George and Department of Employment and Workplace Relations

[2006] AATA 304

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/166

GENERAL ADMINISTRATIVE   DIVISION		)
Re		GRAEME JOHN GEORGE

Applicant

And DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date31 March 2006

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - Newstart allowance - arrears - calculation of arrears - earnings - payments made - claim of errors - SSAT review.

Social Security Act 1991 and Amendments - ss180, 643, 1068 and 1237AAA

Social Security (Administration) Act 1999

Guide to Social Security Law

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

31 March 2006 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1. The decision under review is a decision made by the Social Security Appeals Tribunal (SSAT) on 14 October 2005, subsequently modified by Centrelink on 8 February 2006 under s180 of the Social Security Act 1991 (“the Act’) whereby the applicant Graeme John George was granted arrears of Newstart Allowance (NSA) totalling $292.26.

2.      The applicant has disputed this amount, claiming he was and is entitled to a larger sum.

Issue

3.      The issue is whether the amount of arrears paid to Mr George is correct.

Legislation

4.      The relevant legislation is the Social Security Act 1991 and Amendments, especially sections 180, 643, 1068 and 1237 AAA. The Social Security (Administration) Act 1999 and Guide to Social Security Law should also be noted.

Standard of Proof

5.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

6.      The applicant, Graeme John George, was granted Newstart Allowance (NSA) from 16 August 2004, but later transferred to Age Pension on 9 February 2005.   His wife, Jean George, was receiving an Age pension at the time.

7.      Mr George’s rate of NSA was calculated from 16 August 2004 with reference, in part, to business income of $3,926 identified in a profit and loss statement he had submitted.   In accordance with social security law all sources of income are assessed from time to time and any income earned by Mrs George or other investment income would be taken into account in determining pension rates.

8.      On 30 August 2004 Mr George queried the rate of NSA allotted to him, on grounds he expected more than the amount initially granted.    Following review and affirmation by an authorised review officer (ARO), the matter was heard by the SSAT on 23 December 2004, including reference to a new profit and loss statement filed by the applicant, for the period 1 September 2004 to 16 November 2004.   Business income was assessed as $42.94 and the Tribunal directed that Mr George’s NSA should be calculated on the basis of $3.90 per week and arrears paid for the period 1 September 2004 to 16 November 2004.    The actual amount was not specified in the SSAT decision.

9.      On 17 January 2005 Centrelink carried out a reassessment of Mr George’s NSA and an arrears payment for the period 1 September 2004 to 31 January 2005 of $292.26 was made.    The amount of arrears was automatically calculated by mainframe computer, but the applicant queried whether the amount was correct, on 17 January 2005.    On 7 April 2005 Mr George was paid a further $19.33 as arrears for the period 1 September 2004 to 3 January 2005.    Altogether Mr George had now received $311.59 and an ARO certified on 25 July 2005 the applicant had been paid all arrears arising from the SSAT decision of 16 December 2004.    The applicant again queried this determination believing it was incorrect.

10.     On 14 October 2005 a new SSAT decision affirmed the decision of a Centrelink officer on 17 January 2005, as varied on 6 April 2005, to pay Mr George a total of $311.59 arrears of NSA.   The applicant continued to query both the amount and calculation method and decided to lodge an application for review by the Administrative Appeals Tribunal (AAT) on 9 November 2005.

11.     It should be noted that the maximum basic rate of Newstart Allowance for a partnered non home-owner individual aged 60 years or more was $351.10 at 1 September 2004.    That amount was increased to $356 per week from 20 September 2004.

The AAT Hearing

12.     An AAT hearing was conducted in Launceston on 20 February 2006.    The applicant was self-represented; while Mr Brian Sparkes appeared as counsel for the respondent, the Department of Employment and Workplace Relations (DEWR).

13.     After the T documents and a number of exhibits were taken into record, Graeme John George was sworn as applicant and witness and then presented his case.   Mr George indicated he was satisfied with Centrelink’s treatment of his age pension claim, but extremely dissatisfied with earlier NSA proceedings, both in the manner he was treated and perceived errors in arrears calculation.   He had been given contradictory information, dates and amounts of arrears calculated were varied over time, and he had not received the amount he was entitled to.

