JASON PITTORINO and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 685

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5855

GENERAL ADMINISTRATIVE DIVISION		)
Re		JASON PITTORINO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date9 September 2009

PlacePerth

Decision

The Tribunal varies the decision under review by determining as follows:

· the applicant is subject to a seasonal work preclusion period, in accordance with s 16A of the Social Security Act 1991 (Cth) (“the Act”, from 30 June 2008 to 28 September 2008; and

· in respect of the applicant’s claim for newstart allowance made on 30 June 2008, newstart allowance is, pursuant to s 633(2) of the Act, not payable to the applicant for the abovementioned seasonal work preclusion period, but is payable to him with effect from 29 September 2008.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – newstart allowance – applicant engaged in fishing work – applicant subsequently claimed newstart allowance – applicant engaged in seasonal work – applicant subject to a seasonal work preclusion period – Tribunal not satisfied that applicant in severe financial hardship – newstart allowance not payable to applicant for seasonal work preclusion period – Tribunal’s calculation of seasonal work preclusion period differs from that in decision under review – decision under review varied

Social Security Act 1991 (Cth), s 14A, s 16A, s 19C and s 633

REASONS FOR DECISION

9 September 2009 Deputy President S D Hotop

Introduction

1.      Jason Pittorino (“the applicant”) contacted Centrelink on 30 June 2008 in relation to a claim for newstart allowance under the Social Security Act 1991 (Cth) (“the Act”). On 7 July 2008 he lodged with Centrelink various completed forms in respect of that claim. He was, however, subsequently informed by Centrelink that newstart allowance would not be paid to him for the period up to 21 September 2008 but would be payable to him with effect from 22 September 2008. He was also informed that newstart allowance was not payable to him before 22 September 2008 because a “seasonal work preclusion period” was applicable to him because of the “higher than average earnings” he had received from seasonal work.

2.      An Authorised Review Officer (“ARO”) within Centrelink affirmed that decision on 6 August 2008, and the ARO’s decision was subsequently affirmed by the Social Security Appeals Tribunal (“SSAT”) on 11 November 2008.

3.      On 9 December 2008 the applicant applied to this Tribunal for review of the ARO’s decision as affirmed by the SSAT.

The Evidence

4.      The evidence before the Tribunal comprised:

· the “T” Documents” (T1 – T18, pp 1 – 105) lodged with the Tribunal by the Secretary, Department of Education, Employment and Workplace Relations (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     a letter from Centrelink to the applicant, dated 25 March 2009, tendered by the respondent (Exhibit R1);

·     a bundle of documents tendered by the applicant (Exhibit A1); and

·     the oral evidence of the applicant.

The Factual Background

5.      The background facts, which are not in dispute, are as follows.

6.      The applicant (according to his own evidence) worked as a fisher from 18 December 2007 to 28 June 2008 and he earned the sum of $45,000 (gross) from that work.

7.      The applicant was not receiving income support payments in respect of a continuous period of 12 months immediately before 18 December 2007.

8.      The applicant contacted Centrelink on 30 June 2008 in relation to a claim for newstart allowance (T18, p 105).

9.      In the documents which the applicant lodged with Centrelink on 7 July 2008 in connection with his claim for newstart allowance, he provided the following information (inter alia):

·     his marital status is “single” and he “live(s) alone”;

·     he is a “non-homeowner” and he pays $100 per week private rent for his accommodation;

·     he is not presently working and is not in receipt of any income;

·     his total assets comprise:

-household and personal effects ($1,500);

-motor vehicle ($1,500);

-credit bank account balance ($3).

10.     Following his lodgment of those documents on 7 July 2008, the applicant’s claim for newstart allowance was taken by Centrelink to have been made on 30 June 2008 (the date on which he contacted Centrelink in relation to the claim) (T17, p 92; T18, p 103).

