Secretary, Department of Family & Community Services v Cantlay [2000] FCA 345

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Cantlay

[2000] FCA 345 SOCIAL SECURITY – income test – respondent employed by State Government Department as consultant to member of parliamentary party – whether respondent "carries on a business" – whether gross ordinary income to be reduced by business outgoings WORDS AND PHRASES – "carries on a business"

Social Security Act 1991 (Cth) s 1075(1) Re Ekis and Secretary, Department of Social Security (AAT, 13 March 1998) disapproved Secretary, Department of Social Security v Ekis (1998) 85 FCR 382 followed

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v IAN JAMES CANTLAY NO. T 25 OF 1999 HEEREY J 24 MARCH 2000 HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T 25 OF 1999

BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

AND: IAN JAMES CANTLAY

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 24 MARCH 2000

WHERE MADE: HOBART

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal made 29 September 1999 is set aside. 3. The decision under review by the Tribunal is affirmed. 4. The respondent pay the applicant's costs, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T 25 OF 1999

BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

AND: IAN JAMES CANTLAY

Respondent

JUDGE: HEEREY J

DATE: 24 MARCH 2000

PLACE: HOBART

REASONS FOR JUDGMENT 1 The applicant appeals from a decision of the Administrative Appeals Tribunal ("AAT") on 29 September 1999 which set aside a decision of the Social Security Appeals Tribunal ("SSAT") and substituted a decision that the respondent's losses and outgoings as allowable under ss 51 and 54(1) of the Income Tax Assessment Act 1936 (Cth) be deducted from his gross ordinary income in accordance with s 1075(1) of the Social Security Act 1991 (Cth) ("the Act") for the purposes of the income test for certain social security benefits. 2 The SSAT decision had affirmed internal Departmental decisions to cancel the respondent's parenting payment single benefit, and raise consequential overpayment debts, on the basis that the respondent's income as an employee of the Tasmanian Department of Premier and Cabinet ("the Department") exceeded the maximum allowable under the income test in relation to parenting payment single benefit and its predecessor sole parent pension (hereafter collectively "the SSA benefits"). 3 In essence, while accepting that the respondent was an employee of the Department, the AAT treated the income from that employment as income from carrying on a business and thus income which, for the purposes of the Act, could be reduced by deducting business losses and outgoings.