CHRISTOPHER BLAKE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 54
•1 February 2013
[2013] AATA 54
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3774
Re
CHRISTOPHER BLAKE
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 1 February 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
District Registrar
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Member of a couple – Discretion to treat recipient as not being a member of a couple – No special reasons – Decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Social Security Act 1991 (Cth) s 24
CASES
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Cocks v Centrelink [2000] FCA 1248
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Holt and Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143
SECONDARY MATERIALS
Guide to Social Security Law s 2.2.5.50
REASONS FOR DECISION
Dr M Denovan, Member
This matter is about which rate of payment of age pension should be paid, single or partnered. Age pension is administered by provisions in the Social Security Act 1991 (Cth) (the Act). The Act proceeds on the assumption that members of a couple are able to share expenses and pool resources and live more cheaply when they live together. That is why members who are in a marriage or de facto relationship are paid less age pension per fortnight than those who are living alone. The Act recognises that there are exceptions to this generalisation. The Act provides discretion to treat a member of a couple as a single person in limited, appropriate circumstances, contained in s 24(1) of the Act. Mr Christopher Blake is the applicant in this case and, although he is married, he believes his circumstances are such that the discretion should be exercised, and he should be assessed as a single person and paid age pension at the single rate.
Mr Blake is 67 years old and was in receipt of the age pension at the singe rate since 25 November 2010. Mr Blake married on 2 February 2012 and, at the time of this application, resided full time in Thailand. Since 2 February 2012, he has been paid aged pension at the married rate, reducing his fortnightly payments by approximately $150. On 26 April 2012, Centrelink decided not to apply sub 24(1) of the Act and determined that Mr Blake’s age pension should continue to be paid at the married rate. On 1 May 2012, Mr Blake requested review of that decision. On the same date he stated that he was separated from his wife with effect from 5pm that day. The decision to continue paying Mr Blake age pension at the married rate was affirmed by an Authorised Review Officer on 25 May 2012, and by the Social Security Appeals Tribunal (SSAT) on 12 July 2012. On 28 August 2012 Mr Blake applied to the Tribunal for review.
Both parties have agreed that this matter be decided on written submissions and documents filed in the Tribunal in accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
I have to decide what rate of pension Mr Blake is entitled to, either the single rate or the married rate.
BACKGROUND
Mr Blake provided written submissions to the SSAT and the AAT in relation to his claim. Mr Blake married his wife on 2 February 2012. At the time Mrs Blake was five months pregnant. Prior to their marriage, the couple had been living together for some time. Mrs Blake and her three children live permanently in Thailand. Mr Blake is the father of the youngest child, born in September 2012; the older two children are Mrs Blake’s from a previous relationship.
On 2 February 2012, Mr Blake contacted Centrelink and advised that he was married and now living permanently in Thailand. Mr Blake anticipated this would result in an increase in his fortnightly age pension payment rate, however, unfortunately it resulted in his aged pension payments being changed to the married rate; as already stated, a reduction of approximately $150 a fortnight. Mr Blake claims that if his age pension is not reinstated to the single rate, he will suffer financial hardship, be unable to support his wife’s family and possibly have insufficient income to remain on his visa in Thailand. According to Mr Blake, the income required as a prerequisite for a visa by the Thai government for a pensioner to live in Thailand is about $2200 per year. Mr Blake’s only income is his age pension. That is currently about $598 a fortnight.
In his written appeal to the SSAT, Mr Blake claims that his wife left him. He informed Centrelink of the separation on 1 May 2012 by telephone. During the same phone conversation, Mr Blake asked that an Authorised Review Officer continue with a review of the decision not to apply s 24(1) of the Act in his case. On 3 May 2012 the original decision-maker contacted Mr Blake and was told that the separation was not permanent and indefinite, rather his intention was to resume the living together relationship following the outcome of the appeal. In the letter to the SSAT, Mr Blake stated:
At present we are living apart simply awaiting the outcome of this appeal as our future decisions hinge upon it. Our current arrangements are the cheapest option. They are far from suitable or acceptable for a married relationship.
