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

[2021] AATA 4218

Rettay and Secretary, Department of Social Services (Social services second review) [2021] AATA 4218 (16 November 2021)

Division:GENERAL DIVISION

File Number:          2020/5307

Re:Carol Rettay

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M East

Date:16 November 2021

Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 29 July 2020, which affirmed two decisions of a delegate of the Respondent, made on 3 January 2019 and 5 May 2020, is affirmed.

................[Sgd]........................................................

Member M East

CATCHWORDS

SOCIAL SECURITY – pensions, allowances, benefits – age pension –unrealisable asset – whether a loan is an assessable asset – asset value over the assessable limit for age pension – age pension arrears – date of effect – Reviewable Decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 43, 43(6), 44

Social Security Act 1991 (Cth) – ss 11, 44, 55, 1122,  

Social Security (Administration) Act 1999 (Cth) – ss 11, 42, 147, 237

Social Security (Administration) (Class of Persons-Intent to Claim) Determination 2018 (Cth)

CASES

Bentham and Secretary, Department of Family and Community Services [2001] AATA 1018

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Social Security Guides – Guide to Social Policy Law – 4.6.5.65

REASONS FOR DECISION

Member M East

16 November 2021

INTRODUCTION

1. The decision under review is a decision of the Administrative Appeals Tribunal, Social Services & Child Support Division (AAT1), dated 29 July 2020 (the Reviewable Decision). The Reviewable Decision affirmed two earlier decisions made by the authorised review officer (ARO) of Department of Human Services, now called Services Australia (Centrelink) dated 3 January 2019 and 5 May 2020.

2. The decision made on 3 January 2019, by an ARO, rejected the Applicant’s age pension with effect from 20 September 2016.[1] The Applicant was subsequently granted age pension with effect from 25 January 2019 by a decision made on 5 May 2020.[2]

   [1] Exhibit R2, 149–151.

   [2] Ibid 162–164.

   BACKGROUND

3. The Respondent has accurately summarised the relevant facts in the Statement of Facts and Contentions dated 25 June 2021 as follows:

   First Decision

   3.On 20 September 2016, the Applicant was granted AP.

   4. On 22 March 2017, the Agency cancelled the Applicant’s AP on the basis that her total assets exceeded the assets test limit for age pension.

   5.On 1 June 2017, an ARO affirmed the decision to cancel the Applicant’s AP from 22 March 2017.

   6.The Applicant applied to the AAT1 for review and, on 19 June 2018, the AAT1 set aside the decision to cancel the Applicant’s AP from 22 March 2017, and remitted the matter to the Agency with directions to reconsider the Applicant’s entitlement to AP upon gathering further evidence (2017/P111940) (T7/137-144) (First AAT1 Decision).

   7. On 24 July 2018, the Agency reassessed the Applicant’s qualification for AP from the 20 September 2016 date according to the directions of the AAT1 First Decision, and decided that the Applicant was not entitled to AP whatsoever as a result of her total assets exceeding the assets test limit (T8/145-146).

   8. On 25 July 2018, a complex assessment officer wrote to the Applicant and explained the outcome of the Agency’s reassessment (T9/147-148).

   9.On 3 January 2019, an ARO affirmed the decision made on 24 July 2018 to reject the Applicant’s claim for Age pension with effect from 20 September 2016 on the basis the Applicant’s total assets exceeded the assets test limit (T10/149-151) (First ARO Decision)

   Second Decision

   10.On 30 April 2019, the Agency granted the Applicant AP from 25 January 2019 and not from an earlier date (T13/159-161).

   11.On 5 May 2020, an ARO affirmed the decision to grant the Applicant AP from 25 January 2019 and not from an earlier date (Second ARO Decision). The ARO found the Applicant’s entitlement to AP prior to 25 January 2019 was outside its jurisdiction, as it was determined by the First ARO Decision, which had not been appealed (T14/162-166).

   AAT Review of First ARO Decision and Second ARO Decision

   12.On 12 June 2020, the Applicant applied to the AAT1 for review of the First ARO Decision in finding that she was not entitled to AP from 20 September 2016 and the Second ARO Decision in not granting the Applicant AP from a date earlier than 25 January 2019.

