DSDJ and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1532
•10 June 2024
DSDJ and Secretary, Department of Social Services (Social services second review) [2024] AATA 1532 (10 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/1617, 2023/1615, & 2023/1569
Re:DSDJ
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Tribunal:Senior Member B. Pola
Date:10 June 2024
Place:Brisbane
DECISION
(i)Pursuant to sub-section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of 7 March 2023 by the Social Services and Child Support Division (2023/1617), with respect to the cancellation of the applicant’s Disability Support Pension with effect from 28 June 2006.
(ii)Pursuant to sub-section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), in accordance with the reasons of this decision, the Tribunal sets aside the decision of 7 March 2023 by the Social Services and Child Support Division (2023/1615), with respect to the applicant’s entitlement to rent assistance from 27 November 2013, and remits the matter to the respondent for reconsideration, with the applicant to provide the respondent further evidence regarding her eligibility for rent assistance, with a favourable determination (if any) taking effect from 20 March 2022.
(iii)Pursuant to sub-section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), in accordance with the reasons of this decision, the Tribunal sets aside the decision of 7 March 2023 by the Social Services and Child Support Division (2023/1569), with respect to whether the applicant ceased to be a member of a couple from 31 March 2016 (or an earlier date), and remits the matter to the respondent for reconsideration with the direction that arrears are payable from 29 August 2002 to 11 September 2002, 13 May 2014 to 19 September 2014, 3 November 2014 to 18 January 2015, 20 February 2015 to 19 March 2015 and 4 November 2015 to 19 March 2016.
................................[SGD]........................................
Senior Member B. Pola
CATCHWORDS
SOCIAL SECURITY - decisions with respect to Disability Support Pension eligibility - where applicant benefits cancelled due to failure to respond to information request - where
domestic violence issues not sole reason for failure to respond - whether applicant was
eligible for rent assistance - consideration of when applicant ceased to be member ofcouple - decision one affirmed - decisions two and three set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)Social Security (Administration) Act 1999 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fahmy and Secretary, Department of Social Services [2014] AATA 164 (26 March 2014)
Fox v Percy [2003] HCA 22
Re O’Connell and Secretary, Department of Social Security [1991] AATA 523Re Sevel and Secretary, Department of Social Security [1991] AATA 135
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Senior Member B. Pola
10 June 2024
BACKGROUND
On 20 November 2023, this Tribunal granted the applicant a confidentiality order due to evidence raised in this application with respect to matters involving domestic violence with her ex-spouse. The applicant is referred to by the pseudonym, “DSDJ”, throughout these reasons.
The Tribunal is reviewing three joined applications of the applicant, for three separate decisions which were previously reviewed by the Social Services and Child Support Division (herein referred to as “SSCSD”) of this Tribunal on 7 March 2023[1]. The Tribunal will refer to each of these applications as Decision one, Decision two and Decision three.
2023/1617 - Decision one - Cancellation of the applicant’s DSP with effect from 28 June 2006
[1] Exhibit TR1, T2, pages 6 to 33.
The applicant in this matter has at varying times been a recipient of the Disability Support Pension (herein referred to as “DSP”), which she first received in 1992[2].
[2] Exhibit TR1, T5, page 394.
On 13 September 2006, Centrelink cancelled the applicant’s DSP with effect from 28 June 2006, due to not receiving a response to a request for financial information sent to the applicant[3]. The Tribunal notes that on 29 January 2014 the applicant was subsequently granted the DSP with effect from 27 November 2013 on the basis that the applicant was a permanently blind person (amongst other conditions)[4].
[3] Exhibit TR1, T16, page 530.
[4] Exhibit TR1, T36, page 620; T37, page 622.
On 27 July 2022, an Authorised Review Officer (herein referred to as “ARO”), reviewed the decision of Centrelink to cancel the applicant’s DSP with effect from 28 June 2006, and affirmed the decision[5].
[5] Exhibit TR1, T25, pages 549 and 550.
On 7 March 2023, the SSCSD of the Tribunal reviewed the decision of the ARO dated 27 July 2022 and affirmed the decision to cancel the applicant’s DSP with effect from 28 June 2006[6].
2023/1615 - Decision two - Whether the applicant was entitled to rent assistance from 27 November 2013
[6] Exhibit TR1, T2, page 17.
On 29 January 2014, the applicant’s claim for the DSP which was granted with effect from 27 November 2013 and was paid on the basis the applicant was a permanently blind person (amongst other conditions) and that rent assistance was not payable[7].
[7] Exhibit TR1, T36, page 620; and T37, page 632.
On 27 June 2022, an ARO reviewed the decision of Centrelink not to pay the applicant rent assistance as part of her DSP[8]. The ARO affirmed the decision that the applicant was not eligible for rent assistance, on the basis that the applicant advised the agency that she did not want to claim rent assistance as part of receiving her DSP as a permanently blind person.
