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…