Ibarcena and Department of Family and Community Services
[2000] AATA 1141
•9 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1141
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/348
GENERAL ADMINISTRATIVE DIVISION )
Re JEREMY PATRICK IBARCENA
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member)
Date9 November 2000
PlaceCanberra
Decision The decision under review is affirmed.
[Sgd A F Cunningham]
Part-Time Member
CATCHWORDS
Social Security – Newstart allowance – request for information and documentation – failure to provide – whether justified.
Social Security Administration Act 1999 – ss.80, 192
Privacy Act 1988 – principle 3.
REASONS FOR DECISION
20 December 2000 Ms A F Cunningham (Part-time Member)
This is a statement of reasons for decision pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 9 November 2000.
The applicant has sought the review of a decision made by a delegate of the respondent Department, which was affirmed by an authorised review officer on 24 July 2000 and by the Social Security Appeals Tribunal on 6 September 2000.
The applicant appeared in person at the hearing and gave oral evidence. The respondent was represented by Ms Hampton.
The T documents were submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, and the respondent also submitted a statement of facts and contentions. Additional documents were presented to the Tribunal by the applicant and were admitted into evidence by consent.
The issue for the Tribunal to decide is whether the respondent's decision to suspend the applicant's payments of Newstart allowance from 9 June 2000 was justified and in accordance with the relevant legislation. The Tribunal was informed that the applicant wife's parenting payments which had also been suspended as a result of the cancellation of the Newstart payments had been reinstated with a payment of the arrears owing. The decision to suspend payment was therefore no longer an issue for this Tribunal.
The following facts, stated in the respondent's statement of facts and contentions detailing the history of the appeal, were agreed by the parties and the Tribunal accordingly finds:
(a)That the applicant was in receipt of Newstart allowance during 1997 and 1998. During the 1997/1998 financial year the applicant told Centrelink that he had earned $1,800.
(b)On 19 October 1999 Centrelink wrote to the applicant advising him that the data match disclosed income of $9,938 (T3 page 84 to 86). The letter asked the applicant to contact Centrelink if he thought that the information from the Australian Tax Office was incorrect and to provide copies of pay slips, group certificates, profit and loss statements, balance sheets, bank books, bank statements and tax returns to allow Centrelink to ensure that the records were accurate.
(c)On 26 October 1999 the applicant wrote to Centrelink. He declined to provide any further information about his income on the basis that Centrelink's request for same was an intrusion into his privacy (T1 page 50 to 51).
(d)On 19 May 2000 Centrelink sent the applicant a letter advising him that an overpayment of Newstart allowance had been raised for the period 28 June 1997 to 30 June 1998 on the basis of the information obtained from the Australian Taxation Office. The income was averaged over the year for the calculation of an overpayment of $4,647.42. The applicant was advised that "If you provide your employer details the debt can be recalculated. It may reduce the amount considerably". He was invited to contact the delegate to discuss the debt (T7 page 93).
(e)On 15 May 2000 a Centrelink officer contacted the applicant by telephone and requested that he provide a copy of his full 1997/1998 tax return (T1 page 49). Later that day or some time on 26 May 2000 the applicant took a copy of his 1997/1998 tax assessment notice and Centrelink group certificate to the Braddon customer service centre. The applicant resent a copy of his letter of 26 October 1999 to Centrelink on 25 May 2000 (T1 page 15).
(f)On 26 May 2000 Centrelink wrote to the applicant (T1 page 47). The letter notes that the applicant took a copy of his 1997/1998 tax assessment notice and his Centrelink group certificate to the Braddon customer service centre. However, they were not the documents requested by the Centrelink officer. The letter states that it is a notice given under section 196 of the Social Security Administration Act 1999 and asks the applicant to provide a copy of his 1997/1998 tax return and group certificates.
(g)On 26 May 2000 Centrelink wrote to ACC Technologies Pty Limited requesting information about the applicant's employment with that company (T9 pages 97 to 100). The response from the company was received by Centrelink on 5 June 2000. The response indicated that the applicant had been employed with ACC Technologies Pty Limited only for the period 14 January 1998 to 9 March 1998.