[8] Exhibit TR1, T5, page 384; T48, pages 643 to 649.
On 7 March 2023, the SSCSD of the Tribunal reviewed the decision of the ARO dated 27 June 2022 and affirmed the decision that the applicant was not eligible for rent assistance[9].
2023/1569 - Decision three - Whether the applicant ceased to be a member of a couple from 31 March 2016 (or an earlier date)
[9] Exhibit TR1, T2, page 17.
On 12 April 2016, Centrelink treated the applicant as single from 31 March 2016, on the basis the applicant was separated and living under the one roof[10].
[10] Exhibit TR1, T58, page 664; and T73, page 704.
On 16 August 2022, an ARO affirmed the decision to treat the applicant’s rate of DSP on the basis the applicant was single from 30 March 2016[11].
[11] Exhibit TR1, T74, pages 705 to 715.
On 7 March 2023, the SSCSD of the Tribunal reviewed the decision of the ARO dated 16 August 2022 and set this decision aside, and in substitution sent the matter back to the Chief Executive of Centrelink for reconsideration in accordance with the direction that arrears were payable for the periods of 13 May 2014 to 19 September 2014; and from 8 March 2016 to 19 March 2016.
On 13 March 2023, the applicant applied to the General Division of the Administrative Appeals Tribunal (herein referred to as “Tribunal”) for review of Decision one (2023/1617), Decision two (2023/1615), and Decision three (2023/1569).
JURISDICTION
Application can be made to the Tribunal pursuant to section 142 of the Social Security (Administration) Act 1999 (Cth) (herein referred to as the “Administration Act”), for a first review of decisions by the SSCSD of the Tribunal, with respect to decisions made pursuant to section 135 or section 126 of the Administration Act.
Sub-section 179(1) of the Administration Act provides that application for second review by the Tribunal may be made following a first review by the SSCSD of the Tribunal.
The Tribunal is satisfied that for Decision one, Decision two and Decision three, each decision was internally reviewed by an ARO, in addition to having a first review conducted by the SSCSD of the Tribunal. Therefore, in accordance with sub-section 179(1) of the Administration Act, the Tribunal has jurisdiction to review the joined applications of 13 March 2023.
ISSUES
The issues before the Tribunal for determination are:
(i) Whether the applicant’s Disability Support Pension was correctly cancelled on 13 September 2006 with effect from 28 June 2006 (2023/1617, Decision one); and
(ii) Whether the applicant was entitled to rent assistance from 27 November 2013 (2023/1615, Decision two); and
(iii) Whether the applicant ceased to be a member of a couple from 31 March 2016 or an earlier date (2023/1569, Decision three).
CONSIDERATION
The application was heard in Brisbane on 20 March 2024 with all parties appearing in person before the Tribunal. The applicant was self-represented and had two family members present at the commencement of the hearing (noting they both left shortly after proceedings commenced). The respondent was represented by Ms Jasmine Forsyth of Moray & Agnew Lawyers, in addition two non-participating observers for the respondent were present at the hearing.
The Tribunal heard oral submissions from the applicant, and the respondent’s representative, in addition to considering submitted evidence as outlined in the Exhibit Register, in Annexure 1 of these reasons.
At the conclusion of the hearing, it was agreed that the parties would be provided with an opportunity to submit written closing submissions, in order to address matters which arose during the course of the hearing (and in the respondent’s case, to seek further instructions with respect to a provision within the Administration Act, discussed in the later reasons of Decision one). The respondent was given until close of business on 10 April 2024 to provide written closing submissions to the Tribunal, with the applicant given until 1 May 2024. On 1 May 2024, the applicant requested an extension of time to file her closing submissions. An officer of the Tribunal followed up this request with the applicant by telephone, and the applicant confirmed that she required until 7 May 2024. As a matter of procedural fairness, the Tribunal sought the view of the respondent with respect to the same. On 3 May 2024, the respondent confirmed they consented to the applicant’s request. Accordingly, the Tribunal issued formal directions providing the applicant an extension until 7 May 2024 for the filing of closing submissions. The Tribunal has exhibited the closing submissions of the respondent and the applicant.
The Tribunal notes that on 16 May 2024 the applicant sought to file further closing submissions to the Tribunal. The Tribunal has not considered nor exhibited these late submissions of the applicant as they were received after the agreed date for written closing submissions to be filed, noting the procedural history of this application and the multiple opportunities the Tribunal has afforded the applicant to file written closing submissions.
Evidence of the applicant
The Tribunal heard evidence from the applicant regarding the history of domestic violence which was present in the relationship with her ex-spouse. The Tribunal notes there is a current Temporary Protection Order in place preventing the applicant’s ex-spouse from entering or approaching the applicant’s residence[12]. Further the applicant has tendered submissions which the Tribunal has exhibited, with respect to her relationship with her ex-spouse, which includes:
[12] Exhibit R1, Attachment C.
