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

This matter concerned an appeal by Mr and Mrs Garvey (the Respondents) against decisions made by the Secretary, Department of Social Services, to raise and recover Age Pension debts. The core of the dispute revolved around the valuation of the Respondents' assets, specifically their interests in Gwelup, a company they directed and solely owned, and the Garvey Family Trust, of which they were the sole beneficiaries and trustees. The Secretary had determined that the Respondents' combined assets exceeded the allowable limit for receiving an Age Pension during the relevant debt period, leading to the cancellation of their pensions and the raising of substantial debts.

The Tribunal was required to determine whether the Respondents had been paid Age Pension in excess of their entitlement during the debt period, and consequently, whether the overpayment constituted a debt due to the Commonwealth. Further, the Tribunal had to consider whether the discretion to write off or waive any part of the debt was available and, if so, whether it should be exercised. The Tribunal also needed to confirm the correctness of the cancellation of the Respondents' Age Pensions.

The Tribunal reasoned that the Respondents' personal loans to Gwelup and the Family Trust, as well as the loans owed to Gwelup and the Family Trust, should be assessed as assets at their face value as recorded in the relevant balance sheets. It found that the Respondents were attributable stakeholders, holding 100% of the assets of Gwelup and the Family Trust during the debt period. Consequently, the Tribunal concluded that the Respondents' assets were above the Age Pension asset limit at all material times, their Age Pensions were cancelled correctly, and the resulting overpayment constituted a debt owed to the Commonwealth that should be recovered in full and not waived or written off. The Tribunal set aside the previous decision and remitted the matter for recalculation of the debt.