Theo and Secretary, Department of Family and Community Services [2003] AATA 489 (30 May 2003)

Last Updated: 30 January 2008

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 489

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/1087

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SOL THEO

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date 30 May 2003

Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes its decision that the applicant’s age pension was wrongly cancelled and the Tribunal remits the matter to the respondent to calculate the amount of age pension payable to him.

(Sgd) R G Kenny
Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - age pension - cancellation of age pension - validity of notices – whether failure to comply with notices - deemed receipt of notice - calculation of time
Acts Interpretation Act 1901 ss 28A, 29 and 36

Social Security Act 1991 ss 1207, 1207P

Social Security Act (Administration) 1999 ss 68, 72, 81, 118, 179, 192 and 196

Re Carruthers and Secretary, Department of Social Security (1993) 31 ALD 567

REASONS FOR DECISION

30 May 2003

Mr R G Kenny, Member

THE APPLICATION

1. Sol Theo (the applicant) and his wife, Athina Theo, were in receipt of age pension and blind pension, respectively, when Part 3.18 (Means test treatment of private companies and private trusts) of the Social Security Act 1991 (the Act) commenced operation on 1 January 2002. At various times from February to May 2002, the Centrelink officers sent letters to the applicant requesting that he provide information about his involvement in the Solon Theo Family Trust. On 12 June 2002, a delegate for the Secretary, Department of Family and Community Services (the respondent) determined that the applicant’s age pension was cancelled. That decision was affirmed on 13 September 2002 by an authorised review officer (see T36) and, in turn on 25 November 2002, by the Social Security Appeals Tribunal (see T2). On 11 December 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) (see T1).

APPEARANCES

2. The applicant attended the hearing and was not represented. Mr R McQuinlan appeared on behalf of the respondent.
3. At the hearing, the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence as exhibit 1 (T1-T42) as well as the following:
   • exhibit 2: a record of contacts between the applicant and the respondent from 5 February 2002 to 7 March 2003;
   • exhibit 3: a letter, dated 20 March 2003, from the respondent to the applicant;
   • exhibit4: a bundle of documents with Appendices A to F provided by the applicant;
   • exhibit 5: a statutory declaration, dated 27 June 2002, by the applicant;
   • exhibit 6: a statement of facts and contentions, dated 21 March 2003, from the respondent; and
   • exhibit 7: a blank statutory declaration – Change of Trustee form.

APPLICANTS’ CASE

4. The applicant gave the following evidence.
5. Since its establishment and until 14 December 2001, he was the trustee of a private trust, the Solon Theo Family Trust (the trust) (see T4). He said that, on 14 December 2001, he transferred his position as trustee to his son, Paul Theo, and also that he completed a statutory declaration on that date which declared that he had done so.
6. In cross-examination, the applicant was asked about the trust. In response, he said that he could not remember when or why the trust was established, whether or not he was a beneficiary, whether his wife was a beneficiary or whether the trust held real estate as an asset at the time when he ceased his involvement as trustee. He agreed that he had not produced to the respondent a copy of the statutory declaration, dated 14 December 2001, at any time prior to the hearing in the Social Security Appeals Tribunal in November 2002 and said that this was because he had provided other proof that he had ceased his involvement with the trust. In particular, he referred to a form entitled “Declaration – No Longer Involved” (see T16) which he said he completed and sent to the address nominated in that form, which was in Canberra. He noted that the respondent alleged that they did not receive that document but said that this was not his fault as he had sent it to the nominated address.
7. The applicant said that he could not recall whether he had ever previously relinquished his role as trustee of the trust. He also agreed that he was a qualified accountant but said that he could not recall when he ceased to practice in that field. When asked by Mr McQuinlan why he had appointed his son, Paul, as trustee, the applicant said that he did it becauuse he was able to appoint him and because he couldn’t appoint Mr McQuinlan as trustee. He said that he had carried out all of his obligations as a trustee and had handed all the relevant documentation to his son.
8. When asked about relinquishing his role as trustee, the applicant said that there was no special significance to the date and that it just happened to have occurred on that day. He indicated that he had experienced some health problems asociated with a heart condition some years earlier but that he was no longer troubled by this. The applicant agreed that he had received an Information Booklet about private trusts and the new rules concerning the manner in which private trusts were to be treated for the purpose of the income and assets tests relating to pension payments. He said that he was aware of the content of that booklet but said that this was not a concern to him because he had ceased his involvement prior to 1 January 2002 when the new rules commenced.
9. The applicant was referred to a statutory declaration, dated 25 March 2003, signed by his wife (see exhibit 4-appendix E). He was asked if he had prepared that document for her and he said that it was possible that he had done so. In response to a question from Mr McQuillan in relation to his wife’s reading ability, the applicant said that he “should ask her”.
10. The applicant referred to exhibit 6, the respondent’s statement of facts and contentions, and said that he had been contacted by Centrelink staff and encouraged to reach a settlement in relation to his age pension. He contended that this had been done because the respondent had become aware that it had not complied with the correct procedures in dealing with him and in cancelling his pension. He was critical of the way that Centrelink staff had treated him.
11. The applicant agreed that he received letters from Centrelink about his role in the trust, including one, dated 5 February 2002, that had been sent to his wife. He was referred by Mr McQuinlan to a letter, dated 18 February 2002, which he wrote to Centrelink and in which he stated:

