VRSX and Secretary, Department of Social Services (Social services second review)
[2024] AATA 451
•18 March 2024
VRSX and Secretary, Department of Social Services (Social services second review) [2024] AATA 451 (18 March 2024)
Division:GENERAL DIVISION
File Number: 2023/3096
Re:VRSX
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:18 March 2024
Place:Melbourne
The decision under review is affirmed.
….........................[sgd]............................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – Jobseeker Payment – refusal of benefits – failure to provide requested information – complex asset test assessment – whether qualified – whether reasonable excuse for not providing information – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth)
Cases
Adkins and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 817
Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010
Hoefl and Secretary, Dept of Social Services (Social services second review) [2022] AATA 2130
Ibarcena and Department of Family and Community Services [2000] AATA 1141
Rapoff and Secretary, Department of Social Services [2014] AATA 676
Secretary, Department of Family and Community Services and Cocks [2002] AATA 1179Shiel v Department of Social Security [1999] FCA 1237
Secondary Materials
Department of Social Services, Social Security Guide (Guides to Social Policy Law, version 1.306, updated 3 April 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
18 March 2024
INTRODUCTION
VRSX (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him JobSeeker Payment (‘JSP’) pursuant to section 593 of the Social Security Act 1991 (‘the Social Security Act’).
On 28 February 2022, VRSX lodged an application for JSP. In his application form under the heading ‘Trusts and Companies’ he declared he was involved in a family trust referred to in this decision as ‘BFT’ and a company referred to in this decision as ‘BB & Cleaning’ but was not a director, shareholder or otherwise involved in a private company.
On 13 March 2022, Centrelink rejected VRSX’s claim for JSP as he had not supplied requested documents. On 20 September 2022, VRSX provided an ASIC company search which confirmed BFT had been deregistered on 16 February 2013. On 20 September 2022, Centrelink requested confirmation and details as to the vestment of BFT, balance sheets, including loans and liabilities and assets owned. On 3 November 2022, Centrelink informed VRSX that as he had not provided the requested information his JSP could not be paid.
On 2 November 2022, an authorised review officer (‘ARO’) affirmed the decision, on the basis that:
Reasons for the outcome
When a person claims a payment, they may be required to provide information to verify their circumstances. The information is used to determine whether the person is entitled to receive the payment.
On 28 February 2022 you were asked to provide information to verify your circumstances. This included evidence of deregistration for the BFT and BB & Cleaning Pty Ltd. You did not provide the requested information and we were unable to determine that you could be paid JobSeeker Payment.
As you did not provide the requested the information, we were unable to determine that you were entitled to receive JobSeeker Payment.
On 20 September 2022, you provided a statement from ASIC to show that BB and Cleaning Pty Ltd had been deregistered.
On 20 September 2022, a Complex Assessment Officer sent a request for information letter to you asking if the BFT had been vested. If so you were required to provide the last balance sheet, vestment deed and the final resolution detailing who received income and capital of the Trust.
As at the date of this review you have not provided any requested information for the BFT.
This means the decision to reject your JobSeeker Payment claim was correct.
On 14 April 2023, the Social Services and Child Support Division of this Tribunal (‘AAT1’), affirmed the ARO decision; finding:
The Tribunal finds that Centrelink has understandably requested that VRSX provide proof of the deregistration of the BFT.
Having regard to all the evidence before it, the Tribunal is satisfied that VRSX has declared an involvement in the BFT on his claim for jobseeker payment; that he is aware that the BFT exists; and that his former business partner and cousin is involved with the BFT. As such, the Tribunal is satisfied that VRSX needs to provide further information to Centrelink about the deregistration or otherwise of the BFT if he wishes to progress his claim for jobseeker payment.
The Tribunal is therefore satisfied that VRSX’s jobseeker payment was correctly rejected.
On 30 April 2023, VRSX applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the AAT1 decision, stating:
I respectfully request a second review of the tribunal's decision regarding my application (2022/MI 76404). While I appreciate the efforts of the tribunal, it appears that crucial facts were not taken into consideration during the review process. As a result, the decision reached was unreasonable and unjust, and it has had a pernicious effect on my lawful right to access the social security scheme that provides a minimum essential level of benefits to me and my family.
I would like to draw your attention to a crucial fact in my case that has been misinterpreted. It was not my intention to indicate that I was involved in the "BFT" on my jobseeker application. This information was automatically generated and pre-filled by Centrelink's IT system, and as a result the tribunal member had interpreted that I had provided this information, when I had not. The hearing papers do not differentiate between pre-filled answers and answers I have provided, making the information unreliable for both me and the tribunal member to navigate.
At the hearing, I pointed out this issue to Member J Pentice, but it seems to have not been further investigated. On page 18 of the hearing papers, it explicitly states 'We have reused most of the information you have provided previously to make your claim easier to complete ... ". Ironically, the "reuse" of this information has made things more difficult for me, not "easier."
Moving forward, the tribunal wrongly affirmed that Centrelink was within its powers to refuse my claim in accordance with subsection 64(1) of the Administrative Act. It appears that section 64(1)(c), which states that the requirements of the notice are to be "reasonable," and section 64(1)(f) which stipulates that it be 'reasonable' for this subsection to apply, has been overlooked. It may be that the secretary acted unreasonably, causing further undue delay to my application.
The purpose of the Social Security Act is to provide for the payment of benefits and allowances for persons and for the tribunal to review the merits to ensure that the administrative decision in relation to the review is accurate. In my case, despite the absence of any dispute that I was qualified for jobseeker payment, I have been unfairly refused any social security benefits where the expectation for me to provide unattainable pieces of information is grossly unreasonable.
