Erland Neraas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 676
•3 August 2012
[2012] AATA 676
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0896
Re
Erland Neraas
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 3 August 2012 Date of written reasons 4 October 2012 Place Sydney The decision under review is affirmed.
.....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY – age pension claim – allowable asset limit
LEGISLATION
Social Security Act1991 (Cth)
REASONS FOR DECISION
Senior Member A K Britton
4 October 2012
EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS
Mr Neraas seeks review of a decision made by the Secretary and affirmed by the Social Security Appeals Tribunal (SSAT) to refuse his claim for age pension on the ground that he exceeded the “allowable asset limit”. There is no dispute that when Mr Neraas made a claim for age pension, given his status as a “single non-home owner” — to use the terminology of the Social Security Act1991 (Cth) — the applicable “allowable asset limit” was just under $800,000 - $799,500. Centrelink decided that the value of Mr Neraas’ assets was $1.12 million and thus he was ineligible to receive the age pension. The SSAT affirmed that decision but thought that the figure was slightly lower. Mr Neraas says that the figure is significantly lower again, but he agrees today that his net, or the total value of his assets, exceeds the “allowable asset limit”. He estimates the total value of his assets to be $801,500.
The critical issues in dispute between the parties are these: first, whether, as Mr Neraas contends, the total value of his personal assets ought be reduced from $579,027 (Centrelink’s estimate) by the sum of $18,912, being money he borrowed to invest in the share market and he claims constitutes a debt. Second, how the $39,000, said to be invested by Mr Neraas’ daughters, ought be characterised and taken into account in terms of the net asset position of the company of which Mr Neraas holds one of the two ordinary class shares (the company). Third, and probably the most significant of the issues, at least in terms of the ultimate dollar outcome, whether 100 per cent of the value of the company ought be attributed to Mr Neraas — as Centrelink and the SSAT concluded, or just50 per cent as he contends.
The reason I am affirming the decision made by the SSAT today is not because I reject Mr Neraas’ contentions about any of these issues, but because even if all of his arguments were accepted (that is, the characterisation of the $18,000 “debt”, the $39,000 so-called investment of the daughters and the percentage of the value of the company attributable to him), as he concedes, his total asset position would exceed the relevant figure, albeit by a small amount of about $2000. To make abundantly clear,I have made no decision on these three issues and they may well be the subject of proceedings in the future.
Mr Neraas has brought to my attention a number of purported inaccuracies in file notes made by Centrelink in this matter. What is apparent from looking at the documents before me is that he has provided a substantial amount of supporting evidence and a number of the documents included in the supplementary T-documents were not available to the original decision-makers. They clarify Mr Neraas’ position significantly in this matter. He has also prepared two documents which I have marked as exhibits A1 and A2 which, I have requested be, and Mr Slattery has undertaken to, put on Mr Neraas’ file so that in the event there is a dispute around those issues in the future, Mr Neraas’ account of where the truth lies can be considered.
I agree with what Mr Slattery that this is a complex claim. The so-called attribution rules are the source of some complexity and minds differ as to their application. I agree with Mr Slattery’s recommendation that in the event that at some future date Mr Neraas decides to make a further claim for age pension, which he is entitled to do, notwithstanding that his May 2011 claim was refused, there may be some value in getting some advice on this complex area of law from an organisation such as the Welfare Rights Centre.
I certify that the preceding 5 (five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................[SGD]................................................
Associate to Senior Member A K Britton
Dated 4 October 2012
Date(s) of hearing 3 August 2012 Applicant In person Solicitors for the Respondent Mr B Slattery, Centrelink Program Litigation and Review Branch
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