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

This matter concerned an appeal by the Secretary, Department of Social Services, against a decision of the Administrative Appeals Tribunal (AAT) regarding the assessment of an age pension. The central dispute involved a property registered in the applicant's name, which the applicant claimed was held on trust for his son. The AAT was required to determine whether this property should be assessed as the applicant's asset for the purposes of the age pension, and if so, what value should be attributed to him.

The legal issues before the AAT were whether a constructive trust existed over the Parkwood property, with the applicant holding it for his son, or if it should be assessed as the applicant's asset. Consequently, the AAT also had to determine if the applicant owed a debt to the Commonwealth and, if so, the amount to be recovered. The AAT acknowledged the complexity of administering the assets test legislation, particularly within family contexts, and the need to apply general trust law principles unless otherwise provided by the Social Security Act 1991 (Cth).

The AAT considered the evidence, including the applicant's testimony, and formed a positive view of his honesty and candour. The Tribunal applied the law governing constructive trusts, emphasising the importance of ascertaining the parties' intentions, which may be implicit. While acknowledging the difficulty in this task, the AAT found that the applicant's evidence was straightforward and that he participated positively in the proceedings.

Ultimately, the AAT found it unnecessary to determine a specific asset attribution percentage under s 1207X of the Act. The Tribunal agreed with the respondent's submissions that if an attribution were required, it would be 0%. Accordingly, the decision under review was affirmed.