Safaoui and Secretary, Department of Social Services (Social services second review)
[2017] AATA 924
•22 June 2017
Safaoui and Secretary, Department of Social Services (Social services second review) [2017] AATA 924 (22 June 2017)
Division:GENERAL DIVISION
File Number(s):2016/5117; 2016/5118; 2016/5119
Re:Faysal Safaoui
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Dr I Alexander, Member
Date:22 June 2017
Place:Sydney
The Tribunal decides:
1. In respect of matter number 2016/5118, the decision under review is set aside and remitted to the Respondent for recalculation of debt.
2. In respect of matter number 2016/5117, the decision under review is set aside and in substitution it is decided that the Applicant’s pension should not have been cancelled pursuant to section 68 of the Administration Act.
3. In respect of matter number 2016/5119, the decision under review is set aside and in substitution it is decided that the Applicant does not owe a debt of $7,975.12 for the period 1 September 2015 to 18 February 2016.
...............[sgd].........................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant has a debt – calculation of value of deprived asset for purposes of assessing DSP entitlement – application of single year and 5-year disposal free areas – decision set aside and remitted for recalculation of debt
SOCIAL SECURITY – disability support pension – automatic cancellation of pension under s 94 Social Security (Administration) Act – whether proper notice given under s 68(2) – whether Applicant required to notify Centrelink of a change in circumstances – whether Applicant started working 30 hours or more per week – whether payment able to be cancelled under s 80(1) – decision set aside and substituted
SOCIAL SECURITY – disability support pension – whether Applicant has a debt – whether pension should have been cancelled and debt raised – decision set aside and substituted
LEGISLATION
Social Security Act 1991 ss 94, 1073, 1123, 1126AC, 1126AD
Social Security (Administration) Act 1999 ss 68, 80, 94
CASES
MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs [2009] FCA 1142
SECONDARY MATERIALS
Guide to Social Security Law Version 1.233 para 4.1.10
REASONS FOR DECISION
Dr I Alexander, Member
22 June 2017
BACKGROUND
Mr Safaoui, who is currently 63 years old, lodged a claim for disability support pension (DSP) on 14 August 2009. The claim was rejected due to his compensation preclusion period with an end date of 28 September 2009.
On 29 September 2009 Mr Safaoui was granted DSP on the basis that he had satisfied the requirements of section 94 of the Social Security Act 1991 (the Act).
On 3 March 2016 Centrelink decided to raise a debt of $9,421.69 against Mr Safaoui for the period 9 July 2009 to 8 July 2010 for overpayment of DSP arising from an undisclosed deposit of $54,927.93 into a bank account (Decision 1 – 2016/5118).
On 4 March 2016 Centrelink decided to cancel Mr Safaoui’s DSP with effect from 1 September 2015 (Decision 2 – 2016/5117).
Mr Safaoui’s DSP payments continued until 18 February 2016. On 4 March 2016 Centrelink decided to raise a debt of $7,975.12 for the period 1 September 2015 to 18 February 2016 for overpayment of DSP (Decision 3 – 2016/5119).
The three decisions were affirmed by Centrelink on internal review and subsequently, on 9 September 2016, by the Administrative Appeals Tribunal, Social Services & Child Support Division (AAT1).
In this proceeding Mr Safaoui seeks review of the decision of AAT1.
At the hearing, Mr Safaoui was represented by a non-legal advocate and assisted by an Arabic language interpreter.
Initial consideration of the available evidence by the Tribunal revealed issues that had not been adequately addressed by the Respondent at the hearing. The hearing was resumed on 19 May 2017 in order to allow the Respondent to consider the additional issues and to make further submissions. Additional written submissions were provided to the Tribunal on 2 June 2017.
DECISION 1
In an undated Evaluation Case Review (the Case Review) for use by the Serious Non-compliance Branch, stated to have been finalised on 4 March 2016, it is noted that on 9 July 2009 a cash deposit of $54,927.93 was made into Mr Safaoui’s account at the Bankstown branch of the Commonwealth Bank (CBA). The deposit was also withdrawn on the same day.
