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

Leigh and Secretary, Department of Social Services (Social services second review) [2020] AATA 866 (17 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2627
Re:Michael Leigh
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:17 April 2020
Place:Perth

T
he decision of the authorised review officer of the Department of Human Services made on 19 July 2019 which found that the Applicant had an age pension debt for the period

25 August 2015 to 15 October 2018 of $1,414.12, which was waived by the Respondent, is affirmed.
....................................[sgd]................................
Deputy President Boyle
CATCHWORDS
SOCIAL SECURITY – age pension – ordinary employment income – work bonus entitlement – commission – debt – administrative error – overpayment – good faith – debt waived – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 19D(2)(a)
Social Security Act 1991 (Cth) – ss 1073A, 1073AA, 1237A
Social Security (Administration) Act 1999 (Cth) – ss 182(2), 182(2)(b)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs(No. 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide, version 1.265 – Topic 4.3.3.20
REASONS FOR DECISION
Deputy President Boyle
17 April 2020
THE APPLICATION

The Applicant seeks the review of the decision of an authorised review officer of the Department of Human Services (the Department) made on 19 July 2019 which found that the Applicant had an age pension debt for the period 25 August 2015 to 15 October 2018 of $1,414.12. The debt was waived in full.
BACKGROUND
The Applicant was granted age pension from 16 April 2013.
From 12 January 2015 the Applicant reported his income from Glenway Realty using online services. The Department assessed the income from Glenway Realty as ordinary employment income.
On 17 October 2018 the Applicant attended a meeting at a Department service centre in which his income from Glenway Realty was discussed. The Applicant was advised that he had been reporting his commission income incorrectly. The Applicant's rate of pension was amended to account for the changes.
On 6 November 2018 the Department requested information regarding the Applicant's income or payments received in the previous 12 months.
On 8 November 2018 the Applicant lodged payroll information from Glenway Realty.
On 17 January 2019 the Department determined that the Applicant had been overpaid $1,647.82 of age pension during the period 24 February 2015 to 15 October 2018.
On 17 January 2019 the Applicant requested further review of the decision.
On 1 February 2019 an authorised review officer of the Department decided that:[1]
(a)The Applicant's correct rate of age pension from 17 October 2018 was $725.06 per fortnight.
(b)
The Applicant was not entitled to arrears of age pension on the dates that he did not receive a payment (15 June 2016, 8 February 2017, 22 March 2017,

15 November 2017, 24 January 2018 and16 May 2018).
(c)The Applicant was overpaid age pension in the amount of $1,647.82 for the period 24 February 2015 to 15 October 2018, but the debt was waived under section 1237A of the Social Security Act 1991 (Cth) (the Act)
[1] T15.
On 21 January 2019 the Applicant applied for review by the Administrative Appeals Tribunal (AAT 1).
On 6 May 2019, the AAT 1 set aside the decision under review and determined that:
(a)The Applicant's rate of age pension is to be recalculated from 16 October 2018 taking into account his work bonus entitlement.
(b)
The Applicant's age pension debt of $1,647.82, incurred during the period

14 February 2015 to 15 October 2018, is to be waived.
In [2] and [3] of their reasons for decision in AAT 1[2] the members described some of the process and background as follows:
(i)Application lodged 21 January 2019;
(ii)On 23 April 2019 the tribunal conducted a hearing;
(iii)Prior to the hearing the Department and the Applicant provided relevant documents;
(iv)On 23 April 2019 the tribunal deferred its decision to enable the Department to provide further information; and
(v)At the hearing the Applicant narrowed the scope of his review application and explained that his sole concern was whether his work bonus had been included in the calculation which resulted in his age pension being reduced from 30 October 2018.
[2] T2/5.
On 13 May 2019 the Applicant applied for further review by the General Division of the AAT (AAT 2).
The application for AAT 2 review identified the reason for the review as follows:[3]
The decision has only been made for payments from October 2018. My original submission clearly states the problem dates back to October 2017 no work bonus were included in the calculations for that period.
[3] T1/2.
On 19 July 2019, an authorised review officer of the Department reconsidered the Applicant's age pension debt. The authorised review officer determined that:[4]
The Applicant was overpaid age pension in the amount of $1,414.12 during the period 25 August 2015 to 15 October 2018. The debt is waived in full under section 1237A of the Social Security Act 1991.
[4] Annexure A to Respondent’s SIFC.
The hearing
The application was heard by Member Fitzgerald on 15 October 2019. The Applicant was self-represented and the Respondent was represented by Ms D Jones-Bolla.
Member Fitzgerald ceased to be a member of the AAT on 5 March 2020. At that time she had not made a determination of the proceedings. By direction made 18 March 2020 pursuant to s 19D(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the tribunal was reconstituted to comprise Senior Member Dr M Evans-Bonner.
The parties attended a directions hearing before Senior Member Dr M Evans-Bonner by telephone on 25 March 2020. By agreement of the parties it was directed on

25 March 2020 that the proceedings would be determined on the basis of the transcript of the 15 October 2019 hearing and on the papers filed with the Tribunal to date.
By further direction dated 31 March 2020 it was directed that the tribunal be constituted by Deputy President Boyle.
LEGISLATION
The legislation applicable to this matter is contained in the:
·the Act; and
·the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The relevant policy is contained in the Guide to Social Security Law (the Guide). Policies, such as the Guide, ought to be applied unless there are cogent reasons for departing from them (Re Drake and Minister for Immigration and Ethnic Affairs(No. 2)[5]). In the present case there are no cogent reasons why the policy contained in the Guide should not be applied.
[5] (1979) 2 ALD 634.
Jurisdiction of the AAT - General Division
Section 182(2) of the Administration Act provides:
(2)If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:
(a) the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and
(b) the application is taken to be an application for AAT second review of the decision as varied or substituted.
The AAT 2 is a second review for the purposes of s 182(2)(b) of the Administration Act. Therefore, pursuant to s 182(2) of the Administration Act, the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way that the authorised review officer did. The application for review by the Tribunal is the authorised review officer's decision of 19 July 2019.
Rate of age pension under the Act
A helpful summary of the scheme and effect of the relevant provisions of the Act is set out in the Respondent’s Statement of Issues, Facts and Contentions (SIFC) as follows:
18.Section 55 of the Act provides that the rate of age pension is calculated using Pension Rate Calculator A at the end of section 1064 of the Act. Pursuant to Pension Rate Calculator A, a number of factors will affect the rate of pension payable to a person. The calculator relevantly requires the Department to assess the person under an income test and an assets test and determine the applicant's rate of payment in accordance with the test that produces the lower rate.
19.The income test is set out in Module E of section 1064.
Income test
20.The income test in Module E of section 1064 requires the ordinary income of a person to be worked out on a yearly basis. Depending on the amount of ordinary income, an income reduction may apply, which reduces the maximum rate of age pension.
21.The terms "income", "income amount", "ordinary income" and "employment income" are defined in section 8 of the Act as follows:
"income", in relation to a person, means:
(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).
(notes omitted)
"income amount" means:
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not).
(notes omitted)
"ordinary income" means income that is not maintenance income or an exempt lump sum.
(notes omitted)
"employment income", in relation to a person, means ordinary income of the person that comprises employment income under subsection (1A) and includes ordinary income that is characterised as employment income of the person because of the operation of subsection (1B)
…
(1A) A reference in this Act to employment income, in relation to a person, is a reference to ordinary income of the person:
(a) that is earned, derived or received, or that is taken to have been earned, derived or received, by the person from remunerative work undertaken by the person as an employee in an employer/employee relationship; and
(b) that includes, but is not limited to:
(i)salary, wages, commissions and employment-related fringe benefits that are so earned, derived or received or taken to have been so earned, derived or received; and
(ii)if the person is engaged on a continuing basis in that employer/employee relationship--a leave payment to the person;
but does not include:
….
22.Section 1073A of the Act provides:
Employment income attribution over a period for social security pensioners
(1) Employment income:
(a) that is a lump sum amount either:
(i) in respect of a period greater than a fortnight; or
(ii) resulting from remunerative work although not in respect of any particular period; and
(b) that is earned, derived or received, or is taken to have been earned, derived or received, by a person:
(i) who is receiving a social security pension; and
(ii) whose rate of payment of that pension is worked out with regard to the income test module of a rate calculator in this Chapter,·
is to be taken to have been earned, derived or received over such period, not exceeding 52 weeks, as the Secretary determines.
(2) The person's employment income for the period determined by the Secretary is to be reduced to a fortnightly rate rounded to the nearest cent (rounding 0.5 cents downwards).
23.Topic 4.3.3.20 of the Guide provides advice about commissions received by employees. It states:
Income assessment for employees
The money (or other valuable consideration) earned, derived or received from remunerative work done by the person as an employee (1.1.E.87) in an employer/employee relationship is assessed as the person's income without any reductions. This income is called employment income (1.1.E.102) and includes, but is not limited to commissions, salary, wages employment related fringe benefits or a combination of these.
Commissions received by employees
These commissions are assessed (from the date they are entitled to be received) as remunerative lump sums and held as income for up to 52 weeks, even where the payments are small and/or regular. The period covered by the commission payment will be allocated to appropriate instalment periods and spread evenly throughout the instalment periods.
Commission-only real estate sales people
Commission only real estate sales people have been regarded as employees since the decision of the High Court in the 1973 case of Federal Commissioner of Taxation v Barrett. Real estate salespersons were considered EMPLOYEES because their duties (selling real estate) were considered an integral function of the business entity for which they worked.
The Tribunal accepts and adopts the Respondent’s summary of the operation of the applicable parts of the Act and the Guide.
CONSIDERATION
The Respondent’s case
The Respondent, having outlined the matters set out in [2] to [14] above, summarises her case in the Respondent’s SIFC as follows:
(a)
The payment of age pension during the period 25 August 2015 to 15 October 2018 was based on the Applicant's commission income being assessed in the fortnight it was earned. The Respondent contends that the Applicant's commission income from Glenway Realty should have been assessed as a remunerative lump sum pursuant section 1073A of the Act and Topic 4.3.3.20 of the Guide.

