Harris and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2574

Harris and Secretary, Department of Social Services (Social services second review) [2018] AATA 2574 (1 August 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5998

Re:Carol Harris

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:R Cameron Senior Member

Date:1 August 2018

Place:Melbourne

The Tribunal affirms the decision under review.

..........................[sgd]..............................................

R CAMERON SENIOR MEMBER

Catchwords

SOCIAL SECURITY – reduction of payment – Newstart allowance – superannuation payment – whether superannuation payment ordinary income – spousal superannuation pension – scope of reviewable decision – whether an Act has retrospective effect

Legislation

Governance of Australian Government Superannuation Schemes Act 2011 (Cth)
Social Security Act 1947 (Cth)
Social Security Act 1991 (Cth)
Superannuation Act 1976 (Cth)
Superannuation Act 1922 (Cth)

Superannuation Industry (Supervision) Act 1993 (Cth)

Cases

Read v Commonwealth (1988) 167 CLR 57
Re Guy v Secretary, Department of Social Services [2013] AATA 943

Re Secretary, Department of Social Security and Morris [1996] AATA 638

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

1 August 2018

INTRODUCTION

1. The Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) on 7 October 2016 affirmed a decision, previously made by an Authorised Review Officer of the Respondent, to reduce the Applicant’s Newstart allowance from $513.35 to $369.34 per fortnight (“the reviewable decision”).

   THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL

2. The following evidence and other materials were before the Tribunal:

   (a)Witness statement dated 6 February 2018 and attached documents of the Applicant;

   (b)The section 37 documents filed by the Respondent (“T documents”);

   (c)The Applicant’s submission prepared by counsel for the Applicant dated 24 April 2018;

   (d)The Secretary’s Statement of Issues, Facts and Contentions received by the Tribunal on 5 March 2018;

   (e)The Secretary’s Further Submissions dated 7 May 2018, together with further attached “S” Documents; and

   (f)The Applicant’s Response in Reply to the Respondent’s Further Submissions dated 20 May 2018.

3. Mr Gibson of counsel appeared for the Applicant and made oral submissions. Mr Nacion from Sparke Helmore appeared for the Respondent and also made extensive oral submissions.

   RELEVANT FACTS AND BACKGROUND

4. The Applicant commenced cohabiting with one Pieter Paulusz (“Paulusz”) in December 1988. They lived together continuously until 17 May 2009 when he passed away. Paulusz was a beneficiary of a superannuation fund known as “Comsuper”. It appears that the name “Comsuper” is the brand label used by the Commonwealth Superannuation Corporation (“CSC”) in its capacity as Trustee of the Commonwealth Superannuation Scheme (“CSS”).

5. Paulusz was employed by the Australian Taxation Office for approximately 23 years prior to his retirement. The evidence before the Tribunal reveals that Paulusz became an eligible member of the CSS in 1964. (Details for his previous employment as a member of the CSS have not been provided to the Tribunal and are probably irrelevant to the current application.)

6. Following the death of Paulusz, on 1 June 2009 the Applicant made a claim to Comsuper for a spousal pension[1] pursuant to the governing rules of the CSS which are established by the Superannuation Act 1976 (Cth) (“the 1976 Act”).

   [1] The application was specifically for a spousal benefit on behalf of herself and her two children.

7. The application for a spousal pension was rejected initially by a delegate of the Trustee on 13 July 2009 and subsequently by the “Reconsideration Advisory Committee” of the CSS. Finally, it was rejected by the full board of the Trustee of the CSS on 8 August 2012 in a lengthy statement of reasons which formed an attachment to the Applicant’s witness statement which was in evidence before the Tribunal.

8. Following the rejection of the Applicant’s claim for a spousal pension by the full board of the CSS the Applicant applied to the Superannuation Complaints Tribunal which by a decision made on 20 May 2013, set aside the previous decisions and substituted its own decision that the Applicant was entitled to a spousal pension benefit under the CSS.[2]

   [2] There is significant material before the Tribunal concerning the process undertaken by the Applicant seeking review of the original decision of the CSS. This includes the Statement of Reasons of the board of the CSC as trustee for the CSS and the decision of the Superannuation Complaints Tribunal of 20 May 2013.

