Dring and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4376

Dring and Secretary, Department of Social Services (Social services second review) [2021] AATA 4376 (26 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2546
Re:Michael Dring
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:26 November 2021
Place:Sydney

The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – age pension – rate – whether the applicant is a member of a couple for the purposes of calculating his rate of age pension – whether the applicant is a member of an illness separated couple – whether there is a special reason for the applicant not to be treated as a member of a couple – provisions of the Social Security Act 1991 (Cth) considered – relevant policy and cases considered – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Purdie and Secretary, Department of Social Services [2013] AATA 743
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
26 November 2021
INTRODUCTION

The applicant, Michael Dring (‘Mr Dring’) resides in Thailand and is in receipt of age pension. From September 2013 through to 23 September 2019 Mr Dring received age pension at the single rate. On 12 July 2018 Mr Dring notified Services Australia (‘the Agency’) that he had married Achara Dring (‘Mrs Dring’) on 15 October 2015. On 23 September 2019 the Agency began paying Mr Dring’s age pension at the partnered rate.
Mr Dring sought review of the decision to pay his age pension at the partnered rate, which was affirmed following an internal review. On 31 March 2020 the Social Services and Child Support Division of the Tribunal (‘AAT1’) affirmed the decision to pay Mr Dring at the partnered rate having determined that Mr Dring was a member of a couple from the date of his marriage. Mr Dring now seeks review of that decision at the General Division of this Tribunal.
ISSUES TO BE DETERMINED
Mr Dring acknowledges that he and Mrs Dring remain married, however he submits that they are an illness separated couple as he and his wife are unable to live together on account of Mrs Dring’s illness.
The Secretary contends that as Mr Dring is a member of a couple who are not living separately and apart on a permanent and indefinite basis he should be paid age pension at the partnered rate.
The issues to be determined by the Tribunal are whether Mr Dring and Mrs Dring:
(a)are members of a couple; and if so
(b)whether they are an illness separated couple on account of Mrs Dring’s illness; and
(c)whether there is a special reason not to be treated as a member of a couple.
BACKGROUND AND EVIDENCE
Mr Dring is 73 years of age and currently resides in Thailand. On 15 October 2015 Mr Dring married his wife Achara Dring in Thailand. Prior to meeting and marrying Mrs Dring, Mr Dring was residing in Australia from where he corresponded with Mrs Dring using the LINE mobile phone application for approximately two years.
When Mr Dring arrived in Thailand in 2015 he was granted a tourist visa valid for 30 days. Given the duration of his visa, he and Mrs Dring chose to marry soon after he arrived in Thailand.
Mr Dring was paid the single rate of age pension between 9 September 2013 and 23 September 2019. Although he married Mrs Dring in October 2015, it was not until 12 July 2018 that Mr Dring notified the Agency of his marriage and provided a copy of his Thai Certificate of Marriage.
On 23 September 2019 the Agency determined that Mr Dring was a member of a couple with Mrs Dring from the date of their marriage and Dring was paid age pension at the partnered rate from 29 August 2019.
On 16 October 2019 Mr Dring submitted a Mod S ‘Separation Details’ form to the Agency in which he confirmed that he and Mrs Dring separated on 11 February 2016. Accompanying the form was a note which read in part:
Please find attached a completed MOD S Separation details form, I hope this will now return my pension payments to the higher rate that I was entitled to till you lowered them on the on the 30/09/2019 without warning.
[errors in original]
On 21 October 2019 Mr Dring submitted a second Mod S form confirming separation on 11 February 2016. On 8 November 2019 he informed the Agency that he and Mrs Dring were living apart on account of Mrs Dring’s ill health.
On 24 November 2019 Mr Dring emailed the Agency expressing frustration that he was being paid age pension at a reduced rate and stated that the date of separation provided in his Mod S forms was in fact incorrect but that he had never lived with Ms Dring on account of an illness she contracted in 2014.
Currently, Mr Dring lives in a two-level property he rents from his Mrs Dring’s uncle (‘the Wichit property’). He lives apart from Mrs Dring, who lived in a property in Talat Yai (‘the Talat Yai property’) with her family until November 2018, after which she moved to a new home on Sakdidet Road (‘the Sakdidet Road property’) with her father, brother, sister and their family and children.
Mrs Dring has a health condition which Mr Dring described as an adverse reaction following a bacterial infection. Mr Dring claims that the infection ‘blew her up like a big balloon, infected her immune system and lymphatic system’. According to Mr Dring, Mrs Dring now weighs 200 kilograms and lacks mobility.
Mrs Dring’s lack of mobility means that she cannot live with Mr Dring at the Wichit property as it is a two-level dwelling. Mr Dring contends that he is unable to live with Mrs Dring because there are too many people – 11 adults and three children – living at the Sakdidet Road property.
In a statement dated 1 November 2020 Mrs Dring confirms that she and Mr Dring have never lived together. She attributes this to her health condition and the lack of available space at the Talat Yai property and then the Sakdidet Road property, which she writes is even smaller than the Talat Yai property that it replaced.
Although Mr Dring and Mrs Dring do not live together, Mr Dring stated that he lives 30 minutes from the Sakdidet Road property and that the Talat Yai property is 40 minutes away by car.
RELEVANT LEGISLATIVE FRAMEWORK
Section 55 of the Social Security Act 1991 (Cth) (‘the Act’) provides that a person’s age pension rate is worked out using Pension Rate Calculator A at the end of section 1064.
Section 1064-A2 of Pension Rate Calculator A provides the method of calculating an age pension rate. Section 1064-A2, provides that where two people are members of a couple they will be treated as pooling their resources and sharing them on a 50/50 basis.
Section 1064-B1 provides that a person’s maximum basic rate of age pension depends on a person’s family situation, which amongst other things, includes whether they are considered to be partnered or not a member of a couple.
Paragraph 4(2)(a) sets out when a person is considered to be a member of a couple:
Member of a couple—general
(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 …
Subsections 4(3) and 4(3A) of the Act set out the criteria for determining if a person is living separately and apart from the person they are legally married to:
(3)       In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)       the financial aspects of the relationship, including:
(i)        any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)       any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)      any legal obligations owed by one person in respect of the other person; and
(iv)      the basis of any sharing of day‑to‑day household expenses;
(b)       the nature of the household, including:
(i)        any joint responsibility for providing care or support of children; and
(ii)       the living arrangements of the people; and
(iii)      the basis on which responsibility for housework is distributed;
(c)       the social aspects of the relationship, including:
(i)        whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)       the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)      the basis on which the people make plans for, or engage in, joint social activities;
(d)       any sexual relationship between the people;
(e)       the nature of the people’s commitment to each other, including:
(i)        the length of the relationship; and
(ii)       the nature of any companionship and emotional support that the people provide to each other; and
(iii)      whether the people consider that the relationship is likely to continue indefinitely; and
(iv)      whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, the Tribunal provided the following useful analysis:
Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story.
When deciding whether or not a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3). The decision-maker must specifically consider the total picture of the relationship created by all of those factors; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
The Tribunal observed in Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63] that
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
The Social Security Guide (‘the Guide’) provides departmental policy relevant to Mr Dring’s application. Whilst the Tribunal is not bound by government policy, it will generally be taken into consideration unless there are cogent reasons not to do so.
CONSIDERATION
Is Mr Dring a member of a couple?
For the purpose of forming an opinion about the nature of the relationship between Mr Dring and Mrs Dring, I will consider the criteria set out in subsection 4(3) of the Act and any other relevant circumstances.
Financial aspects of the relationship
It is not controversial that Mr Dring supports Mrs Dring and his extended Thai family financially. Mr Dring claims that doing so is a condition of marriage as he is a farnang, or foreigner. Mr Dring provides Mrs Dring money to live on and contributed financially to the building of the Sakdidet property in which Mrs Dring and her family now reside.
Mr Dring estimates that over four years he has spent $109,000 on supporting himself, his wife and his extended Thai family. He previously told the Agency’s Authorised Review Officer (‘ARO’) that he pays for all the household expenses for Mrs Dring’s household including those of her parents. This includes expenses such as water and electricity as well as providing Mrs Dring with THB10,000 each month for food and other incidental expenses.
Mr Dring also gave evidence that he purchased a motor vehicle for Mrs Dring, though it is listed as being part owned by both he and Mrs Dring in documents submitted to the Agency. He told the Tribunal that he had purchased the car but did not want to list it as belonging to Mrs Dring for fear it would appear she was after his money.
I am of the opinion that the financial aspects of the relationship are indicative of Mr Dring being a member of a couple.
Nature of the household
Mr Dring contends that he has never resided with Mrs Dring. Whilst the Secretary now accepts that Mr Dring maintained separate residence throughout their marriage, the Secretary contends that their being physically apart is not conclusive as whether Mr Dring is a member of a couple.
In Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162 this Tribunal considered the test was not simply whether the applicant was living with the other person ‘but also whether the marital relationship … has not been forged or has broken down’. The Secretary contends that while Mr Dring and Mrs Dring are physically separate, there was no breakdown in the mental aspect of their marital relationship. Further, although they never lived together since marrying, they remain married and have no intention to divorce.
Whilst I accept that this is not a conclusive factor as to whether or not Mr Dring was a member of a couple, it is one of the factors to be weighed under section 4(3) and weighs against Mr Dring being a member of a couple.
The social aspects of the relationship
Mr Dring and Mrs Dring hold themselves out as a married couple, including both to the Agency and the Tribunal. The Secretary notes that Mr Dring referred to Mrs Dring as his partner in an income and assets form dated 1 October 2019 and refers to Ms Dring as his wife on multiple occasions during 2019 and 2020.
During the hearing Mr Dring told me that he and Mrs Dring go out together on Buddhist holidays to make merit. Mr Dring gave evidence that the last time he and Mrs Dring went out together was for the Thai new year festival Songkran. He and Mrs Dring speak weekly and he visits her at least once a fortnight for half an hour or so.
Consistent with a written statement from Mrs Dring, Mr Dring indicated that his fortnightly visits to see Mrs Dring lasted half an hour during which he picked up bills and paid his respects to his extended Thai family and said goodbye to them formally.
In cross-examination Mr Dring confirmed he refers to Mrs Dring as his wife when they were in public together. He suggested that for cultural reasons he must treat Mrs Dring as his wife as to do otherwise would be disrespectful.
Overall, I find that the social aspects of the relationship are indicative of Mr Dring being a member of a couple.
Sexual relationship
Mr Dring indicated that he and his wife do not have a sexual relationship. There is no evidence to the contrary, though he gave evidence that ‘we kiss’.
The Secretary submits that the absence of a sexual relationship is not a determinative factor in considering if an applicant is a member of a couple. I am referred by the Secretary to the matter of Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792 where the Tribunal noted that a sexual relationship was ‘one element indicating the nature of the relationship between two people and must be carefully considered but is not alone conclusive in establishing they are not members of a couple’.
I am satisfied that this consideration does not support Mr Dring being a member of a couple.
The nature of the commitment to each other
Mr and Mrs Dring have been married for over five years. Mr Dring provides extensive financial support to Ms Dring and her extended family. He told the AAT1 that he and Mrs Dring may live together in the future if Ms Dring’s medical condition improves.
Mr Dring told me that he cannot and has no intention of divorcing Mrs Dring. He indicated it is a legal requirement that they remain married to maintain his immigration status in Thailand. Upon gaining his permanent residency, Mr Dring said he can divorce Mrs Dring.
As for whether Mr Dring intends to divorce Mrs Dring should he become a permanent resident of Thailand, his evidence was not clear. In seeking a clearer understanding of Mr Dring’s commitment to his marriage, Mr Dring gave the following evidence:
Member: I just want to make sure that I understand what your position is on your application, and it sounds to me, based on what you’ve said, that this relationship is primarily a mutually beneficial relationship whereby you get to stay in Thailand and your wife gets financially supported?
Mr Dring: In a nutshell, yes.
Member: And there’s a level of [mutual] respect that you have and that you show deference to her and her family to save face, but essentially it’s almost like a business relationship?
Mr Dring: Well, yes, you could put it that way, yes, I suppose. Correct...
Mr Dring indicated that whilst he himself was uncertain about their future, Mrs Dring may not be content with the current situation. However, he said that she would be happy so long as he continued to support her financially. He also noted that Mrs Dring may be able to partner with someone who has ‘more money’ than him. Whilst they both understood the situation, he said that they had not spoken about what they wanted in the future and that for cultural reasons it was difficult to understand what Thai people were thinking.
Regardless of the intentions, Mr Dring gave evidence that obtaining permanent residency in Thailand is a demanding proposition. He will be required to improve his Thai reading skills prior to undertaking an official interview. He plans to attempt to obtain permanent residency next year but indicated it could take several years to do so.
In the meantime, I am satisfied that Mr Dring is committed to Mrs Dring and their relationship. I consider that this factor does not support a conclusion that they are living separately and apart on a permanent and indefinite basis.
Conclusion
Taken as a whole, the evidence, including that of Mr Dring, is not entirely consistent. Notably Mr Dring submitted a Mod S indicating he and Mrs Dring had separated. He now maintains that they are in fact married, though suggests their relationship it is best likened to a mutually beneficial business arrangement.
Mr Dring makes several references to ‘Clause 2’ and his Thai marriage certificate. It would appear that the translation of his marriage certificate into English indicated that he was cohabitating with Mrs Dring for two years prior to their marriage, rather than communicating with each other during that period. Mr Dring has presented a copy of the Immigration Act in the name of his Majesty King Bhumibol to the Tribunal as well as the Order of the Royal Thai Police Bureau Criteria and Conditions for Consideration of an Alien’s Application for a Temporary Stay in the Kingdom of Thailand. He submits that as he only ‘divorced [his] first Thai wife’ in August 2013 and was prohibited under Thai law from co-habiting with Mrs Dring in the two year period prior to their marriage. I accept this is the case, but do not consider it to be in any way determinative of his application.

Having considered the entirety of the evidence relating to Mr Dring’s relationship, including the matters set out in subsection 4(3) of the Act, I am satisfied that Mr Dring and Mrs Dring are members of a couple and are not living separately and apart on a permanent or indefinite basis.
Are Mr Dring and Mrs Dring an illness separated couple?
Mr Dring contends that he and Mrs Dring are unable to live together on account of Mrs Dring’s illness, which has reduced her mobility. Subsection 4(7) of the Act makes provision for illness separated couples:
Illness separated couple
(7)       Where 2 people are members of a couple, they are members of an illness separated couple if:
(a)       they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and
(b)       because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and
(c)       that inability is likely to continue indefinitely.
The Guide provides Instructions when assessing an illness separated couple including:
Where illness or infirmity that prevents the couple living together is not apparent and no other supporting evidence is available, the claimant/recipient may be requested to provide supporting evidence from a treating doctor or relevant health professional.
The circumstances which Mr Dring contends make he and Mrs Dring an illness separated couple are set out above. There is no medical evidence regarding Mrs Dring’s condition before the Tribunal.
The Secretary contends that it is not apparent why Mrs Dring’s illness prevents her and Mr Dring from living together. Mr Dring indicated it was on account of the Wichit property having stairs and it being preferable for Mrs Dring to reside in single storey accommodation. Noting the lack of evidence to support this claim, the Secretary suggests that it would be possible for Mr Dring to reside with Mrs Dring in a single storey house if he chose to do so.
Mr Dring gave evidence that he rents the Wichit property at below market rates through a family member. Should he be required to rent for single storey accommodation for he and Mrs Dring to share he would need to do so on the open market, which he argues would be prohibitively expensive.
I am not satisfied that there is enough information relating to Mrs Dring’s illness to make a determination that she needs to live in single storey accommodation on account of her illness, nor that Mr Dring could not rent such accommodation if he chose to do so. For these reasons I find that Mr Dring is not prevented from residing with Ms Dring on account of her illness and that he and Mrs Dring are not an illness separated couple.
Is there a special reason why Mr Dring should not be treated as a member of a couple?
Subsection 24(1) of the Act provides the discretion to determine that a person is not to be treated as a member of a couple. This power is discretionary and only applies in limited circumstances where there is deemed a ‘special reason’ exists not to treat a person as a member of a couple for subsection 4(2) purposes.
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.
As outlined by the Secretary, the effect of exercising the discretion is that Mr Dring would be treated as single, so he would be entitled to receive the higher single rate of age pension and unaffected by the income or assets of Mrs Dring.
Mr Dring argues that he does not have an ability to pool resources with Mrs Dring as she does not have any income or substantial assets. He contends that Mrs Dring is unable to work in her chosen professions of fortune telling or as an interpreter. Further, even if she was working, Mr Dring argues that her wage would be very low by Australian standards.
There is no evidence before the Tribunal to support the conclusion that Mrs Dring is unable to work. Mr Dring argues that should she work and pool resources with him, the additional income would be limited as local wages for Thais are relatively low. I consider that this indicates that the cost of living in Thailand is considerably lower than in Australia and this is a relevant consideration when exercising the discretion under section 24.
This observation is supported by Mr Dring’s evidence that he has been able, albeit with some difficulty, to support not only himself but also his wife and his extended family using his pension, albeit supplemented with some of his savings.
Further, in Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, the Tribunal found that Mrs Holt’s lack of income and assets was not a special reason for Mr Holt not to be treated as a member of a couple.
In Purdie and Secretary, Department of Social Services [2013] AATA 743, the Tribunal observed that when considering an application under subsection 24(2), it was appropriate to consider only the question of whether there are special reasons to treat the applicant as not being a member of a couple. The Tribunal stated:
It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.
Having considered the evidence, I am not satisfied that there are either financial or other circumstances identified by Mr Dring which warrant exercising the discretion in subsection 24(2).
CONCLUSION
For the reasons stated above the Tribunal finds that Mr Dring is a member of a couple for the purposes of the Act, that he and Mrs Dring are not an illness separated couple and there are no special reasons which would warrant exercising the discretion to treat him as not being a member of a couple. Consequently, the decision under review will be affirmed.
DECISION
The decision under review, being a decision of the AAT1 dated 31 March 2020, is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 26 November 2021

Date(s) of hearing: 3 August 2021

Date final submissions received: 26 August 2021

Applicant: Self-Represented

Solicitor for the Respondent: Mr C Bavin, Hunt & Hunt Lawyers

Date(s) of hearing:	3 August 2021
Date final submissions received:	26 August 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr C Bavin, Hunt & Hunt Lawyers