Tellus and Dpartment of Family and Community Services

[2000] AATA 421

DECISION AND REASONS FOR DECISION [2000] AATA 421

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2000/204

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      PAUL TELLUS       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr B.G. Gibbs, AM, Senior Member       

Date31 May 2000

PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
SOCIAL SECURITY – Age pension – income test – reduction – whether amount of income subject to income test gross or net amount of earnings – decision affirmed.
Words and Phrases
Social Security Act 1991, ss. 8, 1064, 1072, 1073

REASONS FOR DECISION

31 May 2000 Mr B.G. Gibbs, AM, Senior Member                   
 Introduction            

1. This is an application by Mr Paul Tellus for review of the decision of the Social Security Appeals Tribunal ("SSAT") made on 7 February 2000, to affirm the decision of a Centrelink officer, made on 1 October 1999, to reduce the rate of age pension due to earnings.
   Representation

2. At the hearing before this Tribunal Mr Tellus was self-represented.  Mr M. Todd, Advocacy and Administrative Law Section, Centrelink, appeared for the respondent.
   Background

3. Mr Tellus has been paid age pension since April 1995.

4. On 1 October 1999 he was advised that the rate of pension to be paid to him had been reduced.

5. The reduction was the result of income, including earnings, calculated by Centrelink to be $13,206.96 per annum.

6. On 26 October 1999, Mr Tellus requested a review of the rate of pension, in particular against the application of the income test to the gross amount of earnings, rather than the net amount.

7. The decision was reconsidered by the original decision maker who decided not to change the decision.

8. The decision was referred to an authorised review officer ("ARO") for review.

9. The ARO advised Mr Tellus by letter dated 4 November 1999, that the decision was correct and would not be changed.

10. On 23 November 1999, Mr Tellus lodged an appeal with the SSAT.  As indicated, on 7 February 2000, the SSAT affirmed the decision of the Centrelink officer made on 1 October 1999.

11. On 22 February 2000, Mr Tellus lodged an application for review of the decision of the SSAT.  It is that application which is the subject of these proceedings.
    Issue

12. The issue before this Tribunal for determination is whether the amount of income subject to the income test is the gross or the net amount of Mr Tellus' earnings.
    Law

13. Pursuant to the Social Security Act 1991 ("the Act"), the rate of age pension is calculated using the Rate Calculator in section 1064 of the Act.

14. Module E of the rate calculator provides the ordinary income test, the concept of which is dealt with further by sections 1072 and 1073.

15. Section 1073 refers to a person's ordinary income being the person's gross ordinary income calculated without any reduction other than allowed in Division 1A, which deals with business income.

16. The definition of "income" is provided in subsection 8(1) of the Act, and includes amounts earned.
    Documentary Evidence

17. In his application for review by this Tribunal, Mr Tellus stated that his reasons for the application were the "same as applied on the SSAT sheet".

18. In lodging his appeal to the SSAT, Mr Tellus had indicated that his reason for appeal was:

    "I believe 50c in the dollar deduction on income is OK But not on tax.  Tax is not income."

Oral Evidence

1. During the hearing before this Tribunal Mr Tellus in effect respected the evidence which he gave before the SSAT.  That evidence was as follows:

• He is having difficulty coping financially on the pension, after paying his regular bills he has very little to live on.

• His only income is the pension.

• As he is allowed to earn $50 before the rate of pension is affected he obtained work at Swinburne University.  The work was for 15 hours a week for 13 weeks.  He started work at 4 am and finished at 7 am every week day.  His wages were $256 per week.

• From the $256 per week he paid tax of some $75.

• During the time of his employment he had additional petrol costs.  He had to drive to work as he started at 4 am and there was no public transport at that time of the morning.

• As the job was casual he was not paid for days off sick.  During the 13 weeks he missed a few days due to illness and his earnings were reduced.

• He understood the income test but felt that subjecting the amount he paid in tax to the income test was unfair.

Record of Earnings

1. In its reasons for decision the SSAT stated that Centrelink records indicate Mr Tellus provided copies of payslips detailing his earnings during the relevant period.
   Findings

2. The Tribunal finds that Mr Tellus is in receipt of age pension and that he was employed on a casual basis, for a period of 13 weeks, earning $253 per week.

3. The Tribunal further finds that Mr Tellus has no reductions as specified in Division 1A of the Act, and that, as stated by the SSAT, neither earnings nor tax paid on earnings fall into amounts excluded by subsection 8(8) of the Act.

4. It follows, therefore, that the gross amount of Mr Tellus' earnings is subject to the age pension income test.
   Decision

5. For the reasons given, the decision under review will be affirmed.

   I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Mr B.G. Gibbs, AM, Senior Member

   Signed: .....................................................................................
     Personal Assistant

   Date/s of Hearing  19/4/2000
   Date of Decision  31/5/2000
   Counsel for the Applicant        Self-represented
   Counsel for the Respondent    Mr M. Todd
   Solicitor for the Respondent    Centrelink Administrative Law Section