   13.On 29 July 2020, the AAT1 affirmed the First ARO Decision and Second ARO Decision (T2/7-40).

   14.On 2 September 2020, the Applicant applied to the Tribunal for review of the AAT1 decision dated 29 July 2020 (T1/1-6).

   (Original emphasis.)

   MATERIAL BEFORE THE TRIBUNAL

4. The application was heard by the Tribunal on 1 October 2021. The Applicant was represented by Ms Vera Martin, a Financial Counsellor. The Respondent was represented by Ms Amy Simpson of Services Australia.

5. The Applicant gave oral evidence and was cross-examined by Ms Simpson. The Applicant called Mr Michele Lombardo as her witness. Mr Lombardo also gave oral evidence and was cross-examined by Ms Simpson.

6. The Tribunal had the following material before it:

   ·minutes of meeting between KE Ltd and RB Services, dated 24 January 2019 (Exhibit A1);

   ·Secretary’s Statement of Facts and Contentions, dated 25 June 2021 (Exhibit R1);

   ·section 37 “T-Documents”, consisting T1-T18, pages 1-277 (Exhibit R2).

   ISSUE FOR DETERMINATION

7. The Applicant was granted age pension on 30 April 2019 with a date of effect from 25 January 2019.[3] A decision was previously made on 3 January 2019 rejecting the Applicant’s claim for age pension made on 20 September 2016.[4]

   [3] Exhibit R2, 159.

   [4] Ibid 149.

8. Therefore, the issue for consideration by the Tribunal is whether the Applicant is entitled to the payment of age pension from a date earlier than 25 January 2019. Part of what needs to be determined for this issue is whether the Applicant’s loan to the Rettay Family Trust (the Trust) was correctly assessed as an asset in accordance with s 1122 of the Social Security Act 1991 (Cth).

   LEGISLATIVE FRAMEWORK

9. The Tribunal is required to consider the provisions of the Social Security Act 1991 (Cth) (the Act); the Social Security (Administration) Act 1999 (Cth) (the Administration Act); the Social Security (Administration) (Class of Persons-Intent to Claim) Determination 2018 (Cth) (the Determination); and the Administrative Appeals Tribunal Act 1975 (the AAT Act).

10. The Tribunal is also able to have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).

11. Section 11 of the Administration Act provides that in order to receive a social security payment a claim should be made and states in part:

    (1)Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:

    (a)a social security payment; or

    (b)a concession card;

    must make a claim for the payment or card in accordance with this Division.

    CONSIDERATION

    Whether the Applicant’s Loan can be assessed as an asset?

12. Section 55 of the Act provides that the rate of age pension is worked out using the Pension Rate Calculator A (Rate Calculator). This Rate Calculator is contained in s 1064 of the Act. In summary, the rate of age pension will be calculated by using either the total value of the person’s assets or their total income, whichever produces a lower rate of pension.

13. Section 44 of the Act provides:

    44   Age pension not payable if pension rate nil

    (1)Subject to subsection (2), an age pension is not payable to a person if the person’s age pension rate would be nil.

    (2)Subsection (1) does not apply to a person if the person’s rate would be nil merely because an election by the person under subsection 915A(1) (about quarterly energy supplement) or 1061VA(1) (about quarterly pension supplement) is in force.

    (Original emphasis.)

14. Section 11 of the Act defines the term “asset” to mean “property or money (including property or money outside Australia)”.

15. Further, a loan can be an asset. Section 1122 of the Act provides:

    If a person lends an amount after 27 October 1986, the value of the assets of the person for the purposes of this Act includes so much of that amount as remains unpaid but does not include any amount payable by way of interest under the loan.

    (Original emphasis).

16. The Guide at 4.6.5.65 states in part:

    When a loan no longer exists - loans made to a company, trust or individual

    Legally, a loan ceases to exist at the time it is repaid, or when the debtor is formally released from the loan. A debtor is released from a loan contract under a bankruptcy or where the loan is forgiven.

    For social security purposes, there are some other situations where a loan is also treated as no longer existing. Loans that no longer exist are sometimes referred to as irrecoverable loans, though this term is not mentioned in the SSAct. Although there is no longer a loan, there may be another type of asset, such as a debt.