Centrelink treated this deposit as a non-remunerative lump sum and calculated a debt of $9,421.69 pursuant to section 1073(1) of the Act.
I note that section 1073(2) of the Act lists the various allowances to which section 1073(1) can be applied and this list does not include DSP.
In the written submissions provided on 2 June 2017 the Respondent contends that the list of allowances in section 1073(2) is not exhaustive and that section 1073(1) does apply to DSP.
However, the Respondent concedes that section 1073 does not apply to the deposit of $54,927.93 on 9 July 2009 because it was pre-pension income.
The Tribunal agrees that section 1073 does not apply to the deposit on 9 July 2009 and therefore, for present purposes, does not need to address the submission by the Respondent that section 1073 applies to DSP.
The Case Review also stated that on 3 April 2009 a deposit of $24,625.00 was deposited in another joint account at the Bankstown branch of CBA. A trace of this transaction revealed that it originated from NRMA Insurance.
At the hearing, Mr Safaoui stated that the lump sum from NRMA Insurance was part of the $54,927.93 and that the remainder, $30,303.93, had been given to him in cash by his brother-in-law. He explained that he had been owed this money for previous work in his brother-in-law’s take-away shop and that the money was repaid when the shop was sold.
Mr Safaoui went on to explain that the $54,927.93 was deposited and withdrawn on the same day and sent overseas to Lebanon to provide funds for his parents to pay for medical treatment.
I note that this explanation was not challenged by the Respondent.
Section 1123 and Division 2 in Part 3.12 of the Act provide the rules for disposal of assets by social security recipients. In general, where a person disposes of an asset for no or inadequate consideration, the asset is included in the person’s assets for assets and income test purposes.
As the $54,927.93 deposited in the CBA on 9 July 2009 was disposed of and gifted to Mr Safaoui’s parents in the financial year 1 July 2009 to 30 June 2010, it would be considered a cash asset for the purposes of the Act.
Therefore, the determinative issue for the Tribunal is how much of the $54,927.93 is a deprived asset that needs to be included in Mr Safaoui’s assets for the purpose of assessing his DSP entitlement during the relevant period.
Consideration
Paragraph 4.1.10 of the Guide to Social Security Law provides a summary of the financial year deprivation provisions effective from 1 July 2002 and states, inter alia, as follows:
From 1 July 2002, all recipients will have the financial year (from 1 July of any given year until 30 June of the following calendar year) as the period over which disposal amounts are calculated and assessed for deprivation purposes. This will be the case regardless of when recipients commenced receiving social security payments.
…
From 1 July 2002, in addition to the $10,000 single year disposal free area, a further disposal free area of $30,000 in any 5-year rolling period will apply.
…
Disposals of assets on or after 1 July 2002 will effectively be subject to 2 tests to determine whether deprivation is assessable or not:
·firstly, whether the disposed of amount exceeds the $10,000 single year disposal free area for the financial year, and
·secondly whether the amount disposed of exceeds the $30,000 5-year disposal free area for the current and previous 4 financial years (not prior to 1 July 2002) and is not caught under the first test amounts.
On 9 July 2009 Mr Safaoui was living with his wife and children and, therefore, was a member of a couple.
Sections 1126AC and 1126AD of the Act provide for the disposal of assets for members of couples.
Section 1126AC provides for the disposal of assets in the income year and states, inter alia, as follows:
1126AC Disposal of assets in income year—members of couples
Disposals to which section applies
(1)If there is a disposal (the relevant disposal) on or after 1 July 2002 of an asset by:
(a)a person who, at the time of the relevant disposal, is a member of a couple; or
(b)the person referred to in paragraph (a) and the person who is, at that time, the partner of the person referred to in that paragraph;
subsection (2) has effect.
