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

Kafarela and Secretary, Department of Social Services (Social services second review) [2017] AATA 2558 (6 December 2017)
Division:GENERAL DIVISION
File Number: 2017/1810
Re:Jack Kafarela
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:6 December 2017
Place:Perth

The decision under review is affirmed.
.........[sgd]..........................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – claim for age pension – whether assets exceed allowable limit at date of claim – applicant’s assets correctly assessed – whether decision to reject claim correct – land held on separate titles – whether exception in subsection 11A(2)(b) applies such that land can be treated as held under same title of other land – land not protected by law from separate sale because of its natural, historic or indigenous heritage – private land use test – extended land use test – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 11A(1) – (7) – s 55 – s 1064 – s 1118(1)(a)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Martin and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 2051
SECONDARY MATERIALS
The Guide to Social Security Law – Part 4.6.3.10 – Part 4.6.8.10 – Part 4.6.8.20 – Part 4.6.8.40 – Part 4.6.8.50
Malcom Voyce, “Pension entitlements for farmers: Means test or mean test?” [1993] AltLawJl 26; (1993) 18(2) Alternative Law Journal 76
REASONS FOR DECISION
L M Gallagher, Member
6 December 2017
INTRODUCTION

Mr Kafarela owns a working vineyard, which is comprised of three blocks of land on three separate certificates of title, situated at:
(a)712 Great Northern Highway, Herne Hill, WA 6056 [Lot 5 on Diagram 40254], on which his residential home is situated, of slightly more than 1,000 square metres (‘Lot 5’);
(b)Lot 38 Railway Crescent, Herne Hill, WA 6056 [Lot 38 on Plan 4473] of 3.17 hectares, which adjoins Mr Kafarela’s residential home (‘Lot 38’); and
(c)706 Great Northern Highway, Herne Hill, WA [Lot 45 on Plan 4473], of 4.21 hectares, which abuts the land located at Lot 38 (‘Lot 45’),
(together, ‘Mr Kafarela’s land’).
On 15 April 2016, Mr Kafarela contacted the Department of Human Services (‘the Department’) with regards to making an application for age pension (T73, page 304) and submitted a claim form for age pension (and accompanying forms) on 29 April 2016 (T27 to T33, T60).
On 22 September 2016, Mr Kafarela’s claim for age pension was rejected by the Department on the basis that the value of his combined assets was above the allowable limit (T52).
On 29 September 2016, Mr Kafarela’s nominee, Ms Carol Roe, requested a review of the decision dated 22 September 2016 (T54). On the request form, Ms Roe stated that Mr Kafarela believed the decision to be incorrect because, in essence, the blocks comprising Mr Kafarela’s land should be treated as if they were held on the same title as all or part of the blocks were protected by a law due to the land’s natural, historic or indigenous heritage.
On 31 October 2016, an Authorised Review Officer (‘ARO’) of the Department affirmed the decision dated 22 September 2016 on the same basis (T55). The ARO’s key findings included that:
(a)From 20 March 2016 to 30 June 2016, the asset limit for members of a couple who are homeowners was $1,170,000.
(b)Mr Kafarela’s principal home is Lot 5, which is exempt from the assets test.
(c)Mr Kafarela owns the property at Lot 45, which the Department valued at $800,000.
(d)Mr Kafarela owns the property at Lot 38, which the Department valued at $600,000.
(e)At the date of claim, the Department assessed Mr Kafarela as having combined assets totalling $1,571,372, which consisted of the value of Mr Kafarela’s land along with the following assets:
(i)$27,090 in ANZ bank accounts;
(ii)$126,282 in business assets;
(iii)$15,000 in household items and personal effects; and
(iv)$3,000 being the value of a Holden Astra.