“In regard to the above and your letter dated the 5/2/02, sent to my wife please note the following.

I am the trustee of the DISCRETIONARY TRUST known as the S. THEO FAMILY TRUST.

In such capacity, replying to your above mentioned letter, I wish to draw your attention to the fact that the said trust does not fall under the category of a Private Trust or a Private Company, and the said change of rules, as mentioned and detailed in your abovementioned letter and enclosures, do not concern us.

I am of the opinion that a copy of the mentioned DISCRETIONARY TRUST is in your records which will confirm same.”

12. In his evidence, the applicant said that there was a simple mistake of grammar in the second sentence of that letter and that he had meant to express it in the past tense so that it should have read that he “was” the trustee of the trust. The applicant also denied that he had repeated the statement that he was still the trustee in an interview that he had with a Centrelink officer on 28 February 2002. He was shown a copy of a file note relating to that interview (see T10) and said that he had not been responsible for preparing that file note, that he used the past tense in the conversation and that his comment must have been recorded incorrectly.

RESPONDENT’S CASE

13. Mr McQuinlan submitted that the applicant had been in receipt of an age pension since 23 July 1998, that his wife has been in receipt of a non means tested blind pension and that, at the date of the grant of age pension, the applicant was the trustee, with power of appointment, of the Solon Theo Family Trust (the trust) and the applicant's wife, together with their children Tania, Paul and Alexander Theo, were beneficiaries of the trust.
14. Mr McQuinlan referred to changes to the Act made by the enactment of Part 3.18 which resulted in a new mechanism for the assessment of private trusts and companies from 1 January 2002. He submitted that Part 3.18 of the Act only applies to designated private trusts and companies and that the definition of “designated private trust” in section 1207P of the Act encompassed the trust in this case. Therefore, he submitted, Centrelink was bound to request information relating to the applicant’s interest and involvement in the trust to ascertain the correct rate of age pension payable to him.
15. Mr McQuinlan submitted that, on 5 February 2002, the applicant's wife was sent a letter requesting that she supply completed forms relating to her and her husband's involvement in the trust or company by 18 February 2002 and that, in the letter, dated 18 February 2002, the applicant stated that he was still the trustee of the trust but that he believed that the trust was not embraced by the new rules. Mr McQuinlan also submitted that, on 25 February 2002, a letter was sent to the applicant requesting the supply of further information about the trust and that, on 28 February 2002, an interview was conducted in which the applicant is recorded as having advised he has a trust where he is the trustee.
16. He submitted that, on 7 March 2002, a further letter was sent to the applicant requesting the return of the same information about his involvement in the trust by 14 March 2002, and that other attempts were made to contact the applicant by telephone but that these were unsuccessful and a decision was made on 8 April 2002 to suspend his payments. He said that a letter was issued to him on the same day informing him of this decision and that, as Centrelink had no record of any further contact from the applicant, a decision was made on 12 June 2002 to cancel his pension.
17. Mr McQuinlan referred to the applicant’s evidence that he sent a “Declaration – No Longer Involved” form, dated 1 May 2002, to Centrelink in Canberra but submitted that there was no record of receipt of that form. He referred to a copy supplied by the applicant at T16-38.
18. Mr McQuinlan referred to the following exchanges between the applicant and Centrelink since the cancellation decision had been made. On 19 June 2002, the applicant wrote to Centrelink to advise that he had returned the requested information and sought a review of the cancellation decision. On 24 June 2002, the applicant was advised by letter that he needed to supply further documentation to support his declaration that he was no longer involved in the trust and an attachment to the letter contained detailed information of the kind of material that would suffice for that purpose. On 27 June 2002, the applicant supplied a statutory declaration asserting that he had relinquished all formal roles in the trust. He supplied this material again at an interview on 27 June 2002 and was advised that he needed to provide further material to support his claims, in particular an amended trust deed. On 29 July 2002, a further letter was issued to the applicant requesting the supply of material by 12 August 2002.
19. Mr McQuinlan submitted that the applicant or his partner were requested to provide the necessary information on a number of occasions prior to the suspension and cancellation decisions: on 5 February 2002, 25 February 2002 and, again, on 7 March 2002. He submitted that each request purported to be a request issued under section 196 of the Social Security Act (Administration) 1999 (the Administration Act) and warned the applicant or his wife of the potential for the suspension or cancellation of either payment if the requested information was not supplied. He submitted that failure to comply with a notice issued under section 196 can result in a suspension or cancellation determination under section 81 of the Administration Act and that the decisions to suspend and later cancel the applicant’s age pension were made in accordance with the requirements of the Administration Act.
20. Mr McQuinlan submitted that at no stage has the applicant supplied sufficient information so as to enable Centrelink to assess his, or his partner's, involvement in the trust and that further information was needed to assess the combined interest of the couple because the pension rate calculator contained in Part 33 of the Act requires a combined assessment of a pensioner couple's income and assets. He submitted that, at no stage has the applicant provided an amended trust deed as would be needed to evidence the fact that he has relinquished his power of appointment. He referred to the statutory declaration tendered to the Social Security Appeals Tribunal on 25 November 2002 and said that this was, despite repeated requests and a protracted period of time, never supplied to Centrelink. He submitted that the emergence of this document at such a late point in the appeal process raised justified questions as to its veracity. He submitted that the document was contrary to that of the letter dated 18 February 2002 and the comment the applicant made to a Centrelink officer on 28 February 2002. He submitted that the difference cannot be explained as a simple grammatical error or as an incorrect recording of the applicant’s comment.
21. In relation to the statutory declarations, dated 25 March 2003, completed by the applicant and his wife (see exhibit 4–appendices D to E), Mr McQuinlan submitted that these gave no guidance to the state of involvement by them in the trust at any time in 2002.
22. Mr McQuinlan submitted that the evidence of the applicant was unreliable and he referred to the evasive manner in which he responded to questions.
23. Mr McQuinlan conceded that there may be some question of the validity of the notices issued prior to the suspension and later cancellation decisions, due to the operation of sub-section 196(3) of the Act which requires that a period of time be given for a person to respond to the Centrelink letter and that this be not less than 14 days. The letter dated 5 February 2002 requested the return of the information by 18 February 2002; that dated 25 February 2002 simply stated that the forms needed to be completed and returned; and the letter issued on 7 March 2002 advised the applicant to return the information by 14 March 2002. However, Mr McQuinlan submitted that there were two bases for deciding that the decisions to suspend and cancel were nevertheless correct.
24. The first submission of Mr McQuinlan was that the letters should be treated as a series. Given that the consequences of a narrow interpretation of the provision might result in a sizable payment of arrears to which the applicant does not appear to be entitled, he contended that an expansive reading of the word “notice” in the provision was called for and, indeed, was appropriate in this case. He submitted that there was nothing in the Act or the Administration Act stating that the letters should not be read together so as to constitute one notice to the applicant notifying him that he needed to supply information to the respondent in order to correctly assess his age pension entitlement. He submitted that, if this approach were to be adopted, the letters issued on 5 February 2002 or 25 February 2002 could be read in conjunction with the letter issued on 7 March 2002. Doing so, he submitted, would fix the time of the supply of the material to be 14 March 2002 and thus meet the requirements of sub-section 196(3) of the Act. He submitted that, essentially, the requirements contained in section 196 have been complied with, and that the purpose of the provision would not be defeated as the applicant has been given ample time and opportunity to supply the requested material. He noted that the applicant’s payments were not suspended until 8 April 2002, well after the time for the provision of the material specified in any of the letters.
25. Alternatively, Mr McQuinlan submitted that the notices be treated as being valid in accordance with sections 68 and 72 of the Administration Act, according to which a notice period of only 7 days is applicable. He submitted that, quite apart from the notice requirements of section 196 of the Administration Act, the applicant was requested to supply a “statement about a matter that might affect the payment to the person of the social security payment”. He was required to complete and return a form, or statement, sign the statement, and supply it to the Department. This meant that they were valid under sections 68 and 72 of the Administration Act.
26. Mr McQuinlan also submitted that, if the letters sent to the applicant in February or March were not valid notices, reliance could be placed on the letter of 29 July 2002 as a valid section 196 notice according to which the applicant’s age pension should be cancelled because he did not provide the requested information by the return date specified therein. For that proposition, he relied on subsection 179(4) of the Administration Act which provides that if a decision is set aside by the AAT and the Secretary is satisfied that an event did not occur that would have occurred but for the set aside decision, the Secretary may direct that an event that did not happen is taken to have occurred for the purposes of social security law. He submitted that, if the Tribunal set aside the original cancellation decision then subsection 179(4) would allow for a later, valid, section 196 notice to be used to base a later cancellation event because further cancellation action would have been taken by the Secretary in the event of him discovering that the first cancellation was not valid.
27. Finally, Mr McQuinlan submitted that any matter relating to the payment of arrears would need to be remitted to the respondent because the calculation of those arrears could only be undertaken once the nature of the applicant’s trust involvement was determined in accordance with the terms of Part 3.18 of the Act and the relevant income and assets tests applicable to his circumstances.