9. Following the determination of the Superannuation Complaints Tribunal on 20 May 2013, the CSS wrote to the Applicant advising her that she was eligible to receive a pension of $9,934.08 gross per year. Such pension would be paid fortnightly at the rate of $382.08 per week. The pension would be payable for life subject to twice yearly adjustments in line with upward movements in the Consumer Price Index.[3]

   [3] The letter from the CSS is part of document T 7 of the T documents.

10. Subsequent to the determination of the Superannuation Complaints Tribunal, Centrelink adjusted the Applicant’s Newstart allowance from the figure of $513.35 per fortnight to $369.34 per fortnight. It did so apparently relying upon section 1068 of the Social Security Act 1991 (Cth) (“the Act.”) The reason for the adjustment was to take into account the Applicant’s fortnightly superannuation receipt of $398 from the CSS. In layman’s terms this was done applying what is known as an income test.

11. The decision to reduce the Applicant’s Newstart allowance to $369.34 per fortnight triggered an exchange of correspondence by or on behalf of the Applicant and the Respondent. It also prompted the Respondent to cross-check with CSS to determine precisely what pension benefit the Applicant was receiving. This information was contained in a letter dated 24 December 2015 from CSS to the Respondent.[4] The Respondent further advised the Applicant on 11 January 2016 of what her adjusted Newstart allowance was and in doing so identified the fact that she was in receipt of pension benefits from CSS.[5]

    [4] This letter is contained in document T 8 of the T documents.

    [5] The letter of 11 January 2016 is document T 9 of the T documents.

12. The Applicant by letter of 22 December 2015 then sought to have an Authorised Review Officer reconsider the matter. On 1 April 2016 an Authorised Review Officer affirmed the initial decision to reduce the Newstart allowance paid to the Applicant which has been referred to earlier in these reasons.

13. A further application for review was made by the Applicant to the AAT1 which on 7 October 2016 affirmed the Authorised Review Officer’s calculation of the Applicant’s Newstart allowance which included her fortnightly pension from CSS. As noted earlier in these reasons it is from this decision that the matter comes before the Tribunal.

    THE ISSUES BEFORE THE TRIBUNAL

14. It is appropriate to record in these reasons the issues for consideration by the Tribunal as identified by each party to this application because the respective parties’ approach does differ somewhat. The Respondent has contended that the scope of the dispute was enlarged by the content of the submissions filed by the Applicant at the hearing which raised additional issues for consideration by the Tribunal. The Tribunal accepted this contention and granted the Respondent leave to file and serve further submissions and documents. Those further submissions and documents were filed with the Tribunal on 7 May 2018.

15. The Applicant articulated three discrete issues for consideration as follows:

    (a)The correct test for the characterisation of CSS payments to the Applicant; (the Applicant contended that it was incorrect for the income paid to the Applicant by CSS to be treated as “income” by the income test provisions of the Act. She contended that such superannuation payments should be considered as exempt under the legislative scheme that predated the current Act.)

    (b)The Applicant’s rights to have a debt of $27,319.59 waived by the Respondent;[6] (The AAT1 did not consider whether or not the debt should be waived. The Applicant asserted that special circumstances existed in her favour which should be taken into account in deciding whether or not to waive such debt within the meaning of section 1237AAD of the Act.); and

    (c)There has not been a consideration of whether the calculation of the debt claimed by the Respondent (apparently $29,319.59) was correct.

    [6] The Respondent asserted that the Applicant had been overpaid Centrelink payments and that as at 25 May 2017 she owed a debt to Centrelink of $27,319.59. A letter from Centrelink to the Applicant in these terms is an annexure to her witness statement, identified by the words "Doc List 5”.

