Smith and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 929
•20 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 929
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2406
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT SMITH Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date20 October 2008
PlaceSydney
Decision The decision under review is affirmed. ....................[sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – payments to Applicant decreased due to Applicant’s casual work earnings – Centrelink calculations correct – decision under review affirmed
Social Security Act 1991 – Section 1073B
REASONS FOR DECISION
20 October 2008 Ms N Isenberg, Senior Member 1. Mr Smith has received a disability support pension (DSP) since 1995. Since about 2000 he has had a casual job, for a few weeks a year, playing Santa Claus. Mr Smith’s fortnightly rate of DSP was reduced from $648.90 to $395.39 for the fortnight 28 November 2007 to 11 December 2007, and to $281.79 for the fortnight 12 December 2007 to 25 December 2007.
2. Mr Smith contends that it is unfair to assess his earnings in the fortnight in which they are earned and not over a whole year.
ISSUE BEFORE THE TRIBUNAL
3. Is Mr Smith’s employment income properly assessed in the instalment period in which it is earned, derived or received, or can it be assessed over the whole year?
DISCUSSION
4. Mr Smith told me that for several years he has worked about 25 hours per week in the 6 weeks or so leading up to Christmas. He earns $23 per hour to a total of about $600 per week. As a result, his DSP was reduced – by a total of between $600 and $1000, depending on the hours worked, following the 2003 amendments to the Social Security Act 1991 (the Act).
5. Mr Smith did not dispute that Centrelink had correctly applied the relevant provisions: s 1073B of the Act, in reducing his DSP. He contended though that the law was unfair to him compared to other persons who work as Santa Claus (Santas) and are on the age pension, and also compared to those DSP recipients whose casual work was not seasonal. He was also critical of Centrelink’s “advertising”.
Unfairness vis-à-vis age pensioners
6. Mr Smith said that Centrelink applied the income earned by Santas who receive age pension over the whole year whereas he, at 62 and on DSP, has his applied in the fortnight it is earned or received.
7. The Centrelink advocate conceded that this may appear anomalous, but that the legislation brought DSP casual income earners into line with those on Newstart allowance.
Unfairness vis-à-vis other casual workers
8. Mr Smith also contended that he is disadvantaged compared to DSP recipients, who earn the same total annual amount, but do so by working a few hours fortnightly. Those pensions are unaffected.
9. The Centrelink advocate conceded that Mr Smith had accurately described the effect of the legislation.
Centrelink ‘advertising’
10. Mr Smith brought to my attention an extract from the Centrelink publication: “Disability and Carers Connections No 3 of 2003” which purported to explain the effects of the 2003 amendments to the Act about working credits.
11. The article includes:
What’s in it for you?
·Being able to keep more of your payment from Centrelink when you get some work.
·…
·Simple, fair rules for working out how your income from work affects your payment.
12. Mr Smith contended that the article was misleading, because he, for one, lost money under the new arrangements, whereas previously his DSP was unaffected by his casual work.
13. The 2nd reading speech includes the following description of the changes:
… There will be a simpler and more consistent approach to measuring income from employment for all workforce age customers. ….
14. It seems to me that the article put a most advantageous ‘spin’ on the amendments, which might lead a fair minded person to believe that all DSP recipients who engage in some short term casual work might benefit from doing so. As only an extract was included in the papers, I do not know if a cautionary disclaimer was included with the article.
15. Mr Smith did not contend that the article induced him to continue the work in 2007, including during the period under review. He had already ‘lost out’ in the years since the amendments, but he likes the work, and indeed has signed up to work as a Santa again this year, albeit on reduced hours on his doctor’s advice.
CONCLUSION and DECISION
16. Mr Smith, as I said, did not dispute the Centrelink calculations, and I too accept that the calculations have been correctly undertaken. It is inescapable that the decision under review must be affirmed.
17. I accept that Mr Smith considers that he has been treated unfairly, but the outcome reflects the present law. He has not been discriminated against vis-à-vis other seasonal workers. I have reviewed the 2nd Reading Speech by which the ‘Working Credits’ amendments were introduced. It remains unclear though if the legislative intention was that those, like Mr Smith, who undertake short term casual work should be treated differently from those doing the same work, but who receive age pension. Similarly, it is unclear as to why those DSP recipients whose casual work which is, by necessity, intensive but shortlived, are in a different position to those whose work can be more evenly spread throughout the year. In any event, I suggest Centrelink exercise care in its publications extolling the virtues of legislative amendments.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: .......................[sgd].........................................................
Mr T Aviram, AssociateDate of Hearing 7 October 2008
Date of Decision 20 October 2008
Advocate for the Applicant Self-represented
Advocate for the Respondent Ms S Mantaring, Centrelink Legal Services
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