ISSUES AND LEGISLATION

28. The respondent cancelled the applicant’s age pension because he failed to provide information to verify that he was no longer the trustee of the trust. The information was required due to Centrlink’s understanding of the involvement by the applicant as trustee and by his wife as a beneficiary of the trust. This was because of the operation of the new rules for dealing with private trusts and also because information was required concerning their income from the trust as the age pension is subject to an income test. This information had been requested by notices sent both to the applicant and his wife.
29. Relevant provisions of the Act read:

“Simplified outline (Part 3.18)

1207 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.

...

Designated private trusts

1207P(1) For the purposes of this Part, a trust is a designated private trust unless:

(a) all of the following conditions are satisfied:

(i) the trust is a fixed trust;

(ii) the units in the trust are held by 50 or more persons;

(iii) the trust was not created, continued in existence or operated under a scheme that was entered into or carried out for the sole or dominant purpose of enabling any individual or individuals to avoid the application of this Part and/or Division 11A of Part IIIB of the Veterans' Entitlements Act; or

(b) the trust is a complying superannuation fund (see sub-section (3)); or

(c) the trust is an excluded trust (see sub-section (4)).

1207P(2) For the purposes of subparagraph (1)(a)(ii), an individual and his or her associates are taken to be one person.”

30. Sections 68, 72, 81 and 196 of the Administration Act read:

“Person receiving social security payment or holding concession card

68(1) Subsection (2) applies to a person to whom a social security payment is being paid.

68(2) The Secretary may give a person to whom this sub-section applies a notice that requires the person to do either or both of the following:

(a) inform the Department if

(i) a specified event or change of circumstances occurs; or

(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;

(b) give the Department a statement about a matter that might affect the payment to the person of the social security payment.

...

Provisions relating to notice

72(1) A notice under this Subdivision:

(a) must be given in writing; and

(b) may be given personally or by post or in any other manner approved by the Secretary; and

(c) must specify how the person is to give the information or statement to the Department; and

(d) must specify the period within which the person is to give the information or statement to the Department; and

(e) must specify that the notice is an information notice given under the social security law.

72(2) A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).

72(3) Subject to sub-sections (4), (5), (6) and (7), the period specified for the purpose of paragraph (1)(d) must:

(a) in the case of a notice under section 67, 68 or 69 that requires the giving of information about an event or change of circumstances consisting of the receipt by the person of a compensation payment-be the period of 7 days after the day on which the person becomes aware that he or she has received, or is to receive, a compensation payment; or

(b) in the case of a notice under section 67, 68 or 69 that requires the giving of any other information, or a notice under section 70-be the period of 14 days after:

(i) the day on which the event or change of circumstances occurs; or

(ii) the day on which the person becomes aware that the event or change of circumstances is likely to occur;

as the case may be; or

(c) in the case of a notice under section 67 or 68 that requires the giving of a statement that relates to the payment of the social security payment in respect of a period specified in the notice-end not earlier than 7 days after the day on which the notice is given; or

(d) in the case of a notice under section 67, 68 or 69, that requires the giving of a statement, not being a notice to which paragraph (c) applies-end not earlier than 14 days after the day on which the notice is given.

...

Cancellation or suspension for non-compliance with certain notices

81(1) If:

(a) a person who is receiving a social security payment (other than a newstart allowance) has been given:

(i) a notice under section 67 or 68 that requires the person to give the Department a statement; or

(ii) a notice embodying a requirement under Division 1 of Part 5; and

(b) the person does not comply with the requirement of the notice;

the Secretary may determine that the payment is to be cancelled or suspended.

81(2) If:

(a) a person and his or her partner (the partner) are each receiving a social security payment; and

(b) the partner has been given:

(i) a notice under section 67 or 68 that requires the partner to give the Department a statement; or

(ii) a notice embodying a requirement under Division 1 of Part 5; and

(c) the notice relates to matters that might also affect the payment of the person's social security payment; and

(d) the partner does not comply with the requirement of the notice;

the Secretary may determine that the person's payment is to be cancelled or suspended.

...

Written notice of requirement

196(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.

196(2) The notice:

(a) may be given personally or by post or in any other manner approved by the Secretary; and

(b) must specify:

(i) how the person is to give the information or produce the document to which the requirement relates; and

(ii) the period within which the person is to give the information or produce the document to the Department; and

(iii) the officer (if any) to whom the information is to be given or the document is to be produced; and

(iv) that the notice is given under this section.

196(3) The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given.

196(4) The notice may require the person to give the information by appearing before a specified officer to answer questions.

196(5) If the notice requires the person to appear before an officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.”

31. Relevant parts of sections 28A, 29 and 36 of the Acts Interpretation Act 1901 read:

“28A(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression ‘serve’, ‘give’ or ‘send’ or any other expression is used, then, unless the contrary intention appears, the document may be served:

(a) on a natural person:

(i) by delivering it to the person personally; or

(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b) on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

28A(2) Nothing in sub-section (1):

(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that sub-section; or

(b) affects the power of a court to authorise service of a document otherwise than as provided in that sub-section.

29(1) Where an Act authorises or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

...

36(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.”

32. Part 3.18 of the Act commenced operation on 1 January 2002. From the simplified outcome of the Part in section 1207 of the Act, it can be seen that it sets up a system for the attribution to individuals of the income of private trusts where the trust is a “designated private trust” under section 1207P of the Act. Under sub-section 1207(1) of the Act, a trust is a “designated private trust” unless it falls into one of the categories listed in the provision. It is not in issue wheher or not the trust in this case is a designated private trust. Rather, the issue is whether or not the decision to cancel the applicant’s age pension was correct.

CONSIDERATION

33. As noted above, whether or not the trust is within the ambit of Part 3.18 of the Act is not a matter to be determined in this case and evidence of that has not been heard. However, I am satisfied that it is arguably within the ambit of that Part of the Act and that the respondent was obliged to obtain information from the applicant and his wife about the trust and their involvement in it.
34. The notice dated 5 February 2002 to the applicant‘s wife requested that information be returned by 18 February 2002 (see T7). The notices dated 25 February 2002 and 24 June 2002 to the applicant requested that information be returned but no return date was given (see T9 and T20). The notice dated 7 March 2002 to the applicant requested that information be returned by 14 March 2002 (see T11). The notice dated 29 July 2002 to the applicant requested that information be returned by 12 August 2002 (see T27). Each of those notices contained a specific statement that it was a notice under the Administration Act, the first of those letters nominating section 192 and the others nominating section 196 thereof. Section 192 provides the general power to obtain information and section 196 provides for written notices to be issued to obtain that information. Sub-paragraph 196(2)(b)(ii) of the Administration Act requires that the period within which the person is to give the information requested must be specified and sub-section 196(3) of the Administration Act provides that the period specified must not end earlier than 14 days after the notice is given. The notices were given by post and that is in accordance with the terms of sub-section 196(2) of the Administration Act.
35. Pursuant to sub-section 29(1) of the Acts Interpretation Act 1901, where an Act authorises or requires any document to be given by post, service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post unless the contrary is proved. In this case, there is no evidence that the notices were not received in the normal course of post by the applicant at his address at Deception Bay or that this was not done on the day following the day of posting.
36. Notice provisions must be construed strictly: see Re Carruthers and Secretary, Department of Social Security (1993) 31 ALD 567 at 569. In particular, that is the case where penalties may be imposed for breach of a notice requirement. In this case, the consequence of non-compliance was the cancellation of a social security benefit. Also, not only may pension entitlements be in jeopardy for failure to comply with a notice, but criminal sanctions may also be imposed: see section 74 of the Administration Act in respect of a section 68 notice (6 months imprisonment) and section 197 of the Administration Act in respect of a section 196 notice (12 months imprisonment). Applying that principle, I am satisfied that the letters of 5 February 2002 and 7 March 2002, which specified a time frame that was less than 14 days were defective as notices under section 196 of the Administration Act. I am also satisfied that the letters of 25 February 2002 and 24 June 2002 specified no time frame and were also defective as notices under section 196 of the Administration Act.
37. The only other letter which may constitute a valid notice under section 196 of the Administration Act is that dated 29 July 2002. I have noted the respondent’s submission in relation to sub-section 179(4) of the Administration Act and this letter. That provision reads:

“179(4) If:

(a) the AAT sets aside a decision of the SSAT; and

(b) the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, direct that the event is to be taken, for the purposes of the social security law, to have occurred.”

38. As I read that provision, it is concerned with situations where a decision of the Social Security Appeals Tribunal is set aside and where, if that incorrect decision of the Social Security Appeals Tribunal had not been made, an event may have occurred, but didn’t, because of the incorrect decision. The provision then allows for an event to be deemed to have occurred. This means that the provision will only operate in relation to matters that arise or could have arisen after the decision of the Social Security Appeals Tribunal was made. That was in November 2002. The letter of 29 July 2002 predated that decision. Nevertheless, I have also considered whether the letter of 29 July 2002 may constiute a valid notice under section 196 of the Administration Act.
39. The letter of 29 July 2002 requested that the applicant provide information evidencing that he had relinquished control of the trust prior to 1 January 2002 and it stated that this was to be provided by 12 August 2002. Applying sub-section 29(1) of the Acts Interpretation Act 1901, this letter may be deemed to have been received by the applicant in the ordinary course of post on 30 July 2002. I am satisfied that this was the earliest date on which he could have received that letter.
40. Sub-section 36(1) of the Acts Interpretation Act 1901 provides that, where any period of time, dating from a given day, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day. This would exclude the day of 30 July 2002 and the time period required by sub-section 196(3) of the Administration Act would begin to run on 31 July 2002. On that view, 12 August 2002 would be the 13^th day thereafter and the relevant time-frame would not be met. However, I am satisfied that a contrary intention to that general provision in sub-section 36(1) of the Acts Interpretation Act 1901 is found in sub-section 196(3) of the Administration Act where it provides that the period specified must not end earlier than 14 days “after the notice is given” and I am also satisfied that the reference to the notice being “given” in that provision is to the date when it was received, in this case, 30 July 2002. This means that the relevant time-frame begins to run from the delivery of a letter in the ordinary course of post on 30 July 2002. The period allowed in the letter for the applicant to reply would have ended with the close of business on 12 August 2002. That period comprises 13 full days and some part of a 14^th day and, therefore, is less than 14 days. Sub-section 196(3) of the Administration Act specifies that the period “must not end earlier than 14 days after the notice was given”. That requirement is not met by the time-frame set by the letter of 29 July 2002 and I am satisfied that this was not a valid notice under section 196 of the Administration Act.
41. It was submitted that the various letters sent to the applicant or to his wife might be treated as a series of documents which, taken together, constitute a single notice to provide a time-frame that complies with sub-section 196(3) of the Administration Act. I do not accept the correctness of that submission. As noted above, notice requirements are to be strictly construed and to extend the concept of a notice in the manner submitted does not accord with that principle.
42. It was also submitted that the letters might be treated as notices under section 68 of the Administration Act and that, because of the shorter time of 7 days specified in paragraph 72(3)(c) of the Administration Act for this type of notice, the notices of 5 February 2002 and 7 March 2002 would meet the statutory time requirement. Again, I am unable to accept the correctness of that submission. The notices were all specific in their reference to the source of their authority with each of them identifying section 192 or section 196 of the Administration Act. Sections 68 appears in a different Part of the Administration Act than do sections 192 and 196. Section 68 is in Part 3 Division 6 and is associated with obtaining information about changed circumstances; sections 192 and 196 are in Part 5 Division 1 and are concerned with information gathering. The legislature clearly distinguished between the two types of notice by setting differing compliance times and, also, as noted above, by providing different criminal penalties for breaching the respective provisions.
43. It should be noted that the applicant may well have replied within the time-frame set by the letter of 5 February 2002 in sending his response dated 18 February 2002. The document bears no stamp to mark the time of its receipt by the respondent (see T8). However, that does not change the nature of the notice. In any event, even if the letter was returned within the period specified, the respondent has maintained that it did not receive the information sought concerning the applicant’s involvement in the trust.
44. I am satisfied that no valid notice was sent to the applicant under Part 5 Division 1 of the Administration Act. This means that there was no basis for applying section 81 of the Administration Act to suspend or cancel the applicant’s age pension. It also means that the decision under review must be set aside.
45. Having observed and listened to the applicant giving evidence and making submissions, I am satisfied that he is not a reliable witness. I accept as correct the submission of Mr McQuinlan that the applicant was evasive and gave responses that were vague and misleading.
46. In evidence was a copy of the deed which established the trust at issue in this case (see T4). It declares the applicant to be the trustee, nominates the beneficiaries as the applicant’s wife and their children and gives the applicant the power to appoint a new trustee. His evidence was that he signed a statutory declaration on 14 December 2001 declaring that he had transferred the powers of the trustee to his son. That statutory declaration is contrary to the letter, dated 18 February 2002, written by the applicant. Therein, he stated that he was still the trustee. I reject his explanation that it was a simple grammatical error in relation to the tense adopted. The letter was written for the purpose of rebutting the requirement of providing information to Centrelink. It was a response to the letter of 5 February 2002 to his wife. If he was no longer the trustee, he would have clearly said so. However, more importantly, the letter was written for the applicant to state his belief that the type of trust in which he was involved, a discretionary trust, was not one that was embraced by the changes in the legislation. While he believed that, it would not matter to him that he was still the trustee.
47. I have read the file note of the conversation between a Centrelink officer and the applicant on 28 February 2002 (at T10). It records that the applicant declared himself still to be the trustee of the trust. It is entirely consistent with the applicant’s letter of 18 February 2002 and I accept it as an accurate record. For those reasons, I have much difficulty in accepting the applicant’s evidence that the statutory declaration purporting to have been signed by him on 14 December 2001 was actually signed on that date. However, even if it were signed on that date, that would not be evidence of the change of the status of the trustee of the trust. What was required was evidence of an amendment to the trust deed or of a deed of variation of the trust deed. This was not provided by the applicant.
48. Another statutory declaration was completed by the applicant on 27 June 2002 (see T25). Therein, he again declared that he was no longer the trustee of the trust and he also declared that neither he nor his partner held any position in the trust. The document makes no reference to whether his wife continued to be a beneficiary of the trust. In further statutory declarations dated 25 March 2003 (exhibit 4-appendices D and E), the applicant and his wife each declared that they thereby renounced any alleged interest in the trust. Those documents do not provide any reference to any previous renunciation of their interests which may relate to their involvement in the trust prior to the commencement of Part 3.18 of the Act.
49. The applicant claims to have sent a declaration form to Centrelink in Canberra. He provided a copy of this and it is dated 1 May 2002 (see T16). I am satisfied that the original of that document was not received by the respondent. As with the statutory declaration of 14 December 2001, I have difficulty in accepting the applicant’s evidence that he sent the document to the respondent. However, even if he did, the declaration form requires additional material about the trust to be forwarded with it including proof of sale or transfer and there is no evidence that such additional material was forwarded to the respondent.
50. I accept the submission of Mr McQuinlan that the matter of the calculation of arrears must be remitted to the respondent because that calculation can only be undertaken once the nature of the applicant’s trust involvement is determined in accordance with the terms of Part 3.18 of the Act and in accordance with the relevant income and assets tests applicable to him.

DECISION

51. The Tribunal sets aside the decision under review and substitutes its decision that the applicant’s age pension was wrongly cancelled and the Tribunal remits the matter to the respondent to calculate the amount of age pension payable to him.

I certify that the preceding 51 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: Sarah Oliver

Associate

Dates of Hearing 21 March 2003 and 21 May 2003

Date of Decision 30 May 2003

The Applicant appeared in person

Solicitor for the Respondent Mr R McQuinlan, Departmental Advocate