Any thoughts as to whether "the approach currently prevailing at the tribunal level" to use income when received as opposed to when it was first earned is actually consistent with the provisions of soc sec law - ie even if it is no longer possible/practical to get confirmation from employers as to when the income was earned?
You noticed my use of purely descriptive wording! That was deliberately chosen to avoid endorsing the approach. I suspect that this is one of the two questions that has divided the lawyers. It was interesting that the department's response to the 2nd ombudsman report specifically mentions going to the Solicitor General. If you recall in the first report, the SG asked the department and agency to try to resolve it themselves. But Page 2, response to recommendation 2, from December's report sees them expressly state the Solicitor General will be involved in the advice clarification process. A sign the legal questions rumble on?
A pure right to elect which event (earning or receiving) triggers and sets entitlement is pretty remarkable. Historically, one suspects the wording of the provision - including the three categories of acquiring income (earned, derived, received) - was designed to prevent abuse. Stop overclaiming by people delaying the receipt of money etc.
But where the available evidence suggests the person was paid conventionally and the 'earning' was first in time: why is it appropriate to allow recourse to later receipt? The sample itself shows that results in a lower level of entitlement over time. Would Parliament have been comfortable if a past government had announced they'd found an innovative way to cut social security outlays by electing to shift to an income received approach?
The non-availability of records should not alter the formal legal position. It's at least arguable that entitlement is to be calculated off the 'first in time' point the person acquired income (earned, derived, received). The emphasis which the Act (s 68, s 100) places on notifying the occurrence of events, its provision for automatic rate reduction based on the occurence of events, arguably supports a commitment to 'first in time' approaches to calculation?
The definition of ordinary income in s1072 ultimately centred on confirming - with a level of certainty - the income acquiring events in each set period. Is that definition compatible with an approach that says - 'we know earning occurred first, possibly in the previous employment period, but we will use income received because we know that with certainty'? Why?
I would like tribunal members to spend more time explaining why government has the right to a choice by reference to the provisions. I think there is far too much pragmatic reasoning rather than formal interpretation, e.g. 'fairest method' (Judd), continued use of 'best available information' formula.
I can certainly say I don't like recourse to bank statement amounts where there's no surrounding payroll documentation to provide context for the figures. how do you know what periods the figure tie to... and then you have the grossing up process.
Yes Darren the rationale for preferring 'whichever event occurs first' (usually when people earn the money) was spelt out in the Social Security Guide: see my discussion of this here (link goes straight to discussion in long video) https://youtu.be/RhFHWes8qBQ?si=C2m9-zxFvRNRX6Gi&t=5629
Any thoughts as to whether "the approach currently prevailing at the tribunal level" to use income when received as opposed to when it was first earned is actually consistent with the provisions of soc sec law - ie even if it is no longer possible/practical to get confirmation from employers as to when the income was earned?
You noticed my use of purely descriptive wording! That was deliberately chosen to avoid endorsing the approach. I suspect that this is one of the two questions that has divided the lawyers. It was interesting that the department's response to the 2nd ombudsman report specifically mentions going to the Solicitor General. If you recall in the first report, the SG asked the department and agency to try to resolve it themselves. But Page 2, response to recommendation 2, from December's report sees them expressly state the Solicitor General will be involved in the advice clarification process. A sign the legal questions rumble on?
A pure right to elect which event (earning or receiving) triggers and sets entitlement is pretty remarkable. Historically, one suspects the wording of the provision - including the three categories of acquiring income (earned, derived, received) - was designed to prevent abuse. Stop overclaiming by people delaying the receipt of money etc.
But where the available evidence suggests the person was paid conventionally and the 'earning' was first in time: why is it appropriate to allow recourse to later receipt? The sample itself shows that results in a lower level of entitlement over time. Would Parliament have been comfortable if a past government had announced they'd found an innovative way to cut social security outlays by electing to shift to an income received approach?
The non-availability of records should not alter the formal legal position. It's at least arguable that entitlement is to be calculated off the 'first in time' point the person acquired income (earned, derived, received). The emphasis which the Act (s 68, s 100) places on notifying the occurrence of events, its provision for automatic rate reduction based on the occurence of events, arguably supports a commitment to 'first in time' approaches to calculation?
The definition of ordinary income in s1072 ultimately centred on confirming - with a level of certainty - the income acquiring events in each set period. Is that definition compatible with an approach that says - 'we know earning occurred first, possibly in the previous employment period, but we will use income received because we know that with certainty'? Why?
I would like tribunal members to spend more time explaining why government has the right to a choice by reference to the provisions. I think there is far too much pragmatic reasoning rather than formal interpretation, e.g. 'fairest method' (Judd), continued use of 'best available information' formula.
I can certainly say I don't like recourse to bank statement amounts where there's no surrounding payroll documentation to provide context for the figures. how do you know what periods the figure tie to... and then you have the grossing up process.
Thanks
Yes Darren the rationale for preferring 'whichever event occurs first' (usually when people earn the money) was spelt out in the Social Security Guide: see my discussion of this here (link goes straight to discussion in long video) https://youtu.be/RhFHWes8qBQ?si=C2m9-zxFvRNRX6Gi&t=5629
Sorry: like to direct discussion here: https://youtu.be/RhFHWes8qBQ?si=C2m9-zxFvRNRX6Gi&t=5629