Antanelis and Secretary, Department of Social Services (Social security) - [2025] ARTA 1275

Antanelis and Secretary, Department of Social Services (Social security) [2025] ARTA 1275 (9 April 2025)

Applicant/s: Mr Antanelis

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/M192173
Tribunal: General Member B Walters
Place:Sydney
Date:9 April 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that from 27 June 2023 the value of Mr Antanelis’s interest in [Address 1], be calculated on the basis of an amount representing $5,056 less than an amount that is half the value of the property.

CATCHWORDS

SOCIAL SECURITY – Age Pension – blind pensioner – reduced pension rate under the assets test – hardship provisions – court order for property sale – value of total assets reduced – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

Mr Antanelis made a claim for age pension on 8 May 2024.
Services Australia (Centrelink) made a decision on 25 October 2024 to grant Mr Antanelis’s claim, with a start date of 13 July 2024, the date he reached age pension age.
Centrelink wrote to Mr Antanelis the same day, 25 October 2024, and advised that he had been granted age pension at a reduced rate of $415.40 per fortnight, having regard to total assets valued at $809,000.[1] The assets taken into account to determine Mr Antanelis’s rate of age pension included a property at [Address 1], valued at $800,000.[2]
[1] Page 177 of the hearing papers.
[2] Pages 128 and 135 of the hearing papers.
Mr Antanelis attended a Centrelink office in person on 14 October 2024 and submitted an application to request that the value of [Address 1] be disregarded under the assets test hardship provisions.[3]
[3] Page 154 of the hearing papers.
On 28 October 2024, Centrelink wrote to Mr Antanelis and advised that his request for the assets test hardship provisions to be applied in respect of the assessed value of [Address 1] had not been granted.[4]
[4] Page 180 of the hearing papers.
Mr Antanelis contacted Centrelink on 11 November 2024 and sought review of the decision to pay him age pension at a reduced rate.[5]
[5] Page 161 of the hearing papers.
On 20 November 2024, the authorised review officer (ARO) finalised their review. They recorded notes to Mr Antanelis’s Centrelink record confirming that they had:[6]
…reviewed the decision of 28/10/2024 to reject claim for consideration under assets hardship provision and pay less than the maximum rate of Age Pension from 13/7/2024.
[6] Page 167 of the hearing papers.
The ARO affirmed these decisions, finding that:[7]
·     Mr Antanelis does not meet the criteria to be assessed as legally blind, so his age pension rate is calculated using the pension income and assets tests,
·     The value of [Address 1] is $800,000,
·     The value of Mr Antanelis’s assessable assets exceeds the assets‑free area for a full age pension,
·     His rate of age pension was payable at a reduced rate from 13 July 2024, and
·     The value of [Address 1] may not be disregarded under the assets test hardship provisions as a court order has been made requiring that the property be sold, Mr Antanelis is not prevented from selling the property, and he has not taken any steps to vary the court order.
[7] Pages 4 and 5 of the hearing papers.
Mr Antanelis sought independent review of the decision from the Administrative Review Tribunal (the Tribunal) on 22 November 2024.
The application was heard on 17 March 2025. Mr Antanelis appeared at the hearing by telephone and gave affirmed evidence. The Tribunal had before it 190 pages of documents provided by Centrelink (the hearing papers), copies of which were received by Mr Antanelis prior to the hearing. After the hearing, Mr Antanelis provided the Tribunal with additional documents, numbered A1 to A9, which the Tribunal has also had regard to.

ISSUES

The statutory provisions relevant to this review are set out in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Family Law Act 1975.
The issues which arise in this case are:
·      Whether Mr Antanelis meets the requirements to be treated as a blind pensioner; and, if not,
·      Whether Mr Antanelis’s age pension is payable at a reduced rate under the assets test; and if so,
·      Whether the assets test hardship provisions may be applied to disregard the value of [Address 1].

CONSIDERATION

Issue 1 – Whether Mr Antanelis meets the requirements to be treated as a blind pensioner

