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

This matter concerned an appeal by Mr Van Vlymen and the Secretary of the Department of Social Services regarding Mr Van Vlymen's eligibility for an age pension under the hardship rules. The core dispute revolved around whether Mr Van Vlymen had a reasonable excuse for failing to provide all the information requested in a notice issued by the Department, which was necessary to assess the combined assets of himself and his spouse. The decision was made by A Poljak SM.

The legal issues before the court were whether Mr Van Vlymen had a reasonable excuse for not fully complying with the Department's notice requesting information about various companies, and consequently, whether the decision to reject the applicants' hardship claims based on this non-compliance was correct. The Department had sought specific information, including Private Company Module forms for several entities, to determine if their combined assets exceeded the allowable limit for the age pension.

The court found that Mr Van Vlymen did have a reasonable excuse for not providing all the requested information. Evidence was presented, including legal advice and correspondence, indicating that Mr Van Vlymen had been effectively frozen out of information and income from certain entities located in the Solomon Islands since mid-2017, following a change in control. While Mr Van Vlymen provided information regarding some entities and explained that others were subsidiaries of Orbis Commodities, he was unable to obtain the requested documents for several companies due to his lack of access. The court accepted that this lack of access constituted a reasonable excuse for non-compliance with the notice.

Consequently, the decision under review, which rejected the applicants' hardship claims on the basis of Mr Van Vlymen's incomplete response to the notice, was set aside. The matter was remitted for a redetermination of the applicants' eligibility for an age pension under the hardship rules, taking into account the court's finding regarding the reasonable excuse for non-compliance.