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

This matter concerned Mr Safaoui's claim for a disability support pension (DSP) and the calculation of a potential debt arising from the disposal of assets. The Secretary of the Department of Social Services had determined that Mr Safaoui had a debt and had cancelled his pension. Mr Safaoui disputed these findings, arguing that his pension should not have been cancelled and that no debt should have been raised. The Administrative Appeals Tribunal was required to determine the correct calculation of any deprived asset and whether the cancellation of the pension and the raising of a debt were appropriate.

The Tribunal was required to consider several legal issues. Firstly, it needed to determine the value of a deprived asset for the purposes of assessing Mr Safaoui's DSP entitlement, specifically in relation to a $54,927.93 deposit made on 9 July 2009. This involved applying the single year and 5-year disposal free area provisions under the social security law. Secondly, the Tribunal had to consider whether Mr Safaoui's DSP had been automatically cancelled under section 94 of the Social Security (Administration) Act 1999 (Cth) and whether proper notice had been given under section 68(2) of that Act. This included determining if Mr Safaoui was required to notify Centrelink of a change in circumstances, specifically whether he had started working 30 hours or more per week, and if his payment could be cancelled under section 80(1) of the Administration Act.

The Tribunal found that section 1073 of the Social Security Act 1991 (Cth), which the Respondent initially relied upon to calculate the debt, did not apply to the deposit in question as it was pre-pension income. The Tribunal then focused on the disposal of the $54,927.93 on 9 July 2009, which Mr Safaoui explained was sent overseas to Lebanon to fund his parents' medical treatment. The Tribunal noted that this explanation was not challenged by the Respondent. The Tribunal determined that the core issue was how much of this amount constituted a deprived asset for the purpose of assessing Mr Safaoui's DSP entitlement. The Tribunal also considered surveillance evidence suggesting Mr Safaoui had been working, but noted that the DVD footage was not admitted into evidence and the Respondent relied on the surveillance report.

The Tribunal set aside the decision under review. It remitted the matter for recalculation of the debt, specifically concerning the value of the deprived asset. Additionally, the Tribunal substituted a decision that the pension should not have been cancelled and a debt raised in the manner previously determined.