Ammar and Secretary, Department of Social Services (Social services second review)
[2016] AATA 493
•15 July 2016
Ammar and Secretary, Department of Social Services (Social services second review) [2016] AATA 493 (15 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6608
Re
Mohammad Ammar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
File Number(s)
2015/6609
Re
Frances Ammar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 15 July 2016 Place Sydney
The decisions under review are affirmed.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY - age pension - carer payment - rate of pension - whether applicants are members of a couple - applicants married - pooling of finances - shared accommodation - joint assets - whether applicants meet special reason discretion - difficult financial situation - decision under review affirmed
LEGISLATION
Social Security Act ss 4(2), 4(3), 24(1)
CASES
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Liang and Secretary, Department of Social Services [2015] AATA 225
Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546
Purdie and Secretary, Department of Social Services [2013] AATA 743REASONS FOR DECISION
Professor R McCallum AO, Member
15 July 2016
INTRODUCTION
The Applicants, Mr Mohammad Ammar and Mrs Frances Ammar were married in 1981.
Mrs Ammar was granted disability support pension (DSP) in 2002, which was transferred to age pension in 2015, and Mr Ammar was granted carer payment in 2002. Both of these pension payments were paid at the coupled rate because Mr and Mrs Ammar were regarded as members of a couple.
From December 2012 to May 2014, Mrs Ammar resided in a nursing home. Mr and Mrs Ammar's respective pensions were paid at the single rate as they were separated due to the illness of Mrs Ammar.
In 2013, Mr and Mrs Ammar, who were joint tenants, sold their home (“the old home”) and purchased another home (“the new home”). This new home was purchased in the name of Mr Ammar. The new home was renovated to assist Mrs Ammar's living, owing to her disabilities. In November 2014 Mrs Ammar returned to live at the new home. A review was undertaken of Mr and Mrs Ammar's respective pension rates, and on 26 November 2014, Mr and Mrs Ammar were advised that their next payments would be at the coupled rate.
Subsequently, Mr Ammar filed a 'Relationship Details - Separated Under One Roof' form with the Centrelink (“Separation Form”). However, Centrelink determined that Mr and Mrs Ammar were members of a couple, which meant that their respective pensions were correctly being paid at the coupled rate.
Mr and Mrs Ammar sought review of the two decisions that they were each a member of a couple from an Authorised Review Officer, but to no avail.
Mr and Mrs Ammar then sought review from the Administrative Appeals Tribunal (AAT) Child Support and Social Services Division. However, in two decisions dated 4 November 2015, the AAT Child Support and Social Services Division affirmed the decisions that the pensions of Mr and Mrs Ammar were being correctly paid at the couple rate.
Mr and Mrs Ammar now appeal to the AAT General Division, and accordingly this is an AAT second review.
THE ISSUES BEFORE THIS TRIBUNAL
There are two issues before me as I stand in the shoes of the Secretary.
First, are Mr and Mrs Ammar members of a couple within the meaning of subsections 4(2) and 4(3) of the Social Security Act 1991 (Cth) (“the SS Act”).
Second, if Mr and Mrs Ammar are a couple within the meaning of these provisions, is there a special reason why they should not be treated as members of a couple within the meaning of subsection 24(1) of the SS Act.
THE LEGISLATION
The relevant legislation is the SS Act.
The Member of a Couple Test
Subsections 4(2) and 4(3) of the SS Act set out the member of a couple test. These subsections relevantly provide as follows.
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis;…
Member of a couple—criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a),…the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day to day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage like relationship or a de facto relationship.
Interpreting the Member of a Couple Test
In my view, the two following decisions clearly expound how the member of a couple test set out in subsections 4(2) and 4(3) of the SS Act is to be applied.
In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe helpfully expounded upon the criteria set forth in these provisions.
16. Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person's income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
In Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546, French J (as he then was) sitting in the Federal Court of Australia, dealt with the application of the member of a couple test. In the matter before him, the woman and man were not legally married, however, the "member of a couple" test applies both to persons of the opposite sex and also to persons who are married and who are living under the same roof.
46. Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other.
3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the , factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
47. The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of 'marriage-like', will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
The Special Reason Discretion
Subsection 24(1) of the SS Act enables the Secretary to determine that a married person is not a member of a couple owing to a special reason. Subsection 24(1) provides as follows.
Where:
(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 a 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.
Interpreting the Special Reason Discretion
Subsection 24(1) of the SS Act reposes in the Secretary a special reason discretion to treat a married person as not being a member of a couple.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, French J (as he then was) sitting in the Federal Court of Australia explained the special reason discretion in the following passage. His Honour stated as follows.
[18] The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A full court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss”: Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context.
In Purdie and Secretary, Department of Social Services [2013] AATA 743, Deputy President PE Hack SC further explained the operation of this special circumstances discretion. The Deputy President stated as follows.
14. I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple. The Secretary's submissions point to the departmental policy guide for the application of this discretion. That guide suggests that three questions need to be considered as part of an assessment of the application of s 24. Those questions are - is there a special reason to be considered in this couple's circumstances? Is there a lack of being able to pool resources for the couple as a result of the circumstances? Is there financial difficulty as a result of the couple's circumstances? For my part I remain unpersuaded that the section poses three questions. It seems to me the section poses only one question - is there a special reason to treat Mr Purdie in the present case as not being a member of a couple. It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.
In Liang and Secretary, Department of Social Services [2015] AATA 275 at [29], Senior Member P W Taylor SC agreed with the approach taken by Deputy President Hack. I also adopt this approach to interpreting this special circumstances discretion.
THE HEARING
Mr Ammar attended the hearing in person, and Mrs Ammar participated in the hearing by telephone.
Mr Ammar’s application for a private hearing and non-publication of decision
At the beginning of the hearing, Mr Ammar asked if the decision could remain private and not be published. I explained that pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) proceedings before this Tribunal are public (see s 35). I further explained that decisions of this Tribunal are published on the internet.
Mr Ammar simply said that it was his preference for this matter to remain private because he was a shy person. I explained that as he had given me no other reasons why this matter should be private, my preliminary view was that there was no reason for privacy.
I now rule that as Mr Ammar did not give any reasons for the decision to be private, other than his shyness, I dismiss his application.
The Evidence of Mr Ammar
Mr Ammar gave sworn evidence.
Mr Ammar said that he came to Australia in 1968 and that he and Mrs Ammar married in 1981. They have a 33 year old son who suffers from bipolar illness.
Mr Ammar explained that Mrs Ammar has been very ill since 1999. Both of her legs have been amputated below the knee, and some of her fingers have also been amputated. Since 2002, Mrs Ammar has been in receipt of DSP.
Mr Ammar said that he has been receiving carer payment to take care of Mrs Ammar since before she went into the nursing home.
Mr Ammar said that they sold the old home because living on the second floor did not suit Mrs Ammar. He said that the new home was purchased in his name.
Mr Ammar said that he and his wife share one bedroom. They have two beds. Mrs Ammar's bed is a hospital bed. He said that Mrs Ammar often requires night time care.
Mr Ammar said that the pensions of himself and Mrs Ammar are paid into the same bank account. He said that he handles the money. Mr Ammar said that they have joint wills leaving everything to one another. He said that he was in the throes of writing a separate will, but that the paper work had not been completed.
Mr Ammar said that he does not discuss the relationship between himself and his wife with their friends.
In cross-examination, Mr Ammar agreed that the $25,000 loan from the Commonwealth Bank of Australia to renovate the new home was in his name and in Mrs Ammar's name. Mr Ammar also agreed that he has a joint bank account in the names of himself, Mrs Ammar and their son.
Mr Ammar said that he has never considered divorce. Mr Ammar said that owing to the illness of Mrs Ammar they have not had sexual relations for years.
The evidence of Mrs Ammar
Mrs Ammar gave evidence by affirmation over the telephone.
Mrs Ammar said that she and Mr Ammar share a bedroom for she needs help at night. Mrs Ammar said that she suffers from sleep apnoea and Mr Ammar helps with the sleep apnoea machine.
Mrs Ammar agreed that both pension payments were paid into the same bank account. She said that Mr Ammar manages the money.
When asked whether her friends regarded her and Mr Ammar as a married couple, Mrs Ammar said that it was none of their business.
CONSIDERATION
The first issue which I am required to decide is whether Mr and Mrs Ammar are members of a couple within the meaning of s 4(2) and 4(3) of the SS Act.
Second, if Mr and Mrs Ammar are a couple within the meaning of these provisions, is there a special reason why they should not be treated as members of a couple within the meaning of s 24(1) of the SS Act.
I commend Mr Ammar as he is a good and kind man. He takes care of Mrs Ammar who is in poor health and who is a person with disabilities.
Are Mr and Mrs Ammar members of a couple?
Mr and Mrs Ammar assert that their respective pensions should be paid at the single rate because they are no longer members of a couple.
To determine the correctness of this assertion, I am required to apply the member of a couple test in ss 4(2) and 4(3) of the SS Act which I have set out above.
Mr and Mrs Ammar have a long relationship as a couple. They have been living together since they married in 1981, some 36 years ago and they have no plans to divorce. In the new home they share one bedroom which contains a hospital bed for Mrs Ammar and another bed for Mr Ammar.
I find that Mr and Mrs Ammar pool their finances.
In relation to home ownership, Mr and Mrs Ammar owned the old home as joint tenants. I find that the proceeds from its sale were obviously used to purchase the new home which is in the name of Mr Ammar. However, the new home is effectively owned by Mr and Mrs Ammar. The bank loan from the Commonwealth Bank of Australia which was used to pay for some of the renovations to the new home is in the names of Mr and Mrs Ammar.
Mr and Mrs Ammar's pensions are paid into the same joint bank account. They both have joint wills leaving everything to one another.
From the evidence of Mr and Mrs Ammar, it does appear that they have not told their friends that they are no longer a couple. From this evidence, I find that the friends of Mr and Mrs Ammar still regard them as a married couple.
Having regard to the totality of their relationship, I find that Mr and Mrs Ammar satisfy the member of a couple test.
Is there a special reason why Mr and Mrs Ammar should not be regarded as members of a couple?
Subsection 24(1) of the SS Act which I have quoted above, permits me as I stand in the shoes of the Secretary, to hold that Mr and Mrs Ammar are not members of a couple if a special reason exists having regard to their circumstances.
I appreciate that Mr and Mrs Ammar are in a difficult financial situation. I also recognise that if their pensions were paid at the single rate, their straightened financial circumstances would be slightly alleviated. However, without more, the financial difficulties of Mr and Mrs Ammar do not amount to a special reason to disregard the member of a couple test. Therefore, I find no special reason why the member of a couple test should be set aside in this instance. Mr and Mrs Ammar have a long and continuing relationship, they pool their finances, and their friends regard them as a married couple.
CONCLUSION
I find that Mr and Mrs Ammar both satisfy the member of a couple test in the SS Act.
I further find that no special reason exists to enliven the discretion in subsection 24(1) of the SS Act not to treat them as members of a couple.
Therefore, the decisions to pay the respective pensions of Mr and Mrs Ammar at the couple rate are correct.
DECISION
The decisions under review are affirmed.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
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Associate
Dated 15 July 2016
Date(s) of hearing 27 June 2016 Applicants In person Solicitors for the Respondent Department of Human Services
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