Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 312
•7 April 2008
Administrative Appeals Tribunal
DIRECTION AND REASONS FOR DIRECTION [2008] AATA 312
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
DIRECTION
Tribunal M J Carstairs, Senior Member Date7 April 2008
PlaceBrisbane
The Tribunal:
1. refuses leave for Mr Theo to make an application to this Tribunal with respect to the decision of the Social Security Appeals Tribunal dated 1 February 2008 affirming a decision to reject Mr Theo’s claim for age pension; and
2. grants Mr Theo leave to make an application in relation to the SSAT’s decision setting aside Centrelink’s decision about the rate of age pension paid to Mr Theo in the period 27 March 2002 to 9 September 2003.
As the issues that divide the parties are well known and there is unlikely to be any useful purpose served by the parties undertaking conferencing processes, the Tribunal directs that the matter will proceed straight to hearing, unless either party lodges a request for a preliminary conference, in writing, within 14 days of the date of this Direction.
................[sgd]..............................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – entitlement to age pension – assessment of rate of pension – whether applicant ought be granted leave to bring an application to the Administrative Appeals Tribunal – leave refused in relation to decision affirming rejection of new claim for age pension – leave granted to review decision in relation to past assessment of rate of age pension.
Administrative Appeals Tribunal Act 1975 (Cth), ss 29, 42B
Social Security (Administration) Act 1999 (Cth), s 179Theo and Secretary, Department of Family and Community Services [2006] AATA 1086
Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2008] HCASL 21
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 Services [2005] FCAFC 239
Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] FCAFC 72
Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210
Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174
Theo and Secretary, Department of Family and Community Services [2003] AATA 489
Williams and Australian Electoral Commission (1995) 38 ALD 366
Duncan v Fayle (2004) 138 FCR 510
Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 961
Theo and Secretary, Department of Employment and Workplace Relations [2006] AATA 1000REASONS FOR DIRECTION
7 April 2008 M J Carstairs, Senior Member
1. Mr Theo has a lengthy history of applications to this Tribunal as well as appeals to the Federal and High Court, in the pursuit of various Centrelink payments. The sticking point in his endeavours has been Mr Theo's intransigent refusal to reveal to Centrelink the full details concerning the Solon Theo Family Trust. Mr Theo has been told repeatedly that Centrelink is entitled to ask for that information, but it seems that what Centrelink wants is more than Mr Theo is prepared to provide.
2. In the past certain of Mr Theo’s applications have been dismissed on grounds that they were vexatious. Mr Theo requires leave before an application will be accepted. I gave reasons on 7 April 2008 for allowing Mr Theo leave with respect to one decision, but not with respect to another. On 9 April 2008 Mr Theo requested written reasons.
3. There is no need here to set out in any detail what has gone before in relation to Mr Theo’s numerous applications[1]. A detailed history was set out by Greenwood J sitting as a Presidential Member of the Tribunal in Theo and Secretary, Department of Family and Community Services [2006] AATA 1086. More recently, the High Court in Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2008] HCASL 21, refused Mr Theo leave to appeal in relation to one of his claims for age pension.
[1] The full list appears as an addendum to these reasons.
4. What has led to Mr Theo’s current application to this Tribunal is that the Social Security Appeals Tribunal (SSAT) again had cause to review two further matters, and handed down a decision dated 1 February 2008[2]. The SSAT dealt with the two matters in one set of reasons for decision, but nevertheless made two decisions.
[2] In these reasons I shall refer to this as “the SSAT decision”, and where ”Tribunal” is used this refers decisions and directions made by the Administrative Appeals Tribunal.
5. The 2 decisions were:
§to affirm Centrelink’s rejection of Mr Theo’s then most recent claim for age pension, dated 4 September 2007 (“the first decision”); and
§to set aside Centrelink’s decision concerning age pension which Centrelink paid Mr Theo between 27 March 2002 and 9 September 2003 (the period), a payment made at the married rate. Mr Theo claimed before the SSAT that he was single during the period. This is the subject matter of “the second decision”.
6. Mr Theo lodged an application with this Tribunal on 22 February 2008 for review of the SSAT decision(s). His application was made within the statutory time limit in the AAT Act[3] and was reviewable under in s 179 of the Social Security (Administration Act) 1999:
[3] Administrative Appeals Tribunal Act 1975 (Cth), s29.
“(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2) For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a) where the SSAT affirms a decision–that decision as affirmed; and
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT–the directions or recommendations of the SSAT.”
7. However, Mr Theo’s application to this Tribunal immediately raised the question of whether a Direction of this Tribunal dated 1 August 2007 (“the August Direction”) applied to this application and would deny his right to review.
8. The August Direction was made under s 42B of the Administrative Appeals Tribunal Act 1975 (the Act). That section provides as follows:
“(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.”
9. The August Direction is not the first of its kind that this Tribunal has issued with respect to Mr Theo’s applications to this Tribunal. A somewhat similar Direction, with specific reference to any further claims for disability support pension, issued on 24 November 2006.
10. The terms of the August Direction are as follows:
“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 without the leave of the Tribunal first hand and obtained.“
11. The Tribunal amended this Direction on 13 March 2008 to substitute for the bolded words quoted, the words “social security benefit howsoever termed”.
12. At the hearing of the leave application on 4 April 2008, the efficacy of an amendment to the original Direction was discussed, the amendment post-dating Mr Theo’s present application to the Tribunal. I note that despite communication with the Tribunal by one party without notice to the other being undesirable, the respondent had applied for amendment of the August Direction without giving any notice to Mr Theo.
13. In any event I was satisfied that the unamended August Direction should be applied as this was the version in effect at the date Mr Theo applied to the Tribunal. However I would observe that I would reach the same conclusion allowing Mr Theo leave with respect to the second decision, under either the original or amended version of the August Direction.
Should mr theo be allowed leave to appeal the two decisions?
The first decision
14. The first decision concerns Mr Theo’s entitlement to age pension on yet another new claim. Consistently with other decisions made by this Tribunal and upheld by the Federal Court, the SSAT concluded that Mr Theo’s entitlement to age pension could not be properly considered, unless he provided the information about the Solon Family Trust. That outcome was consistent with the following:
§Senior Member McCabe’s reasons in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273, which dealt with:
o the calculation of arrears in the period;
o a decision cancelling Mr Theo’s age pension in 2003; and
o the rejection of Mr Theo’s new age pension claim in October 2003;
§French J in Theo v Secretary, Department of Family and Community Service [2005] FCA 880, dismissing Mr Theo’s appeal against Senior Member McCabe’s decision;
§the Full Federal Court in Theo v Department of Family and Community Services [2005] FCAFC 239, upholding French J;
§Greenwood J sitting as a Presidential Member of this Tribunal in Theo and Secretary, Department of Family and Community Services [2006] AATA 1086, which dealt with another claim Mr Theo made for age pension on 22 July 2004. Greenwood J observed at paragraph 38 that “Mr Theo is obliged to provide information relevant to age pension”. His decision was upheld by the Full Federal Court in Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] FCAFC 72; and
§that part of the decision of Senior Member McCabe in Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210, which dealt with an age pension claim that Mr Theo made in 2006.
15. I was comfortably satisfied that the first decision falls within the contemplation of the Tribunal’s August Direction. In that regard I would refer to the remarks of Greenwood J in Theo and Secretary, Department of Family and Community Services [2006] AATA 1086:
“As the history of the various controversies between Mr Theo and the Respondent reveals, Mr Theo suffered a cancellation on 10 September 2003 of the grant of an age pension, unsuccessfully challenged that decision, unsuccessfully challenged the rejection of two further applications for an age pension made in October 2003 and April 2004, unsuccessfully challenged the Tribunal’s decision before the Federal Court and the Full Court of the Federal Court and has failed to provide information in accordance with the Administration Act in relation to this further application of 12 July 2004 [12]. If Mr Theo is to be granted an age pension, it is essential that he make an application consistent with the Administration Act and provide the Respondent with information which enables the Respondent to make a determination as to whether social security payments, that is, age pension payments, are payable to him.“
16. The Full Federal Court observed in Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174, (per Dowsett J), in a matter raising similar issues, that the general proposition is that “a party may not seek review of a decision on a ground which has been previously ventilated and determined as between the relevant parties”.
17. That, in my view, is clearly the case here, and it follows that Mr Theo’s application as it relates to the first decision is without merit. I therefore decline leave to make an application on that matter.
The second decision
18. The second decision (setting aside Centrelink’s decision with reference to the period and remitting with directions) has a different subject matter from those matters Mr Theo has agitated with respect to new claims. It dealt with a period with respect to which Centrelink decided to pay Mr Theo age pension.
19. How Centrelink came to pay age pension in the period appears to have resulted from a misunderstanding of the effect of the Tribunal decision in Theo and Secretary, Department of Family and Community Services [2003] AATA 489, where Member Kenny had remitted to Centrelink the question of Mr Theo’s age pension entitlements (following cancellation in 2002).
20. It can reasonably be observed, with the benefit of hindsight, that Centrelink’s decision to pay Mr Theo age pension in the period was contrary to the reasoning in Member Kenny’s decision (Member Kenny having stated that Mr Theo’s entitlement required that Centrelink apply the assets and income test). As already indicated, Centrelink maintained throughout that Mr Theo fails the attribution tests applying to the assessment of the assets and/or income of trusts. Furthermore paying age pension in the period (whether at the married or single rate) was inconsistent with the decisions referred to in paragraph 14 above.
21. However, Mr Theo had pursued his review rights on the issue of married or single rate in the period, and ultimately the SSAT considered that question. The SSAT (and indeed the authorised review officer) might have, but did not, take into account the effect of this Tribunal’s August Direction. Both the review officer and the SSAT might have decided that the matters now raised had been repeatedly ventilated and on those grounds deny Mr Theo another go. The SSAT might have simply affirmed the decision under review. However, the SSAT did not – instead it reconsidered the payment Mr Theo received for the period and in the course of so doing, addressed his submissions about being single.
22. Senior Member McCabe in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 had reviewed a number of aspects concerning the calculation of the rate of Mr Theo’s age pension during the period. Mr Theo ventilated a number of concerns about the process, but apparently did not squarely raise the issue about married or single rate. That issue was only articulated when Mr Theo appealed the decision to the Federal Court. In Theo v Secretary, Department of Family and Community Service [2005] FCA 880 French J observed that this issue was being mentioned for the first time and could not be the source of appealable error on the part of the Tribunal.
23. The issue was squarely before the Social Security Appeals Tribunal; Mr Theo’s claim to being single was thought to have little substance. However, it is important to look at the formal terms in which the second decision was expressed. The SSAT set aside the decision relating to the rate(s) payable in the period and sent the matter back to Centrelink with the directions that the rate(s) be reassessed “once Mr Theo supplies Centrelink with the details of the Solon Theo Family Trust...”
24. Before the SSAT made this second decision, Mr Theo had a settled entitlement to age pension paid in the period. Now that entitlement is uncertain.
25. It would be speculative to anticipate what might happen as a result of the second decision I queried Mr T Ffrench, who appeared for the respondent, whether Mr Theo might be at risk of having an overpayment raised with respect to the period in the future. Mr Ffrench submitted that Mr Theo would have review rights in relation to any further decisions. That, with respect, rather misses the point of Mr Theo’s current concerns with the SSAT decision, let alone the ambit of orders in place in this Tribunal.
