1. The applicant has previously challenged a decision in relation to the rate of disability support pension for the period from 21 September 2022. That decision was considered by the Tribunal on first review and then considered on second review. It is necessary for the purposes of this second review decision to consider the previous second review decision in relation to the rate of disability support pension and the relevant findings that were made by the Tribunal.
2. The previous second review decision was made on 24 April 2023.[3] The Tribunal in the reasons for decision set out the background to the applicant's claim for disability support pension. The applicant owned a residential property where he lived with his father, his wife, and their three children. The Tribunal noted that applicant and his wife owned an investment property, which they purchased in 2014 for about $480,000. The Tribunal also noted that the investment property was subject to a registered mortgage to Bankwest, which showed a balance of $2,516.62. The investment property was valued in October 2022 at $740,000 by JLL, an independent market valuer engaged by Centrelink at the applicant's request. On 16 November 2022, Centrelink assessed the applicant's total combined assessable assets at $768,817.00. The disability support pension was calculated from 21 September 2022 on that figure, which represented the combined value of the investment property, joint bank accounts, personal and other assets, and cash in hand.
3. The Tribunal then proceeded to consider certain transfers from family members. The applicant claimed that members of his family provided loans to him for the acquisition of the investment property and to pay down the mortgage. He stated that those sums should be subtracted from the market value.
4. The Tribunal rejected those assertions and found that none of the advances made by family members could be described as loans. That was because there was no certainty of terms, whether as to terms of repayment, calculation or waiver of interest, loan term, or default provisions. The Tribunal found that none of the indicia of a contract were present. The applicant stated that the agreements in relation to the loans were verbal, in keeping with his customs and culture. The Tribunal considered whether there was a verbal contract but determined that in such cases evidence as to certainty of terms and obligations is considerably higher than was available in the proceedings. There was no contemporaneous record to show bank transfers from family members to the applicant and his wife at the time the property was acquired. Moreover, the Tribunal found that even if the transfers were made after the acquisition of the property they were to be treated as unsecured loans and there was no lawful basis for deducting the amounts from the market valuation. In defining the arrangement, the Tribunal found that each of the "donors" expected some advantage. The applicant's father benefited by providing for his grandchildren, in that they would each have a share of the investment property. Each of the children expected to receive a share of the property and were promised their money back any time they asked for it. This was possible by using the redraw facility on the loan. The applicant and his wife benefited by acquiring the investment property and having a significantly smaller loan balance, with a commensurate saving in interest payments. All of that arose by way of an informal understanding between family members, but did not give rise to loan agreements. The Tribunal found there was no intention to create legal relations and that whatever arrangements were in place were not legally enforceable loan agreements.
5. The applicant also disputed the value which Centrelink had attributed to the investment property. Based on the JLL valuation, Centrelink had valued the investment property in October 2022 at $740,000. The applicant disputed that valuation and considered a value of $700,000 as realistic. The Tribunal considered the applicant's submissions in that regard. The applicant said that there were some structural issues with the underpinnings of the investment property. The applicant did not provide any evidence in support of this claim, and there was no reference to any such issue in the valuer's report. The Tribunal considered the report and compared the investment property with five comparable properties in the same region which sold between June and October 2022. Sale prices ranged between $726,000 and $865,000. The lowest priced comparator was close to the Western motorway and described as 'inferior overall''. The $740,000 valuation for the investment property was the second lowest in the group. The applicant also provided an example of a property listed for sale in the same neighbourhood for $699,000, which he said was of a similar quality. The Tribunal noted that according to publicly accessible information, that property had subsequently sold on 29 March 2023, three weeks before the hearing, for $765,000. The Tribunal attached little weight to that comparator. The Tribunal found that the figure of $740,000 represented a reasonable assessment of market value on 25 October 2022 and was not satisfied that the amount should be discounted.
6. The applicant also disputed that the amount in his joint account belonged to him. The Tribunal noted that the applicant provided no evidence to support that claim. The applicant also disputed the valuation of cars and caravans. The Tribunal accepted the applicants' submissions regarding those valuations.
7. The Tribunal affirmed the decision in respect to the rate of disability support pension from 21 September 2022.
8. The applicant has raised many of the same issues in this second review proceeding as he did in the previous second review proceeding. The applicant seeks to reagitate many of the issues he raised before the Tribunal in the previous second review proceedings. For example, the applicant made submissions in these second review proceedings that the investment property had been paid for using money from his children's birthday and from $49,000 given to him by his father. The applicant also stated that when he bought the property in 2014, he had a loan against the property for about $370,000 and he made a deal with his children that they would contribute to the loan. The applicant stated that his son started transferring money each week and that in the last 2-3 years his son transferred $430 a week to him.
9. It was open to the applicant to appeal the previous second review decision of the Tribunal if he did not agree with the decision and findings. There is no evidence that the applicant has appealed the previous second review decision. On that basis, the Tribunal has only considered the evidence in so far as it relates to the rate of disability support pension as of 6 September 2023. There is no basis to reconsider or disturb the findings that were made by the Tribunal in the previous second review decision. That includes the nature of the transfers from the applicant's family and the value of the investment property as of 21 September 2022.

