Dobbie; Secretary, Department of Social Services and (Social services second review)

Dobbie; Secretary, Department of Social Services and (Social services second review) [2022] AATA 324 (25 February 2022)
Division:GENERAL DIVISION
File Number:2021/2395
Re:Secretary, Department of Social Services
APPLICANT

Robert DobbieAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 February 2022
Place:Brisbane

The Tribunal sets aside the decision of the Social Services and Child Support Division dated 8 March 2021.
In substitution, the Tribunal decides that there is no special reason for the discretion in section 24 of the Social Security Act 1991 (Cth) to be exercised, and, as such, the Respondent has been entitled to be paid the Age Pension at the partnered rate since 2 March 2020.
................[SGD]............................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Age Pension – rate of pension – member of a couple – whether discretion to treat the Applicant as being single for the purposes of determining his rate of pension should be exercised – discretion not exercised -– decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act1999 (Cth)
EXPLANATORY MATERIAL
Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
CASES
Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; (1999) 53 ALD 277
Holpitt Pty Ltd v Varimu (1991) FCA 269; (1991) 103 ALR 684
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Jess v Scott (1986) 70 ALR 185
Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307
Re Hutchins; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 74 ALR 455
Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322
SECONDARY MATERIALS
United Nations Human Rights Council, United Nations Questionnaire on social protection of older persons addressed to Governments by the Independent Expert on the question of human rights and extreme poverty, Australia (2010)
REASONS FOR DECISION
Member D Mitchell
25 February 2022
INTRODUCTION

The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 8 March 2021.[1] On that date, the SSCSD set aside the decision of Centrelink, made on behalf of the Secretary, Department of Social Services (the Applicant) that Mr Robert Dobbie (the Respondent) be paid the partnered rate of the Age Pension from 2 March 2020.[2]
[1] Exhibit 1, T Documents, T2, pages 10-12, Decision of the SSCSD.
[2] Exhibit 1, T Documents, T2, pages 10-12, Decision of the SSCSD.
The SSCSD decided that the Respondent was a member of a couple and that a special reason existed so that the discretion in section 24 of the Social Security Act 1991 (Cth) (the Act) should be exercised so that he would continue to receive the Age Pension at the single rate.[3]
[3] Exhibit 1, T Documents, T2, page 12, Decision of the SSCSD.
The Applicant sought review of that decision by this Tribunal, by way of an application dated

