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

This matter concerned an appeal by Mr Snow against a decision by the Secretary of the Department of Social Services regarding his age pension entitlement. Mr Snow, born in 1942, applied for the age pension in December 2009 and retired fully in March 2010. His entitlement was affected by his interest in a discretionary trust known as the Mardick Trust, established in 1984. The trust deed permitted trustees to distribute income at their discretion among a class of general beneficiaries, which included Mr Snow and his family. The corpus of the trust was to vest on 30 June 2031.

The primary legal issue before the Tribunal was whether Mr Snow's age pension entitlement had been correctly assessed, particularly in light of the Mardick Trust and its potential invalidity from 18 May 2010. This involved considering the application of section 126 of the Social Security Act 1991 (Cth), which allows the Secretary to review decisions, and section 109 of the Administration Act 1999 (Cth), which governs the payment of arrears. The Tribunal also had to consider its own powers under section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) to set aside decisions and remit matters for reconsideration.

The Tribunal accepted Mr Snow's evidence that if the Mardick Trust was indeed invalid from 18 May 2010, he had been underpaid his pension entitlements, and the sums involved were considerable. However, the Tribunal was not persuaded on the evidence before it that it should remit the matter for reconsideration with a recommendation for payment of arrears from an earlier date than August 2017. While acknowledging the possibility of an ex gratia payment, the Tribunal found the evidence insufficient to warrant such a recommendation. The Tribunal's jurisdiction was limited to reviewing the decision made on 15 August 2017, and any arrears payable were restricted by section 109 of the Administration Act to a period commencing in August 2017.