The Estate of Veronika Komaromi and Secretary, Department of Social Services (Social services second review) - [2024] AATA 3117

The Estate of Veronika Komaromi and Secretary, Department of Social Services (Social services second review) [2024] AATA 3117 (30 August 2024)
Division:GENERAL DIVISION
File Number(s): 2023/3628 & 2023/8851
Re:The Estate of Veronika Komaromi
APPLICANT

And:Secretary, Department of Social Services
RESPONDENT

And: Peter Komaromi
OTHER PARTY

DECISION
Tribunal:Mr S Evans, Member
Date:30 August 2024
Place:Sydney

For the reasons outlined above, the reviewable decisions dated 14 March 2023 and 9 June 2023 are affirmed.
............................[SGD]..................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – cancellation of age pension – value of assets exceeded allowable asset limit – death of Applicant after commencement of application – whether cancellation of Applicant’s age pension in error – whether property an unrealisable asset – hardship rules – AFFIRMED.
LEGISLATION
Administrative Appeals Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Christoforou v Secretary, Department of Social Services [2022] AATA 2837
Andreatta and Commissioner for Superannuation (1991) 23 ALD 326; [1991] AATA 532
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Quiggin and Secretary, Department of Social Services [2019] AATA 3324
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr S Evans, Member
30 August 2024
INTRODUCTION