    A loan no longer exists for social security purposes when:

    …

    ·the company (or trust) that borrowed the money is wound up (see exception), OR

    ·the company (or trust) that borrowed the money is in the process of irreversible winding up (see explanations 1 & 5), OR

    Exception: If the lender has a right to enforce the loan contract against the directors of the company on a personal basis the loan will still exist.

    Explanation 1: Deprivation rules apply where a loan is forgiven, except where this occurs in the process of an irreversible wind up (i.e. deregistration for a company) of a company or trust.

    …

    Explanation 5: A delegate should be satisfied that the wind-up of the company (or trust) is irreversible and that the wind up (or deregistration) will be completed within a reasonable time (i.e. it will not drag on for years).

    (Original emphasis.)

    The Loan

17. The Applicant’s undisputed personal assets as at 20 September 2016 consisted of her personal effects, a motor vehicle, a timeshare, shares in Woodside Petroleum and a small sum of attributed assets from Griffin Bay Trust. These amounted to a total value of $37,759.[5]

    [5] Exhibit R1, [26].

18. As at 20 September 2016, the age pension assets value limit for a single homeowner was $793,750.[6]

    [6] Ibid [23].

19. The Trust’s Balance Sheet as at 30 November 2016 reflects a loan of $768,866 owed to the Applicant (the Loan).[7] However, the Applicant contends that the Loan was never made by her and instead was made by Mr Michele Lombardo.

    [7] Exhibit R2, 131.

20. The Applicant, when asked about the Loan during her cross-examination, gave the following evidence:[8]

    Okay. No, there was never, ever a loan owed to me. Our company was in financial trouble, and I put it – virtually put it in administration. And because the bank would not extend the overdraft, I borrowed the money personally from a colleague who was in the fishing industry, because that was what – our profession.  And to try and pay the – try and be away out of problems.

    …

    So my argument was the fact that - my problem was the loan was never, ever from me. Because I had no money. The company had no money. And I was just endeavouring to trade our way out and pay the creditors that were owed money.

    [8] Transcript, 7–8.

21. The Applicant explained that her accountant, Mr Binks, transferred the Loan in the Trust’s accounts to her for the “accounting purposes” as she asked Mr Binks to wind up KE Ltd, a company controlled by the Applicant. The Applicant confirmed that KE Ltd was eventually wound up in 2019.[9] The Tribunal notes that KE Ltd was wound up on 24 January 2019.[10]

    [9] Transcript, 7–9.

    [10] Exhibit A1.

22. The Applicant’s witness, Mr Lombardo gave the following evidence during the hearing:[11]

    Well, in 1993 I owned offices, and it was my office in [address redacted], and there was three apartments upstairs, and Mrs Rettay had owned one of them. It was in a company name at the time. And sometime after that - some years after - as I understood it, she was having problems with her husband, and she didn’t particularly want him to know about that particular unit, and she asked me would I - would it be all right to put the unit in a trust, and for me to be the trustee. I should say also that at the time Mrs Rettay was in the fishing industry, and so were we in the fishing industry. About 2010 - I didn’t see Mrs Rettay very often - but in about 2010 she was obviously having some difficulties financially, and she asked me would I borrow money against the unit. I sought legal advice. It was okayed, and a legal agreement was made. And I think it was about $350,000 were borrowed - I borrowed - from the [name redacted], or the [name redacted] - they were the same - some years after that it appeared that there was - Mrs Rettay was in more difficulties and she asked me would I borrow $600,000, and she’d pay the 350 back. And once again I sought legal advice and a legal agreement, and I borrowed the $600,000 at the time. I think it may have been [name redacted] that time. Time went by, Mrs Rettay paid nothing back and her difficulties continued. And there were different legal documents made up. And at the end of it all the account was at about close enough to $800,000 owing to me, and I can see problems ahead, and in the agreement where she borrowed the 600, I made known to Mrs Rettay that should she default eventually, that I was not going to go through the court action of just getting the property - so she was to surrender the property to me. There was two or three different agreements made after that when she couldn’t pay. And finally the property became mine, and that was virtually the end of that. But all the money went into a company, as far as I know, to pay debts. The fishing industry was in a - having experiencing some problems at the time. Fuel was high, prices were low, et cetera, et cetera.