Did the transfer of the investment property to the applicant's son constitute a gift and is it assessable under the deprivation provisions of the Social Security Act?

1. The applicant made general and repeated submissions at the hearing that he felt that Centrelink had treated him unfairly. He stated that Centrelink had given him the wrong information regarding how the transfer would affect his disability support payments. He referred to records of conversations with a financial officer and Centrelink representative. The applicant has made compensation applications because he purports to be a victim of wrong advice, and those claims have been rejected. The applicant stated that he has now been forced to rely on money from his father and son to pay the bills. He stated that friends from Church had similar arrangements, and that Centrelink has been harder on him. The applicant objected to the fact that after the property was transferred to his son his payments were reduced. The applicant felt he was being discriminated against.
2. It is noted that the applicant feels aggrieved by the decisions made by Centrelink. However, it is beyond the jurisdiction of this Tribunal to make orders regarding discrimination, unfair treatment or compensation for wrong advice. The role of the Tribunal is confined to reviewing the decision made by Centrelink regarding the applicant's rate of disability support pension from 6 September 2023.
3. In relation to the transfer of the investment property, the applicant submits that the bank statements show that his son has been transferring $430 a week to him. He stated that is a family arrangement between him and his children and that was a common thing in Egypt and his community. He stated instead of his son spending the money, he told him to give him the money to pay down the loan on the investment home loan because once he died the money would all be for his children anyway. He stated he deposited the money his son gave him onto the home loan so that when his son got married, he would withdraw the money and return it to his son. The applicant also stated by depositing the money into the home loan, there is an advantage of the money being applied against home loan which has an interest rate of 6% instead of receiving 1% from a term deposit.
4. Pursuant to s 117 of the Social Security Act, the rate of disability support pension is calculated using the pension rate calculator A in s1064 of the Social Security Act. The rate calculator sets out the income test and the assets test. The test provided that the lowest rate prevails. In this case, the assets test applied. For the purposes of the test, the applicant has been a homeowner and partnered for social security purposes.
5. Subsection 11(1) of the Social Security Act defines "asset" as property or money. Subsection 9(4) of the Social Security Act relevantly provides that an 'asset' is a 'deprived asset' if:

(a) a person has 'disposed of the asset'; and > > (b) the value of the asset is included in the value of the person's assets by section 1126AA of the Act.

6. Section 1123 of the Social Security Act provides that a person disposes of their assets if they dispose or diminish all or some of their assets and receive no or inadequate consideration in money or money's worth for the disposal or diminution. Section 1124 then provides that if a person disposes of assets, the amount of the disposal or disposition is an amount equal to the value of the assets that are disposed of or diminished less the amount of the consideration received (if any) by the person in respect of the disposal or diminution.
7. Section 1126 provides that in circumstances where the amount of the disposal exceeds $10,000, it is to be included in the value of the person and their partner's assets for 5 years following the date of disposal. Section 1064-G2 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 person's assets and their partner's assets.
8. In ZJNQ v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 362, the Tribunal noted:

[14]... The intention of the legislation is that pensioners and social security recipients generally must deploy their resources to support themselves. If there were not these stringent rules, and there were no consequences for ill-thought out actions as occurred here, it is easy to conceive of an unsustainable burden on the use of public monies.