(h)On 21 June 2000 Centrelink wrote to the applicant advising him that his overpayment of $4,647.42 had been recalculated on the basis of the information provided by his employer. As a result of that recalculation his Newstart allowance overpayment was reduced to $671.61. The letter also advised the applicant that his Newstart allowance was cancelled from 9 June 2000 as requested information had not been provided. The applicant was advised that his payments would be restored when these documents were provided.
(i)The applicant and Mrs. Gibbons provided a copy of a statement dated 29 June 2000 to Centrelink. In that statement the applicant and Mrs. Gibbons contest the existence of the overpayment (T12 pages 104 to 105).
(j)The applicant lodged an appeal against the decision to cancel his Newstart allowance with the social Security Appeals Tribunal on 5 July 2000 (18 page 200). That appeal was accompanied by a statutory declaration (T18 pages 201 to 205).
(k)On 18 July 2000 the original decision maker reconsidered the decision to cancel the applicant's Newstart allowance. The delegate decided not to change the decision on the basis that the applicant was required to provide information and he failed to do so (T15 page 193).
(l)The applicant and Mrs. Gibbons wrote to the registrar of the Social Security Appeals Tribunal on 20 July 2000 expressing their dissatisfaction with the duration of the appeal process and outlining their current financial circumstances.
(m)On 24 July 2000 an authorised review officer reconsidered the decision to cancel the applicant's Newstart allowance. The authorised review officer affirmed the decision (T17 page 197 to 199).
(n)The applicant appealed the decision of the authorised review officer to the Social Security Appeals Tribunal on 27 July 2000 (T1 page 19). The Social Security Appeals Tribunal heard the matter on 24 August 2000 and affirmed the decision (T2 pages 72 to 78).
(o)On 14 September 2000 the applicant appealed the decision of the Social Security Appeals Tribunal to the Administrative Appeals Tribunal.
It is the applicant's contention that the respondent's decision to cancel his Newstart allowance was not justified and was not done pursuant to any relevant legislation. The applicant argued that he had supplied all of the documentation that the respondent needed to calculate a rate of payment being his taxation assessment notice for the relevant year and his Social Security group certificate. He contended that the request for the other information sought, namely his 1997/1998 taxation return, offended the provisions of the Privacy Act 1988 and in particular principle 3, which states:
"Solicitation of personal information generally. Where a collector collects personal information for inclusion in a record or in a generally available publication and the information is solicited by the collector, the collector shall take such steps, if any, as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected, the information collected is relevant to that purpose and is up to date and complete and the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned."
The applicant claimed that the request for the additional information from the respondent "intruded to an unreasonable extent upon the personal affairs of the individual concerned". When questioned by the Tribunal as to what he meant, the applicant claimed that he would have to reveal names and addresses of people for whom he had performed work.
The request at T1, page 47 was, however, for a copy of the applicant's 1997/1998 taxation return and group certificates for the same period which, on the face of the documents, would not reveal such particulars. The Tribunal does not find that the respondent department's request for the documents listed would offend the principles of the Privacy Act in the manner claimed by the applicant.
The applicant contended that the respondent's request should have been more specific in requiring answers to particular questions regarding his income. He claimed that in any event the respondent department had all the necessary information in order to make a calculation as to the relevant rate of payment in the form of his taxation assessment. He also referred to copies of his taxation returns in the T documents at T14. They were, however, obtained by the respondent following its decision to suspend the Newstart allowance and the applicant's failure to deliver the copy returns.
The applicant further argued that the Department was obliged to accept the assessment of his income as calculated by the Australian Taxation Office and that the provisions of section 1075 of the Social Security Act 1991 confirm this. The respondent submitted in response that its method of calculating business income and allowable deductions is not the same as that carried out by the Australian Taxation Office.
The question remains, was the request for the information sought legitimate and if so, did the applicant's failure to respond justify the respondent's decision to cancel his Newstart allowance.