On 12 November 2016, Mr Kafarela applied to the Administrative Appeals Tribunal (‘Tribunal’) for a first review of the ARO decision dated 31 October 2016 (T56, T58, T59, T61 to T71 inclusive). On 13 March 2017, the Tribunal’s Social Services and Child Support Division (‘AAT1’) affirmed the ARO decision (T2). The AAT1 found that:
(a)the land at Lot 38 and at Lot 45 are not exempt from the assets test;
(b)Mr Kafarela’s total assets exceeded the allowable limit; and
(c)the Tribunal did not have jurisdiction to consider whether the land at Lot 38 and at Lot 45 were unrealisable assets under the asset hardship provisions of the Social Security Act 1991(Cth) (‘the Act’) as there was no decision by an ARO of the Department in this regard.
On 28 March 2017, Mr Kafarela applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 12 November 2016, claiming that the AAT1 decision was wrong because (T1, page 2):
“1. Skeptical that [sic] Tribunal turned its mind sufficiently to the history of the land – its use, legislative restrictions on use and family ownership.
2. Query that all documents provided in support of the age pension claim and particularly relevant ones had proper weight attributed to them. Were they reviewed?
3. Tribunal decision still got the Applicant’s name wrong although verbally informed of the correct surname at the hearing and acknowledged that.
4. “The law was not correctly applied” is a reasonable suggestion given that the provision has not been legally tested, it seems.”
RELEVANT LEGISLATION AND PRINCIPLES
The statutory provisions relevant to the present matter are contained in the Act. The Guide to Social Security Law (‘the Guide’) provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179).
A person’s age pension rate is calculated using Pension Rate Calculator A at the end of section 1064 of the Act (section 55 of the Act).
A person is to be paid, as their rate of pension, the lower rate of the income reduced rate and the assets reduced rate (in accordance with the Method Statement within Module A of section 1064 of the Act).
The value of the assets of a member of a couple is taken to be 50% of the sum of the value of the person’s assets and the value of the person’s partner’s assets (in accordance with Module G of section 1064 of the Act, at section 1064-G2).
From 20 March 2016 to 30 June 2016, the asset limit for members of a couple who are homeowners was $1,170,000 (R2, Annexure A “A guide to Australian Government payments 20 March 2016 – 30 June 2016”, Table B “Assets test limits for pensions” at page 33).
With respect to age pension, subsection 1118(1)(a) of the Act provides that the value of a person’s right or interest in the person’s principal home is to be disregarded in calculating the value of a person’s assets.
For the purpose of the assets test, principal home is defined in section 11A of the Act as:
11A Principal home definition for the purpose of the assets test
Principal home
(1)A reference in this Act to the principal home of a person includes a reference to:
(a)if the principal home is a dwelling-house--the land adjacent to the dwelling-house to the extent that:
(i) the land is held under the same title document as the land on which the dwelling-house is located; and
(ii) the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land;…
(2)The Secretary may determine that land is to be treated, for the purpose of subparagraph (1)(a)(i), as if it were held on the same title document as other land if any of the following apply:
(a)the dwelling-house is located on both blocks of land;
(b)the dwelling-house is located on one of the blocks of land but that block and the other block, taken together, are a place, or are part of a place, that is protected under a law of the Commonwealth, or of a State or Territory, because of its natural, historic or indigenous heritage;
(c)the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.
Note: A mere loss of amenity, such as the loss of a swimming pool, garden, tennis court or view, would not seriously undermine the function of a house as a dwelling.
[emphasis added]
The private land use test referred to in subsection 11A(1)(a)(ii) of the Act is set out in subparagraph 11A(3) of the Act as follows:
Private land use test
(3)The private land use test is satisfied in relation to land if:
(a)the area of the land, together with the area of the ground floor of the dwelling-house, is not more than 2 hectares; and
(b)the land is used primarily for private or domestic purposes in association with the dwelling-house.
[emphasis added]
The extended land use test referred to in subsection 11A(1)(a)(ii) of the Act is set out in subparagraph 11A(4) to (6) of the Act as follows:
To whom does the extended land use test apply?
(4) The extended land use test applies to a person in relation to land adjacent to the dwelling-house if:
(a)the person has reached pension age; and
(b)the person is qualified for an age pension or carer payment and that pension or payment is payable to the person; and
(c)the dwelling-house has been the person's principal home for 20 years or more continuously.
