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

This matter concerned an appeal by the Applicant against a decision by the Secretary, Department of Social Services, to raise and recover a debt of $76,929.40. The debt arose from an alleged overpayment of the age pension between 30 September 2011 and 5 January 2016, due to the Applicant's failure to declare regular monthly payments received from Newport Digital Technologies Australia Pty Ltd (NDTA). The Applicant had been in receipt of the age pension since February 2002 and had been advised on multiple occasions to report any changes to his income.

The primary legal issues before the Tribunal were whether the monthly payments received by the Applicant from NDTA constituted "income" for the purposes of the Social Security Act 1991 (Cth), and consequently, whether the Applicant had been overpaid his age pension. A secondary issue was whether there were any grounds to waive or remit the debt, pursuant to section 1237AAD of the Act, which requires the Secretary to be satisfied that the debt did not result from knowingly making a false statement or omission, and that special circumstances exist making waiver desirable.

The Tribunal considered the definition of "income" under the Act, which includes amounts derived or received for the person's own use or benefit. It noted that a shareholder agreement for NDTA stipulated that the Applicant and another individual would be responsible for the company's day-to-day activities, and that the companies providing their services would be paid $5,000 per month. The Tribunal found that these monthly payments were made on the basis of services provided by the Applicant, thus falling within the definition of income. The Applicant's contention that the payments were reimbursements for expenses and initial investment was not substantiated by his inability to provide details of his expenses or significant transactions when questioned. The Tribunal also found no grounds to waive or remit the debt, as the Applicant had failed to report the payments, and no special circumstances were established.

The Tribunal affirmed the decision under review, finding that the Applicant had been overpaid the age pension by $76,929.40 and that this amount constituted a debt due to the Commonwealth for which he was liable. No grounds were found to write off or waive this debt.