Commonly, the rate of age pension a person is entitled to be paid is calculated using the Rate Calculator set out at section 1064 of the Act. The rate is calculated using an income test and an assets test. The lower of the two rates produced by each of the tests is the rate that is payable to a person.
However, the rate of age pension payable to a person who is permanently blind is calculated under the Rate Calculator set out at section 1065 of the Act and is not subject to assets or income testing.
The test for permanent blindness is set out in the Australian government policy document, the Social Security Guide (the Guide) at 1.1.P.210:
When determining permanent blindness for the purposes of DSP or Age, the following guidelines are applied:
·corrected visual acuity (1.1.V.50) on the Snellen Scale must be less than 6/60 in both eyes
·constriction to within 10 degrees or less of arc of central fixation in the better eye, irrespective of corrected visual acuity, or
·a combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points.
The policy set out in the Guide is not law, and the Tribunal is not strictly bound by it. However, the Tribunal may be guided by the policy unless it is inconsistent with the legislation.[8] The Tribunal considers the policy is not inconsistent with the legislation in this case and it is appropriate to apply it.
[8] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and Hneidi and Others v Minister for Immigration and Citizenship [2010] FCAFC 20.
On 24 October 2024, Mr Antanelis provided Centrelink with an SA013 Request for ophthalmologist/optometrist report form completed by [Optometrist A] on 23 October 2024.[9]
[9] Pages 108 to 113 of the hearing papers.
[Optometrist A] indicated in this form that:
·Mr Antanelis’s best corrected vision was 6/15-2 in his right eye and was poorer than 6/60 in his left eye;
·Mr Antanelis’s field of vision was constricted to 20 degrees in his better eye; and
·While Mr Antanelis had other visual defects, their combined effect did not result in the same degree of visual impairment as that of visual acuity of less than 6/60 in both eyes on the Snellen scale after correction by suitable lenses, or constriction of field of vision to 10 degrees or less of arc around central fixation in the better eye irrespective of corrected visual acuity.
At hearing, Mr Antanelis raised no concerns regarding [Optometrist A’s] report. He told the Tribunal that he is legally blind in his left eye and his vision in his right eye is deteriorating. He has a cataract in his right eye and has been referred for cataract surgery. He can read text so long as it is set out in large print.
The Tribunal finds that Mr Antanelis is not permanently blind. It follows that age pension is not payable to him under the Rate Calculator set out at section 1065 of the Act. This means that the value of Mr Antanelis’s assets may affect his rate of age pension.

