Walsh and Secretary, Department of Family and Community Services

[2003] AATA 817

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 817

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/210

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEPHEN WALSH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date20 August 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - Newstart Allowance - activity test breach - failure to notify - income considered - penalty - non-payment period - reasonable excuse.

Legislation

Social Security Act 1991 – ss630A, 630AA and 630B
Social Security (Administration) Act 1999

Authorities

Re Shelmerdine and Secretary, Department of Family and Community Services (11 February 2000) AATA 91
Re Difford and Secretary, Department of Family and Community Services (12 December 2000) AATA 1089
Re Nielsen and Secretary, Department of Family and Community Services (16 September 2002) AATA 807

REASONS FOR DECISION

20 August 2003 Associate Professor B W Davis AM (Part-time Member)   

The Application

1.      The applicant Stephen Walsh seeks review of a decision made by the Social Security Appeals Tribunal (SSAT) on 10 September 2002, affirming a decision made by a delegate of Centrelink on 4 June 2002, that the applicant had committed an activity test breach and since this was the third breach in two years, an eight week non-payment period should apply.

The Issue

2.      The issue is whether the applicant failed to satisfy activity test requirements, without a reasonable excuse, and if so whether an eight week non-payment period was appropriately applied.

Background

3.      Mr Walsh has been in receipt of Newstart Allowance since at least May 1988 and has had various casual jobs, including work for Simplot Pty Ltd and Petuna Seafoods.

4.      On 27 May 2002 Centrelink received a form from Petuna Seafoods indicating Mr Walsh had been employed there from 8 June 2000 to 8 July 2001.   Attached was a list of wages paid to Mr Walsh during periods beginning 28 January 2001 and 8 July 2001.

5.      A comparison of these figures with the SU19 forms supplied by Mr Walsh to Centrelink showed that a figure of $1,620 had been declared, compared with the employer’s recorded earnings of $3,598.   Centrelink therefore decided to apply an eight week non-payment period to Mr Walsh, as it was his third recorded breach of Newstart Allowance activity test within two years.

6. The original decision-maker affirmed that decision on 12 June 2002 and it was again affirmed by an authorised review officer (ARO) on 26 June 2002, relying upon s630AA of the Social Security Act 1991.    Mr Walsh then lodged an appeal with the Social Security Appeals Tribunal (SSAT) on 2 July 2002.   Following a hearing conducted in Launceston on 10 September 2002, the Tribunal decided to affirm the decision under review, i.e. his appeal was unsuccessful.

7.      Mr Walsh then lodged an application for review by the Administrative Appeals Tribunal on 24 September 2002.

Legislation

8. Section 630AA of the Act provides that where a person knowingly or recklessly provides incorrect information regarding their income, then Newstart Allowance is not payable.

9. S630AA(2)(b) provides that if the failure or the provision of information is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the failure or the provision of information, an activity test non-payment period applies to the person.

10.     Section 630A provides that if an activity test non-payment period applies to a person under this part of the Act, the period applicable is 8 weeks.

The  SSAT Decision

11.     At the SSAT hearing conducted in Launceston on 10 September 2002, Mr Walsh’s advocate, Mr John Crookes, stated the basis of the appeal was the hardship his client would suffer if an 8 week non-payment period was imposed.    Although Mr Walsh had supplied incorrect earnings figures to Centrelink there had not been fraudulent intent, he was undergoing severe financial difficulties and hence personal stress.

12.     Mr Walsh outlined his financial situation, including repayments to Centrelink.   He did not dispute he had acted recklessly in supplying incorrect information, but argued imposition of the breach would ruin present attempts to restabilise his life.

13.     The SSAT while sympathising with Mr Walsh’s plight and recognising that a plethora of papers might confuse individuals at times, considered that he had acted inappropriately in supplying incorrect figures and had admitted to this offence.   The SSAT decided on the basis of evidence before it the original decision should be affirmed, there being no legal provisions available to the Tribunal to waive a third breach because of hardship.

Facts and Contentions

14.     In a statement filed with the AAT prior to its hearing, counsel for the respondent (DFCS) requested the Tribunal to affirm the decision under review, on grounds the applicant had clearly failed to meet provisions of the Act and without reasonable excuse, provided false information on income from remunerative work.

The AAT Hearing 

15.     The AAT hearing was conducted at Devonport on 24 July 2003.   The applicant appeared on his own behalf and counsel for the respondent (DFCS) was Mr Justin Kearney.

16.     Mr Walsh was sworn and gave evidence about earnings and his difficult financial situation.   He was paying some money owing to Centrelink, had been forced to declare himself bankrupt and was worried a non-payment period would add further stress at a time he had been waiting a housing allocation for a year.   He accepted that the record showed discrepancies in stated earnings, but had sometimes used rounded figures, although there was no fraudulent intent.   It was the stress of financial plight that had induced him to act as he did.

17. Counsel for the respondent argued that Mr Walsh should have learnt from earlier mistakes. He had admitted guilt and was now paying back some money to Centrelink, nonetheless there had been several breaches and they were substantial. It was clear Mr Walsh had breached s630AA(1) of the Act by providing false data without a reasonable excuse. It was the third activity breach under s630AA(2) and the penalty which should be imposed was 8 weeks, in accordance with s630A.

Analysis

18.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, taking into account statutory provisions and any relevant case authorities and determinations.

19.     Having examined all evidence before it, the Tribunal makes a finding of fact that Mr Walsh has been in receipt of Newstart Allowance since at least May 1998 and during this period at least three activity test breaches have occurred.   The first was on 7 September 2000, the second on 23 March 2001 and the third on 30 May 2002, in respect of two over-payments of $1,216.39 and $133.43.   The Tribunal notes that Mr Walsh has queried some minor aspects of the earnings record, nonetheless he has openly admitted guilt in supplying incorrect figures and recognises that activity test breaches had occurred.

20.     Provisions of the Act are clear on such matters, the relevant sections being 630AA(1) and (2)(b), as well as s630A.   While the Tribunal does recognise Mr Walsh’s financial plight, it does not consider that the argument of financial hardship can be pursued to any extent under the legislation and the Tribunal is not in a position to waive the third breach because of hardship.

21.     The Tribunal has also examined some case authorities to see whether any prospect of reconsideration is feasible, but finds no support for Mr Walsh’s situation.    In Shelmerdine and Secretary, Department of Family and Community Services (2000) AATA 91, the Tribunal held that failing to supply correct information or exercise due care equated with reckless behaviour and therefore was a breach of the law. In Difford and Secretary, Department of Family and Community Services (2000) AATA 1089, the Tribunal found that delaying advising Centrelink of earnings received did not constitute a reasonable excuse. In Neilson and Secretary, Department of Family and community Services (2002) AATA 807 the issue was largely one of debt recovery, but the Tribunal held that there are no special circumstances which would permit a compensation payment to be disregarded by the parties.

22.     Having examined all evidence before it the Tribunal finds that the applicant failed to satisfy the activity test requirements and this being the third breach within a two year period, an eight week non-payment period was correctly applied.

23.     The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  24 July 2003
Date of Decision  20 August 2003
Counsel for the Applicant         Applicant appeared on own behalf
Counsel for the Respondent     Mr Justin Kearney          
Solicitor for the Respondent     Centrelink