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

This matter concerned an appeal by Mr and Mrs Beard against decisions of the Department of Social Services regarding their age pension entitlements. The dispute centred on whether their asset-tested income stream, specifically a superannuation account-based income stream, remained subject to "grandfathering" provisions under amending legislation from 29 September 2015. The case was heard by A C Cotter SM.

The primary legal issue before the Tribunal was to determine if Mr and Mrs Beard's rates of age pension continued to be subject to the savings provisions of clause 48(2) of the Amending Act after 29 September 2015. This involved considering whether they had been continuously receiving an income support payment, as required by the grandfathering provisions, following a period where their pension became nil due to ordinary income earned by Mrs Beard. The Tribunal also considered whether section 23(4A) of the Social Security Act 1991 (Cth) provided any amelioration of this outcome.

The Tribunal reasoned that while the Colonial First State account was an asset-tested income stream and had been grandfathered until 29 September 2015, the receipt of ordinary income by Mrs Beard resulted in a nil rate of age pension being payable to both Mr and Mrs Beard for the period of 29 September to 12 October 2015. Consequently, they were not continuously receiving an income support payment as required by clause 48(2)(c)(i) of the Amending Act. The Tribunal found that section 23(4A) did not apply to assist the Beards as they were both of pension age. Therefore, the account-based income stream was correctly assessed under the deemed income rules from that date.

The Tribunal affirmed the decisions under review, concluding that Mr and Mrs Beard were not continuously receiving an income support payment after 29 September 2015 and thus were no longer entitled to the exemption provided by clause 48(2) of the Amending Act.