Tyler and Repatriation Commission

[2000] AATA 768

DECISION AND REASONS FOR DECISION [2000] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/1387

VETERANS' APPEALS  DIVISION       )          
           Re      VERNON JAMES TYLER            
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date17 August 2000

PlaceTownsville

Decision      The Tribunal: 1.       Sets aside the decision under review. 2. Determines that assets of VERNON JAMES TYLER, namely two flats at 99 Ninth Avenue, Home Hill in Queensland, have been at all times relevant to this review, unrealisable assets within the meaning of that term in sub-sections 5L(11), (12) of the Veterans' Entitlements Act 1986.

..............(Signed)................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
 Unrealisable assets
Veterans' Entitlements Act 1986: s5L(11), (12)

REASONS FOR DECISION

17 August 2000      Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision to include the value of two flats owned by Vernon James Tyler, the applicant; in his assets for the purpose of assessing his service pension.

2. The facts are not in dispute and I find as follows:

   (a)The large home, the subject of this review, was built by the citizens of Home Hill in about 1935 with a view to attracting a doctor to reside and practice in the community.  A Dr. Golding took up the offer.  He had his practice downstairs and lived with his family upstairs.

   (b)Dr. Golding retired.  The home was sold.  The new owner converted the home into three registered flats.

   (c)Many years later, in November 1975, the applicant bought the home.  He lived in flat number three.  He rented out numbers one and two.

   (d)The flats have not received much maintenance over the years.  The applicant is too old to do maintenance work himself, having been born on 4 November 1917, and he does not have the financial resources to pay tradesmen to do it.

   (e)Since July 1996, the flats have fallen into such a poor state that they cannot be let.

   (f)The applicant still lives in number three.

   (g)The council has refused an application by the applicant to de-register the flats.  He wishes to have the three flats revert to one large home.  Before acceding to the application, the council requires the applicant to first remove all partitions separating the flats and to remove the other two kitchens and laundries.

   (h)The applicant does not have the resources to do the work.  He has had a quote for $8,000 to do the work but he cannot afford the cost.

   (i)The council has reduced the applicant's rate burden and provides only one service for garbage removal, electricity and water.

   (j)There are no separate titles for the flats.

   (k)The flats cannot be sold as entities separate from the flat in which the applicant lives.

3. The respondent has valued the whole property at $95,000, the applicant's flat at $40,000 and the remaining two flats at $55,000.  The result being an asset value of $55,000 being maintained in the assessment of the applicant's service pension.

4. I find that the two flats, said to be assets of the applicant, are unrealisable assets within the meaning of that term in sub-sections 5L (11), (12) of the Veterans' Entitlements Act 1986, which provide:

   "Unrealisable asset
   5L(11)  An asset of a person is an unrealisable asset if:
             (a)       the person cannot sell or realise the asset;  and
             (b)       the person cannot use the asset as a security for borrowing.

   (12)For the purposes of the application of this Act to a service pension or an income support supplement, an asset of a person is also an unrealisable asset if:

   (a)the person could not reasonably be expected to sell or realise the asset;  and     

   (b)the person could not reasonably be expected to use the asset as a security for borrowing."

1. The decision under review is set aside.

   I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date/s of Hearing  17 August 2000
   Date of Decision  17 August 2000
   Applicant  Mr. F. Russell
   Respondent  Mr. J. Stoner, Departmental Advocate