Increase in value of assets
(2)Subject to this section, if the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of assets previously made by the person, the person’s partner, or the person and the person’s partner, during the income year in which the relevant disposal took place (whether before or after they became members of the couple), exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the assets of the person and in the value of the assets of the partner for the period of 5 years starting on the day on which the relevant disposal took place:
(a) one‑half of the amount of the relevant disposal;
(b)one‑half of the amount by which the sum of the amount of the relevant disposal, and the amounts (if any) of other disposals of assets previously made by the person, the partner, or the person and the partner, during the income year in which the relevant disposal took place, exceeds $10,000. [emphasis added]
In the income year 2009-2010, the relevant disposal was $54,927.93 which clearly exceeded $10,000.
One half of the relevant disposal is $27,463.97 [section 1126AC(2)(a)].
The relevant disposal exceeds $10,000 by $44,927.93. One half of this amount is $22,463.97 [section 1126AC(2)(b)].
Therefore, under section 1126AC the deprived asset to be included in Mr Safaoui’s assets under the $10,000 in a financial year rule is $22,463.97.
Section 1126AD provides for the disposal of assets in a five year period and states, inter alia, as follows:
1126AD Disposal of assets in 5 year period—members of couples
Disposals to which section applies
(1)If there is a disposal (the relevant disposal) on or after 1 July 2002 of an asset by:
(a)a person who, at the time of the relevant disposal, is a member of a couple; or
(b)the person referred to in paragraph (a) and the person who is, at that time, the partner of the person referred to in that paragraph;
subsection (2) has effect.
Increase in value of assets
(2) Subject to this section, if:
(a)the sum of the amount of the relevant disposal and the amounts of any previous disposals of assets made during the rolling period by the person, the person’s partner or the person and the person’s partner;
less
(b)the sum of any amounts included in the value of the assets of the person or of the partner during the rolling period under section 1126AA, 1126AB or 1126AC or any previous application or applications of this section;
exceeds $30,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the assets of the person and in the value of the assets of the partner for the period of 5 years starting on the day on which the relevant disposal took place:
(c) an amount equal to one‑half of the excess;
(d) one‑half of the amount of the relevant disposal.
In the written submission dated 2 June 2017 the solicitor for the Respondent contends that Mr Safaoui “cannot have the benefit of the $30,000 disposal free area under section 1126AD” on the basis that “dispositions in excess of $30,000 are attributed to the assets test for DSP after allowing for the set-off of the right to dispose of $10,000 in any one year”. [emphasis added]
On my reading of the legislation I do not agree with the contention.
Paragraph 4.1.10 of the Guide to Social Security Law, which I assume represents Department policy, states that “Disposal of assets on or after 1 July 2002 will effectively be subject to 2 tests to determine whether deprivation is assessable or not”, that is, the $10,000 one year rule and the 5 year rolling period rule. It is emphasised that “while both rules will operate concurrently, the new provisions ensure there is no double counting of asset disposals that exceed the free areas of both rules. The legislation specifically restricts the operation of this new rule in such cases – refer to SSAct sections 112AB(2)(b) and 1126AD(2)(b).” [emphasis added]
I read this to mean that the legislation provides two separate tests to deal with different circumstances.
There is no evidence that either Mr Safaoui or his wife disposed of any asset, other than the $54,927.93, in the four financial years prior the 2009-10 or the four financial years after 2009-10. Therefore, the sum of all disposals during the five year rolling period is $54,927.93.
The sum of $54,927.93 less the value of the deprived asset under section 1126AC ($22,463.97) is $32,463.96 [section 1126AD(2)(a)&(b)] which exceeds $30,000 by $2,463.96.
One half of the amount exceeding $30,000 is $1,231.98 [s1126AD(2)(c)].
One half of the relevant disposal is $27,463.97 [s 1126AD(2)(d)].
Therefore, under s 1126AD the deprived asset to be included in Mr Safaoui’s assets under the five year rolling period rule is $1,231.98.
Decision
The decision under review is set aside and remitted to the Respondent for recalculation of debt in accordance with the reasons set out above.
DECISION 2
The Case Review referred to above states, inter alia, the following:
It has been determined that SAFAOUI has been working for more than 15 hours a week, and does not have a continuing inability to work. SAFAOUI, in failing to notify of a change in his circumstances, has failed to comply with section 68(2) and as a result, DSP has been cancelled by force of section 94 of the SS (Admin) Act 1999.