On 30 July 2012 Mr Blake signed a “Separation details” form, and advised that he separated on 8 June 2012 and was unsure as to whether they might reconcile.
Centrelink records indicate as at April 2012 he had banked deposits totalling $69,000; however, on 1 May 2012 Mr Blake informed Centrelink that he had $50,000 to $60,000 in the bank and that these funds were currently being used to build a home for his partner’s family. On 24 May 2012, Mr Blake spoke with Centrelink and it is recorded that he said he was upgrading the home of his wife and her family which has no sanitation. He explained that his wife and her family are poor village people and earn $100 per month farming. He explained that in Thailand when you marry you take on the support of your wife’s family as well, including the wife’s grandmother and grandfather who lives with them. Even prior to his pension being cut to the married rate, he was subsidising his wife’s family’s living costs by about $2200 a month from his savings.
On 31 July 2012, in an “Entitlement Review” form, Mr Blake declared total savings of $47,500.
Mr Blake prepared written submissions for the AAT hearing, in which he stated that he currently supports four adults and three children.
Mr Blake claims to have a number of medical conditions including heart disease, high blood pressure, diabetes, cholesterol, gout and arthritis. He also states that he underwent a major cancer operation in 2010. Mr Blake states that purchasing the medications in Thailand to treat these conditions is expensive. He also needs to keep a certain amount of money in the bank should he ever need to return to Australia for emergency treatment. He was told there is a greater than 50% chance of recurrence of the cancer in the next five years. In that event, he would need sufficient funds to live sufficiently long enough in Australia to get treatment.
According to Mr Blake, Mrs Blake has previously worked as a waitress on the periphery of the sex industry. She has not worked for many years, but previously was working 12 hour shifts and earning $170 a month. Mr Blake contends it is not possible for Mrs Blake to work now as she has a full time commitment caring for her children. Another prohibiting factor is that the waitressing work is only available in the tourist locations. Mrs Blake previously worked at Pattaya. Mr Blake stated that the cost of renting accommodation for the family is prohibitive as it would be more than the wages Mrs Blake could earn. Mr Blake does not consider such places are appropriate for his wife to be working in, nor does he consider the towns appropriate for his child and step children to grow up in. Mr Blake and his wife had planned to move to Chang Mai, which offers good schooling for the children. Due to the reduction in the age pension and their limited financial circumstances, he claims they are now unable to do so.
RELEVANT LAW AND ISSUES
The question to be answered by this Tribunal is whether Mr Blake is entitled to age pension at the single rate. Whilst Mr Blake contents that he is separated, the Secretary’s contention is that he is not living separately and apart from his wife on a permanent and indefinite basis.
After Mr Blake initially claimed his wife left him on 1 May 2012, he has also stated he continued to pay for his wife and her family’s house to be built. This is not the usual behaviour of a separated person. Further, he has made numerous statements to the effect that the separation was temporary and was motivated by reasons other than marital disharmony or permanent break down of the marriage. Even in his separation certificate, Mr Blake states that he is uncertain about the future of his relationship, and I agree with the point made by the Secretary that Mr Blake’s submissions, made on 22 October 2012, imply he is now residing with his wife and children and supporting them:
... My half of the couples pension on which I support four adults and three children … If I return to Australia under these conditions, which I may be forced to do, I will be separated from my wife and family indefinitely.
For these reasons I find that Mr Blake has not been living separately and apart from his wife on a permanent or indefinite basis.
That being the case, the only issue that I must decide is whether the discretion not to treat Mr Blake as a member of a couple should be applied. Subsection (1) of s 24 of the Social Security Act 1991 (Cth) provides as follows:
Where:
(a)a person is legally married to another person; and
(b)the person is not living separate and apart from the other person on a permanent or in define basis; and
(c)the Secretary is satisfied that the person should, for a special reason in a 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 purpose of this act.