14.     Mr George claimed that an employee of Centrelink had initially told him that if he was not working, a New Start Allowance benefit of $187 per fortnight might be payable, but later thought the employee had a lisp and it was possible the figure quoted was $118 per fortnight.   He was not receiving anything like this amount and therefore believed a considerable sum was still owed to him.

15.     He also considered Centrelink had erred in paying him $19.93 after initially calculating arrears of $292.26; he had offered Centrelink a cheque for $19.93, but they would not accept it.   Discussion had centred around a total sum of $311.59, but he queried the way it was calculated and the overall amount.  He was also concerned whether correct dates and amounts had been used in identifying profit and loss figures for his part-time bookkeeping business which had been put on the market in June 2004.

16.     Mr George stressed that he had asked for his complete Centrelink file and all employees who had dealt with his case to be present at the AAT hearing.   Centrelink had refused this on grounds of cost and he could not afford to take legal action or pay wages to ensure all attended, hence he was disadvantaged.   Counsel for Centrelink responded at this stage, pointing out they had offered 76 pages of key documents as exhibit in the case and had also called a senior assessment officer as witness to answer any questions the applicant might have about calculation of pension rates.

17.     During cross-examination a number of brief questions were put to Mr George about assets and income as clarification, but with recognition his NSA was not affected by the assets test.   Mr George indicated he was worried about the early stages of NSA payment, since it involved business income and the earnings of his partner who did not want her income details disclosed to him.    This is why he had objected to a document obtained under FOI which had a blank page.   He asked the Tribunal for force disclosure of the page, but had been informed it was his responsibility to make applicant and await a determination by the AAT as to whether the page should be obtained and disclosed.

18.     Mr George said there had been faulty administration throughout his case; there were minor inconsistencies in dates and figures quoted and he estimated the NSA arrears offered were some $400 to $500 less than he expected.

19.     Mr George then stood down as witness and the respondent called Mr Flemming Aaberg to give evidence.   After being sworn he indicated he had worked with Centrelink since 1989 in various assessment areas, including pensions and NSA.    He had served as technical trainer, team leader, authorised review officer and policy consultant during this time and was currently stationed at Devonport.

20.     Mr Aaberg pointed out there were often public misconceptions about benefits calculation, as they were based upon various forms of earnings and income and were related to personal circumstances, whether, single, partnered or not, but also based on a sliding scale of payment rates linked to income and assets tests, as well as whether the individual was working or not.   In effect it was a situation of graduated scales.  Once the elements of a person’s individual circumstances were fed into Centrelink’s mainframe computer, where the parameters were already programmed, an automatic calculation occurred and the appropriate NSA benefit emerged.    As personal circumstances changed and revised data became available an adjustment of NSA would occur.

21.     Mr Aaberg stated that where couples were involved, assessment of income was an important factor, since it could markedly affect the pension rates achieved, due to graduated scaling.    He used various examples to illustrate this point.   There were other parameters, such as changes in pension rates and the need to fit data to payment periods, which constituted change over time, but sometimes confused members of the public when minor discrepancies occurred due to rounding out figures.   Mr Aaberg indicated that hand calculation was sometimes used as another form of check of machine output or to illustrate to clients the way pension rates were calculated, but these were less reliable approaches than mainframe calculation, where methods and data were subject to ongoing scrutiny and refinement.

22.     Mr George said in cross-examination he was relieved to hear figures such as $187 or $118 per fortnight might be legitimate in certain circumstances, but this still did not explain why $19.33 was offered to him as supplementary payment which he felt was to “shut him up”.    Mr Aaberg said that as an experienced review officer he would have been concerned to get the figure right and could only assume an error in hand-calculation had been made by a staff member trying to ensure SSAT decisions were fully met.

23. In closing submissions counsel for the respondent stressed that Centrelink’s decision to pay arrears of $292.26 for the period1 September 2004 to 3 January 2005 was correct, even though it extended the period originally examined by the SSAT. Section 180 of the Act permitted such an adjustment and should be regarded as affirmed by the SSAT. In relation to the $19.33 supplement, Mr Aaberg had indicated an error appears to have occurred but Centrelink would not attempt to recover the amount in such circumstances.