Finally, in reference to point 25 of the tribunal's decision letter, where it says that the tribunal is "...satisfied that Centrelink understandably requires a more robust response" because the statement I provided as proof is not signed or dated. I too understand why this may seem unsatisfactory, but the fact and circumstances surrounding the matter must be considered because I have done exactly as I was instructed by the Centrelink agent.
To be refused jobseeker benefits because Centrelink had unreasonable expectations to provide something that is not attainable (evidence of deregistration for the BFT) is unjust. If I may reiterate my original appeal, I have provided all the information that is possible, and Centrelink's decision to reject my claim is wrong because the reviewer relies on superficial information that is automated by their IT system where it suggests that I have an affiliation with the "BFT." I do not.
Therefore, I respectfully request that the tribunal replace its original decision with a new one that takes into account all the merits of the facts of my case.
The application was heard via telephone on 18 January 2024. VRSX was self-represented and Ms Kathryn Lieschke, Lawyer at Services Australia, appeared for the Respondent. At the conclusion of the hearing the Tribunal directed:
On or before 15 February 2024, the Respondent must provide to the Tribunal and to the Applicant:
The Applicant's payment history of benefits received from Centrelink since 2012; and
Evidence of whether applicants are able to alter pre-populated information on their online applications with Centrelink.
On or before 14 March 2024, the Applicant must provide to the Tribunal and the Respondent:
Documentary evidence that he has never received a benefit from the BFT or any other trust entity.
The Applicant may also provide a response to the Respondent's submissions within this timeframe.
Following the provision of further evidence, an update is requested from parties to determine whether a further hearing is required or if the matter is able to be finalised and determined on the papers.
The parties concurred that the matter could be finalised on the papers.
THE ISSUE IN CONTENTION
The issue in contention is whether VRSX qualified for JSP from 28 February 2022.
LEGISLATION
The Department of Social Services’ Social Security Guide describes JSP as an income support payment that provides financial assistance to people aged 22 years to age pension age who have capacity to work now or in the near future and are prepared to meet mutual obligation requirements. To be eligible for JSP you must meet the income and asset tests.
Section 593(1) of the Social Security Act describes the qualifications required for an individual to receive JSP:
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a jobseeker payment in respect of a period if:
(a)the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
(ii) subsection (1A) applies in relation to the person for the period; and
(b)throughout the period the person satisfies subsection (1AC); and
(g) throughout the period the person:
(i) is at least 22 years of age and has not reached the pension age; and
(ii) is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(i)the person was not in receipt of a youth allowance during the period.
Section 593(1AC) of the Social Security Act requires that a person applying or being paid JSP is willing to actively seek paid work:
(1AC) A person satisfies this subsection if:
(a)the following apply:
(i) the person satisfies the employment pathway plan requirements;
(ii) the person satisfies the Employment Secretary that the person is willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person; or
(b)the following apply:
(i) the person is, under Subdivision C of Division 2A of Part 3 of the Administration Act, not required to satisfy the employment pathway plan requirements;
(ii) the person satisfies the Employment Secretary that the person would otherwise be willing to actively seek and to accept and undertake paid work in Australia, except particular paid work that is unsuitable to be done by the person.
Note 1: For satisfies the employment pathway plan requirements, see subsection 23(1).
Section 611 of the Social Security Act provides that JSP is not payable if an individual’s assets exceed the value limit:
(1) Subject to section 654, a jobseeker payment is not payable to a person if the value of the person’s assets is more than the person’s assets value limit.
(2) A person’s assets value limit is worked out using the following table: work out which family situation applies to the person; the assets value limit is the corresponding amount in the assets value limit column.
Column 1
Column 2
Column 3
Assets value limit
Item
Person’s family situation
Column 3A
Either person or partner homeowner
Column 3B
Neither person nor partner homeowner
1.
Not member of a couple
$250,000
$450,000
Section 40A of the Social Security (Administration) Act 1999 (‘the Administration Act’) sets out the requirement for JSP applicants and recipients to enter into employment pathway plans:
No existing employment pathway plan in force
(1) The Employment Secretary may require a person to enter into an employment pathway plan if an employment pathway plan is not in force in relation to the person and one of the following applies:
(a)either:
(i) the person is receiving, or has made a claim for, a jobseeker payment or a youth allowance; or
(ii) the Department is contacted by or on behalf of the person in relation to a claim for a jobseeker payment or a youth allowance
Section 63 of the Administration Act sets out the general requirements of a person who is applying for a social security payment, relevantly it details the requirements to provide information:
Secretary may require person to attend Department etc.
(1) Subsection (2) applies to a person if:
(a)the person is receiving, or has made a claim for, a social security payment; or
(b)the person is the holder of, or has made a claim for, a concession card; or
(c)the Department is contacted by or on behalf of the person in relation to a claim for:
(i) if the person is not undertaking full‑time study and is not a new apprentice—youth allowance; or
(ii) in any case—jobseeker payment;
to be paid to the person.
(2) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a)attend an office of the Department; or
(b)contact the Department; or
(c)attend a particular place for a particular purpose; or
(d)give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
Secretary may require person to provide proof of life certificate etc.
(2AA) Subsections (2AB) and (2AC) apply to a person if:
(a)the person has reached 80 years of age; and
(b)the person is receiving any of the following social security payments:
(i) age pension;
(ii) carer payment;
(iii) disability support pension; and
(c) the person was continuously absent from Australia throughout the previous 2 years.
(2AB) The Secretary may notify a person to whom this subsection applies that:
(a)the person is required, within the 13‑week period beginning when the notice is given, to give the Secretary a proof of life certificate that:
(i) relates to the person; and
(ii) was completed within that 13‑week period; and
(b)the requirement does not apply if the person enters Australia within that 13‑week period.