(i)Undated photos of apparent injuries suffered by the applicant[13];
(ii)A letter of 14 March 2024 from the applicant’s registered psychologist detailing an altercation between the applicant and her ex-spouse, which states the applicant has been charged with breaching an Apprehensive Violence Order and was due to appear in court on 15 March 2024[14];
(iii)An unsigned and undated affidavit written by the applicant detailing domestic violence in her relationship with her ex-spouse[15];
(iv)A multidisciplinary functional capacity report undertaken by an occupational therapist and registered nurse in December 2023 detailing the applicant’s functional capacity, in addition to the nature of the domestic violence she has experienced with respect to her ex-spouse[16];
(v)An unsigned and undated statement prepared by the applicant detailing her personal history and violent relationship with her ex-spouse[17]; and
(vi)An unsigned and undated statement prepared by the applicant’s son detailing the applicant’s relationship with her ex-spouse[18].
[13] Exhibit A1.
[14] Exhibit A2.
[15] Exhibit A3.
[16] Exhibit A4.
[17] Exhibit A5.
[18] Exhibit A6.
In addition to the above evidence of the applicant, the Tribunal notes that Centrelink has numerous file records spanning some 20 years documenting the volatile and often violent nature of the applicant’s relationship with her ex-spouse. This is further detailed by the Tribunal in the latter reasons of this decision.
With respect to the joined applications, the applicant gave evidence to the Tribunal with respect to her financial affairs at the time her DSP had been cancelled in 2006. The applicant told the Tribunal that she and her children had set up a family trust to buy land upon which two businesses operated. The first business was an amusement business that she said her ex-spouse operated, and another amusement business which was operated by a separate individual. The arrangement was such that both businesses were to pay rent to the family trust.
The applicant stated prior to the establishment of the family trust in March 2006 by herself and her children, the family had been relying on a “living will document” which was not formalised[19]. The applicant claimed her financial arrangements were formalised by the family trust which she said was set up by an accountant, and that this settled on 14 March 2006[20]. The Tribunal notes that in addition to the family trust which owned the land upon which two amusement based businesses operated, there was a related trustee company.
[19] Transcript, p 18, lines 6-8.
[20] See Transcript, p 18, lines 17-21.
During the course of the hearing the applicant was asked why she was unable to furnish relevant documents which had been requested by Centrelink at the time with respect to the cancellation of her DSP (Decision one), and her request for rent assistance to be paid (Decision two). The applicant’s evidence on each occasion largely went to the circumstances of the relationship with her ex-spouse, particularly the domestic violence she had endured, and spousal control, being the sole reason why documents were unable to be furnished. As it transpires in the reasons which follow, the Tribunal is not reasonably satisfied on the state of the historical evidence that this is the case in Decision one and Decision two.
In the present matter, the Tribunal is determining matters in three joined applications which spans a period of more than twenty years. The applicant is now seeking to recast historical decisions through her submissions which rely on her recollection of what was said or agreed at the time.
In assessing the contentions put by the applicant in the joined applications, the Tribunal has assessed and balanced these contentions against the historical evidence which contemporaneously documented relevant events as they occurred. In doing so the Tribunal is guided by the findings from their Honours Gleeson CJ, Gummow and Kirby JJ in the High Court that[21]:
“…. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[49] See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617-618…”
[Tribunal bolding for emphasis]
[21] Fox v Percy [2003] HCA 22 at [31].
As the Tribunal will detail in the latter reasons of this decision, the historical file notes recorded by Centrelink with respect to the decision to cancel the applicant’s DSP (Decision one), and to not pay the applicant rent assistance (Decision two) do not support a finding as asserted by the applicant that the circumstances of the relationship with her ex-spouse, was the sole reason why documents were unable to be furnished at the time with respect to these decisions.
In the Tribunal’s mind, the applicant’s credibility has been slightly diminished upon reflection of her reaction when she was taken to her own exhibits during the course of the hearing. The applicant submitted an undated letter signed by her daughter and son which discusses a debt of the applicant’s ex-spouse[22]. In this letter, the applicant’s daughter and son state:
“… It was a shock to find out such a debt had even been put on our father due to the weight of dishonesty from our mother. We can only assume that since our mother was in charge of most book work related matters, she had taken advantage of this to gain some kind of income while completely disregarding the truth of the matter…”
[Tribunal bold for emphasis]
[22] Exhibit A1, p 1.
When the applicant was taken to this evidence at the hearing, she stated that this was an attempt by her ex-spouse to “get his Centrelink debt put onto me”[23]. Further, the applicant claimed that she did not agree with the content of her own exhibit which she provided the Tribunal.
[23] Transcript, p 32, lines 27-28.
