Bell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 349 (24 March 2010)

Last Updated: 12 May 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3910

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ROGER BELL

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Date 24 March 2010

Place Cairns

Decision

The Tribunal sets aside the decision of the SSAT with respect to age pension. The Tribunal decides in substitution that the Applicant was not qualified in the period under review to receive the age pension. The Tribunal affirms the decision under review with respect to special benefit.

......................[Sgd]........................
Senior Member

CATCHWORDS

SOCIAL SECURITY – written reasons for oral decision – rejection of application for age pension – rejection of application for special benefit – failure of assets and income test – Internet enterprises – matter should not be left open to further inquiry – SSAT decision with respect to age pension set aside – SSAT decision with respect to special benefit affirmed.

Social Security Act 1991 (Cth)

REASONS FOR DECISION

11 May 2010

Senior Member Bernard J McCabe

1. The Tribunal delivered oral reasons for its decision at the conclusion of the hearing on 24 March 2010. Mr Bell subsequently requested written reasons for that decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. These written reasons have been produced having regard to the transcript of the recording of the hearing.
2. Mr Bell applied for the age pension or, in the alternative, the special pension, on 16 January 2009. It was not the first application but nothing turns on that. There are other applications but they are not before me today. Mr Bell rightly pointed out at the commencement of the hearing that there are a number of criteria that have to be satisfied in order to get the pension, but a character test is not one of them. The fact he has been in trouble with the law in the past, or that he is a self-described scammer, does not disqualify him from receiving an age pension. Everyone is entitled to be judged according to the criteria set out in the legislation.
3. Centrelink cannot proceed on the basis that an individual is never able to satisfy them because they simply do not believe anything that individual says in the absence of corroboration or independent witnesses. Centrelink must assess each application on its merits in the knowledge that there are very serious consequences for an applicant who does not tell the truth in connection with their application.
4. Mr Bell made a number of statements about assets and income in connection with his application of 16 January. I accept in the past there have been a lot of questions that have arisen about the value of his assets in particular. There have also been some questions about income. It may be that Mr Bell has an imperfect understanding of what income is for the purposes of the Social Security Act 1991 (Cth) (“the Act”). That is not uncommon. People get confused between what the Tax Office, for example, regards as income and what the Act would regard as income. Under the Act it is a very broad definition to include money derived from almost any source.
5. Mr Bell made assertions about how much he was earning in connection with an application. We have seen evidence supplied most obviously by Mr Beswick but also the Paypal information suggesting that at the time of the application and in the period that followed it Mr Bell was actually making money out of various Internet enterprises. In 2008 it was a very substantial amount of money. In 2009 it was, according to Mr Beswick, at least $40,000. I am mindful of what Mr Bell said about Mr Beswick. Mr Beswick is not an accountant and, therefore, his conclusions about income must be treated with some care. But I also have to accept that Mr Bell acknowledged he is not good with money, and he did not keep careful records of what he spent and what he earned, so it is difficult to know how much was earned.
6. I also acknowledge Mr Bell pointed out that even though he might have made what on paper appear to be large amounts of money from some of these enterprises, he also incurred substantial expenses. Once again, I have no real idea what those expenses are. I find it hard to believe that all of the money that came in all went out on expenses. Mr Bell acknowledged he did live off his income to some extent and there was some evidence from Mr Beswick of fairly regular withdrawals of money in the hundreds of dollars, certainly, on a regular basis from ATMs.
7. If the figure was around $40,000, and that is the best estimate that I have heard, then it means Mr Bell is not eligible on the income test anyway. But I have no clear idea what he is earning. It is very difficult for me to reach a view that Mr Bell is entitled to this pension on the state of the evidence, particularly in relation to money that was clearly derived in uncertain amounts in 2009. So on that basis I have to say that I cannot be satisfied that Mr Bell is qualified. I do not accept that the appropriate thing to do, as the SSAT has done, is to leave the question open for further inquiry, because I think Mr Hamilton is right when he says Mr Bell is better off submitting another application. I understand that has been done. That application will have to be assessed on its merits and, presumably, unless something else comes out about what Mr Bell is earning now, that application will be assessed without reference to the confusing evidence of what was occurring in 2009. I would set aside that aspect of the SSAT decision and restore the decision of the original decision-maker.
8. The SSAT, in effect, said that special benefit is available if an applicant did not meet the criteria for one of the other benefits. However, special benefit is not intended to provide a “second bite of the cherry”. It is meant to provide cover for people who, perhaps for reasons beyond their control, do not fit within any of the recognised categories of benefit. Here the SSAT concluded that Mr Bell did not get the age pension, or it had doubts about whether he should get the age pension, because it is not clear whether he satisfied the rules about assets and income. One cannot use the discretion to grant special benefit in a way that would, in effect, undermine the assets and income test component of the age pension. Those tests are there for a reason and it is not open to the Secretary, the SSAT or the Tribunal to provide a shortcut. I therefore affirm that aspect of the SSAT decision.

CONCLUSION

9. I set aside the decision of the SSAT with respect to age pension. I decide in substitution that the Applicant was not qualified in the period under review to receive the age pension. I affirm the decision under review with respect to special benefit.
   

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .......................[Sgd]....................................................

Patrick MacDonald

Date of Hearing 24 March 2010

Date of Decision 24 March 2010

Date of Written Reasons 11 May 2010

Applicant Self-represented

Advocate for the Respondent Mr B Hamilton