The Respondent notes that the Applicant does not dispute that his commission income should be assessed in accordance with section 1073A of the Act. The Tribunal in any event makes that finding.
(b)
The Respondent relies on the MultiCal - Centrelink Debt Calculator dated

19 July 2019 (“MultiCal”)[6] as being the correct calculation of the Applicant's entitlement during the period 25 August 2015 to 15 October 2018. The MultiCal was attached to the Department’s letter to the Applicant dated 19 July 2019 which explained the basis of the Department’s recalculation following the AAT 1 decision (see [10] above). The MultiCal shows that the Applicant was paid $63,128.38 but was only entitled to receive $61,714.26 of age pension during the period 25 August 2015 to 15 October 2018 and therefore he had been overpaid by $1,414.12.
[6] Annexure B of Respondent’s SIFC.
(c)The MultiCal includes the assessment of the Applicant's commission income under section 1073A of the Act. This can be seen in the summary of changes section of the MultiCal which show the inclusion of Glenway commission income. It can also be seen in the entitlement calculations pages under the heading “Earnings”, which show the apportionment of the Glenway income over the relevant fortnights.
(d)
The MultiCal includes the applicable work bonus under section 1073AA of the Act. The MultiCal does not contain an explicit entry to show that the work bonus of $250 (as it was at the time) was included. However, the fact that it has been taken into account can be seen in each fortnight in calculating the “Total Reduction”.

The Respondent then works through the example of the fortnight 20/03/2018 in which the Applicant's “Total income” was $635.36. In arriving at the

