FEDERAL COURT OF AUSTRALIA

Theo v Secretary, Department of Family & Community Services [2005] FCA 880

SOCIAL SECURITY – age pension – cancellation of age pension – reinstatement – calculation of arrears – whether arrears to be calculated at current rate or rate applicable at times they should have been paid – notices requiring provision of information relating to control of private trust – non-compliance with notices – cancellation of age pension – rejection of fresh claim for age pension – based on non-compliance with notices requiring information – appeal to Administrative Appeals Tribunal – whether any error of law in AAT’s decision – no error of law – appeal dismissed

Social Security Act 1991 (Cth) s 1207, s 55

Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Act 2000 (No 132 of 2000)

Social Security (Administration) Act 1999 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 43, s 44

Theo v The Secretary, Department of Family Services [2004] FCA 1748 cited

Theo v The Secretary, Department of Family & Community Services [2005] FCA 436 cited

SOLON THEO v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

QUD 268 OF 2004

FRENCH J

29 JUNE 2005

PERTH (Heard in Brisbane)

On Appeal from the Administrative Appeals Tribunal

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant is to pay the respondent’s costs of the appeal including the costs of the motion for security for costs heard by Tamberlin J. 

3.         The appellant’s motion for leave to appeal against the decision of Cooper J dismissing his application for a stay of the AAT decision is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On Appeal from the Administrative Appeals Tribunal

REASONS FOR JUDGMENT

Introduction

1                     Solon Theo suffered the cancellation of his age pension in June 2002.  the cancellation arose out of his failure to provide information to the Department of Family and Community Services (the Department) relating to the cessation of his association with a private trust known as the Solon Theo Family Trust.  That cancellation was overturned by a decision of the Administrative Appeals Tribunal (the AAT) on 30 May 2003 and arrears of pension paid.  The AAT decision was based upon the invalidity of notices from the Department requiring the provision of information by Mr Theo.  The notices having been invalid, the failure to comply with them did not enliven the power to cancel his pension.

2                     Mr Theo was subsequently paid arrears of $11,374.  Further notices issued requiring information about the relinquishment of his involvement with the Trust.  He was found not to have complied with those requirements and his pension was again cancelled on 10 September 2003.  Fresh applications for the age pension in October 2003 and April 2004 were rejected.  Mr Theo pursued review of these decisions through the Social Security Appeals Tribunal (the SSAT) and the AAT.  He has been unsuccessful in relation to each of those matters and his challenge to the calculation of the arrears paid pursuant to the first AAT decision. 

3                     Mr Theo now appeals against the most recent decision of the AAT which affirmed the arrears calculation, cancellation decision and rejection decisions in relation to his age pension.  He has raised a number of arguments.  None of them disclose any error of law on the part of the AAT.  His appeal against the decisions of the AAT will be dismissed with costs.

Factual and procedural background

4                     Solon Theo was born on 3 July 1933 in Egypt.  He is an Australian citizen.  On 9 July 1998 he was granted the age pension.  His wife Athina received the blind pension. 

5                     Mr Theo was, from 8 September 1978, the trustee of a family trust known as the Solon Theo Family Trust.  His wife and four children were its beneficiaries.  The Trust Deed provided in Pt 3 that he could ‘by writing under his hand and seal alter the settlement herein made to confer upon the Trustee further or additional powers, to vary or cancel any of the Trustee’s powers, to exclude any beneficiary or contingent beneficiary, to add to or enlarge the class of beneficiaries, to vary the Trusts upon which the Trust Fund is held by the Trustee ...’ and various other powers.  Mr Theo was also empowered by Pt 8 of the Deed to retire as trustee of the Trust Fund and to appoint a trustee or trustees in his place.  He could remove any trustee from office and reappoint himself.

6                     Mr Theo made a statutory declaration which bore the date 14 December 2001 in which he said that he had resolved ‘... to transfer my capacity as trustee, to my son Paul Theo, effective as from today’s date, and without retaining any formal roles, pecuniary interests or control on the functioning of the said trust’.  He further declared that should he assist ‘in any shape or form with any administrative matters relevant to the said trust, this will be on an honorary capacity ONLY’. (sic)  

7                     The Social Security Act 1991 (Cth) (the Act) was amended with effect from 1 January 2002 by the introduction of a new Pt 3.18 dealing with the treatment of private trusts and companies for the purposes of the income and assets tests relating to pension payments.  The amendment was effected by the Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Act 2000 (No 132 of 2000).  Mr Theo evidently received an information booklet about the operation of these new provisions.

