MTKJ and Secretary, Department of Health (Social services)

The Administrative Appeals Tribunal considered the matter of MTKJ and the Secretary, Department of Health. The dispute concerned the applicant's eligibility for a residential care subsidy, specifically whether certain loans should be treated as an asset for the purpose of calculating the subsidy.

The Tribunal was required to determine whether the loans, made by the applicant to a company that was subsequently deregistered and a trust that vested, should be included as an asset of the applicant at the relevant time for the purposes of assessing his residential care subsidy. The applicant contended that the "illusory" nature of the loans meant they should be disregarded in this calculation.

The Tribunal reasoned that a strict application of the relevant legislation, supported by case law such as *Unicomb v the Secretary, Department of Social Security* and *Gordon and Secretary, Department of Family and Community Services*, mandated the inclusion of the loans as an asset until they were considered "surrendered." This surrender occurred when the company was deregistered and the trust vested. The Tribunal rejected the applicant's argument that the illusory nature of the loans justified their exclusion, affirming the decision under review. The Tribunal noted that the Department accepted the loan amounts were no longer relevant after 16 February 2016, and an adjustment might be made for the period between that date and 26 July 2016. The respondent's representative also undertook to explore potential options with the applicant's representative.