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

Chand and Secretary, Department of Social Services (Social services second review) [2020] AATA 4365 (3 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1349
2020/1350

Re:Hem Chand
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:3 November 2020
Place:Sydney

The decision under review, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 February 2020, is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Newstart Allowance – rejection of applications – whether applicant was a member of a couple – financial aspects of relationship – nature of commitment – social aspects of relationship – sexual relationship – nature of household – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 18B
Social Security Act 1991 (Cth) ss 4, 1064, 1068-G1
CASES
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Cullinane and Secretary, Deptartment of Family and Community Services [2004] AATA 789
Pelka v Secretary, Department Family Community Services (2006) 151 FCR 546
REASONS FOR DECISION
Mr S Evans, Member
3 November 2020

Hem Chand (“the Applicant”) applied for Newstart Allowance (“NSA”) and Disability Support Pension (“DSP”) in 2019. Mr Chand’s applications were rejected by the Department of Human Services, now known as Services Australia (“the Secretary”), on the grounds that he and his wife’s combined income made him ineligible for the benefits. Mr Chand contends that he and his wife are separated and that consequently his wife’s income should not affect his eligibility.
INTRODUCTION
History of the application
Mr Chand applied for NSA and DSP on 18 June 2019. His applications were rejected, and Mr Chand sought review of the rejection decisions. An Authorised Review Officer (“ARO”) at the Department of Human Services affirmed the decision to reject Mr Chand’s applications on 20 December 2019. Mr Chand sought review of the decision of the ARO at the Social Services and Child Support Division (“AAT1”) of the Administrative Appeals Tribunal. On 28 February 2020 the AAT1 affirmed the decision to reject his applications for NSA and DSP (“decision under review”). Mr Chand now seeks review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (“the Tribunal”).
HEARING
The matter was heard on 11 August 2020. Mr Chand and the representative for the Secretary appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
Mr Chand’s evidence
Mr Chand’s application for DSP was initially rejected on 28 November 2019 following his failure to respond to a request for information relating to his bank accounts.
Mr Chand provided no submissions or new evidence prior to the hearing. He called no witnesses. Shortly after the hearing commenced, Mr Chand was asked to make an affirmation in anticipation of him providing oral testimony. Mr Chand expressed his frustration at being required to provide evidence to the Tribunal as in his view he had provided adequate explanation to previous decision makers.
It was explained to Mr Chand that the Tribunal would conduct a de novo review on the merits of his case and that he was expected to provide evidence in support of his application. However, Mr Chand subsequently hung up on the hearing and afterwards the Tribunal was unable to contact him.
In the interests of certainty, the Tribunal has made a decision on Mr Chand’s application based on the documentation before the Tribunal.
For the reasons which follow, the decision under review will be affirmed.
RELEVANT LEGISLATION
Subsection 4(2) of the Social Security Act 1991 (Cth) (“the Act”) defines a “member of a couple” and sets out when a person is considered to be a member of a couple:
Member of a couple—general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
Subsection 4(3) of the Act further provides:
Member of a couple—criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)     any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)    any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)   any legal obligations owed by one person in respect of the other person; and
(iv)   the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i)     any joint responsibility for providing care or support of children; and
(ii)    the living arrangements of the people; and
(iii)   the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)     whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)    the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)   the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i)     the length of the relationship; and
(ii)    the nature of any companionship and emotional support that the people provide to each other; and
(iii)   whether the people consider that the relationship is likely to continue indefinitely; and
(iv)   whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe (as he then was) provided the following useful analysis:
Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
When deciding whether or not a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3). The decision-maker must specifically consider the “total picture of the relationship created by all of these factors”; Pelka v Secretary, Department Family Community Services (2006) 151 FCR 546.
Deputy President J W Constance said in Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63]:
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
ISSUES TO BE DETERMINED
The issues to be determined are:
(a)whether Mr Chand was a member of a couple for the purposes of subsection 4(2) of the Act at the time of his claims for NSA and DSP;
(b)if so, whether Mrs Chand’s income and assets were required in order to determine his qualification for NSA and DSP; and
(c)whether the decisions to reject his claims for NSA and DSP were correct.
EVIDENCE AND FACTS
Mr Chand did not give oral evidence, call any witnesses or provide any additional documentary evidence in support of his application. The Tribunal has before it the section 33 T-documents and the factual summary provided by the Secretary in its Statement of Facts, Issues and Contentions. These sources have been relied on in setting out the key facts as follows.
Mr Chand is 62 years of age and lives with his wife, Mrs Chand, his son, daughter-in-law and grandchildren. The house he resides in is owned by his son. On 18 June 2019 Mr Chand applied for both NSA and DSP and in his applications claimed that he and Mrs Chand separated on 4 March 2019.
On 25 July 2019 Mr Chand submitted a Relationship details – Separated under one roof form in which he submitted that he was separated from Mrs Chand and did not have an intention to reconcile with her “at the moment”. He wrote that they each make their own decisions and have no obligations to each other. They own no property together and do not holiday together.
On 23 September 2019 Mrs Chand submitted a Relationship details – Separated under one roof form in which she confirmed that she and Mr Chand separated on 4 March 2019. She submitted that she did not know for how long she would live at the same address as Mr Chand but that there was “no” chance that she and Mr Chand would reconcile. Neither Mrs Chand nor Mr Chand have told their family about the separation as it is a “personal problem”.
In his application for review Mr Chand writes:
There was a misunderstanding of the member on certain issues. It was conceived a different way. My witness said something else and she understood something else. Most of the things wrongly considered my Tina previously was simply taken into account and supported. I am the one suffering and know the reality. There is defiantly a need for a review to seriously look at the matter and make appropriate decision. This has been going on since June last year.
[errors in original]
CONSIDERATION
In considering the financial aspects of their relationship, it is submitted by the Secretary that as Mr Chand and Mrs Chand remain legally married both parties are likely to benefit from each other’s estate. Mrs Chand does not have a will or life insurance, but Mr Chand is the nominated beneficiary under her superannuation. The Secretary concedes that there is no evidence that Mr Chand holds any joint assets or bank accounts with his wife.
Mrs Chand is employed full time and has more than $42,000 in savings but has stated that she does not provide any financial support to Mr Chand.
Mr Chand and his wife have two adult children and reside with their son in a house which Mr Chand’s son owns. They sleep in separate bedrooms and use separate bathrooms where possible. The ARO notes dated 20 December 2019 indicate that Mr Chand’s daughter-in-law does the cooking and most of the household chores.
Mr Chand and Mrs Chand claim not to communicate with each other. The Secretary submits that this evidence is inconsistent with evidence which suggests Mr and Mrs Chand cooperated in completion of certain information provided to the Secretary. It is noted in the Secretary’s submission that both provided almost identical answers in their respective Relationship details – Separated under one roof forms. For example, when addressing the question of whether they provide help to each other when one is ill, Mrs Chand wrote “yes, when severe chest pain”. Mr Chand similarly answered “yes. When I have severe chest pain”. On the basis of the similarity in their respective submissions, the Tribunal accepts that there is a degree of cooperation and communication between Mr Chand and his wife and that Mrs Chand continues to provide support to Mr Chand if he suffers from any chest pain.
Mr Chand maintains that neither he nor his wife have told others about their separation because they see it as a personal problem and not something to be aired in public. Addressing the question “do relatives, friends or regular associates… consider you and the other person to be partnered?” Mr Chand submitted that “we haven’t told them. They are not aware. I think it is my family problem and keep it with me”. Mrs Chand answered “they do not need to know. It is my personal problem”.
The Secretary submits that despite Mr Chand and Mrs Chand agreeing that they no longer want to be together, the fact that they have so far avoided legally dissolving their relationship is indicative of a partnership where they wish to continue to hold themselves out as a member of a couple.
Mr Chand contributes towards the electricity, telephone and internet bills. He also shares the expenses of food and housekeeping items with his son. Mrs Chand stated that she shares the payments of the telephone and internet bills with her son and pays the council rates and water bills.
Mr Chand and Mrs Chand have both stated they do not share a sexual relationship, which is accepted.
In April and May 2019 Mr Chand was in Fiji to visit his dying nephew. Mrs Chand also visited at that time and Mr Chand, Mrs Chand and their daughter returned to Australia together. Mr Chand also travelled overseas from 6 October 2019 and conceded to the AAT1 that he and Mrs Chand travelled to India together on a pre-planned trip.
Having regard to all the circumstances of the relationship, including the matters set out in subsection 4(3) of the Act, I have formed the opinion that Mr Chand and Mrs Chand were members of a couple at the time of Mr Chand’s applications. The factors which show Mr Chand and Mrs Chand were members of a couple are:
·they live together;
·they travelled overseas together on two occasions in 2019;
·they have not told their friends or family they are no longer in a relationship;
·they are still married and have expressed a desire not to legally separate; and
·they have the ability to pool financial resources and do so by contributing to utility bills with they pay directly or through their son.
Having determined that Mr Chand was a member of a couple during the relevant period, the Tribunal now considers if Mrs Chand’s income should be taken into account when determining Mr Chand’s eligibility for NSA and DSP.
Section 1068-G1 of the Act contains the income test for NSA. It provides that a partner’s ordinary income should be included when determining an applicant’s maximum payment rate.
Similarly, the Pension Rate Calculator for DSP recipients referred to in section 1064 of the Act requires that if a person is a member of a couple they will be treated as pooling their resources. In calculating a maximum payment rate the couple’s ordinary incomes should be combined and divided by 2.
Consequently, the Tribunal is satisfied that it was appropriate that Mrs Chand’s income was taken into consideration when determining if Mr Chand was eligible for NSA and DSP. The Tribunal is satisfied that the Secretary was correct to reject Mr Chand’s applications.
CONCLUSION
The evidence before the Tribunal supports the conclusion that Mr Chand was a member of a couple with Mrs Chand for the purposes of subsection 4(2) of the Act at the time Mr Chand applied for the benefits. For the reasons stated above, the Tribunal is satisfied that the Secretary was correct to reject Mr Chand’s applications for NSA and DSP as affirmed in the decision under review.
DECISION
The decision under review, being the decision of the AAT1 dated 28 February 2020, is affirmed.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 3 November 2020

Date(s) of hearing: 11 August 2020

Applicant: In person

Solicitors for the Respondent: Services Australia

[2020] AATA 4365

3 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	11 August 2020
Applicant:	In person
Solicitors for the Respondent:	Services Australia