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

[2003] AATA 898

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/1313

ADMINISTRATIVE  APPEALS  DIVISION		)
Re		RUSSELL GREEN

Applicant

And SECRETARY, TO THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member J Handley

Date12 September 2003

PlaceMelbourne

Decision The decision under review is affirmed.

.(Sgd) J Handley

Senior Member

SOCIAL SECURITY; Youth Allowance recipient; declarations to Centrelink of dates worked and amount earned; employer records differed; whether Activity Test breach; whether overpaid; whether overpayment is a debt; whether debt can be waived; decision affirmed.

Social Security Act 1991, s550A(d)(e), s1223(1), s1223(1AB)(b)(c)(d), s1237AAD

Secretary, Department of Social Security v Danielson (1997) 44 ALD 19

Jones v Dunkel (1959) 101 CLR 298

Re Perring and Australian Postal Corp (1993) 31 ALD 693

Re Secretary, Department of Social Security and Smitherman (1991) 22 ALD 336

McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462

Nolan & Secretary, Department of Social Security (AAT 12442, 27 November 1997)

Re Hancock & Sartori & Secretary, Department of Social Security (AAT 13259, 7 Sept. ‘98)

Osgood v Secretary, Department of Social Security (AAT 11539, 14 January 1997)

Beadle & Director-General of Social Services (1984) 6 ALD 1

Groth v Secretary, Department of Social Services (1996) 40 ALD 541

REASONS FOR DECISION

12 September 2003   Mr J Handley, Senior Member

1.      This is an application by Russell Green (“the applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 14 November 2002.  The SSAT affirmed the decision of a Centrelink officer to raise and recover a Youth Allowance debt of $2,336.02 paid to the applicant during the period 21 September 2000 to 11 March 2001.

2. At the hearing in Ballarat, Mr Wheelahan of Counsel instructed by Cinque Morrow, represented the applicant. Mr Meehan, an advocate with Centrelink, represented the respondent. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as Exhibits marked A - D for the applicant and 1 - 6 for the respondent.

3.      During the period of the alleged overpayment, the applicant was employed as a security officer with 3D Security Service Pty Ltd (“3D”) and with National Loss Prevention Pty Ltd (“NLP”).  The period of employment with 3D was between September and November 2000 (refer later).  At the hearing it was learnt that the applicant did not dispute that he was overpaid Youth Allowance during his employment with NLP.  Accordingly this review concerns the duration of the employment, the days worked and the amount earned with 3D only.

Background and Facts

4.      Prior to commencing employment with 3D, the applicant qualified with Centrelink as having an entitlement to Youth Allowance.  Throughout the applicant’s employment with 3D he remained registered as a Youth Allowance recipient.  This required him to complete fortnightly applications disclosing whether he worked and earned income during the period over which each application enquired.

5.      The T-documents contained copies of Youth Allowance Payment applications covering designated fortnightly periods.  Between T-4 and T-8 inclusive, there are forms concerning five consecutive fortnightly periods ending on 28 September 2000, 12 October 2000, 26 October 2000, 9 November 2000 and 23 November 2000.  In those five fortnightly periods the applicant declared that he worked on 29 and 30 September 2000 and 1, 4, 5, 17, 18, 24, 25 and 31 October.  In those fortnightly periods the applicant declared that he earned the sums of $220, $240 and $80.  He declared that he did not work or earn income in the fortnightly periods ending 28 September 2000 and 23 November 2000.  Accordingly the applicant declared that he earned a total of $540 within the period commencing 15 September 2000 and ending on 23 November 2000.

6.      The documents exhibited disclosed that 3D was placed into liquidation after it ceased to trade on 30 November 2001.  Wage and employment records of the applicant with 3D were not made available.  It appears those records are being held by the liquidator who refused to make them available without a “Court Order” pursuant to s486 of the Companies Act (refer letter from Bent & Cougle to applicant’s mother – Exhibit A). However in a questionnaire completed by “Natalie Carter” who was a former employee of 3D, it is recorded that the applicant commenced employment as a casual employee on 21 September 2000.  The date of cessation of employment is recorded as 3 November 2000.  Ms Carter declared the income earned and the dates of employment with 3D (refer T-23 page 67) as follows:

Dates Worked	Dates paid	Gross Payment
21, 22, 23 & 30/09/00 + 01/10/00	05/10/00	$562.50
4, 5, 6, 10, 13, 15, 16 & 17/10/00	19/10/00	$687.50
18, 19, 23, 24, 25, 27, 30 & 31/10/00	02/11/00	$768.13
2/11/00	16/11/00	$87.50

7.      Ms Isabel Martini, a former director of 3D wrote a letter to the applicant’s mother in response to a request for provision of documents as to her son’s employment.  The response of Ms Martini is found at Exhibit B and in part records the following:

A summary of earnings of all guards I copied and kept to assist police in another matter tells me that Russell Green earned $2,105.63 gross in the financial year 01/07/00 – 30/06/01, of which he received (net) $1,846.00 in four separate payments, viz: $498 (02/10/00); $597 (18/10/00); $664 (31/10/00); $87 (16/11/00).

8.      The aggregate of payments recorded in the form completed by Ms Carter (refer above) is $2,105.63.  That sum is also stated by Ms Martini as the gross sum paid to Mr Green.  The four payments made to Mr Green as disclosed in the letter of Ms Martini were net of income tax.

9.      A comparison of the declarations made by Mr Green and the information supplied by Ms Carter and Ms Martini record a significant discrepancy in the days worked and the amount earned.  That is to say, from the records provided by 3D the applicant worked, in addition to the days he declared (refer paragraph 5), the days of 12, 22 and 23 September and on 6, 10, 13, 15, 16, 19, 23, 27, 30 October and 2 November.  The applicant did not declare these dates.  With respect to the income earned, the applicant declared total earnings of $540.00.  The records of the former employer disclosed that $2,105.63 gross was paid.

Mr Russell Green

10.     The applicant was taken to T-23 (refer paragraph 6) which indicates he worked on days not stated in his ‘Application for payment of Youth Allowance’ forms.  He responded that T-23 was “not correct”..  He said he could not explain why 3D recorded him working on those days and recollected making a statement to Centrelink disputing the amounts paid (T-29).  The statement of the applicant is found at page 79 and is reproduced as follows:

I have been informed that Centrelink believes I have made a breach & have been overpaid as a result.  I believe I have given the right information and have advised that my employer has made payment errors between myself and two other employees of the same surname on several occasions.

I was in hospital just before Christmas with a collapsed lung and could not work until cleared by a doctor for some weeks.  I will retrieve my bank statements and verify payments.  If I have been overpaid this has been accidental in estimating income and I will make arrangements to repay the correct figure – including Centrelink claiming my tax return payment.  In the meantime I request the breach removed as this is causing hardship.  I request that if payments are required that a mutually agreed figure be used and I will fill in a financial information form.  I understand that the breach would be reapplied.

11.     Mr Green explained that his reference in this statement to “employment errors” referred to errors of what he earned and that he had suffered a collapsed lung and could not work on doctor’s orders.  He gave evidence that no payslips were distributed to him and although he had a Group Certificate, he could not say what amount was recorded in it.

12.     The applicant explained that he was told he was required to open a Commonwealth Bank account by 3D “as that is the bank they used and they were not able to pay through any other”. Apparently Jim Hoy or Stephen Miles, former employees of 3D advised him of this.

13.     Mr Meehan, in cross-examination then asked whether his statements contained in the questionnaires of T-4 to T-8 inclusive were correct, to which the applicant responded positively.  It was then pointed out to him that at T-46, which contains his Commonwealth Bank account statement, that he was paid $87.00 on 16 November 2000 although in T-7 he had claimed he earned $80.00.

14.     The applicant acknowledged he had received Youth Allowance whilst he attended high school at the Ballarat School of Mines and Industry.  He could not remember if between the period he left there (to which he had difficulty remembering if that year was 1988 or 1989) and the time he commenced work at 3D, whether he had any other employment.

15.     Mr Green remembered contacting Centrelink on 11 September 2000 to advise that he would commence work on 19 September 2000.  He explained that he later claimed he did not work on 19 September 2000 as he was “knocked back” in attaining his security guard licence.  He stated he would not be able to work without that licence and to do so  “is illegal”.  He could not say when the “Private Agents’ Tribunal” granted his licence though he estimated it was issued one to one-and-a-half weeks later (and definitely after 21 September 2003).  He stated that when the licence was issued, it was backdated to 19 September 2003.

