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

This matter concerned an appeal by the applicant against the cancellation of his Age Pension by the Secretary of the Department of Social Services. The cancellation, effective from 15 May 2018, was based on the applicant exceeding the asset threshold. The applicant contended that certain properties were held on trust, which would have altered the assessment of his assets. The Administrative Appeals Tribunal (AAT) was required to determine whether the decision to cancel the Age Pension was correct and preferable, and specifically, whether the applicant or his wife held any of the relevant properties on trust.

The Tribunal was tasked with determining the correct valuation of the applicant's assets at the time of the Age Pension cancellation and comparing this to the applicable asset threshold. A key legal issue was whether the applicant and/or his wife held any of the five relevant properties on trust, or if they were joint tenants. The Tribunal also considered the implications of the applicant's previous declarations regarding property ownership and involvement in trusts.

The Tribunal found no evidence of any formal express, resulting, or statutory trust in relation to the relevant properties. It also concluded that a constructive trust did not exist. The evidence indicated that the applicant and/or his wife were listed as joint tenants on the certificates of title for the properties. The Tribunal noted that joint tenancy means all registered proprietors are owners of the whole land, with a right of survivorship. The Tribunal determined that the relevant properties were not held on trust and that the applicant and/or his wife were joint tenants. Consequently, the value of these assets was correctly included in the assessment of the applicant's total assets.

The Tribunal affirmed the reviewable decision dated 10 October 2018. The applicant's assets were valued at $1,233,272.00, exceeding the asset threshold of $1,040,000.00 applicable at the time of cancellation, which justified the cancellation of his Age Pension.