Dowd and Secretary, Department of Family and Community Services

[2004] AATA 1043

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1043

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/712

GENERAL ADMINISTRATIVE  DIVISION

Re:         KENNETH LESLIE DOWD

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             6 October 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY ‑ reduction of age pension ‑ assets exceeded allowable limit ‑ inheritance ‑ date property became an asset 

Transfer of Land Act 1958 (Vic.)  s41, 45

Social Security Act 1991 s 11(1), 1064, 1118(1)(a) to (1)(s)

REASONS FOR DECISION

6 October 2004  G.D. Friedman, Member

1.      This is an application by Kenneth Leslie Dowd (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 8 June 2004.  The SSAT affirmed a decision of a Centrelink officer dated 22 December 2003 to reduce the rate of age pension paid to the applicant because his assets exceeded the allowable limit.

2.      At the hearing on 28 September 2004 the applicant represented himself, and Ms K. Paul, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T42).  

BACKGROUND

4.      The applicant had been receiving age pension since 31 October 1996.  On 20 August 2003 Mr J. Dowd, the applicant’s brother died, naming the applicant as executor and sole beneficiary of his estate in his will.  On 15 October 2003 probate was granted.  On 25 November 2003 the applicant was registered as sole proprietor as legal personal representative on the certificate of title for a property in Lantana Road, Gardenvale (the property), formerly owned by the applicant’s brother.

5.      On 22 December 2003 the applicant notified Centrelink that he had inherited the property.  On 22 December 2003 Centrelink decided to reduce the applicant’s rate of pension after taking into account the value of the property, which had a capital improved value in 2003/2004 of $167,000.  On 20 February 2004 the applicant sold the property and invested the proceeds.  On 5 March 2004 the Australian Valuation Office (AVO) provided Centrelink with a valuation of $180,000.   

6.      On 10 May 2004 an authorised review officer affirmed the decision.  On 8 June 2004 the SSAT affirmed Centrelink's decision.  The applicant lodged an application with the Tribunal on 22 June 2004 for review of the SSAT decision.

7.      The issue before the Tribunal is the date from which the property should be included in the applicant’s assets.

EVIDENCE

8.      In oral evidence the applicant said that a 2001/2002 Centrelink Guide stated that a property that is part of an estate is an exempt asset until the estate is finalised.  He explained that the estate was finalised on 20 February 2004 when the property was sold, so that his assets had not increased until then.  He said that he visited the Land Registry and on 25 November 2003 transferred the title of the property into his name as his brother’s legal personal representative because he intended to sell the property, and the Land Registry required him to include his name on the Certificate of Title.

9.      The applicant told the Tribunal that as at 25 November 2003 the title was in his name as executor of the estate only, and that as executor his duties included distributing the proceeds.  He said that until this was done the estate could not be finalised.  He said that 20 February 2004, the date of settlement of the sale, was the date that the estate was finalised as he had concluded his duties as executor.  The applicant stated that Centrelink allows12 months for the finalisation of an estate.

10.     The applicant was highly critical of the way Centrelink had handled the matter, and said he had not been treated fairly during the review process.  He stated that the SSAT had not been provided with all relevant material.  In written submissions he claimed that Centrelink had falsified documents and had acted improperly.  The applicant also expressed dissatisfaction with the actions of his brother’s former solicitor and officers at the Land Registry.

11.     Mr R. McConville, Customer Support Officer at the Centrelink office, Cheltenham, gave oral evidence that he had assisted the applicant on 22 December 2003 when the applicant attended Centrelink about his inheritance.

CONSIDERATION OF THE ISSUES

12. Section 1064 of the Social Security Act 1991 (the Act) provides that the rate of age pension is calculated in accordance with the income test and assets test set out in the Act. Section 11(1) of the Act defines an asset as including property. Exempt assets, described in s 1118(1)(a) to (1)(s) of the Act, are disregarded in calculating the value of a person’s assets. Under s 1118(1)(j) exempt assets include …the estate of a deceased person…which has not been, and is not able to be, received.

13.     Ms Paul referred to s 41 of the Transfer of Land Act 1958 (Vic.) which states that the Certificate of Title is:

…conclusive evidence that the person named in the folio as the proprietor of, or having any estate or interest in, or power to appoint or dispose of, the land described in the folio is seised or possessed of that estate or interest or has that power.

She said that under s 45 of the Transfer of Land Act a registered proprietor may transfer an estate or interest in land. 

14.     Ms Paul submitted that from the date of grant of probate (15 October 2003) the applicant was able to receive his interests in the property as he was both executor and sole beneficiary, so he had the power to transfer the property into his name.  She stated that as soon as the applicant was registered as the sole proprietor of the property on 25 November 2003, even though his name appears as legal personal representative of the brother, there were no impediments to him receiving the interest in the property.  Therefore, from that date the property became an assessable asset for Centrelink purposes.  She added that the Guide to Social Security Law recognises that an estate may take some time to be finalised, so a period of 12 months for an interest to be received is generally accepted, although if the estate is finalised earlier the interest is assessed from the date it is received or is able to be received.   

15.      In reaching its decision the Tribunal takes into account the oral evidence and written material, including the submissions made by the parties.

16.     The Tribunal has noted the applicant’s criticisms of the way Centrelink handled the matter, his claim that the SSAT had not been provided with all relevant material, his claim that Centrelink had falsified documents and had acted improperly and the dissatisfaction he expressed with the actions of his brother’s former solicitor and officers at the Land Registry.  However, these issues are not within the jurisdiction of this Tribunal.

17.     The Tribunal notes that there is no dispute as to the dates of the grant of probate and the issue of the replacement Certificate of Title, although the Tribunal accepts that the applicant disagrees strongly with the interpretation of relevant legislation.  As the applicant was the executor and sole beneficiary under the brother’s will, the Tribunal finds that he had a beneficial and equitable interest in the property from the date of the brother’s death.  The Tribunal accepts the submission from Ms Paul that although the property was registered on 25 November 2003 in the applicant’s name as sole proprietor as legal personal representative of the brother, he had the power to transfer the property into his name.

18. Consequently the Tribunal finds that from 25 November 2003, although the applicant had not received the proceeds from the sale of the property, there was no impediment to the applicant receiving an interest in the property. From the 25 November 2003 the property became an assessable asset under s 11(1) of the Act, and the exemption in s 1118(1)(j) of the Act did not apply from that date. Therefore, the property was included correctly as part of the applicant’s total assets in assessing his rate of age pension from 22 December 2003.

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  28 September 2004 
Date of decision:  6 October 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Ms K. Paul, Centrelink