Re Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 58
•2 February 2012
[2012] AATA 58
Division General Administrative Division File Number(s)
2011/5452
Re
Sol Theo
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 2 February 2012 Place Brisbane The Tribunal dismisses the application for leave to proceed
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Senior Member
CATCHWORDS
SOCIAL SECURITY – aged pension – eligibility – refusal to supply information to centrelink – leave to proceed denied
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 42B(1)(b)
CASES
Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 669 and Theo and Secretary, Department of Family and Community Services [2003] AATA 489
REASONS FOR DECISION
Senior Member Bernard J McCabe
2 February 2012
Mr Sol Theo has been trying to get the Aged Pension for years. His applications consistently flounder when Centrelink asks him to supply information about the Solon Theo Family Trust. Mr Theo refuses to supply information about the trust, stating on the various forms he has been provided to complete that he is not a trustee of the trust, and that he no longer has any relationship with the trust, save in an “honorary” capacity. He argues the trust’s affairs are irrelevant to his affairs.
Centrelink is not so sure. It suspects Mr Theo continues to play a role in relation to the trust, not least because Mr Theo is mentioned in the trust documents as a trustee and appointor of the trust. Even if he has resigned as trustee, the trust deed says he retains the power as the appointor of the trust to replace the trustee. Mr Theo, for his part, says that is not the way the trust works. He says the trust documents have not been amended to formally remove him from involvement because of stamp duty implications. He insists that he should not be required to provide the information that has been requested. The assets of the trust should certainly not be attributed to him for the purposes of the assets test that applies to the Aged Pension, he claims.
Mr Theo also argues that the social security legislation is invalid to the extent that it imposes any eligibility requirements that conflict with a social contract between taxpayers and the Commonwealth. Mr Theo says the Commonwealth’s income tax reforms in the 1960s were introduced on the basis that the taxes collected would be used to fund a universal aged pension scheme. He says he paid his taxes and is therefore eligible to participate in the benefits which were promised.
The Secretary says the absence of information about the trust’s affairs and the uncertainty surrounding Mr Theo’s relationship with the trust mean it is impossible to be satisfied Mr Theo is entitled to be paid the Aged Pension. Mr Theo’s application was rejected on that basis. The Social Security Appeals Tribunal affirmed the decision. Mr Theo has returned to this Tribunal seeking redress.
Mr Theo requires leave to proceed before he can progress his application as a result of earlier orders of this Tribunal. The order was first made on 1 August 2007. It was amended on 13 March 2008. The amended order now reads:
“Pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, the Applicant, Sol Theo, must not make any Application to the Administrative Appeals Tribunal pertaining to any social security benefit howsoever termed without the leave of the Tribunal first hand and obtained.“
That order is in very broad terms. Orders of this nature are an extraordinary thing. If they are made, it is incumbent on the Tribunal when considering an application for leave to satisfy itself that the applicant is not being denied the opportunity to pursue a benefit or redress that is legitimately open to him simply on account of previous conduct. Even vexatious litigants might have a point.
As it happens, I had the benefit of dealing with Mr Theo’s previous application for leave, in 2010: see Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 669. On that occasion, in order to determine whether or not leave should be granted, I effectively heard Mr Theo’s entire case. I decided he should not be given leave but, having received evidence and submissions as if it were a final hearing, I indicated his application would have failed in any event.
Has anything changed since 2010? I need to know whether Mr Theo has any new evidence or submissions to put before the Tribunal that suggest his case should be reconsidered at a hearing. If he simply proposes to run the same case that he ran in 2010 (and in a number of previous cases where the same evidence and arguments failed to persuade the Tribunal and the Federal Court), then he should not be given leave to proceed on this occasion.
I told Mr Theo at the outset of the hearing that I would not entertain any submissions in relation to his argument that there is a social contract which affects the operation of the social security legislation. That jurisdictional argument has been considered and rejected on a number of occasions by the Federal Court. He accepted that ruling in good grace, and we moved on to discuss other aspects of his case. It turns out that – with one possible exception – Mr Theo has nothing new to add to the evidence and submissions that he has made in previous hearings. He still refuses to provide information about the trust. The uncertainty about his role in relation to the trust remains. Indeed, as Mr McQuinlan for the respondent explained, there is evidence that Mr Theo continues to play an active role in relation to the trust. The trust documents are unchanged. Mr Theo and the respondent remain at an impasse.
The one submission that was not made on the previous occasion arose out of an exchange of correspondence between Mr Theo and Centrelink. As Mr Theo explained in a document dated 21 October 2011 which he tendered at the hearing (and to the SSAT), he:
·Applied for the pension on 16 May 2011;
·Received a request for information – a Module PT document that related to interests in a trust – on 1 June 2011 with a request that a response be provided within 14 days;
·Returned the document to Centrelink on or about 15 June 2011;
·Received a letter from Centrelink dated on or about 15 June 2011 saying words to the effect “Since you have not replied to your request for information your application has been rejected”.
Mr Theo says Centrelink did not give him the appropriate time to respond to its request for information before cancelling his pension. Moreover, it ignored the response he did provide. He says that invalidates the respondent’s decision to reject the pension. As a result, he argues, his pension should now be granted with a start date in 2002, when his pension was cancelled.
I was referred to the decision of Member Kenny (as he then was) in Theo and Secretary, Department of Family and Community Services [2003] AATA 489. In that decision, Mr Kenny found Centrelink had sent notices that did not comply with the appropriate time limits. Because the respondent had proceeded to cancel Mr Theo’s pension on the basis of defective notices, the cancellation decision was set aside and the matter was remitted to Centrelink. Mr Theo was subsequently paid an amount in arrears. But his victory was short-lived. Fresh notices were issued and his pension was cancelled in due course.
Mr Theo relies on that earlier decision to argue Centrelink’s rejection of his current application for a pension was based on a failure to properly observe the applicable time limits. Specifically, he argued the notice of 1 June 2011 gave him 14 days to respond but, taking into account a requirement that he be given 14 clear days, the cancellation decision was made before the expiry of the deadline and in any event did not refer to the information that he did in fact provide.
I do not think it is necessary to engage in a debate over whether or not Centrelink has, on this occasion, jumped the gun in making its cancellation decision. While that may indeed be a problem in some cases (assuming that the evidence confirms that is what occurred), I think it does not make any difference for present purposes. I was provided with a copy of the response that Mr Theo did provide on or about 15 June 2011. It does not reveal anything of substance. Mr Theo has written the same thing on the Module PT form that he has written in previous applications for the pension: he refused to provide information on the trust on the basis that he has nothing to do with it.
If I were to allow the matter to proceed to a hearing, the whole exercise would almost certainly be expensive and fruitless because the central mystery remains: what is the relationship between Mr Theo and the trust, and what are the assets held in the trust? Mr Theo was not prepared to provide additional information that would shed light on that issue. Without additional evidence, it would be impossible to be satisfied Mr Theo is eligible to receive the Aged Pension. Even if I were to accept his point about the timing of the cancellation decision, the best that could be done would be to remit the matter to Centrelink – which would be unable to grant his claim because the information it requires was still unforthcoming. That would be a waste of everyone’s time and resources.
Mr Theo should not be given leave to proceed. The proceedings are therefore dismissed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 2 February 2012
Date(s) of hearing 19 January 2012 Applicant Self-represented Advocate for the Respondent Mr R McQuinlan
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