11.     By letter dated 28 July 2008 an officer of Centrelink notified the applicant that he had been granted newstart allowance at the rate of $437.10 (plus rent assistance of $78.45) per fortnight, with effect from 22 September 2008.  The applicant was further informed as follows:

“ We cannot pay you before 22 September 2008 because:

-    A Seasonal Work Preclusion Period has been applied because of the higher than average earnings you have received from seasonal, contract or intermittent work.  Your Seasonal Work Preclusion Period will end on 21 September 2008.”

The Relevant Legislation

12. Section 633 of the Act relevantly provides:

“633(1)     This section applies if, at any time during the 6 months immediately before the day on which a person lodges a claim for newstart allowance, the person, or, if the person is a member of a couple, the person or the person’s partner, has been engaged in seasonal work.

Note:    For seasonal work see subsection 16A(1).

633(2)     Newstart allowance is not payable to the person:

(a)if the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act) and the Secretary has not made a determination under subsection (3) in relation to the person – for the person’s seasonal work preclusion period; or

(b)if the Secretary has made a determination under subsection (3) in relation to the person – for that part (if any) of the person’s seasonal work preclusion period to which the person is subject as a result of the determination.

Note:For seasonal work preclusion period see subsection 16A(1).

633(3)If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act):

(a)the Secretary may determine that the person is not subject to the whole, or any part, of the preclusion period; and

(b)the determination has effect accordingly.

Note 1:For in severe financial hardship see subsection 19C(2) (person who is not a member of a couple) and subsection 19C(3) (person who is a member of a couple).

Note 2:For unavoidable or reasonable expenditure see subsection 19C(4).

…”

Section 16A of the Act relevantly provides:

“ 16A(1)     In this Act, unless the contrary intention appears:

…

seasonal work means:

(a)work that, because of its nature or of factors peculiar to the industry in which it is performed, is available, at approximately the same time or times every year, for part or parts only of the year; or

(aa)work:

(i)that is intermittent; and

(ii)that is to be performed for a period of less than 12 months; and

(iii)that is to be performed for a specified period or a period that can reasonably be calculated by reference to the completion of a specified task; and

(iv)for which the person performing the work does not accrue leave entitlements; or

(b)work that is intermittent and is determined, under subsection (2), to be seasonal work for the purposes of this Act.

Examples:

Examples of work described in paragraph (a) are fishing, fruit picking, shearing and work in an industry that is subject to Christmas shutdowns.  Examples of work that is intermittent are relief teaching and work as a locum.

…

seasonal work preclusion period has the meaning given by subsections (3) and (4).

subject to a seasonal work preclusion period has the meaning given by subsection (11).

16A(1A)Paragraph (aa) of the definition of seasonal work in subsection (1) does not apply to a person undertaking seasonal work if the person was receiving income support payments (whether or not the kind of payment received has changed over the period and whether any part of it occurred before or after the commencement of this section) in respect of a continuous period exceeding 12 months immediately before the person commenced the seasonal work.

…

16A(3)      If:

(a)  a person is not a member of a couple; and

(b)the person has made a claim for newstart allowance, widow allowance, mature age allowance under Part 2.12B, youth allowance, special benefit, parenting payment, disability support pension, sickness allowance, carer payment or austudy payment; and

(c)the person was engaged in seasonal work at any time during the 6 months immediately before the day on which the person lodged the claim;

the person’s seasonal work preclusion period in relation to the claim is the period consisting of the number of weeks worked out under subsection (5) that starts on the day on which the claim was lodged.

…

16A(11)If a person’s seasonal work preclusion period in relation to a claim consists of a number of weeks that is greater than nil, then, except as otherwise provided under this Act, the person is subject to that period for the purposes of this Act.”