As will become evident in the latter reasons of this decision, the Tribunal has difficulty in accepting the submissions of the applicant with respect to her stated involvement in the amusement business run by her ex-spouse, and the related financial affairs of the family trust and related trustee company.
It is for these reasons the Tribunal has placed a greater weight on the contemporaneous file notes which existed at the time these decisions were made, rather than the applicant’s submissions when considering these joined applications.
2023/1617, Decision one – Whether the applicant’s Disability Support Pension was correctly cancelled on 13 September 2006?
The first decision for the Tribunal to consider in these joined applications is whether the applicant’s DSP was correctly cancelled on 13 September 2006.
In a telephone directions hearing held prior to the hearing of these joined applications, the Tribunal asked the respondent to address the previous basis for which the applicant’s DSP had been granted, and in particular whether the applicant had qualified for the DSP as a blind person on the previous occasion she had been a recipient. The Tribunal had asked questions on the basis that when the DSP is granted for reason of blindness, it is not subject to the income or assets test unless a person claims rent assistance[24].
[24] With reference to 4.3.1.30 Rate of income - couples, blind pensioners & children | Social Security Guide (dss.gov.au)
As it transpires in the evidence tendered by the respondent, the Tribunal is satisfied this is not the case for the applicant in this matter. In submissions dated 20 February 2024, the respondent confirmed the applicant was first granted the DSP from 21 May 1992 for her mental health condition, which was also corroborated by medical evidence from a psychiatrist[25]. These submissions confirm that on 27 November 2013, the applicant was subsequently granted the DSP for blindness, in addition to the conditions of unstable angina, anxiety and physical injuries[26].
[25] Exhibit R2, pages 1 and 2, in addition to Attachment A.
[26] Also refer TR1, T30, page 566.
The basis for the cancellation of the applicant’s DSP on 13 September 2006[27] in the present application was due to the applicant not complying with a request of the respondent asking the applicant to furnish financial information in order to determine whether she was being paid her correct entitlement to the DSP.
[27] With effect from 28 June 2006.
This request for further financial information stems from the applicant’s entitlement to attributed income from her shareholding in a trustee company, and her entitlement to derived income from a family trust, in addition to the proceeds of an amusement business that involved the applicant’s ex-spouse and children which has since been liquidated.
Evidence before the Tribunal confirms the applicant informed Centrelink during an interview on 20 February 2006 that there had been a change in her financial affairs, with the ARO recording the following[28]:
“… customer informed ARO that they have had a family trust since 31/5/05 but only for real estate at that time (Although customer was not really clear about this) and more recently they have bought a business – [name redacted]. The are also negotiating for a franchise for sheds to be run from the business. They have set up a privat company and are using the family trust to operate the business with their children…”
[sic]
[28] Exhibit TR1, T4, page 249; and T7, page 490.
These arrangements were further confirmed by the applicant to a Centrelink Specialist Officer during a phone call on 14 March 2006[29].
[29] Exhibit TR1, T4, pages 245 to 247.
The Tribunal further notes that on 30 May 2006, a further interview was undertaken with the applicant and a file note of that conversation was recorded by a Centrelink Specialist Officer[30]:
“… I had a very lengthy discussion with [name redacted, applicant] regarding the attribution principles applying to trusts, the gifting provisions, income & asset assessment of trusts & when loans to the trust will be recognised as liabilities. The thrust of [name redacted, applicant] concern throughout the conversation is that she is adamant that she will retain control of the family’s ventures. However it is her intention that the children are the one’s that should benefit from these ventures. They will be doing the work and therefore they will be the one’s who are rewarded. There does not seem to be any set division of who received what, but more of a general understanding that the family will work for the benefit of the family. I explained to [name redacted, applicant] that I will need to request information from her to enable me to ensure that we are paying the correct entitlement…”
[Tribunal redactions, bolding for emphasis]
[30] Exhibit TR1, T4, pages 242 and 243.
On 31 May 2006 a letter was sent to the applicant, which stated:
“… The purpose of this letter is to gather information to help us make the right decision about your Disability Support Pension.
I refer to our recent telephone conversation regarding the [name redacted] Family Trust, property, loans and other income & asset assessments which may affect your entitlement to the Disability Support Pension. We will require the following information to allow us to complete a review of your and your partner's entitlement.
Would you please provide the following:
1/ A profit and loss statement for the trust from commencement of business.
2/ A balance sheet for the trust detailing individually all of the assets held in trust and all the liabilities owed by the trust.
3/ A copy of all loan documents held either personally or by [name redacted] Pty Ltd as trustee for the trust. We also require loan statements for these.
4/ The attached SA220 fully completed.
5/ Statement from you regarding how [name redacted] will pay you for [property name redacted].
Please mail any information we have requested to this office or personally bring it to your nearest Centrelink Office. Original documents can be returned by registered mail at your request. The authority for this request is under social security law. If you would like to talk about this letter or are unable to provide the requested documents please phone me on [number redacted]. You need to contact us or supply the documents within 21 days after the day on which this letter is given to you to avoid possible suspension of your Disability Support Pension...”
