Walsh; Secretary, Department of Family and Community Services

[2004] AATA 549

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 549

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/1074

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And ANNE WALSH

Respondent

DECISION

Tribunal M. A GRIFFIN, Member

Date31 May 2004

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the value of Mrs Walsh's interest in the property known as Unit 2/36 Emu Street Strathfield is $85,875.00 and remits the claim for Age Pension lodged on 23 October 2002 to the Secretary, Department of Family and Community Services to be determined again on that basis.

[Sgd] M. A GRIFFIN, Member

CATCHWORDS

SOCIAL SECURITY - Age Pension - valuation of property - new valuation ordered by Tribunal - decision set aside and remitted for determination on basis of new valuation

REASONS FOR DECISION

31 May 2004 M. A GRIFFIN       

1.      This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) dated 27 May 2003, which set aside a decision of an Authorised Review Officer (“ARO”) dated 11 April 2003 and the Secretary to the Department of Family and Community Services (“the Department”) dated 11 November 2002 to reject a claim for age pension made by Mrs Anne Walsh, due to the level of her assets.

2. At the hearing of the application on 20 February 2004, Mrs Walsh represented herself and Ms Hanne Schuster from the Centrelink Recovery Team appeared for the Department. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T18) and a bundle of documents exhibited as A1-A3 for the Department.

BACKGROUND

3.      Mrs Walsh lodged a claim for age pension on 23 October 2002. On 11 November 2002, Centrelink rejected the claim because the value of Mrs Walsh’s assets was found to be in excess of the allowable limit to receive the age pension. Mrs Walsh asked for a review of this decision.  The principal asset in question was her interest in the property at 36 Emu Street Strathfield, New South Wales. The property is one house divided into two units. Mrs Walsh resides in one unit and the other unit is tenanted. Centrelink obtained a valuation of the property which was assessed as being $209,000.00. This valuation in conjunction with Mrs Walsh’s other assets was so high as to render her ineligible to receive the age pension.

4. The SSAT after a review of the relevant law and the evidence, decided that the entire property at 36 Emu Street Strathfield should be regarded as Mrs Walsh’s principal home and therefore an exempt asset pursuant to section 1118(1)(a)(i) of the Social Security Act 1991 (“the Act”). The SSAT set aside the original decision and remitted the matter for reconsideration.

EVIDENCE

5.      At the hearing, the Department led evidence from Mr Starr, the Supervisor of the officer from the Australian Valuation Office (“AVO”) who gave the valuation of the property at 36 Emu Street Strathfield.  It became apparent during his evidence that the basis of the valuation was open to question. The valuation was based upon a particular premise which was disputed by Mrs Walsh. The premise was that the tenant of the second unit in the property had exclusive use of the garage.  Mrs Walsh said this was not the case and that the garage was shared.  This claim is supported in the written reasons of the ARO’s decision which states expressly “As the tenant uses half the garage the valuation includes 50% of the land value under the garage and 50% of the value of the garage”.

6.      Mr Starr said the valuation of the tenanted portion of the property would be different if it was the case that the tenant did not have exclusive use of the garage. In these circumstances, the Tribunal directed the Department to refer the matter back to the AVO for a new valuation, having particular regard to the terms and conditions of the tenancy existing at the relevant time.

7.      On 1 April 2004, the Tribunal received a submission from the Department following a revaluation of the subject property by the AVO pursuant to the Tribunal’s direction to that effect. The new valuation excluded the value of the garage from the original valuation and substantially reduced the value of Mrs Walsh’s interest in the subject property. In summary, the new valuation resulted in Mrs Walsh’s total assets being valued at less than the cut-off figure for eligibility for the Age Pension at the relevant time.

8.      The Department’s submission states, “[t]he Secretary seeks to amend the orders sought at the hearing of 20 February 2004. It is requested that the Tribunal set aside the SSAT decision and find that the value of Mrs Walsh’s interests in the units is $85,875.00 and that Mrs Walsh’s claim for Age Pension lodged on 23 October 2002 be determined again on that basis”.

9.      The Tribunal sent this submission from the Department to Mrs Walsh and invited her to comment on it. Mrs Walsh responded to the Tribunal on 19 April 2004 stating, in part, “I am pleased to be able to inform you that I am happy with the outcome of the submission to the Tribunal…The amended valuation of the house and curtilage portion appears to be much more acceptable. It pleases me to know that the Secretary agrees with this and that, therefore, my claim for Age Pension (part) will be determined on that basis”.

CONCLUSION

10.     In all the circumstances, the Tribunal is satisfied that the correct and preferable decision is to accede to the Department’s request, accept the new valuation and remit the matter to be determined again on that basis. As a consequence it is not necessary for the Tribunal to consider the issue as to whether or not the entire property should be regarded as Mrs Walsh’s principal home.

DECISION

11.     The decision under review is set aside and in substitution therefor the Tribunal decides that the value of Mrs Walsh's interest in the property known as Unit 2/36 Emu Street Strathfield is $85,875.00 and remits the claim for Age Pension lodged on 23 October 2002 to the Department to be determined again on that basis.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of MA GRIFFIN

Signed: A. Krilis
  Associate

Date/s of Hearing  20 February 2004
Date of Decision  31 May 2004
Advocate for the Applicant  Ms Hannelore Schuster
Representative for the Respondent          Self