Martin Toki and Secretary, Department of Social Services
[2014] AATA 144
•14 March 2014
[2014] AATA 144
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3667
Re
Martin Toki
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date of decision 13 March 2014 Date of reasons 14 March 2014 The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS – SOCIAL SECURITY – disability support pension – applicant serving prison sentence – applicant detained under the Mental Health (Forensic Provisions) Act – whether applicant entitled to disability support pension – whether disability support pension should have been cancelled – decision under review affirmed
Legislation
Mental Health (Forensic Provisions) Act 1990
Social Security Act 1990
Cases
Garden v Secretary, Department of Family and Community Services [2002] FCAFC 436
REASONS FOR DECISION
Senior Member J Toohey
14 March 2014
Background
This matter concerns whether a decision by Centrelink to cancel Mr Martin Toki’s disability support pension (DSP) was correct.
These reasons reflect reasons given orally at a hearing on 13 March 2014.
Mr Toki is currently serving a sentence of 22 years’ imprisonment with a non-parole period of 16 years and six months. The earliest date from which he can be granted parole is 18 September 2017.
In April 2009, Mr Toki was charged with malicious damage for acts committed while he was in Goulburn Correctional Centre and was found not guilty by reason of mental illness. Since then, he has been detained under the Mental Health (Forensic Provisions) Act 1990 in various mental health facilities.
Mr Toki’s application for DSP
On 5 May 2010, Mr Toki applied for DSP. His claim form showed that he was in Long Bay Gaol Hospital in “psychiatric confinement” as a “forensic patient”.
Centrelink granted Mr Toki DSP and paid him until 19 January 2011 when it was realised that, as well as being detained under the Mental Health (Forensic Provisions) Act 1990, Mr Toki was serving a prison sentence in relation to his original offence. Centrelink suspended his payment while it made further inquiries about his status and then, on 19 July 2011, cancelled his payment.
Can a person serving a sentence of imprisonment be paid DSP?
The legislation concerning social security payments to persons who are in gaol or who are detained under the Mental Health (Forensic Provisions) Act 1990 is quite detailed and I am not going to repeat it here. It is contained in the Social Security Act 1990 and the Mental Health (Forensic Provisions) Act 1990 and is summarised, correctly in my view, in the written Statement of Facts and Contentions of the Respondent which has been given to the Tribunal and Mr Toki.
In summary, the law is that a person who is “in gaol” cannot be paid DSP. “In gaol” means serving a sentence, in prison or somewhere else, for a conviction on an offence, and not on release on parole or licence: Social Security Act 1990 s 1158, s 23(5).
As Mr Toki is still serving a prison sentence in relation to his original offence, and has not yet been released on parole, he is “in gaol” and cannot be paid a DSP.
Does it make a difference that Mr Toki is currently detained under the Mental Health (Forensic Provisions) Act 1990?
In Garden v Secretary, Department of Family and Community Services [2002] FCAFC 436, Justice Gray explained at [24] that, whether a person serves a sentence in a prison or some other place of detention, the Social Security Act 1990 intends that they not be paid social security payments.
Although he is currently being detained under the Mental Health (Forensic Provisions) Act 1990, Mr Toki is still serving a sentence for his original offence. He is still “in gaol” for the purposes of social security law, meaning he cannot receive DSP.
Some people who are “forensic patients” detained under the Mental Health (Forensic Provisions) Act 1990 may be able to receive DSP or other social security payments. However, they do not include persons who are serving prison sentences.
Mr Toki’s complaint
Mr Toki says there are others in the mental health facilities he has been in who are being paid DSP even though they are also serving prison sentences. He says he should be paid as well.
I have no way of knowing what other people are being paid and no power to make decisions about anyone other than Mr Toki. If others who are in identical circumstances to Mr Toki are receiving DSP, I understand that he might feel aggrieved but I can only assume, if he is correct, they are being paid in error. In any case, it is not a matter that I can investigate as Mr Toki asks me to do.
As it happens, it was an error that led to Mr Toki being paid DSP in the first place. The information provided to Centrelink by the welfare officer who helped Mr Toki with his claim for DSP was correct up to a point, but it was incomplete: it did not include the information that Mr Toki was serving a sentence for an offence, and Centrelink did not inquire whether he was. I mean no criticism by that.
Because of the administrative error that led to his claim being granted, Centrelink have not required Mr Toki to repay any of what was paid to him, and have waived the debt.
Conclusion
For the reasons I have given, I am satisfied that the decision to cancel Mr Toki’s DSP was correct.
18. I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 14 March 2014
Date of hearing
13 March 2014
Representative for the Applicant
Mr Toki, self-represented
Representative for the Respondent
Australian Government Solicitor
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