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

[2022] AATA 4778

Lym and Secretary, Department of Social Services (Social services second review) [2022] AATA 4778 (18 July 2022)

Division:GENERAL DIVISION

File Number:          2022/0728

Re:Jacqueline Lym

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mr A. Maryniak QC, Member

Date:18 July 2022

Date of written reasons:        12 August 2022

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decisions under review.

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Mr A. Maryniak QC, Member

Catchwords

SOCIAL SECURITY – decision to reduce aged pension – assets test – whether purported loan was a charge or encumbrance – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Mr A. Maryniak QC, Member

12 August 2022

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

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Associate

Dated: 12 August 2022

Date of hearing:	18 July 2022
Applicant:	Self-represented
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia

ANNEXURE A

1. MEMBER: This is an application by the Applicant for a further review of a decision made on 25 September 2021 to reduce the Applicant’s rate of Aged Pension due to her assets, particularly in superannuation. The Applicant lodged a request for a review and on 14 January 2022 this Tribunal affirmed the decision under review.

2. The Tribunal has considered the documentary evidence lodged with the Tribunal, including the affidavit of Chek Ming Ding, which is sworn on 25 August 2010. The Tribunal has also considered the oral evidence of the Applicant, the written submissions of the Respondent and the oral submissions of both parties.

3. It is clear on the evidence that as at 25 September 2021, the Applicant had assets totalling $545,831, including superannuation of $304,604. As at the relevant date, which is 25 September 2021, the Applicant’s pension was reduced appropriately due to her total pool of assets.

4. The Tribunal accepts the submissions from the Respondent as to the insufficiency of any evidence of a loan, and in particular, the detail of any repayments of the loan during the relevant period, and the fact that the moneys have been used for various purposes which are mentioned in the affidavit of Mr Ding.

5. The Tribunal is satisfied on the evidence that the money in the Colonial First State (CFS) superannuation fund is money in a managed investment, and a financial asset, and that it meets the relevant definition under section 9(1) of the Social Security Act 1991 (‘the Act’). As the Applicant has reached the Aged Pension age, the value of that superannuation cannot be disregarded from the Aged Pension asset test pursuant to section 1118(1)(f) of the Act.

6. The evidence before the Tribunal does not support the fact that the amount in superannuation or a component of it is a charge or an encumbrance. As mentioned earlier, the evidence does not support the proposition that there is a loan as such, and the Tribunal notes that there is no evidence whatsoever of any repayments made pursuant to any loan, in addition to the lack of other details.

7. Further, there is no evidence that the Applicant used the loan to purchase the specific CFS superannuation asset. The Tribunal notes that the money was initially given to the Applicant, according to Mr Ding’s affidavit, to look after her nephew, which was then used for investment for Mr Ding. As the Respondent has highlighted, the Applicant has since used that money to buy a car and a house, amongst other items.

8. In conclusion, since the Tribunal finds that the purported loan of $250,000 or $270,000 is not a charge or an encumbrance and was not specifically obtained to purchase the CFS superannuation asset; it cannot reduce the value of the Applicant’s CFS superannuation. There being no other power or discretion to reduce the assets by that amount of $304,604, the Tribunal is satisfied on the evidence that the Applicant’s Aged Pension was properly reduced according to her assets as at 25 September 2021. 

9. In the circumstances, the correct or preferable decision is to affirm the reviewable decision of 14 January 2022.