The late Veronika Komaromi (the Applicant) was in receipt of age pension when she moved into residential care.[1] The Social Security Act 1991 (Cth) (the Act) provides that ordinarily, age pension is subject to an assets test. Two years after she moved into residential care, the Department of Social Services (the Agency) cancelled the Applicant’s age pension as the value of her assets exceeded the allowable asset limit.[2] After lodging an application for age pension and making a claim for consideration under the asset hardship rules, the Agency reinstated her age pension.[3] The Applicant sought review of the decisions to cancel her age pension and to reinstate it from a later date.[4] Both decisions were affirmed by an Authorised Review Officer (ARO) and on appeal by the Social Services and Child Support Division of the Tribunal (AAT1).[5] The Applicant’s son and nominee, Peter Komaromi (Mr Komaromi), contends that the Applicant’s pension should not have been cancelled and the Applicant was owed arrears of age pension. Mr Komaromi now seeks review of the AAT1 decisions by the General Division of the Tribunal.[6]
[1] T31, p.543 [2023/8851].
[2] T33, p.566 [2023/8851].
[3] Ibid, p.592 [2023/8851].
[4] T29, p.476 [2023/8851].
[5] T2, p.8-11 [2023/8851]; T19, p.405-408 [2023/8851].
[6] T1, p.6-7 [2023/8851].
I have decided to affirm the reviewable decisions. In the following reasons for my decision, I have referred to the late Ms Komaromi as ‘the Applicant’, and references to Mr Komaromi are in his capacity as her nominee.
Does Mr Komaromi have standing?
Mr Komaromi has been the Applicant’s nominee for many years. He has acted on her behalf and represented her throughout related proceedings including the AAT1 reviews. Mr Komaromi lodged applications for review of the AAT1 decisions on 27 May 2023 and 27 November 2023.[7] On 29 November 2023, the Applicant passed away. Mr Komaromi confirmed his mother’s passing at the hearing and both parties were invited to make submissions regarding how the Applicant’s death may affect Mr Komaromi’s standing as her representative.
[7] Ibid; T1, p.1-28 [2023/3628].
Section 30 of the Administrative Appeals Act 1975 (Cth) (the AAT Act) concerns parties to proceedings before the Tribunal. Subsection 30(1) and (1A) of the AAT Act state:
(1)Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:
(a)       any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b)       the person who made the decision;
(c)if the Attorney‑General intervenes in the proceeding under section 30A—the Attorney‑General; and
(d)       any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).
…
Person whose interests are affected may apply to be a party
(1A)Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
Section 31 of the AAT Act provides that the Tribunal is to determine persons whose interests are affected by a decision:
(1)Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
The Secretary submitted that following the Applicant’s passing, Mr Komaromi ceased to have standing in the matter as her representative and referred me to the matter of Christoforou v Secretary, Department of Social Services (Christoforou).[8] In Christoforou, the applicant passed away before a second-tier review hearing of an AAT1 decision. The Tribunal held a directions hearing, during which the applicant’s son, MC, confirmed he wished to pursue review of the first-tier decision on his mother’s behalf as he was the executor of her estate. SM Morris stated at [20]:
The Tribunal explained to MC that his standing as the representative of his mother ceased on her death. I further explained that it may be that he is an affected party in the matter if he provides proof that he is the executor of the Applicant’s estate. The Respondent submitted that the appropriate course of action was for MC to lodge a fresh application for second-tier review in his own name, and provide a copy of the Applicant’s Will and letters of administration, or other relevant legal documentation, as proof that he has standing as the executor. MC told the Tribunal that the process of granting probate was “about halfway through” and that he would contact his mother’s solicitors and obtain a copy of the Will and letters of administration to provide to the Tribunal and the Respondent.
[8] [2022] AATA 2837; Respondent’s Submissions on Standing, dated 12 April 2024.
There is no provision in the AAT Act relating to what is to happen with an application if the applicant dies after it has been commenced. This issue was considered in Andreatta and Commissioner for Superannuation (Andreatta) which concerned an application by Mr Andreatta for access to superannuation funds.[9] The matter had been heard and the decision reserved when Mr Andreatta died. The Tribunal determined that:
A distinction should be drawn between the entitlement that is the subject of a proceeding before the AAT and the person in whose name the proceeding is brought. Whether or not a statutory entitlement devolves upon the death of a person depends on the language of the statute under which that right arose…
Where the statutory entitlement that is the subject of the proceeding does not devolve upon the death of an applicant, then the death of the applicant will extinguish the availability of that entitlement and, with it, the power of any decision-maker … to decide that that entitlement is properly payable to the applicant:
Where the statutory entitlement that is the subject of the proceeding does devolve upon the death of an applicant, then the person to whom the statutory entitlement devolves must make application pursuant to ss.30(1A) AAT Act to be made a party to the proceeding. Unless and until such application is made the Tribunal will have no jurisdiction to review the decision.
…
