WILLIAM WALLER and SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 118

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 118

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0230

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM WALLER

Applicant

And SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member  

Date20 February 2009

PlacePerth

Decision The Tribunal affirms the decision under review.

....(sgd) Mr A Sweidan...............

Senior Member

CATCHWORDS

Social Security - Farm Help Re-establishment Grant - whether value of applicant's assessable assets exceed allowable limit - decision under review affirmed

LEGISLATION   

Social Security Act 1991
Farm Household Support Act 1992
Farm Help Re-establishment Grant Scheme 1997 amended up to Farm Help Re-establishment Grant Scheme Amendment 2005 (No.2)

REASONS FOR DECISION

20 February 2009 Mr A Sweidan, Senior Member    

Background

Decision under review

1.      The Social Security Appeals Tribunal (SSAT) decision of 4 January 2008, which affirmed the Centrelink decision dated 22 March 2008, to reject Mr Waller’s claim for the farm help re-establishment grant (FHRG).

Legislation

2.      The legislation relevant to this matter is contained in the Farm Household Support Act 1992 (FHSA), the Farm Help Re-establishment Grant Scheme 1997 amended up to Farm Help Re-establishment Grant Scheme Amendment 2005 (No.2) (FHRGS), and the Social Security Act 1991 (SSA).

3.      Section 52A of the FHSA provides that the Minister may, in writing, formulate a farm re-establishment grant scheme to encourage farmers unable to meet their living expenses to leave farming by payment of a grant of financial assistance, known as a re-establishment grant.

4.      The FHRGS commenced on 1 December 1997.

5.      Section 3.1(1) of Part 3 of the FHRGS provides that the value of a person’s assets at a particular time is to be worked out in accordance with Part 3.12 of the SSA. Section 1118 of Part 3.12 of the SSA provides for certain assets to be disregarded in calculating the value of a person’s assets. Section 3.1(2)(a) of the FHRGS modifies the application of s1118 of Part 3.12 of the SSA by omitting paragraphs (a) and (b). The result is that a person’s right or interest in their principal home is an assessed asset under the FRHGS. Further, s 3.1(2)(b)  and (c) of the FHRGS modify s1118 of the SSA so that a person’s partner’s assets are included and the value of personal and household effects up to $10,000 is disregarded.

6.      Section 3.2 of the FRHGS describes who is qualified for a re-establishment grant. Relevantly for present purposes s 3.2(1)(f) provides that a person whose combined assets exceed $175,000 does not qualify.                      

Issue

7.      Does the value of Mr Waller’s assessable assets exceed the allowable limit at which the FHRG is payable?

History

8.      On 4 January 2008 the SSAT affirmed the Centrelink decision that Mr Waller’s and his wife Ms Pearson’s combined assessable assets consisted of the following:

·Lot 2 Little Forest Lane, Barham (the Barham property) valued at $200,000, after being adjusted for the outstanding loan,

·Nissan Navara valued at $11,512, and

·Bank balances of $23,323.

Total $234,835.

9.      Mr Waller sought a review of this decision and a hearing was held by this Tribunal on 23 December 2008.

10.     At the hearing Mr Waller’s combined assessable assets were established as being:

·Barham property valued at $166,667 (asset value was reduced by AVO revaluation),

·Nissan Navara valued at nil (outstanding loan in excess of market value),

·Bank balances of $9,149.81 (net position total minus tax liability of $12,199.14 [T27:pg.171]) and

·Timeshare valued at $5,000

Total $180,816.81.

11.     The hearing was adjourned to allow Ms Pearson to provide proof of a duplicate payment of $8,409, which she said she repaid to her employer in October 2006.

12.     Applicant and Ms Pearson then provided the following:

12.1A letter from Anne Maree Cotton, Manager of Cohuna Retirement Village Inc, confirming the receipt of $8,409 on 18 October 2006,

12.2A letter dated 29 December 2008 listing the balance of Ms Pearson’s and Mr Waller’s NAB accounts in October 2006,

12.3A copy of an outstanding account from the Australian Taxation Office stating that $11,918.38 was payable on 27 October 2007 and that $12,022.07 was paid in December 2007 and

12.4A letter from Brett Maher at Holiday Concepts suggesting that the Timeshare should be valued at $4,000

Tribunals’ Findings

13.     The Tribunal used the information provided to revise Mr Waller’s and Ms Pearson’s bank account balances.

NAB bank account number 083 629 47 532 4148

14.     The letter from the Manager of Cohuna Retirement Village Inc confirms the repayment by Ms Pearson of the duplicate payment of $8,409, therefore the balance should be reduced from $21,439.42 to $13,030.42.

NAB bank account number 083 629 56 253 2068

15.     Ms Pearson has identified this account as being a Partnership account containing $222.32.  As the Partnership had ended, this is an assessable asset

NAB bank account number 083 629 411 1580

16.     This account is identified as the Cockatoo Island Pty Farm Account containing $32.12.  Since the farming business had ended, this amount is assessable.

NAB bank account number 008 629 519 8497

17.     This account belongs to the Gum Lagoon Superfund, so is not an assessable asset. 

18.     The Tribunal notes that at the hearing the respondent incorrectly contended that the net position balance of the National Internet Banking statement should be reduced, which resulted in this account being exempted twice from Mr Waller’s assessable assets. The respondent has since corrected this.

NAB account number 083 629 69 603 0506

19.     This account belongs to the Cockatoo Island Unit Trust so is not an assessable asset as it is a superannuation account. 

NAB account number 4557 0168 3609 6383

20.     This is a credit card account with a negative balance of -$6,540.81 and is therefore to be regarded as having an account balance of nil.

NAB account number 4557 0168 3614 0330

21.     This is also a credit card account with a minus balance and is therefore also to be regarded as having an account balance of nil.

22.     The Tribunal finds therefore that the total amount in assessable bank accounts is $13,284.86.

Does the value of Mr Waller’s combined assets allow him to be paid FHRG?

23.     The Tribunal finds that at the time Mr Waller made his claim for FHRG, the value of his and Ms Pearson’s combined assets was as follows:

·Barham property valued at $166,667

·Bank account balances of $13,284.86 and

·Timeshare revalued at $4,000

Total $183,651.86

Decision

24.     Since the level of Mr Waller’s combined assets was in excess of the asset threshold limit of $175,000, the Tribunal concludes that Mr Waller cannot be paid FHRG and affirms the SSAT decision of 4 January 2008 to reject Mr Waller’s claim.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan

Signed: ...(sgd) T Freeman.................
  Associate

Date/s of Hearing  23 December 2008
Date of Final Submissions       8 January 2009
Date of Decision  20 February 2009
Applicant’s representative        Self represented
Respondent’s representative    Ms M Conlon
  Advocate

Centrelink Legal Services and Procurement Branch