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

This matter concerned an appeal by Ms Mitchell against the rejection of her claim for an age pension. The dispute centred on the calculation of her assets for the purposes of means testing, particularly in light of previous disposals of assets and a Supreme Court order restricting her from diminishing the value of her Australian assets. The decision was made by Deputy J W Constance P of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were: (1) what assets of Ms Mitchell were to be taken into account when calculating her pension entitlement; (2) whether the value of her assets should be reduced by an amount specified in a Supreme Court order for the purpose of determining her pension entitlement; and (3) what was the effect of Ms Mitchell being declared bankrupt on the calculation of her pension.

The Tribunal considered various asset categories, including cash disposals, household contents, savings accounts, and a loan arising from the transfer of a property. It was noted that certain amounts disposed of were not to be included in asset calculations under section 1126AA of the Social Security Act 1991, specifically the first $10,000 in each instance of disposal. The Tribunal accepted that some cash disposals and household contents and savings were to be included. Crucially, the Tribunal acknowledged that assets vested in a trustee upon bankruptcy are not to be taken into account for pension entitlement calculations.

Consequently, the Tribunal set aside the reviewable decision of the Social Services and Child Support Division and substituted it with a decision to set aside the original rejection of Ms Mitchell's age pension claim. The matter was remitted to the Secretary of the Department of Social Services for reconsideration in accordance with the Tribunal's findings.