    [11] Transcript, 14–15.

23. During cross-examination, Mr Lombardo clarified that the Applicant’s apartment at suburban Perth (the Property) probably became his sometime after 2014. He further confirmed that he held the Property on trust for the Applicant as she did not want her husband to be aware of it and Mr Lombardo, in his capacity as a trustee, took out a mortgage against that Property.[12]

    [12] Ibid 14–16.

24. Mr Lombardo, on questioning about why he then gained ownership of the Property when he only held the Property on trust and the loans against the Property were not repaid, explained the following:[13]

    Member:But you wouldn’t have been personally liable for that loan? If you’ve taken it out as the trustee?

    Mr Lombardo:  Have you ever heard of a personal guarantee, you know?

    Member:Oh, did you give a personal guarantee

    Mr Lombardo:  Yes, you can’t borrow these days without it.

    [13] Ibid 17.

25. Whilst the legal efficacy of the agreement between the Applicant and Mr Lombardo in relation to the Property could be questioned, the Tribunal finds the practical effect of the arrangement to be as follows: the Applicant claimed that she owned the Property that was part of a larger complex which also housed Mr Lombardo’s offices. For personal reasons, the Applicant wished to hide this Property from her husband at the time and asked Mr Lombardo to hold the Property on trust for her as trustee. In or around 2010 when the Applicant’s companies were in financial trouble, the Applicant asked Mr Lombardo to borrow money, in his capacity as trustee, against the Property. This money was used to pay creditors of the companies. A further sum was borrowed against the Property, however no repayments occurred. Mr Lombardo then obtained ownership of the Property at some later point in settlement of his debt.

26. The Applicant gave further evidence that she had been a victim of domestic violence and went to this Property with her children for safety.[14] She also briefly referred to the Family Court proceedings with her ex-husband that started in early 2010 and went until 2016.[15]

    [14] Ibid 17.

    [15] Ibid 10.

27. Mr Lombardo provided an affidavit in Family Court proceedings which were reproduced for the purposes of this application. The affidavit contained a “Declaration of Trust” (the Declaration) dated 24 September 1993 and a “Deed” (the Deed) between the Applicant and Mr Lombardo dated 3 November 2014, as attachments. In the affidavit, Mr Lombardo provided a detailed outline of the financial arrangements that occurred in 2010 between himself and the Applicant.[16]

    [16] Exhibit R2, 172–190.

28. The Declaration provides for the transfer of the Property from BH Ltd (another company controlled by the Applicant) to Mr Lombardo in his capacity as trustee. The purchase price for the Property was paid wholly by the Applicant who was also the beneficiary under the trust. As per the Declaration the trustee holds the Property upon trust for the beneficiary absolutely and was obligated to transfer the Property to the beneficiary within 14 days after the date of a written demand.[17]

    [17] Ibid 181–183.

29. The Deed recites the two mortgages taken against the Property on 12 August 2010 and 22 October 2010. The Applicant failed to adhere to several loans’ repayment dates and the Deed reflected their agreement that if the loans were not repaid by 1 December 2014, Mr Lombardo would discharge any outstanding monies and the Applicant would provide a signed acknowledgement that she would transfer her beneficial interest in the Property to Mr Lombardo.[18]

    [18] Ibid 185–189.

30. The Applicant failed to repay the loans, and as a result Mr Lombardo took possession of the Property on 16 June 2015.[19]

    [19] Ibid 177.

31. The Tribunal notes that as per Mr Lombardo’s affidavit, referred to in paragraph [27] above, the Applicant had had orders from the Family Court restraining her from dealing with any asset in her name on and from 15 October 2010.[20]

    [20] Ibid 178.

32. In the affidavit Mr Lombardo further deposed:[21]

    I have become unwittingly involved in these proceedings due to the failure by [the Applicant] … to disclose to her past legal advisers the extent of her financial dealings with me in respect to the [address redacted] Property and her failure to disclose up until recently copies of the various documents supporting the First Loan and the Second Loan...

    [21] Ibid.

33. The Applicant presented the argument that it was Mr Lombardo who borrowed the money and not her. The Trust’s 2016 financial accounts only reflected the Loan as owed to her because her accountant, Mr Binks, decided that due to “accounting purposes” it should be done that way.[22]

    [22] Transcript, 8.

