Re Soames and Secretary, Department of Social Services
[2013] AATA 945
[2013] AATA 945
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4120
Re
Andy Soames
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 23 December 2013 Place Sydney 1. The application for review of the decision made by an Authorised Review officer (affirmed by the Social Security Appeals Tribunal on 23 July 2013) is dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
2. Pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) without leave of the Tribunal Mr Soames must not:
(i) Make an application to the Administrative Appeals Tribunal for review of a decision made by the Social Security Appeals Tribunal relating to a claim for disability support pension
(ii) Make an application to the Administrative Appeals Tribunal for review of a decision made by the Social Security Appeals Tribunal relating to a claim made before 1 July 2014, for age pension, or any other social security pension or allowance, subject to same, or similar, asset value limit as applies to the age pension under the Social Security Act 1991 (Cth)
(iii) Make an application to the Administrative Appeals Tribunal for review of a decision made by the Social Security Appeals Tribunal relating to a claim made before 21 December 2015 for special benefit or any other social security pension or allowance, which is subject to the same, or similar asset value limit, as applies to special benefit under the Social Security Act 1991 (Cth).
.....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
PRACTICE AND PROCEDURE — Whether application is frivolous or vexatious — Claim for social security benefits — Similar application has been decided by the Tribunal on three previous occasions — Appeal from previous Tribunal decision dismissed by the Federal Court — Whether there is any new evidence — Application of section 42B of the Administrative Appeals Tribunal Act 1975 — Whether an order should be made preventing the Applicant making a subsequent application to the Tribunal
LEGISLATION
Administrative Appeals Tribunal AAT Act 1975 (Cth) – s 42B
Social Security Act 1991 (Cth) – ss 98; 1064; 1123; 1126AA; 1129; 1130; 1132
CASES
Re Filsell and Comcare [2009] AATA 90; (2009) ALD 198
Re Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 58
Re Williams v Australian Electoral Commission and Another (1995) 38 ALD 366
Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, and Anor. (Unreported, Social Security Appeals Tribunal, Member Horsburgh, 23 July 2013)
Soames and Secretary, Department of Social Services and Anor. (Unreported, Social Security Appeals Tribunal, Member Barker, 7 November 2013)
Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107
Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 699
Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473
Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260
Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938
REASONS FOR DECISION
Senior Member A K Britton
23 December 2013
Mr Andy Soames has applied to the Administrative Appeals Tribunal for review of decisions made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal on 23 July 2013, to refuse his claim for:
·disability support pension made on 15 April 2013, and
·special benefit made on 20 May 2013.
These reasons address whether Mr Soames’ application should be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975(Cth) (the AAT Act) on the grounds that it is “frivolous or vexatious”.
POWER TO DISMISS A “FRIVOLOUS OR VEXATIOUS” APPLICATION
Section 42B of the AAT Act states:
Power of Tribunal where a proceeding is frivolous or vexatious
1Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
2A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
3The Tribunal may discharge or vary such a direction.
In Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198; Deputy President Jarvis (at [33]), after reviewing the authorities, summarised the principles that in his opinion govern the approach that should be taken to applications made under s 42B. Those relevant to this matter are listed below:
(a)…
(b)The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [24], per Madgwick J.
(c)The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparagraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 – 130.
(d)However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
(e)Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
(f)Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document in this tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant: see the authorities I discussed in Re Kowalski and Repatriation Commission [2008] AATA 903 at [33] – [35]. All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B.
…
BACKGROUND TO CURRENT APPLICATION FOR REVIEW
Past claims for disability support pension
Mr Soames was granted disability support pension in 1995. His pension was cancelled in March 2011 when a Centrelink officer discovered that before a visit to Syria in August 2010, he had withdrawn over $1 million from a savings account.
Mr Soames challenged that decision without success in the Social Security Appeals Tribunal and, later, the Administrative Appeals Tribunal (Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107 (AAT Decision 1)). Central to that decision was the finding that the total value of the assets held by Mr Soames exceeded the “asset value limit”. Where the total value of a person’s assets exceeds the “asset value limit”, disability support pension is not payable (s 98 and Module G of s 1064 of the Social Security Act 1991 (Cth) (the Act).
The Federal Court refused Mr Soames’ application for an extension of time to lodge an appeal against AAT Decision 1. (Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260).