An overpayment of $7975.12 has been raised due to cancellation of DSP since 1 September 2015 till 18 February 2016.
An electronic Centrelink document dated 4 March 2016 states, inter alia, the following:
Debt: Disability Support Pension . Period 01 SEP 2015 – 18 FEB 2016.
Debt due to – lost qual / payability, as in Full time employment…
Cust failed to advise of commencement of work for Hecham Coffee and Nut Roaster Co..
Customer not entitled to DSP from 01 SEP 2015.
Cust failed to comply with section 68(2) by failing to notify of his commencement of employment and dsp has been cancelled by force of section 94 of the SS (Admin) Act 1999. [emphasis added]
A Centrelink electronic document dated 9 March states, inter alia, the following:
It has been made evident that the cust is working over 15 hrs / wk and that he is able to do alot of physical work that he has stated he cannot do. It has been determined that cus is no longer eligible for DSP based on evidence received and he has been advised of this and his appeal right… Cust failed to comply with section 68(2) by failing to notify of his commencement of employment and DSP has been cancelled by force of section 94 of the SS (Admin) Act 1999. [emphasis added]
A Centrelink letter dated 9 March 2016 states the following:
After careful consideration, your Disability Support Pension has been cancelled from 1 September 2015 because you failed to notify the Department of Human Sevices of your employment with Hecham Coffee and Nut Roaster.
This decision has been made under social security law.
Legislation
Section 68(2) of the Social Security (Administration) Act 1999 (the Administration Act) applies to a person who is receiving a social security payment and provides that:
(2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a) inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change of circumstances is likely to occur.
Section 94 of the Administration Act provides for automatic cancellation for a recipient of a social security payment not complying with a subsection 68(2) notice as follows:
(1) Subject to subsection (2), if:
a)a person who is receiving a social security payment is given a notice under subsection 68(2); and
b)the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and
c) the event or change of circumstances occurs; and
d)the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and
e) because of the occurrence of the event or change of circumstances:
(i)the person ceases to be qualified for the social security payment; or
(ii)the social security payment ceases to be payable to the person;
the social security payment is cancelled, by force of this subsection, on the day on which the event or change of circumstances occurs.
Section 80(1) of the Administration Act provides for the cancellation of a social security payment if the Secretary is satisfied that a payment is being made to a person who is not qualified for the payment.
Section 80(2) of the Administration Act provides that:
(2) Subsection (1) does not authorise the Secretary to make a determination if:
(a)the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and
(b)the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.
Other documentary evidence
For reasons that are unclear the Department of Human Services commissioned a surveillance investigation on Mr Safaoui.
I note that the Tribunal has not been provided with any supporting documents or any other explanation as to why a surveillance investigation was commissioned.
A comprehensive report dated 16 November 2015 was provided by a surveillance agent who stated that there was an allegation that Mr Safaoui “has failed to declare income from employment for an extended period as a delivery driver for Hecham Coffee & Nut Roaster” (Hecham).
The agent described the Department’s instructions as “Observe record and videotape the subject’s activities in relation to his daily activities that contradict his impairment rating and his employment status” and stated that “The subject was observed working during this investigation”.
The agent reported that Mr Safaoui was “observed to be working” during the investigation and provided a detailed description of his surveillance on each of five days over a six-week period as follows:
(a)Day 1 – Friday 11 September 2015 – approximately 6.5 hours
(b)Day 2 – Monday 21 September 2015 – approximately 2.5 hours
(c)Day 3 – Tuesday 29 September 2015 – approximately 4.25 hours
(d)Day 4 – Wednesday 14 October 2015 – approximately 5.5 hours
(e)Day 5 – Thursday 22 October 2015 – approximately 5 hours
On days 1, 3, 4 and 5 Mr Safaoui was observed driving a delivery van to various locations, loading and unloading boxes and other items of various weights, pushing trolleys and on one occasion walking approximately 2.5 to 3 km.
