Gugliotti and Secretary, Department of Family and Community Services
[2002] AATA 938
•10 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 938
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/495
GENERAL ADMINISTRATIVE DIVISION )
Re RINALDO GUGLIOTTI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Date10 October 2002
PlaceMelbourne
Decision The decision under review is affirmed.
.........Sgd. Mr J. Handley.............
Senior Member
CATCHWORDS
Application for farm household support & re-establishment grant - whether applicant a 'farmer' - decision affirmed.
REASONS FOR DECISION
10 October 2002 Mr J. Handley, Senior Member
The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 28 March 2001. The SSAT then affirmed a decision by an authorised review officer of Centrelink to reject his claim for farm household support and a farm household re-establishment grant.
The application was heard in Melbourne on 24 September 2002. Mr Gugliotti appeared without representation. Mr Perdon appeared on behalf of the respondent.
The application may be briefly summarised as follows.
In 1998, the applicant commenced a tomato growing partnership on property leased at Colbinabbin in northern Victoria. Tomatoes were thereafter grown in partnership until the end of the 1998/1999 growing season. In approximately June 2000, the applicant's partner indicated an intention to sever the partnership and thereafter Mr Gugliotti explored the possibility of continuing as a tomato grower alone. He sought finance from various institutions and from agents in Brisbane, Sydney and Melbourne. Eventually he was resiled to being unable to obtain finance and notified the owner of the property that he would not be able to grow in the 2000/2001 year. In October 2000, the owner of the property leased it to another person.
In May 2001, the applicant lodged a claim for farm help and in September 2001 he lodged a claim for a re-establishment grant.
The respondent denied both applications upon the basis that at the time of each application the applicant was not a "farmer" as defined within the Farm Household Support Act 1992 ('the Act'). The SSAT made a similar finding.
The LegislationThe Act at s.3(2), defines a "farmer" as:
"farmer means a person who:
(a)has a right or interest in the land used for the purposes of a farm enterprise; and
(b)contributes a significant part of his or her labour and capital to the farm enterprise; and
(c)derives a significant part of his or her income from the farm enterprise."
Section 7 contains the qualifications for farm household support. It reads-
"Subject to this Division, a person is qualified for farm household support in respect of a period if, throughout the period:
(a) the person:(i) is a farmer; and
(ii) is at least 16; and
(iii) is an Australian resident; and
(iv) is in Australia; and
(b) a certificate of inability to obtain finance issued in respect of the person has effect."
Section 8B relevantly provides qualification for restart income support. (Section 3.(2) defines 'restart scheme payments' as including payments of re-establishment grants). It reads as follows-
"Subject to this Division, a person is qualified for restart income support in respect of a period if:
(a) …
(b) throughout the period, the person:(i) is a farmer; and
(ii) …
(iii) …
(iv) …
(c)the person has been a farmer for a continuous period of at least 2 years immediately before the period; and
(d)a certificate of inability to obtain finance issued in respect of the person has effect throughout the period."
Conclusion and Reasons for Decision
At all relevant times the applicant was not a "farmer" as defined. The language of the definition of "farmer" is in the present tense indicating that at the time of the claim, the person must be a "farmer". The use of the word "has", "contributes" and "derives" suggests that at the time of claim, the applicant, who must be a "farmer", has a right or interest in land, contributes a significant part of his or her capital to the farm enterprise and derives a significant part of income from the farm enterprise. By reason of the conjunctive construction of the definition, all parts must be satisfied. At the time of the applicant's claims in May and September 2001 Mr Gugliotti was not a "farmer". He had not been a "farmer" since the last harvest in 2000, being the culmination of the 1999/2000 season.
Because Mr Gugliotti was not a "farmer" at the time of the claim, he was not eligible for household support. Although he eventually obtained a certificate of inability to obtain finance (a requirement for a farm household re-establishment grant) he was not then (a 'farmer').
Qualification under s.s.7 & 8B is subject to being a 'farmer' throughout "the period". These words are not defined, however, by reference to what is intended by the Act, 'the period' is the period of time commencing at the date of claim and being the period of time that payments are made. Additionally, to qualify under s.8B, a person must have been 'a farmer' for at least 2 years immediately before the period.
The applicant in a most thoughtful and articulate submission drew my attention to his relationship with an agent of Centrelink, apparently authorised to advise and process applications by persons claiming farm household support.
Mr Gugliotti said that until October or November 2000 he was a "farmer" (because he was still in possession of the property at Colbinabbin and was attempting to obtain finance to continue tomato growing alone). At that time he said that he learnt that his former partner had applied for and qualified for the farm household support grant. He said that his partner had obtained a grant of $50,000 with the assistance of an agent engaged by Centrelink to assist farmers seeking these grants. Mr Gugliotti said that when he applied to the agent for advice and assistance in making the application for the grant, he was provided with forms, the agent interviewed him at his home and he was told that there would "no problem". Thereafter he said the agent "stalled" and the applicant alleged that he had been a victim of "circumstance".
Mr Gugliotti submitted that when he became frustrated by the delays apparently being caused by the agent, he "started to wonder if something was wrong" and later he said he "worked it out - Centrelink gave out a grant to my partner without knowing the full facts of the partnership". He said that the agent "got scared" and attempted to discourage him from continuing to make the application because the agent was seeking to "protect his reputation" and protect the grant paid to his partner.
Mr Gugliotti acknowledged that he was unable to "prove" the above allegations, but queried how it was that his partner was able to qualify for a grant when he - Mr Gugliotti - was unable to qualify. He submitted that the only logical explanation was that by reason of the delay caused by the agent of the late application of forms to Centrelink - in May and September 2001 - he was then unable to demonstrate that he was a "farmer".
Mr Gugliotti acknowledged that he was not a "farmer"' at the time of his claim. His appearance was intended to draw attention to the injustice, which he said, occurred and which denied him a benefit under the Act.
In all of the circumstances, and for the reasons given above I am obliged to find that the decision under review should be affirmed. I would, nonetheless, ask that inquiry be made of the agent engaged by Centrelink and the allegations made by Mr Gugliotti investigated. If it can be established that there was delay by the agent which caused the claim to be lodged at a time when Mr Gugliotti was unable to demonstrate that he was 'a farmer' - as opposed to being able to demonstrate on the probabilities that he was a farmer in October or November 2000 - that consideration be given to rectifying any injustice.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, (Senior Member)
Signed: Katherine Navarro....................................
AssociateDate/s of Hearing 24 September 2002
Date of Decision 10 October 2002
Counsel for the Applicant Self represented
Solicitor for the Applicant Nil
Counsel for the Respondent Mr D Perdon, Departmental advocate
Solicitor for the Respondent Centrelink
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