(5) Where a person (the first person) to whom the extended land use test applies in relation to land adjacent to the dwelling-house in which the person lives is a member of a couple:
(a)the extended land use test applies to the first person's partner (the second person); and
(b)the extended land use test continues to apply to the second person if the first person and the second person cease to be members of a couple for any reason, provided the dwelling-house continues to be the second person's principal home.
Extended land use test
(6) The extended land use test is satisfied in relation to land if:
(a)the area of the land, together with the area of the ground floor of the dwelling-house, is more than 2 hectares; and
(b)the Secretary determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.
[emphasis added]
Subsection 11A(7) of the Act lists a number of matters the Secretary is to take into account in determining whether a person is making effective use of the land in accordance with subsection 11A(6)(b) of the Act.
The following parts of the Guide provide direction with respect to a number of the relevant sections of the Act extracted above:
4.6.3.10 General Provisions for Assessing the Principal Home
The principal home is an exempt asset
The income support recipient's principal home, including adjacent land is an exempt asset no matter what its value. Even when an income support recipient is NOT living in their principal home, it MAY be exempt for one or more years depending on the reason for vacating the home.
An income support recipient's land adjacent to the principal home may be exempt under the private land use test, and from 1 January 2007, under the extended land use test, for age pensioners and CP recipients of age pension age.
(Referencing subsection 11A(1) of the Act)
4.6.8.10 Defining Land Adjacent to the Principal Home
Definition of adjacent land
The term adjacent land describes the land surrounding the principal home that is held under the same title document.
Usage
The term adjacent land applies to land assessed under the private land use test, OR from 1 January 2007, for age pensioners and CP recipients of age pension age, the extended land use test.
Assessing adjacent land under the private land use test
The maximum amount of land adjacent to the principal home that can be exempted under the private land use test is 2 hectares.
If the principal home is a dwelling-house, the land adjacent must be:
·held on the same title document, and
·must be used PRIMARILY for private or domestic purposes.
Assessing adjacent land under the test extended land use test
From 1 January 2007 the maximum amount of land adjacent to the dwelling-house that can be exempted under the extended land use test is all land on the same title document as the income support recipient's principal home.
(Referencing subsections 11A(1), 11A(3) and 11A(6) of the Act)
4.6.8.20 Defining Title Document & Exceptions
Exceptions to land being held on one title document
Three exceptions exist to the rule requiring land adjacent to the principal home to be held on one title document. Under the 3 exceptions land held on more than one title document can be treated as if it were held on the same title document as the person's dwelling-house. The exceptions are:
·where the dwelling-house is located on both blocks of land, or
·where all or part of the blocks of land are protected by a law because of the land's natural, historic or Indigenous heritage, or
·where the alienation of one of the blocks would seriously undermine the function of the house as a dwelling.
The 3 exceptions apply to income support recipients who are seeking an exemption from the assets test under the private land use test and the extended land use test.
Exception 2: Both blocks are protected under a law of the Commonwealth, State or Territory because of its natural, historic or Indigenous heritage.
This exception requires a legal restriction being placed on a person that requires both blocks of land to be treated as a whole. That is, the restriction means that the second block is not capable of being sold separately.
Example: A second block of land (on a separate title) includes a native garden, and the dwelling-house and the native garden are together formally protected under law. If the protection means that the second block is unable to be sold separately then the second block could be treated as if it were held on the same title document.
[emphasis added]
(Referencing subsection 11A(1) of the Act)
Part 4.6.8.40 (Private Land Use Test) and Part 4.6.8.50 (General Provisions for the Extended Land Use Test) relevantly and respectively state:
(a)The private land use test relates to the area of land adjacent to the principal home of not more than 2 hectares. To meet the private land use test the area of land must be used primarily for private and domestic purposes in association with the dwelling-house (referring to subsections 11A(1), 11A(3)(a) and 11A(3)(b) of the Act).
(b)For a person to be eligible to have the extended land use test applied to exempt them from the assets test they must have an area of land adjacent to the principal home, of more than 2 hectares, that land be held on the one title document and be making effective use of the land (referring to subsections 11A(1) and 11A(6) and the Act and to the definition of adjacent in Part 4.6.8.10 and paragraphs 14 and 18 above).
