Christopher Blake and Secretary, Department of Social Services

[2014] AATA 653

[2014] AATA 653  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1511
Re	Christopher Blake
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P Wulf, Member
Date	8 September 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr P Wulf, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Rate of Pension – Member of a couple – Documents indicating separation – Ambiguity and veracity of evidence – lack of detail - antecedence – Decision under review affirmed.

LEGISLATION
Social Security Act 1991 (Cth) ss 4, 24

CASES
Blake and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 54

REASONS FOR DECISION

Mr P Wulf, Member

8 September 2014

INTRODUCTION

1. Mr Christopher Blake[1] seeks review of a decision made by Centrelink on

   
   

   20 September 2013[2] to not change his pension status from couple to single from

   
   

   8 June 2012 but rather to change his status from 25 March 2013 onwards. An authorised review officer (“ARO”) affirmed the decision in subsequent reviews on

   
   

   3 December 2013[3] and 11 January 2014.[4] The numerous ARO decisions were affirmed by the Social Security Appeals Tribunal (“SSAT”) on 18 February 2014.[5]

   [1] Exhibit 1, pp 1-2.

   [2] Exhibit 1, pp 4.

   [3] Exhibit 1, pp 172.

   [4] Exhibit 1, pp 167-171.

   [5] Exhibit 1, pp 3-7.

2. For the reasons that follow, the Tribunal finds that Mr Blake should not be paid the single rate of aged pension backdated to 8 June 2012 but rather should be paid the single rate from 25 March 2013 and therefore the decision is affirmed.

   ISSUES FOR THE TRIBUNAL

3. The issue for the Tribunal to determine is whether Mr Blake should receive the single rate of pension from 8 June 2012 and not the 25 March 2013 as determined by the original and subsequent decisions.

   LEGISLATION

4. The rate of age pension is administered by s 4 of the Social Security Act 1991 (Cth)

   
   

   (“the Act”). Section 4(2)(a) describes the requirements of a person being a member of a couple as below:

   (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

   (aa)       both of the following conditions are met:

   (i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

   (ii)the person 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 (emphasis added).

5. Under s 4(6) of the Act, a person is not a member of a couple if a determination under s 24 is in force in relation to the person. Section 24 states

   (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.

   ANALYSIS AND FINDINGS

   Background

6. Mr Blake is a 68 year old man residing full time in Asia with the significant majority of his time in Thailand; although he retains an address in the Northern Territory. The only time Mr Blake appears to be out of Thailand is when he needs to make trips to gain a new visa. Mr Blake was in receipt of the age pension at the singe rate from

   
   

   25 November 2010 until he married on 2 February 2012. Mr Blake’s wife is a Thai national and has two children from a previous relationship. Since the 2 February 2012, Mr Blake has been paid aged pension at the married rate. On 21 September 2012,

   
   

   Mr Blake’s then wife gave birth to their child.[6]

   [6] Exhibit 1, pp 7.

7. There is some history as to Mr Blake and his ambitions to be paid the single rate of pension while married. Mr Blake has previously been before this Tribunal in relation to his rate of pension following his marriage in February 2012. On 1 February 2013, this Tribunal found that Mr Blake was a member of a couple and that he should not be availed of the discretion under s 24 of the Act to be considered not a member of a couple.

8. On 1 May 2012, Mr Blake advised Centrelink that his wife was returning to live in her family home.[7] On 3 May 2012, Mr Blake advised that the reason for her return to the family home was so that he was able to obtain the single rate of pension.[8]

   [7] Exhibit 1, pp 265-266.

   [8] Exhibit 1, pp 265-266.

9. On 30 July 2012, Mr Blake signed a “Separation Details” form, and advised that he separated from his wife on 8 June 2012 and was unsure as to whether they might reconcile.[9] The Mod S Form was lodged with Centrelink on 10 August 2012.[10]

   [9] Exhibit 1, pp 92-97.

   [10] Exhibit 1, pp 4.

10. Mr Blake stated that he completed the form fully and that he should be paid a single rate pension from 8 June 2012. Mr Blake says that he was refused to be paid a single rate of pension as Centrelink advised him they could not read the information on the form and/or the form was misplaced. It would appear from the email from Ms Beasant that the form was received via mail and attached to Mr Blake’s file without the relevant attention.[11] Notwithstanding, the Tribunal was of the opinion that the information on the form was legible and readable although lacking significantly in detail.

    [11] Exhibit 1, pp 137-138.

11. At Question Nine of the claim, Mr Blake indicates that he is unsure if there is any chance of reconciliation. This is important in that s 4 of the Act requires that the couple be living separately and apart from the other person on a permanent or indefinite basis. Mr Blake’s statements in the Mod S could be interpreted that there was the possibility that Mr Blake and his wife would reconcile and on this basis, the Tribunal finds that the separation was not permanent or indefinite.

12. The lack of information contained on the form is concerning; particularly in relation to the referees that Mr Blake stated could support his statements that he was separated permanently from 8 June 2012. Mr Blake merely put an initial for the Christian name of the people and did not provide a contact number in the appropriate box so that Centrelink was able to contact them. When questioned during the hearing, Mr Blake indicated that in his era, people were always called by their last name. The failure to provide full and frank information is of concern to the Tribunal.

13. In January 2013, Mr Blake contacted Centrelink with respect to his payment of single aged pension.[12] At this time, Centrelink requested that he provide details of his referees. Again, Mr Blake provided nothing more than an initial for the Christian name of the people and did not provide a contact number where Centrelink could call them.[13] In the Tribunal’s opinion, this makes it almost impossible to contact the two people to confirm Mr Blake’s statements as they are in Thailand and without a full name, any correspondence may not reach its intended recipient.

    [12] Exhibit 1, pp 137-138.

    [13] Exhibit 1, pp 149 and 152-156.

14. On 25 March 2013, Mr Blake contacted Centrelink advising that he was divorced.[14]

    
    

    On 4 April 2013, Mr Blake provided a copy of the divorce certificate.[15] There was some discussion as to the length of time required to be apart in Thailand to gain a divorce. During this discussion, Mr Blake advised that the separation could be a very short time (for example, days) rather than months, or as required in Australia, 13 months under family law.

    [14] Exhibit 1, pp 223.

    [15] Exhibit 1, pp 148 and pp 158.

15. The respondent made a number of submissions with respect to the contents of the Mod S in relation to Mr Blake’s submissions in his previous matter, the specific dates he was referring to in his submissions with respect to Mr Blake’s previous appeal before this Tribunal and how they relate to this matter. In this regard, it was the respondent’s submission that Mr Blake was referring to the October 2012 (for example, the time of writing) in his submissions rather than between 2 February 2012 and 7 June 2012 when Mr Blake contests they were. On this basis, the Tribunal should read those submissions and compare them to the alleged factual basis as at 8 June 2012.

16. It is noted that Mr Blake indicated in his submissions of October 2012:

    ... 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. (Emphasis Added)

17. The Tribunal notes the bolded section in the previous statement. It is noted that the couple’s child was born on 21 September 2012.[16] This is critical in that this was immediately prior to the time when Mr Blake was writing the submission

    
    

    (October 2012), but after the time Mr Blake submitted the Mod S form indicating that he was now living separately. On this basis, it would appear in the Tribunal’s opinion, that Mr Blake was still residing within the same residence as his wife, or he was at least seeing and supporting her. I agree with the respondent that Mr Blake’s submissions, made on 22 October 2012, imply he was still residing with his wife and children and supporting them.

    [16] Exhibit 1, pp 7.

18. The Tribunal is concerned at Mr Blake’s antecedence in this matter. It would appear in the Tribunal’s opinion, that Mr Blake came to the realisation that he would not be paid a single rate pension and has taken a number of steps to try and circumvent his status. This was clear when Mr Blake first applied for the couple’s pension and thought his pension would increase.[17] However, quite the contrary happened and it is this Tribunal’s opinion that Mr Blake has used various means to have his pension increased back to the single rate of pension. The Tribunal finds that the circumstances which have been proffered by Mr Blake are not factually true given the evidence before the Tribunal and the lack of detail in Mr Blake’s Mod S forms.

    [17] Blake and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 54 at 7.

19. In the Tribunal’s opinion, the only time that it can be assured that Mr Blake was single and therefore should receive the single pension was from 25 March 2013 when he was officially divorced from his wife.

    DECISION

20. For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

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Associate

Dated 8 September 2014

Date(s) of hearing	28 July 2014
Applicant	By phone
Solicitors for the Respondent	Chris Bishop, Department of Human Services