24.     Mr Sparkes said that Centrelink used a computer program which was regularly checked and updated and handled hundreds of cases per day.   Reliance could therefore be placed in calculation of Mr George’s NSA.   Mr George appeared to have many grievances with Centrelink, which they had tried to resolve, but the case before the Tribunal was essentially one about arrears calculation and not a host of other matters.   The Commonwealth had decided within the context of the Social Security legislation what people should be paid and Centrelink could only meet this obligation by paying Mr George the $292.26 he was entitled to receive.   The decision under review should therefore be affirmed.

25.     Mr George was invited to make final submissions, but elected not to do so.

Analysis

26.     The Tribunal is required to conduct a de-novo review, taking all relevant evidence into consideration, as well as statutory and policy provisions and appropriate prior case determinations.

27.     Despite Mr George’s many grievances with Centrelink the central focus of this case is narrow, did he receive the NSA arrears he was entitled to receive?

28.     Mr Aaberg’s evidence was valuable in explaining the many factors that go into pension benefits and NSA calculation.    It is easy to understand why members of the public, such as Mr George, might have expectations later dispelled by the computation itself.   While it appears likely Mr George was given oversimplified advice, thereby in error, it is extremely unlikely he was misled and there is no evidence in the detailed Centrelink documentation to indicate any error in input and computation occurred.   His case was treated in precisely the same manner as thousands of others.

29.     Mr George continues to claim errors existed in income and asset assessments influencing his pension rates, but much of the information was supplied by himself and other financial data appears to have been given the same careful evaluation as in any other benefit claim.    Centrelink made attempts to resolve claimed discrepancies and while there may be disagreement about outcomes, there is no evidence major errors or discrimination occurred.

30.     In Mr George’s case we are dealing with a situation where he was receiving NSA, his partner was receiving part pension, but also had other income and assets and Mr George was involved in a bookkeeping business later sold, but still permitting him to engage in some part-time employment if he so desired.    Given these many variables it is clear that the Tribunal is not in a position to calculate the applicable NSA, but must examine the decision under review, namely that made by the SSAT on 14 October 2005.

31. Section 643 of the Act directs that the rate of Newstart Allowance be worked out using Benefit Rate Calculator B within Part 3.6 of the Act. In particular Attachment G-Income Test Module sets out a series of factors under s1068 which must be taken into account.

32.     Mr George has asked the Tribunal to consider the rate of NSA over the period July 2004 to February 2005, but it is the contention of Centrelink that the matter before the Tribunal is limited to the period 1 September 2004 to 3 January 2005 as specified in the SSAT decision.

33.     The Department also contends that business income was correctly assessed for the period 1 September 2004 to 16 November 2004, as directed by the SSAT and allowing for rounding was $202, equivalent to the $3.90 per week adopted by the SSAT in its 16 December 2004 decision.    From 1 December 2004 a loss of $1,072 was recorded for the business and therefore did not affect the rate of NSA.

34. Based upon the above information NSA arrears of $292.26 were automatically calculated for the period 1 September 2004 to 3 January 2005 and are accepted by the Tribunal. The decision affirmed by the SSAT on 14 October 2005 was incorrect, totalling the arrears as $311.59, when in fact $19.33 was not payable. The latter figure was subsequently raised as a debt, but in view of the error, waived under s1237AAA of the Act (waiver of a small debt).

35.     Having considered all evidence before it, the Tribunal has decided on the balance of probabilities that the amount of NSA arrears payable to the applicant Graeme John George was $292.26.   Mr George’s appeal therefore fails and the decision under review is affirmed.

36.     Mr George has consistently argued Centrelink’s calculations are incorrect, but the Tribunal notes that the actual figures and method of computation of NSA allowance are clearly set out in the T documents and exhibits submitted in the AAT hearing.    Having examined such evidence the Tribunal accepts Centrelink’s calculations appear correct.

Decision

37.     The decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  20 February 2006
Date of Decision  31 March 2006
Counsel for the Applicant         Applicant appeared on his own behalf.
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink