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

[2006] AATA 1070

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1070

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/518

GENERAL ADMINISTRATIVE DIVISION		)
Re		IAN FREDERICK ALLCHIN

Applicant

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

Respondent

DECISION

Tribunal Senior Member P. M. McDermott, R.F.D

Date12 December 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.......[Sgd]........

PM McDermott

Senior Member

CATCHWORDS

SOCIAL SECURITY - age pension - assets test - valuation of marine berth license – net market value approach – decision affirmed

Social Security Act 1991, s 11

Yanner v  Eaton (1999) 201 CLR 351
Kirkovski v Secretary, Department of Family and Community Services [2004] FCA 790
Fong and Secretary, Department of Family and Community Services [2002] AATA 172
Secretary, Department of Social Security v Langton (1993) 31 ALD 579

REASONS FOR DECISION

12 December 2006   Senior Member P. M. McDermott, R.F.D   

1.      This an application by Mr Ian Allchin for the review of a decision of the Social Security Appeals Tribunal dated 19 June 2006.  The Social Security Appeals Tribunal varied the decision of the Authorised Review Officer so that the rate of age pension was to be assessed on the basis that the value of Mr Allchin’s assets as at 27 March 2006 was $303,158. 

2.      I have to determine the value of Mr Allchin’s assets as at 27 March 2006.

3.      The Social Security Appeals Tribunal found that as at 27 March 2006 Mr Allchin’s assets included financial investments worth $115,408; a yacht worth $100,000; a box trailer worth $750; household contents worth $3,500; motorcycles worth $6,000; a motor vehicle worth $7,500 and a marina berth licence worth $70,000. 

4.      I am satisfied that the assessment by the Social Security Appeals Tribunal of the value of the assets of Mr Allchin as at 27 March 2006 is correct and I find that the value of his assets at that date was $303,158.  Indeed, Mr Allchin in the hearing before me stated that he accepted the correctness of those valuations.  I might also add that Mr Allchin informed me that prior to the hearing he has been assisted by a legal practitioner as well as a former public servant. 

5.      One of the issues that were raised by Mr Allchin concerned the valuation of a marina berth licence at Breakwater Marina, Townsville.  In his statement of assets which was lodged with Centrelink, Mr Allchin estimated the value of that Marina berth licence as $20,000 (T5, folio 27).  The Australian Valuation Office has subsequently valued the Marina berth licence at $70,000 as at 27 March 2006.  That valuation is based on sales of other marine berths in Townsville (T11, folio 88). 

6.      In this present case Mr Allchin has suggested an alternative method of valuing the marine berth licence.  He pointed out that the marine berth was a licence and not a lease and he thought that the value of the licence should have been reduced each month by the amount obtained by dividing the market value of $70,000 by the number of months remaining of the lease.  This method of valuation also treats the marine berth licence as a wasting asset.  I might mention that this method of valuation does not really challenge the market value of $70,000 that has been placed on the marine berth licence by the Australian Valuation Office.

7.      I think that I should make some observations on the treatment of the marina berth licence as being an “asset” for the purposes for the Social Security Act 1991 (“the Act”). Section 11 of the Act defines an “asset” to mean “property or money”. The High Court of Australia in Yanner v Eaton (1999) 201 CLR 351 at [17] adverted to the fact that the term “property” adverts to a bundle of rights. The marina berth licence gives Mr Allchin the right to use, occupy and enjoy the marina berth (T8, folio 68). I also mention that the licence is assignable or transferable (T8, folio 69) and accordingly, Mr Allchin can within the constraints of the licence, assign his rights held under that licence. I am satisfied that the licence is an “asset” for the purposes of the Act.

8. It is true that the Act does not specify a particular mechanism for valuing an asset but this Tribunal has consistently adopted the approach of assessing the market value of assets. In Kirkovski and Secretary, Department of Family and Community Services [2004] FCA 790 Bennett J, at [17], remarked: “The test which seems to have been applied by the AAT in a majority of cases is a net market value approach based on comparable sales and the ‘best use’ to which the asset could be put”. See also, Secretary, Department of Social Security v Langton (1993) 31 ALD 579 at [34]; Fong and Secretary, Department of Family and Community Services [2002] AATA 172.

9.      In determining this application I regard the assessment by the Australian Valuation Office of the market value of the asset, which is based on sales of other marine berths, is an appropriate method of determining the value of the marine berth licence. 

10.     Mr Allchin has also has raised concerns concerning the conduct of staff of Centrelink and has raised a number of issues which he considers warrant attention.  These are matters beyond the scope of this Tribunal’s consideration, however the advocate for the Secretary has quite properly advised Mr Allchin of various options which are available to him and has provided him with information concerning his rights of complaint.

11.     I affirm the decision under review. 

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P. M. McDermott R.F.D

Signed:   Michelle Brazier

Legal Research Officer

Date/s of Hearing  7 December 2006
Date of Decision  12 December 2006
The Applicant was self represented
For the Respondent                 Mr M Black, Departmental Advocate