Yilmaz; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 594

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/1513

General Administrative Division

Re: Secretary, Department of Education, Employment and Workplace Relations
Applicant

And: Letafet Yilmaz
Respondent

DIRECTION

TRIBUNAL:             Ms N Isenberg, Senior Member

DATE:                      10 July 2008

PLACE:                   Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by:

1.        Deleting the last sentence in paragraph 1; and

2.        Replace with:

The SSAT varied the debt period to commence from 24 August 2002

and ending it on 26 May 2003.

................[sgd].....................   

Ms N Isenberg
Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 594

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1513

DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And  LETAFET YILMAZ

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date10 July 2008

Place Sydney

Decision The decision of the SSAT is set aside and in substitution therefore the debt period is determined to be from 24 August 2002 to 31 October 2004.

....................[sgd]......................

Ms N Isenberg
  Senior Member                

CATCHWORDS

SOCIAL SECURITY – widow allowance – asset test – proceeds of sale of principal home exempted from value of assets – period of exemption – meaning of ‘principal home’

LEGISLATION

Social Security Act 1991 (Cth) ss 1118(1)a, 1118(2)

CASE LAW

Department of Employment and Workplace Relations v SAAJ (2006) 92 ALD 491
Dickeson and Department of Social Security (1989) 18 ALD 58

Secretary, Department of Family and Community Services and Kulshrestha (2003) 73 ALD 438

REASONS FOR DECISION

10 July 2008 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW 

1.On 19 March 2007 the Social Security Appeals Tribunal (“SSAT”) varied a 23 March 2005 decision by Centrelink to raise and recover a widow allowance debt of $34,747.01 from Mrs Yilmaz for the period of 19 March 2002 to 31 October 2004. The SSAT varied the commencement of the debt period from 31 October 2004 to 26 May 2003.

BACKGROUND

2.Mrs Yilmaz‘s husband passed away on 17 July 2000 and she was granted widow’s pension from 1 December 2000.  On 23 August 2001 she sold what had been the matrimonial home in Casula (“the Casual property”) and moved into premises she rented from one of her sons, Yavuz.  In March 2002 she and Yavuz purchased a vacant block of land in Auburn with a view to developing it, but this ultimately did not proceed and was sold the following year.

3.On 21 November 2002 she and Yavuz purchased a property at 77 Hector Street, Sefton (“Hector St”).

LEGISLATIVE SCHEME

4.A person’s principal home is exempt from the Centrelink assets tests: s 1181(1)(a) of the Social Security Act 1991 (“the Act”).

5.The Act s 1118(2) applies when a person sells their principal home and, effectively, the proceeds are exempt for another 12 months while another principal home is obtained. After that time the proceeds are counted as assets.

ISSUE BEFORE THIS TRIBUNAL

6.Therefore, the questions for determination by the Tribunal are:

(a)when did the proceeds from the sale of the Casula property cease to be an exempt asset, pursuant to s 1118(2) of the Act?; and

(b)at what date did Hector St become Mrs Yilmaz’s principal residence?

CONSIDERATION OF THE EVIDENCE

7.When the 12 month period referred to in s 1118(2) came to an end, on 23 August 2002, Mrs Yilmaz had not yet acquired Hector St and thus was not the owner of any dwelling capable of being regarded as her “principal home”. Accordingly she ceased to have the benefit of s 1118(2) on that day. The Applicant agreed with the SSAT that the start of the period for which Mrs Yilmaz was overpaid widow allowance was 24 August 2002, and her assets were in excess of the relevant asset limit. This is correct.

8.The only remaining issue then was when Mrs Yilmaz began to live at Hector St for it therefore to be considered her principal home.  The Applicant raised in its contentions Secretary, Department of Employment and Workplace Relations v SAAJ (2006) 92 ALD 491. The Tribunal Member in that matter at paragraph 37 states that:

The definition of "principal home" has been considered by this tribunal in a number of earlier decisions… Re Dickeson and Department of Social Security (1989) 18 ALD 58 and Re Secretary, Department of Family and Community Services and Kulshrestha (2003) 73 ALD 438… It was held in those decisions that a person's principal home is the place where the large majority of one's domestic life is carried out, such as eating, and sleeping. In Dickeson (above) at [62] the tribunal considered the principal home to be "the place where the centre of gravity of one's domestic life is to be found."

With this guidance I therefore considered the event as to when it could be said Mrs Yilmaz could be said to have made Hector St her principal home.

9.Mrs Yilmaz’s evidence was somewhat contradictory.  At first she said that ‘as soon as’ she purchased Hector St she moved in.  Then she said that she did not move in for a while but put furniture in there.  She said that the property needed a lot of renovations so she lived with her son, Yavuz.  They went to Turkey for her son’s wedding but she could not remember if he married in September 2003 or 2004, but the five year anniversary is coming up. 

