Brawn and Secretary, Department of Social Services (Social services second review)
[2015] AATA 574
•6 August 2015
Brawn and Secretary, Department of Social Services (Social services second review) [2015] AATA 574 (6 August 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1963
Re
Harvey Brawn
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms S Taglieri, Member
Date 6 August 2015 Place
Hobart
The decision under review is affirmed.
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Ms S Taglieri, Member
CATCHWORDS
Age Pension; whether ought not be treated as a member of a couple; nature of discretion and whether special reasons; discretion not exercised.
LEGISLATION
Social Security Act 1991 ("the SS Act") ss 24, 1064
CASES
Sudak and Secretary, Department of Employment and Workplace Relations [2007] AATA 1553
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Cocks v Centrelink [2000] FCA 1248
Secretary of Department of Social Services and Tsimipidaros [1995] AATA 554SECONDARY MATERIALS
Social Security Guide
Oxford English Dictionary
REASONS FOR DECISION
Ms S Taglieri, Member
At all relevant times, Mr Brawn had been granted an age pension. He married in July 2014 he and his wife lived in Vietnam. On 26 November 2014 the Respondent determined that the rate of age pension payable was to be according to the fact that he was a member of a couple[1].
[1] Pursuant to section 1064 of the Social Security Act 1991
On requests for review by Mr Brawn, an Authorised Review Officer and the Social Security Appeals Tribunal both affirmed the original decision.
Mr Brawn does not dispute that he was and is a member of a couple. However, he has sought to persuade the Respondent, the Social Security Appeals Tribunal and now this Tribunal that the discretion available in section 24 of the Social Security Act 1991, ought to be exercised in his case.
Applying the discretion in section 24, would mean that Mr Brawn would receive age pension at a single person’s rate despite the fact he is a member of a couple.
The only issue in dispute on this appeal is whether in Mr Brawn’s circumstances, the discretion in section 24 ought to be favourably exercised.
THE EVIDENCE BEFORE THE TRIBUNAL
At the hearing conducted on 30 July 2015, Mr Brawn adduced evidence about some changes in his income, the exchange rate and provided greater detail about his expenditure[2]. He also gave oral evidence. The Tribunal received all the T Documents into evidence and considered those.
[2] Exhibit 2
Although the Tribunal received evidence about changes in circumstance since November 2014, it must be emphasized that as a matter of law, the Tribunal is obliged to consider whether the decision made on 26 November 2014 to treat Mr Brawn as a member of a couple, is the correct or preferable decision. The Tribunal cannot determine whether it is correct to exercise the section 24 discretion due to factual matters that have transpired since that time. To do so would mean that the Tribunal is exercising jurisdiction it does not have. It would also amount to giving an advisory decision, something which should not be done.[3]
[3] Sudak and Secretary, Department of Employment and Workplace Relations [2007] AATA 1553 at paragraph 16
REASONING BEHIND THE COUPLE RATE BEING LOWER
The rationale behind the lower rate of pension for couples is that they have the capacity to pool resources for the purposes of living, and hence usually the overall income required to meet their expenses is lower.[4] For that reason, the discretion in section 24 is regularly exercised if the facts demonstrate that the pooling of resources is not possible.
[4] Social Security Guide, paragraph 2.2.5.50
The discretion in section 24 is not confined to being exercised only where pooling of resources is not possible, all the circumstances need to be considered to determine whether:
“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.”
I accept that the Authorities set out in the Respondent’s contentions of 29 June 2015, accurately reflect the law applicable to ascertaining when there is special reason for the purpose of section 24.
In substance, for there to be “special reason”, there must be something unusual or different to take the matter the subject of the discretion out of the ordinary course.[5]
[5] Boscolo v Secretary, Department of Social Security [1999] FCA 106 at paragraph 18
THE FACTS OF MR BRAWN’S CIRCUMSTANCES AND DO THEY CONSTITUTE SPECIAL REASON?
Evidence about Mr Brawn’s circumstances and those of his wife are contained in statements provided at Exhibit 2, T4, T5 and T7. Further, as identified in paragraph 6 Mr Brawn gave oral evidence and was cross-examined.
The contentions made and evidence given by Mr Brawn about the “special reasons” not to treat him as a member of a couple, can be summarised as follows:
(a)There had been deterioration in the exchange rate because of devaluation of the Australian dollar, which meant his income had less value and he could not adequately meet expenses and provide for future health needs;
(b)That he cannot work in Vietnam and hence cannot earn the permissible income before pension is affected ($142 per fortnight);
(c)That his wife cannot work in Australia, and they could not afford to live in Australia on his pension income;
(d)That he must incur about $2000 for airfares to return to Australia every 6 months to access medication for his heart condition, because it is not available in Vietnam;
(e)He will incur additional medical costs for an operation he needs to have later this year in Australia.
There is ample evidence that Mr Brawn and his wife do pool resources. Mr Brawn claims that even by pooling resources they cannot meet necessary minimum expenses. He identified disposable income as $434 pw, being made up as follows:
Wife $140 pw ($220 less insurance/tax of $30 & $50 to wife’s mother);
Mr Brawn $292 pw[6]
[6] Based on figures in T7 page 21 of T documents
He identified their combined necessary expenses as $2,388 per month, or $597 pw[7]. His evidence was that the expenses were the same in November 2014. However, he agreed that this included $300 savings per month which he intended to be for future provision for medical emergencies or airfares to Australia for treatment. His evidence was that in the past and now, such costs are being met from his savings, which were $20,000 in November 2014, but were now $13,500.
[7] Exhibit 2
The $300 is not actually an expense and so, accepting his other evidence, I find that his expenses at the relevant time and now are about $522 per week. This is higher than the sum identified by the SSAT, but I believe they misconstrued the evidence by applying evidence Mr Brawn gave about his mother-in-law’s expenses and finding that they were his.[8]
[8] T2, page 5 T documents, para 19 of SSAT decision
Mr Brawn agreed that the cost of living in Vietnam was generally lower than in Australia.
CONSIDERATION
On the evidence received, I am not satisfied that Mr Brawn is forced to live in Vietnam. The ordinary English meaning of forced is something “obtained or imposed by coercion or physical power”.[9] Mr Brawn quite reasonably decided to live with his wife in Vietnam where she could work and where the cost of living was lower. This was a logical and reasonable decision he made of his free will and it cannot be said it was forced. Mr Brawn’s decision to live in Vietnam with his wife enables them to pool resources and they do.
[9] Oxford English Dictionary
If Mr Brawn decided to live in Australia (irrespective of where his wife lived) there may be no benefit from pooling of resources. Either because her resources were fully expended in Vietnam if she lived there or because she could not work if she lived in Australia. This is simply hypothetical and I am bound to make a decision on the actual facts and circumstances of Mr Brawn’s case.
I am not satisfied that reasons at paragraph 13 (b) and (c) are special reasons warranting the exercise of discretion pursuant to section 24. They are distinguishable from Cocks vCentrelink [2000] FCA 1248 or Secretary of Department of Social Services and Tsimipidaros [1995] AATA 554 because Mr Brawn and his wife are pooling resources.
Mr Brawn had at the relevant time and still has capacity to meet from savings, the cost of travel to Australia for medical treatment and for emergencies. The reasons at paragraph 13 (d) and (e) do not constitute special reason. Mr Brawn is worried about when his savings for that purpose will run out, but that is not special reason on the authorities and most people worry from time to time about their future financial security. This is not an unusual feature which distinguishes him from most.
Variations in exchange rate affect all persons who travel, live or work overseas. There is therefore nothing unusual or different in the way the exchange rate may influence the value of income or expenses incurred by Mr Brawn any differently to others. I am not satisfied therefore that this reason is special.
The evidence establishes that the combined income of Mr Brawn and his wife falls short of their expenses. The shortfall would be less if Mr Brawn’s wife did not divert $50 per month of her income to her mother. Further, although some expenses, such as cable TV, internet and social life (totalling $199 per month), should not be regarded as excessive, they cannot be regarded as absolutely essential.
Regardless, any shortfall between expense and income is capable of being met from existing savings. As such, I do not regard this aspect of Mr Brawn’s circumstances as capable of constituting “special reason”.
Having considered all the evidence, regrettably for Mr Brawn, there are no “special reasons” that warrant the exercise of the discretion not to treat him as a member of a couple. The application is dismissed and the decision under review affirmed.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member
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Administrative Assistant
Dated 6 August 2015
Date(s) of hearing 30 July 2015 Applicant In person Solicitors for the Respondent Mr Brian Sparkes Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Appeal
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