Sleep v Repatriation Commission

Federal Court of Australia|2009-05-12|Before: Besanko J

REASONS FOR JUDGMENT 1 Mr Kenneth John Sleep appeals to this Court from two decisions made by the Administrative Appeals Tribunal. Both decisions were made on 10 December 2008. 2 In Sleep v Repatriation Commission [2008] AATA 1100, the Tribunal made the following decision: "The Repatriation Commission decision of 5 July 2004, as affirmed by a review officer on 10 August 2007, which reduced Mr Sleep's rate of service pension with effect from 20 July 2004 in reflection of an assets test which included the value of property at $140,000, is affirmed." 3 In Sleep v Repatriation Commission [2008] AATA 1101, the Tribunal made the following decision: "The decision of the Repatriation Commissioner dated 13 August 2007, as affirmed by a decision of a review officer dated 19 March 2008, which reduced Mr Sleep's rate of pension from 26 August 2007, is affirmed." 4 A party to a proceeding before the Tribunal may appeal on a question of law from any decision of the Tribunal in that proceeding: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). 5 The appeals were heard together, and each party made one set of written submissions in relation to both appeals. In substance, the applicant's submissions were common to both appeals. 6 Sleep v Repatriation Commission [2008] AATA 1101 became Action Number SAD 212 of 2008 in this Court, and Sleep v Repatriation Commission [2008] AATA 1100 became Action Number SAD 213 of 2008. It is convenient to deal with the appeal in SAD 212 of 2008 first.

Note: Some investments in superannuation funds, approved deposit funds, deferred annuities and ATO small superannuation accounts may be disregarded - see section 52AA. … (k) if: (i) personal property of the person is designed for use by a disabled person; and (ii) the person, the person's partner or a child who is dependent on the person or the person's partner is disabled; the value of the property; (l) if: (i) personal property of the person is modified so that it can be used by a disabled person; and (ii) the person, the person's partner or a child who is dependent on the person or the person's partner is disabled; the part of the value of the property that is attributable to the modifications;" 23 With respect to the applicant's third submission, his superannuation products are assets and are to be taken into account in determining the rate of the invalidity service pension and partner service pension, unless the circumstances fall within s 52(1)(f) of the Act. The Tribunal correctly determined that, once the applicant turned 60 years of age, they did not. In light of the clear provisions of the Act, there is no substance in the applicant's submission that in some way s 52(1)(k) evinces an intention to exclude the assets test from the calculation of an invalidity service pension and partner service pension. 24 With respect to the fourth submission, the submission must be rejected. Section 24(4) of the Act specifies the amount of pension paid at the special rate. By contrast, the rates of the service pension and partner service pension are to be calculated by the application of other provisions of the Act. Whether, as the applicant submitted, the link between the pension paid at the special rate and the service pension in the case of the applicant (see [21]) means that the result of the Tribunal's decision is incongruous is not to the point. The result reached by the Tribunal is the result dictated by the clear words of the Act. 25 In my opinion, even if the applicant's third and fourth submissions are questions of law they are, for the reasons I have given, without merit. The appeal in SAD 212 of 2008 must be dismissed.

SAD 213 of 2008 26 The decision under challenge in this appeal is the decision of the Tribunal affirming the respondent's decision made on 5 July 2004 to apply an assets test to the applicant's invalidity service pension and his wife's partner service pension, and to include in the applicant's assets a property situated at Port Road, Croydon, and, for the purposes of the assets test, to ascribe a value of $140,000 to that property. 27 As I have said, on this appeal the applicant, in substance, made the same submissions as he made in SAD 212 of 2008. Those submissions must be rejected for the reasons I have given in that appeal. In addition, it is clear that the property at Croydon is a real property and cannot fall within the terms of s 52(1)(k) or (l) of the Act. Furthermore, there is nothing to suggest that the Tribunal member erred in concluding that he could not be satisfied that the property was either "designed for use by a disabled person" within s 52(1)(k) or "modified so that it can be used by a disabled person" within s 52(1)(l). 28 The appeal in SAD 213 of 2008 must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 12 May 2009 The Applicant appeared in person

Counsel for the Respondent: Ms S J Maharaj QC with Mr A Schatz

Solicitor for the Respondent: Australian Government Solicitor

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