Amrik Pala and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 543

[2013] AATA 543  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3463
Re	Amrik Pala
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr A Frazer, Member
Date	2 August 2013
Place	Perth

Decision Summary

The Tribunal affirms the decision under review.

....(Sgd) Dr A Frazer................

Dr A Frazer, Member

Catchwords

SOCIAL SECURITY – age pension- member of a couple – partnered rate – decision  under review affirmed

Legislation

Social Security Act 1991 (Cth), s 1064

REASONS FOR DECISION

Dr A Frazer, Member

2 August 2013

INTRODUCTION

1. A Centrelink Officer decided on 5 January 2012 that Mr Amrik Pala, (“the applicant”), who is 79 years of age, and Mrs Kikuko Pala (Mrs Pala)  were members of a couple and his rate of age pension would continue to be paid at the partnered rate (the original decision). The basis of that decision was that the Administrative Appeals Tribunal (AAT) had decided on 23 December 2010 that Mr Pala was a member of a couple and there was no “special reason” to pay age pension at a higher rate.  The Centrelink Officer concluded there had been no significant change to the applicant’s circumstances since the AAT made its decision.

2. A Centrelink Authorised Review Officer (ARO) affirmed the decision on 15 May 2012. The Social Security Appeals Tribunal affirmed the decision on 13 July 2012.

3. On 13 August 2012 the Applicant applied for a review to this Tribunal.

   THE RELEVANT LEGISLATION

4. The relevant legislation is contained in the Social Security Act 1991 (the Act). The rate of age pension is calculated in accordance with the rate calculator contained in section 1064 of the Act.

5. Where 2 people are members of a couple they will each be paid at the partnered rate (section 1064-B1) and they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (section 1064-A2). The definition of a member of a couple is contained in S4 of the Act.

   THE EVIDENCE

6. The evidence before the Tribunal comprised:

   ·the “T Documents” (T1-T42), pp 1- 211) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

   ·A1  - Bank Statements December  12 – March 13

   ·R1  - letter to AAT 28 September 2009

   ·R2 - Bankwest Account demonstrating Consent Order Payments

   ·R3 -  letter to Centrelink 29 March 2010

   ·Evidence of the Applicant.

   The applicant’s evidence

   ·The applicant said he is now 79 years old and he retired in 1984 because of a heart condition. He came to Australia in 1970.  He has 5 adult children in Australia and they live in Sydney.  He met Mrs Pala (his wife) on an International University Exchange and she came to Perth in July 2001.  On 15 April 2002 they married.  Since then they have been living at 280 Morley Drive, Dianella, in a property owned jointly by the applicant and his daughter.    It is an old 3 bedroom house and Mrs Pala has her own bedroom.  It is empty when she goes to Japan.

   ·The applicant said that in 2006 Mrs Pala went to Japan.  She said this was permanent but returned to the Dianella property on 1 December 2006.

   ·On 2 October 2007 Mrs Pala went to Japan for family reasons and returned 14 January 2008.

   ·The applicant said he never tries to stop Mrs Pala from going to Japan and she went again last year.  The applicant said he will drive her to the airport and pick her up from the train when she comes home.

   ·In general terms, the applicant said there had been no real change in their living arrangements over the years.  They share all the facilities in the home.  Mrs Pala does the cleaning and tidying and cooking and they both look after the 2 Jack Russell dogs. The applicant said the dogs had really bonded with Mrs Pala. They do the shopping together as the applicant said he has to point out the specials or what to buy to Mrs Pala. The applicant said they do support each other and provide companionship to each other however they have not had an intimate relationship since 2006.

   ·The applicant said he has learnt Japanese, and he has helped Mrs Pala learn English however she could not get a job and is now working as a cleaner. The applicant said Mrs Pala will now pay him up to $350 a fortnight for living expenses when she is residing with the applicant.

   ·The applicant said he thinks that as Mrs Pala had left for Japan in 2006 and had continued to travel to Japan off and on to visit her family over the years that he should be paid the single rate of aged care pension when Mrs Pala is away.  He said that he had taken this issue to the AAT in 2009 and it was decided that he was a member of a couple with Mrs Pala.  The applicant said he thought the decision was not right but he did not appeal it because he did not have the resources for a lawyer.

   ·The applicant also said that he has now paid over to Mrs Pala the sum of $20,000 from the Family Court Order (over 2012) and that Mrs Pala has now got a job and pays him for her living expenses.

   ·The applicant said that each time Mrs Pala leaves for Japan that he should be able to receive the single rate of pension. 

   REVIEW OF EVIDENCE

   ·Overall, the applicant has been living in the same house with his wife, Mrs Pala, for around 12 years. Their relationship provides ongoing companionship and support and is beneficial to each.  Their relationship has been characterised over the long term by Mrs Pala returning to Japan over the years for periods of 2 to 4 months for family reasons.  This was taken into consideration in the previous AAT decision of 2009.

   ·There has never been a history of significant sharing or blending of  income over the years of marriage.  The Tribunal considers the Family Court of WA Consent Orders of 2010 that Mrs Pala pay the applicant $20 000 as consideration for his property has not brought about any significant change in the relationship.

   ·Overall, the applicant did not provide any evidence of a significant change in the ongoing nature of the relationship or how the relationship has been functioning since around 2006 to the present time.  

   DECISION

7. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member.

..(Sgd) T Freeman............

Associate

Dated 2 August 2013

Date(s) of hearing	29 April 2013
Applicant	In person
Representative for the Respondent	Mr Lam Nguyen Australian Government Solicitor