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

This matter concerned an appeal by the Applicant against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the cancellation of the Applicant's Disability Support Pension (DSP). The AAT had found that 100% of the value of certain trust assets should be attributed to the Applicant and remitted the matter for recalculation of the debt. The Applicant appealed this decision to the Federal Court, which allowed the appeal and set aside the AAT's decision, remitting the matter back to the AAT for redetermination. The Federal Court found that the AAT had failed to consider the relevant Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2017 (Cth) when exercising its discretion.

The legal issues before the court were whether the AAT had correctly applied the "control test" in determining the Applicant's entitlement to the DSP, and specifically, whether it had properly considered the Attribution Principles when attributing the value of the trust assets to the Applicant. The facts established that the Applicant resided at a property owned by a trust, of which Vameze Pty Ltd was the trustee. The director and shareholder of Vameze was Duncan Kang, the Applicant's brother, who also resided at the property.

The court reasoned that the AAT's previous decision had failed to take into account the Attribution Principles, which were relevant considerations for determining attributable stakeholders and asset attribution percentages. The Federal Court's prior decision had highlighted this omission, and the Respondent conceded the Tribunal's failure. Consequently, the matter was remitted to the AAT for a fresh determination in accordance with the law, including proper consideration of the Attribution Principles.