(2AC) If this subsection applies to a person, the Secretary must notify the person under subsection (2AB) at least once every 2 years.
Secretary may require person to undergo medical examination etc.
(3) Subsection (4) applies to a person if:
(a)the person is receiving, or has claimed, any of the following social security payments:
(i) disability support pension;
(ii) parenting payment;
(iii) youth allowance;
(iv) jobseeker payment;
(v) special benefit;
(vi) mobility allowance; or
(b)the Department is contacted by or on behalf of the person in relation to a claim for youth allowance or jobseeker payment to be paid to the person.
(4) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a) complete a questionnaire; or
(b)undergo a medical, psychiatric or psychological examination (whether or not at a particular place), and provide to the Secretary the report, in the approved form, of the person who conducts the examination;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing.
Method for giving notice
(5) The Secretary may notify a person under subsection (2), (2AB) or (4):
(a)by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary; or
(b)in any other way the Secretary considers appropriate.
Validity of notice not affected in certain circumstances
(6) A failure to specify the particular purpose in a notice given to a person for the purposes of paragraph (2)(c) does not affect the validity of the notice.
Consequence of not informing person of effect of failure to comply with requirement in notice
(7) If a person is notified under subsection (2), (2AB) or (4) and the notice does not inform the person of the effect of section 64, subsection 64(1) or (5) (as the case requires) does not apply to the person in relation to the requirement in the notice.
Section 64 of the Administration Act details the effect of failing to comply with the requirements when applying for a social security payment, relevantly it details the effect of failing to provide information:
Person receiving, or claiming, social security payment
(1) If:
(a)a person is receiving, or has made a claim for, a social security payment; and
(b)the Secretary notifies the person under subsection 63(2), (2AB) or (4); and
(c)the requirement in the notice is reasonable; and
(d)the person does not comply with the requirement; and
(e)except if the person is receiving, or has made a claim for, a participation payment—the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
(1A) Subsection (1) does not apply if:
(a)the person is receiving a participation payment; and
(b)the person fails to attend an appointment that the person is required to attend by a notice under subsection 63(2); and
(c)the Secretary makes a determination under section 42AF or subsection 42SA(1) in relation to the person and the failure.
(2) Subsection (1) does not apply if:
(a)the person is receiving, or has made a claim for, youth allowance; and
(b)the notice included a statement to the effect that a failure to comply with the requirement in the notice could constitute a youth allowance participation failure.
Note: If a recipient of, or claimant for, youth allowance does not comply with a requirement notified under subsection 63(2) or (4), this may result in the payment not being payable to the person: see sections 550B and 551 of the 1991 Act.
(3) Subsection (1) does not apply if:
(a)the person is receiving, or has made a claim for, an austudy payment; and
(b)the notice included a statement to the effect that a failure to comply with the requirement in the notice could constitute an austudy participation failure.
Note: If a recipient of, or claimant for, an austudy payment does not comply with a requirement notified under subsection 63(2), this may result in the payment not being payable to the person: see sections 576A and 577 of the 1991 Act.
(4) If:
(a)a social security payment is not payable to a person because of subsection (1); and
(b)the Secretary is satisfied that it is no longer reasonable for that subsection to apply to the person in relation to the requirement in the notice given to the person under subsection 63(2), (2AB) or (4);
the Secretary may determine that, on and after a day specified by the Secretary, subsection (1) ceases to apply to the person in relation to that requirement.
Person holding, or claiming, concession card
(5) If:
(a)a person is the holder of, or has made a claim for, a concession card; and
(b)the Secretary notifies the person under subsection 63(2); and
(c)the requirement in the notice is reasonable; and
(d)the person does not comply with the requirement; and
(e)the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person ceases to be, or is not, qualified for the concession card.
(6) If:
(a)a person has ceased to be, or is not, qualified for a concession card because of subsection (5); and
(b)the Secretary is satisfied that it is no longer reasonable for that subsection to apply to the person in relation to the requirement in the notice given to the person under subsection 63(2);
the Secretary may determine that, on and after a day specified by the Secretary, subsection (5) ceases to apply to the person in relation to that requirement.
EVIDENCE
In VRSX’s 2010 tax return he declared non-primary production (‘NPP’) income from BFT of $5,357 with NPP expenses of $3,700 for a motor vehicle totals transfer.
VRSX in a Centrelink Private Company Form (Mod PC), signed and dated 15 June 2012, declared:
(i)at question 7; an interest in a private company referred here as ‘BH’.
(ii)at question 16; the trading name of the business was BH and the type of business was cleaning.
(iii)at question 17; that it was currently trading.
(iv)at question 18; it was incorporated as a company on 16 June 2008.
(v)at question 20; he was a director.
(vi)he attached to the form BB & Cleaning’s income statement for year ended 2010; BB & Cleaning’s statement of financial position as at June 2010; a signed director’s declaration dated 20 May 2011 and BB & Cleaning’s compilation report.
VRSX in a Centrelink Private Trust form (MOD PT), signed and dated 11 July 2012, declared:
(i)at question 7; an interest in a private trust named BFT.
(ii)at question 13; he was a company director.
(iii)at question 15; the trust was trading as BH and the type of business was cleaning industry.
(iv)At question 18; the trust was set up after 7:30pm AEST on 9 May 2000.
(v)At question 22; he was trustee.
(vi)At question 37; he had the power to control the trustee’s actions.
(vii)At question 39; he had the power to exercise control independently over the trust.
(viii)he attached to the form the BFT’s income statement for year ended 2010; BFT’s statement of financial position as at June 2010; a signed director’s declaration dated 20 May 2011, BFT’s trust tax return summary and a profit and loss statement for the year ended 30 June 2010 where he is recorded as a beneficiary of $53,571.