“Total Reduction” amount, the MultiCal has subtracted the “Income Free Area” of $168 and the work bonus of $250 and then applied the income test which provides a reduction of $0.50 for every $1.00 earned above the income free area.
$635.36 - $168.00 = $467.36
$467.36 - $250.00 = $217.36
$217.36 X $0.50 = $108.68
(e)The total reduction of $108.68 is subtracted from the Basic Max Rate of $826.20 to get $717.52. The “Fortnightly Rate” is the amount that the Applicant was entitled to receive in that fortnight. The MultiCal contains a debt report which calculates the difference between the entitlement and the amount the Applicant actually received. In the fortnight 20/03/2018 the Applicant was entitled to receive $933.72 but was paid $937.79 meaning he was overpaid $4.07 in that fortnight.
(f)The same calculation methodology including the deduction of the $250 work bonus, has been applied in each fortnight of the period 25 August 2015 to 15 October 2018, as set out in the MultiCal, which shows an overpayment of $1,414.12.
The Applicant’s case
The basis of the Applicant’s complaint in relation to the MultiCal is not clear. There appear to be two separate complaints raised. The first is set out in the Applicant’s email to the Respondent dated 12 June 2019. It refers to the AAT 1 decision and says that that decision wrongly directs the recalculation of the Applicant’s entitlement to be made from 16 October 2018 and not October 2017. The Applicant says that that was made clear at the AAT 1 hearing and is also made clear in the current application.
There is no need to comment on what was said at the AAT 1 hearing. For the reasons that follow that complaint is misconceived. As noted at [13] above, the application in these proceedings, that is the AAT 2, lodged by the Applicant on 13 May 2019, asserts that the AAT 1 decision ‘…has only been made for the payments from October 2018’. While the AAT 1 decision did refer to the recalculation of the Applicant’s rate of age pension being ‘recalculated from 16 October 2018, taking into account the work bonus’, the recalculation that was made on 19 July 2019 following that AAT 1 decision, calculated the Applicant’s entitlement from February 2015 through to October 2018 (see Annexure B).
The AAT 1 decision made the following statement:
14.The applicant’s sole concern was that Centrelink’s calculation had not taken into account his age pension work bonus when his rate of age pension was calculated for the period from 16 October 2018.
15.On 3 May 2019, Centrelink advised the tribunal a ‘system issue’ had been identified and a recalculation of the applicant’s age pension rate from 16 October 2018 was required so that his work bonus entitlement was included in the calculation.
This is a reference to a letter dated 2 May 2019 to the AAT[7] responding to a request from the AAT. That letter was as follows:
[7] T19/309.
Background: The Tribunal appreciates Mr Leigh’s age pension rate was recalculated after it was realised his income was being wrongly assessed and this resulted in an age pension rate reduction. The Tribunal’s concern is to be assured Mr Leigh’s work bonus was not overlooked in the recalculation of his age pension.
Would the authorised review officer:
a) Confirm Mr Leigh retained the benefit of work bonus in the recalculation;
b) Provide the Tribunal with the relevant evidence which shows how

Mr Leigh’s work bonus was incorporated into the age pension recalculation.
On the second page of that letter[8] the following information was provided (presumably by the authorised review officer who did the recalculation in February 2019: see [8] above) in response to the AAT 1 tribunal’s request:
Mr Leigh had not retained the benefit of the work bonus at the time of my review on 01 February 2019. A system issue was identified with Mr Leigh’s work bonus on 13 February 2019 and the matter referred to investigation. This matter was resolved on 02 May 2019 and the work bonus has been included in the calculation of Mr Leigh’s Age Pension. As at 30 October 2018, the amount of Age Pension payable to Mr Leigh was $850.05 per fortnight. Arrears of Age Pension totalling $1,750.00 for the period 16 October 2018 to 29 April 2019 (14 fortnights X $125) were paid to Mr Leigh on 02 May 2019.
The work bonus was not incorporated in the Age Pension recalculation at the time of my review on 01 February 2019.
[8] T19/310.
The Applicant’s complaint is further explained, or expanded, in the Applicant’s email dated 23 September 2019 in which the Applicant, referring to the Department’s recalculation of 19 July 2019, says:
The Work Bonus is neither a payment nor a deduction to be included in the MultiCal system. Work Bonus is Allowance [sic] made to recipients of the Age Pension to allow them to earn a small amount of money ($125 per week) without affecting their pension. The small amount accumulates when an income isn’t earned and offsets against larger income at a later date.
…
In May 2018 I received an income from my employer to the value of $4909 no work bonus was applied to these earnings although I had not received any income for at least 24 weeks. I have no way of knowing how much Work Bonus was available if any from my previous payment but 24 weeks minimum to receiving that sum equates to an accumulated amount of $3200.

This argument was repeated by the Applicant at the hearing. Referring to the reviewable decision, the 19 July 2019 recalculation (see [14] above), the Applicant said:[9]
MR LEIGH: Well, they’re claiming here in this here that the work allowance is already included in the calculations, right?
…
MR LEIGH: That cannot possibly be right. It’s not a payment, it’s an allowance. You earn money, and you’re allowed to earn 125 - $125 a week you’re allowed to earn before it affects your pension. That figure accumulates for every week that you don’t earn money. But the point of me earning $4909 in one pay, I had not earned any money for - I can’t remember off the top of my head - about 24 weeks I think it turned out to; 24, 28 weeks, something like that, which means there should’ve been a bonus accumulated up to $3200.
…
MR LEIGH: From the original bundle, my bundle, a page they failed to produce is from their site that says, “Work bonus nil.” Nothing’s been accumulated.
[9] Transcript at 6.
This argument was addressed by Ms Jones-Bolla at the hearing as follows:[10]
[10] Transcript at 11.
MS JONES-BOLLA: Member, the applicant then has noted in his email dated

23 September 2019 [see [31] above], which is marked as A3, that he’s owed back payment of approximately, I believe, $19,000 because his work bonus has not been included.

In respect of that work bonus, Member, the Secretary contends the work bonus has been applied, and even when applying for work bonus, as was done in the recalculation at annexure B, marked exhibit R3, the resulting calculation still results in an overpayment.
MR LEIGH:I dispute that because in here - in here you’ve got two columns; EC, WC, WB and IBB, all, every fortnight has got zero. WC is work bonuses and should be accruing every week $125 a week. They’re not accruing - - -
Ms Jones-Bolla then went on to explain:[11]
[11] Transcript at 12-14.
MS JONES-BOLLA: I have a copy of the guide at 3.1.1540, which outlines examples of calculations for the work bonus. I have a copy for the applicant and two copies for the - sorry, one copy for the tribunal. Member, the work bonus from 1 July 2011, essentially the first $250 from employment each fortnight is excluded from assessment under the income test.

Further, what the work bonus provisions allow, that any unused fortnightly exemption accrues in a bank up to a maximum of 6500, and this amount just rolls over. However, the applicant’s position is that he should’ve had a work balance of thousands of dollars because he had no earnings during a certain period. That is not how commission-based income works. It is not how work bonus works.
MR LEIGH: Well, it was determined I was entitled to the work allowance.
MS JONES-BOLLA: And there is no dispute in that. The work bonus the applicant is entitled to it, and it has been taken into account. There is no - the applicant had earnings each fortnight over $250 because of the way the commission-based income is allocated. For example, earnings in 2014, so a commission in 2014 will be held for a period of 52 weeks until 2015. So if there was earnings in January 2014 they will still be held until January 2015, apportioned over that 52 week period.

So for the purposes of work bonus there is always going to be an income in that week, or in that fortnight, and in the applicant’s case that income was always over $250. So the work bonus allowance always got deducted off. There was nothing sitting in the bank. Essentially there was nothing that rolled over, because it had been used in the period that he was entitled to it, which was every period, and every fortnight, or every week, if you’re looking at it on a weekly basis, then it’s $125, as the applicant has noted.
…
Specifically in his email dated 23 September 2019,

the applicant assumes that the work bonus has accumulated over 24 weeks and equals $3200, on the basis that he had not received any income from his employer for 24 weeks. However, as I’ve mentioned, the apportionment of his previous commission-based earnings meant for the purposes of Age Pension, he had an income over that period, and the work bonus did not accumulate because it was offset against his income each fortnight. Member, that Social Security Guide that I just handed up, example 3 in that is the most appropriate example for the applicant’s circumstances. If I can take you back to those entitlement calculations, you will see that each of the periods - so the entitlement calculations start after the Multical Debt Calculator. Sorry, Member, I’m at the entitlement calculations for the applicant’s specific circumstances, exhibit R3.
…
Yes. It starts in 2015 and it goes all the way to 2018 on page 11 of that bundle.
…
If you look under the heading, “Income test”, those earnings there - it starts in 2015, it starts at $658.04. That’s the earnings that’s part of the applicant’s earnings. You will see those earnings throughout, all the way from 2015, all the way through to 2018, are always over the work bonus allowance. They’re always over $250, and therefore there is no work bonus banked, because it has been included for each period, in the period that it was relevant to. I’m going to take you through the calculation to show how that work bonus has been included in each of those calculations there, Member, and this is also repeated in the Secretary’s SFICs at paragraph - - -
Ms Jones-Bolla then, as an example, took the tribunal through the calculation of the Applicant’s entitlement as at 20 March 2018 explaining how the total income earned by the Applicant of $653.36 is reduced, firstly by what is described in the MultiCal as the ‘income free area’ (that is the amount that the claimant can earn without affecting the pension) of $168, and then further reduced by the work bonus of $250 resulting in a relevant income of $217.36. This sum is further reduced by the multiplier of 0.5 resulting in a deduction amount of $108.68. It is that figure that is then deducted from the Applicant’s full pension entitlement of $1042.40 per fortnight resulting in an entitlement on the part of the Applicant to a pension payment of $933.72. This is the same calculation process as set in the Respondent’s SIFC summarised in [25(d)] above.
This same calculation of entitlement is made in the MultiCal for the period from

February 2015 to October 2018. What the Applicant has failed to appreciate is that, although it does not appear as a separate line item in the MultiCal, the work bonus of $250 per fortnight is taken into account in each of the calculations of entitlement. In each case the ‘income free area’ (which increased progressively from $160 in February 2015 to $172 in October 2018) and the $250 work bonus are deducted from the Applicant’s income before the 0.5 multiplier is applied to work out the amount by which the Applicant’s full entitlement is to be reduced.
The Applicant’s argument (see [32] above) that the $250 work bonus should have accumulated in the periods when he was not receiving payment is also misconceived.
Ms Jones-Bolla explained,[12] in the Tribunal’s view correctly, the way that s 1073A of the Act and Topic 4.3.3.20 of the Guide operate in relation to lump sum payments of the type received by the Applicant. In summary, the payments that the Applicant received throughout the period in question were treated as having been received, not as a single payment on the day that they were received, but rather as being progressively received over the 52 weeks following receipt.
[12] Transcript at 20-22.
A good example of the application of the Act and the Guide to the payments received by the Applicant is the one raised by the Applicant himself as set out [32] above. He refers to receiving a commission of $4909 in May 2018 and that at that time he should have had accumulated work bonuses of $3200. The Applicant had, however, over the 52 week period before he received that payment received 5 commission payments totalling some $13,100.[13] Also, contrary to the Applicant’s assertion that prior to his receipt of the $4909 payment in May 2018 he had not received any payment for 24-28 weeks, he had in fact received a payment of $1227 on 2 April 2018 and a payment of $4545 on