8                     The background to the amendments was set out in the Explanatory Memorandum to the Bill.  The relevant amendment was said to provide for the introduction of the revised means test treatment of private companies and private trusts:

‘Under this measure, a person who holds assets and/or income in a private company or private trust may have the assets and/or income of that company or trust attributed to them for the purposes of the means test under the Social Security Act.’

9                     The Explanatory Memorandum identified as the key issue for means testing purposes, the identity of the person to whom the assets and/or income of a structure should be attributed.  Assets held by individuals, sole traders or partnerships were taken into account prior to the amendment.  Similarly investments in public companies and public unit trusts were assessed as financial assets of the customer.  The Memorandum went on:

‘It is with structures legally separate from, although controlled by, the customer, where the current means test does not consistently attribute assets and/or income to reflect a customer’s real circumstances.’

A test based on identifying control of a structure was said to be justified on the grounds that the controller of the structure could be considered the de facto ‘owner’ of the structure’s assets when he or she could use them for his or her own purposes or benefit.  In assessing whether an individual passed the control test the interests of that individual and of his or her associates, as defined in the legislation, would be taken into account.  This would prevent a person, in relation to whom a trust or company was a controlled private trust or company, from diluting his or her interest in a structure.  The Memorandum pointed out that a test based on identifying the source of assets in a structure was justified where the transfer of assets to an interposed structure was done because they would continue to be used for the transferee’s benefit or for their family’s benefit.  Where it was claimed that assets transferred to an interposed structure should be regarded as a gift, the transferee would have to establish that the property was in fact given away.  The Memorandum then said:

‘This would be difficult to establish if the person retained any involvement with the interposed structure.’

It may be seen from this that the question of cessation of involvement with a private trust structure was, from the outset, of importance to the operation of the provisions of Pt 3.18.

10                  An outline of the working of the new Pt 3.18 was set out in the new s 1207 of the Act:

‘The following is a simplified outline of this Part:

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

.           Attribution starts on 1 January 2002.

.           For an asset or income to be attributed to an individual:

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

            (b)        the company must be a controlled private company in relation to the individual or 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 company or trust (section 1207X).

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

.           An individual will not be an attributable stakeholder of a trust if the trust is a concessional primary production trust in relation to the individual.

*          The asset deprivation rules and the income deprivation rules are modified if attribution happens.’

11                  Division 6 of Pt 3 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) deals, inter alia, with the requirements to give information for the purposes of the Act.  It covers ss 63 to 74.  Subdivision A of Div 6 includes s 63 which empowers the Secretary to require, by written notice, that a person receiving or claiming a social security payment provide information to the Secretary.  In the event of non-compliance the payment then received or claimed will not be payable (s 63(4)).  Subdivision B deals with information about change of circumstances.  Section 67 applies to persons who are claiming or in receipt of social security payments and empowers the Secretary to require such persons to give the Department a statement about a matter that might affect the payment to the person of the social security payment.  Section 68 applies to persons in receipt of social security payments and authorises the Secretary to give such persons written notice requiring that they give the Department one or more statements about a matter that might affect the payment of the social security payment to such person.  Formal requirements for notices under subdiv B are set out in s 72, including requirements to specify the date by which information is to be provided.  Section 81 in Div 7 of the Administration Act authorises the cancellation of social security payments for non-compliance with a notice under ss 67 or 68.  It also authorises cancellation for non-compliance with a notice embodying a requirement under Div 1 of Pt 5. 

12                  Part 5 of the Act relates to Information Management and Div 1 to Information Gathering.  Section 192 in that division confers a general power on the Secretary to obtain information or documents from any person if the Secretary considers they may be relevant to, inter alia, a claimant’s qualification for social security payment, a payee’s entitlement to such payment or the rate of social security payment payable to a person.  Section 196 requires such notices to be in writing and to specify the period within which the information of documents are to be provided.  A minimum time of 14 days after notice is given is specified (s 196(3)). 

13                  Notices requiring information were sent to Mr Theo on 25 February 2002 and 7 March 2002 and to his wife on 5 February 2002.  On 12 June 2002 a delegate of the Secretary cancelled his age pension, apparently on the basis that he had not provided required information about his involvement with the Solon Theo Family Trust.  The cancellation decision was affirmed by an authorised review officer on 13 September 2002 and by the SSAT on 25 November 2002.  In the meantime further notices were sent to Mr Theo on 24 June 2002 and 29 July 2002. 

14                  Mr Theo applied to the AAT for review of the SSAT’s decision.  The AAT  held that the notices of 5 February, 25 February, 7 March, 24 June and 29 July 2002 were all defective in relation to the specification of time limits or failure to specify time limits as required by the Administration Act.  The notices were therefore invalid.  Having found that no valid notice had been sent to Mr Theo under Pt 5 Div 1 of the Administration Act, the AAT found that ‘... there was no basis for applying s 81 of the Administration Act to suspend or cancel the applicant’s age pension’.  The AAT set aside the cancellation decision and remitted the matter to the Secretary ‘... to calculate the amount of age pension repayable to him’.  The date of that decision was 30 May 2003. 

15                  The Secretary subsequently paid Mr Theo $11,374 by way of arrears of age pension for the period 27 March 2002 to 1 July 2003. 

16                  On 3 July 2003 the Department wrote to Mr Theo again seeking information from him ‘about the documentation required by Centrelink to establish that control [of the trust] has been relinquished by you and your partner’.  The letter was expressed to be a notice under s 196 of the Administration Act.  The letter elicited a combative written response dated 11 July 2003 from Mr Theo which incorporated a challenge to the calculation of the arrears of his age pension and a claim for damages for unlawful harassment.  In his letter Mr Theo alleged that, notwithstanding the payment to him of $11,374 by way of arrears he was still owed $6,408.17.  This he calculated as follows:

‘Period 27.3.02 to 1.7.03 = 33 fortnights X $ 446.10            = $14,721.30

Plus GST supplement                                                                                  441.15

Plus pharmaceutical allowance                                                          96.68

Plus telephone allowance                                                                   46.20

                                    Total                                                       $15,304.33

Plus damages owing as a result of your unlawful

harassment and deprivation of income, necessitating

the writer to borrow money

This component is calculated at 20% of the above total            3,060.87

                                    Grand total                                         $18,365.20

Less amount paid                                                                    11,957.03

                                    Balance owing                                     $ 6,408.17’

17                  Mr Theo referred to a declaration previously sent to the Department and dated 1 May 2003.  This was a departmental form headed ‘Declaration – No longer involved’.  In completing it by reference to the ‘S Theo Family Trust’ Mr Theo had stated that the trust ceased to trade on 14 December 2001 and that he ceased to be involved on that date.   Various other declarations, affidavits and letters which he had sent were referred to in his letter.

18                  On 8 August 2003 the Department wrote to Mr Theo in the following terms:

‘In order to show that you have relinquished all formal roles and control in respect of the Solon Theo Family Trust, you need to provide a legally stamped copy of the amendment to the Trust Deed.  If this does not need to be stamped you must provide a copy of the amended Trust Deed as well as a letter from your solicitor advising that he has arranged the amendment to the Trust Deed and stamping was not required.  Otherwise you must provide a properly completed Module PT.  This is a notice given under section 196 of the Social Security (Administration) Act 1999.’

A copy of the Module PT form was enclosed.  The departmental requirement met with another combative response reiterating Mr Theo’s earlier claim for payment of $6,408.17.  The Module PT form was returned by Mr Theo to the Department endorsed on each page with the letters ‘N/A’. 

19                  On 10 September 2003 the Department wrote to Mr Theo advising him that his age pension had been cancelled from that date as he had failed to comply with its requirement for documentation made on 8 August 2003.  Mr Theo subsequently made a new claim for age pension in October 2003 but this was refused on 31 October 2003.  He then appealed to the SSAT in respect of the quantum of the arrears paid to him pursuant to the AAT decision of May 2003.  He also appealed against the cancellation decision of 10 September 2003 and the rejection decision of 31 October 2003.  All these decisions had been affirmed by authorised review officers.

20                  The three decisions appealed against were affirmed by the SSAT on 22 March 2004 and the reasons sent to Mr Theo on 1 April 2000.  On 8 April 2004 Mr Theo made a further claim for an age pension.  This was rejected on 8 May 2004 and the rejection was affirmed by an authorised review officer on 9 June 2004.  Mr Theo sought review of that decision by the SSAT on 17 June 2004.  On 30 June 2004 the SSAT affirmed the decision under review.  Mr Theo then sought review by the AAT of all four decisions of the SSAT.  The matters were heard together by Senior Member McCabe who, on 1 December 2004, affirmed all of the decisions. 

21                  On 15 December 2004 Mr Theo filed an appeal in this Court against the AAT decision.  At the same time he filed a motion seeking ‘a suspension of the AAT’s decision’ pending the appeal.  This motion, which could have had no useful outcome, was dismissed by Cooper J on 24 December 2004 – Theo v The Secretary, Department of Family Services [2004] FCA 1748. 

22                  By a motion filed on 6 January 2005 Mr Theo sought suspension of the orders made by Cooper J and leave to appeal against his decision.  On 9 February 2005 Spender J made orders standing the hearing of that motion over to a date to be fixed.  I indicated at the hearing of the appeal against the AAT decision that I would deal with the disposition of the motion for leave to appeal against the decision of Cooper J in conjunction with the disposition of the appeal against the AAT decision.  However, whatever the outcome of that appeal, it is clear that there was no useful purpose in the application to Cooper J and no useful purpose served in granting leave to appeal against his Honour’s decision.  That motion will therefore be dismissed. 

23                  The Secretary of the Department applied for an order for security for the costs of the appeal against the AAT decision.  Mr Theo is an undischarged bankrupt.  On 15 April 2005 Tamberlin J dismissed the application for security for costs and ordered that the costs of that application be awarded to the successful party on the appeal – Theo v The Secretary, Department of Family & Community Services [2005] FCA 436.

The AAT’s reasons for decision

24                  The AAT hearing proceeded over two days on 9 August and 22 September 2004 and the decision was given on 1 December 2004.  The reasons for decision were succinct and can briefly be summarised.

25                  On the question of the quantum of arrears payable to Mr Theo for the period 27 March 2002 to 1 July 2003, he submitted to the AAT that the arrears should have been calculated using the rates which pertained at the date of the calculation, that is the time of the AAT decision of 30 May 2003.  He contended that to use, as the Department had, the rates applicable from time to time during the period 27 March 2002 to 1 July 2003 was erroneous. 

26                  The AAT referred to a passage from the decision of the SSAT which cited s 55 of the Act.  Section 55 provides that the relevant rate of age pension is calculated using the Pension Rate Calculator at the end of s 1064.  This is read with ss 1189 and 1190 of the Act.  The SSAT said that:

‘20.      ...Those sections dictate that a person’s maximum basic rate be adjusted from time to time, in order to allow indexation of the pension in line with the consumer price index

21.       This process of constantly adjusting the rate of pension in accordance with CPI is mandated by the Act.  The Act does not permit a person who is paid arrears to be paid arrears at current day rates.  That person must be paid the arrears at the rate prescribed by the Act from time to time.

22.       It follows that the Centrelink decision to pay Mr Theo arrears of pension in accordance with the rate of pension payable from time to time in the arrears period is correct and must be affirmed.’

27                  The AAT accepted without elaboration that the SSAT was right and that the payments must be made (and the arrears calculated) with reference to the rates which apply to the period when the payments should have been made.  The AAT also said that it had examined the calculation and agreed that it was correct.  The AAT held that it had no power to direct additional payments of compensation claimed by Mr Theo.  The decision in relation to the calculation of the arrears was therefore affirmed. 

28                  The next decision considered by the AAT was the cancellation of Mr Theo’s age pension on 10 September 2003.  The AAT found that on 8 August 2003 the Secretary had requested Mr Theo to provide further information in relation to his involvement in the Solon Theo Family Trust.  It found that the Secretary had requested a copy of the amendment to the Solon Theo Family Trust Deed, a properly completed Private Trust Module (PT Module form) and the income tax return for the trust in 2001/2002 as well as its balance sheet and a profit and loss statement.  It found that on 20 August 2003 Mr Theo had responded saying that ‘... the contents of your letter do not concern the writer, nor the booklet [referring to the PT Module] which is returned herewith duly noted’.  The AAT found that Mr Theo had put a line through every operative page of the PT Module writing ‘N/A’.  The AAT was satisfied that the documents requested were in Mr Theo’s possession or under his control.  He was an original trustee of the trust and retained the power to appoint new trustees.  Although he said he no longer had any involvement with the trust, the AAT was not satisfied that that was the case after hearing him give evidence.