16.     Mr Green said that Natalie Carter was a receptionist and security guard formerly employed by 3D.  He said that she obtained her security guard licence at the same time that he did.  On the occasions that he attended the workplace he observed that Ms Carter was performing receptionist type duties.  He said that he had also been told by Jim Hoy that she was “our receptionist”.

17.     In cross-examination the applicant acknowledged he had received a Group Certificate but was “not sure if (he) could provide a copy”..  He also acknowledged he is required to keep his returns. He explained he had not brought the document to the hearing as he could not locate it and he found it difficult to look for as he had “been working 60 hours per week”..  He was also unable to remember the name of the accountant he retained to produce his income tax return but said his “mother would know the name”..  I asked Mr Green whether his income tax return declared income from 3D in the sum of $2,105.63 – pursuant to the documented information provided by Ms Carter and Ms Martini.  Mr Green said that he could not recall but did say that he had remembered having a discussion with his accountant where he had told the accountant that he had earned less than the amount stated in the Group Certificate.  He remained adamant that he earned only the amounts declared in his applications namely, $540.00.  However he did remember that he told the accountant the situation regarding the disputed amount earned to which the accountant said he would “handle it”.

18.     I then adjourned the hearing to allow the applicant to retrieve a copy of his income tax return.  When the hearing resumed, Mr Green said that he had been able to obtain a copy of the 2001 income tax return from his accountant.  This document had become critical to this review (and I was surprised the applicant had not produced it).  The income tax return declared earnings from 3D of $2,105.00.  Mr Green said that when he had had a discussion with his accountant concerning the discrepancy (as he alleged) between the amount recorded in the Group Certificate provided by 3D and the amount that he believed that he had earned, his accountant had told him that “notification would be made to the Tax Office”.  Mr Green agreed that he had signed his income tax return and had authorised his accountant to electronically lodge it with the Tax Office.  He said that he had “assumed that he (the accountant) would handle it in the correct way”..  He said that he did not check the contents of it when he eventually obtained a copy and said that it had been provided to him in a sealed envelope, which he had not opened and which he had stored in his filing cabinet at home.

19.     I then asked Mr Green to give a further explanation of the information he had given to Centrelink concerning the possibility of wages being paid to another person with the same surname.  He said that a person by the name of “Margaret Green” was employed by 3D and a staff list of former employees compiled by the liquidators, which had been provided to his mother revealed her identity.  In the letter from the liquidator (Exhibit A) a person “Alison Green” is named as an employee, Mr Green said that he did not know that person.

20.     He was also asked to comment on the suggestion made elsewhere that the disputed moneys were misappropriated by a bookkeeper at 3D.  He responded that he did not know if the money was misappropriated as it was “not his call”.

21.     Mr Green said that 3D calculated salary by reference to signed timesheets and logbooks.  He also said that he was required to verify his work location by a telephone call to 3D.  He advised that he was paid via cash in an envelope.  He initially said the envelope had no writing on it and did not contain a payslip, but later said that the envelope did record his name.  He said he did not know if the money paid to him was net or gross.  When he was asked why he did not ask questions about what he was earning and the methodology of payment, he said he did not want to risk losing his job.  Although he agreed that it is the job of a security guard to be suspicious, he indicated it would not be prudent to direct such suspicion towards his employer.

Ms Simone Banks

22.     

In evidence given by the applicant’s mother, Simone Banks, issue was taken with the Department’s averaging calculations.  She said in some cases it meant amounts “disappear into the fortnight before” so that the amounts earned appear “larger”.  She said this is unfair when “employment is erratic” and therefore it is “misleading to average out (the earnings) in that way”.  She later alleged in

cross-examination that the averaging “is done for recovering” benefits.

23.     She also said that possible explanations of 3D recording the dates worked by her son included confusing Alison Green with the applicant, misappropriation of money by another person and major discrepancies in 3D’s records.  She also said Centrelink claimed to have contacted 3D yet they did not have the correct name so she did “not know how they contact(ed)” them.

