculated on that basis.  Some compassion should be shown to him in view of his previous 36 years service to the public; and because he is repaying the debt by deductions of $25 per fortnight from his Mature Age Allowance, whereas he recovered millions of dollars for the public purse in Queensland.

6. The Department submits that the applicant was employed during the period by Nationwide, on a full-time basis, eight hours per day, five days per week, and he undertook work selling houses.  Whether he be described as a real estate agent or a trainee, it was clearly "work" and he was not unemployed.  The Department relies on Secretary, Department of Social Security and Smitherman (1991) 22 ALD 336 Brown and the Secretary, Department of Social Security (1991) 25 ALD 757, and De Boer AAT 1993 Decision Number 2990.

7. The Department submits also, that waiver pursuant to Section 1237AAD of the Act is precluded, because the applicant falsely declared that he did not receive commission payments.

8. Qualification for Newstart Allowance is provided in Section 593 of the Act which as far as is relevant provides:

   "Qualification for newstart allowance

   593.(1)  Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:

   (a)       the person satisfies the Secretary that:

   (i)        throughout the period the person is unemployed; or

   (ii)       the person is a CDEP Scheme participant in respect of the period; and

   Note:    For CDEP Scheme participant see section 1188B.

   (b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:

   (i)        satisfies the activity test; or

   (ii)        is not required to satisfy the activity test; and

   (c)if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

   (d)if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and

   (e)if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and

   (f)while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and

   Note:See subsection (2A) on taking reasonable steps.

   (g)throughout the period the person:

   (i)        subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and

   (ii)       is an Australian resident; and

   (iii)      subject to subsection (1A), is in Australia; and

   Note:    see subsection (3).

   (i)        the person was not in receipt of a youth allowance during the period.

Section 1224(1) of the Act provides:

"1224.(1)  If:

(a)an amount has been paid to a recipient by way of social security payment; and

(b)the amount was paid because the recipient or another person:

(i)made a false statement or a false representation; or

(ii)failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000 or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.

Note:If the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229).  If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A).

Section 1237AAD of the Act provides:

1237AAD.  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 to write off the debt or part of the debt.

Note:Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

1. I am satisfied on the whole of the evidence that the applicant was not unemployed during the period 2 March 1996 to 3 March 1997.  He was actively engaged in the pursuit of real estate sales.  Nationwide provided him with business cards, and he says that he sought out his own listings, none were provided by Nationwide.  He says that he had lost all his money, was without any funds and was training for a future in real estate, and he knew that in accordance with the Industrial Award decision of December 1996, real estate firms would be required to pay their real estate agents a retainer plus commission on sales.  This Award, he says, did not come into effect until 1999, but he wanted to be trained in real estate, an area he really enjoyed.

2. Whilst the applicant has a firmly held belief that he was not unemployed during the period; and that he was not such a "ratbag" to think that his income from commission would not be discovered by the Department, it is not possible to glean from his evidence, or his submission, any matters helpful to him in his circumstances.  His evidence and submissions were difficult to follow, and contradictory in the extreme.  He is clearly a most troubled person with a heightened sense of righteous indignation that his career in real estate has been cut short, and that he cannot, he says, find work in the district because of his conviction in the Magistrates Court.

3. I am satisfied on the evidence that the over-payment arose because the applicant made false statements. The discretion provided by Section 1237AAD of the Act is not available therefore. I am satisfied on the evidence that an over-payment of $7769.48 has arisen, which is a debt due to the Commonwealth, and that there are no special circumstances in which the exercise of discretion pursuant to Section 1237AAD of the Act would be appropriate.

4. For these reasons, the Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing  1 August 2000
Date of Decision  1 August 2000
Applicant  In person
For the Respondent                 Mr N Foster, Departmental Advocate