29                  The AAT referred to ss 192 and 196 of the Administration Act.  It held that the letter of 8 August 2003 was a written notice under s 196 which was validly given.  The AAT then held that Mr Theo had not filled out the PT Module but crossed out its pages and written ‘N/A’ on them.  It held also that he had not provided any other information requested by the Secretary but simply indicated that he did not believe the request for information concerned him.  The AAT said:

‘This amounts to a failure to comply with a validly given notice.  The Secretary’s discretion to cancel the Age Pension is enlivened.  The Secretary’s decision to exercise that discretion was the correct and preferable decision in the circumstances.  I can see no reason why the discretion to cancel the payment should not be exercised in this case.’

On that basis the decision to cancel the age pension was affirmed.

30                  The next decision considered by the AAT was the decision of 31 October 2003 by the Department to reject a fresh claim for age pension made by Mr Theo on 6 October 2003.  In response to that claim the Secretary had requested, by letter dated 10 October 2003, that Mr Theo provide further information.  The information which was requested was:

(a)        a complete Module S

(b)        a completed Module PT

(c)        proof of identity

(d)        a bank statement showing balance as at 6 October 2003

The letter stated that the authority for the request was ‘under social security law’.  It stated that Mr Theo would need to supply the documents or contact the Department within 14 days after the day on which the letter was given to him ‘to avoid possible rejection of your claim for age pension’.  This would seem to have been a requirement for information under s 63 of the Administration Act although it did not so specify.

31                  Mr Theo provided proof of identity but did not provide either the Module S or Module PT forms nor a bank statement.  A second letter was sent dated 14 October 2003 advising that Mr Theo had 14 days to lodge the documents from that date.  The second letter stated that it was a notice given under s 196 of the Administration Act. 

32                  Mr Theo wrote to the Department on 15 October 2003 asserting, inter alia:

‘1)       My constitutional rights guarantee the writer UNEQUIVICALLY (sic), the right to an old age pension, and in particular the Income Tax Assessment Act of 1936.

2)         Furthermore, LEGALISTICALLY dealing with the case, and if you will force me to follow such path, such right is safeguarded by the principle of Estoppel, bearing in mind that such right of the writer was established, confirmed and acknowledged by your Department, since the 21.4.1994, until September 2003, when your Department in an irresponsible way, decided illegally to cancel same.’

There followed more criticism of the Department and then a statement in the following terms:

‘f)        In regard to the forms you expect the writer to complete, please accept the copies of the similar forms submitted to you on the 20.8.03, which apparently chose to ignore.’ (sic)

The AAT understood this latter comment to be a reference to the Module PT which Mr Theo had submitted in August 2003 and which he had returned with ‘N/A’ written over it.  Mr Theo also said in relation to the bank statement:

‘I cannot oblige with your request for a bank statement as I do not own one.’

33                  The AAT held that the questions it had to determine were whether Mr Theo had received a valid notice of the request for information and if so, whether he failed to comply with that notice.  The AAT held that the notice complied with s 196 of the Administration Act and was therefore a valid notice.  It then referred to ss 37 and 63 of the Act.  It held that s 63 was applicable to Mr Theo as he was a person who had made a claim for a social security payment.  Under that section the Secretary could give written notice that a person was required within a specified time to give information and if the person did not comply with the requirement the payment that the person was receiving or had claimed would not be payable.  It held that Mr Theo’s failure to submit a completed Module PT form amounted to a failure to comply with a valid request for information.  The payment he claimed was not payable pursuant to s 63(4).  The decision to reject the claim for age pension of 31 October 2003 was therefore affirmed.  It is to be noted that the consequence of non-compliance with s 196 is discretionary cancellation or suspension under s 81 of the Administration Act.  The non-discretionary consequence of non-compliance with a s 63 notice is that the payment claimed is not payable.  The clearest basis upon which the claim could be held non-payable under s 63(4) would appear to have been non-compliance with the letter of 10 October 2003.  It may be that the letter of 14 October would attract dual characterisation as a notice under s 196 and under s 63.  It may also be accepted that a failure to provide information which would enable an assessment of the applicable rate payable could have the result that such assessment could not be made and on that basis the claim rejected.

34                  The final decision considered by the AAT was the rejection of Mr Theo’s claim for age pension made on 8 April 2004.  In response to that claim the Secretary, on 14 April 2004, again requested that Mr Theo provide further information.  The information request was much the same as that sought in October 2003.  The letter from Centrelink dated 14 April 2004 noted that on his claim for age pension form Mr Theo had been asked to provide his bank account and BSB number.  He had crossed this out as ‘N/A’ and was asked to provide the details.  He had also not answered a question regarding accommodation details.  He was further asked to provide the following:

‘Proof of Arival (sic) and 100 points of Identity

Proof of all Bank account balances as on 8 April 2004

Completed Module PT (Enclosed)

Completed Module S (Enclosed)

Bank account and BSB number

Details of accommodation’

He was asked to provide the documents within 14 days after the date of receipt of the letter.  A follow-up letter was sent on 16 April 2004.  This letter expressly stated that it was a notice given under s 196 of the Administration Act.  It referred to the documents requested in the letter of 14 April 2004 and advised that Mr Theo had 14 days to lodge them from that date.

35                  The AAT set out the relevant part of the text of Mr Theo’s response of 16 April 2004:

‘i)        I do not have a bank account – I shall endeavour to establish same.

ii)         I am not familiar with the meaning of the acronym “BSB” you have used, consequently I cannot oblige.

iii)        Re accommodation:

            Because of you having deprived me of my legal and lawful entitlement to an age pension, I cannot afford and do not have a permanent place of abode.

...

ii)         In regard to your request relevant to form referred to as: Module PT

            Please refer to YOUR question No: D1

            (within the form named: “Income and Assets form”)

...

            My comments in regard to the said question are EXPLICIT, and I do not fall in the category, of having to comply with your irresponsible request.

            Therefore it will be appreciated if you refrain yourselves in asking for details that do not concern my case.

            ...

            iii)        In regard to your request relevant to: Module S

            “Even blind Freddie”, will realise that 99.9999% of the information you request should exist in your files.

            For this reason I consider your relevant request as being contemptuous.’

36                  The AAT found the tone of the letter repeated in a subsequent file note written by a Centrelink officer who spoke to Mr Theo by telephone on 20 April 2004.  The officer recorded that he was then able to clarify that Mr Theo refused to provide a PT or S Module as he stated they were irrelevant to him.  The AAT observed that it had already set out the relevant law.  It was satisfied that the written request for information complied with s 196 of the Administration Act and that Mr Theo had failed to comply with the request – s 63(4) of the Administration Act.  It held that the Secretary was correct to refuse his claim for the age pension and that the decision must be affirmed.  Again, it is not clear that non-compliance with a notice made under s 196 attracts the application of s 63(4) which relates to non-compliance with notices issued under that section.  The point was not taken on the appeal and, in any event, there are two reasons why it would be unlikely to succeed.  The first is that the preceding letter of 14 April 2004 would appear to have been a s 63 request even though not stated to be such.  This followed the model of the correspondence sent in October 2003.  The second is that the applicant was still non-compliant with the request for information sent to him on 6 October 2003.

37                  The AAT went on to deal with contentions raised by Mr Theo that the Administration Act was constitutionally invalid for inconsistency with the Income Tax Assessment Act 1936 (Cth).  It is not necessary to canvass those reasons here.

The notice of appeal

38                  Mr Theo’s notice of appeal against the AAT decision identified as the questions of law raised on the appeal the following:

‘(a)      The Principle of Estoppel

(b)       Contradicting findings within the reasons of the Member’s decision which will vindicate the appeal

(c)        Laws were applied contradicting the Australian Constitution and the Income Tax Assessment Act 1936

(d)       Wrong implementation of Section 4.12.9.10 of the Social Security (Administration) Act 1999

(e)        Legality of the Social Security (administration) (sic) Act 1999

(f)        Failure to comply with the Common Law in discovering details to justify decisions made.’ 

39                  The grounds of the appeal were as follows:

‘(a)      Principle of ESTOPPEL, hence:

            i)          An Age Pension was continually paid to the Appellant while the alleged deficiencies were in existence during the period 1.1.2002 to the 1.7.03

            ii)         After the Appellant’s aged pension was cancelled, the Respondent reinstated same and continued payment of same during the period 1.7.03 to the 9.9.03, and such reinstatement was not subject to the AAT’s decision of the 30.5.03

b)        The breaching of the Contractual arrangement as per the Australian Constitution and the Income Tax Assessment Act 1936

c)         The Reasons for the AAT’s decision of the 1.12.04 contain a number of errors, which dilute its veracity.

d)        The Reasons for the AAT’s decision of the 1.12.04 contain contradicting reasons to justify the cancellation of the Appellant’s Age pension.  Such contradictions alone evidence the erroneous basis of such decision and will demand and justify the immediate reinstatement of the Appellant’s Age pension.’

Statutory framework – The Administrative Appeals Tribunal Act 1975 (Cth)

40                  The Administrative Appeals Tribunal  Act 1975 (Cth)  (the AAT Act) provides for the AAT to review decisions made under enactments where such enactments provide for review by the AAT.  The AAT’s powers on review include the following, in s 43 of the AAT Act:

‘43(1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing-

(a)       affirming the decision under review;

(b)       varying the decision under review; or

(c)        setting aside the decision under review and -

            (i)         making a decision in substitution for the decision so set aside; or

            (ii)        remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.’

41                  Section 44 of the AAT Act provides for appeals to the Federal Court from decisions of the AAT:

‘(1)      A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’

As was pointed out to Mr Theo in the course of argument the powers of the Federal Court upon an application for review of an AAT decision under s 44 of the  AAT Act are limited by the condition that there be identified an error of law on the part of the AAT.

The contentions

42                  The contentions advanced by Mr Theo orally and in writing ranged wider than the grounds set out in his notice of appeal.  Rather than endeavour to summarise them here it is convenient to deal with them as they apply to each of  the decisions in respect of which he appeals. 

The quantum of arrears of age pension paid to Mr Theo

43                  Although it does not appear from the notice of appeal Mr Theo maintained before this Court that he was entitled to be paid arrears of age pension following the decision of the AAT of 30 May 2003, at the rate then applicable.

44                  Section 55 of the Act provides, inter alia:

‘A person’s age pension rate is worked out:

(a)       if the person is not permanently blind – using Pension Rate Calculator A at the end of s 1064.’

Section 1064 provides, inter alia:

‘(1)      The rate of:

(a)       age pension;

...

is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.’

The overall rate calculation process is set out in Module A of the Pension Rate Calculator A appearing at the end of s 1064.  Module A sets out a step by step method statement for calculating the daily rate applicable.  It is worked out by dividing, by 364, the annual rate worked out according to the Rate Calculator.  The first step involves calculation of the person’s Maximum Basic Rate using Module B.  The remaining steps cover supplementary allowances and the application of income and asset tests which are elaborated in other Modules set out in the Act.  The Maximum Basic Rate calculation is determined by a yearly rate which differs according to whether the person is single or partnered and other factors not material for present purposes.  The Maximum Basic Rate set out in Module B is indexed six monthly in accordance with CPI increases pursuant to the provisions of Pt 3.16 which incorporates ss 1189 to 1195.  Although those provisions have some complexity, they essentially provide for progressive increases in the basic rate for various pensions and allowances.  They confer no power, where arrears are to be paid, to determine the arrears by reference to the rate applicable at the time of the calculation.  Absent any such power conferred on primary decision-makers under the Act the question arises whether such a power is conferred on the SSAT or the AAT on review.  In my opinion it is not.

45                  Part 4, Division 3 of the Administration Act provides for review of decisions under the Act by the SSAT.  By s 142 of the Administration Act, when a decision has been reviewed by an authorised review officer (inter alia) and the decision has been affirmed, varied or set aside, a person whose interests are affected by the decision of the review officer may apply to the SSAT for review of that decision.  The SSAT is empowered by s 149 to affirm or vary the decision or to set it aside and substitute a new decision or to send the matter back for reconsideration in accordance with the directions or recommendations of the SSAT.  Section 149(2) empowers the SSAT, where it sets a decision aside and substitutes for it a decision that a person is entitled to a social security payment, to assess the rate at which the payment is to be paid to the person or ask the Secretary or CEO to assess the rate. 

46                  The powers of the SSAT are also set out in s 151(1) which provides:

‘(1)      Subject to subsection (2), the SSAT may, for the purpose of reviewing a decision under the social security law, exercise all the powers and discretions that are conferred by the social security law on the Secretary.’

Subsection 151(2) is not material for present purposes.

47                  Part 4, Division 5 of the Administration Actprovides for review by the AAT of SSAT decisions.  Section 179(1) provides:

‘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.’

The balance of the provisions of Division 5 of Pt 4 of the Administration Act leave to the AAT Act the powers of the AAT upon review which have already been referred to in these reasons.

48                  None of the above provisions in my opinion confers upon the AAT in reviewing an SSAT decision to do anything more than the SSAT or the officer whose decision was affirmed by the SSAT was empowered to do.  On that basis there was no power in the AAT to substitute for the cancellation decision a decision that payment of age pension be made calculated at then current rates.  A fortiori there was no power in the Secretary to whom the question of calculation was remitted to calculate the rate of back payment according to current rates.  In my opinion this aspect of Mr Theo’s appeal cannot succeed.

49                  The second point made by Mr Theo in relation to the calculation of his arrears was that it should have been assessed on the single rate as he was separated from his wife, Athina.  There was little indication in the letter sent by Mr Theo to the Department on 11 July 2003 complaining about the back payment that he was claiming the single rate.  There did appear in that letter the rather cryptic statement:

‘ – you have not eliminated Athina Theo’s name and number from the card’

Mr Theo also claimed that the calculations in the letter were based on the single rate.  He suggested that there were documents that spelt out his single status.  In his claim lodged at Centrelink on 6 October 2003 the word ‘separated’ was written under the question ‘Are you (or your partner) claiming Age Pension (BLIND) ?’  This document post dated the arrears calculation.  Mr Theo also claimed that he had told the SSAT that he was single.  The point appears in the notice of appeal only in the ‘Orders Sought’ which include the reinstatement of Mr Theo’s age pension at the latest single person’s status rate.  In my opinion, however, this point does not disclose any error of law on the part of the AAT.  If it could be made out it should have been put squarely to the AAT.  The evidence appeared on any view insufficient to support any finding of the date and circumstances of Mr Theo’s alleged separation from his wife.

50                  The next point made in respect of the arrears was that the AAT should have awarded Mr Theo compensation because of the losses he suffered as a result of the wrongful cancellation of his pension.  It is clear, as I pointed out to Mr Theo at the hearing, that the AAT had no power to make any such order.  Other arguments going to this point were entirely without any legal merit.

The AAT’s decisions relating to cancellation of the age pension and refusal of new claims for the age pension

51                  I have set out earlier the AAT’s reasoning in relation to the decision to cancel Mr Theo’s pension on 10 September 2003 and the rejection of his fresh claims in October 2003 and April 2004.  All of these decisions related to Mr Theo’s refusal to supply information required by law to be supplied in relation to his entitlement and his claims.  Although I have had some reservations about the AAT’s reliance upon the s 196 notices as a basis for attracting the application of s 63(4) of the Administration Act, I am satisfied that in the circumstances of this case any error of construction in that regard would not have affected the outcome.  In any event the point was not taken. 

52                  None of the other arguments advanced by Mr Theo disclosed any error of law on the part of the AAT.  There was no estoppel which would overcome the statutory powers which supported the cancellation of his pension and the limitation on eligibility under s 63(4) which prevented such a payment being made.  There was no constitutional issue arising in this case.  Mr Theo argued for some form of contractual entitlement of a constitutional character deriving from his contributions as a taxpayer.  The provisions of the Income Tax Assessment Act do not affect the construction or operation of the provisions of the Act or the Administration Act. 

53                  Mr Theo made the point that no trust deed was necessary to affect his relinquishment of control under the Solon Theo Family Trust.  Even allowing for that argument as a response to the requests for information with which he did not comply, he did not comply with other aspects of the requests and, in particular, with the requirement for completion of a PT Module form.  In my opinion Mr Theo has not been able to point to any error of law on the part of the AAT which would entitle him to the relief sought.

Conclusion

54                  No error of law having been shown in respect of any of the decisions of the AAT, the appeal is dismissed.   Mr Theo will be required to pay the costs of the appeal

Associate:

Dated:              29 June 2005