Wales and Secretary, Department of Family and Community Services [2000] AATA 219 (16 March 2000)

Last Updated: 24 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1999/1475

GENERAL ADMINISTRATIVE DIVISION )

Re THOMAS WALES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 16 March 2000

Place Melbourne

Decision The decision under review is affirmed.

.........Sgd. Mr J. Handley........

Senior Member

CATCHWORDS

Social Security - Age Pension - applicant and wife completed ante nuptial agreement - wife has assets of $350,000 - applicant has assets of $95,000 - threshold limit of combined assets is $379,500 - whether combined assets exceed $440,000 - whether permissible to distinguish the assets - decision affirmed.

REASONS FOR DECISION

16 March 2000 Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 17 May 1999. The SSAT then affirmed a decision previously made by an Authorised Review Officer ("ARO") on 29 March 1999 to reject a claim for age pension by reason of the combined assets of the applicant and his wife exceeding the allowable limit.

2. The applicant is an Australian Citizen but is a resident of South Africa. He has requested that the review by this Tribunal be conducted on the documents filed by him and by the respondent.

3. The facts are not in dispute and may be briefly summarised as follows-

4. The applicant owned Real Estate in Benalla in Northern Victoria, which was sold in June 1999. After deduction of agents commission and associated costs Mr Wales received approximately $60,000. Mr Wales apparently also has a small investment being the proceeds of a redundancy package paid to him by his former employer in Victoria. He says that his present assets approximate $95,000.

5. Mr Wales re-married on 6 October 1994 to a woman who is a South African National. Apparently Mrs Wales has considerable assets which when combined with the assets of Mr Wales (in round terms) approximate $440,000.

6. The Social Security Act provides that the assets of a married couple are to be brought to account when calculating entitlement to an age pension. Section 11 of the legislation permits the respondent to have regard to property, which exists outside Australia.

7. Mr Wales does qualify for age pension by reason of his age. For the purpose of this application monies invested by Mrs Wales constitute "property" for the purposes of the legislation.

8. Mr Wales asserts that the property owned by his wife (and which was owned prior to marriage) is hers alone and for which he makes no call. In fact in his application to the Tribunal he provided a copy of a document known as a "antinuptial contract" dated the 3^rd day of October 1994. The document records the name of the applicant and his intended wife (despite the name of the document it was executed three days before marriage). The document records-

"1. There shall be no community of property between them.

2. There shall be no community of profit or loss between them ......"

9. Mr Wales relies on this document as evidence that the assets of his wife should not be brought to account in calculating the value of his assets for the purposes of any pension entitlement.

10. Section 1064 - G2 of the Social Security Act 1991 provides that the value of the assets of a member of a couple "is taken to be" 50% of the sum of the value of the persons assets and the value of the persons partners assets.

11. It follows that this section does not permit property of members of a couple being distinguished for the purposes of payment of pension. The combined assets of a member of a couple must be taken into account when calculating pension entitlement. (Refer Green & Director, General of Social Security N82/49 decided 27 June 1982 & Smith & Secretary, Department of Social Security N85/252 decided 6 December 1985).

12. The maximum limit in value of assets for members of a couple is $379,500. Above that level there is no entitlement to pension. The combined assets of Mr & Mrs Wales exceed this limit.

13. The decision under review must therefore be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

Signed: ....Carolyn Irons ...........................................

Secretary

Date/s of Hearing heard on papers

Date of Decision 16 March 2000

Counsel for the Applicant

Solicitor for the Applicant

Counsel for the Respondent

Solicitor for the Respondent