24.     Ms Banks also referred to her personal and significant involvement in this matter.  It was Ms Banks who made attempts to obtain the rosters of 3D via a letter to the liquidator, Bent & Cougle and was informed that to obtain access would need a “Court Order”.  She stated the cost of this was too much to pursue.

25.     It was also learnt that Ms Banks had lodged a “Proof of Debt” upon the liquidator on 24 March 2003 on behalf of Mr Green in the sum of $2,018.13.  The liquidator replied on 23 April rejecting the application because she had “failed to provide evidence to prove” that the sum of $2,018.13 was not paid.  Ms Banks explained that her application for “Proof of Debt” in the sum of $2,018.13 was undertaken with a view to obtaining the documents from 3D without having to resort to legal cost.  She refuted the suggestion put to her that she had made a claim indicating an entitlement to her son in that sum of money.

Statutory Provisions

26.     The Social Security Act 1991 (“the Act”) contains provisions concerning Activity Test breaches with respect to recipients of Youth Allowance and additional provisions generally with respect to overpayments of benefits.

27.     Section 550A at (d) and (e) relevantly provides that an Activity Test breach has been committed if:

(d)the person refuses or fails, without reasonable excuse, to provide information in relation to the person’s income from remunerative work when required to do so under this Act; or

(e)the person knowingly or recklessly provides false or misleading information in relation to the person’s income from remunerative work when required to do so under this Act.

28. Section 1223(1) of the Act provides:

Subject to this section, if:

(a)a social security payment is made; and

(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

29.     Section 1223(1AB), (b), (c), (d) also relevantly provide the following:

Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:

(b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;

(c)the payment was not payable;

(d)the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation.

30.     Section 1224 was referred to by the Social Security Appeals Tribunal in its Reasons for Decision.  That section was repealed by Act No 47 of 2001 effective at 1 July 2001.  That is to say, the section had operation during the period where the applicant received Youth Allowance but had been repealed at the time of the primary decision made by a Centrelink officer.

31.     Section 1237AAD permits the respondent to waive recovery of debts – in whole or part – in the following circumstances:

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)    making a false statement or a false representation; or

(ii)   failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.

Submissions

32.     Counsel for the applicant submitted that the respondent attempted to reverse the onus of proof onto his client.  It was submitted that the respondent was obliged to prove that the applicant worked the days alleged by 3D.  It was submitted that the respondent relied on “inferior evidence” by adopting the documents supplied by 3D.

33.     Mr Wheelahan referred to file memorandums reproduced at T-30 and T-31.  T-30 records an officer of Centrelink spoke with “employer” on 2 May 2001 where the following was recorded:

Rang 3D security, they assured me that there is only one Russell Green on their records and that information sent is correct.  Customer was disputing that employer had mixed up another employee with same name and had not worked during periods stated.  3D has paysheets with signatures if required.

Customer will need to take concerns up with employers, debt and breach stand.

34.     On 3 May 2001 an officer of Centrelink had a discussion with “Isabel” at 3D.  The discussion is memorialised at T-31 in the following terms:

She checked records, confirmed employer report.

She also stated no other Russell Green worked there.

Will provide time sheets if necessary.

35.     Mr Wheelahan submitted that the respondent should have obtained the “paysheets” and the “timesheets” from 3D because it would have established payments that were made to Mr Green.  He noted that “Isabel” had offered to make the timesheets available and that those documents would have been “best evidence”.

36.     Similarly he referred to T-23, the document completed by Ms Carter, regarding the dates the applicant worked and submitted it was deficient as it did not report the hours worked by the applicant.  It was also argued that Ms Carter, being a receptionist and guard at 3D, would not have knowledge of the days worked by the applicant to give an accurate report.

37.     Mr Wheelahan also asked the Tribunal to draw an inference against Centrelink for its failure to call Ms Martini.  He also pointed to the attempts of Ms Banks to obtain information and documents relating to this matter compared with the “three phone calls” of Centrelink.

38.     Mr Wheelahan submitted the applicant was a witness of truth.  He stated the applicant has been steadfastly adamant that he earned only $540.00 from his 3D employment and steadfastly maintained that the sum claimed by 3D was wrong.