16. The Respondent contends that the issue to be decided is whether the Applicant’s Newstart allowance was calculated correctly as at the relevant date pursuant to section 1068 of the Act.[7]

    [7] This section provides for the rate of the appropriate allowance, including the Newstart allowance, to be calculated in accordance with the Rate Calculator included in that section.

17. Additionally, the Respondent contended that these two issues were not before the Tribunal in AAT1 when it made the reviewable decision. Therefore the Tribunal has no jurisdiction to entertain such disputes or perhaps more accurately, they are not issues for consideration by the Tribunal in this application.

    CONSIDERATION

    The correct test for the characterisation of the CSS payments to the Applicant

18. It is appropriate to observe at the commencement of this consideration several matters. At a general level an applicant for a benefit such as the Newstart allowance is subject to what is known as the “asset test” and the “income test”. For the purposes of the application of these tests there are two applicable sections of the Act. Section 8 of the Act as referred to above provides what are described as “Income test definitions”; whereas section 9 provides what is described as “Financial assets and income streams definitions”. These definitions are then applied as required to determine whether an applicant for a benefit arising under the Act has an entitlement to such benefit and if so, in calculating the rate of such benefit using the Rate Calculator contained at the end of section 1068 of the Act.

19. The Respondent accepts that the Applicant is a reversionary beneficiary of a defined benefit income stream. Therefore, payments received from CSS are exempt from the asset test under section 9(1F) of the Act (which provides the definition of a “defined benefit income stream”) and section 4.9.2.20 of the Guide to Social Security Law (“the Guide”). (This conclusion is based on the commencement date of the policy being 10 June 1987 which is prior to 20 September 1998 as prescribed in section 9(1F)(ba) of the Act.)[8]

    [8] This concession is made in Part 5 of the Respondent’s Statement of Issues, Facts and Contentions received by the Tribunal on 5 March 2018 in particular paragraph 5.5 on page 17 is referred to.

20. The Applicant filed a written submission which articulates her contentions in some detail. The contents of that submission are referred to in their entirety for their full force and effect. However, the contention of the Applicant is that the CSS is not a fund captured by the income test definitions in section 8 of the Act which contains the income test definitions to be applied in construing the relevant provisions of the Act. Therefore, any pension benefits paid by it to the Applicant cannot be subject to the income test.

21. The grounds relied upon by the Applicant in support of this contention are that by reason of the provisions of section 45 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the Supervision Act”), CSS is not “a complying superannuation fund for the purposes of section 8 of the Act”. The argument proceeds that because it is not a complying fund to which section 8 of the Act applies, any pension benefit paid by CSS to the Applicant is not subject to any income test definition under section 8 of the Act.[9]

    [9] Paragraphs 11 and 12 of the Applicant's submission of 24 April 2018 which contain this argument are referred to.

22. In further support of this contention the Applicant argued that the CSS was a superannuation fund created before the Act came into force. Therefore, the argument is that the provisions of the Act relied upon by the Respondent are having retrospective effect.[10] It was submitted that the CSS is a superannuation fund in effect governed by the provisions of the Superannuation Act 1922 (Cth) (“the 1922 Act”). The passage of the 1976 Act did not affect the CSS because it was not a “compliant” superannuation fund within the meaning of that statute such that the 1922 Act continued to apply to it.

    [10] Paragraph 15 of the Applicant's submission dated 24 April 2018 is referred to.

23. Further developing this contention, it was submitted that a superannuation fund established under the 1922 Act was not the same as a superannuation fund created under the 1976 Act.

24. Therefore, it was submitted that on its true and proper construction, a spousal pension as granted to the Applicant from the CSS as a result of the decision of the Superannuation Complaints Tribunal on 20 May 2013, was not capable of falling within any income test definition in section 8 of the Act.

25. It was further contended that on a proper construction of the legislation including the 1922 Act, there was an exclusion of payments made from a superannuation fund established under that Act as income within the definition of a “defined income stream” in section 9 of the Act. By reason of this construction of section 9, payments made by the CSS to the Applicant cannot be deemed to be an income stream under that section of the Act.