VRSX in a Centrelink claim for a Health Care Card, signed and dated 15 June 2012, declared:
(i)At question 50; that he was or had been involved in a private trust.
(ii)At question 52; that he was or had been a director of a private company.
VRSX in a Centrelink customer declaration form for Newstart Allowance, signed and dated 6 August 2012, declared:
(i)Under ‘Trust and Companies’ an interest in BFT, owned by him, with a NPP asset value of $5,510 and an interest in BB & Cleaning, owned by him, with a NPP asset value of $12.
VRSX in an online application for Austudy completed on 17 June 2019 declared the following information:
Businesses:I am not involved in any type of business inside Australia
Private trusts: I am not involved in a private trust
Special disability trusts: I am not involved in a Special Disability Trust
Private companies: I am not a director, shareholder or otherwise involved in a private company
VRSX in an online application for Austudy completed on 16 April 2020 declared the following information:
Businesses:A and I are not involved in any type of business inside Australia
Private trusts: A and I are not involved in a private trust
Special disability trusts: A and I are not involved in a Special Disability Trust
Private companies: A and I are not directors, shareholders or otherwise involved in a private company
Real Estate:A and/or I do not own any real estate apart from the home we live in
VRSX on 28 February 2022 submitted a claim for JSP where the form advises:
We have reused most of the information you have provided previously to make your claim easier to complete. When reviewing your information you are declaring:
I understand that I must provide true and accurate information about my current circumstances.
I understand the information that is presented to me is what Centrelink has on my record.
I will update or add details about my circumstances that are no longer accurate.
The form included the following information:
Private Trusts
Private Trust involvement details
I am involved in BFT
I am involved in BB & CLEANING PTY LTD
Private Companies
Private Company involvement details
I am not a director, shareholder or otherwise involved in a private company
Special Disability Trusts
I am not involved in a Special Disability Trust
VRSX on 12 September 2022 submitted a claim for JSP where the form advises:
We have reused most of the information you have provided previously to make your claim easier to complete. When reviewing your information you are declaring:
I understand that I must provide true and accurate information about my current circumstances.
I understand the information that is presented to me is what Centrelink has on my record.
I will update or add details about my circumstances that are no longer accurate.
The form included the following information:
Private Trusts
Private Trust involvement details
I am involved in BFT
I am involved in BB & CLEANING PTY LTD
Private Companies
Private Company involvement details
A and I are not directors, shareholders or otherwise involved in a private company
Special Disability Trusts
A and I are not involved in a Special Disability Trust
A Company Summary extracted from the Australian Securities and Investment Commission (‘ASIC’) on 20 September 2022:
Name: BB & CLEANING PTY LTD
ACN: xxxx
Registration Date: 16/06/2008
Next Review Date: 16/06/2013
Status: Deregistered
Date Deregistered: 16/02/2013
Type: Australian Proprietary Company, Limited By Shares
Locality of Registered Office:
Regulator: Australian Securities & Investments Commission
In response to the Tribunal’s direction that the Respondent provide a payment history of benefits VRSX has received from Centrelink since 2012, they provided the following summary:
Benefit type Date of Claim/Claim start date Status of claim Reason Newstart Allowance 12 June 2012 Cancelled
1 April 2014
Cancelled as earnings were not reported Newstart Allowance 22 May 2017 Rejected Failed to provide documents Disability Support Pension 9 February 2018 Rejected Manifestly ineligible Austudy 25 April 2019 Rejected Not considered a student for the purposes of receiving Austudy Austudy 16 April 2020 Cancelled on
26 February 2022
No longer considered a student for the purposes of receiving Austudy Jobseeker Payment 28 February 2022 Rejected Failed to provide documents Jobseeker Payment 12 September 2022 Rejected Failed to provide documents Jobseeker Payment 9 March 2023 Rejected Failed to provide documents
In response to the Tribunal’s direction that VRSX provide documentary evidence that he has never received a benefit from the BFT or any other trust entity, he submitted a statutory declaration dated 17 February 2024 in which he declared:
I confirm that I have never received funds from the BFT. Additionally, I assert that I have not received any funds from any other trust entity. I believe that the statements in this declaration are true in every particular, and I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, the punishment for which is imprisonment for a term of 4 years.
CONTENTIONS
VRSX
VRSX contended he diligently submitted all required documentation along with his application for JSP.
VRSX contended despite meeting the eligibility criteria, he was unfairly refused the JSP on 13 March 2022.
VRSX submitted as a consequence, he had no income support payments from 28 February 2022 to 16 November 2022 and again from 14 January 2023 to 19 March 2023.
VRSX submitted the central issue at hand pertains to the inequitable denial of his claim for JSP despite meeting the eligibility criteria. VRSX submitted this refusal has led to a denial of financial support during a period of unemployment, a right safeguarded by law and considered an absolutely inalienable entitlement. VRSX submitted his financial stability was compromised due to Centrelink’s unfair refusal.
VRSX submitted the denial of the JSP was unjust and unreasonable, given that the requested information was not within his control or ability to obtain. VRSX submitted he remained eligible for JSP throughout the entire period and was unjustly denied financial support.
VRSX contended he fulfilled all the eligibility requirements for JSP as outlined by the relevant legislation.
VRSX contended that the denial resulted in financial hardship during a critical period when support was most crucial.
VRSX contended the contradictory standards and legal validity of the grounds mentioned for the rejection is a legal question, determining whether they were reasonable or not. VRSX submitted this was particularly noteworthy considering that Centrelink had deemed the ASIC records, demonstrating the deregistration of BB & Cleaning, acceptable as supporting evidence, while a parallel record for the BFT, despite being cancelled in 2011, was not acknowledged.