Section 19C of the Act relevantly provides:

“ …

19C(2)A person who is not a member of a couple and who makes a claim for parenting payment, austudy payment, special benefit, disability support pension, carer payment or one of the following allowances:

(a)newstart allowance;

…;

is in severe financial hardship if the value of the person’s liquid assets (within the meaning of subsection 14A(1)) is less than the fortnightly amount at the maximum payment rate of the payment, benefit, pension or allowance that would be payable to the person:

(f)   if the person’s claim were granted; and

…

19C(4)Unavoidable or reasonable expenditure, in relation to a person who … is subject to a seasonal work preclusion period … includes, but is not limited to, the following expenditure:

(a)the reasonable costs of living that the person is taken, under subsection (6) or (7), to have incurred in respect of:

…

(ii)  if the person is subject to a seasonal work preclusion period – that part of the period that has expired; or

…;

(b)the costs of repairs to, or replacement of, essential whitegoods situated in the person’s home;

(c)school expenses;

(d)funeral expenses;

(e)essential expenses arising on the birth of the person’s child or the adoption of a child by the person;

(f)expenditure to buy replacement essential household goods because of loss of those goods through theft or natural disaster when the cost of replacement is not the subject of an insurance policy;

(g)the costs of essential repairs to the person’s car or home;

(h)premiums in respect of vehicle or home insurance;

(i)expenses in respect of vehicle registration;

(j)essential medical expenses;

(k)any other costs that the Secretary determines are unavoidable or reasonable expenditure in the circumstances in relation to a person.

However, unavoidable or reasonable expenditure does not include any reasonable costs of living other than those referred to in paragraph (a).

19C(5)The reasonable costs of living of a person include, but are not limited to, the following costs:

(a)food costs;

(b)rent or mortgage payments;

(c)regular medical expenses;

(d)rates, water and sewerage payments;

(e)gas, electricity and telephone bills;

(f)costs of petrol for the person’s vehicle;

(g)public transport costs;

(h)any other cost that the Secretary determines is a reasonable cost of living in relation to a person.

19C(6)For the purposes of paragraph (4)(a), the amount of reasonable costs of living that a person who is not a member of a couple is taken to have incurred, may not exceed:

…

(b)in the case of a person who is subject to a seasonal work preclusion period – the amount of allowance that would have been payable to the person during that part of the person’s preclusion period that has already expired, if the person were not subject to the period; or

…”

By s 14A(1) of the Act the phrase “liquid assets”, in relation to a person, is defined to mean:

“the person’s cash and readily realisable assets”

and to include:

“(a)  the person’s shares and debentures in a public company within the meaning of the Corporations Act 2001; and

(b)amounts deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately_; and

(c)amounts due, and able to be paid, to the person by, or on behalf of, a former employer of the person;”

but not to include certain specified items (none of which is relevant in the applicant’s case).

Analysis

The applicant was engaged in “seasonal work”

13. There is no dispute that the fishing work in which the applicant was engaged from 18 December 2007 to 28 June 2008 is “seasonal work” (as defined in s 16A(1) of the Act) for the purposes of s 633 of the Act.

14. There is also no dispute that the applicant was engaged in that seasonal work during the 6 months immediately before he made his claim for newstart allowance on 30 June 2008 and that, accordingly, s 633 of the Act applies to him.

The “seasonal work preclusion period” in this case

15. Section 16A(5) of the Act sets out the “method statement” for working out the number of weeks in the seasonal work preclusion period to which the applicant is subject for the purpose of the Act.

16. Having regard to the circumstances of the applicant’s case, the Tribunal is satisfied that, in accordance with the method statement in s 16A(5) of the Act, the seasonal work preclusion period, to which the applicant is subject for the purposes of the Act, consists of 13 weeks, commencing on 30 June 2008 (the day on which his claim for newstart allowance was made – see s 16A(3) of the Act) and ending on 28 September 2008.

17. The abovementioned seasonal work preclusion period of 13 weeks was worked out, in accordance with the method statement in s 16A(5) of the Act, as follows:

·     “amount of seasonal work earnings”: $45,000;

·     “AWOTE weeks”: $45,000 divided by $1,103.60 = 40.78 weeks;

·     “self-supported weeks” (18 December 2007 – 28 June 2008) = 27.71 weeks;

·     “seasonal work preclusion period” (40.78 AWOTE weeks minus 27.71 self-supported weeks) = 13.07 weeks, rounded down to 13 weeks.

Is the Tribunal satisfied that the applicant is “in severe financial hardship” by reason of his having “incurred unavoidable or reasonable expenditure” while subject to the abovementioned seasonal work preclusion period?