26. In response to this contention of the Applicant, the Respondent asserted, as confirmed by the AAT1, that the payments received by the Applicant by way of a spousal pension, were considered income within the definition prescribed by section 8 of the Act.[11] By the same reason, the applicable income test applied to such payments required the Respondent to adjust the Applicant’s Newstart allowance in accordance with the Rate Calculator contained in section 1068 of the Act. (Expressed in the alternative, the Respondent submits that the payments received from the CSS by the Applicant do not fall within the definition of any income exemption or “excluded amounts” identified in section 8(8) of the Act.)

    [11] Also within the definition under section 1072 of the Act which provides the “General meaning of ordinary income”.

27. Section 45 of the Supervision Act provides the definition of a “Complying superannuation fund” for the purposes of that statute alone. The language that the draughtsman of that section has used does not, as is contended for by the Applicant, define what a complying superannuation fund is for the purposes of section 8 of the Act. The words which are actually used in that section do not make it reasonably open to such a construction, as contended for by the Applicant. It does not use words that are reasonably open to being construed in such a way that payments made by the CSS to the Applicant by way of a spousal pension are not subject to any income test applicable under section 8 of the Act.

28. Therefore, the Applicant’s approach to the construction of section 45 of the Supervision Act is rejected. It has no application when construing section 8 of the Act. Had the legislature intended otherwise, it would have incorporated words to that effect in section 45 of the Supervision Act (and if necessary corresponding words in section 8 of the Act) that would leave absolutely no doubt as to the construction and application of section 8 such that the payment of any spousal benefit by the CSS was excluded from the income test.

29. The contention of the Applicant that a superannuation fund established under the 1922 Act is different to a fund under the 1976 Act cannot be accepted by the Tribunal because in any event the 1976 Act, captures the operation of the 1922 Act by reference to the term “superseded Act” in section 3 “Interpretation” of that Act. Further, section 3 contains a definition of the “Fund” as the “CSS Fund established by this Act” and “From 1 July 2011, the CSS Fund is vested in CSC.” It is indeed the CSS Fund from which the spousal benefit received by the Applicant is paid.

30. Section 169 provides “existing Fund” means the Superannuation Fund established by the superseded Act.[12] The existing fund, including its assets and liabilities, was transferred to the CSS Fund by operation of PART XII - TRANSITIONAL PROVISIONS - Division 2 -EXISTING SUPERANNUATION FUND; sections 170 to 179. Additionally, under these transitional provisions there was an allocation of the existing fund between pensioners and contributors. These provisions are referred to in their entirety for their full force and effect. However, by reason of the transfer under the 1976 Act of the existing fund to the CSS Fund and the allocation of such fund between pensioners and contributors, of whom the Applicant falls within such class or category, the fund from which the Applicant receives her spousal benefit is a fund subject to the 1976 Act.

    [12] As observed previously the 1922 Act.

31. Concerning the Applicant’s contention with respect to the provisions of section 8 of the Act, there is no such restriction (or perhaps more accurately requirement), for the superannuation fund to be a “Complying superannuation fund” for the purposes of construing or otherwise applying this section of the Act on the definition of a superannuation fund. Once again had Parliament intended it to be the case, appropriate language would have been used in its drafting to accommodate this intention.

32. It should be observed that under the Act the definition of “superannuation fund” is that contained in section 9(1). That definition is referred to in its entirety for its full force and effect. However, the definition includes that contained in paragraph (c) being “a scheme for the payment of benefits upon retirement or death that is constituted by or under a law of the Commonwealth or of a State or Territory”. The CSS is a scheme that provides for the payment of benefits upon retirement or death of existing and former Commonwealth employees and their eligible dependents, constituted under a law of the Parliament of the Commonwealth of Australia. (The definitions of CSS and CSC contained in section 3 of the 1976 Act are referred to. The CSS is a superannuation scheme established under the provisions of the 1976 Act. It also should be recorded that the CSC is a body corporate created under the provisions of section 5 of the Governance of Australian Government Superannuation Schemes Act 2011 (Cth).)