VRSX’s evidence to the Tribunal was that:
·it was beyond his control to get information in respect of the BFT;
·he continues to dispute he was a director of BFT;
·that he had been in partnership with his cousin in respect of the cleaning business but had no part in setting up the family trust and had never received a benefit from the trust;
·that he did not recall signing that he was a director of the family trust and disputed it was his signature on the documents supplied to Centrelink;
·he was not in contact with his cousin and could not get the relevant information about the family trust from him;
·he had sent Centrelink a screenshot which advised that BFT had been deregistered but they had not accepted this as evidence he was not receiving payment from the family trust;
·his JSP claim form was auto-filled with the information about the family trust and the system did not allow him to untick the box although he had tried, as he has no involvement in the BFT;
·he did not recall completing the Centrelink Private Company Form (MOD PC) and MOD Private Trust form in 2012 but he needed financial help then as he was unemployed, and he probably just completed the forms supplied by Centrelink;
·that since 2012 he has continually declared he is not a director of any entity;
·that he had previously received Austudy so he should be entitled to JSP payments as the same information about his income and assets had been supplied to Centrelink;
·an ATO assessment office had advised that BFT had been deregistered and Centrelink should be able to access the required information from the ATO;
·he had never received any income from the trust and had successfully litigated against the ATO, where it was determined in his favour that he never received the $53,571 from the BFT.
VRSX contended Centrelink’s refusal of his JSP claim appears to be an oversight or error in the assessment process.
VRSX contended he was eligible for JSP for the duration of unemployment, from 28 February 2022 to 16 November 2022 and 14 January 2023 to 19 March 2023, attributable to the unfair refusal.
VRSX contended Centrelink should acknowledge the financial impact caused by the unjust refusal of his JSP and seeks a fair resolution.
Respondent
The Respondent contended that JSP was not payable to VRSX as he did not comply with the reasonable requirements as notified by the Centrelink under section 63(2) and (4) of the Administration Act and did not have a reasonable excuse for not complying with the requirements in Centrelink’s notice.
The Respondent contended Centrelink was correct in rejecting VRSX’s JSP claim because:
·when VRSX lodged his claim for JSP on 28 February 2022, he declared an interest in the BFT and BB & Cleaning which resulted in an online prompt (notice) for him to provide proof of deregistration of the BFT and proof of deregistration of BB & Cleaning in accordance with subsections 63(2) and 64(1) of the Administration Act;
·VRSX subsequently did not provide the deregistration documents and as he had not complied with Centrelink’s request, on 13 March 2022 Centrelink made a decision to reject his claim;
·the Secretary was not satisfied that VRSX had a reasonable excuse not to comply with Centrelink’s notice and requested further information on 28 February 2022; and
·Centrelink had insufficient information to calculate the rate of JSP for VRSX and a claim for JSP could not be granted.
The Respondent submitted the Federal Court and previous Tribunals have considered the various iterations of sections 63 and 64 of the Administration Act in a number of matters. In Shiel v Department of Social Security [1999] FCA 1237 (‘Shiel’), the Federal Court considered the equivalent provisions of sections 63 and 64 (as it was then) and stated the following regarding the requirement to obtain information:
39. First, it is apparent from the context in which par 1304(1)(c) of the Act appeared that the Parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits ("the first situation").
40. The context to which I have referred in the preceding paragraph included the circumstance that, under subs 1304(1) of the Act, the Secretary might require information and documents relevant, not only to the question of the rate of social security payment under the Act that was or had been applicable to a person, but also to the questions of whether a person who had made a claim for a social security payment under the Act was or had been qualified for that payment and of whether such payment was or had been payable to a person who was or had been receiving it.
In Adkins and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 817, Deputy-President Nicholson considered the reasonableness of applying section 64(1) and decided:
45. The sixth contention is that the questions asked in the sub-categories are onerous. Counsel for the Respondent recognised that as the case. However, as best estimates were open to be given, that should not inhibit the giving of responses. The seeking of the information being within power, it does not lie with the Applicant’s parents to decide whether or not they wish to respond to the information sought.
46. The factor which is decisively against the Applicant’s contentions is that section 63(4)(f) of the Administration Act makes it clear that the payment claimed is not payable where a notice under section 63(2) containing reasonable requirements has been given and not complied with by the Applicant.
47. In the context of the statutory provisions referred to above, I do not consider it is open for it to be found that the requirements of the notice were unreasonable. Questions 9–14 relate to family spending. Question 9 addresses accommodation. Question 10 and 11 relate to transport costs. Question 12 relates to education costs. Question 13 concerns general living expenses. Question 14 applies to less obvious forms of spending. Questions 15 to 18 deal with savings. Question 25 relates to the family’s benefit receipts. While much of the information sought in this latter question is already held by Centrelink, the form refers also to benefits from other agencies such as the Department of Veterans’ Affairs. While the scope of inquiry in the FAMT form may arguably be approached in a more constrained way, that does not make the requirements of the notice unreasonable. Given the complexity of Module G for which purpose the form is seeking information, the information sought is not unreasonable.
Similarly, in Ibarcena and Department of Family and Community Services [2000] AATA 1141 (‘Ibarcena’), the Tribunal stated:
18. On the face of the information available to the Respondent Department the Tribunal finds that the Respondent was justified in its conclusions. The Applicant was in receipt of income other than his pension entitlements. The Respondent had also received information from ACC Technologies Pty Limited that the Applicant had been employed by them on a casual basis from 14 January 1998 until 9 March 1998 together with details of the income earned during that period.
19. It is noted that the provisions of section 63(5) of the Social Security Administration Act provide that failure to comply with a reasonable request for information may effectively result in cancellation of the Newstart Allowance.
20. Once of the functions of the Respondent Department is to ensure the appropriate allocation of public monies, that is to those most in need and who meet the legislative provisions for qualification. In order to perform this function the Department needs relevant information upon which to make a decision for eligibility and then determine a rate of pension. This necessarily requires that a Department have access to details of income. The Tribunal accepts that access to the Applicant's taxation return would be a most relevant source of information. The Tribunal does not accept that a request for a copy of such documentation is intrusive or unreasonable, nor would it be likely to disclose irrelevant personal information.
In Rapoff and Secretary, Department of Social Services [2014] AATA 676, the Tribunal confirmed the above approach and found:
Mrs Rapoff did not have a “reasonable excuse” for not complying with the requirement. Mrs Rapoff advised Centrelink on 19 December 2013 that her reason for not providing all of the information requested in the 16 December 2013 Letter was because her husband is blind and he would not complete any details regarding his income and assets on her age pension claim form. Mr Rapoff said that Mrs Rapoff’s age pension claim has nothing to do with him. Mrs Rapoff subsequently advised Centrelink, on 9 January 2014, that her reason for not providing all of the information requested in the 16 December 2013 Letter was that she was unable to complete the partner details in her age pension claim form due to the fact that her husband is blind and, in any event, her husband’s assets are not assessable. Before the SSAT, Mrs Rapoff’s given reason for not providing the information requested by Centrelink was that it is unfair that her husband’s income and assets are taken into account in relation to her age pension when they were disregarded in relation to his pension. In her application to this Tribunal, Mrs Rapoff stated that “The assets are in my husband’s name. So I cannot provide his details under the Privacy Act”. At the hearing, Mrs Rapoff told the Tribunal that she had repeatedly asked her husband to provide her with information about his income and assets, in support of her claim for age pension, but that he consistently refused. The Tribunal acknowledges that Mrs Rapoff’s husband’s refusal to provide her with the necessary information about his income and assets in support of her claim for age pension puts her in an unfortunate and difficult situation. Nonetheless, none of the reasons given by Mrs Rapoff for her non-compliance with Centrelink’s request for information concerning her husband’s income and assets constitute “reasonable excuses” for the purposes of s 64(1)(e) of the Administration Act ; and it is reasonable for s 64(1) of the Administration Act to apply to Mrs Rapoff in the circumstances.
It follows that Centrelink made the correct decision to reject Mrs Rapoff’s claim for age pension on the ground that she failed to provide the information requested by Centrelink by the specified date.
The Respondent submitted the recent decision of Atwell and Secretary, Department of Social Services (Social services second review) [2023] AATA 3851 (‘Atwell’) relevant in which Member Burke considered that at all times the fundamentals of Australia’s social security system must be remembered, with reference to the Social Security Guide, being that:
Australia has an income support system that is designed to be a safety net for people unable to support themselves without calling on the resources of the community. The income and assets tests are used to target the system so that it remains sustainable and affordable for Australian taxpayers. The tests help ensure that the funds available for social security expenditure are direct to those in the community most in need.
Further Member Burke considered that the Applicant did not merely need to be unemployed, he had to demonstrate he was in need of support, and in order to determine this eligibility Centrelink was required to calculate his income and assets by the application of prescribed tests.
The Respondent submitted that VRSX’s claim was correctly rejected for the following reasons:
·The Secretary notified VRSX that he was required to give information regarding his financial circumstances and involvement with trusts and companies under paragraphs 63(2)(d) and 63(4)(a) of the Administration Act as part of the online claim process. Paragraph 63(2)(d) of the Administration Act applies as:
The Applicant was claiming a ‘social security payment’. Section 23 of the Social Security Act 1991 (the Act) provides that a ‘social security payment’ includes a ‘social security benefit’. The Applicant’s claim is a ‘social security benefit’ as this includes JSP.
·Centrelink validly issued requests for this information during the online claim process under paragraphs 63(2)(d) and 63(4)(a) of the Administration Act in that:
The online claim process specifically detailed the information that VRSX was required to provide to Centrelink.
·The online claim process alerted VRSX to the required documents, which the Respondent contends is a valid notice under subsection 63(5) of the Administration Act in that the Secretary may notify a person who has applied for a social security benefit that they are required to provide information to the Secretary either by prepaid post addressed to the person or in any other way the Secretary considers appropriate (subsection 63(5)(b) Administration Act).
·To date, VRSX has still not provided the information requested by Centrelink, noting that an additional letter was sent on 20 September 2022 requesting this information.
The Respondent submitted that details of the BFT were pre-populated on VRSX’s JSP claim based on information he had previously provided to Centrelink.
The Respondent submitted that on the form, VRSX had the option to indicate that there were significant changes and that the trusts had vested or wound up. The Respondent submitted that VRSX had answered “yes” to the questions regarding whether there had been significant changes and whether the trust had vested or wound up.
The Respondent submitted regardless of whether the information was pre-populated or not, VRSX has subsequently indicated his involvement in the BFT and BB & Cleaning had ceased, and he was then prompted to provide proof of deregistration of the BFT and BB & Cleaning, respectively.
Subsequently the Respondent contended it was not possible for BFT and BB & Cleaning to be excluded from VRSX’s information until the relevant deregistration documents were provided. As a result, subsection 64(1) of the Administration Act applied such that VRSX’s JSP claim was not payable as:
(a)Centrelink validly required information under subsection 63(2) of the Administration Act as:
(i)The requirement to provide the requested information about BFT and BB & Cleaning were reasonable requests. The benefit rate calculator B and Module G of the Social Security Act require VRSX’s ordinary income be taken into account in calculating his entitlement for JSP and ordinary income is defined as income from all sources received by VRSX. Without this information, it is not possible for Centrelink to determine the correct rate/entitlement of JSP.
(ii)As discussed in matters such as Shiel, Ibarcena and Atwell above, one of the functions of Centrelink is to ensure the appropriate allocation of public monies and one of the ways Centrelink carries out this function is by requiring VRSX to provide the relevant information to determine his qualification and rate of JSP. It is not for VRSX to decide not to provide the required information, or to pick and choose the information to provide, or to direct Centrelink to obtain it elsewhere.
(iii)VRSX failed to provide the information requested both as part of the initial online claim request for information on 28 February 2022, or in response to a subsequent letter sent on 20 September 2022.
(iv)VRSX did not have a reasonable excuse for non-compliance with Centrelink’s request for information issued on 28 February 2022 as part of the online claim and 20 September 2022 and was prompted to provide the requested information.
(v)VRSX has been able to respond to Centrelink’s requests for documents by providing limited documents (specifically the ASIC deregistration information) thereby demonstrating his capability to comply with requirements under section 63 of the Administration Act.
The Respondent submitted that from the oral submissions made by VRSX at the initial hearing:
·The Respondent understands VRSX’s position is that he has previously received a social security benefit whilst Centrelink were aware that he was involved in a family trust. The Respondent conceded that VRSX did receive an Austudy payment, however, submits that VRSX did not declare an interest in the family trust or BB & Cleaning as part of this application.
·The Respondent understands VRSX’s position is that he was unable to remove the reference to the BFT and BB & Cleaning from his online submission as it was pre-populated. The Respondent contended that it was open to the Secretary to request the additional information in accordance with section 63 of the Administration Act, regardless of whether VRSX was able to untick a box declaring his interest in the family trust, as the online claim form clearly states it was VRSX’s responsibility to update or add details about his circumstances that are no longer accurate.
·The Respondent understands VRSX’s position is that he was unable to contact Centrelink to alert them to the change. The Respondent contended that there are numerous channels in which VRSX could have provided the relevant information to Centrelink, including MyGov, or by visiting a Centrelink office.
The Respondent contended that VRSX failed to provide the requested information and therefore Centrelink could not assess his entitlement to the JSP and the rejection of his claim was correct.
CONSIDERATION
At all times the fundamentals of Australia’s social security system must be remembered; the Social Security Guide states: Australia has an income support system that is designed to be a safety net for people unable to support themselves without calling on the resources of the community. The income and assets tests are used to target the system so that it remains sustainable and affordable for Australian taxpayers. The tests help ensure that the funds available for social security expenditure are directed to those in the community most in need. The tests are kept under review to ensure that they are meeting the requirements of the community for well-targeted income support.
The JSP is an income support payment for people who are currently without work but who have the capacity to work now or in the future. As with all social security payments, it is granted on the premise that an individual is unable to support themselves via any other means. Social security payments are granted on the basis of eligibility and payability, while an individual may be eligible for a payment, as in VRSX’s case he was eligible as he was unemployed and had capacity for work, he may still not be entitled to JSP if his assets and income exceed the value limit as prescribed in the Social Security Act.
To be eligible for JSP, VRSX did not merely need to be unemployed, he had to demonstrate he was in need of support. To determine VRSX’s eligibility, Centrelink was required to calculate his income and assets by the application of prescribed tests.
The Tribunal standing in the shoes of the decision-maker must assess if VRSX’s income and assets are under the value limit set in the legislation to determine his rate of JSP. The Tribunal based upon the evidence before it could not determine if VRSX’s income and assets were under the value limit. Whilst VRSX has asserted BFT has been deregistered there was no corroborating evidence before the Tribunal to verify this claim. VRSX’s evidence to the Tribunal had been that he had provided a screenshot of the deregistration of the family trust, but this was not before the Tribunal.
Whilst the Tribunal does not dispute VRSX’s oral evidence that BFT has been deregistered this does not provide enough information on which to base an assessment of his earnings, if any, from the family trust. VRSX was asked to provide evidence that BFT had been vested, its last balance sheet, vestment deed and the final resolution detailing who received income and capital of the family trust. As VRSX did not provide this information it was not possible for Centrelink nor the Tribunal to determine his correct entitlement to JSP. The Tribunal found that whilst VRSX was eligible for JSP payment as he was unemployed at the time of his application, he was not entitled to the payment as he had not provided all reasonable requested information.
The Tribunal notes Centrelink is bound by legislation to determine an individual’s true resources and notes by way of illustration Part 3.18 of the Social Security Act which has been enacted to deal with the attribution to an individual’s income and assets which form part of a private company or private trust. As numerous other decision-makers have observed, Parliament took a robust and practical approach when it enacted Part 3.18: in the matter of Hoefl and Secretary, Dept of Social Services (Social services second review) [2022] AATA 2130, the Member stated:
It was designed to minimise the potential operation of legal fictions that often underpin trust and company law and shine a bright light on the reality of what underlies the corporate and trust governance before a decision-maker. In short, when determining if an individual(s) who has (have) had the great advantage of being a beneficiary of complicated company and trust structures, which most persons do not, the task of a decision-maker is to go beyond the legal forms, and to make a determination on what appears, from the evidence, to be the reality of the operation and control of the relevant entities.
In Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010, Perry J observed:
Part 3.18 was inserted…so as to ensure that social security customers who held their assets in private companies or private trusts received comparable treatment under the means test to those customers who held their assets directly.
