Gozel and Secretary, Department of Family and Community Services - [2002] AATA 637

DECISION AND REASONS FOR DECISION [2002] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL)

No V2002/158

GENERAL ADMINISTRATIVE DIVISION)

ISFENDIYAR GOZEL

Applicant

SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr J Handley, Senior Member
Date:             26 July 2002
Place:            Melbourne

Decision:The decision under review is affirmed.

. . . . Sgd. Mr J. Handley.   .. .. .
  Senior Member
  SOCIAL SECURITY – newstart allowance – activity test breach - whether applicant worked - whether he failed to disclose work - decision affirmed.

Social Security (Administration) Act 1999 s 68
Social Security Act 1991 ss 23, 593, 630AA(1), 644AA

REASONS FOR DECISION

26 July 2002 Mr J Handley, Senior Member

The applicant applies to review a decision made by the Social Security Appeals Tribunal ("SSAT") on 15 November 2001. The SSAT then decided to affirm a decision previously made by an authorised review officer. The decision giving rise to these proceedings was the imposition of an activity test breach of 18 per cent against the Newstart Allowance ("NSA") for the period 3 August 2001 to 31 January 2002.
The hearing proceeded on 7 June 2002. Mr Gozel appeared without representation. Mr Perdon appeared on behalf of the respondent.
The facts giving rise to this application may be briefly summarised as follows-
At all relevant times, Mr Gozel was in receipt of NSA. By reason of the receipt of that allowance, Mr Gozel was obliged, fortnightly, to return completed questionnaires for defined periods. The questions asked whether he had worked, what he had earned, whether he was looking for work and whether other defined events occurred.
Relevantly, for the fortnight ending 8 May 2001 and 22 May 2001, Mr Gozel completed and returned questionnaires (T7, T8) where he denied he worked for the periods referred to in the questionnaires. A part of the form, requiring him to disclose amounts earned in those fortnights, was left blank.
At or about this time, the respondent conducted a data matching search with the Australian Taxation Office and was informed that Mr Gozel commenced employment with North Shore VCE Pty Ltd. Having learned that information, the respondent wrote to Mr Gozel on 5 June 2001 (Tdoc 12).
Mr Gozel completed a questionnaire for the period 6 June 2001 to 19 June 2001, where he then disclosed that he did work within this period and did earn the sum of $120. The name of the employer is disclosed.
Subsequently, the respondent obtained a letter from the employer confirming that Mr Gozel commenced as a casual employee from 28 April 2001 and received payments of $120 on 29 April 2001, $480 on 29 May 2001 and $578 on 30 June 2001 (T15, pp.31-33).
By reason of the failure to disclose employment and amounts earned during the periods covered by the questionnaires at T7 and T8, the respondent subsequently imposed an activity test breach.
Mr Gozel said at the hearing that his principal concern was that his honesty had been attacked. He said that Centrelink officers had frequently used the word "punishment" with respect to an imposition of an activity test breach and that they also used the word "knowingly" as a description of his conduct.
Mr Gozel said that, at all relevant times, he had been looking for work and had moved from Sydney to Melbourne in order to obtain a job. He said that he sought assistance from Centrelink and eventually qualified for intensive assistance because he had been out of the workforce for many years. He said that he was frustrated in his attempts to secure employment. He was also frustrated in the amount of paperwork he was required to complete and the amount of preparation he was required to undertake for job applications. He said that he was "losing concentration" on his obligations under Centrelink and regarded the obligation to complete questionnaires fortnightly as onerous. He agreed that he made mistakes, but did not make them knowingly. Additionally, he said that he did not "steal".
In response to questions from Mr Perdon, Mr Gozel said, at all relevant times he was frustrated with his obligations to Centrelink. Centrelink officers' use of the words "punishment" and "knowingly" caused him shame.
Additionally, he said that he did not disclose that he was working because his concept of "work" was inconsistent with the work that he was undertaking with North Shore VCE Pty Ltd.
THE LEGISLATION
The legislation applicable to the circumstances affecting Mr Gozel may be briefly summarised as follows.
Section 68 of the Social Security (Administration) Act 1999 provides that the Secretary of the respondent Department may give to a person, who is receiving a social security payment, a notice requiring information as to any specified event or change of circumstances. It is this provision which gives rise to the questionnaire, which was forwarded fortnightly to Mr Gozel.
Section 593 of the Social Security Act 1991 ("the Act") provides the "basic qualifications" for payment of NSA. One of the qualifying provisions (subsection (1)(a)) is that a claimant throughout a relevant period is "unemployed". Subsection (1)(b) provides that qualification for newstart allowance exists if a claimant satisfies the activity test or is not required to satisfy the activity test.
Section 23 of the Act provides that a breach of the activity test occurs when there has been a "failure, misconduct or any other act to which any of the following provisions" apply. Section 630AA(1) of the Act provides that, if a person refuses or fails, without reasonable excuse, to provide information in relation to income, remunerative work or knowingly or recklessly provides false or misleading information in relation to income from remunerative work, when required to do so, a NSA is not payable.
Subsection 630AA(2)(a) provides that, if the failure to provide information is the person's first or second activity test breach in the period of two years immediately before the failure to provide the information, an "activity test breach rate reduction period" applies. The expression "activity test breach rate reduction period" is defined in s 23 as being a period that applies under (among other provisions) s 644AA. That section provides that, if an activity test breach rate reduction period applies, the period applicable shall be 26 weeks.
CONCLUSION AND REASONS FOR DECISION
The applicant did refuse or fail to provide information with respect to his remunerative work. Despite the applicant's expressed misunderstanding of what is intended to be meant by the concept of "work", I am satisfied and find as a fact that he was employed by North Shore VCE Pty Ltd at all relevant times. The effect of the employment was that the applicant did engage in or undertake "work" for that employer. As a consequence of the failure or the refusal to provide that information, Mr Gozel is deemed to have committed an "activity test breach" and pursuant to s 630AA, an activity test breach rate reduction period is to be imposed pursuant to s644AA. That period is 26 weeks and the period in issue in these proceedings is of that duration.
Mr Gozel said that he was upset by some of the words used by Centrelink officers when talking with him, particularly the words "punishment" and "knowingly".
The word "knowingly" appears at subsection 630AA(1)(b).
I can find no location within the Act of the word "punishment", but it may be a term used to describe the consequence or effect of an activity test breach rate reduction period.
Mr Gozel has tertiary qualifications, and despite his frustrations in continuing unemployment and inability to secure employment, the concept of "work" is not difficult to comprehend. It is an every day term of spoken and written language. It is not a term of art and does not need legal interpretation. He was engaged by an employer, he worked and he received remuneration. He refused or failed, without any reasonable excuse, to provide that information. In fact, by ticking a box marked "No", he denied he had worked. This assumes he understood what is meant by 'work'. He clearly was working and being remunerated at the times applicable to the questionnaires at T7 and T8, because salary was being paid as the employer has consequently disclosed (T15).
Mr Gozel's expressed frustrations do not give rise to any discretion as to whether an activity test breach should be imposed.
DECISION
The decision of the SSAT under review in these proceedings is to be affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         Katherine Navarro.....................................
  Associate
Date/s of Hearing  7 June 2002
Date of Decision  26 July 2002
Counsel for the Applicant        Self represented
Solicitor for the Applicant         N/a
Counsel for the Respondent    Mr David Perdon
Solicitor for the Respondent    N/a