Akers and Secretary, Department of Employment (Social services second review)

This matter concerned an appeal by the applicant, Akers, against a decision by the Secretary of the Department of Employment regarding the payment of Newstart allowance. The dispute centred on whether a loan made by the applicant to a family trust constituted an asset that exceeded the assets value limit for the allowance, and whether the asset hardship provisions applied.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant's loan to the family trust was an asset that rendered him ineligible for Newstart allowance due to exceeding the assets value limit. Secondly, if the loan was considered an asset, whether it was an unrealisable asset, and if the available funds from the loan drawdowns exceeded the annual maximum rate of Newstart allowance, whether the applicant experienced severe financial hardship.

The Tribunal applied the principle that individuals cannot disregard complex financial structures they have created to gain legal advantages when it becomes inconvenient to acknowledge those structures and their consequences. In this instance, the applicant had the capacity to access the funds from the loan drawdowns and/or remove the trustee in his capacity as appointer of the trust. Consequently, the Tribunal found that the applicant had not experienced severe financial hardship and that the proceeds of the loan drawdowns were available to him. The Tribunal affirmed the decision under review.