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

This matter concerned an application for Newstart Allowance by Mr Trevillien, which was initially rejected by the Secretary of the Department of Social Services. The review was heard by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal. The core of the dispute revolved around the assessment of Mr Trevillien's assets under the social security legislation, specifically whether his principal home should be included in the calculation of his realisable assets.

The legal issues before the Tribunal were whether Mr Trevillien's principal home, which he had not occupied for approximately 21 months due to marital dispute and potential court orders regarding its sale, qualified as an exempt asset under the Social Security Act 1991 (Cth). Additionally, the Tribunal was required to determine if Mr Trevillien met the criteria for financial hardship, given his access to funds at the relevant time.

The Tribunal reasoned that while superannuation investments are disregarded for Newstart Allowance applications, and the principal home is generally exempt, the exemption for a principal home is subject to specific conditions. Section 11A(9) of the Act allows for a temporary absence from a residence for up to 12 months, or longer in certain circumstances, to continue to be considered a principal home. The Tribunal found that Mr Trevillien's absence from his property, which was valued at $615,000, exceeded this period and that it was not clear he would return within the statutory timeframe until a court order was made on 11 October 2016, shortly before his application. The Tribunal noted that while Mr Trevillien did return to the property within two months of applying, the legislation did not appear to provide an exception for his specific circumstances. Applying the principles from *Dickeson*, which emphasise substantial occupation and the centre of domestic life, the Tribunal concluded that the property was not Mr Trevillien's principal home at the time of his application.

Consequently, the Tribunal set aside the decision under review and substituted its own decision. It found that Mr Trevillien's application for Newstart Allowance was correctly rejected on 28 October 2016 as his assets exceeded the allowable limit. Furthermore, his claim for financial hardship was also correctly rejected on 8 November 2016, as he had access to funds that precluded him from satisfying the relevant criteria.