Ward and Secretary, Department of Social Services (Social services second review)

[2018] AATA 470

Ward and Secretary, Department of Social Services (Social services second review) [2018] AATA 470 (13 March 2018)

Division:GENERAL DIVISION

File Number:           2017/6474

Re:Nathan Ward

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 March 2018

Place:Sydney

The decision under review is affirmed.

.......................[sgd].................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – age pension – suspension of age pension – failure to meet requirement of notice to provide information – whether the Respondent validly issued a notice to provide information – whether the requirement was reasonable – whether the Applicant had a reasonable excuse for not complying with the notice – whether age pension correctly suspended – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 1064

Social Security (Administration) Act 1999 (Cth), ss 63, 64

REASONS FOR DECISION

Dr L Bygrave, Member

13 March 2018

INTRODUCTION

1. The applicant, Mr Nathan Ward, has been in receipt of age pension since 18 August 2008.

2. On 11 April 2017, the Department of Human Services (the Department) wrote to Mr Ward to advise that his age pension has been suspended because he did not reply to a letter sent to him by Centrelink. An authorised review officer of the Department affirmed this decision on 26 June 2017.

3. Mr Ward subsequently applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 20 September 2017, the SSCSD affirmed the Department’s decision to suspend Mr Ward’s age pension.

4. On 30 October 2017, Mr Ward applied to the General Division of the Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 27 February 2018. Mr Ward attended the hearing in person and was self-represented.

   RELEVANT LEGISLATION AND ISSUES

6. The rate of age pension is calculated in accordance with section 1064 of the Social Security Act 1991 (Cth) (the Act) and is affected by a person’s circumstances including their income and assets.

7. Pursuant to section 63 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Department may require a person receiving a social security payment to provide information to allow a correct rate of payment.

8. Section 64 of the Administration Act provides that the relevant social security payment is not payable if a person fails to comply with a notice issued by the Department in accordance with subsections 63(2) or (4) of the Administration Act and the requirement in the notice is reasonable and the person did not have a reasonable excuse for not complying with the notice.

9. The issues for determination by the Tribunal are whether:

   ·the Department validly issued a notice to Mr Ward in accordance with subsections 63(2) or (4) of the Administration Act; and

   ·the requirement in the notice was reasonable; and

   ·Mr Ward had a reasonable excuse for not complying with the notice; and

   ·the Department correctly suspended Mr Ward’s age pension on 11 April 2017.

   EVIDENCE

10. On 1 March 2017, the Department sent Mr Ward a notice requesting information in accordance with section 63 of the Administration Act. The notice stated that Mr Ward’s Centrelink record had not been updated for a number of years and requested that he complete the enclosed Income and Assets form, a Mod R form in relation to all real estate owned fully or partially by him, and advise his current home address. Mr Ward subsequently completed and lodged these forms with the Department.

11. On 22 March 2017, the Department wrote to Mr Ward seeking further information under section 63 of the Administration Act. In particular, the Department requested that Mr Ward provide full tax returns and financial statements for the financial years 2013-2014 and 2014-2015 for Paciencia Pty Ltd and Tsar and Susan Pty Ltd.

12. At the Tribunal hearing, Mr Ward confirmed he received the notice from the Department dated 22 March 2017 but said that he did not have the information requested by the Department because he had sold his shares in these companies in 2016. He explained that he was the sole shareholder of Paciencia Pty Ltd and Tsar and Susan Pty Ltd until March 2016 after which time he remained the secretary and director of these companies.

13. Mr Ward wrote to the Department on 3 April 2017 advising that he had applied to the Freedom of Information (FOI) section of the Department seeking access to the documents requested by Centrelink on 22 March 2017.

14. On 23 May 2017, an authorised FOI review officer from the Department provided five documents in response to Mr Ward’s request. Mr Ward then provided these documents to the Department, noting in his letter on 30 May 2017 that:

    ·he was not capable of complying with the request for information issued by the Department on 22 March 2017; and

    ·the requirement of the request for information issued by the Department on 22 March 2017 was not reasonable.

15. The documents provided by Mr Ward to the Department on 23 May 2017 did not include the requested information for the 2013-2014 financial year.

16. The Department suspended Mr Ward’s age pension on 11 April 2017 because he did not provide the requested information.

    CONSIDERATION

    Did the Department validly issue a notice to Mr Ward in accordance with subsections 63(2) or (4) of the Administration Act?

17. The notice from the Department dated 22 March 2017 included the statement:

    Our authority to request this information

    Section 63 of the Social Security (Administration) Act 1999 allows the Secretary or a delegate to require any person to give information to customers receiving their correct entitlement. This is a notice under Section 63 of the Social Security (Administration) Act 1999.[1]

    [1] Exhibit T43, p 237.

18. The Tribunal is satisfied that the notice from the Department dated 22 March 2017 requesting Mr Ward provide full tax returns and financial statements for the financial years 2013-2014 and 2014-2015 for Paciencia Pty Ltd and Tsar and Susan Pty Ltd was in accordance with section 63 of the Administration Act.

    Was the requirement in the notice reasonable?

19. The Department provided Mr Ward until 5 April 2017 to comply with the notice dated 22 March 2017. The Tribunal finds that the Department’s request that Mr Ward provide this information was reasonable because the information requested by the Department:

    ·related to Mr Ward being the sole shareholder for Paciencia Pty Ltd and Tsar and Susan Pty Ltd;

    ·had potential implications in relation to his income and assets in the 2013-2014 financial year; and

    ·had potential implications for the rate of payment of his age pension.

    Did Mr Ward have a reasonable excuse for not complying with the notice?

20. Mr Ward told the Tribunal that he was unable to comply with the Department’s notice dated 22 March 2017 because he did not have access to the documents. He said that he declined to request the documents directly from Paciencia Pty Ltd and Tsar and Susan Pty Ltd because that he formed the view that requesting this information would be a breach of subsection 180(2) of the Corporations Act 2001 (Cth), which requires a director of a corporation who make a business judgement to not have a material personal interest in the subject matter of the judgement and to rationally believe that the judgement is in the best interests of the corporation.

21. I am not convinced by Mr Ward’s submission that requesting information from Paciencia Pty Ltd and Tsar and Susan Pty Ltd for the 2013-2014 financial year would breach his duties as a director in these companies. This is because the information requested by the Department related to a period of time in which he was the sole shareholder for these companies. Mr Ward did not provide any evidence to the Tribunal that he had sought this information from Paciencia Pty Ltd and Tsar and Susan Pty Ltd; he only filed a FOI request with the Department on 3 April 2017 to access documents already held by the Department.

22. I find the reasons provided by Mr Ward for not complying with the Department’s notice on 22 March 2017 do not constitute ‘a reasonable excuse’ for the purpose of paragraph 64(1)(e) of the Administration Act.

    CONCLUSION

23. As Mr Ward did not comply with the notice by the Department dated 22 March 2017 and issued in accordance with section 63 of the Administration Act, I find that the Department’s decision to suspend Mr Ward’s age pension from 11 April 2017 was correct.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[sgd]...........................................

Associate

Dated: 12 March 2018

Date of hearing:	27 February 2018
Date final submissions received:	27 February 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Sangha, Department of Human Services