[9] (1991) 23 ALD 326; [1991] AATA 532.
On 14 May 2024, Mr Komaromi submitted that he is the executor and sole beneficiary of the Applicant’s estate and has a legitimate interest in continuing the claim as any entitlement to arrears of age pension would devolve to her estate.[10]
[10] Submission of Mr Peter Komaromi, dated 14 May 2024.
Having regard the considerations set out in Andreatta, Mr Komaromi's standing ceased upon the passing of the Applicant. To continue review of the decisions, Mr Komaromi was required to satisfy the Tribunal he is a party whose interests are affected by the decisions and to lodge a fresh application seeking to be made a party to the proceedings pursuant to subsection 30(1A) of the AAT Act.
On 1 August 2024, Mr Komaromi lodged with the Tribunal an application to be joined as an affected party by an order under section 30(1A) of the AAT Act.[11] He also submitted a copy of the Last Will and Testament of Veronika Komaromi, dated 7 May 2023 in which he is nominated as executor and trustee of her estate.[12] Having considered the evidence I was satisfied that Mr Komaromi is an affected party in this matter and that statutory entitlement to age pension arrears would devolve to the Applicant’s estate. Accordingly, I issued an order that Mr Komaromi be made a party to the proceedings pursuant to subsection 30(1A) of the AAT Act on 26 August 2024.
BACKGROUND
[11] Application to be Made a Party to a Proceedings, dated 1 August 2024.
[12] Submission of Mr Peter Komaromi, dated 14 May 2024.
Legislation and Policy
The relevant legislation is contained in the Act and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The Social Security Guide (the Guide) provides relevant departmental policy guidance.[13] It is well established that the Tribunal is not bound by government policy, but it will generally be taken into consideration unless there is good reason not to do so.[14]
[13] Guide to Social Security Law.
[14] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
What happened
The Applicant began receiving age pension in November 2002.[15] Her home in Willoughby (the Willoughby property) had been the Applicant’s principal home since 1969. On 25 July 2019, the Applicant moved permanently from the Willoughby property into aged care.[16] When she moved into aged care, the Willoughby property was exempt from the assets test for two years by operation of section 11A(9)(b) of the Act, which provides that a person’s residence is taken to continue to be their principal home for 2 years if they move into residential care.
[15] T18, p.163 [2023/3628].
[16] Ibid, p.160 [2023/3628].
On 10 June 2021 the Agency issued a notice to the Applicant under paragraph 63 of the Administration Act. The notice requested she provide details about the Willoughby property and asked her to complete a Real Estate Details (MOD R) form.[17] She was also advised that the information was required within 14 days, after which her age pension may be stopped.
[17] T34, p.597-599 [2023/8851].
On 14 July 2021, Mr Komaromi wrote to the Agency stating he understood the Willoughby property would continue to be an ‘exempt asset’ and that he had not been informed it would ‘only be exempt for two years’. He also stated that the Willoughby property was destroyed in a storm on 2 February 2020 after which it was uninhabitable. He said he was not able to provide the documents requested by the Agency as they had been destroyed by the storm, he was unwell and currently in pandemic related lockdown.[18]
[18] T13, p.329-330 [2023/8851].
On 23 July 2021, Mr Komaromi lodged an incomplete MOD R form. He confirmed that the Applicant was the sole owner of the Willoughby property, the current market value of the household contents was $0 and that the Applicant was not living in the property. He also sent a letter from a consultant psychiatrist stating Mr Komaromi suffered from major depression and needed a ‘safe house’. In a letter which appears to have been sent along with the MOD R form, Mr Komaromi again stated that he was not told the Willoughby property would be exempt from the assets test for only 2 years and he did not understand why it was no longer exempt. [19]
[19] T10, p.290-299 [2023/8851].
On 11 October 2021, the Agency suspended the Applicant’s age pension because she ‘did not respond’ to the Agency’s notice issued on 10 June 2021. An Agency computer screen record dated 11 October 2021 indicates that the officer acknowledged that the Willoughby property may be an unrealisable asset, but that it was not possible to make an assessment without the correct information.[20]
[20] T33, p.563 [2023/8851].
On 10 November 2021, Mr Komaromi lodged another MOD R in which he declared that:
·the estimated current market value of the Willoughby property was $1,530,000;
·the Willoughby property was destroyed by a storm on 9 February 2020 and had been uninhabitable since that time;
·he lived in the Willoughby property prior to it being destroyed;
·there was a mortgage over the Willoughby property in the amount of $297,748.[21]
[21] T5, p.58-65 [2023/3628].
Based on the available information, including the incomplete information Mr Komaromi provided on 23 July 2021, the Agency calculated the value of the Applicant’s combined assets was $1,339,535 as of 25 July 2021.[22] At that time the allowable assets limit for a single non-homeowner to be paid age pension was $804,750. As the value of the Applicant’s combined assets was above the allowable limit, she was ineligible to receive age pension from 25 July 2021. On 11 November 2021, the Agency cancelled the Applicant’s age pension with effect from 24 July 2021.[23]
[22] T30, p.487 [2023/8851].
[23] T33, p.566 [2023/8851]; T18, p.163 [2023/3628].
Claim for consideration under hardship provisions
On 16 August 2022, Mr Komaromi lodged a ‘Claim for consideration under hardship’ form (SA233) in which he relevantly declared that:
·the Willoughby property should be disregarded as it was an unrealisable asset;
·it was unreasonable to sell or borrow against the Willoughby property as he lived in the house, was a close relative and receiving disability support pension; and
·the value of the Applicant’s readily available funds was $1,165.57.[24]
[24] T6, p.67-70 [2023/3628].
On 17 August 2022, the Agency wrote to the Applicant and advised that in order for the Applicant to have the claim for consideration under hardship assessed, she was required to lodge a new age pension claim.[25]
[25] T7, p.71-72 [2023/3628].
On 24 August 2022, Mr Komaromi lodged a claim for age pension and pension bonus on behalf of the Applicant and provided an ‘Income and Assets’ form in support of that claim.[26] On the form he declared that the Applicant had been residing in a nursing home since 4 July 2019, that she held less than $2000 in her bank accounts and her household contents and personal effects had no current market value.
[26] T8, p.74-110 [2023/3628].
On 30 August 2022, the Applicant’s claim for age pension was rejected as the value of her assets was above the allowable limit.[27] On 1 September, the Agency granted her claim for consideration under the hardship provisions in section 1129 of the Act.[28] On 9 September 2022, the Agency granted the Applicant age pension under the hardship provisions with effect from 24 August 2022.[29]
[27] T10, p.112-113 [2023/3628].
[28] T17, p.148 [2023/3628].
[29] Ibid, p.152 [2023/3628].
Requests for review
On 17 November 2021, Mr Komaromi requested review of the Agency’s decision to cancel the Applicant’s age pension.[30]
[30] T33, p.568 [2023/8851].
On 2 August 2022, an Authorised Review Office (ARO) affirmed the Agency’s decision to cancel the Applicant’s age pension on 11 November with effect from 25 July 2021.[31] The ARO noted that they were unable to assess an asset as unrealisable until a claim under the asset hardship provision is lodged.
[31] T19, p.405-408 [2023/8851].
On 7 September 2022, Mr Komaromi requested an internal review of the 1 September 2022 decision to grant the Applicant age pension from 24 August 2022.[32] On 25 October 2022, the ARO affirmed the Agency’s decision.[33]
[32] T17, p.150 [2023/3628].
[33] T14, p.121-124 [2023/3628].
Mr Komaromi sought review of both ARO decisions which were affirmed by the AAT1 on 14 March 2023 and 9 June 2023.[34] Mr Komaromi now seeks second-tier review of both AAT1 decisions at the Tribunal.[35]
CONTENTIONS AND ISSUES
[34] T2, p.29-33 [2023/3628]; T2, p.8-11 [2023/8851].
[35] T1, p.6-7 [2023/8851].
Contentions of the parties
In written and oral submissions, Mr Komaromi submits that the initial cancellation of the Applicant’s age pension was in error because the Willoughby property was always an unrealisable asset which should have been disregarded when calculating the value of the Applicant’s assets.[36]
[36] T30, p.480-482 [2023/8851].
Mr Komaromi says he first notified the Agency that the Willoughby property was an unrealisable asset on 14 July 2021 and referred the Agency to the Asset hardship rules at Instruction 4.6.7.50 of the Guide. He says he notified the Agency on 7 occasions that the Willoughby property was an unrealisable asset, but was ignored until 24 August 2022, when he was directed to seek an exemption through the asset hardship provisions.[37]
[37] T1, p.1-28 [2023/3628].
Mr Komaromi submits that he and the Applicant were experiencing severe financial hardship because of the cancellation of the Applicant’s age pension. He claims the Applicant was owed $21,381 in age pension payments, plus additional pandemic related payments.[38]
[38] Ibid.
It is not in dispute that the Applicant did not receive age pension between 25 July 2021 and 24 August 2022 (the relevant period). It is also common ground that the Willoughby property was an unrealisable asset throughout the relevant period. Nonetheless, the Secretary maintains that the decision to cancel the Applicant’s age pension was correct. The Secretary also contends that the earliest the Applicant could be granted age pension under the hardship provisions was 24 August 2022.
Issues to be determined:
I consider the issues to be determined by the Tribunal are:
(a)whether the Applicant’s age pension should have been cancelled on 11 November 2021 with effect from 25 July 2021; and
(b)if the Agency’s decision to grant age pension under the hardship provisions from 24 August 2022, and not from an earlier date, was correct.
CONSIDERATION
Should the Applicant’s age pension have been cancelled?
Age pension is means tested, Paragraph 44 of the Act provides that age pension is not payable if the person’s age pension rate would be nil. Section 55(a) of the Act provides that a person’s age pension rate is determined in accordance with Pension Rate Calculator A contained at section 1064 of the Act.
Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation. The Rate Calculator incorporates the income test (Module E) and the Assets Test (Module G). The test providing the lowest (or nil) rate prevails. In the Applicant’s case, the assets test applies.
Module G of the Rate Calculator sets out the assets test, which concerns the effect of a person’s assets on their maximum payment rate (paragraph 1064-G1 of the Act). This involves calculating the value of the person’s assets and their assets value limit.
Paragraph 11(1) of the Act defines ‘asset’ as ‘property or money’ and provides that ‘exempt assets’ are those described in paragraph 1118(1) of the Act. Sub-paragraph 1118(1)(a) provides that when determining the value of a person’s assets, the value of a person’s principal home is an exempt asset.

