Geisler and Secretary to the Department of Family and Community S Ervices

[2003] AATA 981

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 981

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/329

GENERAL ADMINISTRATIVE DIVISION

Re:KEITH ROBERT GEISLER

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             30 September 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY ‑ newstart allowance ‑ underestimate of earnings from fruit picking ‑ overpayment ‑ debt to Commonwealth

Social Security Act 1991 s8, 1068(1)(a), 1223(1)

Secretary, Department of Social Security v Danielson (1996) 44 ALD 19

REASONS FOR DECISION

30 September 2003  G.D. Friedman, Member

1.      This is an application by Keith Robert Geisler (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 6 March 2003.  The SSAT varied a decision of an authorised review officer of Centrelink dated 20 August 2002 to raise and recover a debt of $549.78, arising from an overpayment of newstart allowance to the applicant for the period 16 January 2002 to 21 May 2002 (the relevant period).  The SSAT reduced the debt to $452.77.

2.      At the hearing on 25 September 2003 the applicant represented himself, and Ms K. Navarro, 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-T24b).   

BACKGROUND

4.      The applicant received newstart allowance from January to May 2002.  In his fortnightly newstart allowance forms he provided details of his and his partner’s casual earnings as fruit pickers, and his newstart allowance was calculated on the basis of those details.  In June 2002 Centrelink wrote to each of the applicant's employers seeking details of his earnings.  On receipt of this information Centrelink decided, on 25 June 2002, that the applicant had been overpaid the amount of $326.47 for the relevant period, and that this amount was a recoverable debt.  On 31 July 2002 an authorised review officer varied the amount of the debt to $549.78.

5.      On 28 August 2002 the applicant sought review of the Centrelink decision by the SSAT.  Following the decision by the SSAT, the applicant lodged an application with the Tribunal on 26 March 2003 for review of the SSAT decision.

EVIDENCE

6.      In oral evidence, by telephone, the applicant disputed the amount of the debt as calculated by Centrelink.  He referred to the relevant period and stated that neither he nor his partner had worked during the fortnight 16 to 29 January 2002.  He also said that he was unable to state precisely the amount of fruit picked in the relevant period, because estimates of the number of tubs of grapes picked on any given day were impossible.  The applicant explained that in the fruit picking industry workers declare income when it is earned rather than when received.  He stated that at times he was not paid at all.

7.      The applicant told the Tribunal that he worked for a number of employers during the picking season, and at times the Employment Declaration Form was completed in his name or his partner’s name, when in fact both were working.  He said that the figures provided by the various employers concerning his earnings were incomplete and incorrect, and in the absence of completed fortnightly forms the amounts recorded by Centrelink were not an accurate reflection of the amounts earned by him.  The applicant stated that for these reasons he was unable to state the amount of any debt to Centrelink, or if in fact he owed a debt at all.  He explained that he did everything possible to provide Centrelink with the correct details of his earnings.

8.      Ms S. Wiese, the applicant’s partner, supported his evidence and stated that the records kept by growers about the quantity of fruit picked and earnings made by individual pickers were inaccurate and at times were based on estimates.  She said that pickers rarely had an opportunity to question growers about information provided to Centrelink, and that she and the applicant were disadvantaged by their inability to produce evidence of their actual earnings.          

CONSIDERATION OF THE ISSUES

9. Section 1068(1)(a) of the Social Security Act 1991 (the Act) provides that the rate of newstart allowance is calculated in accordance with a Rate Calculator and takes into account the income earned by the applicant and the applicant's partner, as defined in s8 of the Act.

10.     Ms Navarro submitted that although a number of fortnightly forms were missing, the income figures used by Centrelink to calculate the amount of newstart allowance payable to the applicant were those obtained from the applicant’s employers, and were coded correctly on Centrelink’s computer.  She said that these indicate an overpayment leading to a debt to the Commonwealth.

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

12.     The Tribunal agrees with the applicant and Ms Wiese that casual employment with separate employers who use different pay periods is likely to lead to some difficulties in recording earnings accurately.  The Tribunal acknowledges that the applicant believes that the information he provided to Centrelink was correct for the purposes of calculating newstart allowance, and notes that he has no documentary evidence to support his claim that the Centrelink calculations were wrong.  With respect to the incomplete information resulting from the absence of some of the fortnightly forms, the Tribunal notes that in Secretary, Department of Social Security v Danielson (1996) 44 ALD 19 the Federal Court of Australia stated:

…

In order for s 1224(1) to have any application in the instant case, the applicant had to establish, in the first place, that the respondent had made statements or representations and the content of those statements or representations. Without the continuation forms, and in the absence of any evidence from the respondent as to what she declared as gross income on those forms, there was no direct evidence of the statements or representations which the respondent made. However, that there is no direct evidence of a fact does not necessarily mean that there is no evidence of a fact. Courts and tribunals are frequently asked to infer the existence of a particular fact from the existence of a series or number of other facts which, taken together, suggest that the existence of the particular fact in question is more probable than not...

13. In the circumstances there is no objective evidence that the information Centrelink received from the employers, concerning the income earned by the applicant and Ms Wiese was inaccurate or that Centrelink recorded the existing fortnightly forms incorrectly. The Tribunal is satisfied that, taken together, the calculations made by Centrelink were correct, and the Tribunal accepts that the information provided by the employers was an accurate record of the earnings by the applicant in the relevant period. His earnings, when measured against his entitlements, resulted in an overpayment of newstart allowance in the amount of $452.77. The Tribunal finds that this overpayment is a debt to the Commonwealth under s1223(1) of the Act.

14.     There is no evidence that the debt was due solely to administrative error by Centrelink or that special circumstances apply to justify waiver of the debt.  The debt is recoverable from the applicant’s fortnightly payments, and there is no evidence that would justify writing‑off the debt.

DECISION

15.     The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  25 September 2003

Date of decision:  30 September 2003
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms K. Navarro, Centrelink