7 April 2021.[4]
[4] Exhibit 1, T Documents, T1, pages 1-9, Application for Review.
BACKGROUND
The Respondent is 77 years of age and had been in receipt of the Age Pension at the single rate since 5 September 2009.[5] From 28 March 2020, he has been in receipt of the Age Pension at the partnered rate.[6]
[5] Exhibit 1, T Documents, T26, page 138, Centrelink Mainframe Screens – Pensions Status History.
[6] Exhibit 1, T Documents, T26, page 139, Centrelink Mainframe Screens – Payment Summary.
On 24 March 2020, the Respondent notified the Applicant that he was in a de facto relationship with Ms Cuc Thi Thu La (Ms La) since 2 March 2020.[7]
[7] Exhibit 1, T Documents, T27, page 164, Centrelink document list and customer contact notes for the period 19 March 2019 to 11 November 2020.
Ms La is 64 years of age and is a citizen of Vietnam. She was granted a Visitor (subclass 600) Visa on 23 May 2019.[8] On 10 March 2020, she applied for and was granted a Bridging A (subclass 010) Visa.[9] This visa allows Ms La to stay lawfully in Australia until her Partner (subclass 820) Visa application is processed.
[8] Exhibit 1, T Documents, T26, page 161, Centrelink Mainframe Screens – Legal Residence Details.
[9] Exhibit 1, T Documents, T5, pages 58-59, Letter to Ms La from the Department of Home Affairs issuing a Bridging A Visa.
On 2 April 2020, the Respondent returned the Partner Details (MOD P) form to the Applicant and provided that he had been in a registered relationship with Ms La since 2 March 2020.[10]
[10] Exhibit 1, T Documents, T6, pages 60-82, Centrelink MOD P form.
The Respondent was advised that he was not eligible for a determination under section 24 of the Act (section 24 determination) that he not be treated as a member of a couple for the purposes of the Act.[11]
[11] Exhibit 1, T Documents, T27, page 165, Centrelink document list and customer contact notes for the period 19 March 2019 to 11 November 2020.
The Respondent provided financial documentation in support of his request for a section 24 determination.[12]
[12] Exhibit 1, T Documents, T7 to T16, pages 83-110, Applicant’s evidence.
On 5 September 2020, the Applicant declined to make a section 24 determination[13] on the basis that the Respondent had not shown special reasons to be paid at the single rate of the Age Pension. In particular, he had not shown he was in financial difficulty.
[13] Exhibit 1, T Documents, T28, page 194, Centrelink correspondence.
On 14 September 2020, the Respondent sought review of that decision[14] and provided further documentation in support of his request for review.[15]
[14] Exhibit 1, T Documents, T27, page 177, Centrelink document list and customer contact notes for the period 19 March 2019 to 11 November 2020.
[15] Exhibit 1, T Documents, T17 to T22, pages 111-118, Applicant’s evidence.
On 29 October 2020, an Authorised Review Officer (ARO) affirmed the decision.[16]
[16] Exhibit 1, T Documents, T23, pages 119-124, Decision and notes from the ARO.
On 11 November 2020, the Respondent sought review of the ARO’s decision by the SSCSD.[17]
[17] Exhibit 1, T Documents, T24, pages 125-130, Application for Review of Decision to SSCSD.
On 8 March 2021, the SSCSD set aside the decision under review and, in substitution, decided that a section 24 determination should be granted so that the Respondent was to receive the Age Pension at the single rate.[18]
[18] Exhibit 1, T Documents, T2, pages 10-12, SSCSD decision.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 7 April 2021.[19]
[19] Exhibit 1, T Documents, T1, pages 1-9, Application for review.
On 19 January 2022, a telephone Hearing was held for this application. At the Hearing, the Respondent and Ms La (with the assistance of an interpreter) gave evidence under affirmation.
By virtue of a stay order, the Respondent is presently in receipt of the Age Pension at the partnered rate.
ISSUES
There is no dispute between the parties that the Respondent was a member of a couple with Ms La from 2 March 2020. As such, the Tribunal accepts that, for the purposes of

section 4(2) of the Act, from 2 March 2020, the Respondent was a member of a couple and ordinarily would be entitled to be paid the Age Pension at the partnered rate from that date.
The issue for the Tribunal to consider is whether there are special reasons for the Respondent not to be treated as a member of a couple, such that a section 24 determination should be made.
THE LAW
The relevant law in relation to these matters is found in the

Social Security Act 1991
(Cth) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
Section 24 of the Act provides a discretion to the Secretary to determine in writing that a person who is legally married to another person is not to be treated as a member of a couple, for the purposes of section 4(2), if the Secretary is satisfied that some special reason exists in that particular case. Section 24(1A) of the Act relevantly[20] provides:
[20] The Respondent told the Tribunal that he and Ms La were in a registered relationship.
Person may be treated as not being a member of a couple (subsection 4(2))
(1A) If:
(a)a relationship between a 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; 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.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; (1999) 53 ALD 277 (Boscolo), French J (as he then was) explained the special reason discretion at [18] as follows:
The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss”: Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be “special” in relation to animals generally but “…when you are speaking of poets, he may need to be a Milton”: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of “special” because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-262; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term “special” was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
[Emphasis added]
EVIDENCE AND CONTENTIONS
At the Hearing, the Respondent gave evidence by telephone under affirmation. The Tribunal considers that the Respondent gave honest and open responses to questions asked. The Respondent told the Tribunal that:
·
He agrees he is a member of a couple with Ms La and has been since

