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

This matter concerned an appeal by Mr Meyers against a decision by the Secretary of the Department of Social Services regarding the assessment of his age pension. The core of the dispute revolved around whether a particular income stream, referred to as the Perpetual Pension, was exempt from the asset test for the purposes of calculating his age pension entitlement. Mr Meyers acknowledged that the dates of his transactions and their relation to the applicable legislation, including amendments, were correctly identified by the Secretary, but sought an explanation for a perceived processing error and requested a decision based on ethical and moral grounds.

The Tribunal was required to determine the correct application of the *Social Security Act 1991* (Cth), specifically concerning the asset-test exemption for market-linked income streams. This involved considering amendments made by the *Family and Community Services and Veterans’ Affairs Legislation Amendment (Income Streams) Act 2004*, which introduced section 9BA and the *Social Security (Partially Asset-test Exempt Income Stream - Exemption) (FaHCSIA) Principles 2005*. The central legal question was whether the Perpetual Pension, commenced on 23 July 2009, met the criteria for asset-test exemption under the Act.

The Tribunal's reasoning focused on the legislative framework introduced in 2004. Section 9BA of the Act, as amended, established specific criteria for market-linked income streams to qualify for an asset-test exemption, noting that such exemptions would only ever attract a 50% exemption. The Tribunal found that the Perpetual Pension, having commenced on 23 July 2009, fell within the scope of section 9BA and section 1118(1)(da) of the Act. These provisions stipulate that only half the value of market-linked income streams is asset exempt. Consequently, the Tribunal concluded that the Perpetual Pension was not fully asset-exempt and its value had to be considered in the calculation of Mr Meyers' age pension.

The Tribunal set aside the decision under review and substituted it with a decision that the market-linked income stream purchased by Mr Meyers on 23 July 2009 was not asset-test exempt for the purposes of the *Social Security Act 1991* (Cth), and its value was to be taken into account when calculating his rate of Age Pension.