[Tribunal redactions]
On 28 June 2006, the applicant’s DSP payments were suspended as she had not responded to the request for further financial information as detailed in the above letter[31].
[31] Exhibit TR1, T13, page 527.
On 7 September 2006 a Centrelink file note records that the applicant had contacted the Ombudsman’s office to make a complaint regarding the request for further financial information by the respondent. It is noted that the Ombudsman completed its investigation into this complaint without any further action in November 2006[32].
[32] Exhibit TR1, T4, pages 240 and 241.
On 13 September 2006, the applicant’s DSP payments were cancelled with effect from 28 June 2006 for failing to respond to the request for further financial information[33].
Was it reasonable for the applicant to comply with the respondent’s request for further financial information?
[33] Exhibit TR1, T16, page 530.
In evidence before the Tribunal, and at the hearing, the applicant has contended that it was not reasonable for her to provide the requested information with respect to her financial interests, on the basis that she was subjected to domestic violence, suffered spousal control and was subjected to financial abuse from her ex-spouse.
At the hearing the applicant was questioned as to why she did not provide Centrelink with the relevant documents which had been requested in May 2006. The applicant gave evidence that she had not responded to the request for financial information as her spouse kept a locked office and she was unable to gain access, and at the time of the request for information the business had only started. Further the applicant told the Tribunal that the family trust had bought the land upon which the business operated, it had never bought the business. The applicant claimed that she thought an accountant had assisted in the creation of the family trust and that it had settled on 14 March 2006. The applicant stated that she was unable to provide any documents with respect to the family trust or the business.
At the hearing, the respondent tendered evidence with respect to the applicant’s involvement in the family business[34]. The Tribunal refers to three media articles which directly quote the applicant with respect to the running of the former family business.
[34] Exhibits R3, R4 and R5.
The first media article from June 2008 directly quotes the applicant with respect to a planning application for the business to expand its operations, that was currently before a regional council.
A second media article from August 2012 reports the applicant as stating, “… she said she and her husband bought the facility six years ago and it had been running for a total of 16 years now…”, with respect to the family business. This media article goes on to directly quote the applicant describing the cost of major repairs to assets of the family business.
During the course of the hearing, the applicant was questioned with respect to the second media article of August 2012, and asked if the photo in the media article at the time was a picture of her, which she had agreed it was. When questioned as to how the applicant was able to quote the cost of repairs with respect to the business, the applicant stated she had heard “gossip” around the business, and she just talked around those figures in the media articles, and this was “irrelevant” to running a business[35].
[35] Transcript, p 24, lines 25-28.
The third media article from January 2015 relates to the sale of the land that was reported at the time to be dilapidated, and that the property had gone into liquidation under the former owners and names the applicant and her ex-spouse.
The Tribunal questioned the applicant during the course of the hearing with respect to the lack of contact the applicant had with Centrelink following the request for financial information made in May 2006, and subsequently complaining to the Ombudsman in September 2006; with the next contact the applicant had with Centrelink regarding the DSP, not occurring until 2010 with respect to the applicant making a claim for the DSP on 1 March 2010[36]. The applicant told the Tribunal she was unsure as to why there was a lack of contact with Centrelink but claimed that she had been subjected to trauma from her relationship during that time, which prevented her from contacting Centrelink.
[36] Exhibit TR1, T4, pages 240 and 241.
The Tribunal does not doubt the long history of domestic violence in the applicant’s relationship with her ex-spouse. However, the Tribunal is of the view that the historical evidence provided around the time of the information request made by the respondent on 31 May 2006, and the evidence after this period, does not suggest that domestic violence was the sole reason why the applicant had failed to comply with a request to provide financial information by the respondent[37]. The Tribunal forms this view having regard to:
(i) Centrelink file records on 20 February 2006[38], 14 March 2006[39] and 30 May 2006[40], which record the applicant updating the respondent as to her personal financial circumstances with respect to her company and trust holdings and involvement in the family business;
(ii) A phone record of 30 May 2006 records the applicant as being, “… adamant that she will retain control of the family’s ventures…”[41];
(iii) the applicant’s reported comments in media articles regarding the family business;
(iv) the complete lack of contact the applicant had with Centrelink regarding her DSP following the request for financial information (being a period of three and a half years); and
(v) the findings in the SSCSD decision of 7 March 2023, where the applicant described herself as a “Managing Director” at that hearing with respect to the operation of the family business at the time[42].
[37] Exhibit R1, page 7, paragraph 51.
[38] Exhibit TR1, T4, page 249; and T7, page 490.
[39] Exhibit TR1, T4, pages 245 to 247.
[40] Exhibit TR1, T4, pages 242 and 243.