ISSUE FOR DETERMINATION
It is not in dispute between the parties and the Tribunal finds on the evidence before it that:
(a)Mr Kafarela’s land ownership is as set out at paragraph 1 above, including that Mr Kafarela’s principal home is located on Lot 5.
(b)Mr Kafarela’s combined assets are as set out at paragraph 5 above.
(c)Mr Kafarela’s three blocks of land are held on separate titles.
(d)Subparagraphs 11A(2)(a) and 11A(2)(c) of the Act do not apply to Mr Kafarela’s circumstances, as Mr Kafarela’s principal home is not located across both blocks of land and there is no suggestion or evidence that the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.
(e)Given that the parties do not dispute the valuations of Lot 38 and Lot 45, if Lot 38 and Lot 45 are not found to be exempt assets, then the value of Mr Kafarela’s assets exceeds the allowable value limit for age pension.
Therefore, the issue that remains for determination by the Tribunal is whether the blocks Lot 38 and Lot 45 may be treated as if they were held on the same title as the principal home (on Lot 5) in accordance with subsection 11A(2)(b) of the Act such that they may be exempt from the assets test.
EVIDENCE
The matter was heard in Perth on 6 November 2017. Mr Kafarela appeared in person represented by his sister-in-law and advocate, Ms Carol Roe. The Secretary was represented by Mr Ashley Burgess from Sparke Helmore Lawyers.
The Tribunal received the following into evidence:
·Applicant’s Statement of Issues, Facts and and Contentions dated 7 May 2017 (A1);
·Applicant’s written submissions in reply dated 21 July 2017 (A2);
·Applicant’s additional information compiled on 6 May 2017 (A3);
·Landgate’s response to Applicant’s Freedom of Information request dated 6 June 2017 (A4);
·Applicant’s further material dated 5 June 2017 (A5);
·Herne Hill map sourced from State Records Office and dated 10 July 1919 (A6);
·article extracts (A7);
·Applicant’s chronology of age pension claim (A8);
·legislative extracts (A9);
·a 316 page set of T-Documents (T1 – T73) (R1);
·Respondent’s statement of issues, facts and contentions dated 6 July 2017, with annexures (R2);
·valuation report for Lot 38 (R3); and
·valuation report for Lot 45 (R4).
Ms Roe also drew the Tribunal’s attention to a publicly available document produced by the Department regarding the extended land use test as updated on 30 August 2017 (>
Following the conclusion of the hearing, Ms Roe forwarded to the Tribunal and to the Secretary’s representative a letter dated 7 November 2017, enclosing a number of attachments being publicly available documents (including an earlier version of the document referred to at paragraph 24 above), an article on a case,[1] and a copy of Ms Roe’s written submission that she read in its entirety to the Tribunal at the hearing. Mr Burgess has confirmed that the Secretary has no issue with the Tribunal considering the additional information.
[1] The case being the decision of Senior Member Isenberg in Martin and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 2051. The Tribunal notes that subsection 11A(2)(c) of the Act applied in the circumstances of that case, which is not contended and not the case in the present application (refer to subparagraph 20(d) above).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Ms Roe gave the following oral evidence at hearing, on behalf of Mr Kafarela:
(a)The bar (for satisfying subsection 11(2)(b) of the Act) is too high (refer to A2, paragraph 2) and there is no background as to where it came from.
(b)At the time Mr Kafarela’s claim for age pension was first refused (T52, T53), they (Mr Kafarela and Ms Roe) weren’t given a reason as to why they were unsuccessful.
(c)Mr Kafarela’s father had been able to receive the pension because at that time people over 75 years of age “did not have the assets test apply.”
(d)The land, the subject of Mr Kafarela’s application, has now been in his family for three generations and Mr Kafarela can’t get his pension.
(e)The State Government is trying to keep the Swan Valley as a fruit production area, to “keep land within families and families on the land.” For example, if land owned by a family “goes to” the next generation, it is exempt from stamp duty and where multiple blocks are owned, “Landgate gives the blocks a group rating” and the land rates are “less.”
