Barnard and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr and Mrs Barnard against decisions made by the Secretary of the Department of Social Services regarding their seniors health cards and associated energy supplement payments. The dispute centred on whether the Barnards' seniors health cards were automatically cancelled by operation of law due to them exceeding the income limit for qualification, and consequently, whether a debt arising from overpayments should be waived. The case was heard by Deputy J W Constance P.

The primary legal issues before the court were whether the Barnards' seniors health cards had been cancelled by force of section 106A of the Administration Act prior to 31 October 2014, and whether the purported cancellation decisions made on that date were correct. The court also considered the implications of a change in legislation and the Barnards' awareness of such changes, as well as the question of whether any resulting debt should be waived due to special circumstances.

The court reasoned that if the seniors health cards were already cancelled by operation of law before 31 October 2014, then any subsequent purported cancellation by the Secretary on that date would be of no legal effect. The court examined section 1071 of the Social Security Act, which outlines the seniors health card income test, and noted that the Barnards' combined income for the year ended 30 June 2014 exceeded the relevant limit. Applying the presumption of receipt of postal articles under the Evidence Act 1995 (Cth), the court inferred that the Barnards likely received their income assessments by 20 August 2014, indicating they no longer met the income test prior to 31 October 2014. The court also considered subsection 86(2) of the Administration Act, which prevents the Secretary from making a cancellation determination if the card has already been cancelled by another provision of the social security law.

Consequently, the court set aside the decisions made on 31 October 2014 to cancel the Barnards' seniors health cards, finding that the cards had already been cancelled by operation of law. As a result, the decision regarding energy supplement debts was also set aside. However, the decisions rejecting the Barnards' applications for seniors health cards were affirmed.