Chaplin; Secretary, Department of Employment and Wrokplace Relations and

[2007] AATA 1371

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1371

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No N2006/0029

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And WAYNE CHAPLIN

Respondent

DECISION

Tribunal Senior Member M D Allen  

Date28 May 2007

PlaceSydney

Decision The decision under review is AFFIRMED.

..................[sgd].....................

M D Allen   Senior Member

CATCHWORDS

SOCIAL SECURITY – whether Respondent should not be treated as a member of a couple – requirement that circumstances refer to the Respondent individually and not as a member of a couple – the fact of marriage not to be ignored in assessing circumstances – effect upon Respondent of the actions of his wife’s family towards the couple – Tribunal satisfied that a special reason exists to regard the Respondent as a single person – the decision under review is affirmed

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531.

Beadle v Director-General of Social Security (1985) 60 ALR 225

Dranich Nicov, Centrelink [2003] FCA FC 133

REASONS FOR DECISION

28 May 2007

1. In these proceedings the Secretary of the Department of Employment and Workplace Relations seeks to set aside a decision of the Social Security Appeals Tribunal that on 22 December 2005 exercised the discretion granted by subsection 24(1) of the Social Security Act 1991 and directed that the Respondent not be treated as a Member of a couple.

2. Subsection 24(1) Social Security Act reads as follows:

“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.”

3.      The circumstances of the Respondent are complicated by the manner in which his father-in-law has arranged the financial affairs of his wife and as a result the financial affairs of the couple.

4.      Both the Respondent and his wife have intellectual impairments. The Respondent was at one time employed in a State Government Department but was retrenched in 1996.  Mrs Chaplin worked originally at the Bible Society, and later, in an arrangement between her father and Ascham School, at that school until March 2003.

5.      There is no dispute that the degree of impairment suffered by both Mr and Mrs Chaplin qualifies them to the payment of Disability Support Pension.  Their pensions were however cancelled in 2001 due to the value of Mrs Chaplin’s assets.

6.      Mrs Chaplin is the beneficiary of a number of discretionary trusts established by her father and other family members.  The details of the trusts are outlined in the Applicant’s Statement of Facts & Contentions and not disputed by the Respondent.  Suffice it to say that as at 30 June 2004, Mrs Chaplin’s assets amounted to at least $744,588.00 which sum precludes the payment of Disability Support Pension to both the Respondent and Mrs Chaplin.

7.      Following the cancellation of their Disability Support Pensions, the Respondent’s father-in-law Mr Sinclair-Hill commenced to pay a replacement amount to the Chaplins.  Originally this was the sum of $500.00 per fortnight paid into their joint bank account.  Payment was then increased to $700.00 per fortnight.  Despite requests from the Respondent and his parents Mr Sinclair-Hill refuses to increase the amount he pays to the couple, although it is acknowledged by both parties to these proceedings that this amount is less than they would be entitled to receive were they in receipt of the maximum rate of Disability Support Pension.

8.      In addition to the amount of $700.00 per fortnight, Mr Sinclair-Hill pays to his daughter a sum of $500.00 per month as an allowance.  Mr Sinclair-Hill also supplies the Chaplins with meat from time to time and pays for a house cleaner, and for medicines.

9.      Mr and Mrs Chaplin live in their own home at Ashfield.  This home was bought with assistance from Mr Sinclair-Hill although Mr Chaplin paid him back while he was working.  The Chaplins are responsible for all outgoings connected with the house, eg council rates, electricity and gas.

10.     A result of the cancellation of the Disability Support Pensions previously paid to Mr and Mrs Chaplin is that they are not entitled to a Pensioners’ Concession Card.  This card would allow access to discounts on water and council rates, gas, electricity and transport. 

11.     Prior to the granting of Disability Support Pension to the Respondent, following the decision of the Social Security Appeals Tribunal, the Respondent was considerably disadvantaged by his failure to be granted not only the Disability Support Pension but the associated benefits of their Pensioners’ Concession Card.  The amount the Respondent receives from Mr Sinclair-Hill is less than the amount of a Disability Support Pension.  Currently taking into account the $350.00 per fortnight – being the Respondent’s share of the sum paid by Mr Sinclair-Hill into the joint bank account – and a small amount of pension from the investment of his redundancy payment, the Respondent receives $517.00 per fortnight Disability Support Pension.

12.     Mrs Chaplin is not aware of the extent of the Trusts in which she is a beneficiary or the assets held.  In his Statement of Facts & Contentions the Applicant discusses the possibility of Mrs Chaplin taking action to either sue for breach of trust or to seek a change of Trustees as prima facie, there has been a breach of trust in the Trustees failing to make any distribution to her.  While accepting that possibility the Respondent submitted there were three very practical difficulties in Mrs Chaplin’s taking that step.

13.     The first difficulty is that Mrs Chaplin has a reluctance to force any issue with her father.  She may well consent to initiate proceedings one day but resile from that position later.  She would have, at least initially, to fund the proceedings and her father has managed to ensure that the couple are in straightened financial circumstances, and finally there are doubts whether Mrs Chaplin is intellectually capable of giving instructions and bringing an action in her own name, and it is entirely probable that a tutor would have to be appointed.

14.     In any event these possible practical deterrents to taking action are personal to Mrs Chaplin and as pointed out by French J. in Boscolo v Secretary Department of Social Security (1999) 90 FCR 531, the question of whether a special reason for the purposes of ss24(1) of the Act exists is restricted to the circumstances of the Applicant for relief. As the Court said, at p 536:

“It is of importance in the present case to note that s24 requires the decision-maker to focus on the position of one person, not a couple”. 

Later at line 22 on the same page, French J. said:

“The Act requires the decision-maker consider the circumstances of the person who is claiming to be paid the benefit as single rates………”

15.     I must, therefore, look solely at the circumstances of the Respondent to ascertain whether a special reason exists.  In Boscolo, supra, French J. at p 535, equated the term “special reason” with the term “special circumstances” and referred specifically to the well-known case of Beadle v Director-General of Social Security (1985) 60 ALR 225.

16.     The term “special circumstances” was discussed in a joint Full Court judgment in Dranichnikov v Centrelink [2003] FCA FC 133.  At paragraphs 65 & 66 the Court said:

“65.The decision-maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s101. That equates “special circumstances”, as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance, Judge in Beadle v Director-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J. in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s102(1)(a) of the Social Security Act 1947(Cth). Their Honours point out that the question of whether there were special circumstances was one for the decision-maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words “unusual, uncommon or exceptional” come, was not actually affirmed by the Full Court.

66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred.  Again that is not a matter to which the decision-maker apparently averted.  Other cases which have considered analogous words such as “special reasons” have attended to conclude, albeit in different context, that what is required will be circumstances which distinguish the case in consideration from the usual case.  There will be a requirement that the circumstances are such that takes the case out of the ordinary:  Jess v Scott (1986) 12 FCR 187, and the cases in various context in the decision which Lockhart Shepherd and Burchett JJ. discussed.”

17.     There is no doubt that the Respondent is in fact worse off because of his wife’s circumstances than if he were not a member of a couple.  As pointed out above, it is not only the actual amount of allowance he receives via his father-in-law, as opposed to the monetary value of a Disability Support Pension, but also the loss of the associated Pensioner Concession Card.  The Respondent, as has his parents, has requested the father-in-law to increase his payments but he refuses.  Although there is much force in the Applicant’s submission that being demeaned by your father-in-law cannot amount to a special reason to treat the Respondent as if he were not married, and that the marriage is a fact cannot be ignored, neither can its result upon the Respondent as an individual be ignored. 

18.     The Respondent is in a situation where individually he is disadvantaged by the actions of others whom he has no power to influence.  There are impediments to the wife taking action against her father or the Trustees even if she were so inclined.  The Respondent could not take any action himself, and I do not regard the possibility of Mrs Chaplin assigning her interests in the Trusts to herself and the Respondent, so as to give such a right as suggested by the Applicant as a practical step in this case.

19.     The actions of the father-in-law seem directed principally to controlling his daughter and preserving assets for fear she may dissipate them.  This restriction on his wife’s finances cannot however affect my consideration of the position of the Respondent.

20.     I find that the situation in which the Respondent finds himself, viz. being in receipt of a fortnightly stipend paying less than a Disability Support Pension, without the means of altering the situation himself, does amount to a special reason to regard him as a single person.  The amount of Disability Support Pension payable to him will of course be adjusted to take into account all monies from whatever source received by him.

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen  

Signed:    [sgd].....Mwela Kapapa..........................................
  Associate

Date of Hearing   14 May 2007
Date of Decision   28 May 2007
Counsel for the Applicant   Mr N Perram SC
Solicitor for the Applicant   Australian Government Solicitor
Solicitor for the Respondent                 Ms J Finlay, Welfare Rights Centre