SWNC and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 827
•25 June 2025
SWNC and Secretary, Department of Social Services (Social security second review) [2025] ARTA 827 (25 June 2025)
Applicant/s: SWNC
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/3200
Tribunal:Senior Member T Simon
Place:Sydney
Date:25 June 2025
Decision:Pursuant to section 70 of the Administrative Review Tribunal Act 2024, the disclosure of the applicant’s name, the other party’s name and other identifying details are prohibited for the purposes of publication.
Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement
Decision:The decision made by the respondent on 24 May 2023 (and changed by the authorised review officer on 14 November 2023), to pay the applicant an increased rate of age pension on the basis that he is not a homeowner is set aside. The Tribunal makes the following decision in substitution:
The applicant has been a homeowner for the purposes of calculating the rate of age pension since 29 February 2012 and is not entitled to an increase in the rate of age pension.
Statement made on 24 June 2025 at 1:21pm
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999
Catchwords
SOCIAL SECURITY –– age pension –– homeowner –– prenuptial agreement –– decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)Statement of Reasons
This is second review of a decision made by the Secretary, Department of Social Services (Centrelink) on 24 May 2023 about the rate of age pension the applicant was entitled to.
The applicant appeared at the hearing and was represented by his former wife. The respondent provided a collated bundle of evidence totalling 244 pages (Joint Tender Bundle). The applicant made a claim for the age pension on 13 March 2018.[1] In that application, the applicant noted that he owned or was paying a mortgage on the home he was living in. On 24 July 2018, the applicant was granted the age pension effective from 13 March 2018.[2]
[1] Joint Tender Bundle, pp 7 - 11
[2] Joint Tender Bundle, pp 189 -191
On 18 May 2023, the Centrelink records note that the applicant attended the offices in person and informed Centrelink that he was not a homeowner.[3] The applicant subsequently provided Centrelink with a copy of a certificate of title for the property he was living in, dated 18 October 1984, for the property in which he was living. That certificate of title shows the property as being in the name of his former wife only.[4]
[3] Joint Tender Bundle, p 172
[4] Joint Tender Bundle, p 138.
On 24 May 2023, Centrelink increased the applicant’s rate of age pension based on the applicant being a non-homeowner.[5] The applicant subsequently requested review of the decision on the basis that he disagreed with having previously been assessed as a homeowner.[6] On 14 November 2023, an Authorised Review Officer (ARO) changed the original decision and determined that the applicant’s rate of age pension should have been increased from 18 May 2023 which was the day the applicant notified Centrelink that he was not a homeowner.[7]
[5] Joint Tender Bundle, p 181.
[6] Joint Tender Bundle, p 175.
[7] Joint Tender Bundle, pp 142 -145.y
The applicant subsequently lodged the application for first review of the decision. Following the hearing of the first review matter, the Tribunal obtained further documents from Centrelink and from the Titles Office. Those documents revealed that the current Certificate of Title for the property that the applicant was living in, was owned by himself and his former wife as tenants in common in equal shares. The Tribunal also had before it a transfer of land signed by both the applicant and his former wife on 30 November 2011. The transfer document revealed that the applicant had been on title of the since 29 February 2012. The Tribunal subsequently set aside the ARO’s decision and ordered that the applicant’s rate of age pension was to be recalculated from 18 May 2023 on the basis that the applicant is a homeowner and has been since 29 February 2012. The Tribunal also ordered that any overpayment of age pension paid to the applicant should be recovered from him.[8]
[8] Joint Tender Bundle, pp 3-5.
The applicant disputes that he should be regarded as ever being an owner of the home he is living in. He and his former wife submit that the house was paid off by his former wife ten years prior to their marriage and was the subject of a pre-nuptial agreement between the parties.
The applicant stated at the hearing that the reason the applicant was added to the title deed was so they could gain some concessions on the property because the applicant was 11 years older than his former wife and retired prior to her. The applicant was occupying the premises as his principal place of residence and was eligible for concession on council rates. The applicant’s former wife also stated that she had paid off the house herself prior to marrying the applicant and that her late father encouraged her to organise a prenuptial agreement so she would retain the home if she separated from the applicant. The applicant’s former wife stated that as the home was subject to a prenuptial agreement it should be quarantined from the assets for the purposes of calculating the applicant’s pension.
Neither the applicant nor his former wife have been able to locate the prenuptial agreement. She stated at the hearing that she has been unable to locate the lawyer who prepared the agreement though a law firm in West Perth.
Both the applicant and his former wife were cross examined at the hearing.
CONSIDERATION
Relevant to the circumstances of this applicant, s 55 of the Social Security Act 1991 provides that a person’s rate of age pension is worked out using pension rate calculator A at the end of s 1064. The pension rate calculator A provides that a person’s rate must take into account the assets test in Module G. Module G in section 1064 sets out the effect a person’s assets has on their maximum rate of age pension and sets an assets value limit. Asset value limits are affected by whether a person is single or a member of a couple, and whether they are a ‘homeowner’ or a ‘non-homeowner’.
Section 11(4) of the Social Security Act relevantly provides that:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person's principal home; and
(ii) the person's right or interest in the home gives the person reasonable security of tenure in the home; and
(b) a person who is a member of a couple is a homeowner if:
(i) the person, or the person's partner, has a right or interest in one residence that is:
(A) the person's principal home; or
(B) the partner's principal home; or
(C) the principal home of both of them; and
(ii) the person's right or interest, or the partner's right or interest, in the home gives the person, or the person's partner, reasonable security of tenure in the home; and
…
Section 11(1) of the Social Security Act provides that “reasonable security of tenure” has the meaning given by subsection 11A(10) of the Act which provides:
If a person has a right or interest in the person's principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
Having considered the submissions and evidence of the parties, the Tribunal finds that the applicant has been a homeowner since making the application for the age pension on 13 March 2018. In his application form claiming the pension on 13 March 2018, the applicant stated that he owned or was paying a mortgage on the home he was living in. In circumstances where the applicant now claims that he was not the homeowner, he has not provided any satisfactory reason as to why he noted that he was the homeowner on the application form at the time. Further, the applicant initially provided a certificate of title to Centrelink which showed only his former wife as owning the property. That was despite the property already having been transferred into both his and her name as tenants in common some years earlier. The record for the Certificate of Title as of 18 March 2024 shows that the applicant and his former wife are joint tenants in common in equal shares.[9] The ‘Transfer’ of land signed by the parties on 30 November 2011, was lodged on 29 February 2012. The “Transfer” records that the consideration for the transfer was ‘natural love and affection’ and the transfer is stamped as being exempt from duty.[10]
[9] Joint Tender Bundle, p 70.
[10] Joint Tender Bundle, pp 71 -72.
The Tribunal rejects the submissions that a prenuptial agreement “quarantines” the subject property and results in the applicant not being a homeowner for the purposes of determining the age pension rate. Shortly before the hearing, the applicant provided three statutory declarations, all dated 28 February 2025 and relating to the prenuptial agreement. The first statutory declaration was from himself, the second from his former wife and the third from his former wife’s sister.
The applicant states in his statutory declaration that he married his former wife on 20 September 1991 and that the wedding was officiated by a Sheikh who has since died. The applicant states that he sighted and signed a pre-nuptial agreement which was organised by his wife and prepared by a lawyer prior to the marriage. He states that his former wife has misplaced the prenuptial agreement. He also states that his former wife was advised to obtain statutory declarations from people who sighted the prenuptial agreement to present to the Tribunal and Services Australia.
In her statutory declaration the applicant’s former wife states the name of the lawyer who prepared the prenuptial agreement and notes that the lawyer was employed in a law firm in West Perth. She states she has been advised by a legal representative that since there was a prenuptial agreement in place with her assets listed including the property relevant to these proceedings, that she should obtain statutory declarations from people who sighted the prenuptial agreement. The applicant’s former wife also stated at the hearing that she intended to continue to make enquiries about the whereabouts of the lawyer who drafted the prenuptial agreement.
In the statutory declaration provided by the sister of the applicant’s former wife, the sister states that she is aware of the existence of a prenuptial agreement and that the applicant’s former wife had it prepared before her marriage to the applicant on 20 September 1991. The sister states that although she had sighted the pre-nuptial agreement, she does not recall the details of it.
It is noted that the application for second review had been made almost 11 months prior to the final hearing. The applicant and his former wife have had significant time to make the enquiries regarding the whereabouts of the lawyer who drafted the prenuptial agreement and any copies that may be held.
More importantly, except for the brief reference by the applicant’s former wife about the assets, very little detail has been provided to the Tribunal about the prenuptial agreement. The Tribunal cannot be satisfied even if a prenuptial agreement exists, of the terms or consequence of the prenuptial agreement. Without those details, the Tribunal does not find that the applicant was not a homeowner for the purposes calculating the age pension.
Based on the current record of the Certificate of Title and the Transfer documents, the applicant does have a legal interest in the property and has had a legal interest since the property was transferred to the tenant and his former wife, as tenants in common on 29 February 2012. He owns the property as a tenant in common in equal shares. The applicant’s former wife stated at the hearing that the applicant had resided in the subject property since her mother passed away in 2012. She also stated that she agrees to allow him to remain in the property without paying rent or board. The applicant lives in the property and on the evidence, it is presently his principal home. On that basis the applicant has reasonable security of tenure over the property.
The applicant is currently a homeowner and has been a homeowner from the date he started receiving age pension on 13 March 2018. The applicant’s rate of age pension should have always been calculated on the basis that he is a homeowner.
WHAT ORDERS SHOULD BE MADE?
It is noted that on first review of the decision that the Tribunal set aside the decision under review and remitted it with the following directions.
(a)[ the applicant’s] rate of age pension is to be recalculated from 18 May 2023 on the basis that [the applicant] is a homeowner and has been since 29 February 2012. This means an overpayment of age pension has been made to [the applicant];
(b) Any overpayment of age pension paid to [the applicant] should be recovered from [the applicant].
The authorised review officer’s decision under review related to whether the rate of age pension should have been increased at a date earlier than 24 May 2023. Section 12 of the Administrative Review Tribunal Act 2024 provides that a decision is a reviewable decision if an Act or legislative instrument provides for an application to be made to the Tribunal. Section 142 of the Social Security (Administration) Act 1999 provides that an application may be made to the Tribunal to review a decision made by an authorised review officer. The authorised review officer only dealt with whether to increase the age pension rate from a date earlier than 24 May 2023 and not regarding any overpayment. In the Tribunal’s view, the orders made in the first review decision went beyond the scope of the administrative review.
DECISION
Accordingly, the Tribunal makes the following orders instead:
The decision made by the respondent on 24 May 2023 (and changed by the authorised review officer on 14 November 2023), to pay the applicant an increased rate of age pension on the basis that he is not a homeowner is set aside. The Tribunal makes the following decision in substitution:
The applicant has been a homeowner for the purposes of calculating the rate of age pension since 29 February 2012 and is not entitled to an increase in the rate of age pension.
Date(s) of hearing: 19 March 2025 Applicant: Applicant represented by former wife. Solicitors for the Respondent: Ms S. Kalia, Services Australia
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