Paragraph 11A of the Act defines principal home for the purpose of the assets test:
(1)       A reference in this Act to the principal home of a person includes a reference to:
(a)       if the principal home is a dwelling‑house—the land adjacent to the dwelling‑house to the extent that:
(i)        the land is held under the same title document as the land on which the dwelling‑house is located; and
(ii)       the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; or
(b)       if the principal home is a flat or home unit—a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.

…
It is not in dispute that the Willoughby property was the Applicant’s principal home when she moved into residential care. It remained an exempt asset for a 2 year period by operation of paragraph 11A(9)(b) which provides that a residence of a person is taken to continue to be the person’s principal home:
(9)       A residence of a person is to be taken to continue to be the person’s principal home during:
(a)       any period (not exceeding 12 months or any longer period determined under subsection (9A) or (9B)) during which the person is temporarily absent from the residence; and
(b)       if the person is in a care situation or residential care—the period of 2 years beginning when the person started to be in a care situation or residential care; and
(c)       any period during which:
(i)        the person is in a care situation or residential care; and
(ii)       the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person’s partner; and
Instruction 4.6.3.60 of the Guide relevantly provides:
Exemption periods for care situations
If an income support recipient vacates their principal home to enter a care situation, the home continues to be an EXEMPT asset under the assets test for a 2 year period. This provision applies irrespective of whether an income support recipient intends to return their principal home.
If, after 2 years, an income support recipient has not returned to their principal home the:
·income support recipient is treated as a non-homeowner, AND
·principal home is an assessable asset….
When the 2 year exemption period ended on 24 July 2021, the Applicant remained in residential care and did not resume living at the Willoughby property by 25 July 2021. As required by the Act, and consistent with the policy, she was then treated as a non-homeowner and the Willoughby property become an assessable asset.[39]
[39] Respondent’s SOFIC dated 29 January 2024 at [2.4] [2023/3628].
The Agency calculated the value of the Applicant’s assets as of 25 July 2021 was $1,339,535 comprising the value of the Willoughby property minus the mortgage over the property, financial assets of $99,283 and $8,000 home and contents.[40] The Guide to Australian Government payments for 1 July 2021 to 19 September 2021 provides for an asset test limit for a non-homeowner (single) of $804,750.[41] Based on these facts, the Applicant’s age pension was cancelled correctly.
[40] T32, p.559 [2023/8851]; Respondent’s SOFIC dated 29 January 2024 at [5.14] [2023/8851].
[41] T30, p.487 [2023/8851].
From when should the Applicant be granted age pension under the asset hardship provisions?
An asset may be accepted as unrealisable and disregarded from the assets test when calculating a pension under the assets hardship rules provided in section 1129 of the Act:
1129 Access to financial hardship rules—pensions
(1)       If:
(a)       either:
(i)        a social security pension is not payable to a person because of the application of an assets test; or
(ii)       a person’s social security pension rate is determined by the application of an assets test; and
(b)       either:
(i)        sections 1108 and 1109 (disposal of income) and 1124A, 1125, 1125A, 1126, 1126AA, 1126AB, 1126AC, 1126AD and 1126E (so far as section 1126E relates to sections 1126AA, 1126AB, 1126AC and 1126AD) (disposal of assets) do not apply to the person; or
(ii)       the Secretary determines that the application of those sections to the person should, for the purposes of this section, be disregarded; and
(c)       the person, or the person’s partner, has an unrealisable asset; and
(d)       the person lodges with the Department, in a form approved by the Secretary, a request that this section apply to the person; and
(e)       the Secretary is satisfied that the person would suffer severe financial hardship if this section did not apply to the person;
the Secretary must determine that this section applies to the person.
…
(2)       A decision under subsection (1) takes effect:
(a)       on the day on which the request under paragraph (1)(d) was lodged with the Department; or
(b)       if the Secretary so decides in the special circumstances of the case—on a day not more than 6 months before the day referred to in paragraph (a).
Subsection 1129(1)(d) provides that in order for assets to be disregarded an application is required. The Secretary has determined that an application should be made using the hardship claim form. Following lodgement of the claim form, a decision to disregard an asset takes effect only if the Secretary is satisfied that the applicant would suffer severe financial hardship unless an asset were removed.
Mr Komaromi submits that the Agency acknowledged that the Willoughby property met the criteria to be considered an unrealisable asset both before and after the decision to cancel the Applicant’s pension. He gave evidence that he engaged in a persistent process of attempting to have the Agency recognise the Willoughby property was as unrealisable asset but that the Agency did not do so.
