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

Bilanovic and Secretary, Department of Social Services (Social services second review) [2019] AATA 3250 (4 September 2019)
Division:GENERAL DIVISION
File Number: 2018/5232
Re:Dajana Bilanovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:4 September 2019
Place:Perth

The Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant’s Parenting Payment Single be cancelled from 13 February 2017.
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Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – Parenting Payment Single (PPS) – entitlement under s 24 of the Social Security Act 1991 (Cth) – whether Applicant is prevented from pooling resources – whether question of financial difficulty relevant – what is correct date of cancellation of PPS – decision under review set aside and substituted with PPS cancellation from the date Applicant’s husband commenced work
LEGISLATION
Social Security Act 1991 (Cth) – ss 4(2)(a), 4(3), 24, 24(1), 503, 739A
CASES
Croy and Secretary, Department of Social Security [1996] AATA 730
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Purdie and Secretary, Department of Social Services [2013] AATA 743
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nicolaas [2009] AATA 416
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.257 – Instruction 2.2.5.50
REASONS FOR DECISION
Brigadier A G Warner, Member
4 September 2019
INTRODUCTION

Ms Bilanovic seeks review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 27 August 2018, which affirmed a decision by an Authorised Review Officer (ARO) of the Department of Human Services (the Department) to cancel Ms Bilanovic’s Parenting Payment Single (PPS) from

15 September 2017 (T2/6-9).
Ms Bilanovic attended and gave oral evidence at the hearing in Perth on 30 May 2019.
Mr A Burgess of Sparke Helmore Lawyers represented the Respondent.
BACKGROUND FACTS
On 28 April 2016, Ms Bilanovic’s partner, Mr Branislav Bilanovic, arrived in Australia and was granted a visa subclass 600. This is a tourist visa that does not allow a person to work or claim a social security payment in Australia (ST1/1).
On 28 July 2016, Ms Bilanovic claimed parenting payment (PP). On 17 August 2016, a determination was made that s 24(1) of the Social Security Act 1991 (Cth) (the Act) should apply to Ms Bilanovic, and her claim for PP was granted at the single rate from
23 July 2016. The decision was recorded in a Department file note: “cus has been assessed as S24 ptr is here on visitors visa 600 and is not able to work. cus/ptr have no benefit in the pooling of resources” (T28/135).
In the 17 August 2016 letter, Ms Bilanovic was notified that she was required to update the Department of changes in her circumstances within 14 days, including changes to her income including “income from any other source” (T8/50).
On 22 November 2016, Ms Bilanovic’s partner was granted a visa (subclass 309), which he had applied for on 22 December 2015 (T10/56). This is a provisional partner visa that allows a person to work. A person with this visa has more limited access to social security payments due to being subject to a newly arrived resident’s waiting period (NARWP) pursuant to s 739A of the Act.
On 21 March 2017, the Department conducted a review of Ms Bilanovic’s entitlement to PPS and rent assistance (RA) when a data match indicated that Ms Bilanovic had changed address. The Department contacted Ms Bilanovic on 23 March 2017 about her living arrangements and the relevant file note states (T28/139):
CUS said that her husband also lives with them at match address, but is not contributing to any costs as he cannot financially since he only currently has a temporary resident visa and cannot work or claim a payment from us. Relationship still meets section 24 requirements as previously doc’d/coded/assessed. Reminded CUS to inform us within 14 days if PTR’s finances change as a result of work, payments claimed, etc. CUS understand and said that she is always careful to do the right thing.
The review determined that Ms Bilanovic and Mr Bilanovic lived in shared rental accommodation with Ms Bilanovic’s parents, with the couple paying a one third share of the total weekly rent, or approximately $117 per week (T28/138-139).
On 14 July 2017, Ms Bilanovic and Mr Bilanovic left Australia for two months and returned on 15 September 2017 (T28/127).
On 16 September 2017, Ms Bilanovic lodged a new claim for PP and declared that

Mr Bilanovic had been employed in the period 13 February 2017 to 14 July 2017.

The claim also included a declaration by Ms Bilanovoc that she and Mr Bilanovic were not currently receiving any income from employment (T13/64-67).
On 31 October 2017, Ms Bilanovic’s claim was approved and she commenced receiving PPS from 15 September 2017. On the same day Ms Bilanovic was sent a notice setting out her rate of payment and again stating that she needed to update the Department about any changes in her circumstances within 14 days (T14/68).
On 28 April 2018, the Department wrote to Ms Bilanovic asking for information to facilitate the right decision regarding her entitlement to PPS and the decision to apply the discretion in s 24(1) of the Act (T16/71-74). On 5 May 2018, Ms Bilanovic responded to the request for information and advised that her husband had previously worked but was currently unemployed and looking for work (T17/75-76).
On 9 May 2018, Ms Bilanovic provided the following documents to the Department:
(a)A partner details form (also at T21/83-96);
(b)A copy of correspondence dated 22 November 2016 from the Department of Immigration and Border Protection advising that Mr Bilanovic had been granted a subclass 309 visa (also at T10);
(c)
A statement by Mr Bilanovic detailing his employment with “Tree Craft” in the periods 13 February to 14 July 2017, 18 September to 1 November 2017 and

