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

This matter concerned an appeal by Ms Kelly against a decision of the Secretary of the Department of Social Services regarding her eligibility for the age pension. The dispute centred on the application of amendments to the income test for asset-tested income streams, specifically concerning deemed income from superannuation purchased after 1 July 2015. The decision was made by Senior Member M J McGrowdie.

The primary legal issue before the Tribunal was whether Ms Kelly was entitled to the benefit of grandfathering provisions in relation to her superannuation income stream, which would exempt it from the amended income test. This required determining whether a change made to her superannuation fund on 11 March 2016 disqualified her from these provisions, even if the fund could be altered to revert to its previous state.

The Tribunal reasoned that the amendments to the income test, which came into effect after 1 July 2015, applied to Ms Kelly's situation. Despite the possibility of UniSuper changing the fund back to its original configuration, the Tribunal found that a change had indeed occurred on 11 March 2016. This change meant that Ms Kelly could not be restored to her position prior to that date, and therefore, she did not qualify for the grandfathering provisions. The Tribunal affirmed the decision under review.