DJHN and Secretary, Department Social Services (Social services second review)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Secretary, Department of Social Services, regarding the Applicant's claim for Newstart allowance. The dispute arose from the classification of periodic payments received by the Applicant from her former husband's superannuation account, pursuant to Federal Circuit Court orders made under the *Family Law Act 1975*, as income for the purposes of social security legislation.

The Tribunal was required to determine whether the periodic payments received by the Applicant constituted "income" for the purposes of the relevant social security Act, and if so, whether these payments were exempt from being treated as ordinary income. Specifically, the Tribunal had to consider if the payments fell within the excluded amounts listed in subsection 8(8) of the Act, and whether section 9A of the Act provided an exemption.

The Tribunal reasoned that the periodic payments were a "family law affected income stream" as defined by the Act, arising from a payment split under the *Family Law Act 1975*. As such, they were considered an "income stream" for the purposes of the Act. The Tribunal found that these payments were not listed among the excluded amounts in subsection 8(8) of the Act. Furthermore, while section 9A of the Act deals with exemptions from the asset test for income streams, subsection 1099DB(1)(b) of the Act mandates that income from such streams be used in calculating the annual rate of ordinary income. Therefore, section 9A was not applicable to the Applicant's situation, as her benefit rate was determined under the income test, not the asset test.

Consequently, the Tribunal affirmed the reviewable decision, finding no alternative based on the evidence presented.