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

This matter concerned an appeal by Ms Roslynn Radley against a decision by the Secretary, Department of Social Services, regarding the reduction of her age pension. The dispute centred on whether the proceeds from the sale of Ms Radley's former home should continue to be treated as exempt assets beyond the standard 24-month period. The Administrative Appeals Tribunal (AAT) heard the matter on the papers by consent.

The primary legal issue before the Tribunal was the interpretation of the Social Security Act 1991 (Cth) concerning the assets test exemption for proceeds from the sale of a principal home. Specifically, the Tribunal had to determine if Ms Radley was entitled to an extension of the 24-month exemption period due to delays, including those caused by COVID-19, in completing the construction of her new residence, and whether funds placed in a conveyancer's trust account for this purpose were still considered exempt assets.

The Tribunal acknowledged the complexity and strict drafting of the relevant legislation, noting that it generally makes no provision for discretion. It found that while Ms Radley had experienced delays beyond her control in building her new home, and had acted on advice received from Services Australia, the statutory exemption period of 24 months had expired. The Tribunal referred to the Social Security Guide, which outlines that the exemption for principal home sale proceeds can extend up to 24 months, provided certain criteria are met, and ends when the new home is purchased or the build is complete, or the determined extended time period expires. The Tribunal concluded that, after the expiry of the 24-month period, the funds held in trust for the building of her new home were to be assessed as an asset.

Although the Tribunal affirmed the decision under review, it noted that all parties accepted Ms Radley had been given incorrect advice. The Tribunal encouraged Ms Radley to lodge a Compensation for Detriment Caused by Defective Administration (CDDA) application, as it had no capacity to assess the merits of such an application.