(f)The Swan Valley Planning Act 1995 (WA) “protects a place,” meaning that Mr Kafarela’s three blocks of land on three titles should be treated as if they were on one title because taken together, they are a place or part of a place that is protected under a law of the State because of its historic heritage in accordance with subsection 11A(2)(b) of the Act.
(g)There are cogent reasons not to the follow the policy in the Guide in Mr Kafarela’s case, namely that the State’s aims (set out in subparagraphs 25(e) and (f) above) do not sit with the Guide’s interpretation of the requirement under subsection 11A(2)(b) for the blocks to be protected under law, being that there needs to be an express legal provision preventing the blocks from being sold separately.
(h)The extended land use test was brought in to benefit intergenerational land use, however many who have been in the valley for years have been forced to go and have gone.
(i)The Veterans’ legislation (referring to the Veterans Entitlement Act 1986 (Cth)) “has more understanding of a person’s situation,” referring to an article by Malcolm Voyce, entitled “Pension entitlements for farmers: Means test or mean test?” [1993] AltLawJl 26; (1993) 18(2) Alternative Law Journal 76 (A7).

Mr Kafarela said that he is 83 years old and wants a pension. Mr Kafarela asked “who is going to look after Mr Kafarela?” Mr Kafarela said he is never going to sell (his land), he doesn’t want to sell and he is going to leave his land to his son.
Mr Kafarela said that his life is on the land. Mr Kafarela said that he has worked since he was 10 years old, taking every pay packet home to his mother and father until he was 21 years old. Mr Kafarela said that he was an only child and it is his “heart that keeps him going.” Mr Kafarela said “I need a pension to be able to live my last few years.”
Mr Kafarela said that he “doesn’t make a lot of money on the land” and that “he works the land because it is in his heart.” Mr Kafarela said that he never thought he would “take the money (by selling his land) and run” as it is not the way he was brought up.
CONSIDERATION
The issue for review is whether the blocks of land adjacent to Mr Kafarela’s principal home (being Lot 38 and Lot 45) may be treated as if they were held on the same title as the principal home in accordance with subsection 11A(2)(b) of the Act such that they may be exempt from the assets test.
Ms Roe, for Mr Kafarela, contends that:
(a)Primarily, the exception in subsection 11A(2)(b) of the Act is satisfied, as the primary residence is located on one of the blocks of land, but that block, and the other block, taken together, are a place, or are part of a place, that is protected under a law of the Commonwealth, or of a State or Territory, because its natural, historical or indigenous heritage.
(b)The Secretary relies on a “general principle” (being that the protective law be one that legally prevents the second block of being sold separately, refer to R2, paragraph 28) that sets the eligibility bar too high because no legislation specifies that private land cannot be sold (refer to paragraph 27(a) above and A2, paragraph 8).
(c)The general principal referred to in subparagraph 32(b) above is also:
(i)wrong in law (A2, paragraph 9) because the policy itself has no foundation in law or legal cases (A2, paragraph 24); and
(ii)out of proportion in terms of balance private rights and the public interest (A2, paragraph 11).
(d)The contentions at subparagraphs 32(a), 32(b) and 32(c) above constitute the required “cogent reasons” (refer to the Re Drake decision at paragraph 8 above) that the policy set out in Part 4.6.8.20 of the Guide should not be followed in this instance.
(e)The eligibility bar should not relate to the sale of land per se but to restrictions on the sale or lease of real property being the regulation of land use, development and activities (A2, paragraph 35).
(f)It falls for dispute that the word “conceded” is true in R2, paragraph 22 (where the Secretary notes that Mr Kafarela has conceded on a number of occasions that the three blocks of land are on separate titles, notwithstanding that the local council issues a single rates notice in respect of the three blocks (referring to T18, page 92, refer also to T11 to T13)).
(g)Progressive laws and regulations have (in any event) been enacted to protect land use “to ensure the Valley remains a unique historical, viticultural, tourism and recreational resource for Perth,” namely, the Swan Valley Planning Act 1995 (WA), the Swan Valley Planning Legislation Amendment Act 2006 (WA) and the Draft Swan Valley Development Plan 2015 (T70, page 283). Further, the Swan Valley Interim Planning Policy was endorsed by the Swan Valley Planning Committee on 7 July 2014 and the WA Planning Commission on 22 July 2014.