[41] Exhibit TR1, T4, pages 242 and 243.
[42] Exhibit TR1, T2, page 10, paragraph 27.
Most importantly, further supporting the Tribunal’s view the applicant was more involved in the financial affairs of the relevant entities at the time, is the historical Centrelink record provided by the respondent which indicates the applicant held a joint bank account with her ex-spouse. This record indicates that as at 12 April 2007 this joint bank account had been receiving regular deposits from the trustee company for which the applicant was a joint shareholder[43].
[43] Exhibit R2, Attachment D page 22; With reference to the evidence of the applicant in the SSCSD decision of 7 March 2023, Exhibit TR1, T2, page 10, paragraph 27; and page 11, paragraph 33.
Further, these records also show the applicant was in contact with Centrelink at the time as a nominee on behalf of her ex-spouse with respect to managing his payment of debts that he had with Centrelink during the period of 13 April 2007 through to 11 March 2008.
The Tribunal further notes that a Centrelink file record dated 30 May 2006 records the applicant informing the respondent that a third party had gone guarantor for loans associated with the business, with the applicant providing specific details as to the amounts of the loans and what assets they were associated with, however she could not provide any details about the person who had provided the loans at the time[44].
[44] Exhibit TR1, T4, pages 242 and 243.
The respondent has also tendered numerous Court cases relating to the business and associated trust and company, which discuss the applicant’s involvement in the business[45]. The Tribunal has referred to these cases and is of the view this further supports the finding that the applicant’s involvement in the business was far more than what she had portrayed at the hearing.
[45] Exhibit R2; Exhibit R4 and R5.
In the Tribunal’s view, on reflection of the historical evidence as detailed in these reasons, it was reasonable for the respondent to request the financial information from the applicant which had been sought in the letter dated 31 May 2006[46].
Was the applicant’s DSP correctly cancelled?
[46] Exhibit TR1, T12, page 526.
The Tribunal must first determine the authority for the request from the respondent to the applicant dated 31 May 2006[47], and whether this authority constituted:
(i) a request for information from the applicant issued pursuant to sub-section 63(2)(d) of the Administration Act; or
(ii) a request for information from the applicant issued pursuant to section 192 of the Administration Act; or
(iii) a request for statement and documents from the applicant issued pursuant to sub-section 68(2)(b) of the Administration Act.
[47] Exhibit TR1, T12, page 526.
The determination of the authority for the request of information from the respondent to the applicant impacts relief which may be available to the applicant with respect to the cancellation of her DSP.
The Tribunal has considered the text of the letter to the applicant dated 31 May 2006 transposed in earlier reasons[48]. The respondent’s request for information from the applicant did not stipulate the authority it relied upon at the time the request was issued.
[48] Exhibit TR1, T12, page 526.
The Tribunal is of the view that the substance of the letter dated 31 May 2006 to the applicant is requesting the applicant to provide financial statements regarding business dealings that impact the applicant’s income and assets, which in turn impacts the applicant’s rate of payment she could expect to receive from her DSP.
The Tribunal has carefully considered whether the authority for the letter of 31 May 2006 sent to the applicant arose pursuant to sub-section 63(2)(d) of the Administration Act, which provides:
“… 63 Requirement to attend Department etc.
Secretary may require person to attend Department etc.
…
(2) If the Secretary is of the opinion that a person to whom this sub-section applies should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing…”
[Bolding in original]
The Tribunal agrees with the respondent’s submission that the letter of 31 May 2006 requests the applicant to provide financial statements regarding business dealings that impact the applicant’s income and assets. That is, it requests statements and documents (pursuant to sub-section 68(2) of the Administration Act) as opposed to a more general requirement to furnish information pursuant to sub-section 63(2)(d) of the Administration Act[49].
[49] Exhibit R1, page 4, paragraph 30.
The Tribunal agrees with the respondent’s submissions that the substance of the letter of 31 May 2006 also satisfies the requirements of sub-section 68(2)(b) of the Administration Act, which provides, “… give the Department one or more statements about a matter that might affect the payment to the person of the social security payment…”.
The text of the letter of 31 May 2006 requests the following from the applicant[50]:
“… I refer to our recent telephone conversation regarding the [name redacted, family trust], property, loans and other income & asset assessments which may affect your entitlement to the Disability Support Pension. We will require the following information to allow us to complete a review of your and your partner's entitlement…”
[Tribunal redaction]
[50] Exhibit TR1, T12, page 526.
In the Tribunal’s view the text of the request for information from the applicant, is consistent with sub-section 68(2)(b) of the Administration Act.
Further, the terms of the letter of 31 May 2006 were written in accordance with the requirements of section 72 of the Administration Act, namely, the letter was provided to the applicant in writing, by post, and specified how to provide the requested documents to the respondent (as per sections 72(1)(a), (b) and (c) of the Administration Act).
Sub-section 72(3)(d) of the Administration Act provides that the date by which documents must be furnished to the Secretary following the issuing of a notice must not end earlier than 14 days after the day on which the notice is given. The Tribunal concurs with the respondent’s submission that the stipulation in the letter of 31 May 2006[51] to furnish the documents within 21 days (14 days in addition to seven days, after notice was originally given to the applicant), is consistent with sub-section 72(3)(d) of the Administration Act.
[51] Exhibit TR1, T12, page 526.
Further, the inclusion of the timeframes for the applicant to respond, and the particulars with respect to the drafting of the letter of 31 May 2006, in the Tribunal’s view, are in keeping with the requisite provisions in the Administration Act (i.e. sub-section 72(1) and (3), that flow from sub-section 68(2) of the Administration Act).
With respect to the applicant’s submissions that the request for information by the respondent was done in accordance with section 191A of the Administration Act[52], the Tribunal observes that written requests for information gathering under Part 5 Information Management, Division 1 Information Gathering in the Administration Act, require that written notice provided to persons requesting information pursuant to these provisions in the Administration Act, must express that notice has been given pursuant to that section, with reference to sub-section 196(2)(iv) of the Administration Act, which provides:
[52] Exhibit TR1, T2, pages 24 to 32.
“… 196 Written notice of requirement
(1)A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
(2) The notice:
(a)may be given personally or by post or in any other manner approved by the Secretary; and
(b)must specify:
…
(iv)that the notice is given under this section…”
[Bolding in original]
The Tribunal is of the view the above equally applies to a request for information issued pursuant to section 192 of the Administration Act, and the Tribunal is of the view that the authority for the letter of the respondent dated 31 May 2006 did not fall under these provisions in the relevant Act[53].
[53] With reference to the applicant’s submissions in Exhibit A7.
Therefore, for the reasons given, the Tribunal determines the letter of 31 May 2006 was a request for statements and documents from the applicant issued pursuant to sub-section 68(2)(b) of the Administration Act.
In the present application, after not receiving a response from the applicant regarding the request in the letter of 31 May 2006, 28 days following this, on 28 June 2006 the respondent suspended the applicant’s DSP[54]. On 13 September 2006, a decision was made to cancel the Applicant’s DSP with effect from 28 June 2006 due to the respondent not receiving a response to the information notice[55]. The Tribunal is satisfied that these actions are consistent with the provisions relating to notice in section 72 of the Administration Act.
[54] Exhibit TR1, T13, page 527; and T14, page 528.
[55] Exhibit TR1, T16, page 530.
With respect to the cancellation or suspension of social security payments to persons who do not comply with certain notices, the Tribunal refers to section 81 of the Administration Act which provides:
“…81 Cancellation or suspension for non‑compliance with certain notices
(1) If:
(a)a person who is receiving a social security payment (other than a jobseeker payment) has been given:
(i)a notice under section 67 or 68 that requires the person to give the Department a statement; or
(ii)a notice embodying a requirement under Division 1 of Part 5; and
(b) the person does not comply with the requirement of the notice;
the Secretary may determine that the social security payment is to be cancelled or suspended…”
[Bolding in original, Tribunal underline for emphasis]
For the reasons given, the Tribunal is satisfied that the respondent complied with the relevant provisions in terms of the giving of notice as required by section 81(1)(a) of the Administration Act, and that the Applicant did not comply with the requirement of the notice as required by sub-section 81(1)(b) of the Administration Act.
With respect to relevant considerations regarding whether the Secretary may determine whether a social security payment be cancelled or suspended with respect to section 81(1) of the Administration Act, the Tribunal refers to the following submissions of the respondent[56]:
“… There is no requirement under s81(1) to consider whether it is reasonable for the provision to apply to the Applicant. The test is whether the notice meets the requirement under s68 of the Administration Act for the statement requested to be about a matter that might affect the payment to the person of the social security payment. If it does and the Applicant has failed to comply with the notice, the Secretary may cancel the payment.
The Applicant’s failure to comply with the notice given to her on 31 May 2006 led to her payments ceasing to be payable and liable to cancellation under s81. It is submitted that, whilst cancellation of a person’s benefits is not to be lightly undertaken, the importance of ensuring the integrity and proper administration of the social security system is paramount. In this case, the cancellation decision was fully justified according to the relevant provisions of the Administration Act…”
[Underline in original]
[56] Exhibit R1, page 6, paragraphs 43 and 44.
At the hearing, the Tribunal questioned the respondent with respect to whether there were any further considerations relevant to applying the discretion afforded in sub-section 81(1) of the Administration Act, where the Secretary may cancel or suspend a social security payment.
