Ho and Secretary, Department of Social Services (Social services second review)
[2016] AATA 997
•7 December 2016
Ho and Secretary, Department of Social Services (Social services second review) [2016] AATA 997 (7 December 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5087
Re
Xuan Lo Ho
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor M McGrowdie, Senior Member
Date 7 December 2016 Place Sydney The decision under review is affirmed.
................................[sgd]........................................
Professor M McGrowdie, Senior Member
CATCHWORDS
SOCIAL SECURITY – application for Special Benefit – Long Term Available Funds Test – interest in property overseas – applicant’s realisable assets exceed $5000 – decision affirmed
LEGISLATION
Social Security Act 1991, s 729
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Professor M McGrowdie, Senior Member
7 December 2016
GENERAL BACKGROUND
On 10 April 2015, the Applicant, made a claim for Special Benefit (SpB) from the Respondent.
On 16 April 2016, the Applicant’s claim for SpB was rejected. That decision was later upheld by an Authorised Review Officer (ARO).
On 30 June 2015, the Applicant sought review of the ARO’s decision from what was then the Social Security Appeals Tribunal.
On 7 September 2015, the Social Services and Child Support Division of this Tribunal (AAT1) affirmed the decision of the ARO.
The Applicant now appeals to this Tribunal to seek review of the ARO’s decision.
SPECIAL BENEFIT
An entitlement to payment of a SpB for a period exceeding 13 weeks depends on whether the person has funds available exceeding $5,000.00.
The Applicant has an interest in property in Vietnam which is, and was, as at 10 April 2015, up for sale.
He and his now separated wife purchased the property in late 2010 for the equivalent of $200,000. It was leased out for a period for the equivalent of $200 rental per month but as at 10 April 2015 it was vacant as the property was on the market for sale for 4.5 billion Vietnamese dong (about $270,000) but with a view to accepting 4 billion dong (about $240,000).
The relevant date at which matters are to be considered is 10 April 2015 when the application for SpB was lodged by the Applicant.
EVIDENCE
The Applicant lives in a suburb of Sydney in a rental space and he has the care of his young son.
There is no issue that he is not entitled to the aged pension as he has not been residing in Australia for 10 years. He turned 65 in March 2015.
There is also no issue that due to various health issues, he has no capacity to work. His skills in the English language are limited and he gave evidence through an interpreter.
An older daughter of the Applicant gave evidence at the hearing and assisted her father. She said she had witnessed her father’s hardship and was aware of his attempts to sell the property in Vietnam.
Included in the documents before the Tribunal was an authenticated statement from Nguyen Kim Hung, the Applicant’s property agent in Vietnam, which stated that as the house was located near a funeral parlour, it failed to sell for the initial asking price of 7 billion dong, hence the need to reduce the price. The Applicant has also indicated that the house is in an area of some unrest.
The only evidence in relation to the value of the property is the purchase price of $200,000 paid by he and his wife in 2010, coupled with the statements of the property agent that the Applicant reduced his initial asking price of 7 billion dong ($330,000) to a general agreement that he would sell for 4 billion dong ($240,000).
LEGISLATION
Section 729 of the Social Security Act 1991 (the Act) provides a discretion to grant a SpB in cases where the person is unable to earn a sufficient livelihood and is not eligible to receive any other income support payment, such as the age pension.
In deciding to accept a claim for a SpB under s 729 of the Act, the Guide to Social Security Law (The Guide) is of assistance.
Chapter 3.7.1.70 of the Guide sets out the Long Term Available Funds Test (‘available funds test’) which provides that SpB is not payable if the Applicant’s available funds (including real estate in Australia or overseas) exceeds $5,000. It is appropriate that the Guide be applied (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
The available funds test applies to property which is held and which can be regarded as ‘realisable’. In the definition section of the Act (s 11(12)), an asset will not be a realisable asset if, relevantly,
(a)the person cannot sell the asset, and
(b)can’t use the asset as a security for borrowing.
CONSIDERATION
Mr Ho’s evidence was that he couldn’t rent the property because it needed to come with vacant possession for the sale. Also, he said that he could not mortgage the property as this would complicate the sale and in Vietnam that is the reality.
He also says that he cannot sell the property. This is the central issue in this application.
Chapter 4.6.7.50 of the Guide accepts that a person is unable to sell if the asset is on the market but cannot attract a buyer and the asking price is no higher than 10% above the assets test value (that is, the market value).
The evidence before the Tribunal does not support a conclusion that what the Applicant was asking for the property as at 10 April 2015 was a realistic one or not. Also, the evidence does not provide a clear value of the property so that a conclusion could be drawn that the asking price of $240,000 is not more than 10% over its value.
I am not satisfied that the property can be excluded. Rather, on the available evidence, I am satisfied that the applicant has available funds exceeding $5,000.
I further consider the Respondent’s proposition that a SpB benefit would not be payable in the present case if assets exceed $202,000 (as at the relevant date). I am satisfied that the value of the Applicant’s interest in the property in Vietnam would not exceed this limit. This is because he only holds a one-half share and it appears that he and his wife have separated.
Nonetheless, as previously indicated, this interest held by the Applicant should be regarded as one whereby he has available funds exceeding $5,000 and as such, he is excluded from payment of a SpB.
In conclusion, the decision the subject of this application is affirmed.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor M McGrowdie, Senior Member ................................[sgd]........................................
Associate
Dated 7 December 2016
Date(s) of hearing 7 June 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Standing
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Statutory Construction
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Jurisdiction
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Natural Justice
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Procedural Fairness
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