Theo and Secretary, Department of Family and Community Services

[2005] AATA 1023

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1023

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/178

GENERAL ADMINISTRATIVE DIVISION		)
Re		SOLON THEO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date17 October 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................[Sgd]..........................

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant precluded by age from qualifying – decision affirmed

Social Security Act 1991 s23(5A), 94

Social Security Administration Act 1999 s 28

Theo and Secretary, Department of Family and Community Services [2005] AATA 699

REASONS FOR DECISION

17 October 2005 Mr RG Kenny, Member

Background

1.      On 30 December 2004, Solon Theo lodged a claim for payment of disability support pension which is a form of income support payable under the Social Security Act 1991 (the Act).  On 5 January 2005, an authorised officer with Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services, rejected Mr Theo’s claim for a disability support pension.  On 2 February 2005, that decision was affirmed by an authorised review officer with Centrelink and, on 28 February 2005, it was again affirmed by the Social Security Appeals Tribunal.  On 10 March 2005, Mr Theo sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2.      Mr Theo attended the hearing but was not represented.  Mr T Ffrench from the Legal Service Branch appeared on behalf of the respondent.  The following documents were taken into evidence:

Exhibit 1the T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14);

Exhibit 2a bundle of documents tendered by Mr Theo;

Exhibit 3a history of Centrelink payments to Mr Theo in the period from 4 July 1990 until 21 March 2005 as well as a copy of his Senior Health Care Card;

Exhibit 4a letter, dated 28 September 2005, from Prince Charles Hospital; and

Exhibit 5a claim for disability support pension lodged by Mr Theo on 22 July 2004.

Issues and Legislation

3. The qualifying criteria for payment of disability support pension are set out in section 94 of the Act. However, the procedure for making a claim is provided for in the Social Security (Administration) Act 1999 (the Administration Act) and section 28 thereof provides that a person cannot make a claim for disability support pension unless the person is under pension age on the day on which the claim is lodged. Sub-section 23(5A) of the Act provides that a man reaches pension age when he turns 65 years of age. The issue for the Tribunal is whether Mr Theo is precluded from making his claim for disability support pension on the basis of his age.

Applicant’s Case

4.      Mr Theo conceded that his date of birth was 3 July 1933 and that, on the date of his claim for disability support pension, he was more than 65 years of age.  He also conceded that he had previously lodged a claim for disability support pension on 22 July 2004 and that it had been rejected on the basis of his age. 

5.      In support of his case, Mr Theo made a range of submissions.  His first contention was that, over the years, he had made taxation payments under the relevant legislation and that he had done so on the basis of what he perceived to be an understanding that, in the future, he would be able to make claims for pension when these became due to him.  Mr Theo also contended that officers of the respondent had not acted in good faith towards him and had not provided him with relevant information.  He also submitted that his pension payment had been inappropriately changed from one form to another and that this had resulted in his present situation where he was no longer able to receive any form of income support from the respondent.  He submitted that he was in a difficult financial situation and that there was an obligation on the Commonwealth to make payments to him. 

Respondent’s Submission

6.      Mr Ffrench submitted that the only issue for the Tribunal was whether Mr Theo was able to make a claim for disability support pension and that he was precluded because of his age.  He submitted that the other matters raised by Mr Theo were not of direct relevance to the current claim.  He described the appropriate pension for a person of Mr Theo’s age as being the age pension but he submitted that there were difficulties in the way of Mr Theo receiving such payments because he had failed to provide full disclosure of his financial circumstances in the past.  He conjectured that, were this to be done by Mr Theo, it may well be the case that an age pension payment may be made to him. 

7. Mr Ffrench noted that the reasons for refusing to make payment of disability support pension had been provided to Mr Theo on some seven or eight occasions. He submitted that Mr Theo’s conduct was part of a campaign by him to force the hand of Centrelink into making payments to him. He submitted that the present application was utterly hopeless and that it would be appropriate for the Tribunal to dismiss the matter on the basis that it was a frivolous or vexatious application in accordance with the terms of sub-section 42B(1) of the Administrative Appeals Tribunal Act 1975.

Consideration

8.      I have noted the various submissions of Mr Theo.  In respect of his previous payment of income tax, there is no history before the Tribunal as to what contributions in that form Mr Theo has made in the past.  However, the making of such payments does not provide him with an automatic right to receive an income support payment under the Act.  It is necessary for the qualifying criteria to be met.  I have also noted Mr Theo’s comments about the nature of the treatment he has been provided by the respondent’s staff.  However, I reject the suggestions that he has been dealt with in a manner otherwise than with courtesy and hospitality and with polite attempts to explain to him the nature of his position.  I have also noted his references to being changed from one form of pension to another but am satisfied that this does not fall within the ambit of the matter before the Tribunal on this occasion. 

9.      I have also noted the submission of Mr Ffrench in respect of dismissing Mr Theo’s application on the basis that it is a vexatious or frivolous one.  I have also noted that the Tribunal, in Theo and Secretary, Department of Family and Community Services [2005] AATA 699, dismissed an application by Mr Theo for disability support pension on that ground and also made an order under paragraph 42B(1)(b) of the AAT Act, preventing further application by him for review of any decision relating to age pension or disability support pension without leave of the Tribunal. That matter is currently on appeal to the Federal Court. The present application by Mr Theo is not embraced by the earlier decision of the Tribunal because the claim, initial decision, and further decisions affirming the initial decision were made prior to the Tribunal’s decision in that matter. However, I have decided not to dismiss the matter on the basis submitted by Mr Ffrench because it raises issues similar to those addressed by the Tribunal and which are currently before the Federal Court.

10. I have decided to accept the alternative submission of Mr Ffrench that Mr Theo’s application be dismissed on the basis that he did not meet the requirements of the Act for the purposes of making a proper claim for disability support pension. Section 28 of the Administration Act precludes such a claim if the person is above pension age and sub-section 23(5A) of the Act makes it clear that the relevant age for the purposes of that exercise is 65 years. I am satisfied that Mr Theo was born on 3 July 1933 and that, as at the date of lodgement of his claim on 30 December 2004, he was aged more than 65 years. It follows that he is precluded by section 28 of the Administration Act from making a claim for disability support pension.

Decision

11.The Tribunal affirms the decision under review.  

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  10 October 2005
Date of Decision  17 October 2005
The Applicant was unrepresented and appeared in person
For the Respondent                  Mr T Ffrench, Departmental Advocate