33. Whether or not the CSS was a superannuation fund created before the Act came into force is irrelevant to the application and construction of section 8 of the Act. To submit that because the Act applies to payments received by an applicant for a benefit under the Act from a superannuation fund created before the Act came into force gives the Act retrospective effect is misconceived.[13] A statute only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation. The effect of section 8 of the Act, bearing in mind it contains “Income test definitions”, on its true and proper construction is not to have any retrospective effect as contended. It merely identifies what receipts (described as “income” in that section), in the hands of an applicant for a benefit, will be treated as income for the purposes of applying an income test and calculating the amount of such benefit.[14]

    [13] It should be observed that the general rule of common law is that in the absence of some clear statement to the contrary, an act will be assumed not to have retrospective operation.

    [14] It should not be overlooked lest it needs to be repeated that the subject matter of the Applicant’s claim is the disbursement of public monies consequent upon the satisfaction of various criteria laid down in the Act for the payment of pensions, benefits and allowances, in this case the Newstart allowance.

1. It is at best for the Applicant an example of a distinction that can be drawn between legislation having prior effect on past events and legislation basing future action on past events. The principle is not concerned with the case where an enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future. Even if that was the case, the Tribunal does not consider that the facts and circumstances of the Applicant can be properly described as “antecedent” by reason of the fact that the CSS is a fund whose existence is recognised in the 1976 Act.

2. In any event, whether or not the CSS was created before the Act came into effect does not affect the operation of section 8 of the Act and the treatment by the Respondent of the spousal pension received by the Applicant for the purposes of applying the income test to determine the amount of her entitlement to Newstart allowance. The payments of the spousal pension to the Applicant must be taken into account in calculating the quantum of future payments of Newstart allowance.

3. The term “income” in relation to a person is defined in section 8(1) of the Act to mean:

   (a)    an income amount earned, derived or received by the person for the person’s own use or benefit; or

   (b)    a periodical payment by way of gift or allowance; or

   (c)    a periodical benefit by way of gift or allowance;

   but does not include an amount that is excluded under subsection (4), (5) or (8).

4. “Ordinary income” is defined in the Act as “income that is not maintenance income or an exempt lump-sum.”

5. Section 8(2) of the Act provides:

   A reference in this Act to an income amount earned, derived or received is a reference to:

   (a)  an income amount earned, derived or received by any means; and

   (b)  an income amount earned, derived or received from any source (whether within or outside Australia).

6. As noted earlier, section 8(8) “Excluded amounts - General” identifies a variety of payments which are not income for the purposes of the Act. A superannuation payment is excluded however only until such person reaches pension age or starts to receive a pension or annuity out of the relevant fund.

7. There are some general principles that emerge when considering the meaning of the term “income” as defined in the Act.

8. Firstly, the Act is remedial legislation in that it gives benefits to persons. Accordingly, it calls for no narrow or pedantic construction.

9. Secondly, however, the settled rules of construction apply to the Act. Ordinary words used in the Act should receive their ordinary and natural meaning unless, in accordance with accepted rules of statutory construction there is a good reason to prefer some other constructions.

10. Thirdly, the concept of “income” under the Act is broad. Several authorities were referred to by the Respondent in its various submissions on the concept of income. One that warrants mention in these reasons is the decision of Brennan J in Read v Commonwealth.[15] Although a decision under the Social Security Act 1947 (Cth), the definition is not materially different.[16] His Honour observed:

    The definition is exhaustive: the term “income” means what it is defined to mean; it does not mean what “income” would be understood to mean if the definition were not in the Act. The definition is couched in the widest terms, presumably to ensure that public expenditure is directed to those who stand in actual need of periodic support which income related pensions provide. The definition is wide enough to embrace receipts of a capital nature as well as receipts of income, for “income” is defined to mean, inter-alia, any monies, valuable consideration or profits irrespective of the means by which or the source from which those monies, etc are received.