In February 2012 Mr Soames made a claim for disability support pension. That claim was refused broadly on the same grounds as those given for the cancellation decision, namely, that the value of his total assets exceeded the “asset value limit”. Mr Soames unsuccessfully challenged that decision in the Social Security Appeals Tribunal and the Administrative Appeals Tribunal (Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 699 (AAT Decision 2)).
In July 2012 and again in September 2012 Mr Soames made further claims for disability support pension. Each claim was refused because it was again found that the value of Mr Soames’ assets exceeded the “asset value limit”. Mr Soames unsuccessfully challenged both decisions in the Social Security Appeals Tribunal and the Administrative Appeals Tribunal (Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473 (AAT Decision 3). The Federal Court dismissed an appeal brought by Mr Soames and ordered him to pay costs (Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938).
Past claim for special benefit
In December 2012 Mr Soames made a claim for special benefit payments. His claim was refused. Mr Soames unsuccessfully challenged that decision in the Social Security Appeals Tribunal and the Administrative Appeals Tribunal (AAT Decision 3).
Current claim for disability support pension and special benefit
In April 2013 Mr Soames made a further claim for disability support pension, his fourth claim in 14 months (the fourth disability support pension claim). The following month he made a claim for special benefit (the second special benefit claim). On 23 July 2013 the Social Security Appeals Tribunal affirmed the decision made by a Centrelink Authorised Review Officer to refuse Mr Soames’ fourth disability support pension claim and second claim for special benefit (Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, and Anor. (Unreported, Social Security Appeals Tribunal, Member Horsburgh, 23 July 2013)). On 16 August 2013, Mr Soames applied to the Administrative Appeals Tribunal for a review of that decision. That application is the subject of these proceedings.
Issues relevant to the decision to refuse Mr Soames’ claim for disability support pension and special benefit
The value of the assets held by Mr Soames is central to whether his current claim for disability support pension and special benefit can be granted. Subject to the application of the hardship rules, Mr Soames will be ineligible for disability support pension if the total value of his assets exceeds the applicable asset cut-off limit ($890,750 from 1 July 2013).[1] Likewise he will be ineligible for special benefit if the total value of his assets exceeds the applicable “asset value limit” for special benefit ($339,250 from 1 July 2013).[2]
The value of Mr Soames’ assets was assessed in AAT Decisions 1, 2 and 3. While some variation in the ultimate figures reached, each decision concluded that the total value of Mr Soames’ assets exceeded the then applicable “asset value limit” for disability support pension by a large margin.[3] AAT Decision 3, the only decision to consider whether Mr Soames was eligible for special benefit, also found that he exceeded the applicable cut-off figure for special benefit.
Where the value of a person’s assets exceeds the applicable cut-off figure for disability support pension or special benefit and the person holds an “unrealisable asset”, that asset must be disregarded in working out the value of their assets, if the person would otherwise suffer “severe financial hardship” (the financial hardship rules ss 1129, 1130 of the Act).
Mr Soames used a portion of the funds withdrawn from his bank account in August 2010 to purchase a house in Syria. He contends that this house is an unrealisable asset.
If the financial hardship rules were applied to Mr Soames, the Act instructs that his rate of disability support pension or special benefit must be calculated according to the formula set out in ss 1130 and 1132, respectively. As pointed out in the decision of the Social Security Appeals Tribunal on 23 July 2013 (at [23], [24]) applying that formula, the rate of disability support pension and special benefit payable to Mr Soames would be nil.[4]
Invitation to provide new evidence
On 1 October 2013 at a directions hearing held to consider the management of Mr Soames’ application, I explained that an issue highly relevant to deciding whether it was appropriate to dismiss his application for review under s 42B(1) of the AAT Act was whether there was any new evidence to support his assertion that each AAT Decision had incorrectly calculated the value of his assets. Mr Soames was directed to provide to the Tribunal and the respondent Secretary, by 15 October 2013, any new evidence on which he proposed to rely. On 14 October 2013 Mr Soames filed with the Tribunal a document purporting to be a response to that direction. It read:
Evidence of the applicant Andy Soames will be as follows:
-The partnership agreement between Andy Soames and Hiam Soames
-The Gifting issue
-The Loan issue was obtained in 2004
-Hardship in relation to Andy Soames and his Family
-Invoices have not been accounted for
-Issue related to advice from respondent
-Disregards property in Syria
-Mental state of Andy Soames.
On 29 October 2013 a further directions hearing was held where the shortcomings of this “evidence” was pointed out and it was again explained to Mr Soames that absent new evidence his application might be found to be vexatious. Directions were made inviting Mr Soames to provide any new evidence and to provide any evidence in reply to the respondent’s submissions. Mr Soames failed to provide any material prior to the hearing.
