Leung; Secretary, Department of Family and Community Services - [2003] AATA 796

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 796
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/1961

GENERAL ADMINISTRATIVE DIVISION )

Re

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

KAM BUN LEUNG

Respondent

DECISION

Tribunal
Senior Member M D Allen

Date21 July 2003
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL   )         No   N2002/1961
  )
GENERAL ADMINISTRATIVE DIVISION     )
Re:         SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant

And: KAM BUN LEUNG
Respondent

DECISION

Tribunal              Senior Member M D Allen
Date  21 July 2003
Place                   Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and this matter is REMITTED to the Applicant with the direction that the flat premises at 2/5 Constitution Rd are an asset for the purposes of the Social Security Act 1991 in the possession of the Respondent KAM LEUNG,
BUT THAT the valuation of the said assets is to be ascertained after full inspection and assessment by the Australian Valuation Office.

(Sgd) M D ALLEN
..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – valuation of assets - dwelling house with flat premises attached - flat let to a tenant at commercial rent - flat not part of the Respondent’s principal home and to be valued as an asset in his hands.
Social Security Act 1991 – s.11(1), s.11(5), s.1118(1), s.1121(4)
Secretary, Department of Employment Education Training and Youth Affairs v. Ovari (2000) 98 FCR 140
Secretary, Department of Family and Community Services and Kulshrestha [2003] AATA 227
Bowden v. Repatriation Commission (1992) 15 AAR 325
REASONS FOR DECISION
Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed: (Kwai-Ling Wong)
....................................................................................…
Associate

Date of Hearing  21 July 2003
Date of Decision  21 July 2003
Representative for Applicant     Hannelore Schuster
Representative for Respondent Ms Jackie Finlay, Welfare Rights Centre

O/N 5816

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter N2002/1961
By MR D. ALLEN, Senior Member

SECRETARY, DEPARTMENT OF FAMILY

AND COMMUNITY SERVICES and LEUNG
SYDNEY, 21 JULY 2003
MR ALLEN: By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leung; Secretary, Department of Family and Community Service...

Details

AGLC: Leung; Secretary, Department of Family and Community Services [2003] AATA 796
Case: [2003] AATA 796
Decision Date: 21 July 2003

CaseChat Overview and Summary

In the case of Leung v. Secretary, Department of Family and Community Services, the Federal Court was called upon to determine the valuation of a dwelling house with attached flat premises for the purposes of assessing the applicant's eligibility for social security benefits. The respondent, a government department, had valued the property at a higher amount, arguing that the flat should be considered as an asset in the applicant's possession given it was let out at a commercial rent. The applicant contested this valuation, asserting that the flat was not part of his principal home and should not be included in the asset assessment. The court's task was to interpret and apply the relevant provisions of the Social Security Act 1991, specifically sections 11(1), 11(5), 1118(1), and 1121(4), to resolve this dispute.

The primary legal issues before the court were the interpretation of the term "asset" under the Social Security Act and the determination of whether the flat in question should be considered an asset of the applicant. The court had to consider whether the flat, which was let out at a commercial rent and was not part of the applicant's principal home, should indeed be valued and included in the assessment of his assets for social security purposes. The court also examined relevant case law, including Secretary, Department of Employment Education Training and Youth Affairs v. Ovari and Secretary, Department of Family and Community Services and Kulshrestha, to guide its interpretation of the statutory provisions.

The court found that the flat should be considered an asset of the applicant, despite it not being part of his principal home. It reasoned that the flat was let out at a commercial rent, which indicated that it was being used for income-generating purposes. The court held that such use warranted the flat being valued as an asset under the Act. The court also noted that the flat's valuation as an asset did not necessarily mean that it would be included in the applicant's principal home for the purposes of assessing his eligibility for social security benefits. This nuanced interpretation was informed by the broader statutory framework and the relevant case law.

Ultimately, the court ordered that the flat be valued as an asset for the purposes of the social security assessment, reflecting the respondent's initial valuation. The court's decision underscored the importance of accurately assessing and valuing assets for determining social security entitlements, while also acknowledging the complexities that can arise in distinguishing between different types of assets and their implications for principal home status.

Orders