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.
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:
- 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
- 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:
- The Represented Person had no “control” over the Estate funds;
- 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;
- 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
- 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.
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.
Rosy Roberts is currently appointed by VCAT as an Administrator to assist with the financial and/or personal affairs of persons suffering a disability or incapacity.