26. Mr Ffrench, submitted nevertheless that leave should not be granted because the clear intention of the August Direction was to prevent Mr Theo raising any matters to do with his age pension. He also submitted that the question of single or married rate was impliedly raised when Senior Member McCabe looked at the question of the rate of arrears in the period in the decision Theo and Secretary, Department of Family and Community Services [2004] AATA 1273. It certainly was not explicitly raised (see French J, Theo v Secretary, Department of Family and Community Service [2005] FCA 880), and I do not think that Senior Member McCabe’s words can be read as widely as Mr Ffrench suggests. Nor was it dealt with in Senior Member McCabe’s subsequent decision, Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210, where he stated at paragraph 5:
“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.”
27. Mr Ffrench also submitted that if leave were granted, any outcome would be without effect because of operation of arrears limitations provisions in the Act. However, that unduly narrows the ambit of the matters under review. There is insufficient material before me to form a view on the question of arrears should Mr Theo be successful in establishing that he was single; and, I would observe that a number of factors can impact on questions of arrears under this legislation. However, more importantly, I see this application for review as more broadly encompassing the review of what is now the operative decision, that it the SSAT’s decision setting aside the Centrelink decision.
28. I was mindful that a second principle referred to by Dowsett J in Singh is that a party may be prevented from seeking review “upon a ground which could, and should, have been raised in earlier proceedings”[4]. However I do not see that as the state of affairs pertaining to the review now before this Tribunal, given the nature of the decision under review as it stands.
[4] Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC at [4].
29. It may well be true that in reviewing the SSAT decision, this Tribunal might be asked to consider the question relating to married or single rate, a matter that Mr Theo might have raised on an earlier occasion. Whilst it is undesirable to have another examination of an aspect of the rate calculation process with respect to the period, the fundamental issue is that the SSAT decision in significant ways alters the status quo concerning Mr Theo’s past receipt of a particular rate of age pension. I am also satisfied that this Tribunal has not conducted a merits review of the question of married versus single rate of age pension.
30. Despite the width of the wording of the August Direction, I doubt that it was ever intended to cover all past matters concerning Mr Theo’s Centrelink payments where a new decision is made on review. As I read the August Direction its intention was to prevent repeated claims to a range of Centrelink payments, where the Tribunal has already dealt with that subject matter on a previous occasion. In that respect I interpret it as largely prospective rather than retrospective in effect.
Is the application nevertheless frivolous or vexatious?
31. Mr French further submitted that if I considered that the Direction did not apply or that leave should be granted then Mr Theo’s application remained without merit and should be dismissed as frivolous and vexatious pursuant to s 42B of the Act. I do not think it is appropriate to do so in this case. Applying the tests as referred to in Williams and the Australian Electoral Commission (1995) 38 ALD 366 these proceedings (with regard to the second decision) are not instituted with the intention of annoying or embarrassing; they are not brought for a collateral purpose, nor are they untenable or manifestly groundless, for the reasons sufficiently set out above.
I certify that the preceding 31 paragraphs are a true copy of the reasons for the direction herein of Senior Member M J Carstairs.
Signed: ……………[sdg]……………………………………..
Joan Torbey, AssociateDate of Hearing 4 April 2008
Date of Direction 7 April 2008
The Applicant was unrepresented
Advocate for the Respondent Mr T Ffrench
ADDENDUM
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 and Secretary, Department of Family and Community Services [2005] AATA 699
Theo and Secretary, Department of Family and Community Service [2005] AATA 1023
Theo v Secretary, Department of Family and Community Service [2005] FCA 880
Theo v Department of Family and Community Services [2005] FCAFC 239
Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 961
Theo and Secretary, Department of Employment and Workplace Relations [2006] AATA 1000
Theo and Secretary, Department of Family and Community Services [2006] AATA 1086
Theo and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1210
Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] FCAFC 72
Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2008] HCASL 21
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