39.     It was conceded by Mr Wheelahan that the evidence regarding the applicant’s Group Certificate and income tax return was “unsatisfactory and not what is expected of an adult”.  However, it was argued that “poor house-keeping does not mean his evidence is false”.  It was then put that the information in T-23 is “insufficient and inaccurate when compared to the evidence” of the applicant.

40.     The respondent submitted that the Activity Test breach should be affirmed and it should be found the applicant “recklessly and or knowingly” misled Centrelink.  Mr Meehan said the applicant asserted he had not received $2,105.63 yet his Group Certificate was evidence of its receipt.  In comparison, the respondent relied on his employment record and the follow up contact it had with 3D.  He submitted that this evidence should be preferred.

41.     Mr Meehan referred to the declaration by the applicant in his questionnaire at T-7 of earnings of $80.00 when his bank account statement (T-46) records a payment made of $87.00.  He pointed to this as evidence of the applicant failing to declare earnings or giving misleading or false information.

42.     Mr Meehan also referred to the applicant’s evidence that he did not know if the salary paid to him was gross or net.   It was submitted that the applicant could not be sure that amounts he declared to Centrelink were accurate.

43.     In response to the applicant’s request to draw an adverse inference for not calling Ms Martini and an adverse inference against the respondent for not providing the “best evidence”, it was submitted that the Tribunal is not bound by the rules of evidence.  Additionally, Mr Meehan submitted that when Centrelink sought the pay records, 3D had been placed in liquidation.

44.     In reply Mr Wheelahan submitted that the declaration by the applicant of $80.00 of income when in fact he had earned $87.00 amounted to no more than a “rough calculation” and inference should not be drawn that the applicant had given false information.

Reasons for Decision

45. The submission of the applicant that the respondent should have obtained the records from 3D is not compelling. The Tribunal is not bound by the rules of evidence (refer s33 of the Administrative Appeals Tribunal Act) and the submissions as to “best evidence” are inappropriate.  Equally Mr Green could have obtained his pay records from 3D prior to it entering into liquidation – indeed before the decision of the Centrelink officer was made.  The Federal Court in Secretary, Department of Social Security v Danielson (1997) 44 ALD 19 decided that in the absence of “direct evidence” the Tribunal was entitled to make inferences from the “existence of other facts”.  Alternatively the absence of “direct evidence” did not amount to an absence of evidence in support of facts.  In the present case there are three different sources pointing to the applicant having earned the sum of $2,105.63 gross in his employment with 3D namely, the information supplied by Ms Carter, the information supplied by Ms Martini and the amount declared in the income tax return which must have had, as its source, the Group Certificate issued by 3D.

46.     

Additionally I am satisfied that the offers made by 3D personnel (T-30 and

T-31) to provide the records of employment are consistent with the existence of source information permitting Ms Carter and Ms Martini to make the representations that they did and consistent also with documented information establishing that the sum $2,105..63 was actually paid.

47.     The Tribunal was also asked to draw an adverse inference against the respondent for not calling Ms Martini in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298 (that is a Court or Tribunal is entitled to draw an adverse inference against a party if a witness who would be expected to favour that party is not called). Although this rule is applicable to inquisitorial proceedings before this Tribunal it is not automatically applied (Re Perring and Australian Postal Corp (1993) 31 ALD 693) and only applies if the witness not called would have been expected to favour a party. I draw no adverse inference against the respondent for its failure to call Ms Martini or Ms Carter. Additionally, there is nothing to suggest they would have been expected to favour the respondent. Indeed if the applicant was serious in his contentions that the above sum was not paid it was open to him to call Ms Martini. He was aware from her letter to his mother (Exhibit B) that Ms Martini did have possession of “a summary of earnings of all guards” permitting her to describe the payments that had been made.  Additionally if he was serious in his contention that payments had been made to another person with the same surname, inspection of those records would have either established that fact or if they did not, that part of that evidence in these proceedings may have been unnecessary.  It was apparently a significant issue for the applicant because he and his mother made many representations to Centrelink alleging that payments had been made to another person with the same surname.  In fact it was alleged that a former employee of 3D had been charged by the police with various offences which would also explain the absence from payment to Mr Green in the sum of $2,105.63.  A separate memorandum within the T-documents records that the charges concerning that employee were dismissed.  It is not apparent from the file memorandums whether the charges laid against that employee were in relation to payments of salary with respect to the applicant.  The evidence of payment to Mr Green in the sum of $2,105.63 from three different sources (refer earlier) placed a greater onus upon Mr Green to call Ms Martini.

48.     The applicant’s evidence with respect to his income tax return, his authorisation to his accountant to lodge the return electronically, his failure to produce it at the hearing (prior to it being stood down), and his failure to check the contents of it, were wholly unsatisfactory.  I am also satisfied that both Ms Martini and Ms Carter are persons who may properly be regarded as being neutral.  They are not parties to the proceedings and have no investment in nor do they stand to gain anything by these proceedings.  It would appear that Ms Martini has attempted to assist the applicant by the information provided to him and his mother and has also co-operated with the respondent during telephone discussions.

49.     On balance I am satisfied that the correct or preferable decision is to find as a fact that the applicant was paid the sum of $2,105.63 by 3D and that he was employed between 21 September and 3 November 2000 with 3D.  The evidence of the applicant amounted to him not making truthful declarations to the respondent as to the days that he worked and the amounts earned.  I am satisfied that his attitude to declarations to the respondent and receipt of public monies was casual or at worst apathetic.  I also note that Mr Green said in evidence that the employer had made errors when declaring to Centrelink the dates of employment and the amounts earned.  He pointed to being incapacitated by reason of a collapsed lung in December 2000 and January 2001.  Medical documentation corroborated that illness and incapacity.  However the applicant had ceased employment with 3D in November 2000.

50.     The applicant gave evidence concerning the date of issue of his security guard licence in the context of establishing that he could not have worked – and therefore could not have earned – prior to the licence being issued.  I thought this evidence unsatisfactory.  The applicant could not recall the date of issue of the licence, indeed the licence itself was not produced which may have recorded the date of issue.  Correspondence between him and the “Private Agents’ Tribunal” may also have been helpful if it had been produced.

51.     A comparison of the dates declared by the applicant as having worked and the dates declared by 3D, being dates upon which it alleged the applicant worked for it, gave rise to an allegation by the applicant’s mother that the monies alleged to have been paid to her son in fact had been misappropriated by a former employee of 3D.  In a letter to the applicant’s mother of 24 January 2003 (Exhibit 4) Ms Martini recorded:

Information handed to the police related (as I told you), to another matter entirely.  Any reference to Russell Green within those documents would have been incidental only (e.g. Russell’s name might possibly appear on a given duty roster containing also the name of the relevant party).

52.     To the extent that it was alleged that payments were made to another person with the same surname, I note that the information supplied by 3D at T-23 was in response to a request from Centrelink concerning a person “Russell Green” and where his date of birth was recorded.  Additionally Mr Green in his statement to Centrelink on 2 May 2001 (T-29) referred to errors made by 3D in making payment to two other employees of the same surname on “several occasions”.  No information at all was provided by Mr Green or his mother in evidence at the hearing of this.

Conclusion

53.     I am satisfied that Mr Green did refuse or fail without reasonable excuse to provide information in relation to his income from remunerative work within the meaning of s550A(d).  The information supplied omitted many of the days that were worked and much of the income that was earned.  Additionally I am satisfied that he knowingly or recklessly provided false or misleading information to Centrelink within the meaning of s550A(e).  Accordingly I am satisfied that the applicant has committed an Activity Test breach within the meaning of s550A.

54.     A consequence of the omissions on the part of the applicant were that he was paid a benefit to which he was not entitled.  This has given rise to an overpayment.  The overpayment constitutes a debt.  There is an apparent overlap in the language between s550A and s1223(1AB) namely, making statements or providing misleading information which is “false”.  In Re Secretary, Department of Social Security and Smitherman (1991) 22 ALD 336 the Tribunal at 345 discussed whether a person’s belief in the truth of the statement provided an answer to an allegation that a false statement or false misrepresentation had been made. The Tribunal concluded:

A distinction, in the opinion of the tribunal, has to be drawn between the situation where a person makes an assertion that quite clearly and unambiguously on any objective criteria is not true (even if the person believes it is) and a situation where a person makes an assertion that he believes to be true about a state of facts, where the characterisation to be given to that state of facts is ambiguous, so that different minds may well differ as to the description that they would attach to that set of facts.

55.     In the present circumstance I am satisfied that the representations made by Mr Green to Centrelink were clearly and unambiguously not true.  There is no ambiguity in the question asked of him or in the answers given.  He was asked to declare the days that he worked and the amount that he earned.  He did not give complete or truthful answers.  His responses therefore constitute false or misleading information which he knowingly or recklessly provided (s550A).  Additionally he made false statements and misrepresentations (s1223(1AB)).

56.     Alternatively – or additionally – a statement or representation which was untrue is “false” (refer McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462.

57.     Mr Green has therefore received a benefit to which he did not have an entitlement and the amount therefore overpaid to him is a debt (s1223(1)).

58.     The issue then remains as to the matter of calculation of the debt.

59.     This has historically caused some controversy because the fortnightly payment periods of the Commonwealth do not coincide with the pay periods of employers, in the cases of persons who have worked whilst claiming a benefit.  No less of a situation occurs in the present application.  Ms Banks in fact gave evidence in these proceedings where she sought to explain that the methodology adopted by the respondent in its calculation of overpayment was incorrect.  An analysis of its methodology demonstrates that it attempted to coincide the payments made by Centrelink with the salary earned by Mr Green to calculate the overpayment by averaging.

60.     In Nolan & Secretary, Department of Social Security (unreported decision of 27 November 1997 – V97/906 decision no. 12442) a similar circumstance arose concerning the methodology adopted by the Department of Social Security in calculating an overpayment.  It was then decided:

The respondent was entitled, inferentially, to conclude, despite the differing pay periods that there was an overpayment.  If the applicant declares monies received at a sum less than actually paid to her, prima facie, by this false (even if innocently made statement), an overpayment will occur.  The pay periods were not so far apart as to prevent an interpretation or an inference by all surrounding facts that income received was less than actually declared (refer Secretary, Department of Social Security v Danielson (1997) 44 ALD 19). Further the methodology adopted by the respondent in calculating the rate of overpayment was probably appropriate in this application. There would seem to be little other alternative but to convert the amounts paid into average daily rates and calculate the pension entitlement for the nearest corresponding periods also by converting those entitlements into average daily rates.

61.     Similar findings have been made as above in Re Hancock & Sartori & Secretary, Department of Social Security (unreported decision of 7 September 1998) AAT decision no. 13259 and in Osgood v Secretary, Department of Social Security (unreported decision dated 14 January 1997 W95/418 Tribunal decision no. 11539).

62.     On balance therefore I am satisfied that the methodology adopted by the respondent in calculating the overpayment is appropriate and the amount overpaid to Mr Green is a debt over which he is liable for re-payment.

63.     The remaining issue is whether the respondent can waive the right to recover all or part of the debt.  The discretion available to the respondent is found at s1237AAD (refer earlier).

64.     The conjunctive construction of that section compels satisfaction of all three sub-sections.  Having found that Mr Green did make a false statement which did give rise to the debt, sub-section (a) cannot be satisfied.  Although not necessary to make the following findings I could not in any event have found that there were special circumstances, making it desirable to waive within the meaning of sub-section (b).  There is nothing “unusual, uncommon or exceptional” about the circumstances of Mr Green or anything which would set his case aside from another (refer Beadle & Director-General of Social Services (1984) 6 ALD 1 and Groth v Secretary, Department of Social Security (1996) 40 ALD 541).

65.     By reason of the findings of fact made at paragraph 49 and the concession of the applicant concerning payments made whilst employed by NLP, the decision under review as to the Activity Test breach and overpayment of Youth Allowance will be affirmed.  The application is remitted to Centrelink to review the quantum of overpayment.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.

Signed:         Elsa Genovese
  Personal Assistant

Date of Hearing  15 July 2003
Date of Decision  12 September 2003
Counsel for the Applicant              Mr P Wheelahan
Solicitor for the Applicant              Cinque-Morrow Solicitors
Advocate for the Respondent      Mr S Meehan