(h)Mr Kafarela meets the requirements of the extended land use test because he is of pension age, he has lived continuously on the property for over 20 years since his home was built on it in 1972 and he makes effective use of productive land to generate an income (T70, page 282 and A2, paragraph 32).
The Secretary contends that:
(a)Lot 45 and Lot 38 are assessable assets, do not meet any of the exceptions contained in subsection 11A(2) of the Act such that they may be treated as being on the same title document as the principal home (R2, paragraph 24).
(b)Given the policy set out in Part 4.6.8.20 of the Guide (as extracted at paragraph 18 above), in particular “Exception 2,” to satisfy the exception contained in paragraph 11A(2)(b) of the Act there must be a formal legal restriction which prevents the adjacent blocks from being sold separately (R2, paragraph 28).
(c)The private land use test does not apply to exempt Mr Kafarela as the land at Lot 45 and Lot 38 are not, as required by subsection 11A(3) of the Act and Part 4.6.8.10 of the Guide, held under the same title document as the principal home and not more than two hectares and used primarily for private or domestic purposes (R2, paragraph 33).
(d)The extended land use test applies to land adjacent (as defined) to the principal home where that land is more than 2 hectares and held on the same title document as the principal home, provided they are making effective use of the land (subsection 11A(6) of the Act and Part 4.6.8.50 of the Guide). As the land on Mr Kafarela’s additional blocks of land are each held on titles separate to his principal home, the extended land use test also does not apply to Mr Kafarela (R2, paragraphs 33 to 37).
(e)Mr Burgess referred to Ms Roe’s argument that the policy in the Guide, namely “Exception 2” of Part 4.6.8.20 as it relates to subsection 11A(2)(b) of the Act in requiring a formal legal restriction on the sale of land to be present ought not to be followed, given her view that it is incongruent with the aims of State legislation in particularly with respect to protecting land use (refer to subparagraphs 32(g) and 32(h) above). In this regard, Mr Burgess submitted that:
(i)While there is no formal wording in the Act requiring the second block of land to be rendered legally incapable of being sold separately, given subsections 11A(2)(a) and 11A(2)(c) of the Act, the Tribunal cannot depart from applying the section (section 11A) and no other interpretation could be given to that section.
(ii)The reason for its position in subparagraph 33(e)(i) above is that subsections 11A(2)(a) and 11A(2)(c) of the Act are all “in the same vein” and all look to “whether there is a reason that the blocks can’t be split.”
(iii)When subsection 11A(2)(b) of the Act is read in line with the other two exceptions (subsections 11A(2)(a) and 11A(2)(c) of the Act), it then follows that the policy in the Guide (referred to in subparagraph 33(e) above) ought also to be followed.
(iv)While the requirement that the land, the subject of the assessment, must be on the same title may be seen as a technicality by Mr Kafarela, in the Secretary’s view that is the law that the Tribunal must apply.
(f)The case referred to by Ms Roe (in A7) was a case from 1986, whereas section 11A of the Act was only inserted in 2006, hence the principal home exemptions were different at the time of that case.
In considering the issue for review, the Tribunal also notes:
(a)Mr Kafarela’s contentions regarding the difficulty and restrictions on subdividing land in the Swan Valley. In this regard, the Tribunal recognises subdivision as something inherently different from the sale of land and also something which provides no formal legal impediment to the sale of land.
(b)Mr Kafarela’s evidence regarding his strong desire not to sell the land. Similarly, the Tribunal considers that this desire does not constitute a formal legal restriction on its sale.
(c)Mr Kafarela’s view that the Swan Valley Planning Act1995 (WA) “protects a place” (T2, paragraph 15). The Tribunal considers that while the objective of that Act is to protect the environment and character of a place, the Tribunal is unable to identify any relevant law within that Act, or any Act which would prevent the sale of either of the larger blocks because of their historic, natural or indigenous heritage.