On Day 2 Mr Safaoui was observed to arrive at the workplace at 7:38 am, load some boxes into the vehicle and depart after about 10 minutes. He was observed to return to the workplace at about 8:44 am and after loading some boxes returned to his home address. Surveillance was ceased at 10:00 am.
On Day 4 Mr Safaoui was observed to walk to his workplace from home, an estimated distance of 2.5 to 3 km, over a period of about 30 minutes.
A DVD with 251.94 minutes of footage was produced. The DVD was to be viewed on the second day of the hearing with the leave of the Tribunal. However, Mr Safaoui was unable to attend the second day of the hearing because of illness and was represented by his advocate. In the circumstances, it was agreed that the DVD would not be put into evidence and that the Respondent would rely on the surveillance report.
The record of an administrative interview dated 15 December 2015 notes that Mr Safaoui stated that he is not employed and gets no income, and when asked if he is familiar with Hecham, Mr Safaoui said the following through an interpreter:
His friend owns it…He goes to visit his friend and spends time there… Sometimes he helps out… He monitors others while they’re loading, he just watches and counts… He does this for 15 to 20 minutes, sometimes an hour… He doesn’t get paid, he gets products in return… If he knew he would be able to do this for a long time (work) he would have told Centrelink… he is aware that, as a DSP recipient, he is entitled to work for a few hours.
The record of interview with Mr Safaoui’s wife notes that she said that her husband goes to Hecham for leisure time one to two days a week, sometimes not at all, and brings home products they would not otherwise be able to afford.
In a Centrelink form issued on 14 December 2015 and signed on 8 February 2016, an unidentified person from Hecham notes that Mr Safaoui “is not employed by me. Sometimes I called him to do me a favour. I will give him some goods and groceries for his time”. It states that Mr Safaoui started working for the business on 1 September 2015, works for six to ten hours per week but the person completing the form was unable to remember the actual periods when he worked.
In a Centrelink form issued on 1 March 2016 and signed on 17 March 2016, an unidentified person from Hecham notes that Mr Safaoui started unofficial work for the business on 1 September 2015 as a delivery driver, works six to ten hours per week and is not paid but given groceries from time to time.
At the AAT1 hearing Mr Safaoui told the Tribunal that “he was trying to see if he could do some work but usually after only two or three hours at Hecham, he would have to go home and lie down” and also that “he started working there to see if he could undertake some work and that, if he found that he was able to sustain such work, he would then have notified the Department”.
Mr Safaoui’s oral evidence
Mr Safaoui told the Tribunal that he started going to Hecham on 1 September 2015 to help out his friend with some tasks and received some groceries in return. He denied engaging in any work between 2007 and September 2015.
He said he would often visit his friend at work to have coffee but eventually asked his friend if he could do some work because he wanted to see how he would cope. He also wanted to try and do some work because being at home all the time caused stress between his wife and family.
Mr Safaoui did not deny that he was trying to work and would attend for up to four days, working up to six hours per week, but denied working regularly for five days each week. Sometimes he would go for up to four days and spend an hour or two socialising and not work.
He agreed that he assisted with the loading and unloading of vans and sometimes making deliveries.
Mr Safaoui said that currently he was working up to 15 hours per week, one to three hours at a time for four to five days. He indicated that he was told by Centrelink that he was allowed to work for up to 15 hours per week but emphasised that he was not capable of working more than 15 hours because “it was too much for me”.
Consideration
In the course of the hearing it became clear that there was some confusion as to which section of the Act was used for the cancellation of Mr Safaoui’s DSP.
The evidence before the Tribunal, in my view, demonstrates that his DSP was cancelled because he had failed to notify Centrelink that on 1 September 2015 he had started working more than 15 hours per week at Hecham.
Mr Safaoui’s failure to notify Centrelink within 14 days of starting work was considered to be a change in his circumstances which constituted a failure to comply with section 68(2) of the Administration Act. This resulted in an automatic cancellation of DSP in accordance with section 94 of the Administration Act.
As the decision was not finalised until March 2016, Mr Safaoui continued to receive payments until 18 February 2016 with the result that a potential retrospective debt had been created which has now been calculated to be $7,975.12.
