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Success at the AAT – VCAT Administration

In our role as VCAT appointed Administrators, we often deal with complex legal issues affecting a Represented Person. This can include complex estate matters, issues of severance of property or Family Law matters.

However, earlier in the year our role also required us to examine Social Security law on behalf of a Represented Person.

Background

For many years, the Represented Person had been in receipt of a Disability Support Pension as assessed by the Department of Health and Human Services Victoria (“the Department”). Upon a relative’s passing, the Represented Person received an entitlement under the Estate to income from investment held by the Senior Master, Funds in Court of the Supreme Court of Victoria.

The Department subsequently made a decision to cancel the Represented Person’s Disability Support Pension on the basis that the Represented Person’s assets now exceeded the threshold limit of eligibility.

In their assessment, the Department included the entire value of the Estate investment as an asset of the Represented Person.

However, in its investment of the Estate monies, the Supreme Court provided orders that stated:

  1. The income is to be used by an Administrator for the Represented Person for the maintenance, education, advancement or benefit of the Represented Person in his lifetime; and
  2. That the Administrator is not to make any requests for advances of capital to the Senior Master unless and until all of the Represented Person’s own realisable capital assets are exhausted.

Application to the AAT and decision

On behalf of the Represented Person, the Administrators disputed the Department’s decision to cancel the Represented Person’s Disability Support Pension on the basis that:

  1. The Represented Person had no “control” over the Estate funds;
  2. The Represented Person is only entitled to income which is disclosed to the Department and taken into account at that time in calculating his benefits;
  3. The Administrator is not to make any request for an advance of capital until all of the Represented Person’s own realisable capital assets are exhausted; and
  4. Further, that it is not reasonably foreseeable that the Administrator would make an application for a capital advance for the Represented Person.

The Administrators embarked upon the internal review process through DHHS without success.

However, following the approval of VCAT, the Administrators commenced an application to the Administrative Appeals Tribunal (“AAT”) and were successful in the Represented Person’s favour.

The AAT held that the decision by the Department to cancel the Represented Person’s Disability Support Pension be set aside, that he continues to be eligible under the asset test and his pension be reinstated immediately.

Importance

This matter highlights the importance of considering what impact any income or assets can have upon a person’s current or future eligibility to government supports, including the Disability Support Pension.

The result of this decision ensures that the Represented Person is able to retain his Pensioner Concession Card and these associated benefits including reduced cost of medicines, bulk billings arrangements, higher Medicare benefits and others.

Anthony Burke, Consultant to the firm and Principal, Rosy Roberts are currently appointed by VCAT as Administrators to assist with the financial and/or personal affairs of persons suffering a disability or incapacity.

For more information on VCAT Administration, please contact either Rosy Roberts, Principal or Rohani Bixler, Special Counsel on rroberts@burkelawyers.com.au and rbixler@burkelawyers.com.au respectively, or by contacting our office on + 61 3 9822 8588.

Contacts

Rosy Roberts

Principal

Rosy Roberts

Principal
LL.B (Hons) B.A GAICD
Rosy has extensive experience in Litigation & Alternative Dispute Resolution having represented clients in all Victorian State Courts and the High Court of Australia. She is also a VCAT appointed Administrator.

Rohani Bixler

Special Counsel

Rohani Bixler

Special Counsel
LL.B (Hons) BA (PSYCH)
Rohani holds a Bachelor of Arts (Psychology) and a Bachelor of Laws (Honours) from Monash University, and has practiced exclusively in the areas of estate planning, deceased estate administration and estate litigation and disputes since...

Anthony Burke

Consultant

Anthony Burke

Consultant
B.A LL.B DIP.FIN. MGT
Tony is an LIV accredited business law specialist and a VCAT appointed Administrator. In 2008 he was President of the Law Institute of Victoria and served for two years as a director of the Law...

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