(d)Ms Roe’s view (while not specifically a contention) regarding the Veterans’ legislation having “more understanding of a person’s situation” (refer to subparagraph 27(i) above). In this regard, the Tribunal notes that the decision referred to in the article provided by Ms Roe (A7) relates to the assessment of the annual rate of income, which does not fall for the Tribunal’s consideration in Mr Kafarela’s circumstances. In any event, Mr Kafarela’s claim for age pension was refused on the basis of failing to satisfy the relevant requirements under the Act, therefore the provisions of and policy underpinning the Veterans Entitlement Act 1986 (Cth) have no bearing on the present matter.
Having considered the evidence and the parties’ contentions, both as they relate to the interpretation of the relevant provisions of the Act and the Parts of the Guide, the Tribunal considers that Mr Kafarela’s circumstances do not lend themselves to a finding that subsection 11A(2)(b) of the Act has any application. This is because there is no evidence before the Tribunal that the land at either Lot 38 or Lot 45 is to be treated as if it were on the same title document as the land at Lot 5, because taken together, those lots are a place or part of a place that is protected under law because of their natural, historic or indigenous heritage.
The Tribunal also finds it has not been presented with any cogent reasons not to follow the policy in the Guide with regard to subsection 11A(2)(b) (referred to at paragraph 18 above) given the broader purpose of all three of the exceptions outlined in section 11A of the Act, in accordance with the Secretary’s submission at subparagraph 33(e)(ii) above.
The findings at paragraph 35 and 36 above also give the result of Mr Kafarela being unable to satisfy the private land use test and the extended land use test. This is because both of those tests refer to land adjacent to the dwelling house (subsection 11A(1)(a) of the Act), adjacent land being defined in Part 4.6.8.10 of the Guide (as extracted at paragraph 18 above) and in any event subsection 11A(1)(a)(i) of the Act expressly refers to the requirement that the land be held under the same title document.
For completeness, while the Tribunal certainly hears the broader concerns raised by Ms Roe and Mr Kafarela regarding the future and use of land in the Swan Valley region in accordance with State government aims, Mr Kafarela’s family history regarding his land and his resistance to sell it should he ever need to (a view which he is certainly entitled to hold), these are not matters which impact the Tribunal’s findings with regard to the application of relevant law and policy regarding the issue for review.
CONCLUSION
The key issue before the Tribunal is whether Mr Kafarela’s claim for age pension was correctly rejected, on the basis that the value of his combined assets was above the allowable limit (or on any other basis on the available evidence).
The Tribunal has considered Mr Kafarela’s circumstances in their entirety. Based on the evidence before it, the Tribunal finds that the evidence supports the conclusion that Mr Kafarela’s claim for age pension was correctly rejected on the basis that the value of his combined assets was above the allowable limit because:
(a)Lot 38 and Lot 45, being the blocks of land surrounding Mr Kafarela’s principal home on Lot 5, cannot be exempted from the assets test. This is because:
(i)Lot 5, Lot 38 and Lot 45 are held on three separate titles.
(ii)Subparagraphs 11A(2)(a) and 11A(2)(c) of the Act do not apply so that Lot 38 and Lot 45 may be treated as if they were held on Lot 5 (refer to subparagraph 20(d) above).
(iii)Subparagraph 11A(2)(b) of the Act does not apply so that Lot 38 and Lot 45 may be treated as if they were held on the same title as Lot 5 (refer to paragraphs 34 to 38 above).
(iv)Given the Tribunal’s finding that the land on Lot 38 and Lot 45 cannot be treated as if they were held on the same title as Lot 5, the land at Lot 38 and Lot 45 is not land adjacent to the principal home (as defined) and therefore the private land use test and the extended land use test also cannot apply.
DECISION
The decision of the AAT1 dated 13 March 2017, which affirmed a decision of the Department dated 31 October 2016 that Mr Kafarela’s claim for age pension was rejected on the basis that the value of his combined assets was above the allowable limit, is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

...........[sgd]........................................................
Administrative Assistant - Legal
Dated: 6 December 2017

Date of hearing: 6 November 2017

Applicant: In person

Representative for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 2558

6 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	6 November 2017
Applicant:	In person
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers