Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 748
•26 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 748
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0765
GENERAL ADMINISTRATIVE DIVISION ) Re SOLON THEO Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date26 August 2008
PlaceBrisbane
Decision The Tribunal sets aside that part of the decision of Social Security Appeals Tribunal as it relates to the calculation of the rate of age pension paid to Mr Theo in the period 27 March 2002 to 9 September 2003, and reinstates the decision of the authorised review officer dated 13 November 2007, affirming the decision dated 4 July 2003.
......................[sgd]........................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – entitlement to age pension – assessment of rate of pension –.matter previously reviewed – finality of decision – Social Security Appeals Tribunal should not have reinstated – decision under review set aside
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 312
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 480
Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174
Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Theo and Secretary, Department of Family and Community Services [2003] AATA 489
Theo and Secretary, Department of Family and Community Services [2004] AATA 1273
Theo v Secretary, Department of Family and Community Service [2005] FCA 880
Theo v Department of Family and Community Service [2005] FCAFC 239
Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210REASONS FOR DECISION
26 August 2008 M J Carstairs, Senior Member
1. The decision that I am reviewing in this application was made on 1 February 2008 by the Social Security Appeals Tribunal. The Social Security Appeals Tribunal set aside a decision which Centrelink had made over 4½ years earlier. The Centrelink decision had calculated a lump sum of age pension paid in arrears to Mr Theo after his age pension was cancelled in 2002.
2. Mr Theo’s age pension payment at this time referred to the period from 27 March 2002 to 1 July 2003 (paid as the lump sum), and then ongoing fortnightly payments of age pension that continued until 9 September 2003 when Mr Theo’s pension was again cancelled.
3. The Social Security Appeals Tribunal expressed its decision this way[1]:
On 25 January 2008 the Tribunal decided to:
…..
(2) set aside the decision relating to the rate(s) payable in the period 27 March 2002 to 9 September 2003 and send the matter back with the directions that the rate(s) be reassessed once Mr Theo supplies Centrelink with details of the Solon Family Trust sufficient for the purposes of an assessment under Part 3.18 of the Social Security Act 1991.
[1] Folio 2; T2.
4. In all the circumstances – and I will return to these below – the Social Security Appeals Tribunal’s action in setting aside Mr Theo’s age pension entitlements in the relevant period was an unusual step for that tribunal to take. Those entitlements had been already the subject of several reviews by the Administrative Appeals Tribunal, and appeals to the Federal Court.
5. As a general rule, merits review tribunals, such as are the Social Security Appeals Tribunal and the Administrative Appeals Tribunal, would be cautious about reconsidering a decision where a decision was made already on the same matter and delivered to the parties. Quite reasonably, the parties ought to be able to take what has happened as final.
6. It is with respect to these matters that it is useful to look now at the decisional history. I have referred more extensively to Mr Theo’s long standing battles with Centrelink in the previous decision dealing with issues of jurisdiction: Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 312. Here, I will confine my consideration to the reviews that related to the relevant period.
DECISIONAL HISTORY
7. The starting point was a decision of Member Kenny in 2003 (Theo and Secretary, Department of Family and Community Services [2003] AATA 489), where Member Kenny had to consider the 2002 cancellation of Mr Theo’s age pension. Member Kenny set aside the cancellation decision, because there were deficiencies in the notices Centrelink had served. This did not mean that Mr Theo was necessarily qualified to receive age pension in what became the relevant period; but it did mean that the cancellation process was tainted by procedural errors and ought not be let stand. Member Kenny remitted the matter to the respondent for re-assessment.
8. It can reasonably be observed, with the benefit of hindsight, that Centrelink’s decision to pay Mr Theo age pension again in the relevant period was contrary to other parts of the reasoning in Member Kenny’s decision. There is no need to address in detail here why this is so. Suffice to say that the main issue in the cancellation decision had been changes made to the Social Security Act 1991 (the Act) with reference to the treatment of assets and income where people had private trusts. Mr Theo had been unprepared to provide Centrelink with information about the Solon Theo Family Trust, at least to a level to satisfy Centrelink that he was no longer involved, as he maintained. While-ever Mr Theo refused to provide Centrelink with the information, no decision could be made about his entitlements, even in the relevant period. Despite this, Mr Theo nevertheless was paid, those payments continuing until the next cancellation on 9 September 2003 (when the relevant period ends).
9. Since Member Kenny’s decision there have been a number of other decisions dealing in one way or another with the relevant period. Senior Member McCabe in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 had reviewed a number of aspects of the rate calculation process for the arrears payment Mr Theo received with reference to the relevant period. The review application that Senior Member McCabe heard then had commenced, as one would expect, with Mr Theo making a request for a review of the arrears calculation. His request for review was answered by two internal reviews in 2003, each confirming that Mr Theo was correctly paid at the partnered rate[2], rather than, as Mr Theo was then claiming, as a person who was separated from his wife. Before that matter could be reviewed by the Administrative Appeals Tribunal, the Social Security Appeals Tribunal had to look at just this question, and did so on 1 April 2004.
[2] Folio 145-149; T28.
10. Senior Member McCabe’s decision affirming that Mr Theo’s rate of payment had been correctly calculated was upheld by French J in Theo v Secretary, Department of Family and Community Service [2005] FCA 880, and by the Full Federal Court in Theo v Secretary, Department of Family and Community Service [2005] FCAFC 239). French J observed[3] that Mr Theo had more squarely raised the issue of single rather than partnered rate in the appeal hearing than he had before Senior Member McCabe. However it was quite clear that Senior Member McCabe was considering the overall calculation process in the relevant period, in which one necessary step is to address whether a person is married or single.
[3] Theo v Secretary, Department of Family and Community Service [2005] FCA 880.
11. Mr Theo once again attempted to ventilate the issue of rate assessment in the relevant period some years later. In the decision Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210, Senior Member McCabe dealt with it this way[4]:
The decision to pay Mr Theo at the married rate was made some time ago. It is unrelated to the existing appeal which deals with a different decision. I do not propose to deal with the earlier decision.
[4] Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210 at [5].
12. Mr Theo’s current review started with a letter dated 22 September 2007[5] claiming – once again – that his age pension had been paid to him at the wrong rate in the relevant period. Bearing in mind that before each Tribunal decision referred to above, several prior review processes had taken place, Mr Theo’s claims had been examined fulsomely. The Social Security Appeals Tribunal, as I observed, previously had reviewed substantially the same matter in the decision dated 1 April 2004[6].
[5] Folio 215-216; T43.
[6] Folio 151-159; T30.
13. I made the observation in my previous decision[7] that, faced with another review request, the authorised review officer and the Social Security Appeals Tribunal reasonably might have declined jurisdiction. Or, the SSAT simply might have affirmed the decision under review. However, the SSAT did not – taking the course instead of reconsidering the payment Mr Theo received for the period and addressing his submissions about being single.
[7] Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 312.
WHAT SHOULD THE SOCIAL SECURITY APPEALS TRIBUNAL HAVE DONE?
14. It seems to me that the answer is provided by the decision of the Tribunal’s President, Downes J in Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457. In that case, Downes J observed that in principle decisions of the Tribunal are final, subject to appeals to the Federal Court. Downes J was there addressing the possible application of the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, and observed that it provided no qualification to the principle that a tribunal cannot revisit its own decision; that the decision making power is spent once it is exercised.
15. In words highly relevant to the facts here, Downes J observed[8]:
“…except in the clearest case, the making of a second decision by a tribunal will only lead to uncertainty of result. This is, at least, a sound reason for a tribunal to act with extreme caution before reconsidering a matter which has already been decided.”
[8] Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 at [13].
16. His Honour also referred to the practical problems of allowing the re-argument of a failed case.
17. There is perhaps some tension between the competing policy issues that arise here. Clearly Parliament has seen fit to provide extensive administrative review rights to ensure that citizens can have reviewed, those decisions with which they are dissatisfied. As French J observed in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 480 it can be both convenient and flexible to have a process where decision-makers may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened, without the necessity of the full panoply of judicial or express review procedures[9]. However as Dowsett J observed in Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174[10] a party is not entitled to “seek review of a decision on a ground which has been previously ventilated and determined as between the relevant parties”.
[9] Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 480 at 486.
[10] Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174 at [4].
18. That, in my view, is what has occurred here. Neither the authorised review officer nor the Social Security Appeals Tribunal ought to have entertained Mr Theo’s application to re-examine any part of the pension rate assessment with respect to the relevant period. As a consequence the Social Security Appeals Tribunal decision must be set aside.
19. Only that decision needs to be set aside, it being the only decision that purported to affect decisions already in place. The Social Security Appeals Tribunal should not have entertained Mr Theo’s request for review, the matters having been litigated previously and final decisions having been made with respect to the rate of pension paid to Mr Theo in the relevant period.
20. Mr T Ffrench, who represented the respondent, submitted that any decision of this Tribunal with reference to the relevant period would need to differentiate between what was reviewed by the authorised review officer (the period of arrears, ending on 1 July 2003) and what was reviewed by the Social Security Appeals Tribunal (a period ending on 9 September 2003). I consider that the problem Mr Ffrench there identifies is one of form rather than substance, and is remedied simply by reinstating the original decision. Accordingly, that will be the form of the order.
THE MERITS: SINGLE OR MARRIED RATE
21. From the above, it can be seen that Mr Theo can have no further access to merits review for matters relating to the calculation of his rate of pension during the relevant period. It is, however, obvious that the matter of his payment at the married rather than the single rate remains of some concern to Mr Theo. Out of deference to that concern, and not out of any obligation, it might help if I explain why the argument that Mr Theo would seek to advance cannot succeed.
22. Firstly, for Mr Theo to satisfy any decision-maker that he was “living separately and apart” from his wife during the relevant period, he needed to support this with cogent evidence. Some corroboration would have been helpful rather than mere assertion.
23. His limited provision of information on these matters is demonstrated in a Centrelink form – “Mod S: Separation Details”[11]:
[11] Folio 165; T35.
Question Answer
Your current home address “N/A”
Date of separation “Do not remember”
Please explain the circumstances of your “No answer”
separation
Address where you and your partner were “Your records have such
livinginformation”.
24. Secondly, the date of effect provisions in the Social Security (Administration) Act 1999 would limit any payment at the single rate to the date when the matter was brought to Centrelink’s attention. No documents revealed that Mr Theo provided clear information about separation from his wife within the relevant period. While Mr Theo says that each time he applied for pension he nominated his status as single, there was no evidence that he did so prior to a claim in 2004.
25. It is true that he obliquely raised his single status in correspondence with Centrelink dated 11 July 2003[12]. That letter, once its meaning is discerned, can be taken as a request for review of his rate of payment, specifically with reference to whether he was married or single. He wrote:
§ You have not eliminated Athina Theo’s name [that is, from the newly issued pension card sent to him with the arrears payment]
§ The writer’s calculations and according to his opinion should be as follows:
Period 27.3.02 to 1.7.03 = 33 fortnights x $446.10 = $14,721.30
[12] Folio 88-90; T20.
26. The second of Mr Theo’s points referred to the then current single rate of $446.10 per fortnight, rather than the married rate, which Centrelink had paid to him. Even the most alert and assiduous Centrelink officer may well have missed the point of Mr Theo’s communication. Mr Theo acknowledged at the hearing that he had no recollection of notifying Centrelink earlier than this. As Mr Ffrench correctly pointed out, the arrears limitations provisions mean that no earlier date could have been applied – even if Mr Theo had provided convincing information that he indeed was living separately and apart from his wife.
27. I would make a third and final observation. Centrelink made an error in paying Mr Theo age pension at all in the relevant period. This appears to have resulted from a misreading of Member Kenny’s 2003 decision. There would be no circumstances in which a decision-maker would compound that error by increasing the payment now.
DECISION
28. The Tribunal sets aside that part of the decision of Social Security Appeals Tribunal as it relates to the calculation of the rate of age pension paid to Mr Theo in the period 27 March 2002 to 9 September 2003, and reinstates the decision of the authorised review officer dated 13 November 2007, affirming the decision dated 4 July 2003.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: ..............................[sgd].................................................
Joan Torbey, AssociateDate of Hearing 17 June 2008
Date of Decision 26 August 2008
The Applicant was self-represented
Advocate for the Respondent Mr T Ffrench, Centrelink
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