Pikoulas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 250

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 250

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0177

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Aristomenis Pikoulas

Applicant

And Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

Respondent

DECISION

Tribunal  M D Allen, Senior Member

Date7 April 2011

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing held on         7 April 2001, the decision under review is AFFIRMED.

.................[sgd]......................

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY: Applicant in receipt of money from Government of Netherlands. Assessed as income for purposes of Social Security Act 1991. Debt to the Commonwealth correctly raised. No special circumstances found. Decision under review Affirmed.

LEGISLATION

Social Security Act 1991,

REASONS FOR DECISION

15 April 2011

At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ...........[sgd].....................
  K. Lynch, Associate

Date of Hearing  7 April 2011
Date of Oral Decision  7 April 2011
Date of Written Reasons  15 April 2011
Representative for the Applicant           Mr Aristomenis Pikoulas (self)
Representative for the Respondent      Centrelink Advocacy Service

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:  

1. By application made the 17 January 2011, the Applicant sought review of a decision of the Social Security Appeals Tribunal that affirmed a prior determination that amongst other things included:

i.an amount of a Dutch pension paid to him in the assessment of his age pension;

ii.a decision to raise and recover a debt of $1049.34 in relation to age pension paid between 1 March 2009 to 30 April 2010; and

iii.not to refund amounts withheld after the rate of withholdings from the Applicant’s pension was reduced. 

2. The Applicant has also raised other matters before me, including the current failure to pay age pension to him, but that is not a matter which is before me. 

3. There can be no dispute that the Applicant is in receipt of moneys paid by the Dutch Government as a result of the Applicant being employed in the Netherlands and contributing towards a compulsory superannuation scheme. 

4. At document T5 of the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the appropriate Dutch Department of State sets out the payments to the Applicant.  That document indicates that for arrears of pension, the Applicant was paid €2498.30, and is receiving €176.78 into his bank account each month.

5. The Applicant stated that he is in dispute with the Dutch authorities as to the amount of pension to be paid to him.  In the interim, therefore, the moneys are being paid into his bank account with Rabobank at Nijmegen, Netherlands.

6. The Applicant has been advised, he says, by a solicitor in Holland, not to draw on those moneys while he is in dispute with the Dutch authorities.  That may be so, but the fact remains that the Applicant is in receipt of moneys from the Government of the Netherlands, and it is akin to the payment of age pension under the Social Security Act 1991 (“SSA”).  For example, at document T5, page 96, a letter to the Applicant states:

“We refer to your claim for a Dutch old age pension.”

7. Section 1228A SSA states that if an amount was paid to a person by way of a social security payment, the amount by which the social security amount would have been reduced is a debt due to the Commonwealth.

8. Subsection 8(1) SSA defines “income” as:

“an income amount earned, derived or received by the person for the person's own use or benefit”

It is quite clear that, on that definition, the moneys received by the Applicant from the Dutch Government constitute income in his hands.  Likewise, “ordinary income” is defined as:

“income that is not maintenance income or an exempt lump sum.”   

9. Subsection 8(8) SSA, although referred to by the Applicant, does not assist as the amount, even if superannuation or a return on his investment, becomes income when he starts to receive it.

10. Similarly, the moneys do not constitute an income stream or defined benefit income stream for the reasons as set out in the Respondent’s statement of facts and contentions, which became Exhibit R1 in these proceedings. 

11. The Applicant also referred to discussions which he had with the Australian Tax Office. It is sufficient to say that what will constitute income for the purposes of the SSA may involve quite different concepts as to what will be assessable income by reason of the Income Tax Assessment Act 1997. 

12. The situation is that the Applicant is in receipt of income and that income is required to be taken into account in assessing the amount of moneys paid to him under the SSA. The very fact that the Applicant does not wish to draw upon those moneys does not, in my opinion, constitute a special circumstance for the purposes of section 1237AAD SSA.

13. The decision under review is, therefore, AFFIRMED. 

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