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

The Administrative Appeals Tribunal (AAT) considered a dispute between Leigh and the Secretary, Department of Social Services, concerning the assessment of age pension entitlements. The core of the disagreement revolved around how commission payments received by the applicant were treated as ordinary employment income for the purposes of calculating the age pension, and whether an resulting overpayment should be waived.

The Tribunal was required to determine the correct application of the *Social Security Act 1991* (Cth) and the *Social Security (Administration) Act 1999* (Cth) to the applicant's commission income. Specifically, the issues included how "ordinary income" and "employment income" were defined, the method for attributing lump sum commission payments over a period, and the criteria for waiving a debt arising from administrative error where the recipient acted in good faith. The Tribunal also considered the relevance of the *Guide to Social Security Law* and the jurisdiction of the AAT in reviewing decisions where an officer has varied a prior decision.

The Tribunal affirmed the policy contained within the *Guide to Social Security Law*, which states that commissions received by employees are assessed as remunerative lump sums and are to be spread evenly over instalment periods, not exceeding 52 weeks. It was noted that commission-only real estate salespeople are considered employees. Crucially, the Tribunal found that the applicant had reported his income during the relevant period and that the debt had arisen solely due to the Department's incorrect assessment of that income. The Tribunal applied subsection 1237A(1) of the *Social Security Act 1991*, which provides for the waiver of a debt if it arose solely due to administrative error and the money was received in good faith.

The Tribunal affirmed the decision of the authorised review officer of the Department of Human Services made on 19 July 2019. This decision had found that the applicant had an age pension debt of $1,414.12 for the period 25 August 2015 to 15 October 2018, and that this debt was waived by the Respondent.