Cocks and Secretary, Department of Family and Community Services - [2000] AATA 358

DECISION AND REASONS FOR DECISION [2000] AATA 358

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/361

General Administrative DIVISION )

Re JAMES COCKS
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date8 May 2000
PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that whilst the applicant resides in Australia he be treated as not being a member of a couple for the purposes of payment of pension at the single rate and that whilst the applicant is overseas he be treated as a member of a couple and payment of pension be at the married rate.

(Signed)
WJF PURCELL
(Senior Member)

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )           No. S99/361
General Administrative Division  )

Re: JAMES COCKS

Applicant

And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

CORRIGENDUM

TribunalSenior Member J.A. Kiosoglous MBE
Date10 May 2000
PlaceAdelaide

In the decision of the Tribunal in this matter handed down on 8 May 2000 the year of marriage in paragraph 9, line 6 should read 1997 and not 1992.

(Signed)
WJF PURCELL
(Senior Member)

CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – single or married rate – 6 months spent in Australia, 6 months in Philippines – what arrangements are viable – whether pooling of assets available
Social Security Act 1991 ss.4, 24
Secretary, Department of Social Security and Tsimpidaros (AAT 10292, 5 July 1995)
Hawkins and Secretary, Department of Social Security (AAT 11446, 4 December 1996)

REASONS FOR DECISION

8 May 2000 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 29 July 1999 which affirmed the decision of an authorised review officer of 29 June 1999 to treat the applicant as a member of a couple and to restrict him to the married rate of Age Pension, both during his absence in the Philippines and on his return to Australia.
The evidence before the Tribunal comprised the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The applicant appeared on his own behalf and gave oral evidence. Mr J Underwood appeared for the respondent (the Department).
The applicant, who is 69 years of age, has been in receipt of pension since 1992. He was 66 years old and divorced when he married, in the Philippines, on 25 February 1997. His wife, Thelma, was 30 years of age, and their daughter, Christine, had been born on 4 July 1996. The applicant's wife has remained in the Philippines, and the applicant spends up to 6 months in the Philippines (the maximum allowed for non-residents) and returns then to Australia where he resides, free of board, at his sister's farm at Cummins on the west coast of South Australia.
In September 1998 the applicant was in Australia, and notified the Department of his marriage. A delegate decided to treat him as a member of a couple and to reduce his entitlement to half the married rate, and to raise an overpayment since the date of his marriage.
Section 4 of the Social Security Act 1991 (the Act) defines a member of a couple as follows:
"4.(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
…
4.(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person."
Section 24 of the Act provides discretion to not treat a person as a member of a couple in the following terms:
"24.(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 applicant applied for review of the decision, and an authorised review officer set aside the decision on 24 September 1998, and stated:
"I have accepted that you (and your wife and child) have been placed in a poor situation due to the reduction in your rate of pension, and that this is an unexpected consequence of your marriage in 1997. I have accepted that you are unable to enjoy the benefits of a pooling of resources. I have also accepted that your ill-health is another factor to be included in the consideration of what constitutes a 'special reason' … "
In June 1999 the applicant applied for payment of pension during his absence from Australia. On 16 June 1999 a delegate decided to restrict the applicant to the married rate of pension, both during his absence, and on his return to Australia. An authorised review officer affirmed the decision, and the applicant applied to the SSAT for review of the decision. The SSAT, considered that the applicant and his wife's circumstance were not unusual, uncommon or abnormal and affirmed the decision. The applicant has applied to this Tribunal for review of that decision.
The applicant gave sworn evidence, which I accept, that in the course of his previous business enterprise, he had travelled regularly to the Philippines from about 1988 onwards. His relationship with his wife commenced in about 1992, the same year he suffered a neurological disease which rendered him paralysed. The wife was working in Manila as a cleaner in a Chinese grocery store. She returned to her home province before the birth of their daughter, and when they married in 1992, the applicant secured rented accommodation in a nearby town, where they continue to reside. He estimates that the expenses in the Philippines, including rent and food are about $(A)750 per month, the married pension rate is about $(A)640 per month. Whilst he was in receipt of the single rate in Australia, he was able to save about $50 per week, and could provide some further assistance to his family.
The applicant gave evidence that he finds himself in an impossible situation, he can stay only up to 6 months in the Philippines; Australia is his home; he and his wife married so that their child would have legitimacy; and although he wants the child and his wife to come to Australia to give the child a chance in life, he has made inquiries, but not lodged the necessary forms. He has sold all his assets, including a painting and his golf clubs, to pay the airfares to the Philippines, and in addition borrowed at least $2,500 from his sister to assist in payment of the airfares of between $800 to $1,000 return. He simply cannot afford the $3,500 to bring his family to Australia and to provide accommodation. His wife is willing to come to Australia, but realises that financially this is not possible, and is resigned to the continuation of the current arrangements.
The applicant said in evidence that in 1992 he suffered a neurological condition that led to paralysis, and although he had recovered from the paralysis, he has been unable to undertake paid employment. He suffers also from a heart condition and takes 5-10 mg Lanoxin daily, Warfarin to thin his blood, Renitec tablets for blood pressure, and he suffers also from diabetes. This means that when he is in the Philippines, his special dietary requirements are very expensive and difficult to obtain. If he requires his prescription drugs whilst in the Philippines, these are also very expensive. He says that with payment of pension at the single rate he could "make ends meet" but with $(A)30 less per week on the married rate, he is in dire financial straits.
The applicant submits that although he is the creator of his own situation, he cannot extricate himself; and that it was his honest belief that as he was not marrying an Australian girl who would be entitled to benefits, the fact that his wife and child remained in the Philippines would mean that payment of pension would continue at the single rate, and the family could survive. He argues also that while he is in the Philippines, he is not getting any of the benefits available in Australia and he should be entitled to the single rate whilst overseas and in Australia.
The Department maintains that the legislation provides a comprehensive scheme, with reduced payment because of the pooling of resources of a married couple. The lifestyle adopted by the applicant is a matter of choice. He has not attempted to bring his wife and child to Australia, or applied for permanent residency for them. Their absence overseas is a matter which is not beyond his control, but a lifestyle for which the public purse should not bear responsibility. The financing of their travel to Australia could be undertaken over a period of time, and his trips to the Philippines could be curtailed so that the airfares could be purchased. There is no reason to distinguish the applicant's family situation from that of any other married couple with a child. They are able to benefit from their mutual resources and live together such as any other family does. There is no reason sufficiently special to warrant exercise of the discretion provided in section 24 of the Act.
The departmental decision-makers, and the SSAT, have referred in the T documents to the Departmental Guidelines in relation to section 24 of the Act and the authorities of Secretary, Department of Social Security and Tsimpidaros (AAT 10292, 5 July 1995) and Hawkins and Secretary, Department of Social Security (AAT 11446, 4 December 1996).
The Departmental Guidelines, as far as is relevant for the purposes of this review, read:
"36.501The discretion should only be exercised in strictly limited situations. In general, it is intended to be exercised where either of a married couple does not, or could not reasonably be expected to, enjoy the pooling of resources that usually occurs in a marital relationship.
36.502It is not possible to predict all of the situations in which it would be necessary to exercise the discretion. However, the following considerations should always be borne in mind:

the reasons for exercising the discretion should be ones that relate to the nature of the marital relationship;
financial hardship is not, of itself, a sufficient reason for exercising the discretion;
the discretion will usually only be exercised if the marital situation of the person is unusual, uncommon or abnormal;
the whole of the circumstances of the case should be examined before considering whether it is reasonable to exercise the discretion."

In my view, the applicant's marital situation could be regarded as "unusual, uncommon or abnormal" as contemplated by Guideline 36.502. He is 69 years of age, in poor health and with no assets. His wife is 33 years of age, 36 years younger, with a 4 year old daughter living near her family in the Philippines with her accommodation provided by the applicant and he spends up to 6 months at a time with her and the child. The alternative scenario would be for the wife and the child to come to Australia, where the only accommodation the applicant can offer (and only with the agreement of his sister and her husband) is in a farmhouse in remote inland South Australia where the wife would have no support nor companionship from her family, and in the event of the applicant's death, would have to find her own accommodation (one would expect) and bring up the child alone. From a practical point of view, this would surely be much more costly for the public purse than any arrangement whereby the wife and child remain in the Philippines. I cannot accept that it would be in the best interests of the wife or the child, that they come to Australia in these circumstances.
I consider on the whole of the evidence that the arrangements the applicant has put in place, although "unusual, uncommon or abnormal" are the only feasible arrangements in the circumstances. He cannot reasonably be expected to enjoy the pooling of resources whilst he is resident in Australia, and I consider it appropriate that the discretion available pursuant to section 24 of the Act should be exercised in his favour when he resides in Australia. However, whilst he is overseas, residing with his wife and child, resources are pooled, and he should be treated as being a member of a couple.
For these reasons, the Tribunal sets aside the decision under review and substitutes a decision that whilst the applicant resides in Australia he be treated as not being a member of a couple for the purposes of payment of pension at the single rate and that whilst the applicant is overseas he be treated as a member of a couple and payment of pension be at the married rate.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  12 January 2000
Date of Decision  8 May 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr J. Underwood
Solicitor for the Respondent    Centrelink