10.In an interview conducted on 21 December 2004 with the assistance of an interpreter Mrs Yilmaz had stated:

I was living with my son at his place till 31 October 2004 and was paying money towards lodging. I moved into 77 Hector St Sefton house on 1 November 2004.

11.Before the SSAT Mrs Yilmaz’s counsel explained that the date of 1 November 2004 had been given as that was when Mrs Yilmaz had ‘severed all connection with Yavuz’.  Mrs Yilmaz said that she had disposed of the remaining furniture, given some to Yavuz and sold the rest.

12.At the hearing she was asked about the statement.  She confirmed that although she had moved some things into Hector St earlier she did not actually start to live there until November 2004.  She agreed that she was still renting with her son Yalvaz in August 2004 at the time she completed a Rent Assistance Questionnaire.  In all, she lived with her son for 2½ years.

13.Mrs Yilmaz had also previously given a number of other accounts of when she commenced residing at Hector St:

(a)on 1 November 2004 she was recorded as having telephoned Centrelink and advised of the move into Hector St on 7 July 2004;

(b)when requesting review of the original decision maker, Mrs Yilmaz stated that she moved into Hector St on 25 January 2004, after she returned from Turkey;

(c)on 24 October 2006 Mrs Yilmaz told the Authorised Review Officer (“ARO”), through her son Zafer, that she moved into Hector St in February 2004; and

(d)Mrs Yilmaz wrote a letter to the ARO which was received on 5 February 2007 and stated that after returning from Turkey she ‘straight away’ moved into Hector St in January 2004.

14.Other sources of information were also available:

(a)Centrelink records of 27 May 2003 note that “Mr Yilmaz telephoned to ‘update new address details’.  Zafer told the SSAT that it was he who had phoned Centrelink;

(b)Zafer wrote to the ARO on 25 November 2006 stating that ‘after Mum came back from Turkey on 24 January 2004 I together with Mum moved into the [Hector St] address’;

(c)Mrs Yilmaz’s nephew, Veysel Erdogan made a statutory declaration stating that Mrs Yilmaz returned to Australia towards the end of January 2004 and ‘on her return we moved the remainder of her belongings (including furniture and white goods) to [Hector St]’;

(d)Zafer told the ARO on 24 October 2006 that Mrs Yilmaz moved into Hector St in February 2004; and 

(e)The Australian Electoral Commission records indicate that from 20 May 2004 Mrs Yilmaz’s residential and postal address was Hector St.

15.As I have said, the evidence was of a multiplicity of possible dates – ranging from 23 May 2003 to 1 November 2004 and it is difficult to decide which is the relevant date.

16.The Applicant contended that there is no evidence before the Tribunal to support the SSAT's finding that on 27 May 2003 one of Mrs Yilmaz’s sons phoned Centrelink ‘and told them that her (sic) mother had moved to Hector St’.  More precisely, the notation is that he called to ‘update new address details’.  Zafer gave evidence to the SSAT that it was he who called Centrelink on 27 May 2003 ‘because that was the day on which [his mother] moved’.  This is at odds with his mother’s own account at the hearing and elsewhere.  I agree with the Applicant’s submission that little weight should be given to Zafer’s evidence.  It was inconsistent with the information he gave to the ARO on 24 October 2006 (where he stated February 2004) and his letter to the ARO on 25 November 2006 (citing 24 January 2004).  On neither occasion, did he refer to having already told Centrelink on 27 May 2003 about his mother’s address.

17.The Applicant contended that the most persuasive evidence is Mrs Yilmaz’s statement signed on 21 December 2004, to the effect that she moved into Hector St on 1 November 2004.  The statement was prepared with the assistance of an interpreter and a Centrelink officer, and having been reminded “that there are penalties for deliberately giving false or misleading information”.  It was signed on the same day as Mrs Yilmaz’s further application for age pension and thus, presumably, in the context of a thorough consideration of her asset position.  Moreover it was her evidence at the hearing that 1 November 2004 was the date she moved into Hector St.

18.I find that the most reliable and consistent evidence is that Mrs Yilmaz moved into Hector St on 1 November 2004 and that from that date it became her principal home.

DECISION

19.The decision of the SSAT is set aside and in substitution therefore the debt period is determined to be from 24 August 2002 to 31 October 2004.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: …[sgd]……………………………………………………                   

Associate

Date of Hearing  2 June 2008             
Date of Decision  10 July 2008           

Counsel for the Applicant  Mr G R Kennett
Appearance for the Respondent              Self-represented