6 March to 13 April 2018 (also at T20);
(d)PAYG payment summaries for Mr Bilanovic detailing his earnings from employment in the above periods (also at T25 and T26); and
(e)
Commonwealth Bank statements in the period 16 January to 4 May 2018

(also at T27, ST2/2-26).
On 9 May 2018, the Department cancelled Ms Bilanovic’s PPS from 15 September 2017, and granted a claim for Parenting Payment Partnered (PPP) with effect from

16 September 2017 (T19/79).
On 20 June 2018, an ARO affirmed the decision to cancel Ms Bilanovic’s PPS from

15 September 2017 (T23/98-101).
On 11 July 2018, Ms Bilanovic requested review of the ARO decision by the AAT1 and on 27 August 2018 the AAT1 affirmed the decision under review (T2/6-9).
On 14 September 2018, Ms Bilanovic sought review in this Tribunal (the Tribunal), and on 21 November 2018 provided a submission to the Department and the Tribunal in support of her application (ST3/27-31).
ISSUES
The Tribunal must determine whether Ms Bilanovic was correctly treated as single pursuant to s 24 of the Act for the purpose of determining her entitlement to PPS and if so, whether the decision to cancel Ms Bilanovic’s PPS from 15 September 2017 was correct and from what date should she be treated as being a member of a couple.
The decision before the Tribunal is the decision to cancel Ms Bilanovic’s PPS from

15 September 2017. There was no debt raised at that time. When the Department reviewed Ms Bilanovic’s entitlement to payment at the single rate on 9 May 2018 and determined not to pay PPS, a debt was raised not from 16 September 2017 but from

13 February 2017, being the date Mr Bilanovic started working (T22/82). The debt decision is a separate matter before the AAT1 and is not a consideration in these proceedings.
LEGISLATION, POLICY AND AUTHORITIES
The relevant legislation is contained in the Act. The relevant policy is contained in the Guide to Social Security Law, Department of Social Services, version 1.257 (the Guide). Whilst the Tribunal is not bound to apply the policy guidelines, it will usually do so unless there are cogent reasons in a particular case for not doing so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
Section 503 of the Act provides that a person’s rate of parenting payment is calculated with regard to whether or not they are a member of a couple.
Section 24 of the Act relevantly provides:
(1)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.
The application of s 24 of the Act is guided by Instruction 2.2.5.50 of the Guide, which provides that three questions need to be considered as part of an assessment:
(a)Is there a special reason to be considered in the couple’s circumstances?
(b)Is there a lack of being able to pool resources for the couple as a result of the circumstances?
(c)Is there financial difficulty as a result of the couple’s circumstances?
The Guide also provides at Instruction 2.2.5.50 that:
There must be some degree to which circumstances are outside the couple’s or individual’s control and cannot be changed.
Explanation: If it is reasonably within the individual or couple’s control to improve their circumstances without section 24, generally this should be explored first.
(Original emphasis.)
In the matter Purdie and Secretary, Department of Social Services [2013] AATA 743, Deputy President Hack was not persuaded that s 24(1) poses three questions, rather he saw only one question:
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.
The guide at Instruction 2.2.5.50 also gives more specific information about how the discretion in s 24 applies to a person who is subject to a NARWP:
Subject to all the usual means and assets tests, the discretion to apply section 24 should generally be applied in cases where the couple is in financial difficulty and the partner:
·is not residentially qualified for an income support payment (see example 1), OR
·is subject to the NARWP (see example 2).
…
Example 2: The partner may be living in Australia, but is unable to get an income support payment as they are serving the NARWP.
Explanation: The AAT has indicated that only being ineligible for income support, is very unlikely to constitute a special reason for the purposes of the exercise of section 24, but being in financial difficulty as a result of having a partner who is not residentially qualified for an income support payment or who is subject to the NARWP may constitute a special reason.
…
If there are no additional special circumstances, and subject to all the usual means and assets tests, section 24 should generally be applied in NARWP and not residentially qualified cases where the couple are experiencing financial difficulty. Any additional circumstances also need to be taken into account, and the section 24 decision should be reviewed regularly to ensure that the income support payment recipient’s partner has not recently become eligible for a social security payment, e.g. as a result of a ‘substantial change in circumstances beyond their control’.
(Original emphasis.)
EVIDENCE
The evidence before the Tribunal comprised:
·the ‘T-Documents’ (T1-T28, pp 1-159);
·the Supplementary ‘T-Documents’ (ST1-ST7, pp 1-47);
·Secretary’s Statement of Issues, Facts and Contentions dated 10 January 2019 (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
It is not in contention that Ms Bilanovic and Mr Bilanovic were married and at all material times were not living separately and apart on a permanent or indefinite basis (ss 4(2)(a) and 4(3) of the Act) (Exhibit R1, para. 25). It follows that Ms Bilanovic and Mr Bilanovic would be treated as members of a couple for the purpose of determining the rate of PP Ms Bilanovic was entitled to receive, unless the discretion in s 24 of the Act ought to be exercised.
The Respondent accepts, and the Tribunal agrees, that the s 24(1) discretion should be applied from 28 July 2016, the date Ms Bilanovic was initially granted PPS until
Mr Bilanovic obtained employment, on 13 February 2017 (Exhibit R1, paras. 44-48).
The Tribunal now considers the application of s 24(1) of the Act during the period
13 February 2017 until 9 May 2018.
Ms Bilanovic and her husband went overseas in July 2017 (see [9] above) and after 42 days, being the portability period for her pension, her pension was suspended. On her return Ms Bilanovic lodged a new claim with the required documents. Before the Tribunal,
the Respondent explained the Department’s processing of that claim as follows:
Because the applicant was outside of Australia for less than 13 weeks, rather than processing the new claim the suspension was simply lifted on 15 September.