Is there any new evidence?
In considering whether there is any new relevant evidence, I will assume but not decide that the financial hardship rules can be applied.
Apart from a statutory declaration prepared by Mr Soames’ wife, Mrs Hiam Soames, dated 22 July 2013 and some business records created by the Secretary, the documents lodged by the Secretary under s 37 of the AAT Act in these proceedings did not contain any documents not before the Tribunal in earlier AAT proceedings. At the dismissal hearing, Dr Thompson for the Secretary announced that since making the current application for review, Mr Soames had made a further claim for disability support pension which was rejected by the Social Security Appeals Tribunal on 7 November 2013 on the ground that he was ineligible for disability support pension because he had turned 65 years of age (Soames and Secretary, Department of Social Services and Anor. (Unreported, Social Security Appeals Tribunal, Member Barker, 7 November 2013)). The Secretary tendered in these proceedings the documents provided by Mr Soames to the Social Security Appeals Tribunal. I will return to consider those relevant to the new evidence issue.
Mr Soames asserts that he has produced new evidence that establishes that AAT Decision 1, AAT Decision 2 and AAT Decision 3 wrongly concluded that he was ineligible to receive disability support pension and special benefit. He contends that this new material reveals that each Tribunal erred by:
·Treating the money he gave to family members as having been “disposed of” or “gifted”
·Attributing the entire value of the property in Syria to him, rather than an equal share to his wife
·Not finding that he held most of the money realised from the sale of the business and property in trust for his wife
·Not accepting that he used $160,000 of the $1 million he took to Syria, to repay a loan to a relative.
Before considering each of these contentions it is useful to set out some of the key findings made in AAT Decision 3. The following summary is taken from the judgement of Buchannan J in [2013] FCA 938:
[13] In August 2010, Mr Soames left Australia for Syria with bank cheques totalling $1,080,000. He returned, less than five months later, with $40,000 in cash. While in Syria, he purchased a house for about $350,000. The AAT accepted that, in addition, costs of the purchase transaction might have amounted to about $10,000. When he returned to Australia, Mr Soames left $120,000 with his sister in Syria (although he later arranged for $40,000 of that amount to be brought to him in Australia). The AAT accepted that up to $90,000 might have been expended on the costs of his visit. After purchase of the house and “travel” expenses, there was another $470,000 (not so far explained) which was disposed of in Syria also to be assessed for adequacy of consideration.
[14] The AAT did not accept Mr Soames’ claims or explanations about how he parted with the $470,000. In addition, the value of the house, the amount brought back to Australia and the amount left in cash with Mr Soames’ sister, had to be counted as assets ($350,000 + $40,000 + $120,000 = $510,000). As to the last amount, $40,000 was later sent to Mr Soames in Australia. The AAT accepted that adequate consideration was received in Australia for all of that amount. The AAT did not accept that adequate, or any, consideration was received for $30,000 of the $40,000 initially brought back to Australia, which was quickly distributed in various ways. A further allowance of $20,000 in permissible gifts was made. The overall effect of those various conclusions was that the AAT found that when he applied again for a disability support pension in July and September 2012 Mr Soames had, or had disposed of without consideration, a total of over $900,000 in assets. I shall refer to the detailed calculations in due course.
[15] The AAT’s overall assessment left the value of Mr Soames’ assets well above the asset cut-off limit referred to by the AAT in para 13, extracted above. The result was that no disability support pension was payable. That conclusion, and the intermediate conclusions on which it was based, were exclusively based on detailed findings of fact.
(i) The disposition contention
In these proceedings, Mr Soames repeated the argument he made in earlier AAT proceedings that money given to members of his immediate family and members of his family residing in Syria, should not count towards his assets.
Part 3.12, Division 2 of the Act deals with the treatment of assets “disposed of” for no or inadequate consideration, or for the dominant purpose of obtaining a social security advantage (see s 1123). Where a person receives no consideration for assets “disposed of”, the amount of the disposition less the disposal limit is included in the calculation of the person’s assets for a period of five years from the date the disposal took place (s 1126AA).
AAT Decision 3 concluded that money given by Mr Soames to his relatives was “disposed of” within the meaning of Part 3.12, Div 2 of the Act. Buchanan J found no error in AAT Decision 3’s analysis of the operation of the disposition provisions contained in the Act. Mr Soames provided no new evidence about the circumstances surrounding the so–called “gifting” to family members. The recent statutory declarations prepared by his wife[5] simply confirm evidence previously given by Mr Soames to the effect that he gave her and other needy family members some of the $1 million he withdrew from the saving account in 2010.
The disposition contention raised by Mr Soames in these proceedings is merely a repeat of the argument he made in earlier proceedings about the proper interpretation of Part 3.12, Division 2 of the Act. He has produced no new evidence that might warrant revisiting this issue.
(ii) The attribution of the Damascus property contention
In these proceedings Mr Soames contended that although he is recorded as the sole owner in the title deeds to the Damascus property, the property is held in equal shares with his wife. In support Mr Soames relied on a number of statutory declarations affirmed by his wife.[6] In those declarations Mrs Soames repeated the claim she made in a statutory declaration affirmed on 17 October 2012 and included in the section 37 documents produced to the Tribunal in AAT Decision 3:
Our dream and agreement was to purchase a house next to my family and Andy’s family in Syria. We did manage to do that, on 20th August 2010, Andy purchased a house. The house is now in a war zone with many thousand properties being damaged from bombing [sic].
This evidence, while contained in an affidavit prepared after AAT Decision 3 was handed down, does not constitute new evidence. More to the point it could not be said to support a finding that the Damascus property was held in equal shares by Mr and Mrs Soames.
(iii)The trust contention
In these proceedings Mr Soames asserted that a large part of the $1 million he took to Syria was held by him in trust for his wife. He argued that the money realised from the sale of their joint business and its property did not belong to him, but to his wife. In support he pointed to a partnership agreement and a Power of Attorney executed by his wife in 2007. Each document was contained in the section 37 documents produced in earlier AAT proceedings.[7]
This contention was addressed in AAT Decision 2. In that decision SM Bell was unable to conclude as claimed by Mr Soames that the assets generated from the sale of the business he operated with his wife and its property, was held by him in trust for his wife.[8] SM Bell pointed out that even if that finding had been available on the evidence, given Mr Soames’ admission that he asserted control over those assets, by the operation of Part 3.18 of the Act, they must be attributed to him.[9]
Mr Soames failed to provide any new evidence to support his trust contention. The recent statutory declarations affirmed by his wife do not contain any information relevant to this issue.
(iv) The loan contention
Mr Soames claims that he used some of the $1 million he took to Syria, to repay money borrowed from a relative in 2003. That claim was examined in detail in AAT Decision 1 and not accepted.[10] AAT Decision 2 and AAT Decision 3 did not revisit the issue, because of Mr Soames’ failure to provide any new relevant evidence.[11]
Buchanan J stated that the decision not to revisit the issue (and other findings) contained in AAT Decision 3 was supported by “cogent, clearly expressed factual findings and explanations which were related to the operative provisions of the Social Security Act” and that the decision appeared to be “scrupulously fair and balanced”.[12]
The “new evidence” relied upon by Mr Soames in these proceedings consists of documents which showed that the business he operated with his wife was experiencing financial difficulties around the time he allegedly took out a loan from a relative. Much of this material was contained in the section 37 documents lodged in earlier AAT proceedings. As I understand it, Mr Soames contends that an inference should be drawn from this evidence that the business faced financial difficulties and because of this he was forced to borrow money from a relative. I do not accept that logic. But in any event Mr Soames has provided no new evidence to support his claim of having used part of the $1 million taken to Syria to repay the alleged loan.
CONCLUSION
Mr Soames has provided no new evidence about any of issues he believes are central to his current application for review. Each was the subject of findings made by AAT Decision 1, AAT Decision 2 and AAT Decision 3. As pointed out by the Social Security Appeals Tribunal in its decision of 23 July 2013[13] these issues have now been examined by different tribunals on 10 occasions.
The AAT Act gives citizens the right to apply to the AAT for review on the merits of certain classes of decisions. Applicants are not required to “plead” their case or make out a prima facie case. The right however to seek review of a reviewable decision is not unfettered. Section 42B of the AAT Act gives the Tribunal the power to dismiss an application if satisfied that the application is “frivolous or vexatious”.