34. Putting the question of whether the Tribunal can look behind the face value of financial accounts to one side, the Tribunal does not accept the Applicant’s argument.

35. What became clear in both the Applicant’s and Mr Lombardo’s evidence is that the Applicant was the beneficiary of the Property against which the mortgages were held. Mr Lombardo, when borrowing the money did so in his capacity as her trustee. Moreover, the money was borrowed against an asset which the Applicant was legally entitled to upon her written demand. Mr Lombardo, acting in his capacity as trustee did not borrow the money personally. It was the Applicant’s Loan and she then lent that money to the companies in order to pay the creditors as well as paying some of her own personal expenses.

36. In his statutory declaration dated 1 July 2019, Mr Adam Binks, the Applicant’s accountant, states:[23]

    1.    IN RELATION TO THE LOAN ASSESSED BY CENTRELINK TO BE FROM CAROL RETTAY TO [name redacted] [KE Ltd] FOR $768,866, I DECLARE THAT THE LOAN WAS SUPPLIED BY MICHELE LOMBARDO IN MID-2010 IN ORDER TO PAY CREDITORS OF THE BUSINESS.

    2.    FOLLOWING LIQUIDATION OF THE BUSINESS IN LATE-2010, THE LOAN STAYED IN THE ACCOUNTS OF THE COMPANY.

    3.    ON TAKING OVER THE ACCOUNTS, AND TASKED WITH PREPARING FINAL FINANCIALS & TAX RETURNS, I TRANSFERRED THE LOAN FROM MICHELE LOMBARDO TO CAROL RETTAY IN ORDER TO FACILITATE DEBT FORGIVENESS WITHIN THE ACCOUNTS, AS I DETERMINED IT WOULD BE ADMINISTRATIVELY EASIER TO HAVE CAROL PROVIDE THE FORGIVENESS THAN MICHELE LOMBARDO, GIVEN CAROL HAD NO ONGOING RELATIONSHIP WITH MICHELE BY THAT POINT.

    (Without alteration.)

    [23] Exhibit R2, 19.

1. A statement was provided by the Principal of TD Ltd dated 19 August 2019. The Principal had been appointed as a voluntary administrator of KE Ltd. In the letter he states that he has been requested to provide information to Centrelink in relation to the financial position of KE Ltd, in its capacity as trustee of the Trust. He explained that he was also appointed as “Deed Administrator of a Deed of Company Arrangement” which had been approved by the creditors of KE Ltd on 14 February 2011 and executed on 23 February 2011. He ceased acting as “Deed Administrator” on 5 January 2015 and control of KE Ltd reverted to the directors of the company on that day. He further stated that as Mr and Mrs Rettay were involved in Family Court proceedings, actual control of KE Ltd was reverted to the parties’ respective solicitors.[24]

   [24] Ibid 37.

2. The “Detailed Balance Sheet as at 30 November 2016” reflects a non-current liability, unsecured loan described as “Loan – C Rettay (Lombardo)” in the amount of $823,419. In 2017, this balance is zero and instead a Current Liability described as “Beneficiary loan: Carol Rettay” for $768,866 is recorded.[25]

   [25] Ibid 131.

3. The Tribunal finds that the oral and written evidence provided demonstrates quite clearly that the Property in question originally belonged to BH Ltd. In 1993, the Applicant transferred that Property to Mr Lombardo in his capacity as trustee for her absolute beneficial interest in the Property.[26] The Applicant requested Mr Lombardo twice in 2010 to borrow against the Property in his capacity as trustee.

   [26] Ibid 182.

4. The Tribunal notes that from a strict legal perspective, the money was lent to KE Ltd by the Applicant. The money borrowed by the Applicant was secured against a property to which the Applicant had an absolute beneficial interest. Whilst the ownership of the Property is not critical in deciding who lent the money, what is clear is that the money did not come from Mr Lombardo. It was the Applicant who transferred the money to KE Ltd not Mr Lombardo. Therefore, KE Ltd did not owe the money to Mr Lombardo, it was owed to the Applicant. The situation is no different to that if the Applicant had borrowed the money from an independent lender. If the Applicant has personally borrowed that money, then she is personally responsible for its repayment.

