Care and Secretary, Department of Social Services (Social services second review) - [2023] AATA 140

Care and Secretary, Department of Social Services (Social services second review) [2023] AATA 140 (13 February 2023)
Division:GENERAL DIVISION
File Number: 2022/2331
Re:John Salvo Care
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:R Cameron, Senior Member
Date:13 February 2023
Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
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R Cameron, Senior Member
Catchwords
ADMINISTRATIVE LAW – whether applicant entitled to single rate or partnered rate of Age Pension – s 24(1) Social Security Act 1991 (Cth) – whether applicant should not be treated as a member of a couple for a ‘special reason’ in the particular case – consideration of the requirement for ‘special reasons’ – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Cases
Ahamed v Secretary, Department of Social Services (2020) 353 FLR 345
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Hammelswang and Secretary, Department of Social Services (Social services second review) [2015] AATA 905
Massoud and Secretary, Department of Social Services (Social services second review) [2017] AATA 1366
Pilfoot and Secretary, Department of Social Services (Social services second review) [2017] AATA 905
REASONS FOR DECISION
R Cameron, Senior Member
INTRODUCTION

The applicant seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (‘AAT 1’) on 23 February 2022, which affirmed a decision made by a Centrelink authorised review officer (‘ARO’) on 22 December 2021 that the applicant would be paid the aged pension at the single rate until 20 October 2021. (‘the reviewable decision’).[1]
[1] The reviewable decision is document T2 of the T documents.
THE HEARING
No oral evidence was given at the hearing of this application. The matter proceeded by way of reception into evidence of documentary evidence, being the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 and called the ‘T’ documents and the Supplementary ‘T’ documents.[2] Additionally, the parties made oral submissions during the hearing. The respondent lodged with the Tribunal and provided to the applicant a Statement of Issues, Facts and Contentions on 3 October 2022.
[2] The supplementary ‘T’ documents are referred to hereinafter as the ‘ST’ documents.
THE ISSUES FOR DETERMINATION BY THE TRIBUNAL
It is apparent from the materials and the submissions lodged by the respondent that two issues arise for determination by the Tribunal. They are whether the applicant:
(a)is a member of a couple as and from 21 October 2021; and
(b)may be treated as not being a member of a couple pursuant to section 24 of the Social Security Act 1991 (‘the Act’) from 21 October 2021.
RELEVANT BACKGROUND FACTS
Most of the facts in this case are not controversial.
The initial dealings between the applicant and the relevant department occurred on 29 January 2013 when the applicant qualified for a disability support pension (‘DSP’). He was at that time residing alone in Palmer Road, Shepparton in the State of Victoria.
Subsequently, on 5 December 2020, the applicant qualified for and became a recipient of the age pension. Upon becoming the recipient of the age pension, he was paid at the single rate, which was then approximately $1,037 per fortnight.
The applicant was married in the Philippines to his wife on 13 May 2017.[3] At the time of the marriage, Mrs Care was not a citizen or permanent resident of Australia, did not hold an Australian visa and continued to reside in the Philippines.
[3] For the purposes of convenience, the applicant’s wife will hereinafter be referred to as ‘Mrs Care’.
Following his marriage, the applicant returned to Australia and continued to reside alone at the Palmer Road, Shepparton address.
Mrs Care moved to Australia on 25 August 2019. Subsequently, on 8 April 2020, she was granted a Bridging Visa A (Subclass 010). The Bridging Visa gave her the unlimited entitlement to work in Australia. She was granted a Temporary Partner Visa (subclass 820) on 28 September 2021. The Temporary Partner Visa enables Mrs Care to continue to live and work in Australia without restriction, pending the outcome of her application for a Permanent Partner Visa.
Several events then occurred that led to the respondent reviewing the applicant’s age pension rate, which is at the heart of this application.
The applicant notified the respondent agency on 6 December 2020 that he was deriving earnings from employment at an establishment known as ‘Gino’s Pizza and Pasta’ in Shepparton. The information that he provided to the agency was that he earned approximately $300 per fortnight. This sum was earned for approximately 20 hours work.
In a telephone call to the agency on 15 April 2021, in which he made a general enquiry concerning the age pension, the applicant repeated that he was paid $300 per fortnight for 20 hours of work. It appears that in that conversation with an officer of the agency, the applicant informed the officer that Mrs Care had commenced working. Following this enquiry and telephone discussion with an officer of the agency, the agency forwarded to him a document known as a ‘Partner Details’ (‘Mod P’) form, with a request that it be completed and returned as his partner was now working, and that they would need to be linked on the agency’s system.
The applicant completed the Mod P form on 19 April 2021. The form was signed by the applicant and Mrs Care.[4] The content of the signed Mod P form is referred to in its entirety for its full force and effect. However, an examination of the document reveals the following facts:
(a)from 12 December 2020, Mrs care had been working a total of 10 hours per fortnight at Gino’s Pizza and Pasta, for which she earned $150;
(b)the applicant and Mrs Care resided together at the Palmer Road, Shepparton address;
(c)the applicant and Mrs Care had a single bank account with the National Australia Bank (‘NAB’); and
(d)The estimated current market value of their household contents and personal effects was $6,000.
[4] A copy of the Mod P form dated 19 April 2021, signed by both the applicant and Mrs Care, is document T5 of the T documents.