This is Mr Soames’ fourth application to the AAT concerning his eligibility for disability support pension and his second concerning eligibility for special benefit. Central to whether he meets the eligibility criteria for each benefit is whether the value of his assets exceeds the relevant cut-off figure. Over the past two years this issue has been examined by numerous decision-makers who each concluded that the value of Mr Soames’ assets exceeded the relevant cut-off figure for disability support pension. Mr Soames’ appeal to the Federal Court against the most recent decision of the AAT was unsuccessful. He has failed to provide any new evidence that might warrant revisiting the findings made by AAT Decision 3 despite being extended an invitation to submit new evidence. In these proceedings he simply repeated the assertion that the AAT and Federal Court “got it wrong”. In my opinion the current application has no reasonable prospects of success and is “vexatious”.
The authorities have consistently emphasised the power to dismiss an application summarily under s 42B must be exercised sparingly. I have decided that it is appropriate to exercise that power in this matter for the following reasons. First, the current application has no reasonable prospects of success and there would no utility in allowing it to proceed. Second, while a person is generally entitled to their “day in court”[14] in a merits review jurisdiction, over the past two years Mr Soames has had numerous days in tribunals and courts, where the same issues were repeatedly revisited. Third, just over four months has passed since the issues Mr Soames now wishes to raise were considered by the Tribunal and Mr Soames’ appeal against that decision was dismissed by the Federal Court.
Should the power to issue directions under s 42B be exercised?
The Secretary has made an application to the Tribunal for directions to be made under s 42B of the AAT Act barring Mr Soames from making further applications to the Tribunal.
To assist me determine whether it was appropriate to make such orders I requested the Secretary to provide written submissions about a number of issues relevant to the determination of Mr Soames’ current and future eligibility for social security benefits. The Secretary filed detailed submissions on 10 December 2013 and 17 December 2013. Mr Soames filed brief submissions dated 12 December 2013 and on 17 December 2013 notified the Tribunal that he would not be responding to the Secretary’s supplementary submissions.
In Re Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 58 the Tribunal, commenting on a barring order made under s 42B drafted in broad terms, stated (at [6]):
Orders of this nature are an extraordinary thing. If they are made, it is incumbent on the Tribunal when considering an application for leave to satisfy itself that the applicant is not being denied the opportunity to pursue a benefit or redress that is legitimately open to him simply on account of previous conduct. Even vexatious litigants might have a point.
The authorities have consistently emphasised that the power to dismiss an application under s 42B must be exercised sparingly. In my opinion an even more cautious approach should be taken to making a barring order under that provision. Care must be taken to ensure that the terms of that order are not excessive.
In my opinion it is an appropriate exercise of the power conferred by s 42B to prevent Mr Soames from again challenging findings about the value of his current assets given that this issue has been considered on numerous occasions. But in my view it would be inappropriate to make orders preventing him from applying indefinitely for review of all decisions made under the Act. For example, in my opinion, it would be inappropriate to prevent Mr Soames from applying for review of a decision unrelated to the value of his assets, for example a decision made in relation to the carer allowance he currently receives.
In deciding what class of decision should be the subject of any barring order, it is necessary to consider when, or if, the value of his disposed assets is likely to reach the relevant cut-off figure for pension eligibility.
AAT Decision 3 found that Mr Soames had disposed of $560,000 in the period 21 December 2010 to 1 July 2012. Applying that finding Mr Soames will be taken to hold disposed assets of $560,000 until 21 December 2015. At that date the value of Mr Soames’ disposed assets will drop to $110,000, and in July 2017, to nil.[15]
The asset cut-off limit for special benefit is indexed annually. The applicable figure for Mr Soames’ recent claim for special benefit, the subject of these proceedings, is $332,000 (based on single, non-home owner)[16]. While not possible to accurately determine what that figure will be on 21 December 2015 when the value of Mr Soames’ disposed assets is taken to have dropped to $110,000, absent legislative amendment or triple digit inflation, it is unlikely to reach $560,000. It follows that even if the property in Syria is disregarded, the value of Mr Soames’ assets will render him ineligible for special benefits until at least December 2015.
The assets cut-off figure for the disability support pension is significantly higher than the corresponding figure for the special benefit. Accordingly the value of Mr Soames’ disposed assets will reach the former at a much earlier date than the latter. Mr Soames is ineligible for disability support pension on account of his age but may now be eligible for age pension. The legislative basis for calculating the asset value limit for the age pension is similar to that used to calculate the corresponding figure for the disability support pension. Each must be calculated by applying the formula set out in Module G in s 1064 of the Act. Applying the findings in AAT Decision 3, the value of Mr Soames’ assets currently exceeds the current cut-off figure for age pension (and disability support pension) by about $33,000.[17] While not possible to predict with certainty what the applicable assets value limit figure will be when adjusted in 2014, on the basis of historical movements by 1 July 2014 the value of Mr Soames assets may fall below the applicable figure.