Issue 2 – Whether Mr Antanelis’s age pension is payable at a reduced rate

The principal question for the Tribunal in relation to this application is how Mr Antanelis’s interest in [Address 1] should be treated for the purpose of the pension assets test.
As discussed, where a person is not permanently blind their rate of age pension is calculated using the Rate Calculator at section 1064 of the Act. The rate payable is the lower of the rates produced under the income test and the assets test.
Under sections 1064-G1 and 1064-G4, if the value of a person’s assets exceeds their assets value limit, then their annual rate of pension is reduced according to a formula set out at section 1064-G4. Section 1064-G3 sets out different assets value limits for single homeowners and non‑homeowners.
It is not in dispute that Mr Antanelis is a single non-homeowner and that the assets value limit for non-homeowners applies in relation to the assessment of his assets by Centrelink.
The assets value limit for a single non-homeowner was $566,000 on 13 July 2024, the date from which Mr Antanelis was granted age pension.[10] At time of writing, the assets value limit has not changed and is still $566,000.
[10] See the A guide to Australian Government payments from 1 July 2024.
Mr Antanelis told the Tribunal that [Address 1] is owned outright. He purchased the property in 1994, before he met his ex-partner in 2006. A dwelling was built on the property in 2010.
Mr Antanelis says the relationship with his ex-partner ended in 2022. Via mediation, he and his ex-partner reached an agreement about how to deal with their financial matters. An application was made to the Federal Circuit and Family Court of Australia (the Court) for orders by consent, recording this agreement. These orders were made by the Court on 27 June 2023.[11]
[11] Pages 101 to 105 of the hearing papers.
The orders made by the Court principally concern [Address 1] and provide for the property to be sold. The orders further provide that after payment of expenses of the sale, the net proceeds of the sale are to be divided between Mr Antanelis and his ex-partner on the basis that Mr Antanelis will receive 50% less $5,056, and his ex-partner will receive 50% plus $5,056.
Mr Antanelis told the Tribunal that he had declined to sign paperwork provided to him, which was necessary to proceed with the sale of [Address 1], due to administrative deficiencies in it. His ex-partner made an application to the Court for enforcement of the consent orders made on 27 June 2023. He said that he attended the Court in February 2025 in relation to that application and further orders had been issued reducing his share of the proceeds of the sale of [Address 1] by making him responsible to pay his ex-partner’s legal costs. He said that the orders also provided for his ex-partner to have the sole conduct of the sale of [Address 1], and for the proceeds of the sale to be reduced by disbursements made by her in relation to the property. Mr Antanelis said that, in practical terms, he no longer owns the property. He considers that he’ll be lucky to receive 35% of the proceeds of the sale.
After the hearing, Mr Antanelis provided the Tribunal with additional documents, including a title search demonstrating that a caveat was placed over the property [in] January 2023. Mr Antanelis also provided proposed minutes of consent orders that had been signed by him [in] February 2025. Most relevantly, the proposed orders provide for Mr Antanelis’s ex-partner to have the sole conduct of the sale of [Address 1] and to be authorised to conduct such works as are required to prepare the property for sale. Upon the sale of the property, the proceeds are proposed to be applied to pay all the costs and commissions of the sale, then to reimburse Mr Antanelis’s ex-partner in relation to any works undertaken to [Address 1], then to pay all outstanding taxes, insurances and utility bills for the property, and then the net balance is to be divided between Mr Antanelis and his ex-partner. Mr Antanelis’s ex-partner is to receive 50% of the net balance, plus $5,046 and $8,500 to account for the costs of the enforcement application, in addition to any costs incurred in the execution of her duties to conduct the sale of the property. Mr Antanelis will receive 50% of the net balance, less the amounts of $5,046 and $8,500, as well as the costs incurred by his ex-partner in the conduct of the sale of the property.
There is no dispute that the value of [Address 1] is $800,000.[12] A title search that Mr Antanelis provided to the Tribunal indicates that he is the sole proprietor of the property. However, Mr Antanelis contends that his pension should not be calculated with reference to the total value of the property. He considers that his interest in the property should be assessed by Centrelink having regard to the orders made by the Court on 27 June 2023, i.e., his rate of age pension should be calculated on the basis that his share of the value of [Address 1] is equal to 50% of the property’s total value, minus $5,056. He argues that his interest in the property has been further diminished by the recent orders of the Court which provide for an additional reduction of his share in the proceeds of the sale.
[12] Pages 4 and 135 of the hearing papers.
In Henderson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 468, the Administrative Appeals Tribunal (AAT) considered the relevance of Family Court orders providing for the sale of a property to the assessment of assets under the pension assets test, and the impact of the orders on that assessment prior to the sale of the property. The AAT considered whether the order should be regarded as a charge or encumbrance over a property within the meaning of section 1211 of the Act (with the effect of reducing the assessed asset value of the property) and, alternatively, whether the order could be regarded as altering the interests of the applicant and his former wife. The AAT stated that both reasonings led to the same conclusion, but that the second reason was preferable. Deputy President Forgie (as she then was) wrote:
106. The fact that the Family Court order alters the interests of the parties to the marriage gives rise to my second, and I think, stronger reason for concluding that Mr Henderson’s interest in the farm between the date of the order and the sale of the farm should be assessed as 50% of its value less $95,000. That is that, by altering the interests of the parties to the marriage in the farm, his interest becomes precisely that. There is no need to consider the matter from the point of view of a charge or encumbrance.
The Tribunal is satisfied that even though Mr Antanelis has legal title of [Address 1], his interest in the property was altered from 27 June 2023 by the orders made by the Court as contemplated by section 79 of the Family Law Act 1975.[13] The effect of these orders is that Mr Antanelis cannot sell the property and retain 100% of the proceeds of sale.[14] Neither can he refuse to sell the property.
[13] Henderson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 468 at [96].
[14] Ibid at [101].
The Tribunal finds that the value of the asset that is Mr Antanelis’s interest in [Address 1] is one half of the property’s value less $5,056, that is, $394,944, from the date of the Court’s orders on 27 June 2023.
Mr Antanelis’s pension is calculated with regard to only $9,000 of other assets. Having regard to this amount, in addition to his $394,944 interest in [Address 1], the value of Mr Antanelis’s total assets is less than the assets value limit for a single non‑homeowner of $566,000. The result is that Mr Antanelis’s age pension is not payable at a reduced rate under the assets test from 13 July 2024.
Once [Address 1] is sold, it will be the actual proceeds of sale paid to Mr Antanelis that should be taken into account for the purpose of applying the pension income and assets tests to determine his rate of pension. Mr Antanelis will be obliged, pursuant to section 66A of the Administration Act, to inform Centrelink within 14 days once the property is sold.
Mr Antanelis has told the Tribunal that orders were made by the Court in February 2025 which further reduced his interest in [Address 1]. Mr Antanelis provided the Tribunal with proposed minutes of consent orders, signed by him [in] February 2025. He did not, however, provide the Tribunal with any orders which might have been made by the Court.
It is expedient, in the circumstances, for the Tribunal to make orders remitting the matter to Centrelink for recalculation of Mr Antanelis’s pension entitlement on the basis that from 27 June 2023 his interest in [Address 1] was half the value of the property, less $5,056, bearing in mind that at time of writing this amount is below the assets value limit for a single non-homeowner. Mr Antanelis should provide Centrelink with a copy of any further orders made by the Court so that his assets may be assessed correctly having regard to those orders.
Because the Tribunal has concluded that Mr Antanelis’s age pension is not payable at a reduced rate under the assets test there is no need for the Tribunal to proceed to consider whether the assets test hardship provisions may be applied to disregard the value of [Address 1].

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that from 27 June 2023 the value of Mr Antanelis’s interest in [Address 1] be calculated on the basis of an amount representing $5,056 less than an amount that is half the value of the property.

Date(s) of hearing:	Monday, 17 March 2025
Representative for the Applicant:	Self-represented