Clare Pascoe and Secretary, Department of Social Services
[2013] AATA 745
•17 October 2013
[2013] AATA 745
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1147
Re
Clare Pascoe
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Mr S. Webb, Member
Date 17 October 2013 Place Armidale, NSW The decision under review is affirmed.
.......................[sgd].................................................
Mr S. Webb, Member
SOCIAL SECURITY – disability support pension – rate – member of a couple – discretion to treat as not a member of a couple – separate finances - partner refuses to provide financial information – reporting obligations - communication difficulties in marriage – health issues - no special reason – discretion not enlivened - decision affirmed
Social Security Act 1991 s 4, 24, 1064
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle v Director General of Social Security (1985) 60 ALR 225
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Cocks v Centrelink (2000) 32 AAR 360
Re Croy and Secretary, Department of Social Security (1996) 42 ALD 782
Jess v Scott (1986) 12 FCR 187Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Re Lada and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 1496
Re Tobin and Secretary Department of Employment and Workplace Relations [2005] AATA 1275
REASONS FOR DECISION
Mr S. Webb, Member
17 October 2013
Clare Pascoe is married to and lives with Lindsay Brash. She is paid a disability support pension as a member of a couple at the partnered rate. She wants the pension paid at the single rate and applied to be treated not as a member of a couple. The Secretary rejected her application[1]. This decision was affirmed on review by an Authorised Review Officer[2] and the Social Security Appeals Tribunal[3]. Unhappy with this result, Ms Pascoe applied for review.
[1] T5 folio 35.
[2] T11.
[3] T2.
I was informed by both parties at the hearing that there is no dispute that Ms Pascoe is a member of a couple with Mr Brash, within the meaning of ss 4(1), (2) and (3) of the Social Security Act 1991 (the Act). The only issue to be determined is whether there are special reasons to treat her as not a member of a couple under s 24(1) of that Act –
24 Person may be treated as not being a member of a couple (subsection 4(2))
(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 parties agree that Ms Pascoe satisfies s 24(1)(a) and (b).
In order to determine whether or not a special reason exists for the purposes of s 24(1)(c), it is necessary to consider all of the relevant circumstances.
Circumstances
Ms Pascoe’s circumstances are as follows.
Ms Pascoe was abused as a child. She suffers from Chronic Fatigue Syndrome. She was granted disability support pension in 1999.
She has an adult daughter from a previous marriage, which ended in divorce. She retained ownership of the family home at Wyong, under mortgage. She has family at Wyong, including her aged father, who is supportive. She has no extended family in Armidale.
Ms Pascoe married Mr Brash on 28 May 2005 and moved into a rented house at Armidale, letting out her property at Wyong. At that time, Mr Brash was undertaking Doctoral studies on a scholarship.
Before marrying, Ms Pascoe and Mr Brash agreed to keep their financial affairs separate. This they have done. They do not have any joint bank accounts and they do not jointly own any assets of significance.
Prior to leaving home in or about 2009, Ms Pascoe’s daughter spent most of the time residing with her mother and Mr Brash. Ms Pascoe, alone, covered the costs of her daughter’s education and recreational activities. Mr Brash has three children from a previous marriage, who spend one third of the time with him and Ms Pascoe. Mr Brash, alone, covers the costs of their education and recreational activities.
Ms Pascoe told me that the dry Armidale climate adversely affects her health. This came to a low point towards the end of 2008. She obtained treatment and altered her diet. She decided to move to the coast, where the climate is more amenable for her health. She sold her property at Wyong, and she paid out the mortgage and a related line of credit facility. She purchased an apartment in a resort complex at Port Macquarie, expending the balance of the sale proceeds and an additional sum of $47,000 in the form of an unregistered mortgage, repayable at 7 percent interest[4]. This property is in her name, alone.
[4] Exhibit 3, page 15.
During the hearing, I directed Ms Pascoe to provide additional documents and information in respect of her financial position and her Medicare records. The additional materials were filed on 26 September 2013 - Exhibit 9. These documents reveal that Ms Pascoe has credit card debts of approximately $6,500 and she has obtained financial support from her family. Ms Pascoe describes this financial support as a loan.