9. He states that when he transferred 60% of the share of the property to his son that was in return for the transfers of the money that his son was giving to him, and it was not gifting.
10. Having considered the evidence of the parties the Tribunal finds that there was no adequate consideration given by the applicant's son to the applicant for the transfer of the 60% share of the investment property. The consideration of $1 was a nominal market value.
11. The applicant's son gave evidence at the hearing that he had an arrangement with his father that he gave money to his father regularly. He stated that whenever he needed money, he would let his father know and his father would give it back to him. The applicant's son gave an example that he had recently sold his car and instead of keeping the money with him, he gave it to his dad and his dad applied it against the home loan because the interest rate was better. When the applicant's son bought a new car, the applicant returned the amount to him. The applicant's son also confirmed that the reason that part of the investment property was transferred into his name was in return for money that he had given to his father. The applicant's son was referred to the home loan statement for the investment property. The applicant's son stated he could not provide details about the loan because his dad organises everything out for him.
12. On the applicant's and applicant's son's own evidence, the applicant's son gives money to his father in effect to hold on account for him and to apply against the interest on the home loan and then it is returnable to the son whenever the son asks for it. That is not consistent with consideration being given for the transfer of the property. The evidence does not establish that consideration of more than $1 was paid to the applicant by his son for ownership of the property.
13. As such, the Tribunal finds that that s1123 of the Social Security Act applies and the applicant is considered to have disposed of an asset for the purposes of s1126. As such, 50% of the amount of the disposition exceeded $10,000 and the asset is to be included in the value of the applicant's assets.
14. The investment property was properly assessed as an asset in calculating the applicant's rate of disability support pension from 6 September 2023.

1. The applicant provided agreements purported to be between him and his family members which was provided to Centrelink on 16 July 2023.[4] The Tribunal does not accept that those agreements change the nature of the transfers between the applicant and his family from what was determined in the previous second review decision. The Tribunal does not accept they are legally binding. There is no corroborative or objective evidence about how much each the applicant's family members contribute to the home loan after the date of the agreement and there is no evidence that the investment property is secured against the purported agreements.

1. In the reasons previous second review decision, the Tribunal accepted the valuation undertaken by JLL of the investment property on 25 October 2022 and found the investment property was valued $740,000. Centrelink has subsequently determined the value of the investment property as $820,000 when assessing the applicants' assets and in determining his rate of disability support pension as of 6 September 2023.[5] The applicant disputes that value. The respondent has obtained another valuation since, and which values the house at $850,000. The respondent submits that the decision should be set aside, and the matter remitted so that the assessable value can be calculated at $850,000 and any arrears raised.
2. The legislation does not specify the way a person's assets must be valued
3. Topic 4.12.4.10 of the Social Security Guide relevantly provides that:

An asset of a designated entity is any asset (excluding exempt assets...and excluded assets), whether fixed or financial...that the entity owns (wholly or partially). The value of the assets (including shares and managed investments) of a designated entity is determined by the current market value...less any allowable liabilities. > > An income support recipient's estimate of the value of an asset is accepted only where the delegate considers the estimate is commensurate with the current market value. Where there is doubt about its value, the delegate should take all reasonable steps to ascertain the current market value of the asset. > > Example: A valuation by a professionally qualified valuer appointed by Centrelink of real estate owned by the company.

4. There are three valuations in relation to the investment property.

(i) A kerbside valuation conducted by JLL on 23 October 2024 for the market value of the investment property as at 6 September 2023.[6] That valuation values the property at $850,000. > > (ii) A desktop valuation from conducted by an independent licensed valuer on 21 November 2023 for the market value of the property as at 6 September 2023.[7] That valuation valued the property at $820,000. > > (iii) A valuation done for the purposes of the value of the property to assess stamp duty, conducted by Sydney Suburban Property Valuations on 25 August 2023 to determine the market value of the property as at 25 August 2023.[8] That valuation valued the property $720,000.

5. The applicant has also provided an extract from realestate.com.au which he submits is a comparable property that sold in a similar area on 19 April 2023.[9] The property sold for $740,000 on 19 April 2023.
6. None of the valuers were called for cross examination regarding their valuations.
7. Having considered the valuations and the evidence the Tribunal prefers valuation undertaken for stamp duty purposes on 25 August 2023.
8. The desktop valuation has only been referred to as part of the Centrelink records and no details are provided in relation to the methodology. On that basis the Tribunal does not prefer that valuation.
9. The JLL valuation is only a kerbside valuation. The respondent submits that despite requests to so, the applicant prevented the valuer from attending inside the property. The applicant denies he prevented the valuer from attending and stated he only required adequate notice for the tenant to allow access. The Tribunal accepts the evidence of the applicant. The JLL valuation was conducted over a year later on 23 October 2024. I accept however that the valuation does consider the value of the investment property as of 6 September 2023.
10. The stamp duty valuation took place on 25 August 2023 for the market value of the investment property as at that date. The valuation provides comparable properties, as did the JLL valuation. The stamp duty valuation is the only valuation in which the valuer inspected the inside of the property. The respondent submitted that the stamp duty valuation should not be relied on as it was done for the purposes of stamp duty and the valuation is for a period prior to 6 September 2023, being as at 25 August 2023.
11. The Tribunal prefers the valuation done for the purposes of stamp duty. The valuer has inspected the inside of the property. The fact the valuation was undertaken for the purposes of assessing stamp duty is of no relevance to the value of the investment property. The valuer has stated that the valuation has been done on an on a "as is" basis with fee simple in possession and has set out their qualifications as follows:

(1) Certified Practising Valuer > > (2) Associate Member of the Australian Property Institute No. 67754 > > (3) Associate Member of the Australian Valuers Institute No. 660

12. Although the stamp duty valuation considered the value of the property as of 25 August 2023, that is less than two weeks prior to 6 September 2023 and the delay is of little significance because the JLL valuation contains examples of comparable properties sold in the month August 2023. There is no indication that prices went up in the month of September or in the short period up to 6 September 2023. The stamp duty valuation also contains examples of comparable properties sold in March, April, June and in August. The comparable property in August was sold for $735,000 and was larger in land size and was built in 2010, whereas the investment property was built in about 1990. The Tribunal accepts that based on the comparable properties it was open to the valuer who undertook the valuation for the purposes of stamp duty to value the property at $720,000 and there would not have been no change to that value as at 6 September 2023, under two weeks later.
13. The respondent submits that it is also questionable how the stamp duty valuation report came to value the property at $720,000 when the property was valued at $740,000 a year earlier at the time of the previous second review decision. There is some explanation contained in the stamp duty valuation. The valuer in the stamp duty valuation reports makes the following statement:

The real estate market is starting to improve after a downturn due to rising interest rates.

14. The Tribunal prefers the stamp duty valuation and findd that the investment property was valued at $720,000 as of 6 September 2023.

1. Section 1121 of the Social Security Act sets out the effect of a charge or encumbrance on the value of a person's assets for disability support pension purposes. It permits the value of certain assets to be reduced by the value of any charge or encumbrance. If that section does not permit their reduction, the assets must be considered at their full value.
2. Neither of terms "charge" or "encumbrance" are defined in section 1121 of the Social Security Act. In Henderson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 468, The Tribunal stated that stated that:

[97] Beginning with s 1121 and the word "charge", its ordinary meanings include: > > "... 12 a task, duty or burden. 13 a debt or financial liability. ..." > > Those of "encumbrance" include "... an impediment, hindrance of burden." In Re Fawthrop and Repatriation Commission I was a member of a Tribunal that considered the meaning of both words in a different context. Our summary of previous authorities remains relevant. We said: > > "... Taking first the word 'charge', we note that the ordinary meaning of it is the liability to pay money but that it may also denote a particular liability to pay money when performance is secured by the creditor's right to receive payment from a specific fund or out of the proceeds of the realisation of specific property: ... > > 24. The word 'encumbrance' may also have a wider and narrower meaning in general language as is apparent from the case of Wallace v Love [1922] HCA 42; (1992) 31 CLR 156 at 164) when it was said: > > 'The word 'encumbrances', in its ordinary connotation, means that a person or estate is burdened with debts, obligations or responsibilities. True, the word is in law especially used to indicate a burden on property, a claim, lien or liability attached to property. ...'" > > [98] I would add to that the observation by Lord Herschell LC when he said: > > "The word 'charge' may well be used to describe a burden imposed upon land, and if a payment has to be made in respect of land, and it can only be enjoyed subject to the liability for that payment, I cannot think that there would be any great straining of language if it were spoken of as charged upon the land." > > In Re Price; Ex parte Tinning, Nicholls CJ said that: > > "The words 'charge' and 'lien' are often interchangeable. The quality of each... is that, so far as is necessary, it appropriates or sets aside some particular property, real or personal, by making a deduction from the absolute ownership of it, in favour of someone who is given by law, or by agreement, will, or otherwise, the right to resort to the property to satisfy or discharge some obligation. The add to the right in personam a limited right in rem."

3. The applicant submits that the value of the investment property as assessed by Centrelink should be offset by any encumbrance, being the loan held over the property.
4. Having considered the evidence, there is insufficient information available to determine the value of any encumbrance secured over the investment property. In the previous second review decision, it has been noted that the property was subject to a registered mortgage to Bankwest, which showed a balance of $2,516.62. The stamp duty valuation report records under 'Encumbrances/Restrictions:

(4) Mortgage to the Commonwealth Bank of Australia

1. A statement of adjustments dated 6 September 2023 records that there was a loan payout of $374,737.86 to Bankwest and lodgement fees paid to Greater Bank Ltd.[10] On a ModR form provided to Centrelink by the applicant on 15 January 2024, the applicant ticked yes to the question on whether the investment property is mortgaged or encumbered.[11] The applicant provided a Basic/Great Rate Home Loans statement from Greater Bank which is for the period 6 September 2023 to 31 December 2023 and shows a balance of $420,723.85 on 6 September 2023.[12]
2. In cross examination the applicant was asked about his home loan. It was put to him that as of 29 April 2023 his home loan was approximately $17,000 and then by the 8 August 2023, he owed approximately $327,000. The applicant stated that he drew down on the loan for renovations. He stated he also used the loan monies for concreting, a new bathroom, new kitchen and he put insulation on the house in the front. He stated he built a carport, double brick fence and spent money on gambling, expensive restaurants and perfume. The applicant also peculiarly stated that he tried to spend money to get the Centrelink payment.
3. The applicant was questioned about receipts and evidence he had provided in relation to those purported expenditures. In relation to medical expenses[13] the applicant agreed that the expenditures were from the 28 of July 2023 going all the way back to 12 August 2022.
4. The applicant was also asked about various other expenses for which he provided receipts including by way of example a sofa which he purchased for $3000 on 24 of November 2022, a sound system purchased in on the 7 March 2023 and household equipment dating back to 2016.
5. Having considered the evidence of the applicant the Tribunal finds there is insufficient information which confirms the nature of the encumbrance over the investment property from 6 September 2023.
6. While there may be a mortgage secured against the investment property it is unclear whether any encumbrance is in the name of the applicant and his partner only, or whether it is also in the name of the son, who has a majority ownership of the investment property from 6 September 2024. On that basis it is unclear who has benefit of the loan.
7. The expenses and receipts provided by the applicant do not corroborate the purported expenditure of the applicant. The stamp duty valuation records the property as being in below average condition and needing general maintenance and overall upgrading and refurbishment. That is not consistent with recent renovations. Many of the expenses predate 29 April 2023 when the loan was $17,000. There is certainly nothing to corroborate the purported gambling losses, or restaurant and perfume expenditure.
8. The Tribunal finds that the evidence does not establish that there is a mortgage secured against the investment property for the sole benefit of the applicant and his partner. There should be no offset for the value of the applicant's assets for any encumbrance for the purposes of calculating the applicant's disability support pension as at 6 September 2023.

1. For the reasons set out above, the Tribunal has found that the applicant's rate of disability support pension is to be calculated using a lower level of assets than was used by Centrelink in calculating the rate as of 6 September 2023. Any higher rate payable to the applicant is a favourable determination made by this Tribunal, within the meaning of the Social Security (Administration) Act 1999. The original decision in this matter was made by Centrelink on 23 November 2023 and a request for formal review of that decision was made on 13 December 2023, within 13 weeks of notice of the Centrelink decision. The authorised review officer in this matter made their decision on 9 January 2024 and an application to the Tribunal for first review on 29 January 2024 and was made within 13 weeks of notice of the formal review decision made by the authorised review officer. The Tribunal at first review made its decision on 11 June 2024 and this application for second review was made by the applicant on 29 June 2024 which is within 13 weeks of the notice of the first review decision. As all requests for review were made within 13 weeks of the decisions that have been made in this matter, sections 109 and 147 of the Social Security (Administration) Act allow the higher rate of disability support pension to be paid to the Applicant from 6 September 2023.
2. On that basis the decision made by Centrelink must be set aside and the matter remitted for recalculation of the disability support payment rate based on the value of the investment property at $720,000.

1. The Tribunal finds that the transfer of 60% of the share of the investment property from the applicant to his son is to be treated as a gift. The Tribunal also finds no loans owing from family members. The Tribunal finds that the value of the investment property as of 6 September 2023 was $720,000 instead of $820,000. On that basis the Tribunal sets aside the decision of Centrelink made on 23 November 2023 and remits the matter back for reconsideration of the rate of disability support pension to be paid as of 6 September 2023. That is to be determined on the value of $720,000. The Tribunal finds that there is no relevant charge or encumbrance which should affect the investment property.

The Tribunal sets aside the decision of Centrelink made on 20 November 2023 remits the matter for reconsideration of the rate of disability support payable to the applicant as of 6 September 2023, in accordance with these reasons.