2 March 2020.
·He and Ms La are in a registered relationship as de factos. Their relationship has been registered with Births, Deaths and Marriages and this is required to get a Partner Visa.
·He and Ms La met when she came to Australia on a Holiday Visa to visit her son and grandchildren at Hervey Bay. They were introduced by a friend. All she had with her was the suitcase she had for her holiday, but they met and she did not go back to Vietnam.
·He did not give much thought to how he would support Ms La or how she would support herself as he owns his own home and was on the Age Pension; he thought they would survive and be okay.
·He and Ms La have a joint bank account and the vehicle registration is now in both names.
·He considers that special reasons to give him the Age Pension at the single rate exist as Ms La cannot add to the upkeep of the house or to food. They live as cheaply as they can.
·Ms La is not entitled to social security payments.
·Ms La does not have a driver’s licence; he has been trying to teach her how to drive in the back paddock.
·Ms La is fairly active and gets around well. She has tummy problems due to the war years in Vietnam.
·Ms La is entitled to Medicare.
·He and Ms La have separate private health insurance policies.
·Ms La’s English is getting better as they have been living together for 2 years. She spends a lot of time on the phone using an application that translates for her.
·He does not know of anywhere within 50kms that has a face-to-face English language school.
·Ms La was a high school biology teacher in Vietnam.
·They did not realise, until this present process before the Tribunal, that Ms La was allowed to work in Australia. However, this would not make a difference as he had looked on a website, and jobs like fruit picking, she is unlikely to be able to do as she is not used to physical work and there is no work close to where they live.
·Ms La has not applied for any jobs.
·Ms La is a small lady. She is not big and strong, and is not robust enough to do heavy labour work.
·They live 10kms out of Childers and the work opportunities there are limited.
·Because Ms La does not have a driver’s licence, even if she could get a job, because of where they live, he would have to take her and pick her up.
·Ms La is resourceful - she does not waste anything.
·Ms La helps around the house by tending to the garden, keeping the chooks, tidying up, sharing the washing and housework, and doing most of the cooking. She keeps the house clean.
·Ms La had suggested that they sell some of their produce in a roadside sale, but they would have to set up down on the highway which is around 1km away. They do not have enough to sell after self use and what they use to barter with neighbours. He is 77 years old and it is a big job to pick enough fruit to sell.
·He owns his home with no mortgage. He has 15 acres of land and has some sheep, but it is getting harder to manage them. In the past, he has been able to process the sheep for self-consumption; however, for the last 3 years, a friend has been doing it for him.
·His property was valued 8 or 9 years ago at being worth between $400,000 and $450,000, but it might be more now.
·He has two boats, one is a tinny that he uses in the creek to catch crabs, although he only does that when people come to visit, so not every often. His other boat has a quarter cabin. Neither boat is insured.
·He has a 2018 ute that is registered and insured. He did have another ute; however, he sold it for $500 as it was a wreck because a cow had run into it.
·He has a trailer that he could not do without. He could, if he had to, sell his boat and caravan, but would not get much for them.
·He presently has 3 sheep, 1 cow and a share in a ram with a friend. When his sheep have lambs, he keeps them as they are a years’ worth of meat.
·He has a little orchid.
·His expenses are now more than his Age Pension and his bank balance is decreasing so he tries not to spend anything.
·They are getting by, but do not spend anything on anything unnecessary. They do not go anywhere, do not eat out, and eat what they grow and have seasonally.
·The property does not have town water or septic but does have electricity.
·He owns a boat that he paid $5,000 for 16 years ago and a 1964 model caravan. He is paying the registration because he cannot afford to lose the registration.
·There is some house maintenance that requires doing, including painting the veranda posts to protect from weathering and the veranda also needs a coat of lacquer. All together, he expects it will cost around $8,000.
·He has $13,000 or $14,000 in savings for emergencies and upkeep of the property.
·When asked what the change in the rate of his Age Pension from the partnered rate to the single rate would mean, that it would not mean a lot of change to how they live, but it might mean that he would be able to save a bit of worry, he is worried that his savings will all be gone before he is.
·He is entitled to not have to be a lonely old man and should not be penalised for having a partner.
·He has worked all of his life, paid taxes and is entitled to his Age Pension – his partner has no ability to contribute.
At the Hearing, Ms La gave evidence under affirmation and with the assistance of an interpreter, she told the Tribunal:
·She has not enrolled in English classes since she has been in Australia. She is learning in person or online.
·She had done two short 2 hour lessons for a couple of months when she was in Vietnam, but she was not always able to go.
·She mainly does the cooking and helps her husband to clean up the house.
·They are old people, so they help each other with everything.
·She helps in their garden, picking fruits and things with her husband.
·When asked if she wanted to get a paid job and if she was prepared to look for work, that her husband receives less money since she moved in and also spends more money so she might have to get a job to support him.
·She is a retired teacher.
·When she came to Australia, she was just planning to visit her grandchildren and go home.
·She uses her phone to learn English.
·She needs to learn English, get a driver’s licence and get work to help her husband but, for now, she asks that the Tribunal helps her husband.
The Applicant contended that there are no special reasons for a section 24 determination to be made in relation to the Respondent for the following reasons:[21]
·Ms La’s ineligibility for social security, of itself, is insufficient to constitute a special reason.
·This is a circumstance that both the Respondent and Ms La would (or could) have been aware of when entering into the relationship.
·While Ms La has no income and no assets (or alternatively, does not have access to her assets overseas), this is something which both she and the Respondent would have been aware of when entering into the relationship.
·Ms La’s lack of financial resources is not sufficient, on its own, to justify the application of section 24 of the Act: Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 at [39].
·There is no evidence that the Respondent has an inability to pool resources with Ms La, and no evidence that the couple are in financial difficulties.
[21] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, pages 7-8, paragraphs 4.17-4.24.
The Applicant contended that there is no evidence that the Respondent had an inability to pool resources with Ms La from 2 March 2020 or from a subsequent date,[22] as they are not physically separated by illness, imprisonment, geographical distance or any other reason, and moreover, there is no legal or practical reason Ms La is unable to work.[23]
[22] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, pages 8-10, paragraphs 4.25-4.32.
[23] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 10, paragraph 4.30.

The Applicant submitted that it “acknowledges that Ms La is currently 64 years of age [redacted] and lives in a regional area, both of which are factors which may reduce her prospects of employment. However, [it] contends that, in circumstances where there is no evidence before the Tribunal that Ms La has sought and had difficulty obtaining employment, Ms La’s potential earning capacity has not been tested and therefore there is no evidence to support a finding by the Tribunal that this is a case in which Ms La has ‘nothing to contribute to the pool’.”[24]
[24] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 10, paragraph 4.31.
The Applicant contended that there is no evidence that the couple are in financial difficulty,[25] in particular, given:[26]
[25]    Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 10-14, paragraphs 4.33-4.40.
[26]    Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, pages 13-14, paragraph 4.40.
(a)[The Respondent] owns the property at [Redacted] Childers. In Statements of Financial Circumstances dated 9 February 2021 and 30 June 2021, [The Respondent] estimated the value of the property as $400,000 (T25, Attachment A). It does not appear to be subject to a mortgage.
(b)[The Respondent] owns a caravan, two boats, two utes, a trailer and livestock (T18, T25).
(c)[The Respondent] has provided verification of bank account balances totalling approximately $22,000 (T22).
(d)As at 13 July 2020, [The Respondent] had a balance of $13,836.04 in his FirstChoice Allocated Pension account (T14). It is notable that the [The Respondent] has made the following withdrawals from his pension account since its purchase on 7 September 2009:
(i)        $18,000 on 20 April 2020;
(ii)       $7,500 on 2 March 2020;
(iii)      $50,000 on 26 June 2018;
(iv)      $15,000 on 2 February 2012; and
(v)       $20,000 on 22 February 2010.
(e)The withdrawals in 2018 and 2020 are partly but not wholly explained by [The Respondent] purchasing an Isuzu ute for $47,164 on 16 July 2018 (T16) and incurring fees from Migrate Lawyers of $12,665 on 28 February 2020 (T15).
(f)[The Respondent] has no debts and no dependent children/adult students (T25, Attachment A).
(g)[The Respondent] has provided a budget stating that he receives Age Pension of $18,500 per year and his expenses total $14,575, leaving a surplus of $3,925 (T13).
(h)There is no evidence that the couple are not able to pay for accommodation and the basic necessities of life. Their situation is greatly helped by the fact that [The Respondent] owns his own home and does not incur mortgage or rent payments, this distinguishing the couple from the majority of other social security recipients. Although the couple’s expenses do not appear to be excessive or extravagant, [The Respondent] does incur costs of registration, insurance and maintenance of a number of assets including a caravan, two boats, two utes and a trailer. [The Respondent] has stated that he would like the extra money because ‘it would be nice to be able to save a bit each year for a short holiday somewhere’ (T13). This is not consistent with the purpose of section 24, which is intended to be the option of last resort.
(i)There is no indication that a significant debt will arise as a result of a section 24 determination not being made. This is because [The Respondent] correctly reported that he commenced a relationship with Ms La on 2 March 2020 and consequently began receiving age pension at the partnered rate from 28 March 2020 (T26/139). This further distinguishes this case from authorities such as Mohammad in which the Applicant’s financial situation was compounded by a debt of over $8,000 raised by the Secretary as a result of his member of a couple status.
The Applicant contended that overall, the Tribunal cannot be satisfied that the Respondent should, for a special reason, not be treated as a member of a couple, and consequently, the discretion to make a section 24 determination should not be exercised.[27]
[27] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 14, paragraph 4.41.
The Applicant contended that, as such, the Respondent has been entitled to be paid the Age Pension at the partnered rate since 2 March 2020 noting that:[28]
[28]    Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, pages 14-15, paragraphs 4.42-4.43.
4.42 [The Respondent’s] rate of age pension is worked out in accordance with section 1064(1)(a) of the Act, which provides:
Rate of age and disability support pensions and carer payment (people who are not blind)
(1)       The rate of:
(a)       age pension; and
…
is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.
4.43Method A of the Rate Calculator establishes an overall rate calculation process. Section 1064-B1 provides that the rate of age pension for a person who is partnered is lower than the rate for a person who is single.
CONSIDERATION
In considering whether a special reason exists to enliven the discretion in section 24 of the Act, it is important to keep in mind that the rate of Age Pension a person receives is subject to a means test and whether a person is single or a member of a couple. Eligibility for the Age Pension is not automatic once a person reaches qualification age.
According to the Department of Social Services, the purpose of the Age Pension is to “provide income support to older Australians who need it, while encouraging pensioners to maximise their overall incomes.”
The Age Pension has been described as “a fundamental part of Australia’s social security system and acts as a safety net for seniors with few other resources and supplements the retirement incomes of those with lower levels of private savings. The Age Pension is targeted through the social security income and assets tests to those most in need.”[29]
[29] See the United Nations Human Rights Council, United Nations Questionnaire on social protection of older persons addressed to Governments by the Independent Expert on the question of human rights and extreme poverty, Australia (2010) , found at The Age Pension is designed to provide for older people who are unable to adequately provide for themselves in retirement and, for an increasing number of seniors, it can provide a supplement to their private resources (ohchr.org).
The purpose of section 24 of the Act was explained in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No. 4) 1991 (Cth) as:
There is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the same economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because he or she is living apart from his or her partner because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.
The provision of a discretion to provide for circumstances where a person who would ordinarily be paid the Age Pension at the partnered rate to be paid at the single rate is clearly intended to apply only where a special reason to do so exists.
The Tribunal is aware that there is a body of case law in relation to section 24 of the Act and that deals with what constitutes special circumstances. The consistent principle coming from both the Federal Court and Tribunal decisions is that, while consideration may be given to whether there is financial difficulty as a result of the couple’s circumstances resulting from a lack of ability to pool resources, the only question posed by section 24 of the Act is whether there is a special reason to treat the person as not being a member of a couple. It must be remembered that each case must be determined based on its own facts.
The Tribunal further notes that the Applicant drew its attention to relevant decisions of the Federal Court and Tribunal in its Statement of Facts, Issues and Contentions[30] and at the Hearing. The principles in each are consistent with the decision in Boscolo outlined above. In considering the relevant precedents, the Tribunal notes that there were a number of guiding principles established in relation to when it is appropriate for a section 24 determination to be made. Those principles and their application have been considered and, in making its decision, the Tribunal has done so consistently with them. The Tribunal, however, has not reproduced a discussion of those precedents in this decision, as the primary question here relates to whether there is a special reason for the Respondent not to be treated as a member of a couple when considering his “particular case”.
[30] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, pages 1-16.
In this matter, the Respondent, after many years of being on his own, has had the good fortune of finding someone to share the rest of his life with. Having met and formed a relationship with Ms La, the Respondent chose to register their relationship and apply for a Partner Visa so that she could stay permanently in Australia. The Respondent was aware of Ms La’s age, financial position and limited proficiency in English at the time that their relationship was formed and when they decided to start a life together by her moving to his property.
The Respondent’s evidence was that he had expected to continue to receive the same rate of the Age Pension moving forward and, as such, thought he would have no problem supporting Ms La. The Respondent was aware that Ms La was not eligible for social security payments, did not have any assets or income to add to their joint asset pool and considered that based on her age, their location and her level of English (and prior to the Tribunal process, her visa requirements) meant that her future employment opportunities may be limited. In fact, the Respondent’s evidence was that he had never expected that Ms La would work. As such, while there is a lack of being able to pool resources, that is a position that was known to the Respondent at the commencement of his registered relationship with Ms La.
Further, the evidence before the Tribunal identifies that Ms La’s ability to gain employment has not been fully tested and, as such, her ability to contribute is effectively unknown. An inability to pool resources does not, of itself, constitute a special reason for the discretion in section 24 of the Act to be exercised.
The Respondent’s evidence in relation to his financial position showed that he and Ms La live a frugal life, however, he has multiple realisable assets (other than his property which is his primary place of residence) which he is not fully utilising (but that incur annual expenses) and savings totalling approximately $17,000[31] and a superannuation balance in the vicinity of $13,000.[32] While the Respondent’s evidence is that his present fortnightly expenses exceed his Age Pension when paid at the partnered rate, his evidence was that a change in the rate of his Age Pension back to the single rate would not change the way they live, rather it would just save him some worry.
[31] Exhibit 1, T Documents, T22, page 118, Bank account balance; Exhibit 4, Statement of Financial Circumstances and noting that the Respondent’s evidence at the Hearing was also that he had $13,000-$14,000 in savings.
[32] Exhibit 1, T Documents, T14, pages 105-108, Superannuation Statement for Allocated Pension; Exhibit 4, Statement of Financial Circumstances.
Consequently, while the Tribunal acknowledges that the Respondent is in no way living a lavish lifestyle, he is also not experiencing financial difficulty.
Given the evidence before it, the Tribunal does not consider that the Respondent has demonstrated that there is a special reason as to why he should be paid the Age Pension at the single rate despite being partnered. The fact that Ms La is not entitled to receive social security benefits and is limited or unable to contribute to the relationship pool of resources, is not, in and of itself, special. Such circumstances arise in many cases where one partner is working; however, retires and is entitled to the Age Pension at the partnered rate, even though their partner is not or is unable to work and also not eligible for social security payments – the person would need to show that their circumstances constituted a special reason for them to be paid the Age Pension at the single rate.
The Respondent believes he should be paid the Age Pension at the single rate despite being partnered because he paid his taxes and would like to feel financially secure by maintaining his savings and having money left over to save for holidays and pay for unexpected expenses. While the financial security that the Respondent is seeking for himself and Ms La is not unreasonable and his present circumstances mean that there is no pooling of resources, the Respondent did not, in any way, contend that he was in financial difficulty or that there was a particular need for him to be paid the Age Pension at the single rate.
The Tribunal notes that, based on the Respondent’s evidence, while Ms La may not be in a position to contribute financially to their relationship, he was aware of that from the outset and he proceeded to pursue the relationship and, by all accounts, he and Ms La are very happy together. This may well indeed be the case as, according to the Respondent’s evidence, Ms La does contribute significantly to their now joint household by way of cooking, providing assistance with housework and gardening and provides companionship, all of which should not be undervalued.
It is clear to the Tribunal that the purpose of the Age Pension is to assist those who require the assistance and are entitled to it according to their personal and financial circumstances. The Age Pension is not a right or return of one’s taxes upon reaching a particular age.
In considering the evidence before it and the relevant case law in assessing the Respondent’s circumstances, the Tribunal finds that no special reason exists to enliven the discretion in section 24 of the Act.
DECISION
For the reasons set out above, the Tribunal is not satisfied that the Respondent should, for a special reason, not be treated as a member of a couple. As such, the Tribunal finds that there is no special reason for the discretion in section 24 of the Act to be exercised.
Consequently, the Tribunal sets aside the decision of the SSCSD dated 8 March 2021 and substitutes a decision that the Respondent has been entitled to be paid the Age Pension at the partnered rate since 2 March 2020.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................[SGD].........................................
Associate
Dated: 25 February 2022

Date of hearing: 19 January 2022

Solicitor for the Applicant:
Ms Gillian Gehrke
Sparke Helmore Solicitors

Respondent: By telephone

[2022] AATA 324

25 February 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Appeal

Date of hearing:	19 January 2022
Solicitor for the Applicant:	Ms Gillian Gehrke Sparke Helmore Solicitors
Respondent:	By telephone