Executor for the Estate of the late Raymond Allen Smith; Secretary, Department of Social Services and (Social services second review)

The Administrative Appeals Tribunal considered the matter of the Executor for the Estate of the late Raymond Allen Smith and the Secretary of the Department of Social Services, concerning a second review of a social services decision. The dispute centred on the calculation of age pension payments made to the late Mr Smith, specifically whether the value of a property he had disposed of should have been included in the assessment of his eligibility and entitlement.

The Tribunal was required to determine whether the value of the property, which had been sold by Mr Smith's attorney under a power of attorney without any consideration being received by Mr Smith, should have been taken into account when calculating his age pension payments. Arising from this, the Tribunal also had to consider whether an overpayment of age pension had occurred and, if so, whether the debt should be waived or written off, having regard to any special circumstances.

The Tribunal found that the disposal of the property by way of gift, without consideration, meant that Mr Smith had effectively deprived himself of an asset. Under the relevant social security legislation, a person is deemed to have retained ownership of an asset if they have disposed of it for less than its market value. Therefore, the value of the property should have continued to be treated as an asset of Mr Smith for the purposes of the age pension income and assets test. The Tribunal concluded that special circumstances did not exist to warrant the waiver or write-off of the resulting debt. The decision under review was set aside.