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

This matter concerned the Secretary of the Department of Social Services and two respondents regarding their entitlement to Commonwealth Seniors Health Cards (SHC) and Low Income Health Care Cards (LIC). The dispute arose after the respondents' age pension was automatically cancelled due to a failure to report, and subsequently, their SHC and LIC were revoked. The case was heard by A Poljak SM.

The primary legal issues before the court were whether the automatic cancellation of the respondents' age pension on 20 December 2016 was valid, and whether the subsequent decision on 11 September 2017 to revoke their SHC and LIC was properly made. The court was required to consider the application of grandfathering provisions in relation to the stricter assets test that came into effect on 1 January 2017.

The SM found that the cancellation of the age pension was valid under subsection 95(1) of the Administration Act, as there were no special circumstances to warrant the application of subsection 95(2). The court noted that even if the age pension had not been cancelled, the respondents' assets would have disqualified them from receiving it from 1 January 2017 under the new assets test. Despite this, the respondents were issued with SHC and LIC, which the court attributed to a "system error," finding no legal basis for their issuance as the respondents were not age pensioners on 31 December 2016, meaning the grandfathering provisions were not enlivened.

Consequently, the court set aside the decision of the SSCSD made on 4 December 2017. In substitution, the court found that the respondents' age pension was correctly cancelled on 20 December 2016, with effect from 22 November 2016, and that the respondents had no entitlement to a SHC and LIC since 1 January 2017.