22 January 2018.[14] The point is, however, that over the 52 weeks prior to him receiving the $4909 payment he had received payments totalling over $13,100 which pursuant to Topic 4.3.3.20 of the Guide are to be treated as income progressively received over the 52 weeks after each payment was received. Those payment alone would result in the Applicant being considered as having received income in excess of the $250 a fortnight work bonus amount over the period that the Applicant argues he accrued $3200 in work bonuses. Further, prior to the start of that 52 week period in May 2017 the Applicant received payments (in February and March 2017 alone he received three payments totalling $8395) which would be treated as income over the 52 weeks following those payments. These payments too would have been included in the calculation of the Applicant’s income for part of that period in which the Applicant claims to have accumulated some $3200 in work bonuses.
[13] T21/352.
[14] Ibid.
Ms Jones-Bolla addressed the Applicant’s claim at the hearing as follows:[15]
MS JONES-BOLLA: That’s correct, yes. So, essentially, if you’re looking at the applicant’s rate of pension in, say, March 2015, you need to look back 52 weeks what has been earned as commission earnings in that period, and that will continually get apportioned. So, for example, for the $4000 that the applicant - the applicant says that he didn’t have any earnings for, I believe, 24 weeks, and then he had a lump sum payment of 4000 or something dollars. Looking at that $4000, which he says he earned in May 2018, that $4000 will be apportioned all the way up to May 2019.
MR LEIGH:Yes, it was, yes.
MS JONES-BOLLA: And I don’t believe the applicant disputes that, I believe the applicant agrees with the way his income has been calculated. His submission that for 24 weeks he had no income and therefore there should’ve been a work bonus is not correct because for 24 weeks, as far as Centrelink - yes, he may not have earned any income from his employer. There was no payment of income, but the income that he earned in the 12 months prior to that 24 week period, like a rolling period, that was income, because the commission that he earned in those 12 months prior was being apportioned over that period that he wasn’t actually receiving an income.
…
Yes, and fact 2 where the applicant says that he had no income for 34 weeks, that’s not how Age Pension gets worked out, Member. As I’ve said it’s a lump sum payment, and yes, the applicant may not have received any income from his employer, but the commission-based income that he’d earned in the 12 months at any point in that 34 weeks, looking at that point and working 12 months backwards, there was commission income. That commission income is apportioned out, so therefore he then moves into the point that he hasn’t had any work balance, there’s no work balance banked; that’s not correct because there was income, and that work balance has been taken off that income, the commission-based apportioned income.
[15] Transcript at 21-22.
The Tribunal agrees with Ms Jones-Bolla’s summary of the operation of the Act and the Guide. The Applicant’s complaints are misconceived. Contrary to the Applicant’s assertion, the recalculation of the Applicant’s entitlement to the age pension and the calculation of the debt owed by the Applicant based on that recalculation undertaken on 19 July 2019, the reviewable decision for the purposes of the application, does correctly allow for the $250 a fortnight work bonus and does so going back to February 2015. Secondly, again contrary to the Applicant’s assertion, no work bonuses accumulated because throughout the relevant period the Applicant’s fortnightly income, calculated in accordance with s1073A of the Act and Topic 4.3.3.20 of the Guide, always exceeded the $250 allowance.
The Tribunal also finds that insofar as the Applicant maintains that he should be paid for the fortnights that he did not receive a payment (15 June 2016, 8 February 2017,

22 March 2017, 15 November 2017, 24 January 2018 and16 May 2018),

the underpayments have already been taken into account in calculating the age pension entitlement in the period 25 August 2015 to 15 October 2018 (Annexure B).

Therefore, any amount owed by the Commonwealth during those fortnights have been included in the debt calculation and reduced the overall amount that the Applicant was overpaid. That is, the revised debt calculation allows for any payment owed to the Applicant for those fortnights.
As the Respondent points out, in any event s 109 of the Administration Act restricts the payment of arrears unless a request for review was made within 13 weeks of the decision. There is no evidence that the Applicant requested review within 13 weeks of any of these periods.
Other matters
The decision under review also held that there was a debt owed by the Applicant to the Commonwealth and that the debt be written off or waived. The Tribunal finds that the amount calculated by the reviewable decision as having been overpaid to the Applicant, namely $1414.12, was a debt owing by the Applicant to the Commonwealth pursuant to subsection 1223(1) of the Act.
Subsection 1237A(1) of the Act provides for waiver of a debt where it has arisen solely due to administrative error and the money was received in good faith. There is no dispute that the Applicant reported his income during the relevant debt period and that the debt has arisen due to the Department’s incorrect assessment of that income. The Respondent accepts that the debt arose solely due to administrative error and that the overpayment should be waived.
DECISION
The decision of the authorised review officer of the Department of Human Services made on 19 July 2019 which found that the Applicant had an age pension debt for the period
25 August 2015 to 15 October 2018 of $1,414.12, which was waived by the Respondent, is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

................................ [sgd].....................................
Associate
Dated: 17 April 2020

Date(s) of hearing: 15 October 2019

Applicant: In person

Counsel for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 866

17 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Appeal

Date(s) of hearing:	15 October 2019
Applicant:	In person
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers