Trustrum and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1402

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1402

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T 2006/97

GENERAL ADMINISTRATIVE DIVISION		)
Re		THOMAS TRUSTRUM

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date5 June 2007

PlaceHobart

Decision The decision under review is affirmed

..............................................

Dr J D Campbell
  Member

CATCHWORDS

Social Security - Age Pension - Rent Allowance - Period of Imprisonment - Suspension of Social Security Payments – decision under review affirmed.

Social Security Act 1991, ss 23, 1158

REASONS FOR DECISION

5 June 2007	Dr J D Campbell, Member
Background

1.      Mr Trustrum is a 74 year old retired journalist.  Mr Trustrum commenced his journalistic career in London and continued in such activities after migration to Australia in 1970, including significant periods of employment with the Department of Trade in Canberra and as a radio journalist with the radio station 3AW in Melbourne.

2.      In August 2000 Mr Trustrum placed funds for a deposit on a property with a firm of solicitors in Devonport in order that they arrange the conveyance of the property.  This conveyance was not completed.  Mr Trustrum made a complaint to the Law Society of Tasmania in late 2000.  In April 2001 Mr Trustrum was advised that his complaint concerning the conveyancing transaction had been dismissed.  Serial correspondence between the parties continued.  In April 2003 Mr Trustrum was unsuccessful in defence of a defamation action bought by the then Executive Director of the Law Society of Tasmania.  Later in 2003 Mr Trustrum was found to have committed contempt of court with a sentence for a period of three months suspended on the condition that repetition of contempt of court during a period of three years would activate the sentence.

3.      On 22 March 2005 Mr Trustrum was remanded in custody for breach of the original order and the sentence activated.  Mr Trustrum completed his three month prison sentence on 21 June 2005. 

4.      Mr Trustrum has been in receipt of age pension since 26 June 1997.  This pension, together with any associated rent allowance was suspended as of 23 March 2005 because of his period of imprisonment between 22 March 2005 and 21 June 2005.  Mr Trustrum seeks to appeal the decision to suspend his age pension payment during this period, because he believes that fraud invalidates the entire proceedings, such proceedings having been outlined briefly in the previous paragraphs. 

Issue

5.      In this matter, there is but one issue that can be considered by myself, namely:

·Was the decision to suspend Mr Trustrum’s payment of age pension (including rent assistance) between 23 March 2005 and 21 June 2005 a correct decision?

Decision

6.      After consideration of all the material in this matter I find that the decision to suspend Mr Trustrum’s age pension (including rent assistance) between 23 March 2005 and 21 June 2005 a correct decision.  The reasons for such are outlined in subsequent paragraphs.

Consideration and Findings

7. Section 23(1) of the Social Security Act 1991 (the Act) defines Social Security Pension to include age pension. Section 1158 of the Act provides that an instalment of a social security pension or a social security benefit is not payable to a person in respect of a day on which the person is in gaol.

8.      

Both parties in this matter agree that Mr Trustrum was in gaol between

22 March 2005 and 21 June 2005.  With those circumstances nominated and agreed the law stipulates that Mr Trustrum is not entitled to be paid a social security pension and/or benefit during that period.  Such an outcome applies to both the age pension and any rental assistance payments, the latter payment being not a separate social security pension or benefit payment, but an amount determined within the context of the age pension rate calculator.

9.      In this matter Mr Trustrum contends that “fraud invalidates the entire proceedings”.  In his submission Mr Trustrum lists a history of events and circumstances which he believes constitute fraudulent behaviour.  Such behaviour, he believes, commenced during the investigation and consideration of his complaint to the Law Society of Tasmania in 2000 and has continued at each and every stage of his interaction with the legal processes thereafter.  That Mr Trustrum is both committed to and intransigent in his set of beliefs is not in question, as indeed his interactions with the numerous legal processes so readily demonstrates.

10.     While Mr Trustrum may hold a particular set of beliefs as to events and circumstances which led to his imprisonment, such beliefs, no matter how often asserted, fail to alter the Supreme Court findings that led to his period of imprisonment, this being the substantive operative cause for the period of suspension of Mr Trustrum’s age care pension.  For Mr Trustrum to be successful in this matter, those Supreme Court findings would have to be overturned.  The power to do so falls beyond the jurisdiction of this Tribunal, the jurisdiction of which is clearly defined in the Administrative Appeals Tribunal Act 1975. In such circumstances, I can make no further relevant comment and the findings as indicated earlier remain unchanged.

11.     Mr Trustrum also raised with the Tribunal his difficulty in obtaining legal aid to assist in the preparation of this matter.  In relation to the Hobart Community Legal Service, it was evident that his request had been received, considered, and legal assistance declined.  It was also evident that the reasons for non-provision had been explained to Mr Trustrum, (i.e. limited likelihood of success).  Mr Trustrum remained concerned that the Legal Aid Commission had not responded to his request and that in essence all the assistance he had wanted was in preparing his submissions for the Tribunal.  I also note that Mr Trustrum declined to venture any opinion in relation to matters which he perceived to constitute legal issues, such as sections 23 and 1158 of the Act.  I am satisfied that no detriment accrued to Mr Trustrum on the issues outlined in so far as the conduct of the hearing or the substance of the issue under consideration.

12.     In the narrow factual circumstances of this matter, as agreed by the parties, Mr Trustrum’s appeal must fail.  I conclude that in such circumstances his age care pension was correctly suspended during his period of imprisonment between 23 March 2005 and 21 June 2005.  I accordingly affirm the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         .............[sgd]................
  Associate

Date/s of Hearing  23 April 2007
Date of Decision  5 June 2007
Representative for the Applicant    Self-represented
Solicitor for the Respondent          Ms C Trueman