Thompson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 1048

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1048

ADMINISTRATIVE APPEALS TRIBUNAL      )         No 2010/3769

)          

GENERAL ADMINISTRATIVE DIVISION		)
Re		NOEL THOMPSON as Nominee for ADAM THOMPSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date 22 December 2010

PlaceCanberra

Decision  The decision under review to attribute the income of the Adam R Thompson Protective Trust to Mr Adam Thompson, is affirmed.

.

..…………............[sgd]..................................

Professor RM Creyke, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – reduction of rate of disability support pension following attribution to income from a protective trust – formerly assessment made based on deeming provisions in Part 3.10 of Social Security Act 1991 (Cth) - whether income from a protective trust should be wholly attributed to sole beneficiary – whether the trust a ‘controlled private trust’ – whether a person who cannot manage their own affairs can have effective control of trust – whether Secretary’s discretion to decide beneficiary not an attributable stakeholder enlivened - whether attribution of trust to beneficiary discriminatory – decision under review affirmed.

Australian Human Rights Commission Act 1986 (Cth) schedule 4

Disability Discrimination Act 1992 (Cth) s 51

Social Security Act 1991 (Cth) s 1064, Part 3.18

Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Cth)

UN Declaration on the Rights of Mentally Retarded Persons 1971

Elliott v Secretary, Department of Education, Employment and Workplace Relations(2008) 103 ALD 318

Re Dalianis and Secretary, Department of Family and Community Services [2003] AATA 1053

Re Kavanagh's Application (2003) 201 ALR 1

Re Secretary, Department of Families, Housing Community Services and Indigenous Affairs and Egberts (2007) 96 ALD 664

REASONS FOR DECISION

22 December 2010

Professor RM Creyke, Senior Member

1.       Mr Adam Thompson has been in receipt of disability support pension since 12 December 1985. Mr Adam Thompson, who is an adult, has an intellectual disability.  As a consequence he is not able to manage his affairs, and these are handled by his father, Mr Noel Thompson.

2.      Mr Noel Thompson is nominee for the purposes of managing Mr Adam Thompson’s disability support pension and manages a protective trust set up to benefit Mr Adam Thompson.

3.       From 15 January 2010 Centrelink decided to take the income of the trust into account in calculating the amount of Mr Adam Thompson’s disability support pension. Formerly the calculation had been based on the deemed income of Mr Adam Thompson’s financial assets.

4.      Mr Noel Thompson requested Centrelink to review the decision to include the income of the trust in the disability support pension calculations. That decision was affirmed by an authorised review officer of Centrelink on 9 April 2010.

5.      Mr Noel Thompson sought further review by the Social Security Appeals Tribunal which decided on 3 June 2010 to affirm the decision under review. Mr Noel Thompson sought further review by the Tribunal on 30 August 2010. The matter was heard by the Tribunal on 8 December 2010.

Issues

6.      The principal issue is whether the income from the Adam R Thompson Protective Trust should be attributed to Mr Adam Thompson and his disability support pension calculated accordingly.

Facts relating to establishment of Trust and calculation of disability support pension

7.      On 30 December 2004 Mr Noel Thompson set up the Adam R Thompson Trust. The principal financial assets of the Trust are shares, managed funds, and two bank accounts, all in the name of Mr Adam Thompson. Mr Adam Thompson’s disability support pension and his earnings from work with Koomarri, an organisation dedicated to the assistance of people with disabilities, also go into the Trust.

8.      Mr Noel Thompson is the appointer under the Trust as well as the sole Trustee. The principal beneficiary of the Trust is Mr Adam Thompson.  There are residual beneficiaries upon the death of Mr Adam Thompson. Under the Trust the trustee administers the Trust for the benefit, and in the best interests, of Mr Adam Thompson. 

9.      Mr Noel Thompson said in evidence that in early 2005 he notified Centrelink that the Trust had been set up.  However, no action was taken by Centrelink to change the basis on which Mr Adam Thompson’s disability support pension was calculated.

10.     On 6 May 2009 a data-matching exercise with the Australian Tax Office identified the Trust and the matter was referred to a complex assessment officer. On 5 June 2009 this officer decided no change to the present income assessment arrangements were necessary and to continue to calculate the disability support pension under the ‘deeming’ provisions in Part 3.10 of the Act.

11.     Following the annual review of his disability support pension which commenced in November 2009, Mr Noel Thompson asserts that a complex assessment officer accepted that there should be no change to the income assessment arrangements. However, on 20 January 2010, another complex assessment officer decided to alter the method of calculation.  He decided that Mr Adam Thompson was the attributable stake holder of the Adam R Thompson Protective Trust, that the financial investments of the Trust were wrongly subjected to deeming as a result of Centrelink error, and henceforth the calculation of disability support pension should include the income of the Trust. The effect of the change, which commenced on 15 January 2010, was to reduce the amount of Mr Adam Thompson’s disability support pension by around $127 a fortnight.

12.     On 19 March 2010, Mr Noel Thompson requested that the calculation of the income of the trust should be based on $6,327, an estimated income of the trust for 2009/10, rather than the actual income of the Trust for 2008/2009 which was $10,336. That request was acceded to and the amount of Mr Adam Thompson’s disability support pension amount was increased, backdated to be effective from 15 January 2010

Legislation

13.     The principal legislation relevant to this matter is the Social Security Act 1991 (Cth) (Act). The rate of disability support pension is worked out under section 1064 of the Act. That section provides that the rate of disability support pension is to be calculated using the Pension Rate Calculator A attached to that section. The applicable rate of pension is the lower of the results of applying either the assets or the income tests for the person. Mr Adam Thompson’s calculation has been based on his income at all relevant times.

14.     The ‘income test’ is set out in Module E of section 1064 of the Act and requires the Secretary to assess Mr Adam Thompson’s ‘ordinary income’, that is ‘income that is not maintenance income or an exempt lump sum’.[1] There is no suggestion on the evidence that Mr Adam Thompson’s income is either ‘maintenance income’ or ‘an exempt lump sum’. The reference to ‘ordinary income’ is taken to be the person’s gross ordinary income from all sources.[2] A person may claim deductions from the gross ordinary income of a trust where there has been a reduction in the value of investment income,[3] or allowable deductions in relation to investment income when the trust is involved in the business of investing.[4]

[1] Social Security Act 1991 (Cth) (Act) s 8.

[2] Act s 1072.

[3] Act s 1208A.

[4] Act s 1208B.

15. The provisions concerning the assessment of ordinary income and assets are contained in Part 3.10 and Part 3.18 of the Act respectively. Part 3.10 deals with the deeming of income from financial assets. Provisions relating to the assessment of income from a trust are set out in Part 3.18 of the Act. Section 1208 in that Part provides that income of the trust is to be worked out as if Part 3.10 was not in effect. A simplified outline of the operation of Part 3.18 states, as relevant:

1207 Simplified outline

The following is a simplified outline of this Part:

·   This Part sets up a system for the attribution to individuals of the … income of … private trusts (sections 1207Y and 1208E)

·   .  Attribution starts on 1 January 2002.

·    For … income to be attributed to an individual:

(a)     the … trust must be a designated private trust (sections 1207N and 1207P); and

(b)     the … trust must be a controlled private trust in relation to the individual (sections 1207Q and 1207V); and

(c)     the individual must be an attributable stakeholder of the …trust (section 1207X).

•       A … trust will be a controlled private trust … if the individual passes a control test or a source test.

16.     A person is an ‘attributable stakeholder’ if the trust is a 'controlled private trust',[5] unless the Secretary decides otherwise.[6] Where a person is considered to be an ‘attributable stake holder’ the person is ‘taken to receive … ordinary income at an annual rate equal to the individual’s attribution percentage’.[7]

[5] Act s 1207X(2)(a).

[6] Act s 1207X(2)(c).

[7] Act s 1207Y(1).

Consideration

The principal issue is whether, as from 15 January 2010, Mr Adam Thompson’s income should be attributed to the income from the Trust, rather than, as previously, a deemed amount based on the application of a percentage of his financial assets. 

17.     The evidence establishes that Mr Noel Thompson set up the Adam R Thompson Protective Trust on 30 December 2004.  The Tribunal accepts Mr Thompson as a witness of truth.  Accordingly, it also accepts that he notified Centrelink early in 2005 of the existence of the Trust. 

18.     Despite this information, it was not until January 2010 that the method of deciding Mr Adam Thompson’s ‘ordinary income’ was changed from the deeming provisions in Part 3.10 of the Act to an assessment based on the income from the Trust. Indeed, a complex assessment officer in June 2009, following a review of Mr Adam Thompson’s financial situation and taking into account the existence of the Trust, decided to maintain the existing arrangement, as too did the complex assessment officer who first considered the matter at the annual review in November 2009. That decision was acknowledged by Centrelink to be made in error. As a consequence, another complex assessment officer decided to change the basis for calculation and to calculate Mr Adam Thompson’s ordinary income to include the income allocated to the Trust under Part 3.18 of the Act. This decision was affirmed by the Social Security Appeals Tribunal.

19.     The Tribunal must decide whether that decision was correct.  Mr Noel Thompson has objected to the decision claiming it is not authorised by the Social Security Act 1991 (Cth), that it is contrary to the UN Declaration on the Rights of Mentally Retarded Persons to which Australia is a signatory and which is annexed to the Australian Human Rights Commission Act 1986 (Cth), and that it is also contrary to the Disability Discrimination Act 1992 (Cth).

Social Security Act 1991 (Cth)

20. The operation of Part 3.18 is broadly set out earlier in the simplified outline.[8] The Secretary contends that the decision under review is correct because the trust is a 'controlled private trust' relating to Mr Adam Thompson, since the circumstances relating to Mr Adam Thompson meet the ‘control test’ and the ‘source test’.[9] The Trust is also a 'designated private trust'. Accordingly, Mr Adam Thompson is an ‘attributable stakeholder’ in relation to the Trust and his asset attribution percentage is 100 per cent, unless the Secretary decides otherwise.[10]  Mr Noel Thompson argued that the calculation of Mr Adam Thompson’s income for disability support purposes should be based, as formerly, on the deemed income from financial assets rather than the income of the Trust.

[8] Act s 1207.

[9] Act s 1207V(1).

[10] Act s 1207X(2).

21.     To be a ‘controlled private trust’, the individual – in this case Mr Adam Thompson – must pass the ‘control test’ or the ‘source test’. Mr Noel Thompson disputed that Mr Adam Thompson’s circumstances met the ‘control test’ because his intellectual disability meant that Mr Adam Thompson was not in a position to exercise effective control.  Indeed, his intellectual disability was the reason for the creation of the Protective Trust, and for Mr Noel Thompson to be appointed trustee under the Trust, and nominee for Mr Adam Thompson under the Social Security Act 1991 (Cth).

22. That argument fails to take into account the relevant terms of section 1207V in Part 3.18. This provides that control of the Trust does not have to be exercised by Mr Adam Thompson but may be exercised by an ‘associate’.[11] An ‘associate’ includes a ‘relative’[12] such as a ‘parent’,[13] or a ‘trustee’[14] of the Trust. As Kenny J said in Elliott v Secretary, Department of Education, Employment and Workplace Relations (2008) 103 ALD 318:[15]

The criteria in sub-ss (a)–(h) of s 1207V(2) mean that the control test can be passed in various ways. The criteria all reflect a requirement that the individual, or his or her associate, acting either as a group or alone (s 1207V(4)), exercise some legal or practical control over the trust … because the individual or an associate is the trustee (s 1207V(2)(a)).

Since Mr Noel Thompson as his father is a relative of Mr Adam Thompson, and is also a trustee of the Trust, he clearly fits the definition of ‘associate’. As trustee he exercises legal and practical control over the Trust, and therefore the control test is met.  The word ‘control’ in the control test in the Act has been given a special meaning that is not its ordinary meaning. As a consequence, the circumstances of Mr Adam Thompson meet the ‘control test’.

[11] Act s 1207C.  

[12] Act s 1207C(1)(e).

[13] Act s 1207B(1)(d).

[14] Act s 1207C(1)(j)(i).

[15] Elliott v Secretary, Department of Education, Employment and Workplace Relations (2008) 103 ALD 318, 333.

23.     In addition, the Trust is administered in favour of Mr Adam Thompson, another of the criteria in the relevant section of the Act.[16] Clause 1.6 of the Trust provides that Mr Adam Thompson is ‘the principal beneficiary of the trust’ and the evidence is that the income from the Trust is used for day-to-day living expenses of Mr Adam Thompson and that the monies are used solely for his benefit.

[16] Act s 1207C(1)(j)(ii).

24.     The Act requires only that ‘it could reasonably be expected that the trustee of the trust would make an application of the corpus or income of the trust to the individual if the individual could not meet his or her reasonable costs of living’.[17] In other words, even if the monies in the Trust were being accumulated against the day when Mr Adam Thompson needed to rely on the Trust for his day-to-day living expenses, that is sufficient for the trust to be a ‘controlled private trust’.[18] The Tribunal finds accordingly that Mr Adam Thompson’s beneficial interest under the Trust also means his circumstances meet the ‘control test’.

[17] Act s 1207V(2)(ca).

[18] Re Secretary, Department of Families, Housing Community Services and Indigenous Affairs and Egberts (2007). 96 ALD 664, 675.

25.     The circumstances also meet the ‘source test’ because the funds initially transferred into the Trust in December 2004 were the personal financial assets of Mr Adam Thompson, and they were transferred without consideration, thus meeting the tests in section 1207V(3) of the Act. Since then Mr Adam Thompson’s income from his supported employment with Koomarri and his disability support pension have also been paid into the Trust.  These transfers have also occurred since 9 May 2000, as required.[19]  On that basis, Mr Adam Thompson is the sole source of the financial assets of the Trust and his circumstances meet the ‘source test’.

[19] Act s 1207V(3)(a).

26.     A trust is a 'designated private trust' provided it is not excluded by certain criteria. That is, unless the trust is a fixed trust, has units held by 50 or more persons, and has not been created to avoid being a designated private trust or equivalent provisions in the Veterans' Entitlements Act 1996 (Cth), it is a ‘designated private trust’.[20] On the facts, none of these exemptions apply.  Additionally, the Trust does not appear to be a superannuation fund, an excluded trust, as defined in the Act, or a First Home Saver Accounts trust.[21] Hence, for the purposes of the calculation, the ‘controlled private trust’ is also a ‘designated private trust’.

[20] Act s 1207P.

[21] Act s 1207P.

27.     Since Mr Adam Thompson’s financial assets are held by the Trust and not by him personally, and section 1208 requires that the Part 3.10 ‘deeming provisions’ are taken not to be in force in such circumstances, the income from the Trust is to be attributed to Mr Adam Thompson as an ‘attributable stakeholder’ of the Trust. This is subject to the Secretary’s discretion.[22]

[22] Act s 1207X(2)(c).

28.     The Secretary’s discretion to decide that he is not an ‘attributable stakeholder’ is to be exercised in accordance with the Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Principles). These Principles are authorised by the Act[23] and must be taken into account for the purposes of the attribution provision.[24] In substance the Principles provide if a person meets one or more of the following factors, and such a decision is warranted, then they may not be considered to be an attributable stakeholder:

[23] Act s 1209E.

[24] Act s 1207X(5).

·circumstances arising from the legal structure of the trust;

·circumstances arising from the administrative arrangements of the trust;

·whether the individual can reasonably be expected to exercise effective control in relation to the trust-and the extent of any control;

·whether the individual has made a contribution to the trust;

·past benefits from any distribution;

·any future benefit from a distribution;

·whether the individual derives any other benefit from the trust;

·whether the individual is an attributable stakeholder of any other trust or company; and

·any other circumstances that affects the involvement of the individual with the company or the trust.[25]

[25] Re Dalianis and Secretary, Department of Family and Community Services (2003) AATA 1053 at [14].

29.     These nine factors will be considered in turn.

30.     Applying the first of those Principles to Mr Adam Thompson’s circumstances, the terms of the Trust are that he is ‘the principal beneficiary’ of the trust. The residual beneficiaries do not benefit from the Trust until after his death.[26]  On that basis, there would be no reason not to classify him as the ‘attributable stakeholder’ of the Trust.

[26] Trust clauses 1.3(a), 2.1(d).

31.     The administrative arrangements of the Trust are that the ‘settlor’ of the Trust appointed Mr Noel Thompson as both the ‘appointor’ and the trustee for the Trust.  Upon the death or legal disability of Mr Noel Thompson, the residual ‘appointors’ and trustees are his other two children, or upon the death or legal disability of either of them, their survivors, and upon the death or legal disability of any of the survivors, the Public Trustee.[27]  The ‘settlor’ is specifically prohibited from benefiting under the Trust.[28] The trustee may only take the ‘usual and proper charges for [the]… professional services in the administration of the trusts … and for his time and trouble … if so employed’.[29] The Trust fund is to be administered solely to favour Mr Adam Thompson in his lifetime.[30] These terms relating to the administration of the Trust indicate that the principal beneficiary of the funds is to be Mr Adam Thompson, and there is, therefore, no reason that he should not be classified as the ‘attributable stakeholder’.

[27] Trust clause 1.10.

[28] Trust clause 1.11.

[29] Trust clause 3.5.

[30] Trust clauses 2.1-2.3.

32.     In relation to the third factor, the Tribunal has already discussed the issue of whether Mr Adam Thompson can reasonably be expected to exercise effective control in relation to the trust and the extent of any control.  Due to his disability he is not able to do so in person. What is not clear is whether the statutory definition of ‘control’ in the Act is to apply when the term is used in the Principles. The Principle is expressed as whether ‘having regard to the relationship between the individual and the … trust, the individual can reasonably be expected to exercise effective control in relation to the … trust’.[31]

[31] Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Principles) paragraph 7(c).

33.     The references to ‘the individual’ and not to an ‘associate’, and to ‘reasonable expectations’ as to the exercise of ‘effective control’ indicate that the Principles are referring to the individual in person and to that person’s ability to exercise actual, that is ‘effective’ control. The meaning of ‘control’ is, therefore, particular to the Principles and is not to be governed by the terms of section 1207V(2) of the Act.

34.     In those circumstances it is apparent that Mr Adam Thompson does not meet this element of the Principles. In so concluding, the Tribunal has rejected an argument by the representative of the Secretary at the hearing that Mr Adam Thompson exercised ‘effective control’ since the Trust had to be administered in his best interests and for his benefit.

35.     Mr Adam Thompson’s financial assets, earnings and pension are the sole source of the funds of the Trust.  The findings are that he has benefited from the Trust in the past in payments from it for his everyday expenses. Since his disability support pension is paid into the Trust that is to be expected. That situation is likely to continue with small amounts being deducted for his benefit, at least while Mr Noel Thompson is alive.  However, as Mr Noel Thompson indicated to the Tribunal, the reason for accumulating funds in the Trust is to prepare for a day when outgoings to Mr Adam Thompson may need to increase. The three factors of the individual’s contribution, past benefits and future benefits in the Principles are met in relation to the circumstances of Mr Adam Thompson.

36.     There are no other benefits Mr Adam Thompson receives under the Trust; he is not an ‘attributable stakeholder’ for any other entity, nor do other circumstances affecting his involvement with the Trust apply.

37.      On balance, although Mr Adam Thompson’s circumstances do not meet the control test in the Principles, he is still the source of the funds in the Trust and the only beneficiary of income from the Trust.  It is clear that the intention is that the corpus and income from the Trust are to be used solely for his benefit as and when he needs the monies.  Given these circumstances the Tribunal finds that Mr Adam Thompson is an ‘attributable stakeholder’ for the purposes of section 1207X of the Act. 

38.     As an ‘attributable stakeholder’ Mr Adam Thompson has a 100 per cent asset attribution unless the Secretary finds otherwise.  The Principles also apply to this exercise of the Secretary’s discretion.  The previous discussion of the application of those Principles indicates that circumstances applying to Mr Adam Thompson provide no reason to make a finding that the Secretary should have assessed his income at less than 100 per cent. 

UN Declaration on the Rights of Mentally Retarded Persons

39.     Mr Noel Thompson pointed to statements in the reasons of the authorised review officer that ‘A key principle of our social security system is that people with similar levels of private resources should receive similar pension or allowance payments’. This statement is taken from the Explanatory Memorandum to the Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Bill 2000. 

40.     In the view of Mr Noel Thompson the fact that the income from the Trust and Mr Adam Thompson’s other taxable income resulted in a reduced rate of disability pension when the former calculation, based on the same sources of funds, without the Trust structure, resulted in him receiving a higher amount of disability support pension contradicted this principle and was discriminatory.  He contended that this is contrary to the terms of the UN Declaration which state in clause 1 that ‘The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings’.  Mr Noel Thompson argued to accord Mr Adam Thompson the ‘same rights as other human beings’ means he should be treated as if he did not derive his income from funds in a protective trust. 

41.     While the Tribunal has some sympathy with Mr Noel Thompson’s argument there are two responses.  Although Australia is a signatory to the UN Declaration and the instrument is annexed to the Australian Human Rights Commission Act 1986 (Cth,) in neither case does this give the instrument the full force of domestic law.[32]  The UN Declaration provides aspirational standards against which domestic laws and practices should be measured.  However, sanctions for the breach of any of its provisions are limited. As Kirby J said in the High Court in Re Kavanagh's Application (2003) 201 ALR 1 at 6-7 in relation to another comparable international convention, also annexed to the Australian Human Rights Commission Act 1986 (Cth):

Ultimately, municipal courts derive their lawful authority and legitimacy from a national Constitution, not from international law. The duty of such courts in Australia is ultimately to that Constitution. They must obey the laws made under, and in accordance with, the Constitution. Commonly, they will endeavour to avoid inconsistencies between domestic (national) and international law. The influence of international law, and its impact on domestic law, is growing, including in Australia. However, international law, such as the ICCPR, does not, as such, oust or override municipal law. The applicant's mistaken belief that it is otherwise is fatal to his endeavour to invoke the ICCPR in this Court to circumvent the binding and valid obligations of Australian federal legislation, applicable to his case.

[32]

42.     In other words the UN Declaration cannot override a domestic law such as the Social Security Act 1991 (Cth). On that basis, since the Act has specifically stated that where Part 3.18 of the Act is met, the 'deeming' provisions in Part 3.10 are taken not to operate, any effect of the change which is to the disadvantage of someone is authorised by the Act and must be complied with.  That is, any discriminatory treatment of Mr Adam Thompson under the Act, if that occurs, is not assisted by relying on clause 1 of the UN Declaration.  In any event, the treatment of a trust which is a designated private trust or a controlled private trust would be the same whether the principal beneficiary was a person with an intellectual disability or not.  In those circumstances, it is not the fact of his disability which has led to this outcome. 

Disability Discrimination Act 1992 (Cth)

43.     The Disability Discrimination Act 1992 (Cth) (DDA) prohibits discriminatory conduct in relation to certain nominated matters. The impact on a disability support pension of legislative change is not one of those matters. Indeed, the DDA specifically provides in section 51 that ‘discriminatory provisions relating to pensions, allowances or benefits’ in the Act are not covered by the DDA. Accordingly to the extent that adoption of Part 3.18 rather than Part 3.10 of the Act for the purposes of assessing ordinary income has any discriminatory effect, the DDA is of no assistance to Mr Noel Thompson.

Summary

44. The Tribunal notes that Mr Noel Thompson has been a responsible representative for Mr Adam Thompson in all his dealings with Centrelink and has assiduously fulfilled the obligations he has undertaken as nominee and as trustee. In so doing, it appears to the Tribunal that he has acted at all times in the best interests of Mr Adam Thompson. That his efforts have not been fruitful on this occasion indicates no discredit to his attempts to protect those interests. The position is simply that the legislation requires that where an applicant receives income from a trust and their circumstances meet the criteria in Part 3.18, the income of the trust, as evidenced by their tax return, must be taken into account in assessing their ordinary income. The circumstances of Mr Adam Thompson do fall within the criteria in Part 3.18. For that reason, the Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.

Signed: ..........................[sgd]............................
  C. Baillie, Associate

Date of Hearing  8 December 2010
Date of Decision  22 December 2010

Solicitor for the Applicant               Ms Hannelore Schuster
  Centrelink Advocacy Branch

Solicitor for the Respondent          Self represented