Mr Komaromi sought to have the Willoughby property disregarded from the assets test by drawing the Agency’s attention to Instruction 4.6.7.50 in the Guide. Instruction 4.6.7.50 explains when an asset can be accepted as unrealisable and disregarded under the assets hardship rules provided in section 1129 of the Act. Mr Komaromi citied the Instruction in multiple interactions with the Agency, including before the suspension of the Applicant’s pension.
Instruction 4.6.7.50 sets out the requirement to nominate exempted assets on a hardship claim form and states in part:
The applicant will nominate which asset/s they want disregarded (treated as unrealisable) on the Services Australia hardship claim form. A delegate will decide whether there are valid reasons why the asset/s cannot be sold or borrowed against. For pensioners, a delegate will also consider whether it would be unreasonable to expect the asset/s to be sold or borrowed against.
Mr Komaromi questions why the Agency did not ask if the Willoughby property was unrealisable, or provide a financial hardship application form when he flagged Instruction 4.6.7.50. The evidence does not support a finding that the Agency intentionally withheld the hardship application form or otherwise wilfully sought to deprive the Applicant of access to the hardship provisions. Considering the totality of the evidence, I find that Mr Komaromi first lodged a claim for consideration under hardship on 16 August 2022.[42]
[42] T13, p.119-120 [2023/3628].
Paragraph 16 of the Administration Act sets out that a social security payment or concession can be claimed by lodging a written claim. By citing Instruction 4.6.7.50, Mr Komaromi was alerting the Agency to the mechanism by which he believed the Willoughby property should be disregarded from the assets test. It is unclear why he did not lodge a claim earlier, but there is a distinct difference between notifying the Agency of a policy document which may apply to an individual’s circumstances and lodging a claim in the manner required by the Administration Act.
Paragraph 1129(2)(a) of the Act provides that a decision made under paragraph 1129(1) takes effect on the day the request was lodged. In Quiggin and Secretary, Department of Social Services[43] SM Fairall found that the hardship provisions in section 1129 could not be granted retrospectively.
It is regrettable that in 2014 the applicant did not realise the significance of the loan as a potential hurdle to receiving a pension. He presumably did not know that he could apply to have the loan taken out of the asset pool, by showing severe financial hardship. Such recourse is provided for under s 1129. The Secretary may remove an unrealisable asset from the asset pool provided that certain conditions are met. But the applicant did not apply for relief as required by s 1129(1)(d). The Minister would have had to be satisfied that the applicant would suffer severe financial hardship unless the asset were removed: s 1129(1)(e). There is insufficient evidence before the Tribunal to say whether in 2014 the applicant was experiencing severe financial hardship, but in any event, it would be an academic exercise. The applicant did not apply for this relief, and there is no statutory basis for retrospectively granting it.
[43] [2019] AATA 3324.
If special circumstances exist, paragraph 1129(2)(b) of the Act provides that the date of effect may be applied up to six months before the day a request was made. In the Applicant’s case, this would enable the Willoughby property to be disregarded as an unrealisable asset from 16 February 2022. The Secretary contends that there were no applicable special circumstances and the date of effect is the day Mr Komaromi lodged a claim. Mr Komaromi contends he and the Applicant were in straightened financial circumstances at the relevant time. These difficult circumstances were compounded by issues relating to the damage to the Willoughby property and Mr Komaromi’s personal circumstances.
In the six months between 16 February and 16 August 2022, the Applicant was not in receipt of age pension and she did not apply for age pension. The decision to cancel her age pension was made before 16 February 2022. Backdating the application of the hardship provisions would serve no practical application regardless of whether special circumstances exist.
For these reasons, the correct date from which the Applicant was eligible to be paid age pension is 24 August 2022.
CONCLUSION
Irrespective of whether the Willoughby property was an unrealisable asset, the Agency could not make a determination it could be disregarded from the assets test until an application was made from consideration under hardship. As such, the Willoughby property became and asset on 25 July 2021, the Applicant exceeded the asset limit, and her age pension was cancelled. When Mr Komaromi lodged a hardship application and reapplied for age pension, the Applicant’s pension was restored. As the hardship provisions cannot be backdated, age pension cannot be paid any earlier. It follows that the reviewable decisions will be affirmed.
DECISION
For the reasons outlined above, the reviewable decisions dated 14 March 2023 and 9 June 2023 are affirmed.

I certify that the preceding 54 (fifty – four) paragraphs are a true copy of the reasons for the decision herein of Member S Evans.

.......…..................[sgd]............................................
Associate
Dated: 30 August 2024

Date of hearing: 27 March 2024

Date final submissions received: 29 May 2024

Applicant: The Estate of Veronika Komaromi

Solicitors for the Respondent:
M. Gauci, Hunt & Hunt Solicitors

Other Party: P. Komaromi, In-Person

Date of hearing:	27 March 2024
Date final submissions received:	29 May 2024
Applicant:	The Estate of Veronika Komaromi
Solicitors for the Respondent:	M. Gauci, Hunt & Hunt Solicitors
Other Party:	P. Komaromi, In-Person