It appears that Ms Pascoe has obtained or requires medical, periodontal, optical and other treatments, including vitamin and homeopathic treatments[5]. The Medicare records establish that Ms Pascoe obtained a number of treatments, including Vitamin D treatments on 2 November 2011 and on 1 May 2012 and nine consultations with her treating general practitioner between 1 August 2011 and 5 June 2012, which were bulk billed. In the period from 29 August 2011 to 27 June 2012 she obtained psychological counselling on eight occasions that was only partly covered by Medicare. She says that Mr Brash does not assist her to cover these costs.
[5] Exhibits 1, 2, 3 and 5.
Mr Brash queried whether Ms Pascoe actually requires all of the treatments she obtains and observed that her symptoms appear to be somewhat subjective. He told me that he is a scientist and he is sceptical about the efficacy of homeopathic and other unproved ‘treatments’ Ms Pascoe obtains.
Ms Pascoe asserts that she requires a special diet and that it is necessary for her to travel to Port Macquarie in order to redress the adverse effect on her health of living in Armidale. For this reason, from 2009, Ms Pascoe has divided her time between the rented house in Armidale she shares with Mr Brash and her apartment in Port Macquarie. She estimated that she spends approximately one quarter of the time at Port Macquarie. The Port Macquarie apartment is managed as a rental property, although Ms Pascoe asserts that the income generated from letting barely covers all of the property costs, such that she derives no net income from it[6]. She told me that she has not been able to meet her periodic loan repayments[7]. She relies on disability support pension payments at the partner rate for her sole income. This is affected by Mr Brash’s earnings from time to time.
[6] Exhibits 1, 4 and 6.
[7] Exhibit 3, page 17.
Ms Pascoe asserts that Mr Brash steadfastly refuses to provide her with any financial support or assistance whatsoever - she derives no benefit from his earnings even though she is struggling to make ends meet. She has debts she cannot repay. She struggles to pay her medical treatment costs and to buy food; she cannot afford to purchase new clothing, and relies on clothes she obtains from second hand or opportunity shops. She considers Mr Brash’s attitude to be unreasonable, but she is not able to change it. She had a cat, now dead, that Mr Brash considered was an extravagance that could be foregone if she really needed money. This, she says, exemplifies the difficulty.
Ms Pascoe’s evidence is that Mr Brash refuses to inform her of the amount of his earnings, week by week, and he refuses to give her any information about his income, assets or liabilities. This, she says, causes difficulties for her because she has reporting obligations in respect of her pension[8]. She does not know when Mr Brash earns income, or in what amount, but the amount he earns affects the amount of her pension, such that she cannot reasonably predict her weekly income or budget for her expenses. Her evidence is that Mr Brash is a very private person, but she is not.
[8] Exhibit 7.
Mr Brash’s evidence is that he is not in a position to provide financial assistance to Ms Pascoe; rather, he relies on her for assistance. He told me that he is struggling financially and that his first priority is to provide for his children. He applied for and was granted Newstart Allowance in 2009, and this is presently ongoing. He works from time to time in casual employment and declares this income to Centrelink – he is aware that it affects Ms Pascoe’s pension. Ms Pascoe gave evidence that she believed Mr Brash had a credit card debt, although she was not aware of the debt amount. In his evidence Mr Brash confirmed the existence of this debt, which he has been able to service but not reduce over the past two years. He has some superannuation that would cover the debt, but he has resisted seeking access to this on grounds of hardship. It appears that he has not been successful obtaining employment in his professional field, following completion of his Doctorate in 2008. He told me that, even though he may be able to find professional employment elsewhere, he intends to remain in Armidale as this is where his children reside and are being educated.
Mr Brash told me that his financial affairs are separate from Ms Pascoe’s, as agreed prior to their marriage. He is not aware of the details of Ms Pascoe’s financial circumstances, in respect of the Port Macquarie apartment for example. He is reluctant to disclose details of his financial circumstances to her because he is worried that she may try to obtain financial support from him that he cannot afford to give, and that she does not require. He agreed, when tested on this point, that he would provide her with support in circumstances of dire need, but that he would have to borrow money or draw down his superannuation for that purpose. In his opinion, Ms Pascoe has more resources and greater financial capacity than he does, pointing to her apartment in Port Macquarie, but she refuses to acknowledge this.
Having heard their evidence, it is quite clear to me that there is a breakdown of communication between Ms Pascoe and Mr Brash, and that there are a number of misconceptions about their respective financial circumstances. I am satisfied that Mr Brash has not disclosed information about his financial circumstances to Ms Pascoe, and that Ms Pascoe has not disclosed information about her financial circumstances to Mr Brash. This is undoubtedly one of the multiple sources of stress and tension in their marriage. It appears that they have obtained marriage counselling with a psychologist over an extended period in which the issue of Mr Brash’s refusal to disclose financial information has been raised and discussed, without a positive result. It is not clear whether Ms Pascoe’s reluctance to fully disclose her financial circumstances to Mr Brash has been considered during the counselling. To my mind, this impasse between them is unlikely to be overcome unless each of them decides to be frank with the other.
This notwithstanding, Ms Pascoe and Mr Brash live together in a rented house and share the rent. They presently reside in a four bedroom house. They jointly lease the house in which they live, but have separate bedrooms – Ms Pascoe told me that she requires a separate bedroom for health reasons and that she requires permission to enter Mr Brash’s room. His children share the remaining two bedrooms. Presently, Ms Pascoe pays half the rent. Prior to moving in 2012, they lived in a five bedroom house and Ms Pascoe paid one fifth of the rent. It appears that, while Mr Brash obtains rent assistance, none of this is applied to reduce Ms Pascoe’s proportion of the rent. Mr Brash told me that he would not be able to afford suitable accommodation for his children without rent assistance and Ms Pascoe’s contribution to the rent; nor could he afford utility bills and the cost of household items – he told me that when the family television broke down he was unable to pay for a replacement and this fell to Ms Pascoe.
Ms Pascoe and Mr Brash told me that they lead largely separate lives, but, this notwithstanding, each expressed commitment to the marriage. They separately own and maintain motor vehicles. Generally, they purchase food separately and cook separate meals as a matter of convenience as Ms Pascoe has special dietary requirements. They keep their clothes and laundry separate, but they share household chores. To varying degrees over time, they have shared the cost of utilities, but they each have separate mobile telephone accounts. Ms Pascoe told me that she is presently paying all of the utility costs. She also told me that she owns most of the household contents, and she pays the house insurance premiums. Ms Pascoe informed me that she has private health insurance, but this does not cover Mr Brash or his children. While they may celebrate significant events together, such as Christmas or a birthday, they each purchase presents separately. Ms Pascoe has made a will, but she does not know whether Mr Brash has done so and, if so, what its contents might be.
Ms Pascoe informed me that, under these arrangements, she struggles financially and finds it extremely difficult to make ends meet. She provided detailed estimates of her expenses[9], which I have taken into account.
[9] Exhibit 1; Exhibit 9 refers.
Special reason
Ms Pascoe does not press her case on grounds of financial hardship, alone[10], but rather on the basis that it is unfair, unreasonable and unconscionable to impose legal reporting obligations on her, in respect of her partner’s income, when Mr Brash refuses to give her any information about his earnings or his financial circumstances and, despite her best efforts over a long period, she is unable to obtain that information.
[10] Exhibit 8 and Exhibit 9.
Furthermore, Ms Pascoe says that her health problems limit her capacity to contribute more to the marriage or to the household. She told me that living in the dry climate of Armidale is difficult for her, but Mr Brash refuses to move as it is where his children reside and attend school. In order for her to cope with the adverse effects of the climate on her health, Ms Pascoe maintains that she must spend approximately one quarter of her time on the coast at Port Macquarie. This, she says, adds to her costs. She maintains that Mr Brash is dismissive of some of the treatments she requires to manage her health and refuses to assist her for this reason.
Additionally, she asserts that she is unable to benefit from Mr Brash’s resources and that there is no pooling of resources between them. Ms Pascoe maintains that her cohabitation arrangement with Mr Brash is more akin to that of housemates than members of a couple. This, she says, sets her case apart from the usual run of married couples. She relies on Re Tobin and Secretary Department of Employment and Workplace Relations[11].
[11] [2005] AATA 1275.
In Ms Pascoe’s submission, these circumstances are unusual and out of the usual course in a marriage. She says that they are within the scope and meaning of ‘special reasons’ for the purposes of s 24 of the Act, rendering it appropriate to set aside the decision under review. Furthermore, in her submission, any different result may be discriminatory on the grounds of marital status under s 39 of the Anti-Discrimination Act 1977 (NSW) (the Anti-Discrimination Act).
Under s 24 of the Act, there are three criteria to consider, each of which must be satisfied for the discretion to be enlivened. In this case, there is no dispute that the first two criteria are satisfied - Ms Pascoe is legally married to Mr Brash and she is not living separately and apart from him. The third criterion requires a decision-maker to be satisfied that there is a special reason to treat the person as not a member of a couple. The focus is on Ms Pascoe’s position, as it is she who is seeking payment of disability support pension at the single rate[12] - an assessment must be made whether there is a special reason she should not be treated as a member of a couple with Mr Brash. In considering her position, it is appropriate to examine all of the relevant circumstances, including matters, such as those raised by Ms Pascoe, relating to Mr Brash and the arrangements by which their marital life is conducted.
[12] Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 536.
Determining whether the discretion conferred by s 24 to treat a person as not a member of a couple is enlivened and whether it is appropriate to exercise the discretion in the particular circumstances is a fundamentally different inquiry than determining whether the person is a member of a couple for the purposes of s 4(2). Ms Pascoe maintains that she is a member of a couple with Mr Brash and that she is not living separately and apart from him. On that basis, alone, Tobin’s case is distinguished. The facts in Ms Tobin’s case were such that she was living separately and apart from her husband, under one roof, and the indicia for a member of a couple relationship set out in s 4(3) were not made out. Matters of that kind are not presently in issue in Ms Pascoe’s case – I must decide whether there is a special reason to treat Ms Pascoe as not a member of a couple when, in fact, that is what she is.
The term ‘special reason’ in s 24(1)(c) is not defined. It has been construed as instrumental - “a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened”[13]; the special quality is one that rises above that which is ordinary or usual or commonplace[14]. It is not a term that is amenable to a rigid interpretation, as what it means is largely derived from the context in which it is applied. It has been described as an elastic term, affording flexibility when assessing the particular circumstances of each case that, like the term ‘special circumstances’, is not confined solely to an exceptional case[15]. Nonetheless, the purposes of the Act must be kept in mind when determining whether the particular circumstances give rise to a special reason to treat a member of a couple as single when, in fact, that is not so.
[13] Ibid, at 535.
[14] Ibid, at 535; Jess v Scott (1986) 12 FCR 187 at 195.
[15]Ibid, at 536; Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33]; Beadle v Director General of Social Security (1985) 60 ALR 225 at 228.
The context here is the rate of disability support pension that is payable to Ms Pascoe. The rate of pension is calculated under s 1064, whereby members of a couple are taken to pool their resources and to share expenses –
1064‑A2 Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (see points 1064‑E2 and 1064‑G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis (see section 1070V).
This expression of policy applies to age, disability support and wife pensions and to carer payment.
In Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[16], Barker J said that:
It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.[17]
[16] [2010] FCA 1084.
[17] Ibid, at [42].
Presently, there is no legal reason why Mr Brash cannot share income and assets with Ms Pascoe in their marriage – no legal impediment to him doing so has been raised, and I am satisfied that no such reason exists.
Mr Brash and Ms Pascoe did not enter their marriage having first made a pre-nuptial agreement, although it appears they agreed, informally, to keep their finances separate.
It can be accepted that Mr Brash has legal obligations in respect of his children, but these obligations do not prevent him from sharing resources with Ms Pascoe. By his own account, he prefers to direct his income and resources to the support of his children, as his first priority. But this is not a legal requirement that precludes him from pooling his available resources with his wife.
The issue, then, is whether there is a practical reason preventing Mr Brash from sharing resources with Ms Pascoe. Without a practical reason, the exercise of choice by one or both members of a couple in respect of the arrangement of finances or the manner in which the marital relationship is to be conducted, is unlikely constitute a special reason to negate the general policy of the Act, contrary to fact. Of course, where choice and the existence of a practical reason are concerned, issues of reasonableness or degree may arise in the particular circumstances. On this point, without fettering the discretion, Deputy President Blow’s conclusion in Re Croy and Secretary, Department of Social Security[18], with which I respectfully agree, is apposite –
In my view the discretion conferred by s 24(1) should only be exercised when it is not reasonable for the person in question to be expected to seek the support of the other member of the couple, or when it is not reasonable to expect that other member to give support to the person.[19]
[18] (1996) 42 ALD 782.
[19] Ibid, at [10]; ALD 783.
To this I would add that impecuniosity, where one member of a couple has nothing to contribute to the pool of resources by way of income or assets, may be a practical reason why the person may not be treated as sharing resources, or where it may not be reasonable for the other member of the couple to be expected to seek their support[20].
[20] Cocks v Centrelink (2000) 32 AAR 360 at 363-365; see also Re Department of Social Security and Tsimpidaros [1995] AATA 554 and Re Hawkins and Secretary, Department of Social Security [1996] AATA 927.
Reporting obligation
The proposition that it is unfair and unreasonable to expect Ms Pascoe to report financial information about Mr Brash that he will not disclose to her is not made out. Ms Pascoe’s reporting obligation is set out, for example, in T7. As can be seen it includes information about Mr Brash’s employment and his earnings. There is no legal or practical reason why Mr Brash is unable to provide the requisite information to Ms Pascoe, and it is reasonable for him to be expected to do so. It appears that Mr Brash provides this information to Centrelink, directly, under similar reporting requirements attaching to the income support payments he receives. The reason Mr Brash gave for not providing Ms Pascoe with information about his earnings is not tenable as a practical reason in the circumstances – it is simply a matter of communication and choice.
I have no difficulty accepting Ms Pascoe’s assertion that Mr Brash’s refusal to provide her with the requisite information causes difficulty. To my mind, it is reasonable for her to seek this information from Mr Brash, and for him to provide it. Plainly enough, the issue is one of communication. To my mind, it is untenable for Mr Brash to rely on Ms Pascoe for financial support, but to refuse her information about his earnings; and it is untenable for Ms Pascoe to complain that Mr Brash refuses to provide information she is legally obligated to provide to Centrelink, when she has not been forthright with him about her financial circumstances. I am reasonably satisfied that each of them has not been fully frank with the other and the difficulty Ms Pascoe identifies is not solely attributable to Mr Brash.
In these circumstances, I do not accept that Ms Pascoe’s reporting obligations are unfair, unreasonable or unconscionable, or that the communication difficulty is a special reason to treat her other than a member of a couple. There is no practical reason why Mr Brash cannot provide the requisite information, and I am satisfied that it is reasonable for him to do so. As regards the communication difficulty, this is effectively a matter of choice – it is a matter for Ms Pascoe and Mr Brash.
Nevertheless, the legal reporting obligation is on Ms Pascoe and it is for her to ensure that information about her husband’s income is reported in a timely manner. It appears that Ms Pascoe encountered a problem complying with her reporting obligations in circumstances where Mr Brash did not provide the required information to Centrelink in a timely manner. While Ms Pascoe maintains that she has attempted to obtain such information from Mr Brash over a long period, and Mr Brash confirms that he has not provided it to her directly, but he has provided it to Centrelink, the difficulty is one of apparent mistrust and poor communication. As I have said, I am satisfied that each of them has not been forthright with the other about their respective financial circumstances, despite extensive psychological counselling. I see no practical or legal reason why the taxpayer should afford Ms Pascoe a pension at the single rate, when she is, in fact, a member of a couple and the circumstances of her marriage to Mr Brash, and the manner in which it is conducted, are matters of choice, albeit that choice is affected by mistrust and poor communication.
Health
With regard to Ms Pascoe’s health issues, there are three things to say. Firstly, for people in receipt of disability support pension, impaired function and poor health are common. So, too, are the consequential effects of disability on families relying on income support payments, in terms of household chores and finances for example. Families of this kind commonly face financial difficulties, struggling to cope in straitened circumstances. To that extent Ms Pascoe’s circumstances are not unusual.
Secondly, her ownership of an investment property sets her apart. While I accept that it may be beneficial for her health to spend time on the coast from time to time, it does not follow and I do not accept that this necessitates ownership of an apartment in Port Macquarie. The present evidence does not establish that it is necessary for Ms Pascoe to retain an apartment in Port Macquarie for health reasons. To my mind, this property is properly described as an investment property and I do not accept her submissions to the contrary. The same health benefits may be obtained by renting accommodation in a coastal location when required. Ms Pascoe says that it is most cost-effective for her to continue with the present arrangement. But that, too, is not made out on the present evidence. Ms Pascoe complains that she is struggling financially to make ends meet. But some of the cost pressures she has identified, in respect of loan repayments for example, would be expunged if she was to dispose of the apartment, albeit perhaps for less than the purchase price, and realise her equity.
Thirdly, Ms Pascoe’s case must be distinguished from that of Re Lada and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[21], where Mr Lada’s partner travelled to Austria to obtain medical treatment from doctors and oncologists with whom she had developed therapeutic relationships over a long period, and with whom she could converse in her native language. Medicare records produced by Ms Pascoe do not reveal a pattern of therapeutic care with doctors outside Armidale whereby significant costs are incurred.
[21] [2007] AATA 1496.
Pooling resources
On the question of pooling resources, it is quite clear that Ms Pascoe and Mr Brash pool resources to an extent. I reject the proposition advanced by Ms Pascoe that this is no more than might be expected of housemates and should, therefore, be discounted. Likening the manner and extent of their pooling of resources to that of housemates does not accurately reflect the true nature of Ms Pascoe’s past or present circumstances.
The manner and extent to which resources are pooled in blended family situations is variable, subject to the particular circumstances. Even though the degree to which Ms Pascoe and Mr Brash maintain separate arrangements is a significant feature of their marriage, I am not persuaded that this arises from any practical reason, such that Mr Brash cannot or should not be treated as sharing resources.
Furthermore, I am satisfied that the manner and extent of pooling in Ms Pascoe’s case is greater than she makes out. Presently, it appears that Ms Pascoe is supporting Mr Brash, paying half the rent and other expenses that he cannot otherwise afford. Thus, albeit perhaps unwittingly, Ms Pascoe is pooling resources with Mr Brash. Even though, presently, he may benefit more from the pooling than Ms Pascoe, this does not mean that any pooling is insignificant, or that Ms Pascoe is unable to benefit from it. The degree to which one member of a couple is able to contribute or share resources with the other is subject to variation as circumstances change. Thus it is in Ms Pascoe’s case. Previously, it appears that Ms Pascoe provided financial and other support to Mr Brash when he was studying, whereas subsequently she contributed only one fifth of the rent in a five bedroom house that was their marital home.
Mr Brash has Doctorate qualifications and he told me that his prospects for future employment and earnings are good, albeit perhaps not in Armidale. On the present evidence, there is no reason to conclude that he would not share resources with Ms Pascoe if his employment circumstances change.
Nonetheless, it appears that the manner and extent of resource pooling between Ms Pascoe and Mr Brash is constrained by their agreement to keep their finances separate and by the communication difficulties (and related misconceptions) I have identified. I am satisfied that the extent of resource pooling between Ms Pascoe and Mr Brash is limited, but it not so uncommon or unusual, or so marginal, that it is a special reason to treat Ms Pascoe other than a member of a couple.
Financial circumstances
To my mind, separate financial arrangements and related communication difficulties are unfortunately not unusual or uncommon circumstances in blended families involving parents with children from previous relationships. The extent of the breakdown in communication between Ms Pascoe and Mr Brash is undoubtedly difficult, and it may reflect the present character of their marriage, but it is not a practical reason whereby Mr Brash cannot or should not be treated as sharing resources with Ms Pascoe.
I accept that, presently, Mr Brash has little regular income to bring to the table with Ms Pascoe, but he is not so impecunious that he should be treated as having no income or resources to contribute. He has financial assets in excess of his liabilities on which he could draw in circumstances of hardship. He obtains income support payments and occasional earnings in employment. On this basis, cases such as Cocks v Centrelink[22], Re Department of Social Security and Tsimpidaros[23] and Re Hawkins and Secretary, Department of Social Security[24] are distinguished. That Mr Brash chooses to direct his limited income to the support of his children, as a first priority, does not mean that he contributes nothing to the household he shares with Ms Pascoe, or that he is unable to do so.
[22] (2000) 32 AAR 360.
[23] [1995] AATA 554.
[24] [1996] AATA 927.
It does not follow, and it should not be assumed, contrary to Mr Brash’s sworn evidence, that he is unwilling to support Ms Pascoe if the circumstances demand it. Mr Brash informed me that he would provide support to Ms Pascoe if it is necessary for him to do so, once other options are exhausted. In these circumstances, his unwillingness or reluctance to provide Ms Pascoe with financial support and information about his earnings is not such that Ms Pascoe could not reasonably expect Mr Brash to share resources with her, and Mr Brash could not reasonably be expected to do so.
On balance, in the circumstances of Ms Pascoe’s marriage, impecuniosity does not preclude the sharing of resources and it does not a special reason to treat her as not a member of a couple. On this point the case of Re Holt and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[25] is distinguished. In Holt’s case impecuniosity and practical barriers to pooling resources were established, where none exist here. That Ms Pascoe and Mr Brash are in straitened financial circumstances and that they face serious communication difficulties can be accepted, but these factors do not raise a practical reason why Mr Brash cannot or should not be treated as sharing income and assets with Ms Pascoe for the purposes of the Act. In the circumstances, I am satisfied that it is entirely reasonable to expect Ms Pascoe to seek his support, and for him to provide it when needed.
[25] [2010] AATA 143.
Other circumstances
Ms Pascoe expressly agreed that she and Mr Brash are members of a couple and that she is committed to their marriage. Even though there are issues of trust and poor communication between them, Mr Brash, too, expressed his commitment to the marriage. I accept Mr Brash’s evidence that he would provide financial and other support to Ms Pascoe, including drawing upon his superannuation on hardship grounds, if the circumstances were such that it was necessary for him to do so.
It appears to me that Mr Brash does not agree with Ms Pascoe about the extent of her need, especially in respect of treatments she obtains. This does not raise a practical or legal reason, or a special reason, to treat Ms Pascoe as other than a member of a couple for the purposes of the Act.
Discrimination
Ms Pascoe’s submission concerning discrimination on the grounds of marriage under s 39 of the Anti-Discrimination Act as a special reason for the purposes of s 24(1)(c) is ill-conceived. By her own admission, Ms Pascoe is in fact a member of a couple with Mr Brash under s 4(2) of the Act, and for this reason the rate of her pension is calculated at the partner rate under s 1064. It is this fact, and the general policy of the Act that she is seeking to excuse by this application. Ms Pascoe’s relationship with Mr Brash is not akin to that of housemates. There are no special reasons to treat her as other than a member of a couple. If the same facts are applied, hypothetically, to a person with a different ‘marital or domestic status’, assuming that the person has a relationship with someone else that meets the conditions of s 4(2), like Ms Pascoe, the same result would be obtained. This is a function of the legislation. Clearly, if the facts were different and Ms Pascoe was not a member of a couple with Mr Brash under s 4(2), the rate of her pension would be calculated differently.
Of course, it is not for me to determine whether or not Ms Pascoe’s assertion of discrimination is made out. That is for others if she presses a claim. But, for present purposes, her submission is not made out.
Conclusion
Considering all of the relevant factors and circumstances, I am satisfied that there is no special reason to treat Ms Pascoe as other than a member of a couple. The terms of s 24(1)(c) are not satisfied and the discretion to determine that she should not be treated as a member of a couple is not enlivened. There is no compelling legal or practical reason why Mr Brash cannot be treated as sharing his income and resources with Ms Pascoe. I am satisfied that there is no special reason to treat Ms Pascoe other than as a member of a couple with Mr Brash.
It follows that the decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..........................[sgd]..............................................
Associate
Dated 17 October 2013
Date of hearing 23 August 2013 Date final submissions received 26 September 2013 Applicant In person Advocate for the Respondent Jennifer Maclean Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
4