18.     The applicant tendered in evidence the following documents:

·     Westpac Banking Corporation statements in respect of “Westpac One Main Account” in the name of the applicant stating that that account was closed on 7 October 2008;

·     Westpac Banking Corporation statements in respect of “Westpac Reward Saver” account in the name of the applicant stating that, for the whole of the period from 6 October 2008 to 12 June 2009, the balance of that account was a debit balance of $150.46;

·     letter from Charter Mercantile Agency to the applicant, dated 9 December 2008 in which an offer was made, on behalf of Westpac Banking Corporation, to the applicant to settle the amount of $150.46 owing by him on the abovementioned Westpac Reward Saver account by the payment of $90.00 within 14 days;

·     documents regarding various fines imposed on the applicant in the period 1995 – 2008, including a Notice of Intention to Execute Warrants, dated 13 May 2009, in respect of an amount due of $868.20;

·     letter from Lion Finance Pty Ltd to the applicant, dated 29 May 2009, seeking settlement by him of a Westpac credit card debt in the amount of $2,291.28;

·     “Integrated client account – running balance account (RBA) statement” issued by the Australian Taxation Office to the applicant on 30 May 2009 stating that an amount of $6,688.30 was immediately payable in respect of transactions during the period from 1 July 2008 to 30 May 2009;

·     handwritten statement of the applicant listing the following expenses:

-“petrol                   –   $5,000”;

-“rent  –    $5,000”;

-“living expenses – $15,000”.  (Exhibit A1)

19.     The Tribunal notes the following reference to the evidence which the applicant gave to the SSAT (as stated in the SSAT’s Reasons for Decision):

“ 30.     Mr Pittorino conceded to the Tribunal that he had more bank accounts than those he has advised Centrelink of and undertook to provide evidence to the Tribunal of his bank account balances and the unavoidable of (sic) reasonable expenditure he incurred between December 2007 and September 2008.

31.     Mr Pittorino failed to provide any evidence to the Tribunal regarding his bank account balances or his expenditure for the period December 2007 to September 2008.” (T2, p 9)

20.     The Tribunal also notes the following letter from Centrelink to the applicant, dated 25 March 2009, in relation to the present proceedings:

“ …

Please provide Centrelink with the following, so that we can evaluate whether all, or part of, the seasonal work preclusion period or any other waiting period applies to your newstart allowance.

All bank account statements covering the period 15 December 2007 to 17 October 2008 (even if they have since been closed);

Evidence of any other liquid assets, for example, details of shares held, term deposits, debentures in public companies, money owed to you but not yet paid by your employer, family or friends;

Evidence of all outstanding accounts, liabilities or demands you were required to pay during the period 30 June 2008 to 17 October 2008, indicating the total amount you were required to repay, the repayment period and the amounts you repaid during this period, for example, costs of essential repairs to your car or home or essential medical expenses;

Evidence of any other unavoidable or reasonable expenditure you had in the period 30 June 2008 to 17 October 2008 which will assist us in assessing your financial hardship at that time.

…”  (Exhibit R1)

21.     The Tribunal notes, furthermore, that the applicant was directed by the Tribunal, on 11 June 2009, to file and serve all his evidence by 19 June 2009, and the material which he filed and served in response to that direction is that referred to in paragraph 18 above.

22.     In his oral evidence the applicant maintained that he had provided Centrelink with all of his bank account statements in response to the abovementioned letter of 25 March 2009.  When it was put to him that those statements did not show his income from fishing, the applicant said that his fishing income went into his father’s bank account and his father then gave him what he “needed to get by”.  The Tribunal notes that that evidence is inconsistent with evidence given by the applicant to the SSAT which is referred to in the SSAT’s Reasons for Decision as follows:

“ 22.     The Centrelink papers contained no record of when Mr Pittorino received the $45,000.  Mr Pittorino told the Tribunal that he received the $45,000 crew share income on a monthly basis during the fishing season and that there was no bonus or balloon payment at the end of the season.  He said that the fishing industry is in poor shape and has been for sometime.

23.   The Tribunal asked Mr Pittorino to provide evidence of the monthly payments being made to him and he initially directed the Tribunal to the account statements for his Westpac One Main account which he had provided to Centrelink.  He stated it was his only account  When the Tribunal advised him that the account showed no monthly deposits Mr Pittorino stated that the money must have gone into his other bank account and undertook to supply those accounts to the Tribunal.

24.   Mr Pittorino failed to provide evidence of any other bank accounts. …” (T2, p 8)

23.     The applicant also said that, before he earned the $45,000 from fishing, he was already $20,000 in debt, and that he presently has a credit card debt of $10,000.  Asked why he had not provided credit card statements to Centrelink, he said that he did not think that Centrelink needed to know all his business.  The applicant said, furthermore, that at the beginning of the preclusion period he was already in severe financial hardship and had to borrow from friends in order to survive.

24. The Tribunal has serious reservations regarding the credibility of the applicant’s evidence regarding his financial circumstances and it does not accept that the applicant has fully disclosed his financial circumstances. As regards the documentary evidence relating to various unpaid debts owing by the applicant (part of Exhibit A1) referred to in paragraph 18 above, the Tribunal observes that that documentation constitutes evidence merely of the non-payment of those debts by the applicant, not evidence of the inability of the applicant to pay those debts. Having regard to the whole of the evidence before it, the Tribunal is unable to be satisfied that the applicant is, or at any material time has been, “in severe financial hardship” (as defined in s 19C(2) of the Act) for the purposes of s 633(3) of the Act. That being the case, it is not necessary for the Tribunal to consider whether expenditure relevantly incurred by the applicant was “unavoidable or reasonable expenditure” (as defined in s 19C(4) of the Act) for the purposes of s 633(3) of the Act.

Conclusion

25.     The Tribunal concludes, therefore, that the applicant is subject to the whole of the seasonal work preclusion period, as determined in paragraphs 15 – 17 above.

26. Although the Tribunal’s conclusion that the applicant is subject to the whole of the applicable seasonal work preclusion period and that no part of that period is waived pursuant to s 633(3) of the Act accords with that of the ARO and the SSAT, the Tribunal’s calculation of the duration of that period differs from that of the ARO and the SSAT. The ARO and the SSAT based their calculation on the applicant’s relevant seasonal work period commencing on 15 December 2007 and ending on 27 June 2008 (the number of “self-supported weeks”, for the purposes of the method statement in s 16A(5) of the Act, therefore being 28), resulting in a seasonal work preclusion period of 12 weeks (in accordance with that method statement). The Tribunal, however, has based its calculation on the applicant’s oral evidence that the relevant seasonal work period commenced on 18 December 2007 and ended on 28 June 2008 (the number of “self-supported weeks”, for the purposes of the abovementioned method statement, therefore being 27.71), resulting in a seasonal work preclusion period of 13 weeks (in accordance with that method statement – see paragraph 17 above).

27. The Tribunal’s determination, therefore, is that the applicant is subject to a seasonal work preclusion period which commenced, in accordance with s 16A(3) of the Act, on 30 June 2008 and which, in accordance with s 16A(5) of the Act, is of 13 weeks’ duration ending on 28 September 2008. It follows that newstart allowance was payable to the applicant, in respect of his claim made on 30 June 2008, with effect from 29 September 2008, but not before that date.

Decision

28.     For the above reasons the Tribunal varies the decision under review by determining as follows:

· the applicant is subject to a seasonal work preclusion period, in accordance with s 16A of the Act, from 30 June 2008 to 28 September 2008; and

· in respect of the applicant’s claim for newstart allowance made on 30 June 2008, newstart allowance is, pursuant to s 633(2) of the Act, not payable to the applicant for the abovementioned seasonal work preclusion period, but is payable to him with effect from 29 September 2008.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  3 September 2009
Date of Decision  9 September 2009
Representative of the Applicant          Self-represented

Representative of the Respondent     Ms M Conlon
  Legal Services Officer
  Centrelink