Vajdik and Secretary, Department of Family and Community Services

[2004] AATA 1067

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1067

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/462

GENERAL ADMINISTRATIVE DIVISION		)
Re		IDA VAJDIK

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date13 October 2004

PlaceSydney

Decision The decision under review is affirmed.

............................................

Ms N Bell  Senior Member

SOCIAL SECURITY – Assets Value Limit – Calculation of Disposal of Assets

Social Security Act 1991

REASONS FOR DECISION

13 October 2004 Ms N Bell, Senior Member

1. Mrs Vajdik’s application concerns the decision by Centrelink to reject her claim for partner allowance. The basis of the rejection was the amount of Mrs Vajdik’s assets, which was set by Centrelink to be above the assets value limit – in her case, according to section 771HF of the Social Security Act1991 (“the SS Act”), $106,250.

2.      With the agreement of Mrs Vajdik and the representative for the Secretary of the Department, the application was reviewed by considering the documents lodged with the Tribunal and no hearing was held (section 34B Administrative Appeals Tribunal Act 1975).

3.      Mrs Vajdik’s assets, for this purpose, are comprised of: her share of her savings and those of her husband; her share of her and her husband’s personal assets; and her share of an amount of $200,000 gifted by her and her husband in May 2003.

4.      Two issues arise in relation to the calculation of the value of Mrs Vajdik’s assets. The first issue is how the disposal of the $200,000 should be treated. The second is the amount of funds held in bank accounts that should be considered in the calculation of assets.

5. In relation to the disposal of $200,000, sections 1126AC and 1126AD of the SS Act deal with the disposal of assets. Section 1126AC relates to disposals made within one income year. Where the disposal or a number of disposals are made within the same income year and the combined value of the disposals exceeds $10,000, the excess is to be included in the value of a person’s assets. Section 1126AD deals with those situations where a person disposes of assets over several income years but within a “rolling period” of five years. The effect of section 1126AD is to limit multiple disposals occurring in different income years to $30,000. Section 1126AD operates concurrently with section 1126AC but does not operate to increase the amount that can be disposed of annually. That amount remains at $10,000.

6. In Mrs Vajdik’s case the disposal of the $200,000 occurred in one financial year and there were no other disposals in other income years attracting the operation of section 1126AD. This means that the value of Mrs Vajdik’s disposed asset to be used in calculating her assets for the purpose of payment of partner allowance is $95,000 ([$200,000 - $10,000] divided by two).

7.      As to the amount to be adopted as the value of the bank accounts, the relevant sum is the amount as at the date of Mrs Vajdik’s claim, being 13 August 2003.  Mrs Vajdik has sought to have lower amounts that were held in the accounts shortly after that date adopted. 

8.       On 12 August 2003, the balance of Mrs Vajdik’s husband’s account was $22,869 (Westpac Bank statement, T42, p 128). The next activity on that account is noted on the statement on 14 August 2003 as a deposit of pension.  The balance of Mrs Vajdik’s account as at 12 August 2003 was $4,503.60 (Westpac Bank statement, T61, p 149). The next activity on that account is noted on a statement on 22 August 2003 as a withdrawal of $250.00. This means the value of the savings to be used in calculating Mrs Vajdik’s assets for payment of partner allowance is $13,686 ([$4,503 + $22,869] divided by two).

9.      If Mrs Vajdik’s estimate of her and her husband’s personal effects of $1,000 is accepted, then the sum of her share of the disposed amount ($95,000), the bank accounts ($13,686) and personal effects ($500) is $109,186. This is above the asset limit of $106,250 and so partner allowance is not payable to Mrs Vajdik.

decision

10.     The decision under review is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .[Linda Blue].........................................
  Associate

Date of Decision  13 October 2004
Solicitor for the Respondent     Mr George Lozynsky