Wang and Secretary, Department of Family and Community Services

[2004] AATA 642

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 642

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2003/1282

GENERAL ADMINISTRATIVE DIVISION )

Re RUI LIN WANG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 April 2004

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2003/1282

GENERAL ADMINISTRATIVE DIVISION		)
Re		RUI LIN WANG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 April 2004

PlaceSydney

Decision FOR the reasons given orally at the hearing in this matter, the decision  under review is AFFIRMED.

(Sgd)  M.D. Allen
  ..............................................

Senior Member  

CATCHWORDS

SOCIAL SECURITY - suspension of Age Pension and calculation of rate of pension - as pension later restored no decision to be reviewed by Tribunal - rate of pension correctly calculated as at relevant date as Applicant shown to be sole owner of shares in his name

Social Security Act 1991 - s1064 and s1084A

REASONS FOR DECISION

15 April 2004   Senior Member M D Allen   

1.      By application made the 8^th day of August 2003, the Applicant sought review of a decision of the Social Security Appeals Tribunal made the 28^th day of July 2003 to affirm a prior suspension of payment to him of Age Pension and a reduction in the rate of pension paid to him.

2.      The matter came on for hearing before me at Sydney on 15 April 2004.  At the conclusion of the hearing, I stated that the decision under review would be affirmed.  On 27 April 2004, a request was received from the Applicant for written reasons for the said decision.

3.      At the conclusion of the hearing, no formal reasons were stated as the hearing consisted of my seeking to ascertain from the Applicant the basis upon which he sought review and explaining to him as best as I was able the applicable law.  At all times, I had the utmost difficulty in appreciating the case the Applicant wished to make as his knowledge of the English language is imperfect and he refused the services of an interpreter.

4.      The facts upon which the impugned decisions were made are quite simple, namely:

·     As at the commencement of the year 2001, the Applicant was in receipt of Age Pension.

· Section 1084A of the Social Security Act 1991 provides for the valuation and revaluation of certain financial investments, including shares. The law includes a requirement that a revaluation must occur on 20 March and 20 September in each year as well as in other circumstances.

·     On 3 October 2001, Centrelink sent to the Applicant a letter listing all investments and assets by it to be held by him.

·     By notice issued the 19^th day of August 2002, the Applicant was required to provide information about his shares and the money he stated he borrowed to purchase them.

· As at 20 September 2002, the Applicant’s financial investments were reassessed as per section 1084A of the Social Security Act 1991 based on financial information obtained by Centrelink with respect to current market value of the said shares.  This affected the rate of Age Pension paid to the Applicant.

·     On 30 September 2002, payment of Age Pension to the Applicant was suspended as he had not provided the information required in the notice issued on 19 August 2002.

·     On 15 November 2002, after receiving information from the Applicant and a Mrs Rich regarding shareholdings, the Applicant’s Age Pension was restored.

·     As from 30 September 2002, the date from which the Applicant’s pension was restored, the rate was also affected by the decision of Centrelink to change the ownership percentage of his shares.  Prior to that date, Centrelink had taken into account only 50 per cent of the value of the shares, as the Applicant had previously indicated that he owned 50 per cent of the shares only.  As he had not supplied share certificates or other documentation to prove the joint ownership of the shares, Centrelink decided to regard the shares as owned solely by the Applicant.

·     The Applicant and a Mrs Rich stated that the shares were owned on a 50/50 basis but Centrelink continued to treat the shares as owned solely by Mr Wang until such time as documents were supplied to prove that this was not the case.

·     Mrs Rich provided a statement that she lent $50,000.00 to the Applicant to purchase shares.  The loan was said to be unsecured.  Under the Social Security Act 1991, the value of the loan could be deducted from the asset value of the shares, for asset test purposes.  This meant that if the Applicant’s pension rate were assessed under the assets test, the value of his shares could be reduced by the amount of the loan.  His pension rate however was assessed under the income test and there was no similar provision in the Social Security Act 1991 that allowed for the deduction of the loan from the value of the shares before the deemed income provisions that apply to financial investments were applied to the income derived from the shares.

·     The value of the Applicant’s financial investments was reassessed automatically on 20 March 2003 and also following the Applicant’s request on 19 February 2003 and on 19 May 2003, when his investment in FXF Trust was recorded as being 100 per cent owned by him.

5.      At all relevant times, the shares in question were held in the name of the Applicant alone.  No documentary evidence apart from the letter from Mrs Rich has been provided to evidence the loan from Mrs Rich to the Applicant.  Such documentary evidence as was before me showed conclusively that as the date of the decision under review, the Applicant was the sole owner of the said shares.

6.      Whatever may have been the position as between the Applicant and Mrs Rich, the fact remains that for as long as the shares were in the name of the Applicant alone, he, at law owned 100 per cent of those shares.

7.      It would appear that prior to 30 September 2002, Centrelink was under the impression that the Applicant only owned 50 per cent of the shares included in the assets used to calculate the rate of pension to be paid to the Applicant.  As at 30 September 2002, Centrelink became aware that the Applicant was at law the owner of 100 per cent of the shares and his income was adjusted accordingly.

8.      The Applicant has now taken steps to divest himself of 50 per cent of the ownership in some of the shares held by him.  It may well be that this is a depravation of assets by him for no consideration but in any event the later disposition cannot affect the rate as at 20 September 2002 and as at 30 September 2002.

9.      The Applicant’s pension was suspended because he did not reply to the notice issued on 19 August 2002.  As his pension was later restored, there is no further action that can be taken by this Tribunal with regard to that action except to say that it was perfectly proper under the Social Security Act 1991 as at the time pension was suspended.

10. The rate of Age Pension payable to a person is worked out using the pension rate calculator in section 1064 of the Social Security Act 1991. The rate calculator requires the decision-maker to work out rates payable under both the income test and the assets test.  The actual rate payable is the lower of the two rates or, if they are equal, the income tested rate.  This is what happened in the Applicant’s case.

11. The decision to recalculate the Applicant’s Age Pension on the basis that he owned 100 per cent of the shares as at 20 September 2002 was correct and the rate was assessed accordingly and according to the rate calculator as provided by section 1064. As the decisions taken were correct, the decision under review is affirmed.

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

Senior Member M D Allen

Signed:         (K. Wong)
          ..................................................................................……………………………….

Associate

Date of Hearing  15 April 2004

Date of Decision  15 April 2004

Representative for Applicant      Self-represented

Advocate for Respondent           Mr G Lozynsky, Department of Family and Community Services