Sleep v Repatriation Commission

[2008] AATA 1100

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1100

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/4458

VETERANS' APPEALS DIVISION		)
Re		KENNETH SLEEP

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date10 December 2008

PlaceAdelaide

Decision The Repatriation Commission decision of 5 July 2004, as affirmed by a review officer on 10 August 2007, which reduced Mr Sleep’s rate of service pension with effect from 20 July 2004 in reflection of an assets test which included the value of property at $140,000, is affirmed.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – invalidity service pension – assets test – value of freehold property – reduction in pension rate – decision affirmed

Veterans’ Entitlements Act 1986 s 52(1)

REASONS FOR DECISION

10 December 2008   Mr J G Short (Member)

1.      On 5 July 2004, the Repatriation Commission (the Commission) made a decision to apply an assets test to Mr Sleep’s invalidity service pension and his wife’s partner’s pension and to include in Mr Sleep’s assets, a property situated at Croydon and, for the purposes of the assets test, ascribing a value of $140,000 to that property.

2.      On 10 August 2007, a review officer affirmed the decision and on 14 September 2007 Mr Sleep lodged an appeal to this Tribunal.  I note a direction of Deputy President D G Jarvis dated 7 December 2007 in which the Deputy President noted that Mr Sleep had acknowledged that the basis for his application to the Tribunal for review of the reviewable decision was as follows:

“(a) he contends that the property at 477 Port Road, Croydon, should be disregarded in assessing his assets by virtue of sections 52(1)(k) and (l) of the Veterans’ Entitlements Act 1986 (Cth); and

(b)       in particular, the applicant contends that the words “personal property” in sections 52(1)(k) and (l) should be interpreted to refer to his pension entitlement, that being a chose in action.”

mr sleep’s contention

3.      Mr Sleep argued that his invalidity service pension was a chose in action and is consequently personal property and should not be included in the assets test, or in effect, that his invalidity service pension should be exempt from the assets test.

4.      Mr Sleep also argued that he regarded the purchase of the Croydon property, which he used as a place of business and is now leased to another business, was purchased as a form of long-term financial security.  He said that if he did not have his disability, he would have been able to continue working and consequently would not have had to let the property. 

5.      Mr Sleep also suggested that the property was personal property and as such exempt from application of the assets test to his invalidity service pension. 

6.      The Commission said that Mr Sleep’s argument was circular and that his service pension was not used or ascribed a value as an asset when considering the application of the assets test to the value of his invalidity service pension.  I agree with this submission.

7.      The Commission also argued that the property situated at Croydon was not personal property, but real property.  As such, it was not exempt under any provision of the Veterans’ Entitlements Act 1986 (the VE Act) from the assets test.

8.      The Commission also argued that the property was not designed for use by a disabled person.  It was simply being let to another business because Mr Sleep’s disabilities prevent him working.  The Commission also argued that the property was not being used by a disabled person.

consideration

9.      I have carefully considered the arguments ventilated by Mr Sleep at the hearing of this matter.  I have also considered arguments contained in all of the documentary evidence provided by Mr Sleep and now found in the T documents and in a letter dated 15 April 2002 and his statement dated 30 October 2008.

10. The general provisions relating to the assets test is to be found in Division 2 of the VE Act. Sections 52(1)(k) and (l) provide as follows:

“52       Certain assets to be disregarded in calculating the value of a person’s assets

(1)In calculating the value of a person’s assets for the purposes of this Act (other than sections 52G, 52H, 52JA, 52JB, 52JC, 52JD, 52ZA and 52ZCA), disregard the following:

…

(k)if:

(i)personal property of the person is designed for use by a disabled person; and

(ii)the person, the person’s partner or a child who is dependent on the person or the person’s partner is disabled;

the value of the property;

(l)if:

(i)personal property of the person is modified so that it can be used by a disabled person; and

(ii)the person, the person’s partner or a child who is dependent on the person or the person’s partner is disabled;

the part of the value of the property that is attributable to the modifications;

…”

11.     These two last mentioned sub-sections described circumstances in which the value of personal property may be disregarded for purposes of application of the assets test.  Personal property is one of the two main classes into which English law has historically divided property.  The other is real property.  Personal property includes all forms of property, other than an interest in land.

12.     The Croydon property is clearly land and not personal property.

13.     Even if Mr Sleep’s Croydon property could be regarded as personal property, I am satisfied that the property was not “designed for use by a disabled person”.  I am also satisfied that it was not “modified so that it can be used by a disabled person”.

14.     A valuation report dated 4 July 2007 provides a valuation with effect from 31 December 2003 of $140,000 for the Croydon property.  I have had regard to that report and am satisfied that at the time of the Commission’s decision the value of the Croydon property was no less than $140,000.

15.     In the light of the above mentioned circumstances, I am satisfied that the Commission’s decision of 5 July 2004 to apply an assets test to Mr Sleep’s invalidity service pension and to Mrs Sleep’s partner’s pension was correct, as was the decision to include the Croydon property in Mr Sleep’s assets and to ascribe a value of $140,000 to that property.  Mr Sleep’s rate of invalidity service pension and his wife’s rate of partner pension was appropriately determined, and in these circumstances the decision is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ..........J Coulthard............................................
  Associate

Date of Hearing  7 November 2008
Date of Decision  10 December 2008
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr A Crowe

DVA