5. If the Tribunal is legally wrong in this conclusion, it nonetheless does not accept that it should go behind a company’s balance sheet.

6. There is clear authority that the value of a loan must be given its face value.[27] Furthermore, the accounts of a company are expected to give a true and fair view of the company’s financial position at a point in time. 

   [27] Bentham and Secretary, Department of Family and Community Services [2001] AATA 1018.

7. In addition to this, the Applicant’s argument that the Loan could not have been realised because of the financial situation of KE Ltd, is not persuasive. The documentary evidence clearly demonstrates KE Ltd was deregistered on 1 April 2019.[28] This is well after the relevant date, 20 September 2016.

   [28] Exhibit R2, 29.

   Whether the Applicant can be granted AP arrears from the date earlier than 25 January 2019?

8. Section 43 of AAT Act states in part:

   43 Tribunal’s decision on review

   …

   (6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

   (Original emphasis.)

9. Section 147 of the Administration Act provides:

   147 Application and modification of AAT Act

   For the purposes of AAT first review under this Division, a provision of the AAT Act listed in an item of the following table is disapplied or modified as set out in that item, in relation to the decision or matter under this Act set out in that item.

Application and modification of AAT Act
Item	Decision or matter	Provision of AAT Act	Application or modification of provision of AAT Act
8	Date of effect of decision on AAT first review, other than an AAT decision in relation to an employment pathway plan decision	Subsection 43(6) (AAT’s decision taken to be decision of decision‑maker)	The subsection has effect as if the decision under review had taken effect on the day a person applied for AAT first review of the decision, if: (a) the person is given written notice of the decision under the social security law; and (b) the person applies for AAT first review more than 13 weeks after the notice was given; and (c)  on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision; and (d) the effect of the AAT’s decision is: (i) to grant the person’s claim for a social security payment or a concession card; or (ii)  to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or (iii) to increase the rate of the person’s social security payment

(Original emphasis.)

1. Section 237 of the Administration Act states in part:

   237     Notice of decisions

   (1)If notice of a decision under the social security law is:

   (a)delivered to a person personally; or

   (b)left at the address of the place of residence or business of the person last known to the Secretary; or

   (c)sent by prepaid post to the postal address of the person last known to the Secretary;

   notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

   (Original emphasis.)

2. The Respondent contends that s 147 of the Administration Act applies in the present matter which restricts the operation of s 43(6) of the AAT Act. Accordingly, the date of effect of the Tribunal’s decision would be limited to 12 June 2020 being the day on which the Applicant applied to the AAT1 for review.

3. The Tribunal notes that the issue of “date of effect” only becomes live, as per item 8(d) of the table in s 147 of the Administration Act, if the effect of the Tribunal decision is to “grant the person’s claim for social security” or “direct the making of a payment of a social security”, or “increase the rate of the person’s social security payment”. Since the Tribunal has decided that the loan in question is an asset and therefore the effect of the decision is not as described under item 8(d) of the table in s 147 of the Administration Act, the Tribunal is not required to consider the “date of effect” issue.  

4. For reasons outlined above, the Tribunal is satisfied that the Loan is in fact an asset of the Applicant and accordingly, she is not entitled to be paid age pension from a date prior to the date of her claim on 25 January 2019 (as per s 42 and sch 2 of the Administration Act).

   CONCLUSION

5. The Tribunal finds that the Loan, as at 20 September 2016 was an assessable asset. The value of this Loan, when added to the Applicant’s non-disputed assets gives her a total asset value which exceeds the relevant allowable assets value limit of $793,750. The Applicant is therefore not entitled to the payment of age pension at that date.

   DECISION

6. The Reviewable Decision, being the decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 29 July 2020, which affirmed two decisions of a delegate of the Respondent, made on 3 January 2019 and 5 May 2020, is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member M East

........................[Sgd]................................................

Associate

Dated: 16 November 2021

Date of hearing:	01 October 2021
Advocate for the Applicant:	Veera Martin, Financial Counsellor
Counsel for the Respondent:	Amy Simpson
Solicitors for the Respondent:	Services Australia