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

[2023] AATA 1917

Hawkins and Secretary, Department of Social Services (Social services second review) [2023] AATA 1917 (3 July 2023)

Division:GENERAL DIVISION

File Number:2022/6674            

Re:Jade Hawkins  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:3 July 2023

Place:Brisbane

The decision of the Social Services and Child Support Division dated 15 June 2022 is set aside and in substitution the Tribunal decides that from 20 September 2021 the Applicant was entitled to be paid the JobSeeker Payment at a reduced rate, based on a net business income of $11,292.

......................[SGD]........................

Member D Mitchell   

CATCHWORDS

SOCIAL SECURITY – rate of JobSeeker Payment – where income from sole trader business taken into consideration – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

CaseS

Secretary, Department of Social Security v Garvey (1989) FCA 496

REASONS FOR DECISION

Member D Mitchell

3 July 2023

INTRODUCTION

1. Ms Jade Hawkins (the Applicant) is seeking review of a decision of the Social Services and Child Support Division (SSCSD) of the Tribunal dated 15 June 2022 which affirmed the Respondent’s decision to grant her claim for JobSeeker Payment (JSP) from 20  September 2021 at a reduced rate, based on a net business income of $11,323 per annum.[1]

   [1]     Exhibit 1, T Documents, T1, pages 1-3, Application for Review.

   BACKGROUND

2. On 26 November 2020 the Applicant was transferred to JSP.[2]

   [2]     Exhibit 1, T Documents, T17, page 180, Centrelink Mainframe Screen.

3. On 28 July 2021, the Applicant advised Centrelink that she had commenced self-employment ‘a month ago’ as a commercial bond cleaner.[3] Centrelink requested that the Applicant provide a completed MOD R form for Self Employment and all supporting documents as well as a Profit and Loss Statement for the period 1 June 2021 to
   

   [3]     Exhibit 1, T Documents, T18, page 214, Centrelink File Notes.

   [4]     Exhibit 1, T Documents, T19, page 251, Correspondence sent to the Applicant.

   31 July 2021 for Self Employment.[4]

4. On 2 August 2021 and 16 August 2021, the Applicant declared that she earned $200 and $100, respectively, from bond cleaning.[5]

   [5]     Exhibit 1, T Documents, T17, page 184, Centrelink Mainframe Screens.

5. On 25 August 2021, the Applicant advised Centrelink that she was not generating income. Centrelink advised the Applicant that she was still required to provide details of her self-employment.[6] Centrelink requested that the Applicant provide a completed MOD F form for Self Employment and all supporting documents as well as a Profit and Loss Statement for the period 1 June 2021 to 25 August 2021 for Self Employment.[7]

   [6]     Exhibit 1, T Documents, T18, page 217, Centrelink File Notes.

   [7]     Exhibit 1, T Documents, T19, page 257, Correspondence sent to the Applicant.

6. On 15 September 2021, the Applicant attended a Centrelink Service Centre for assistance in completing the Profit and Loss Statement.  Centrelink’s file note for that attendance states:[8]

   cus attended appointment in regards tp (sic) getting assistance with her profit and loss for her new cleaning business that she started at the beginning of june … ALL YEAR CLEANING.

   Profit and loss was explained to the customer. earnings from the last 3 months to which cus provided from her invoice book which was calculated as $6111.00 then cus was tro (sic) calculted (sic) her deductions. Upon assistance the customer was unable to provide correct details of deductions. 

   cus stated she had purchased vacuum cleaner for 400.00

   paid friends to help her with bond cleaning 

   bought a car which she was spending $100.00 a day, but stated she is working 2-3 hours a day. informed that 100.00 a day was not acceptable. 

   informed cust that it is her responsibility to calculate deductions, that it is not up to the clk staff to work it out for you. 

   cus started to get agitated towards cso, and told us she would get her accountant to do it.

   [8]     Exhibit 1, T Documents, T18, page 219. Centrelink File Notes.

7. On 27 September 2021, the Applicant’s JSP was cancelled as she had failed to re-engage with her employment services provider.[9]

   [9]     Exhibit 1, T Documents, T19, page 261, Correspondence sent to Applicant.