The applicant continued to receive that pension until a review was done as to her entitlement to the partner - the single rate of pension, and on 9 May 2018 there was a decision made to cancel the applicant’s single rate of pension back from

15 September, and on the basis that she should have been paid the partnered rate from that date. The reasons for that decision were that back in November 2016 the applicant’s partner had been granted a subclass 309 visa, which is a partner visa that has work rights attached to it, so was no longer on the same visa that he was on when she’d originally claimed.
Ms Bilanovic did not dispute this explanation, and in submitting that she was not at fault, cited Departmental advice which stated:
On 19 September you also provided a group certificate from the employer

[for my partner]
for the period of time he has been working. Neither piece of information was detected by the Department until 10 May 2018 when your claim for Parenting Payment Partnered was finalised.
During the period 13 February 2017 to 9 May 2018, Ms Bilanovic was in receipt of PPS and able to pool her resources with her husband. Mr Bilanovic gained the right to work in Australia on 22 November 2016 (T10/56). He commenced work and contributing to pooled financial resources on 13 February 2017 and continued until 1 November 2017, except for the period 14 July 2017 to 15 September 2017 when he and Ms Bilanovic were absent from Australia (T28/127). Mr Bilanovic again worked during the period 6 March 2018 to
13 April 2018 (T20/82).
The Respondent notes that (Exhibit R1, para. 42):
The Applicant contends that she and Mr Bilanovic should not be treated as members of a couple because Mr Bilanovic was subject to a NARWP, was variously out of work and finds it difficult to find work due to a language barrier.
Similarly, the AAT1 decision records: “[t]he applicant formed the view that because her partner was subject to a NARWP, she was entitled to be paid parenting payment (single) for periods when he was not working. This is not correct” (T2/8, para. 14). Ms Bilanovic did not pursue these contentions in the current proceedings.
The evidence is that Mr Bilanovic was unemployed in the periods 2 November 2017 to

5 March 2018, and 14 April 2018 to 9 May 2018. However, the Respondent submits (Exhibit R1, para. 51), and the Tribunal agrees, that he had demonstrated a capacity to work. Relevantly, the Tribunal in the decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nicolaas [2009] AATA 416 considered such capacity relevant to the exercise of the discretion pursuant to s 24 of the Act. The Tribunal said:
18.The inability of a spouse to access social security benefits might constitute “special reasons” for the purposes of s 24 of the Act. I would be less inclined to treat that disability as a special reason, or give it any weight in the exercise of the discretion, if the spouse is able to make a contribution to the household from another source. In this case, Mrs Nicolaas does have the capacity to obtain paid work. She is an intelligent person of working age. She indicated a preparedness to move in order to get a job. Indeed, she gave evidence that she was recently interviewed for a contract position in Darwin. I accept she is more likely to find a job if she has Australian qualifications, but those can be obtained relatively easily…
The decision of the
Federal Court in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 is relevant to the Tribunal’s consideration of Ms Bilanovic’s circumstances. The Court decided that the Act focussed on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension (at [41]–[42]). The view of Deputy President Blow in the matter Croy and Secretary, Department of Social Security

[1996] AATA 730 (at [10]) is also noteworthy:
In my view the discretion conferred by s.24(1) should only be exercised when it is not reasonable for the person in question to be expected to seek the support of the other member of the couple, or when it is not reasonable to expect that other member to give support to the person.
The Guide relevantly provides that the focus should be on whether the couple is able to pool resources, not whether they do pool resources. If the couple can improve their financial situation, but choose not to, a determination under s 24(1) of the Act would not be appropriate.
Having careful regard to the evidence and authorities, the Tribunal is satisfied that
Ms Bilanovic and Mr Bilanovic were not practically prevented from pooling their financial resources in respect of the periods when Mr Bilanovic was employed from
13 February 2017 to 9 May 2018 (the date of cancellation of Ms Bilanovic’s PPS from
15 September 2017) on the basis that:
(a)During the period 13 February 2017 to 9 May 2018 Ms Bilanovic was in receipt of PPS and family assistance payments and was therefore able to pool her resources with Mr Bilanovic.
(b)Mr Bilanovic was granted a provisional partner visa with working rights in Australia on 22 November 2016 (see [7] above). He commenced working, and contributing to pooled financial resources on 13 February 2017, and this employment continued until 1 November 2017, except for a period from 15 July 2017 to 17 September 2017 when Ms Bilanovic and Mr Bilanovic were overseas (T20/82).
(c)
Mr Bilanovic again commenced working on 6 March 2018 until 13 April 2018

(T20/82).
(d)Throughout the period, Mr Bilanovic had the right to work in Australia, worked for the periods shown at (b) and (c) above and thus, demonstrated the ability and capacity for employment.

Had the Tribunal found that Mr Bilanovic was practically prevented from pooling his resources with Ms Bilanovic during the alleged periods of unemployment, which it has not, the pivotal issue would be whether Ms Bilanovic was consequently in financial difficulty. This is because the discretion in s 24(1) of the Act should only be exercised if there is evidence that Ms Bilanovic was also in financial difficulty as a result of being practically prevented from pooling financial resources with Mr Bilanovic. It is not necessary for the Tribunal to consider this issue.
However, in a detailed analysis, the Respondent contends that there is no evidence to suggest that Ms Bilanovic was in financial difficulty following Mr Bilanovic commencing work on 13 February 2017 until 9 May 2018 (Exhibit R1, paras. 55-63). The Respondent’s contention is supported by the documentary evidence and Ms Bilanovic’s oral evidence before the Tribunal and accordingly, is accepted by the Tribunal. The Respondent also opines that the overseas travel by Ms Bilanovic and Mr Bilanovic during the period

14 July 2017 to 15 September 2017 (see [9] above) “appears inconsistent with financial difficulty” (Exhibit R1, para. 50). The Tribunal agrees, noting that Ms Bilanovic told the Tribunal that Mr Bilanovic’s father had paid for their plane travel.
Before the Tribunal, Ms Bilanovic indicated a focus on the debt repayment matter before the AAT1 (see [19] above). With regard to the decision under review in these proceedings, Ms Bilanovic conceded firmly that her PPS was correctly cancelled on

13 February 2017, stating:
I have to agree with you that maybe I should be treated – not maybe – that I should be treated as partnered from that February time until my very first claim was suspended…
[With reference to Mr Bilanovic starting work on 13 February 2017] – Honestly even now I confirm your information, yes, he has been working from then, and I agree that I should be treated as a partnered from that time.
Finally, the Respondent notes, and in the absence of evidence to the contrary the Tribunal agrees, that (Exhibit R1, para. 65):
… there is no evidence that the Applicant complied with information notices requiring her to update her circumstances within 14 days regarding Mr Bilanovic:
d.obtaining a partner visa on 22 November 2016;
e.having commenced employment from 13 February 2017 until

14 July 2017; or
f.recommencing employment from 19 September 2017 to

1 November 2017; or
g.recommencing employment on 6 March 2018 to 13 April 2018.
CONCLUSION
Having regard to all of the evidence, including the honest concessions made by

Ms Bilanovic before the Tribunal, the Tribunal is satisfied that from 13 February 2017 when Mr Bilanovic commenced work until 9 May 2018, Mr Bilanovic had the right to work in Australia and the capacity to do so. The Tribunal is also satisfied that Ms Bilanovic and Mr Bilanovic were not prevented from pooling their resources during that period and that there is no evidence of relevant material change to Ms Bilanovic’s circumstances from

13 February 2017 (commencement of Mr Bilanovic’s employment) to 15 September 2017 (date of cancellation of PPS) to justify the application of the s 24 determination beyond

12 February 2017.
It follows from all the above that the correct and preferable decision is that the discretion in s 24(1) of the Act should not be exercised from 13 February 2017, and that the appropriate date to cancel Ms Bilanovic’s PPS is 13 February 2017, the date when

Mr Bilanovic first commenced employment.
DECISION
The Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant’s Parenting Payment Single be cancelled from 13 February 2017.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

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Associate
Dated: 4 September 2019

Date of hearing: 30 May 2019

Applicant: In person

Representative for the
Respondent: Mr A Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2019] AATA 3250

4 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	30 May 2019
Applicant:	In person
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers