Ahamed and Secretary, Department of Social Services (Social services second review)

[2021] AATA 285

Ahamed and Secretary, Department of Social Services (Social services second review) [2021] AATA 285 (22 February 2021)

Division:GENERAL DIVISION

File Number:          2020/4648

Re:Mohammad Ahamed

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:22 February 2021

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes it with a decision that the applicant is entitled to receive the Disability Support Pension at the single rate from 4 July 2019.

[sgd]........................................................................

The Hon. Matthew Groom, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – single rate or partner rate – whether living separately and apart on a permanent basis – whether special reasons – decision under review set aside

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Druett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 333

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

22 February 2021

INTRODUCTION

1. This is a review of a decision made by the Social Services & Child Support Division of the Tribunal (the “AAT1”) on 17 July 2020.  The AAT1  affirmed the decision of an authorised review officer (“ARO”) at the Department of Social Services (the “Department”) not to pay the applicant disability support pension (“DSP”) at the single rate from a date earlier than 1 August 2019.

   BACKGROUND

2. On 29 November 2012 the applicant was granted DSP at the single rate.

3. The Applicant was married on 12 February 2015.

4. On 23 November 2015, the Department decided, under section 24 of the Social Security Act 1991 (the “Act”), to keep paying the applicant DSP at the single rate on the basis of the existence of special reasons, notwithstanding that he was married.

5. On 21 April 2018, the Department undertook a review of the applicant’s circumstances and decided that the determination made under section 24 no longer applied and that the applicant should be paid DSP at the partnered rate and not the single rate from

   
   

   5 April 2017.

6. On 28 April 2019 the applicant’s then partner travelled back to Bangladesh and did not return to Australia until August 2019.

7. On 15 June 2019 the applicant obtained a divorce from his former partner.

8. On 4 July 2019, the applicant called the Department and advised that he had separated from his partner and that he had contacted the Department on 17 or 18 June 2019 regarding separation but that he had been cut off from the call.

9. On 1 August 2019, the applicant lodged a Mod S form advising that he had separated from his partner on 28 April 2019.

10. Following the lodgement of the Mod S form a Departmental officer accepted that the applicant had been separated from his partner from 28 April 2019, consistent with the information included in the form and that the applicant was qualified for the single rate of DSP but could only be paid at this higher rate from the date on which the applicant had informed the Department of his changed circumstances. The officer determined that date to be the date the applicant lodged the Mod S form, being 1 August 2019. In reaching this decision the Departmental officer relied on section 110(1) of the Social Security (Administration) Act 1999 (the “Administration Act”).

11. As the single rate of DSP was higher than the partnered rate of DSP the Departmental officer determined that the decision to grant the applicant the higher rate was a “favourable determination” for the purposes of section 110(1) of the Administration Act and that as the applicant had not informed the Department until 1 August 2019 the applicant was not eligible to receive the higher rate of DSP until that date.

12. On 6 August 2019 the applicant requested a review of the original decision by a Departmental ARO.

13. On 14 May 2020 the ARO affirmed the original decision.

14. On 27 May 2020 the applicant requested a review of the ARO decision by AAT1.

15. On 17 July 2020 the AAT1 affirmed the ARO decision.

16. On 3 August 2020 the applicant lodged a request for review of the AAT1 decision which is the matter presently before this Tribunal.

    ISSUES

17. In his written submissions the applicant conceded that he had not notified the Department of his separation from his wife prior to 1 August 2019. He stated that notwithstanding the effect of section 110(1) of the Administration Act, he believed he was entitled to receive the single rate of DSP from 28 April 2019 pursuant to section 24 of the Act due to the existence of special reasons.

18. The precise nature of those reasons was not clearly set out in the applicant’s written materials. However, in essence, the applicant’s contention was that his wife had no practical capacity to contribute to a pooling of resources for a number of reasons. On that basis the applicant contends that the special reasons requirement in section 24 of the Administration Act was satisfied and that the discretion pursuant to that section to enable him to be treated as single from 28 April 2019, and be entitled to receive the DSP at the single rate from that date, should be exercised.

19. The respondent’s contention was that, consistent with the detail in the Mod S form lodged with the Department on 1 August 2019, the applicant had separated from his wife from 28 April 2019 and that they were living separately on an indefinite or permanent basis from that date. The respondent contends that the applicant does not satisfy the preconditions to the exercise of the discretion under section 24 and that therefore that section has no relevance to his circumstance.

20. In the respondent’s Statement of Facts, Issues and Contentions, the respondent conceded that on the basis of further enquiry of Departmental records it was likely that the applicant had made contact with the Department by telephone on 17 June 2019, and informed the Department of his separation on that date. The respondent conceded that if the applicant had in fact informed the Department of his separation on his call to the Department on 17 June 2019 then the applicant was entitled to receive the single rate of DSP from that date in accordance with section 110(1) of the Administration Act.

21. In the course of the hearing the respondent conceded that in the event that the applicant had not informed the Department of his separation on the 17 June 2019 call then, on the basis of a recorded telephone call the applicant had with a Departmental officer on 4 July 2019, it conceded that the Department had been informed of the applicant’s separation on that date and that, in those circumstances, the applicant was entitled to have received the single rate of DSP from 4 July 2019.

22. The issues for determination by the Tribunal are:

    a)whether section 24 of the Act applies to the applicant’s circumstances and, if so, whether special reasons exist that justify the exercise of the discretion to treat the applicant as being single from 28 April 2019 for the purpose of his DSP entitlement thereby making him eligible to receive his DSP at the single rate from that date; and

    b)on what date the applicant informed the Department of his separation from his wife for the purpose of section 110(1) of the Administration Act.

    RELEVANT LEGISLATIVE PROVISIONS

23. Section 24 the Act relevantly provides that:

    1Where:

    (a)a person is legally married to another person; and

    (b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

    (c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of the couple;

    the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

24. Section 110(1) the Administration Act relevantly provides that:

    1Subject to subsections (1A) to (11A) (inclusive), if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:

    (a)on the day on which the person so informed the Department; or

    (b)on the day on which the event or change occurred;

    whichever is the latter.

    CONSIDERATION

25. In his direct evidence to the Tribunal the applicant confirmed that his wife had left Australia on 28 April 2019 for Bangladesh and did not return to Australia until later in August of that year. The applicant told the Tribunal that he had divorced his wife on

    
    

    15 June 2019 and that he is still currently single.

26. In his evidence the applicant conceded that he had physically separated from his wife on 28 April 2019, as she had left Australia on that date but that he was confused as to the precise status of his relationship at that time. He told the Tribunal it was a very difficult period and that he had been uncertain about whether or not he would reconcile with his wife. He told the Tribunal that following the birth of their child both he and his former partner had found caring for their baby difficult due to the baby having trouble sleeping. He told the Tribunal that his former partner became frustrated because she did not have the immediate assistance of other family members to help. He also told the Tribunal that his former partner had expressed frustration at their limited financial capacity at the time. He told the Tribunal that his former partner had travelled to Bangladesh to show the baby to her family.

27. When asked whether he had any clear understanding as to when or if his then partner would return to Australia, he told the Tribunal that he thought she would return because Australia is a wealthy country and Bangladesh is a poor country and given that his former partner has an entitlement to residency in Australia he believed she would prefer to live in Australia.

28. Under cross-examination the applicant told the Tribunal that he was not 100% sure what his former partner would do and that he did not know what was on her mind. The applicant told the Tribunal that he expected that after she had shown the baby to her family she would “calm down a bit” and want to return to Australia. The applicant told the Tribunal that at the time his former partner left for Bangladesh he did not have a view that the relationship would end up in divorce and that he only became certain of that outcome when they did in fact divorce in June 2019.

29. The applicant accepted that he had signed the Mod S Separation details form included in the Tribunal’s materials which was dated 7 May 2019 but lodged on 1 August 2019.

    
    

    The applicant conceded that in that form he had stated that he had separated from his former partner on 28 April 2019. The applicant conceded that in his application for review he had also stated that he had separated from his wife on 28 April 2019. In addition, the applicant acknowledged that the Tribunal materials also included a form signed by his former partner as well as another third party, which purported to verify that the applicant had separated from his wife on 28 April 2019.

30. The applicant told the Tribunal that he could not really explain the apparent inconsistency between the information in the forms lodged with the Department which clearly indicated that he had separated from his wife on 28 April 2019 and his evidence before the Tribunal that he had been uncertain about the status of his relationship at that time but that he had an expectation that his wife would return to Australia to live with him. He told the Tribunal he was confused at the time and that he had a lot on his mind. In the course of his evidence the applicant suggested to the Tribunal that in completing the Mod S form he may have been referring to his physical separation from his wife rather than referring to the actual status of their relationship.

31. Based on the evidence before it the Tribunal is satisfied that the applicant separated from his wife on 28 April 2019. The Tribunal is satisfied that the applicant’s former partner left Australia on that date and from that date they were living separately up until the date of their divorce.

32. The Tribunal found the applicant to generally be very frank and forthright in his direct evidence. However, the applicant’s evidence regarding the status of his relationship with his former partner following her departure from Australia at the end of April 2019 was the exception to that general observation. The Tribunal found the applicant’s  evidence in that respect to be inconsistent and unpersuasive. The applicant was not able to provide any adequate explanation for the apparent inconsistency between his direct evidence that he had expected his wife would return to live with him in Australia after visiting family in Bangladesh, and the written confirmation of him having separated from his wife on

    
    

    28 April 2019 which was included in the Mod S form and in his application for review. The Tribunal found the applicant’s suggestion that in completing the form he had been referring to the couple’s physical separation rather than an observation on the status of their relationship to be completely unpersuasive. It is clear on the face of the form that the form is intended to provide the Department with an update on relationship status.

33. In addition, the applicant’s evidence was also clearly inconsistent with the third-party verification form which also states that the applicant separated from his former partner on

    
    

    28 April 2019.

34. Further, the fact that the applicant did not at any stage reconcile with his wife after she left the country on 28 April 2019 and prior to his divorce on 15 June 2019, and that his wife remained in Bangladesh for the entirety of that period would further support the conclusion that the applicant  was separated from his wife on and from 28 April 2019.

35. In hearing the applicant’s evidence on this issue, the Tribunal was left with the distinct impression that the applicant was seeking to present evidence that he believed would support his eligibility for relief under section 24 of the Act, rather than accurately answering the questions being put. On a number of occasions in the course of his evidence the applicant expressed frustration at the fact that when he had previously advised the Department that he had separated on 28 April 2019 the Department had rejected his claim to receive DSP at the single rate from that date on the basis of section 110(1) of the Administration Act and continued to pay him DSP as though he was partnered.

36. The Tribunal can certainly understand the applicant’s frustration in this respect. However, the Tribunal is satisfied the applicant failed to inform the Department of his change in circumstances in a timely manner. The legislative intent behind section 110(1) of the Administration Act is that in those circumstances the applicant bears the responsibility for the delay. As the Tribunal noted in Druett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 333:

    The sense of section 110 is that it is the act of the recipient of the benefit in passing information to Centrelink that provides the timing of the effect of the favourable determination that follows; in the absence of such an act, it is difficult to see how there could be a clear moment at which a favourable determination could take effect.

    That is consistent with the broader scheme of the Administration Act. A clear part of that scheme is that the responsibility is placed on the claimants and the recipients of benefits to assert their entitlements and to inform Centrelink accurately of their circumstances and relevant changes to them.

37. For these reasons, the Tribunal finds that the applicant was separated from his wife on 28 April 2019 and was living separately from her on a permanent and indefinite basis from that date. Accordingly, the applicant does not satisfy the precondition to the exercise of the discretion in section 24(1)(b) of the Act and therefore section 24 does not apply. Based on this conclusion it is not necessary for the Tribunal to go on to consider the applicant’s evidence regarding the existence of special reasons justifying the exercise of the discretion under that section.

    Date of informing the Department

38. In the applicant’s  direct evidence when it was suggested that he may have contacted the Department on or around 17 June 2019 and informed the Department of his separation from his wife on that date the applicant was adamant that he had not done so. He told the Tribunal that he had only been on the call for a matter of seconds and that he had then been cut off. Considering the applicant’s evidence and the absence of any clear Departmental note or record the Tribunal is not satisfied that the applicant informed the Department of his separation on that date.

39. However, when it was put to the applicant, he accepted that he had made a telephone call to the Department on 4 July 2019 during which he had informed the Department of his separation from his wife. On the basis of the applicant’s evidence as well as the other supporting evidence before the Tribunal, and also acknowledging the respondent’s concession on the point, the Tribunal is satisfied that the applicant first informed the Department of his separation from his wife on that date. Given this conclusion and having regard to section 110(1) of the Administration Act the Tribunal is satisfied that the Department’s determination to grant the applicant DSP at the single rate following his separation from his former partner ought to have come into effect on 4 July 2019 and not

    
    

    1 August 2019.

40. For these reasons the Tribunal is satisfied that the correct or preferable decision in this matter is to set the decision under review aside and substitute it with a new decision to grant the applicant DSP at the single rate from 4 July 2019.

    DECISION

41. The Tribunal sets aside the decision under review and substitutes it with a new decision that the applicant was entitled to receive the DSP at the single rate from 4 July 2019.

I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

[sgd]........................................................................

Associate

Dated: 22 February 2021

Date of hearing:	15 January 2021
Applicant:	By telephone
Advocate for the Respondent:	Ms April Voigt, Services Australia