The legislative basis for the actions of the respondent department are found in the Social Security Administration Act 1999 which commenced on 20 March 2000. Section 192 of that Act provides:
"The Secretary may require a person to give information or produce a document that is in the person's custody or under the person's control to the Department if the Secretary considers that the information or document may be relevant to one or more of the following."
The Tribunal was referred to subsection (d) which states:
"the rate of Social Security payment that is or was applicable to a person".
The Secretary must consider that the information or documentation may be relevant to determining the rate of payment. The Tribunal has no difficulty in accepting that a copy of the applicant's taxation return and group certificate for the relevant period could reasonably be considered to be relevant in determining the appropriate rate of payment of the pension. As Katz J in the decision Sheil v Secretary, Department of Social Security (1999) FCA 1237, when referring to section 1304 of the Social Security Act 1991 which preceded section 192 of the Social Security Administration Act and was in identical terms:
"The Parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits".
The provisions of section 196 of the Social Security Administration Act set out the particular form in which the information must be requested and provided. They are quite specific, and so should they be, as the failure to comply with the request carries with it the risk of a penalty being imposed.
The applicant did not contend at the hearing that the provisions of section 196 had not been complied with. The information in the T documents, namely, the letter of the applicant at T1 page 47 demonstrates to the satisfaction of the Tribunal that there was compliance with the legislative requirements of section 196.
The respondent's decision to cancel the applicant's Newstart allowance was made in accordance with the provisions of section 80 of the Social Security Administration Act which states:
"If the Secretary is satisfied that a social security payment is being or has been paid to a person who is not or was not qualified for the payment or to whom the payment is not or was not payable, the Secretary is to determine that the payment is to be cancelled or suspended".
The respondent contended that on the basis of the information it had at the time from the Taxation Department received from the data matching program carried out in accordance with the Data Matching Program Assistance Act 1990, it had reason to believe that the applicant derived income from a business. Accordingly he could not be said to be unemployed as required by the eligibility provisions for a Newstart allowance as contained in section 593(1) of the Social Security Act 1991.
On the face of the information available to the respondent Department the Tribunal finds that the respondent was justified in its conclusions. The applicant was in receipt of income other than his pension entitlements. The respondent had also received information from ACC Technologies Pty Limited that the applicant had been employed by them on a casual basis from 14 January 1998 until 9 March 1998 together with details of the income earned during that period.
It is noted that the provisions of section 63(5) of the Social Security Administration Act provide that failure to comply with a reasonable request for information may effectively result in cancellation of the Newstart Allowance.
Once of the functions of the respondent Department is to ensure the appropriate allocation of public monies, that is to those most in need and who meet the legislative provisions for qualification. In order to perform this function the Department needs relevant information upon which to make a decision for eligibility and then determine a rate of pension. This necessarily requires that a Department have access to details of income. The Tribunal accepts that access to the applicant's taxation return would be a most relevant source of information. The Tribunal does not accept that a request for a copy of such documentation is intrusive or unreasonable, nor would it be likely to disclose irrelevant personal information.
The provisions of section 1075 of the Social Security Act 1991 suggest that the calculation of business income under the provisions of the Social Security Act 1991 are not necessarily the same as those under the Income Tax Assessment Act. Under the former Act only losses and outgoings that relate to the business are allowable deductions. Further, the applicant must be "carrying on a business" which is determined in accordance with the circumstances of the individual applicant. The Tribunal refers to the 1998 decision of the Federal Court of Drummond J in Ecus v Secretary, Department of Social Security in relation to this issue.
The Tribunal does not accept the applicant's contention that the respondent did not have authority to require the provision of further information in the form requested and that he had complied with the Department's request. Provision of the relevant taxation return together with profit and loss statements and balance sheets were likely to have assisted the respondent in its determination.
The Tribunal therefore concludes that the applicant's failure and refusal to provide the information sought by the respondent was unjustified and offended the relevant legislative provision, namely section 63(5) and that the respondent's decision to cancel the applicant's Newstart allowance was done in accordance with the relevant legislative provisions.
The decision under review is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 9 November 2000
Date of Decision 9 November 2000
Counsel for the Applicant
Solicitor for the Applicant
Counsel for the Respondent
Solicitor for the Respondent
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