The discretion is not enlivened unless it is possible to identify “special reasons”, which are unusual or different.[1] Basically the person’s situation need not be “extremely unusual”; it is enough that there is something different about his or her case, which suggests the general rule should be applied.[2]
[1] Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277 at [18] per French J.
[2] Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277 at [18] per French J.
The Guide to Social Security Law (the Guide) is written to enable consistence in decision making.
Whilst not binding on the Tribunal, the policy should ordinarily be applied unless it produces an unjust decision in the circumstances of the case.[3]
[3] See Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 per Brennan J (President).
Section 2.2.5.50 of the Guide is relevant to sub 24(1) of the Act. It states:
The discretion to treat a person as NOT being a member of a couple should be exercised ONLY where a full consideration of all the circumstances relevant to the individual’s case would make it unjust or unreasonable not to do so.
It is appropriate that the decision maker strike a balance between the individual circumstances of the person and the circumstances of the couple. In the case of Boscolo and Secretary, Department of Social Security, the Federal Court found that the decision maker must make the decision with reference to the circumstances of the person seeking the discretion, rather than the position of the couple. HOWEVER, the Federal Court also noted that this does not prevent the decision maker from considering all relevant circumstances, including the position of the couple as it relates to the individual. It is also important to review the partner of the person who has had section 24 applied as part of the process.
The couple’s circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply section 24 do not exist. There must be some degree to which circumstances are outside the couple's or individual’s control and cannot be changed.
Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case 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?
Mr Blake submitted that his circumstances are special as: his wife has no assets and cannot work; he has taken on the obligation of supporting their child and her extended family which includes her grandparents and his stepchildren; he has numerous medical conditions that are expensive to treat in Thailand; he also must maintain a certain amount of savings and emergency funds as he underwent surgery for cancer in 2010; and there is a greater than 50% possibility of recurrent cancer which would require significant funds for treatment in Australia.
Mr Blake likened his case to the facts in that of Holt and Secretary, Department of Education, Employment & Workplace Relations[4] (Holt) and Cocks v Centrelink[5] (Cocks). Mr Blake said that should he take his wife and children to Australia, or even to return to Australia for a period of six months each year, the cost to the Australian taxpayer would increase.
[4] [2010] AATA 143.
[5] [2000] FCA 1248.
The Secretary contends that the evidence is unclear as to whether the Mrs Blake can contribute to any pooling of resources, however contends that Mr Blake’s financial position must be taken into consideration. The Secretary contends that the point of difference between Mr Blake’s circumstances and those cases mentioned above where the applicant had been granted age pension at single rate, was that those recipients had been in significant financial difficulty. It is contended that Mr Blake’s liquid assets of $36,000 are considerably valuable whilst he remains living in Thailand.
Very little information has been provided and matters on the papers prevent a full exploration of the circumstances. However, Mr Blake has elected to have this matter decided on the papers and the onus was on him to provide material about matters he wanted taken into consideration.
In relation to the first special circumstance raised by Mr Blake, that his wife is impecunious and has just had a baby: I accept that Mrs Blake as recently had a baby and is probably not skilled for any employment other than waitressing. That is not a reason that prevents Mrs Blake from working a few hours a day in some unskilled job such as retail or factory work. Mr Blake states that Mrs Blake has not worked as a waitress for many years. It is not clear how she was supporting herself prior to meeting Mr Blake and having her third child. Presumably she must have some alternative form of income, as she was a single mother for many years.
Mr Blake has stated that he is paying $12 a day for his accommodation, but without the single rate of pension is unable to pay for more expensive accommodation in a location which would provide access to schooling, presumably for Mrs Blake’s elder children. Without questioning Mr and Mrs Blake, I was unable to explore this matter further, however presumably if Mrs Blake worked part time the couple would be able to afford better accommodation in a more appropriate location. There is the possibility that Mr Blake could provide care of the children whilst Mrs Blake worked at least part time, allowing the family to enjoy an increase in their weekly earnings. Presumably a town that offers education would also offer more employment opportunities. Many women go back to work within a few months of having a baby, both in Thailand and in Australia. Mr Blake had not mentioned any incapacity that would prevent him from caring for his own child at least on a part time basis. Nor has Mr Blake mentioned any incapacity that would prevent Mrs Blake working either on a full time or part time basis.
Another possibility may be for Mrs Blake to work on the family farm. Mr Blake has paid for the building of a house for the family, so the financial benefits of Mr and Mrs Blake living with the extended family are obvious. That might open up the possibility for the elder members of the family to provide childcare whilst Mrs Blake works on the farm, or indeed elsewhere, and allowing for the resources to be pooled. Without further information I am not prepared to make a finding that Mrs Blake is totally incapable of contributing to the household income in some form. There is too many unanswered questions, and insufficient information before the Tribunal to make a finding as to Mrs Blake earning capacity or assets.
Mr Blake’s claim of the high cost of supporting his extended family, that is $2,200 a month, is not supported by any objective evidence. It seems incongruous that until Mr Blake married their daughter in February 2012, the family of Mrs Blake was surviving on the equivalent of $100 a month. Now, with the addition of Mr Blake and one infant child, the costs have escalated to $2,200 plus 100% of Mr Blake’s age pension that is a grand total of approximately $3,400 a month. It may be the case that in Thailand it is expected that when a man married a woman he is expected to provide financially for her extended family, however the average Thai woman would not marry with the expectation of providing her family with an increased income of 3500% each month.
If the majority of this increase in monthly spending was required to provide for building improvements and adding sanitation to the family home, then presumably there may now be an asset in Mr Blake or his wife’s name, or it may have been a gift to the senior members of the family; and the spending will slow down, leaving the majority of Mr Blake’s savings stable. There is insufficient evidence to make a finding. Even if Mr Blake’s claims can be substantiated, it would prove that Mr Blake is a generous man; however I do not consider his generosity to Mrs Blake’s family and the subsequent ongoing erosion of his assets a special reason that enlivens sub 24(1) of the Act. Mr Blake’s generosity is a matter of his personal choice, not a choice he can make on behalf on the public purse of the Australian taxpayers.
Mr Blake claims his circumstances are similar to those in his case; that is the cases of Holt and Cocks.
In the matter of Holt, two things differ from Mr Blake’s circumstances. The Tribunal found that Mrs Holt was unable to contribute financially and Mr and Mrs Holt were in significantly straitened circumstances, with no savings at all. By comparison, Mr Blake had savings of $47,500 in July 2012 and was living in a country where, he told us, his wife’s extended family was getting by on $100 a month. Mr Blake’s savings, carefully managed, combined with his age pension should have been sufficient to support his family indefinitely. Mr Blake is electively continuing to erode his savings by spending $2,200 a month supporting his wife’s extended family, that, until recently, were capable of living on a mere $100 a month.
In the matter of Cocks, Mr Cocks had expended all of his savings and could no longer afford to travel to the Philippines to see his family. That Mr Cocks’ family would receive more social security payments in the event he had brought them to Australia was significant to Justice O’Loughlin; however it is not a relevant consideration to Mr Blake’s matter, as Mr Blake has stated that his wife and her children would not be permitted residency in Australia.
The issue that Mr Blake raised that I may have considered possibly raised a special reason for paying him the single rate of pension was his medical situation. If Mr Blake had provided medical evidence that supported his claim that it was more likely than not he would need to return to Australia for recurrence of cancer, evidence as to the likely expense of the total cost of the trip and treatment, evidence of the cost of his fortnightly medical expenses; and he was able to establish that these expenses were so significantly high that they interfered with his capacity to pool resources, then it may have been the case that sub 24(1) of the Act was enlivened. However, Mr Blake provided no evidence what so ever in relation to his medical conditions and, for that reason, I cannot make a finding in his favour. Further, as suggested above, Mr Blake or his wife may well have real property assets related to the work he paid for on his wife’s property. That issue should be explored should Mr Blake make another claim.
DECISION
I affirm the decision under review.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member. ........................................................................
Associate
Dated 1 February 2013
Heard on the Papers 7 January 2013
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