Bennett and Secretary, Department of Family and Community Services [2000] AATA 949 (31 October 2000)

Last Updated: 10 November 2000

DECISION AND REASONS FOR DECISION [2000] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/979

GENERAL ADMINISTRATIVE DIVISION )

Re TONI BENNETT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 31 October 2000

Place Melbourne

Decision The decision under review is affirmed.

.........Sgd. Mr J. Handley........

Senior Member

CATCHWORDS

Social Security - Application for Newstart Allowance - applicant held Australia Post mail contract - whether 'unemployed' - decision affirmed.

REASONS FOR DECISION

31 October 2000 Mr J. Handley, Senior Member

1. The applicant applied to review a decision made by the Social Security Appeals Tribunal ("SSAT") on 28 July 2000.

2. The SSAT then decided to affirm a decision previously made by the respondent to reject a claim for Newstart Allowance lodged on 1 June 2000.

3. The hearing of the application was convened by telephone on 26 October. Ms Bennett was unrepresented. The respondent was represented by Mr Todd.

4. The circumstances of the application may be briefly summarised as follows-

5. Prior to the application for Newstart Allowance Ms Bennett was receiving Sole Parent Pension (SPP) from the respondent. This was because she had the care and custody of her daughter who had not achieved the age of 16 years.

6. Relevantly, Ms Bennett also held a mail contract with Australia Post to deliver mail in the Maffra District. She received monies under the contract, irrespective of the number of hours worked, to complete the mail delivery on a daily basis. Ms Bennett used her own motor vehicle and paid her own petrol and operating costs.

7. It appears that Ms Bennett continued to qualify for SPP because the monies payable to her under the Australia Post contract did not offend the income test provisions applicable to that benefit. That is to say, Ms Bennett was entitled to receive SPP and to be paid an income from Australia Post.

8. However, when the applicant's daughter achieved 16 years of age, Ms Bennett was no longer qualified to receive SPP. She then made an application for Newstart Allowance. Thereafter her difficulties with the respondent commenced, I believe because of either misunderstanding or poor communication.

9. Ms Bennett understood that she did not qualify for Newstart Allowance at the relevant time because of the failure to disclose certain information in a claim form. It then appears that she was of the understanding that benefit was rejected because whilst she did seek other work, it was only work which would be compatible with her Australia Post contract.

10. Having listened to Ms Bennett at the hearing and having had the assistance of Mr Todd, I am satisfied that at all relevant times Ms Bennett did not qualify for Newstart Allowance because she could not satisfy the provisions of s.593 of the Social Security Act. Sub-section (1)(a)(i) provides that a person throughout a relevant period must be "unemployed".

11. Ms Bennett could not be regarded as being "unemployed". If anything she would be regarded in law as being self employed.

12. I am obliged to find therefore as a matter of law that Ms Bennett could not, at the relevant time, qualify for Newstart Allowance.

13. The decision under review must be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

Carolyn Irons

Signed: Secretary

Date/s of Hearing 26 October 2000

Date of Decision 31 October 2000

Counsel for the Applicant unrepresented

Solicitor for the Applicant

Counsel for the Respondent Mr M. Todd, Departmental Representative