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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding Mr and Mrs Kotevski's eligibility for the Age Pension and Newstart Allowance. Mr Kotevski argued that his interest in the Hurstville property should not be considered an assessable asset for social security purposes because it was subject to a constructive trust in favour of his three children. The Secretary, Department of Social Services, contended that Mr Kotevski's interest was an assessable asset. The Tribunal was also required to determine its jurisdiction to review Mrs Kotevski's claim for Newstart Allowance, given an apparent error in the recorded decision type during the review process.

The primary legal issue before the Tribunal was whether Mr Kotevski's half-share in the Hurstville property constituted an assessable asset under the social security legislation, specifically whether it was subject to a common intention constructive trust in favour of his children. This required the Tribunal to consider the elements necessary to establish such a trust, namely a common intention regarding beneficial ownership, detriment suffered by the beneficiary based on that intention, and the unconscionability of the legal owner asserting sole beneficial ownership. A secondary issue concerned the Tribunal's jurisdiction to review Mrs Kotevski's Newstart Allowance claim, given that the reviewable decision incorrectly referred to a Carer Payment claim.

The Tribunal considered the evidence, including two deeds executed in 2002 between Mr Kotevski and his children concerning the Hurstville property. The 2002 deed outlined conditions under which Mr Kotevski would transfer his share to the children, including their making payments towards the mortgage. The Tribunal found that Mr Kotevski's reliance on a purported 2008 deed, which was not produced, lacked credibility, particularly as he had not raised it in earlier proceedings and his solicitor had advised the 2002 deed was sufficient. Furthermore, discrepancies in calculations regarding the children's contributions and the significant increase in the mortgage balance, contrary to the deed's intent, raised concerns about the implementation of the alleged trust. Regarding jurisdiction, the Tribunal affirmed its broad power to review decisions, even if flawed, as long as a decision was in fact made and purported to be made under the relevant Act, allowing for correction of errors.

Ultimately, the Tribunal concluded that Mr Kotevski's interest in the Hurstville property was an assessable asset. The assessable asset value of the Hurstville property, amounting to $985,608, was therefore to be included in the combined assets of Mr and Mrs Kotevski. The Tribunal also confirmed its jurisdiction to review Mrs Kotevski's Newstart Allowance claim, notwithstanding the administrative error.