Prior to the submission of the Mod P form to the agency on 19 April 2021, the agency had not been informed that Mrs Care arrived in Australia on 25 August 2019, or that she was entitled to work in Australia as and from 8 April 2020, or that she had been working at Gino’s Pizza and Pasta as and from 12 December 2020. The receipt of this information prompted the agency to undertake a review of the applicant’s age pension rate entitlement. This review led to a decision made on 20 April 2021 (‘the 20 April 2021 decision’), which concluded that the applicant was to be treated as a member of a couple as and from that date because Mrs Care was by then earning an income and Mr and Mrs Care were able to pool their resources.[5]
[5] T15, page 117 of the T documents.
The applicant sought a review of the 20 April 2021 decision. Following his request for a review, the applicant advised the respondent agency on 8 June 2021 that he had ceased work due to medical conditions, and that he had been declaring the earnings of both Mrs Care and his own from Gino’s Pizza and Pasta in his own name.[6] Additionally, during the review process the applicant had a discussion with an officer of the respondent agency, in which he informed that officer that he presently had $33,000 in his bank account, which was part of an inheritance he received from his parents in October 2021. He advised the officer that the inheritance was $60,000. Some of those funds had been used by him to pay off debts and on other expenditure.
[6] The applicant provided payslips which recorded that he last worked at Gino’s Pizza and Pasta on 4 April 2021. He also advised the agency that he had been told by an officer of the agency to report both incomes in his name because Mrs Care was not eligible for any social security payments. The applicant informed the respondent in a questionnaire that he was requested to complete, attached to a letter sent to him from Centrelink on 1 June 2021. The questionnaire was completed by the applicant, signed 8 June 2021, and returned to the agency. The declaration that Mrs Care’s income had been added to the applicant's income and not as partner income is contained on page 37, and forms part of document T7, of the T documents.
An ARO, on 22 December 2021, set aside the 20 April 2021 decision (‘the 22 December 2021 decision’).[7] The ARO, in reaching the 22 December 2021 decision, concluded that, based on the available information and discussion with the applicant, they were satisfied that there was a special reason not to treat the applicant as being a member of a couple until 20 October 2021. The 22 December 2021 decision then stated that, by reason of such fact, the applicant could be paid the age pension at the single rate until 20 October 2021. The reasons relied on by the ARO in reaching this decision were that the applicant was not employed, and Mrs Care’s employment income was very little. Also, Mrs Care was unable to access income support payments at that time.
[7] The decision of the authorised review officer of 22 December 2021 is document T8 of the T documents.
The reason relied upon by the ARO in determining that the applicant would be paid the age pension at the partnered rate from 21 October 2021 was that they found the special reason for the purpose of section 24 of the Act ceased to exist as and from that date. The ground relied upon by the ARO in reaching this conclusion was that, on 21 October 2021, the applicant had $33,000 available in his NAB bank account. Therefore, there was no longer a financial difficulty in the relevant sense; and they concluded there were no barriers to stop the applicant and Mrs Care pooling resources.
The applicant sought a review of the 22 December 2021 decision in AAT 1. As noted above, AAT 1 affirmed the 22 December 2021 decision.
THE APPLICANT’S POSITION
The applicant has relied on several grounds to seek to have the reviewable decision set aside. Firstly, he contends that he had been informed by an officer of the respondent at Centrelink in Shepparton that any savings he had would not impact his pension entitlement; in particular, being paid the age pension at the single rate of $988 per fortnight. He seeks restoration of the age pension to this rate. Secondly, he emphasises that his wife does not receive any payment from Centrelink because of a two-year waiting period that she must undergo before she obtains permanent residency.[8]
[8] These reasons are articulated in the applicant's ‘Application for Review of Decision’, lodged with the Tribunal on 21 March 2022, document T1 at page 4 of the T Documents.
Additional grounds relied upon by the applicant in the material before the Tribunal include that he would experience financial hardship if he was paid the age pension at the partnered rate; and that his and his wife’s respective medical conditions amount to a special reason within the meaning of section 24 of the Act, justifying an exercise of discretion conferred by that section in his favour.
CONSIDERATION
Section 4(11) of the Act prescribes that a person is ‘partnered’ for the purposes of the Act if they are a ‘member of a couple’.
Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people for the purposes of determining whether they fall within the definition of ‘member of a couple’ within the meaning of the Act, the respondent is to have regard to all the circumstances of the relationship. This includes, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the people, and the nature of the people’s commitment to each other.
When the Tribunal has regard to all the circumstances of the relationship between the applicant and Mrs Care, it finds that they are members of a couple for the purposes of the Act within the meaning of section 4(2). The Tribunal did not understand the applicant, in any material that was before it, to seriously dispute that this was the case. In any event, there is ample evidence before the Tribunal to justify reaching this conclusion. The relevant facts include that the couple were married on 17 May 2017. There was no suggestion that the marriage was anything other than properly conducted, legal, and recognised under Australian law. Additionally, both the applicant and Mrs Care reside permanently at the Palmer Road, Shepparton address. The applicant readily conceded that their marriage was enduring. Indeed, the applicant outlined in some detail to the Tribunal in his submissions about the significant medical conditions that afflict him. These conditions include a serious heart condition which resulted in surgery in 2020. He suffers from an irregular heartbeat and is required to take 10 tablets every day. Additionally, he is under the regular supervision of a cardiologist. He also suffers from diabetes. It was in this context that the applicant submitted that his wife was indeed his carer. The Tribunal infers, particularly from the nature of the submissions made by the applicant, that it is a relationship of fondness and affection.
Given these findings that the applicant and Mrs Care are members of a couple, the sole remaining issue for determination is whether there is a special reason not to treat the applicant as a member of the couple by reason of the application of section 24 of the Act.
It is appropriate for the purposes of these reasons to reproduce section 24(1) of the Act. It provides that:
(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 approach to be adopted in construing and applying section 24 (1) has been outlined in several authorities. A useful summary of the approach to be adopted was provided by French J in Boscolo v Secretary, Department of Social Security (‘Boscolo’).[9] He stated that:
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) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be “special” in relation to animals generally but “…when you are speaking of poets, he may need to be a Milton” - Holpitt v Varimu (1991) 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations – Jess v Scott (1986) 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules – Beadle (supra) at 228. Circumstances or reasons will not necessarily fall outside the designation of “special” because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise – Re Hutchins; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 74 ALR 455 at 473. 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 - Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional – Secretary, Department of Social Security v Hodgson (1992) 108 ALR 322. In Beadle (supra) the Full Court, having concluded that the term “special” was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
The decision-making process under s 24 is notionally in two stages. First, is the assessment whether there is a special reason in the particular case for which the Secretary is satisfied that the person the subject of his discretion should not be treated as a member of a couple. There follows the determination that the person is not to be treated as a member of a couple. The latter determination involves the exercise of discretion although as a practical matter assessment and determination will tend to be rolled up as one decision.[10]
[9] (1999) 53 ALD 277.
[10] Boscolo at [18]-[19].
Riethmuller J in Ahamed v Secretary, Department of Social Services (‘Ahamed’)[11], in an accurate summary of the authorities, concluded that what does emerge from them is that couples are expected to pool resources.[12]
[11] (2020) 353 FLR 345.
[12] Ahamed at [16]-[17].
With respect to what the applicant may have been told by an officer of Centrelink at Shepparton, the question ultimately has to be determined by a decision-maker properly applying the relevant section of the Act, which in this case, is section 24. The Tribunal undertaking a rehearing, anew, let alone the ARO or AAT 1, regrettably for the applicant, is not bound by what may have been said by such officer to the applicant.
The respondent, correctly in the view of the Tribunal, identifies several facts or matters that emerged from the material before the Tribunal, which demonstrate that the applicant and Mrs Care can and do pool their resources. By reason of this fact alone, there is not a ‘special reason’ within the meaning of section 24 of the Act that enlivens the discretion to treat the applicant and Mrs Care as members of a couple. These facts will be summarised below. They are not identified or listed in any particular order of priority or weight.
The applicant and Mrs Care conduct a joint bank account. That bank account is used for receipts of all income, including the age pension payment which is paid into such an account. Amongst other things, the joint bank account is used to pay recurring expenditure including rent, utilities, Internet, telephone, medication and private health insurance premiums for both of them.
As noted above, they were both receiving income from Gino’s Pizza and Pasta in cash. Mrs Care worked there until approximately 25 May 2022. The Tribunal finds that the income earned by both of them whilst working at Gino’s Pizza and Pasta was pooled and applied towards their joint expenditure.
Mrs Care previously worked as a casual employee at Gino’s Pizza and Pasta. She is currently unemployed. However, there was no evidence to suggest that she has a practical inability to work. The evidence suggests that whilst finding work in the Shepparton region may pose some challenges, Mrs Care, nonetheless, has the ability to find work if it is available.
The applicant inherited $60,000 in October 2021. At the time that the reviewable decision was made, and for that matter the 22 December 2021 decision, the applicant had approximately $33,000 remaining. The applicant spent approximately $27,000 of the inheritance on several items that were categorised by the respondent as ‘discretionary expenditure’. The Tribunal agrees. In the context of applying section 24 of the Act and the exercise of the discretion contained therein, it is relevant that this discretionary expenditure was undertaken by the applicant rather than the funds being applied towards recurring expenditure arising from day-to-day living. The respondent contended that the applicant should have been more prudent in application of the inheritance rather than seeking the exercise of the discretion conferred in the respondent by section 24 of the Act. The Tribunal agrees.

With respect to the applicant disbursing a portion of his inheritance on items of discretionary expenditure as observed above, the respondent referred the Tribunal to a decision of Member Grigg in Pilfoot and Secretary, Department of Social Services (Social services second review) (‘Pilfoot’).[13] The Member found that depleting funds that were held by the applicant in that case on what was discretionary expenditure did not give rise to a ‘special reason’ to explain why he was in his current financial position. She further observed that where people are reliant upon their savings they have managed to accumulate in order to pay for their daily expenses, they should be extremely careful about how that money is spent, and to whom it is lent and on what terms. In such circumstances, she found that no special reason existed to enliven the discretion in section 24.[14] That finding is apposite to this case.
[13] [2017] AATA 905.
[14] Pilfoot at [37] and [40].
Another question arises with respect to the issue of the applicant’s contention that if he is not paid the age pension at the single rate, he will be in severe financial hardship. This is contended by the applicant to arise because Mrs Care is not eligible to access the social security system. The respondent counters this contention by submitting, accurately in the view of the Tribunal, that if the applicant reaches a position where he has no remaining funds, then and only then, is he able to contact the agency and seek an exercise of the discretion pursuant to section 24 of the Act. The issue, however, for this Tribunal in this application, is that there is no ‘special reason’, being something unusual or different in the relevant sense, justifying an exercise of the discretion under section 24 of the Act.
Concerning the applicant and Mrs Care’s medical conditions, and the expenses that they incur as a result, the Tribunal acknowledges that they pose a financial challenge for them. As noted above, however, these expenses are met by their health insurers and, insofar as the expenses are not otherwise covered, from the funds that they jointly pool in their bank account. This does not demonstrate, nor is evidence of, an inability to pool resources. Regrettably, as people age, it is more probable than not that their exposure to increased medical expenses will be a reality. It is a common feature faced by people in the position of the applicant and Mrs Care. Therefore, there is nothing unusual or different by reason of the medical expenses that they face to take the matter the subject of the section 24 discretion out of the ordinary course.
The respondent referred to several previous decisions of this Tribunal that have considered the application of an exercise of the discretion under section 24 of the Act with respect to applicants who suffer from a variety of medical conditions. The recurring theme of those authorities is that the fact that someone suffers from a medical condition and may even be in considerable pain, is, in and of itself, not unusual. In determining whether such medical conditions amount to a ‘special reason’ within the meaning of section 24, there needs to be an assessment of whether the ill-health experienced by the applicant is more severe than the majority of recipients of the benefit in question.[15]
[15] The cases of Hammelswang and Secretary, Department of Social Services (Social services second review) [2015] AATA 905 and Massoud and Secretary, Department of Social Services (Social services second review) [2017] AATA 1366 are specifically referred to.
There are several facts that are relevant to a finding that the medical conditions of both the applicant and Mrs Care are not something unusual or different, so as to amount to a special reason within the meaning of section 24 of the Act.
As noted earlier, the applicant has a heart condition and diabetes. Mrs Care suffers from diabetes. There is no evidence before the Tribunal to suggest that these conditions suffered by the applicant and his wife are more severe than the majority of aged pension beneficiaries. It should be borne in mind that the applicant is currently 70 years of age, and it is not uncommon for medical conditions of these kinds to be suffered by people in that age range. Similarly, Mrs Care’s condition of diabetes is not uncommon for a woman of her age. There is also no evidence to suggest that the conditions suffered by Mrs Care prevents her from obtaining work, whatever that may be. Indeed, the fact that both the applicant and Mrs Care have worked would indicate that, despite any medical conditions from which they have suffered, they were able to work, at least on a limited capacity. Therefore, once again, these facts do not justify the exercise of the discretion contained in section 24 as they are not unusual or different enough to take the subject matter of the discretion contained in that section out of the ordinary.
Given the matters outlined above with respect to the second issue for determination, the Tribunal concludes that the discretion contained in section 24 of the Act will not be exercised in the applicant’s favour.
DECISION
By reason of the foregoing matters, the Tribunal concludes that the correct and preferable decision is to affirm the reviewable decision.

42. I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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Associate
Dated: 13 February 2023

Dates of hearing:
20 January 2023

Applicant:

Advocate for the Respondent:

Self-represented

Stefana Doslo

Solicitor for the Respondent: Services Australia