8. On 28 September 2021, the Applicant contacted Centrelink regarding a new claim for JSP.[10] Centrelink contacted the Applicant on 29 September 2021, regarding her claim. She advised that she was at work and would call back ‘after she finishes work in an hour or so’.[11]

   [10]    Exhibit 1, T Documents, T18, page 221, Centrelink File Notes.

   [11]    Exhibit 1, T Documents, T18, page 222, Centrelink File Notes.

9. On 30 September 2021, the Applicant lodged a new claim for JSP[12] in which she stated that she was previously self-employed with ‘All year cleaning’ and had ceased work on
   

   [12]    Exhibit 1, T Documents, T7, page 94, Claim for JobSeeker Payment.

   2 January 2021.

10. On 1 October 2021, the Applicant attended a Centrelink Service Centre[13] and lodged a Profit and Loss Statement for All Year Cleaning for the period 1 June 2021 to
    

    [13]    Exhibit 1, T Documents, T18, page 224, Centrelink File Notes.

    [14]    Exhibit 1, T Documents, T8, page 108, Business details (MOD F) form and Profit and Loss Statement.

    [15]    Exhibit 1, T Documents, T8, page 105, Business details (MOD F) form and Profit and Loss Statement.

    30 September 2021.[14] The Applicant reported that she had a gross business income for the period of $6,111 and expenses of $2,326. This resulted in net income for the period of $3,785. Centrelink calculated that figure equated to a net business income of $11,323 per annum. In an accompanying MOD F Business details form[15] the Applicant stated that she had commenced operating the business on 1 June 2021 and that the business was still operating with her working approximately 16 hours a week.

11. On 1 October 2021, the Applicant was granted JSP at a reduced rate, based on a net business income of $11,323 per annum.[16]

    [16]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, Attachment B, pages 18-19.

12. On 28 October 2021, the Applicant submitted an Income and Assets online update changing her business income to $0 from 10 September 2021.[17] Centrelink’s file note dated
    26 November 2021 details the Income and Assets online update submitted by the Applicant as follows:[18]

    ……

    Details of significant change – My business is not registered someone at the office picked up my paperwork off the ground and processed without my knowledge that for I’m getting under paid and housing want to put mt rent up as the form was not filed out rite (sic)

    [17]    Exhibit 1, T Documents, T18, page 228, Centrelink File Notes.

    [18]    Exhibit 1, T Documents, T18, pages 233-234, Centrelink File Notes.

13. On 12 November 2021, the Applicant contacted Centrelink regarding her JSP to request an urgent advance payment ‘because she forgot to report yesterday had a 3 hour cleaning shift – (operating own business)’.[19]

    [19]    Exhibit 1, T Documents, T18, page 231, Centrelink File Notes.

14. On 26 November 2021, the Applicant’s net business income was updated to $0 per annum from 10 September 2021.[20] This resulted in her receiving a back payment for the period
    20 September 2021 to 24 November 2021 and an increased rate of JSP from
    

    [20]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, Attachment C, page 20.

    [21]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, Attachment D, pages 21-22.

    9 December 2021.[21]

15. On 29 November 2021, the Applicant lodged an Income and Assets form stating that she was self-employed, working 12 hours per fortnight and earning $800 per fortnight.[22]

    [22]    Exhibit 1, T Documents, T11, page 132, Income and Assets form.

16. That same day, the Applicant attended her employment services provider and requested assistance with fuel to get to and from work.[23]

    [23]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, Attachment E, pages 26-27.

17. On 2 December 2021, the Applicant requested internal review of the decision dated
    1 October 2021 to pay her JSP at a reduced rate. The Centrelink file note states:[24]

    Cus wanted to appeal the reduction in payments,

    Cus business income from all year cleaning was coded 01.06.21 with annual income of $11323, cus states that she did not provide this income and it has been put up on her record using fraudulent means (mod F provided 01.10.21) further income details provided and updated 29.11.21

    Customer states that she wants to be backdated from the beginning of the reduction to the payments

    [24]    Exhibit 1, T Documents, T18, page 238, Centrelink File Notes.

18. On 11 January 2022, an Authorised Review Officer (ARO) contacted the Applicant and entered the following notes:[25]

    [The Applicant] confirmed All Year Cleaning is her business which she started 7 months ago but she said the only work she has done is the 2 amounts she reported (see EANS Bond Cleaning in August 2021). 

    I questioned [the Applicant] that if this was the case why was a profit and loss statement provided that showed she had net business income of $3,785 for the period 1 June 2021 to 30 September 2021. [The Applicant] advised that she did not provide this profit and loss statement and she has since tried to recall it. She said it was left behind at the office and it was uploaded to her record. [The Applicant] said she had written down a few numbers but when her rate of JobSeeker Payment went down and housing were increasing her rent, she provided new details. I advised [the Applicant] that it has her signature on this profit and loss statement, confirming the details are correct, and must be accepted.

    I asked [the Applicant] if she was still working in this business and she said not since before Christmas.

    …

    I advised [the Applicant] that she had provided information online on 28 October 2021 that she had $0 net business income from 10 September 2021 and this was accepted without an actual new profit and loss statement and this update had given her a back payment of $416.01 for the period 20 September 2021 to 10 November 2021. I also advised [the Applicant] that we had received information from her employment services provider that she had gone to see them on 29 November 2021 requesting reimbursement of her business expenses and that she has not been complying with her Job Plan because of her cleaning work.

    [The Applicant] said she is not lying. I asked her about her truth and she said she started the business in June 2021 and that she had only asked Help Employment twice about claiming cleaning products and they just gave her a $50 fuel card to get to work. [The Applicant] was unable to recall when this was.

    [The Applicant] said she has only worked the 2 times that she declared (EANS) and that she was due to go back to work today but that the job was cancelled. I again asked her why she would have signed a profit and loss statement then to show considerably more income. [The Applicant] then said she averages 2 bond cleans a week for about $500.

    [25]    Exhibit 1, T Documents, T14, page 171, Decision and Notes of ARO.

19. On 12 January 2022, the ARO decided that the Applicant’s net business income from
    10 September 2021 was $11,323 per annum (not $0 per annum as she advised on
    

    [26]    Exhibit 1, T Documents, T14, pages 165-174, Decision and Notes of ARO.

    28 October 2021 and was applied on 26 November 2021).[26]

20. On 17 March 2022, the Applicant sought review of the decision by the SSCSD.[27]

    [27]    Exhibit 1, T Documents, T15, Application for Review to SSCSD.

21. On 15 June 2022, the SSCSD affirmed the ARO’s decision.[28] The SSCSD found that:[29]

    30. Based on the evidence before it, and having to determine what evidence it does and does not accept in order for it to make a decision, the Tribunal accepts the Business details and Profit and Loss Statement forms as being as accurate as possible a record of [the Applicant’s] business activity before it and therefore, the Tribunal accepts the extrapolation of it, as being the most accurate as possible estimation of [the Applicant’s] annual net income.

    [28]    Exhibit 1, T Documents, T2, pages 4-10, Decision of the SSCSD.

    [29]    Exhibit 2, Supplementary T Documents, ST2, page 8, Online extract of business information.

22. On 22 July 2022, the Applicant sought further review of that decision by way of application to this Tribunal.[30]

    [30]    Exhibit 1, T Documents, T1, pages 1-3, Application for Review.

23. As outlined by the Respondent, since the SSCSD decision the Applicant has provided the following additional evidence regarding her employment:[31]

    [31]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 5-6, paragraph 3.32.

    (a)On 6 August 2022, the Applicant lodged an online claim for Disability Support Pension (DSP) and stated that she engages in casual work for 2 hours per fortnight (ST5). She stated she was self-employed (ST6) and provided tax invoices (undated) for cleaning jobs in the amount of $90 and $120 (ST7).

    (b)On 6 August 2022, the Applicant lodged a Profit and Loss Statement for her cleaning business (ST8). She identified a net income of $1,300 for an unspecified period.

    (c)On 22 September 2022, the Applicant lodged an Income and Assets form (ST9). She identified that she was involved in a business, however she did not complete a MOD F Business details form as required.

    (d)       On 23 September 2022 (ST10, ST11), the Applicant stated:

    I never had a registered business.

    I [the Applicant] have worked approx. 25-30 jobs since I’ve started operating my own small business in 2019 because of the fact that I had operation on ankle with long term effect.

    (e)On 6 March 2023, the Applicant lodged an online claim for DSP and did not disclose any current employment (ST26).

    (f)On 10 March 2023, the Applicant provided an Employment Separation Certificate in respect of ABN 50 962 174 949 (ST27). She stated that she was a sole trader, started work on 12 July 2021 and ceased work on 19 July 2021 for medical reasons.

    (g)On 17 March 2023, the Applicant provided a Statutory Declaration, declaring that she had not been paid for nearly one year (ST30).

24. The Applicant did not declare any business income in her income tax return for the
    

    [32]    Exhibit 3, Supplementary T Documents, ST21, pages 151-162, Response from Australian Taxation Office.

    2021-2022 financial year in respect of her cleaning business that she operated under her own Australian Business Number.[32]

25. The Applicant’s JSP had been cancelled on 26 May 2022. Having reapplied she had been granted JSP from 28 February 2023 with her payment being calculated on a net business income of $0 per annum. [33] 

    [33]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, Attachment F, page 28.

26. During these proceedings further evidence was provided by Allianz,[34] ANZ bank,[35] the Australian Taxation Office,[36] HELP/Department of Employment and Workplace Relations[37] and Slate Super[38] as a result of notices issued by the Respondent to produce information.[39]

    [34]    Exhibit 3, Supplementary T Documents, ST24, pages 169-233, Response from Allianz Australia Insurance Limited.

    [35]    Exhibit 3, Supplementary T Documents, ST19, pages 16-139, Response from ANZ Bank.

    [36]    Exhibit 3, Supplementary T Documents, ST21, pages 151-162, Response from the Australian Taxation Office.

    [37]    Exhibit 3, Supplementary T Documents, ST25, pages 234-324, Response from Department of Employment and Workplace Relations.

    [38]    Exhibit 3, Supplementary T Documents, ST20, pages 140-150, Response from Slate Super.

    [39]    Exhibit 3, Supplementary T Documents, ST14-ST18 and ST23, pages 1-15 and 165-168, Section 196 notices to produce.

27. The Applicant also provided Statutory Declarations completed by herself and a friend in March 2023 with regards to the Applicant having borrowed money.[40]

    [40]    Exhibit 4, Supplementary T Documents, ST30-32, pages 29-31, Statutory Declaration.

28. In a statement provided to the Tribunal in April 2023, the Applicant outlined her experiences with Centrelink and made an accusation that a Centrelink officer had ‘filled the form out with false information and signed it in my name this is why Centrelink recon they stopped paying me …..’.[41]

    [41]    Exhibit 8, Submission provided to the Tribunal by he Applicant on 3 April 2023.

29. On 6 March 2023, the Applicant made an online claim for DSP.[42]

    [42]    Exhibit 4, Supplementary T Documents, ST26, pages 1-2, Disability Support Pension – Online Claim.

30. On 12 April 2023, the Applicant provided Centrelink with documents relevant to her circumstances.[43]

    [43]    Exhibit 4, Supplementary T Documents, ST33, pages 32-37, Documents submitted to Centrelink by the Applicant.

31. On 16 July 2023, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

    ISSUES

32. The issue before the Tribunal is what was the Applicant’s correct rate of JSP from

    
    

    20 September 2021.  This requires the Tribunal to consider what the Applicant’s net business income was at that date.

    THE LAW

33. The relevant law in assessing a person’s eligibility to and rate of payment of JSP is found in the Social Security Act 1991 (Cth) (the Act). Following is a summary of the key requirements which relate to the Applicant’s application.

34. Section 643 of the Act sets out that a person’s rate of JSP is to be worked out using the Benefit Rate Calculator B at the end of section 1068 of the Act (Rate Calculator).

35. Module A of the Rate Calculator outlines the overall rate calculation process and the remaining Modules provide for the calculation of each the amounts used in the overall rate calculation.

36. A person’s rate of JSP is affected by their income, the payment is means tested. 

37. Module G of the Rate Calculator sets out how to calculate the effect of a person’s ordinary income on their maximum payment rate.

38. Ordinary income is defined in section 8(1) of the Act as an income amount that is earned, derived or received by the person for the person’s own use or benefit that is not maintenance income or an exempt lump sum.

39. The ordinary income text is outlined in Part 3.10 of the Act with section 1072 of the Act relevantly providing that a reference in the Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income.  Section 1075 of the Act allows for certain reductions to business income.

40. According to the Respondent, to calculate the effect of business income on fortnightly payments, the annual rate should be divided into 26 equal instalments and then treated as ordinary income each fortnight. The Respondent relies on the information set out in the Guide at 4.7.1.20[44] for the assessment of business income for sole traders.[45]

    [44]    Exhibit 1, T Documents, T6, page 86, Extracts from Social Security Guide: 4.7.1.20 Assessment of income for sole traders & partnerships.

    [45]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 6-8, paragraphs 4.3-4.11.

    APPLICANT’S EVIDENCE AT THE HEARING

41. At the Hearing, the Applicant gave evidence under affirmation and was cautioned in relation to her right not to incriminate herself. 

42. The Applicant told the Tribunal that she has now been granted the DSP because she injured her ankle in 2019 and was unable to work more than 6 hours per week.

43. The Applicant told the Tribunal:

    ·That she had her tax book with her when she went to Centrelink with the first profit and loss form.

    ·She agreed she had an argument and left the Centrelink Service Centre.

    ·She started her own business because she could not find a job that would let her only do 6 hours per week so she paid $70 to a service seeking company who then got her work.

    ·She had done 25 jobs since she started using the service seeking company.

    ·What she was doing was ‘not really an actual business’.

    ·That it was the Centrelink officer that filled in the form and took quotes in her book into consideration.

    ·That the September 2021 form was not submitted by her, that it was fraudulently completed, signed and submitted.

    ·That she did fill another form out but that was after the fraudulent form had been put in.

    ·That around October 2021 she had a lot going on, her partner passed away, her father had a lung transplant and her home was broken into and she had to fall back on the content insurance payout.

    ·She was unable to say how much she earned during the period 1 June 2021 to
    31 August 2021.

    ·When asked if the income identified in her bank statements during the SSCSD hearing were correct, that yes it was but that they were one off jobs and her brother also used her bank account.

    ·When taken through the further bank statement for the relevant period identified further amount that related to her cleaning work.

    ·She was hired 33 times since 2021 and they were one off jobs, not jobs that continued.

    ·That after 30 September 2021 she did 1 or 2 jobs as she did not have the service seeking facility as she could not pay their ongoing fee.

1. On cross-examination, the Applicant:

   ·Said that she does not have a registered business.

   ·Said she doesn’t have a business.

   ·Agreed that she reported earnings in August 2021.

   ·Accepted what she had written on her JSP application on 20 September 2021.

   ·Said she did not have a recollection of providing the profit and loss forms lodged on 1 October 2021.

   ·Said that if the Centrelink records said that she did attend the office then she did and if it was her writing and signature on the form then she did.

   ·Refused to look at the documents provided to her to confirm whether the writing and signature on the form was hers.

   ·Said she does not like paper work and is illiterate.

   ·Said that if she did not put work in her 2021-2022 income tax return that is because she did not do any work.

   ·Said she did not do much work after June 2021 when her partner passed away.

   ·When asked in that case why did she declare earnings in August 2021, said because she did earn those amounts and she paid tax on the service finder company subscription she paid.

   ·Said she is illiterate and went into Centrelink for help and to sort everything out and if things were written wrong she is sorry.

   ·Said she is telling the truth, she does not care about the forms that were filled out, it is what she is saying that is true.

   ·Said her income for the period was probably nothing.

   ·When asked why she had taken out an Alliance business insurance policy that stated that her cleaning business had a turnover of $40,000 per year, said that everyone has insurance and she does not have a business.

   ·When asked about declaring that she was earning $800 gross per fortnight in November 2021 said she did not know.

   ·When asked how she differentiated with the deposits into her bank account between payments for the work she had done and other amounts, said to see her Stat Dec and her brother was also using her account.

   ·When put to her that there was a lot of inconsistencies in her evidence and the documentary evidence and as such, she was not a credible witness, said she wants something to happen to the Centrelink officer for fraudulently signing the profit and loss form, she does not care if she does not get any money, she is only pursuing this matter for fairness not money.

   ·Said she was doing jobs to survive, she had also sold her belongings as she needed to pay everyone she had borrowed from back.

2. At the closing of the Hearing the Applicant told the Tribunal that some of the amounts that went through her bank account during the period being discussed were a result of illegal activities for which she had been charged. 

3. The Applicant further submitted that she only insured herself for the highest amount because “I am too dumb to set up a business” and she tried to get help from Centrelink who, she says should have worked with her, there was no business she was a sole trader.

   RESPONDENT’S CONTENTIONS

4. The Respondent sought to rely on the Statement of Facts and Contentions dated

   
   

   19 April 2023.[46]

   [46]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions.

5. The Respondent set out how a person’s business income is calculated in circumstances where they have not provided a relevant income tax return.[47]

   [47]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 6-8, paragraphs 4.1-4.11.

6. The Tribunal notes that the Respondent set out a full analysis of the inconsistencies between what the Applicant had reported to Centrelink, what was recorded in Centrelink contact notes, material provided by Allianz, ANZ bank, HELP/Department of Employment and Workplace Relations, Slate Super and the Applicant’s contention that she did not earn any business income in the period between 1 June 2021 and 31 August 2021.[48]

   [48]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 9-13, paragraph 4.15.

7. Consequently, the Respondent contended that:[49]

   4.20 Further, in circumstances where there are significant inconsistencies in the Applicant’s evidence, the Secretary contends that very limited weight should be given to the Applicant’s version of events. For example, the Applicant has variously described her cleaning business as commencing operation in 2019 and June 2021, and the ABN has been active since 7 December 2020. Furthermore, the Applicant has variously stated that she works 16 hours per week, 12 hours per fortnight, 2 hours per fortnight, 20 or more hours per week and 2 bond cleans per week. 

   4.21Notwithstanding the higher amount of gross business income indicated by the Applicant’s bank statements, the Secretary contends that the Applicant’s net business income ought to be assessed as $11,323 per annum as at 20 September 2020, in accordance with the Profit and Loss Statement lodged on 1 October 2021.

   [49]    Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, page 13, paragraphs 4.20-4.21

8. At the Hearing, the Respondent submitted that the net business income before all previous decision makers had been incorrectly calculated in respect of the daily rate of income and as a result the Applicant’s correct business income that should be taken into account from 20 September 2021 is $11,292 (that is a reduction of $40).

9. The Respondent contended that the Applicant’s rate of JSP from 20 September 2021 should be based on $11,292 net business income per annum as:

   ·While the Applicant disputes that she operated a business between 1 June 2021 and 20 September 2021, the contrary is clearly shown in the material before the Tribunal.

   ·The Applicant did not declare business income in her income tax return so it had to be calculated using other available information.

   ·There is no corroborating evidence to support the Applicant’s contentions that she did not lodge the profit and loss statement on 1 October 2021 and that it was instead fraudulently lodged.

   ·The Applicant is not a creditable witness and as such no weight should be put on her contention that her business income was $0 up to 20 September 2021 in circumstances where she had reported income in August 2021.

10. On the basis of the recalculated annual net business income of $11,292, the Respondent contended that the Tribunal should set aside the decision of the SSCSD and substitute it with a decision that the Applicant’s correct rate of JSP from 20 September 2021 is to be calculated taking into consideration net business income of $11,292 per annum.

    CONSIDERATION

11. At the Hearing, the Applicant gave evidence under affirmation. The Tribunal considers that the Applicant was not a reliable witness as she was unable to openly explain what was occurring with her cleaning activities from 1 June 2021.  While the Applicant asserted that the truth of her situation was what she was telling the Tribunal, her oral evidence to the Tribunal was often contradictory and did not marry up with the documentary evidence before the Tribunal.

