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

The Administrative Appeals Tribunal considered an appeal by Mr Hulett concerning a decision by the Secretary of the Department of Social Services that reduced his age pension rate. The dispute arose from Mr Hulett's transfer of the proceeds from the sale of his family home to his three daughters. The Secretary treated these transfers as gifts for the purposes of assessing Mr Hulett's pension, while Mr Hulett contended that the transfers were made pursuant to a constructive trust.

The Tribunal was required to determine whether a constructive trust existed at law in relation to the proceeds of the sale of the family home, and consequently, whether the decision to reduce Mr Hulett's age pension was correct or preferable. This involved assessing the nature of the arrangement between Mr Hulett, his late partner, and their daughters, and whether the funds were transferred as a gift or in fulfilment of a trust obligation.

The Tribunal accepted the Secretary's submissions regarding the assessment of constructive trusts and the necessary prudence in reviewing family arrangements, noting that such arrangements must be approached with caution. The Tribunal found the evidence of Mr Hulett and his daughters to be honest and candid, despite some minor inconsistencies attributed to the passage of time and unfamiliarity with legal concepts. The Tribunal concluded that the references to Mrs Hulett's will and the term "inheritance" by the witnesses arose from a lack of legal sophistication, rather than an intention to mislead. The Tribunal found no deliberate attempt by Mr Hulett to circumvent social security provisions, understanding his actions and those of his family within the legitimate context of their circumstances and their desire to secure family housing and aged care arrangements.

Ultimately, the Tribunal set aside the decision of the Social Services and Child Support Division. The Tribunal substituted a new decision, finding that Mr Hulett had gifted $233,090.32 for the purposes of section 1126AA of the Social Security Act 1991 (Cth).