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

This matter concerned an appeal by Mr Hamid against a decision by the Department of Social Services regarding his entitlement to Newstart Allowance (NSA). The dispute centred on whether Mr Hamid's legal ownership of a one-half share in a property constituted an asset for the purposes of the assets test under the *Social Security Act 1991* (Cth). The Department contended that this property interest should have been declared and included in the calculation of his NSA entitlement, potentially rendering him ineligible for payments received between 1 January 2015 and 15 November 2016, and creating a debt to the Commonwealth.

The primary legal issue before the Tribunal was to determine whether Mr Hamid's legal title to a one-half share in the Yarram Street property was to be considered an asset for the purposes of the assets test. Mr Hamid argued that he held this interest on a constructive trust for his brother and sister-in-law, and therefore did not possess a beneficial interest in the property, meaning it should not be counted as his asset. The Tribunal had the power to determine and give effect to constructive trusts and recognise equitable interests for the purposes of the assets test.

The Tribunal considered the evidence, including Mr Hamid's admission of legal ownership and his responsibility for the application. However, it also acknowledged Mr Hamid's claim of a constructive trust. The Department argued against the existence of a constructive trust, pointing to Mr Hamid's representations to banks in 2006 and 2015, where he described himself as a "homeowner" and used the Yarram Street property as security for loans. Despite these representations, the Tribunal found that Mr Hamid's legal title in the one-half share of the Yarram Street property was not to be treated as an asset for the purposes of the assets test.

Consequently, the Tribunal set aside the Department's decision and remitted the matter for reconsideration. Mr Hamid's entitlements to NSA payments were to be recalculated, taking into account undeclared income for a specific period and directing that his legal title in the one-half share of the Yarram Street property was not to be considered an asset for the assets test. Mrs Hamid's entitlements to Carer Payment were also to be recalculated in accordance with these directions.