As pointed out in the decision of the SSAT made on 23 July 2013 (at [23]) even if Mr Soames’ house in Syria was treated as an “unrealisable asset”, and, the formula set out in s 1130 of the Act applied, disability support pension (and age pension) would not be payable because his “adjusted annual rate of ordinary income” exceeds his “maximum payment rate”. [18]
Given the difficulties in deciding whether the age pension would be payable to Mr Soames after 1 July 2014 if the formula in s 1130 of the Act were to be applied, I have decided he should not be barred from applying to the AAT for review of a decision made in relation to a claim for age pension made after that date. These reasons should not be interpreted as indicating that I have formed a view that Mr Soames will be entitled to receive age pension from 1 July 2014, or, that the financial hardship rules can be applied (ss 1129, 1130), simply that he should not be prevented from seeking review of a decision to refuse to grant the age pension in relation to a claim made after1 July 2014.
For these reasons I have decided that it is appropriate to make orders under s 42B(1) of the AAT Act to direct that Mr Soames must not, without leave seek review by the AAT of a decision relating to a claim for age pension made before 1 July 2014, or, a claim for special benefit made before 21 December 2015.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..............[SGD]..........................................................
Associate
Dated 23 December 2013
Date(s) of hearing 26 November 2013 Date final submissions received 17 December 2013 Applicant In person Solicitors for the Respondent Sparke Helmore [1] Mr Soames made his fourth claim for DSP on 15 April 2013. Whether the total value of his assets exceeds the applicable asset “cut-off limit” must be assessed by reference to the 13-week period starting on the date of claim, 15 April and ending 13 weeks later, 15 July 2013 (the claim period) (ss13, 42 and cl 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth)). As the claim period straddles the 2012 and 2013 tax years, in determining whether the value of MrSoames’ assets exceed the applicable asset “cut-off limit”, the figure most favourable to him must be applied, that is $890,750, which came into effect on 1July2013.
[2] The claim period for MrSoames’ current claim for special benefit (15April2013 to 19August2013) also straddles the 2012 and 2013 tax years and therefore the figure most favourable to him must be applied, that is $339,250, the figure which came into effect on 1July2013.
[3] AAT Decisions 1, 2 and 3 proceeded on the assumption that MrSoames was a “single home-owner” for the purpose of determining the applicable asset “cut-off limit”. The asset cut-off limit is adjusted annually in line with CPI and pension increases. Each AAT decision employed different “cut-off” figures because each related to claims made or a decision to cancel in different financial years.
[4] See also AAT Decision 2 at [44], [45].
[5] Statutory declaration sworn by Hiam Soames on 22 July 2013 (supplementary s 37 documents at ST11 p21); Statutory declaration sworn by Hiam Soames on 17 October 2013 (supplementary s 37 documents at ST12, p22-25); Statutory declaration sworn by Hiam Soames on 6 November 2013 (supplementary s 37 documents at ST10, p20).
[6] Ibid.
[7] Section 37 documents filed in AAT Decision 2 (file number 2012/2686) at T23 pages 204 – 208; Exhibit A5 in AAT Decision 3.
[8] [2012]AATA 699 at [38].
[9] [2012] AATA 699 at [39].
[10] [2012] AATA 107 at [23].
[11] [2012] AATA 699 at [7], [24] – [26], [2013] AATA 473 at [36].
[12] [2013] FCA 938 at [41], [42].
[13] Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, and Anor. (Unreported, Social Security Appeals Tribunal, Member Horsburgh, 23 July 2013) at [69].
[14] Re Williams v Australian Electoral Commission and Another (1995) 38 ALD 366 at [37].
[15] See AAT Decision 3 at [46].
[16] Mr Soames’ claim for Special Benefit was made on 19 December 2012 therefore the relevant period for determining the applicable asset cut-off figure is 20 September 2012 to 31 December 2012.
[17] AAT Decision 3 found that the value of Mr Soames’ total assets was $923,241. The applicable assets value limit, for a single person who is not a home owner, is $890,750 (to 31 December 2013).
[18] The Secretary’s submissions of 17 December 2013 identify a small error in the figure used by the SSAT. The error does not affect the Tribunal’s ultimate finding that the rate of disability support pension would be nil if the formula under s 1130 of the Act is applied.
8
11
0