12. While the Tribunal accepts that the Applicant may have had other transactions not relating to her cleaning activities go through her bank account, her reporting to Centrelink does not support her contention that her business income up to 20 September 2021 was $0. In particular, the Centrelink notes of the appointment on 15 September 2021 report that the Applicant’s earnings for the previous three months were calculated to be $6,111 based on her invoice book.  The Applicant confirmed at the Hearing that, that book was referred to at the meeting.  This indicates that at the Applicant’s appointment with Centrelink on

    
    

    15 September 2021 she was reporting that she in fact had earned income from her cleaning activities from 1 June 2021.

13. Further, the evidence before the Tribunal as corroborated by the Applicant show that she reported income to Centrelink in August 2021.  The Centrelink records also disclose the Applicant notifying it at times that she was at work and was earning further income from her cleaning activities.

14. In considering the evidence before it in totality it is clear that the Applicant has had a difficult and perhaps complicated life, however, despite this, it has been her reporting that led to her rate of JSP from 20 September 2021 being calculated with reference to her business income.

15. There is no evidence before the Tribunal corroborating the Applicant’s contentions that the Profit and Loss Statement submitted on 1 October 2021 was submitted fraudulently.

16. What the correct income and deductions were for the Applicant’s cleaning activities in relation to the Profit and Loss Statement for the period 1 June 2021 to 30 September 2021 as submitted to Centrelink on 1 October 2021, is unclear.  The evidence before the Tribunal is not conducive to being able to make an accurate assessment.  Consequently, the Tribunal agrees with the findings of the SSCSD outlined above at paragraph 21 that the most accurate estimation reflecting the Applicant’s business income at the relevant time was $3,785 being the net income disclosed in that Profit and Loss Statement.

17. A person’s rate of JSP is affected by their income, the payment is means tested.  The Federal Court in Secretary, Department of Social Services v Garvey [1989] FCA 496 explained this at [19]:

    In defining "income" the Act was concerned with what amount was available to a pensioner to meet commitments and outgoings after the pensioner had drawn together the net returns of various sources of income. It was not concerned with what amount was left in the pensioner's hands after that income had been received and had been applied to various commitments and outgoings including the losses of business activities that had produced no net income. There would have been an expectation underlying the Act that any applicant for income assistance in the form of a pension would have corrected or relinquished any such activities which occasioned loss. The purpose of the relevant part of the Act was very clear, namely to maintain a basic level of income for those who were unable to receive sufficient income to provide for themselves. It was not the purpose of the Act to provide a further source of income for a person who had applied his or her income to maintain a business conducted at a loss or upon outgoings incurred in acquiring or maintaining assets. (See Read v Commonwealth of Australia [1988] HCA 26; (1988) 78 ALR 655 per Brennan J at p 662).

18. It was difficult to draw clear information from the Applicant in relation to her cleaning activities. She stated that she was not in business, did not have a business but was a sole trader, this is contrary to the evidence before the Tribunal.  The Applicant obtained an Australian Business Number (ABN), sought business insurance, advised on numerous Centrelink forms that she operated a cleaning business and as such the Tribunal does not accept that she was not offering her cleaning services through her sole trader business using her ABN.

19. The Tribunal has reviewed the calculation method for determining a person’s rate of JSP and the Respondent’s submissions in relation to how the Applicant’s rate of annual business income is calculated in the absence of a relevant income tax return.  Consequently, the Tribunal finds that the most correct decision in this matter is that the Applicant’s rate of JSP at 20 September 2021 be determined based on a net business income of $11,292.

    CONCLUSION

20. Based on the evidence before it, the Tribunal finds that the Applicant had generated income from her cleaning business during the period 1 June 2021 and 30 September 2021 and that income must be taken into consideration in calculating her rate of JSP from 20 September 2021.

21. The Tribunal accepts the Respondent’s submissions in relation to the initial calculation of the Applicant’s annual business income and as that error works in favour of the Applicant finds it is appropriate that her annual rate of net business income from
    20 September 2021 is recorded as being $11,292.

22. Consequently, the Tribunal sets aside the decision of the SSCSD dated 15 June 2022 and in substitution, decides that from 20 September 2021 the Applicant was entitled to be paid the JSP at a reduced rate, based on a net business income of $11,292.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

......................[SGD]........................

Associate

Dated: 3 July 2023

Date of Hearing:	16 June 2023
Applicant:	By Telephone
Solicitors for the Respondent:	Ms Gillian Gehrke Services Australia