In her determination, Her Honour also referred to the Second Reading Speech to the Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testings) Bill 2000 (which inserted Part 3.18), which explained:
Under current social security and veterans’ affairs legislation, assets held in private trusts and private companies generally cannot be assessed under the social security means test. This means that individuals can use private trusts or private companies to hold and control assets outside the bounds of the current means test.
People who arrange their affairs this way are therefore often treated more favourably under the means test than a person holding similar levels of assets directly. Thus well-off or even quite wealthy people can receive income support payments.
This isn’t how the community expects the income support system to operate. It is also at odds with the principle that people with similar levels of private resources should receive similar levels of payment. This measure is about providing a level playing field for all social security customers, no matter how they choose to hold their assets or income.
In Secretary, Department of Family and Community Services and Cocks [2002] AATA 1179, the Tribunal provided the following background to the new social security attribution regime:
The Social Security and Veterans’ Entitlements Legislation Amendment (Private Trust & Private Companies — Integrity of Means Testing) Act 2000 (Cth) (the Amending Act) represents a significant policy change by the Federal Government regarding the assets and income of welfare recipients. By attributing assets and income to persons who benefit from trusts and companies, it is the stated intention of government that ‘income support entitlements are based on a persons level of resources not on the way in which he/she holds those resources.
The Tribunal finds VRSX was required to provide the information requested by Centrelink in accordance with section 63 of the Administration Act to assess his personal level of resources to determine if he was eligible to receive JSP. The Tribunal finds it was not unreasonable to request him to provide information about BFT to determine his eligibility for JSP.
The Tribunal finds VRSX did not comply with the requirements of section 63 of the Administration Act to provide information as requested on 28 February 2022 as part of the online claim and in a subsequent request from Centrelink dated 20 September 2022.
As the Tribunal has found VRSX has not complied with a reasonable request to provide information, it next needs to explore if VRSX had a reasonable excuse for not complying with the requirement.
VRSX provided numerous excuses to the Tribunal for his inability to comply with Centrelink’s request to provide the reasonable requested information in regards of the BFT:
·That he was never involved in the family trust;
·That he never received any benefits from the trust;
·That he was never a director of the family trust and disputed that he ever signed any documents indicating he was a director;
·That his JSP claim form was pre-populated with the information in respect of the BFT and he could not remove it from his application;
·As he had been granted Austudy payments, Centrelink was able to assess his income and assets, as he had at all times provided the relevant information on which to assess his rate of payment;
·That he had a successful settlement with the ATO which removed any income from his taxable income as being derived from BFT;
·That his cousin holds all the information about BFT and he is no longer in contact with him so was unable to access any of the documentation in respect of the family trust.
On the evidence before it the Tribunal found that VRSX in 2012 had originally supplied Centrelink and the ATO with information that he was a director and beneficiary of the BFT. The Tribunal could not reconcile VRSX’s claim he was not a director or beneficiary of the family trust with his actions of supplying documentation demonstrating he was in previous Centrelink claims. The Tribunal notes the claim forms submitted in 2012 were submitted via paper-based forms which VRSX has himself completed by hand with no pre-populated information and to which he has attached numerous documents in respect of the BFT.
The Tribunal noted on VRSX’s MOD Private Trust form, signed and dated 11 July 2012 he declares he is a director of a trust that is trading as a cleaning company, and he had power to independently exercise control over the trust. On the evidence before it the Tribunal was not persuaded that VRSX was not a director nor that he had never received a benefit from the trust.
On the evidence before it the Tribunal was not persuaded VRSX was unable to produce the information about the distribution of the BFT’s income when it was deregistered, as a director of the Trust it was his duty to produce and maintain such information. The Tribunal found it was reasonable for VRSX to provide information about any and all income he received from the BFT.
On the evidence before it the Tribunal found VRSX’s previous receipt of Austudy was not indicative of his entitlement to receive JSP on 28 February 2022 as Centrelink had assessed his eligibility and payability of his Austudy on his application in April 2020 where he declared he had no involvement in a business, private trust and was not a director of a private company.
The Tribunal on the evidence can only conclude Centrelink’s systems failed to match VRSX’s previously provided information in respect of his involvement in BFT and BB & Cleaning with his Austudy application. The Tribunal finds VRSX’s previous receipt of a benefit is not a reasonable excuse to not provide the reasonable requested information.
On the evidence before it, the Tribunal found that VRSX had not been able to remove the pre-populated information on his JSP application. However, it was VRSX’s responsibility to update or add details about his circumstances that were no longer accurate. The Tribunal notes VRSX indicated on the form his circumstances had changed. Regardless of the inability for VRSX to remove reference to BFT and BB & Cleaning on his JSP application the Tribunal found it was still incumbent on VRSX to provide all relevant information to Centrelink to assess his rate of JSP.
The Tribunal provided VRSX with an opportunity to submit any corroborating evidence at the conclusion of the hearing to substantiate his numerous claims. Given VRSX’s numerous claims of action he had taken against the ATO and in other forums to establish he was not a director of the BFT, the Tribunal considered he would have paperwork to that effect. VRSX has submitted a statutory declaration to the Tribunal which again attests he never received any funds from the BFT. The Tribunal does not consider this evidence sufficient to be satisfied he had a reasonable excuse for not complying with the requirement to provide reasonable information.
The Tribunal found VRSX was not entitled to JSP as Centrelink could not assess his eligibility due to his failure to provide reasonable information.
DECISION
The decision under review is affirmed.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO Member
............................[sgd]............................................
Associate
Dated: 18 March 2024
Date(s) of hearing: 18 January 2024 Date final submissions received: 14 March 2024 Applicant: Self-Represented Advocate for the Respondent: Ms Kathryn Lieschke Solicitors for the Respondent: Services Australia
0
8
0