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

[2022] AATA 4228

QXTK and Secretary, Department of Social Services (Social services second review) [2022] AATA 4228 (31 October 2022)

Division:GENERAL DIVISION

File Number:          2022/3164

Re:QXTK

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mr A. Maryniak KC, Member

Date:31 October 2022

Date of written reasons:        12 December 2022

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), with a direction that, for the purposes of calculating the Applicant’s rate of carer payment during the relevant period, the Yea Property is to be regarded as the Applicant’s principal home from 31 May 2021.

.......................[sgd].................................................

Mr A. Maryniak KC, Member

Catchwords

SOCIAL SECURITY - carer payment - where property purchased with sale proceeds of former principal home considered an asset - Applicant residing with and providing substantial level of care to mother in retirement home - Applicant prevented from moving in on relevant date due to care responsibilities - whether property was principal home - limited visits made to property following purchase - utilities connected and home contents moved to property - no other principal home identified - decision set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

12 December 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 ex tempore 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 KC, Member

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Associate

Dated: 12 December 2022

Date of hearing:	24 October 2022
Applicant:	Self-represented
Advocate for the Respondent:	Ms Alexandra O'Grady
Solicitors for the Respondent:	MinterEllison

ANNEXURE A

1. MEMBER: This is an application by the Applicant for a review of a decision of this Tribunal on 15 March 2022, which affirmed a decision of the Respondent to assess the Applicant’s property located in Yea (‘the Yea property’) as an asset when calculating her carer payment. The Tribunal is indebted to Ms O’Grady for her submissions on behalf of the Respondent. The Tribunal has also been ably assisted by the Applicant and her submissions. 

2. The position in this case is a rather unique one and the Tribunal notes that for the purposes of the Social Security Act1991 (Cth) (‘the Act’), the term ‘principal home’ is not defined in any real sense that is relevant for the purposes of this application, save for the definition in section 11A of the Act.

3. The question of fact before the Tribunal is whether, as at 19 October 2021 (‘the relevant date’), the Yea property was the principal home of the Applicant. The Respondent properly points out that having purchased the home on 31 May 2021, as at 10 July 2021, the Applicant had not lived in the home and as at 21 January 2022, fundamental repairs were being undertaken. The Applicant also points the Tribunal to the limited visits she made to the home after the relevant date. Those dates were in late 2021 and early 2022. 

4. As indicated during the hearing, the Tribunal is entitled to look at all of the evidence before it, including the evidence following 19 October 2021 as long as it is relevant and assists in the determination of the question of fact of whether, as at the relevant date, the Yea property was the ‘principal home’ of the Applicant. The Tribunal notes that prior to the relevant date, the Applicant had connected the water and the power and importantly, on 30 September 2021, had moved her home contents to the property. The Tribunal also notes that the Applicant used the proceeds of sale of her earlier principal home to purchase the Yea property. The Tribunal notes the evidence, which is not contradicted, that the Applicant was a guest at her mother’s home while she provided essentially 24/7 care until her mother’s unfortunate passing in May of this year. 

5. The numerous authorities raised by the parties indicate there are various considerations, both objective and subjective, that come into play to determine whether a property is in fact a principal home. Although the Tribunal accepts that on one view, it might be said that the property was not the ‘centre of gravity’ for the Applicant and her connection with the property was limited as at the relevant date, the body of evidence before the Tribunal is consistent with the fact that she had no other principal home at any time, particularly on the relevant date. Further, there is no evidence before the Tribunal that the Yea property was ever utilised in any way inconsistent with it being the principal home of the Applicant.  

6. Whether or not the ‘ring of steel’ was in place, obviously through the COVID period the Applicant was quite properly concerned with travel and exposure to other individuals because her mother would have been particularly vulnerable to COVID. Whilst it is accepted that by her own evidence, the Applicant has indicated that she could not move into the home as at the relevant date because of her carer responsibilities, it does seem at least consistent with the provision in section 11A(9) that her absence from that home was due to her continuing to provide care to her mother. The Tribunal accepts the difficulty with the wording in section 11A(9) but, in light of the fact that on the evidence, there is simply no suggestion that any property other than the Yea property could be the Applicant’s principal home as at the relevant date, the Tribunal finds that that section is consistent with the Applicant’s argument and that her absence from that home was due to her providing a substantial level of care to her mother as at the relevant date.

7. Having considered the matters discussed above, the better view is that the Yea property was the Applicant’s principal home as at the relevant date.

8. The Tribunal reiterates that compared with the numerous authorities or other decisions that have been provided by both the Applicant and the Respondent, the factual aspects to this case are unique. 

9. In light of the above reasons, the Tribunal finds that the Yea property was her principal home as at the relevant date.