Gabor and Secretary to the Department of Family and Community Ser Vices

[2003] AATA 277

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 277

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1116

GENERAL ADMINISTRATIVE  DIVISION

Re:RENEE GABOR

Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             11 March 2003

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - newstart allowance – underestimate of earnings - overpayment - debt to Commonwealth  

Social Security Act 1991 ss8, 1068-G7A, 1223(1)

Social Security (Administration) Act 1999 s68(2)

REASONS FOR DECISION

11 March 2003  G.D. Friedman, Member

1.      This is an application by Renee Gabor (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 25 June 2002.  The SSAT affirmed a decision of an authorised review officer (ARO) of Centrelink dated 5 February 2002 to raise and recover a debt of $3086.18 arising from an overpayment of newstart allowance to the applicant for the period 22 May 2001 to 18 December 2001.

2.      At the hearing on 11 March 2003 the applicant represented herself, and Mr R. Huttner, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T74).   

BACKGROUND

4.      The applicant was receiving newstart allowance.  In 2001 she obtained casual employment with three employers.  In her fortnightly newstart allowance forms she included details of her earnings, and newstart allowance was calculated accordingly.  Centrelink wrote to each of her employers seeking details of her casual earnings.  On receipt of this information Centrelink decided, on 26 November 2001, that as her estimated earnings were $1699.88 and her actual earnings were $6,897.02, she had been overpaid the amount of $3146.20 for the period 8 June 2001 to 18 December 2001. And that this amount was a recoverable debt.  On 5 February 2002 an ARO varied the amount of the debt to $3086.18 for the period 9 May 2001 to 18 December 2001.    

5.      On 10 May 2002 the applicant sought review by the SSAT, unsuccessfully.  On 17 October 2002 the applicant lodged an application with the Tribunal for review of the SSAT decision.

EVIDENCE

6.      The applicant did not dispute the amounts listed by her employers as her gross earnings.  She told the Tribunal that she did not seek to mislead Centrelink at any time, and to the best of her knowledge she completed all documentation correctly each fortnight.  She acknowledged that difficulties arose because the three employers had different pay periods, and as a casual employee she was required to list her earnings from memory rather than the amounts actually received at a later date.  She stated that in some cases she received allowances for travel, telephone calls and training, and that these amounts were included in her gross earnings.  She was not aware of the exact amount of allowances received, but believed that the allowances should not have been included as earnings in the fortnightly Centrelink Income Record because the forms stated that most allowances are exempt from the income test. 

7.      The applicant explained that there is no requirement in the social security legislation for bookkeeping procedures to be specified.  She said that the daily rate of earnings used by Centrelink was incorrect, and that Centrelink had an obligation to make the calculations accurately.

8.      Mr Huttner submitted that the relevant income figures used by Centrelink to calculate the correct amount of newstart allowance payable to the applicant were those obtained from the applicant’s employers, and that these indicated an overpayment, leading to a debt to the Commonwealth.

CONSIDERATION OF THE ISSUES

9. Section 1068-G7A of the Social Security Act 1991 (the Act) provides:

1068-G7A.  Subject to points 1068-G7B, 1068-G7C, 1068-G8 and 1068-G8A and section 1073, ordinary income is to be taken into account in the fortnight in which it is first earned, derived or received.

Under s8 of the Act:

…

"income", in relation to a person, means:

(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;

…

"ordinary income" means income that is not maintenance income or an exempt lump sum.

10. Section 68 of the Social Security (Administration) Act 1999 (the SSA Act) provides:

68.(2)      The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

(a)inform the Department if:

(i)a specified event or change of circumstances occurs; or

(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

(b)give the Department a statement about a matter that might affect the payment to the person of the social security payment.

11.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

12. The Tribunal acknowledges that the applicant believes that the information she provided to Centrelink was accurate for the purposes of calculating newstart allowance. The Tribunal agrees that casual employment with separate employers who use different pay periods is likely to lead to some difficulties in recording accurate earnings. However, under s68 of the SSA Act the applicant was required to inform Centrelink of any event that might affect her level of payment of a benefit under the Act, and she did not do so. The Tribunal does not accept the applicant’s submission that the allowances should not have been included as earnings, as these amounts represent income as defined in s8 of the Act.

13. The Tribunal accepts the submission by Mr Huttner that the information provided by the employers is an accurate record of the earnings by the applicant in the relevant period. The Tribunal is satisfied that her earnings, when measured against her entitlements, result in an overpayment of newstart allowance in the amount of $3086.18. The Tribunal finds that this overpayment is a debt to the Commonwealth under s1223(1) of the Act. There is no evidence of administrative error by Centrelink, or that special circumstances apply, to justify waiver of the debt.

DECISION

14.     For reasons given orally at the hearing, the Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  11 March 2003

Date of decision:  11 March 2003
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr R. Huttner, Centrelink