BATTISCOMBE And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 458

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 458

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5367

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES BATTISCOMBE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date30 June 2011

PlaceBrisbane (heard in Cairns)

Decision The decision under review is affirmed.

..............Signed................

Deputy President

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and entitlements – disability support pension - member of a couple – availability of special reasons to not treat as member of a couple – decision under review affirmed.

Social Security Act 1991 (Cth) s 24(2)

Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 53 ALD 277

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Kazmierckak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084

REASONS FOR DECISION

30 June 2011 Deputy President P E Hack SC    

Introduction

1.Until 1 July 2009 a member of a same sex couple could not, as a matter of law, be regarded as being a “member of a couple” for the purposes of the Social Security Act 1991 (Cth). On and from that date, by virtue of amendments made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth), same sex relationships were recognised for the purposes of determining whether a social security recipient was a member of a couple. That status is used to determine entitlements, and the rate of entitlements, under the Act. 

2.The applicant in these proceedings, Mr James Battiscombe, has been a long term recipient of disability support pension and has been, and remains, in a long term same sex relationship with Mr Colin Gallatly. Following the change in the legislation Mr Battiscombe’s disability support pension was considerably reduced because Mr Gallatly’s earnings must now be taken into account in determining the rate of payment of that pension.

3.Mr Battiscombe accepts that the payments that have been made are at the correct rate having regard to Mr Gallatly’s earnings. He accepts, as well, that he and Mr Gallatly are in what the Social Security Act 1991 (Cth) now describes as a “de facto relationship”[1] and thus he is a member of a couple. But, he says, the circumstances are such that a discretion in the Social Security Act to not treat him as a member of a couple ought be exercised in his favour.

[1] Previously called a “marriage-like relationship”.

The legislation

4.It is only necessary to have regard to s 24(2) of the Social Security Act. It provides:

“(2)Where:

(a)a person has a relationship with another person, whether of the same sex or a different sex (the partner); and

(b)the person is not legally married to the partner; and

(c)the relationship between the person and the partner is a de facto relationship; and

(d)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.”

5.It is common ground that each of the matters in paragraphs (a) to (c) are satisfied; the only issue is whether Mr Battiscombe should, for a special reason in his case, not be treated as a member of a couple.

Background

6.I do not understand what follows to be in issue. I will deal with further factual matters when considering the matters put forward as amounting to “special reason”.

7.Mr Battiscombe is now aged 56 years. He was diagnosed with human immunodeficiency virus (HIV) in 1990 and is now part of what he describes as a “unique group of long-term survivors heading into our senior years with the unknown side-effects of ageing with HIV”. His health is poor, hence he has been a long term recipient of disability support pension.

8.I had evidence from Dr Darren Russell, the Director of the Sexual Health Service at Cairns and a medical practitioner with vast experience in the treatment of HIV patients. Dr Russell explained that Mr Battiscombe’s current medical condition is stable and that the HIV infection is well-controlled on a combination of medications. Despite that, he presently suffers from fatigue, depression, arthritis and Achilles tendinitis. It is thought by researchers that the effects of long term HIV and its treatment prematurely ages the body with the result that, Mr Battiscombe’s general medical condition is of someone aged as much as 10 years older than Mr Battiscombe is. Mr Battiscombe, as a patient with HIV, is at greater risk of heart attacks, osteoporosis and fractured bones, liver and kidney problems, neurological problems, and some cancers, when compared with persons without HIV.

9.Mr Battiscombe’s depression is the subject of a report by Ms Lyn Roubos, a psychologist at the Cairns Sexual Health Service. Ms Roubos indicates that the loss of income from the legislative change appears to have played a significant role in triggering an episode of major depressive disorder commencing in early 2010.

10.In 2007 Mr Battiscombe and Mr Gallatly purchased the house in which they now reside in Kuranda. That purchase entailed a substantial debt, secured by a mortgage over the property. Repayments were able to be made from a combination of the earnings of Mr Battiscombe and Mr Gallatly and from Mr Battiscombe’s disability support pension. 

11.Mr Battiscombe has qualifications as an assistant in nursing but has been unable to obtain work in that capacity in his area. Until September 2010 he was in regular part time employment as a tour guide. In the financial year prior to the change in legislation he earned $16,820 from that employment, an average of about $320 per week. After the change he increased his work hours to make up for the reduction in the rate of payment of his disability support pension however he found that the increased hours affected his health adversely. In any event, the business that employed him closed in September 2010, apparently as a result of the general decline in tourism in far north Queensland.

12.Mr Gallatly is in employment as a truck driver. Until February 2010 he was employed locally, and then he obtained employment at a higher rate of pay that requires him to work away from home for four weeks at a time followed by two weeks at home. Taking into account his entitlement to annual leave he is, in effect, away from home for seven months of the year. Mr Battiscombe has found those long absences very difficult. He has extra physical demands in maintaining the household and property, he lacks the assistance with daily living that Mr Gallatly would otherwise provide and has, in large measure, lost Mr Gallatly’s emotional support whilst Mr Gallatly is away.

A special reason

13.In Boscolo v Secretary, Department of Social Security[2] French J (as his Honour then was) said of the word “special” conditioning other words such as “circumstances” or “reasons”,

“It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened.”

His Honour went on to say,

“The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course.” [citations omitted]

[2] [1999] FCA 106; (1999) 53 ALD 277, 281 at [18].

To similar effect, Kiefel J said in Groth v Secretary, Department of Social Security[3]of the expression “special circumstances” in s 1184(1) of the Social Security Act,

[3] (1995) 40 ALD 541, 545.

“The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss … and for present purposes it is sufficient to observe that it would require something to distinguish [the] case from others, to take it out of the usual or ordinary case.”

14.Mr Dean Morzone, counsel for Mr Battiscombe, identified six matters which he submitted amounted to “special reasons” in the present case. Those matters were:

(1)the inability to pool resources to benefit both, and achieve economies of scale;

(2)the impact of periods of physical separation;

(3)poor financial circumstances;

(4)deteriorating and consequential health issues;

(5)lack of retirement planning because of the particular circumstances of the case;

(6)entry into significant financial commitment prior to legislative amendment.

15.In Kazmierckak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[4] Barker J observed that,

“[41]…there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.

42It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.”

[4] [2010] FCA 1084 at [41]-[42].

16.The argument for Mr Battiscombe is that he is unemployed, he has no resources to pool and thus, it is said, the pooling of resources concept is “farcical” in the circumstances of this case. I need not decide whether that description is apt but I do not consider the circumstances of Mr Battiscombe and Mr Gallatly to be out of the ordinary or even unusual. Many couples will find themselves where one person is employed and the other receiving a benefit under the Social Security Act as a consequence of an illness or other condition sufficiently serious to warrant the payment of a disability support pension. The rationale for the payment of the disability support pension is that the recipient has an impairment of sufficient seriousness as to occasion a continuing inability to work. The reality of relationships is that frequently one member of the relationship will, for one reason or another, have no, or few, resources to pool. But that does not warrant ignoring the scheme of the Social Security Act that ordinarily requires the totality of resources available to be considered in determining the entitlement to benefits and the amount of benefits payable to one (or sometimes both) of them.

17.It may be accepted that the fact of Mr Gallatly’s four week absences creates additional financial burdens and that there are some economies of scale that are unable to be achieved as a consequence of them. And it is no doubt true that those absences contribute to greater costs e.g. on telephones. But as against that, Mr Gallatly’s employer provides him with food and board during the period of his absences with the result that the overall grocery bill, for example, is likely to be reduced. It is not a matter capable of precise analysis however I am unable to conclude that there are additional financial burdens arising from the nature of Mr Gallatly’s employment that are out of the ordinary.

18.Next it is said that one of the consequences of the legislative change was the need for Mr Gallatly to increase his income to make up the shortfall in household income arising from the amendment. That may be correct but that is no more than the consequence of the decision of the Parliament to provide equal treatment to same sex couples. The unstated premise of Mr Battiscombe’s argument is that the amendment to the legislation has required Mr Gallatly to obtain employment that involves regular, lengthy absences from home. I do not accept that premise.

19.I am prepared to assume that the rates of pay for fly in, fly out jobs includes a premium to compensate for the privations of absences from home. But there is no evidence that the present employment is the only employment available to Mr Gallatly at that level of remuneration. The fact that Mr Gallatly has been unable to find other employment does not, without more, demonstrate that none is available. I accept, however, that the fact of Mr Gallatly being absent periodically is burdensome on Mr Battiscombe and that the absences are made more difficult because of Mr Battiscombe’s mental and physical ailments. Nonetheless those circumstances, in my view, must be regarded as not uncommon in today’s society.

20.Mr Gallatly’s annual income is in the order of $58,000. Mr Battiscombe’s disability support pension is very modest, in the order of $52 per fortnight. The statements of financial circumstances that have been prepared – one for Mr Battiscombe and one for the joint household – demonstrate that expenditures exceed income. And, Mr Battiscombe said, there have been occasions when it has been necessary for the couple to sell an asset to survive. But despite that I cannot regard the financial circumstances as unusual. Many in this country have a smaller income on which to survive.

21.There are said to be three reasons why Mr Battiscombe’s health can be considered “special”. First there is Mr Battiscombe’s general poor health, already detailed[5], and especially the premature ageing Mr Battiscombe has experienced. Those matters, it is said, are aggravated by Mr Gallatly’s absences and the strains they impose on Mr Battiscombe in a way that is further injurious to Mr Battiscombe’s health. Finally, it is said, Mr Battiscombe’s overall health is deteriorating.

[5] See paragraphs [7] – [9] above.

22.It is impossible not to have considerable sympathy for Mr Battiscombe and admiration for his capacity to cope for so many years, with a debilitating illness. But I cannot regard his overall condition as unusual even though its cause may be. Disability support pension is not payable unless the recipient has an impairment of sufficient severity as to prevent the person engaging in employment. I do not regard Mr Battiscombe’s condition as being out of the ordinary.

23.Next, Mr Battiscombe says that because of his long standing affliction with HIV his focus has been on survival, not planning for his retirement. It is perhaps, understandable that, at a time when he had every reason to believe that he might not live for very long, he was more concerned with the present than with the future. But I am unable to see how such matters could sustain, either in whole or in part, a conclusion that there was special reason for Mr Battiscombe not to be treated as being a member of a couple when, on the ordinary application of the legislation, he was to be so treated.

24.Finally it is said that the change in legislation after the making of a significant financial commitment helps to provide special reason. I am unable to agree. The reality of modern life is that governments change policies and make alterations to the benefits provided out of the public purse. The position of Mr Battiscombe is no different to any other recipient of benefit under the Social Security Act who, before 1 July 2009, was in a same sex relationship.

25.As I have said, it is impossible not to have considerable sympathy for Mr Battiscombe. But I am not satisfied that the circumstances of the present case are such as amount to a special reason to not treat him as a member of a couple. There is then no occasion to exercise the discretion in s 24(2) of the Social Security Act.

26.The decision by Centrelink of 1 July 2009 to treat Mr Battiscombe as a member of a couple will be affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ...........Signed............................................................
  Associate

Date of Hearing  10 June 2011
Date of Decision  30 June 2011
Counsel for the Applicant         Mr DP Morzone
Solicitor for the Applicant          Welfare Rights Centre, Sydney
For the Respondent                  Departmental Advocate