    [15] (1988) 167 CLR 57 at 69.

    [16]This contention was also made by the Respondent in paragraph 5.9 of the "Secretary’s Further Submissions" filed on 7 May 2018. Pargraph 5.1 of such submissions also reproduced the definition of "income" contained in section 106 of the 1947 Act. That definition in the 1947 Act is referred to for its true and proper construction. The Tribunal accepts this contention on behalf of the Respondent, relying on the reasoning of Brennan J in Read, and of course upon a true and proper construction of the relevant sections.

11. Fourthly, the concept of “income” under the Act is not to be equated with “income” under the relevant income tax legislation. It is an act which provides for income maintenance.

12. There have been several authorities referred to by the Respondent in which the Administrative Appeals Tribunal has determined that a payment received by the applicant for a benefit under the Act from the CSS are to be taken into account in applying the income test to determine what benefit is payable. Payments received from CSS are income for the purposes of the Act. The Tribunal accepts that these authorities provide an accurate application of section 8 of the Act to payments received from CSS when determining the entitlement of a person to a benefit under the Act. The Tribunal refers to Re Secretary, Department of Social Security and Morris[17] and Re Guy v Secretary, Department of Social Services[18] by way of example. These authorities establish that payments made by CSS to a beneficiary under that scheme who then applies for a benefit under the Act are treated as income for the purposes of applying the income test to determine what benefit if any such applicant is entitled to receive. There is no category of payment from CSS that is excluded from the definition of income received by the Applicant for the purposes of calculating what her Newstart allowance entitlement will be and applying the income test in the course of doing so.

    [17] [1996] AATA 638.

    [18] [2013] AATA 943.

13. In conclusion concerning this question, the Tribunal finds that the Respondent was correct in treating the CSS payments received by the Applicant as income for the purposes of calculating the amount that she was entitled to for the Newstart allowance.

    The issue of waiver under section 1237AAD of the Act: Is it a dispute before the Tribunal on this review?

14. The Respondent contends that the decision under review in this matter is the decision of the AAT1 of 7 October 2016 that affirmed the decision of the Authorised Review Officer of 1 April 2016 to reduce the Applicant’s Newstart allowance from 17 November 2015.

15. The Tribunal agrees with this contention on the part of the Respondent. This conclusion is apparent on the face of the “Reasons for Decision” of the AAT1.[19] Member Treble in paragraph 1 of those reasons states that the issue was whether Centrelink correctly reduces the Applicant’s Newstart allowance payments from 17 November 2015 by taking into account her pension from CSS. She concluded in the last paragraph of her reasons that the “full amount” of the spousal pension payment from CSS must be taken into account for the purposes of assessing the Applicant’s rate of Newstart allowance.

    [19] The Reasons for Decision are document T 2 of the T documents.

16. Nowhere in the reasons is there any reference to an application for a debt waiver under section 1237AAD of the Act - Waiver in special circumstances. It was not considered by the Tribunal at the AAT1 hearing. Further, there is no evidence before this Tribunal to indicate that at the AAT1 hearing any argument or contention was advanced by the Applicant seeking a “Waiver in special circumstances” under section 1237AAD of the Act.

17. Further, the Respondent submitted to the Tribunal at the hearing and in the further submissions filed, that the Department made a decision on 5 July 2016[20] which raised and recovered an overpayment of Newstart allowance from the Applicant for the period 12 May 2009 to 15 January 2016.

    [20] Document T 12 of the T documents.

18. The Respondent contended that this decision was separate to and discrete from the decision about the amount of any Newstart allowance entitlement which the Applicant had. (Including the question as to whether the CSS payments were income for the purposes of section 8 of the Act in applying the income test.) Therefore, the submission was that because this was a separate and discrete decision it had its own distinct right of review.

19. The Respondent contended therefore, that the decision of 5 July 2016 being separate and distinct was a decision for which the Applicant should have sought review within the relevant time frame applicable as and from 5 July 2016.

20. The Tribunal accepts the Respondent’s contention that the issue before the Tribunal is solely confined to the question of whether the Applicant’s Newstart allowance was calculated correctly at the relevant date pursuant to section 1068 of the Act. It does so for the reason that the AAT1 decision and the reasons given by the Member were confined to this issue and this issue alone. There is no reference in the AAT1’s Reasons for Decision to the Applicant making any application for or arguing in favour of, a waiver in special circumstances under section 1237AAD of the Act.

21. This conclusion is also reinforced by the fact that there is no material before this Tribunal or the AAT1 that demonstrates that the Applicant even argued that the Applicant was entitled to a “Waiver in special circumstances” under section 1237AAD of the Act. Surely, if such an argument had been advanced by the Applicant at the AAT1 hearing there would have been reference to it in the Reasons for Decision of Member Treble.[21]

    [21] There is a brief reference in the Applicant's submissions of 24 April 2018 at paragraph 42 to the fact that "financial hardship was detailed in her submissions to Newstart and the AAT first hearing" and also briefly in her witness statement at paragraph 30. However, there has been no admissible evidence on this issue before the Tribunal at this hearing.

22. Accordingly, the Tribunal finds that the issue of debt waiver does not form part of the reviewable decision.

    Whether the calculation of the debt claimed by the Respondent was correct

23. The submission by the Applicant with respect to this contention is fairly limited. At paragraph 47 of her submission of 24 April 2018, the Applicant contended she does not know how the debt claimed was calculated. Then, the bulk of the remainder of her submission reverts to the question of whether or not the debt so raised by the Respondent should be waived under the applicable sections of the Act. It then proceeds to articulate various facts which amount to special circumstances in support of a waiver under section 1237AAD of the Act. At best it appears to be an attempt to put the Respondent to its proof of the quantum of the debt claimed.

24. The Respondent refers to a volume of documentary evidence that is before the Tribunal which provides details of the calculation of the sum claimed against the Applicant. Amongst these documents are what is known as a “MultiCal – Centrelink Debt Calculator” and attached “Entitlement Calculations – Carol Harris.”[22] They provide a detailed breakdown of how the sum claimed by the Respondent is made up or calculated.

    [22] These documents are document S 4 of the Supplementary T documents.

25. Whilst the Tribunal has not undertaken a mathematical calculation of the arithmetic contained in these documents, upon reading them there seems no reason to doubt their accuracy. Furthermore, the Applicant and her advisers have had access to these documents for some time and could have, had they deemed it appropriate, carefully cross-checked these calculations. If any discrepancies or inaccuracies were apparent, the Applicant could have brought them to the attention of the Tribunal. They have not done so.

26. In these circumstances, the Tribunal for the reasons articulated in the previous paragraph accepts the calculations before it.

27. Furthermore, there is nothing in the Reasons for Decision of the AAT1 that tackles the calculations of the debt. From an examination of those Reasons for Decision, given that there is simply no reference to the quantum of such debt, it appears to the Tribunal that the amount was simply accepted by the Applicant for all purposes. Certainly, in terms of the issue before the AAT1 and its conclusions there is simply no reference to calculation of the debt. It did not form part of the reviewable decision.

28. Therefore, as with the issue of waiver in special circumstances, this is not a dispute or an issue properly before this Tribunal as it does not form part of the reviewable decision.

    CONCLUSION

29. For the reasons articulated above, the conclusion of the Tribunal is that the decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of R CAMERON SENIOR MEMBER

.............................[sgd]...........................................

Associate

Dated: 1 August 2018

Date(s) of hearing:	24 April 2018
Date final submissions received:	21 May 2018
Counsel for the Applicant:	Don Gibson
Advocate for the Applicant:	Walter Edwards
Solicitors for the Respondent:	Pietro Nacion - Sparke Helmore