Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010

FEDERAL COURT OF AUSTRALIA

Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010 Appeal from: Bornecrantz v Secretary, Department of Social Services [2015] AATA 814

File number: NSD 1470 of 2015

Judge: PERRY J

Date of judgment: 29 August 2017

Catchwords: SOCIAL SECURITY – Appeal on question of law against decision of Administrative Appeals Tribunal to affirm decision cancelling applicant's age pension – where Tribunal found applicant's and his wife's combined asset value exceeded limit for eligibility to receive age pension under the Social Security Act 1991 (Cth) – where loan to company included in combined asset value but no account taken of company's liability to repay loan in attributing value of company assets to the applicant under section 1208E - whether Tribunal's decision unreasonable because assets (company loans) were counted twice in calculating combined asset value – where combined asset value artificially inflated due to 'double counting' – whether Tribunal failed to have regard to a relevant consideration, being the outcome of applying s 1208E(1) in the particular case – appeal allowed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Judiciary Act 1903 (Cth), s 78B Social Security Act 1991 (Cth), ss 1207X, 1207Q, 2017N, 1208E, 1208H, 1208E Social Security and Veterans' Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Act 2000 (Cth) Explanatory Memorandum to the Social Security and Veterans' Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Bill 2000 Social Security (Attribution of Assets) Principles 2001 (Cth)