I note that as DSP was automatically cancelled pursuant to section 94 of the Administration Act, a determination under section 80(1) of the Administration Act was prohibited by section 80(2).
The first issue to be considered is whether proper notice had been given with respect to section 68 of the Administration Act.
The Respondent relies on two letters dated 27 August 2013 and 28 August 2013 informing Mr Safaoui of the amounts of his regular DSP payments.
Page 2 of the letters provide instructions and a comprehensive list of events and changes in circumstances that must be notified to Centrelink within 14 days and includes, inter alia, the following:
What you must tell us
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner…
This request is an information notice given under social security law…
Start or stop work: If you start work for 30 hours a week or more including unpaid or voluntary work, seasonal work, any form of profession, trade, business or self-employment. [emphasis added]
In MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs [2009] FCA 1142 (8 October 2009) at 26, Ryan J approved a submission by counsel that a letter advising of the grant of DSP in May 2002 constituted a notice under section 68(2) of the Administration Act for a cancellation of payments in March 2005. The letter advising of the grant of DSP had precisely the same instructions as the letter sent to Mr Safaoui.
Therefore, I accept that Mr Safaoui received correct notice under section 68 of the Administration Act.
It follows that the definitive issue in this matter is to identify what was specifically required of Mr Safaoui by the section 68 notice.
On my reading of the notice he was required to inform Centrelink if he started to “work for 30 hours a week or more including unpaid or voluntary work”. [emphasis added]
The notice did not require him to notify Centrelink of his “commencement of employment”, if he was “working over 15 hrs / wk” as noted in the Centrelink electronic documents, whether he was attending the workplace for occasional work every weekday or attending for any other reasons.
Mr Safaoui concedes that on 1 September 2015 he started to do some occasional work at Hecham but denies starting work for 30 or more hours per week or attending the workplace every day.
The Respondent relies on the evidence contained in the surveillance report and submits that the Tribunal draw an inference from the observed activities on five single days over a six week period that Mr Safaoui had commenced working 30 hours or more per week and that therefore he should have notified Centrelink within 14 days.
The threshold question is therefore whether the evidence provided by the surveillance report is sufficient to persuade the Tribunal that Mr Safaoui had, in fact, commenced working for 30 hours or more per week.
In brief oral evidence by telephone, the surveillance agent indicated that the days on which surveillance was to be performed were random. However, the days appear to have been chosen to imply that Mr Safaoui was working each day from Monday to Friday.
The Tribunal has great difficulty with the submission that approximately 23 hours of surveillance on five random days in a six week period, with an average 4.5 hours on each day, is convincing evidence that Mr Safaoui started working 30 hours per week on 1 September 2015.
There has been no suggestion that Mr Safaoui has received any monetary payment for his work, which begs the question as to why he would not engage in paid employment if he was capable of regularly working 30 hours or more per week.
On balance, I am satisfied there is insufficient evidence to support a conclusion that on 1 September 2015 Mr Safaoui started to work for 30 hours or more per week and, therefore, I am satisfied that he had no obligation to inform Centrelink.
It follows that I am satisfied Mr Safaoui’s DSP should not have been cancelled pursuant to section 68 of the Administration Act.
Decision
The decision under review is set aside and in substitution it is decided that Mr Safaoui’s pension should not have been cancelled pursuant to section 68 of the Administration Act.
DECISION 3
In view of the decision above, that Mr Safaoui’s DSP should not have been cancelled under section 68 of the Administration Act, the decision of 4 March 2016 to raise a debt of $7,975.12 for the period 1 September 2015 to 18 February 2016 is void.
The decision under review is set aside and in substitution it is decided that Mr Safaoui does not owe a debt of $7,975.12 for the period 1 September 2015 to 18 February 2016.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
...............[sgd].........................................................
Associate
Dated: 22 June 2017
Date(s) of hearing: 20-21 April & 19 May 2017 Date final submissions received: 2 June 2017 Advocate for the Applicant: Mr O Jamal, Omar Interpreting Centre Solicitors for the Respondent: Dr S Thompson, Department of Human Services
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