Eime and Secretary, Department of Family and Community Services - [2002] AATA 258

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/407

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

DECISION

Tribunal Senior Member WJF Purcell

Date19 March 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – activity test breach – activity breach rate reduction period - whether applicant knowingly or recklessly provided false information
Social Security Act 1991 section 630AA

ORAL REASONS FOR DECISION

19 March 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 21 September 2001, which affirmed a delegate's decision of 5 July 2001, as affirmed by an Authorised Review Officer on 6 August 2001, to impose a 24% activity test breach rate reduction for a period of 26 weeks from 5 July 2001 to 2 January 2002, on the basis that the applicant failed to disclose income from employment.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The Hearing was conducted by way of telephone link up with the applicant, who appeared on her own behalf and gave oral evidence. Mr Underwood represented the respondent (the Department).
The applicant had been in receipt of Newstart Allowance. In February 2001 she had casual employment, of which the Department had been advised. On 12 February 2001 a letter was sent to her which reads, in part:
"You recently told us that you (or your partner) earned money from employment. As your Centrelink payments are affected by earnings you will, in future, need to provide information about your earnings.
When you lodge your Application for Payment form, you need to give us payslips and/or a completed Income Record form if you (or your partner) have been working in the period covered by the form. Without this information your payments may be delayed or cancelled. You need to tell us how much you (or your partner) earned for the period shown on your form even if you have not yet been paid.
Enclosed with this letter is an Income Record form and a leaflet called Using the Income record form. Please read both carefully – they will help you to work out the amount of income you need to tell us about.
INFORMATION MATCHING
We regularly compare the information you provide with records held by the Australian Taxation Office. If you do not give us the correct information about your earnings, you may need to repay any money you were not entitled to. Deliberately providing wrong income details is a breach of the activity test and you may be penalised further.
…" [T4/13]
Between 23 March 2001 and 20 April 2001 the applicant was employed on a commission basis by Trenwith & Associates and during that period she earned $1,333.35 gross. As a result of a data matching exercise with the Australian Taxation Office, her earnings came to light.
On two occasions during the course of her employment, the applicant submitted applications for payment of Newstart Allowance in respect of the periods 27 March 2001 to 9 April 2001 [T5/15] and 10 April 2001 to 23 April 2001 [T5/17]. On each of these forms she answered "no" to the question:
"Did you do any work in the period [covered by the form]?
… What was the amount earned in the period before tax or other deductions?
(You must tell us what you will get even if you have not been paid yet)"
A delegate determined that the applicant had been overpaid Newstart Allowance, but that decision is not the subject of the present appeal. Her Newstart Allowance was cancelled from 5 July 2001 and an activity breach was imposed. This resulted in an activity test rate reduction period being imposed on the applicant for the period 5 July 2001 to 2 January 2002. As she had a previous breach within the last 2 years, because of failure to disclose income, her Newstart Allowance was to be reduced by 24% for that period and the applicant was notified of this decision by letter dated 5 July 2001.
The delegate was satisfied that the applicant had failed to disclose her earnings and that section 630AA of the Social Security Act 1991 (the Act) applied which, as far as is relevant for the purposes of this review, provides:
"(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."
The decision to impose the activity test breach and consequent rate reduction period was affirmed by an Authorised Review Officer on 6 August 2001. The applicant applied for review to the SSAT, which affirmed the decision on 21 September 2001, and she has applied now to this Tribunal for review of that decision.
The applicant said in evidence that she did not read the Department's letter of 12 February 2001 closely [T4/13]. She had been in receipt of regular casual income which she had declared to Centrelink. She gave up this employment to take up the job with Trenwith & Associates on a commission basis, and thought that she would not be paid for 6 weeks, and that if she told the Department, she would be without income for this whole period. She says that she intended to inform Centrelink at the completion of her employment, and before "tax time"; as she understood that the Department would only check with the Australian Tax Office at the end of the financial year.
The applicant gave evidence that when she filled out the first application form for the period 27 March 2001 to 9 April 2001, she had been paid for 1 week, but did not know whether she would be paid any more until the end of the monthly pay period. She says that at all times she intended to inform the Department of her earnings.
The Department contends that the applicant gave false or misleading information in relation to her income from remunerative work. She neither advised that she had been engaged in remunerative work, nor gave details of the income earned from that work.
I have examined the whole of the evidence carefully and in detail, and I have taken into account the applicant's evidence and the parties' submissions. I accept the applicant's evidence that she intended to inform Centrelink in due course, but on the whole of the evidence, if she did not knowingly provide false or misleading information, she was in my view reckless in providing false information. She had been breached previously for the same reason, and was reckless in her inattention to the contents of the Department's correspondence to her, and the duties put upon her. I consider that her conduct is in breach of section 630AA of the Act and that the penalty was properly imposed.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  19 March 2002
Date of Decision  19 March 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Underwood
Solicitor for the Respondent    Advocacy & Administrative Law Team