At the respondent’s request, this was addressed in written closing submissions to the Tribunal[57]:
“…In that regard, the Secretary refers to the decision of Senior Member Redfern in Re Famhy and Secretary, Department of Social Services at [43] which states:
‘…in exercising the discretion under s 81 of the Administration Act to cancel a pension it is relevant to balance the public interest of ensuring a claimant complies with the Department directives and notices to promote credibility and accountability in the social security scheme against the legitimate interests of the claimant to receive benefits.’
That noted, the Secretary repeats and relies on the contention that while cancellation of a person’s benefits is not to be lightly undertaken, the importance of ensuring integrity and proper administration of the social security system is paramount. Accordingly, the Secretary contends the cancellation was justified and rational and proportionate to the failure to receive information from the Applicant…”
[Tribunal notes the respondent’s reference to Fahmy is at [43]]
[57] Exhibit R6, page 2, paragraphs 5 and 6. With reference to Fahmy and Secretary, Department of Social Services [2014] AATA 164 (26 March 2014) at [43]; Re O’Connell and Secretary, Department of Social Security [1991] AATA 523; and Re Sevel and Secretary, Department of Social Security [1991] AATA 135.
The Tribunal concurs with the reasons of the respondent that is, it was rationale and proportionate to cancel the applicant’s DSP. This is particularly so in circumstances where the Tribunal has found that it was reasonable to request further financial information from the applicant, given her financial interests in the trustee company, family trust and associated business. The importance of ensuring the social security system is appropriately administered is indeed paramount, and in the Tribunal’s view it was in the public interest to cancel the applicant’s DSP in circumstances where the applicant failed to comply with reasonable directives of the respondent.
2023/1615, Decision two, Whether the applicant was entitled to rent assistance from 27 November 2013?
The applicant’s first inquiry with respect to the payment of rent assistance as part of her DSP was on 6 April 2022, with a Centrelink file note recording a call with the applicant following lodgement of an online complaint by the applicant on the same date which stated[58]:
“… had my disability pension unfairly taken off me in 2006 as I was a director of a $2.00 shelf company I have been told by Centrelink that I get rent assistance since November 2013 but found out that I don't get anything, yet I am bankrupt I have been classed as partnered until 2016 but I haven't been partnered since March 2014 Somebody changed my postal address in June 2014 to my ex-husband parent home without my authorisation I am a victim of horrific domestic violence and have been subjected to it unnecessary due to the fact that Centrelink took my independence away when they wrongfully took my pension away…”
[sic]
[58] Exhibit TR1, T5, page 349; T22, page 541.
A Centrelink file note dated 6 April 2022 records the applicant had made contact, stating, “… Customer contacted to know why their RA – Rent assistance is not being paid…”[59]. The file note stated the applicant wanted to be subjected to the income and assets test to, “get their RA paid…” [rent assistance].
[59] Exhibit TR1, T5, page 349.
Recipients of the DSP who are permanently blind, are not subject to income and assets tests with respect to their eligibility for the DSP payment, however if rent assistance is claimed, then individuals are subject to an income and assets test[60].
[60] Refer to Pension Rate Calculator B, Module A of section 1065 of the Social Security Act 1991 (Cth) (“the Act”), with reference to 4.3.1.30 Rate of income - couples, blind pensioners & children | Social Security Guide (dss.gov.au).
On 27 November 2013, the applicant completed her application for the DSP on the basis of her being a permanently blind person, she indicated “Yes” in response to a question, “… 122 Are you (and/or your partner) claiming Rent Assistance)?”[61].
[61] Exhibit TR1, T29, page 573.
On 10 December 2013 the respondent sent the applicant a letter, which stated, “… We are writing to ask for more information to help us make the right decision about your claim for Disability Support Pension. As you are claiming on the basis of Blindness, the enclosed Income and Assets form is only required if you wish to claim Rent Assistance as you have indicated in your claim form…”[62].
[62] Exhibit TR1, T31, page 595.
On 18 December 2013 the applicant lodged an “Income and Assets” form with the respondent, notably absent was information with respect to the applicant’s financial circumstances regarding the trustee company, family trust and business as detailed in earlier reasons[63]. The applicant provided Centrelink with a signed statement which stated the following[64]:
“… [name redacted, applicant’s ex-spouse], my partner, & myself are beneficiaries of [name redacted, family trust]. We have never had any distributions from it and are not likely to ever receive anything from it as the business has not been operating since September 2012.
As a consequence the property is on the brink of going into insolvency, which will possibly result in a negative outcome of around $300 000 after creditors have been satisfied.
Furthermore the trustee is estranged from [name redacted, applicant’s husband] & myself therefore the MOD PT cannot be fully completed without his input…”
[Tribunal redactions]
[63] Exhibit TR1, T32, pages 598 to 614.
[64] Exhibit TR1, T34, page 616.
A Centrelink file note dated 10 January 2014 stated the applicant had called regarding her claim for the DSP, with Centrelink recording the following[65]:
“… cus told cao by phone on 10/1/2014 that she was claiming DSP blind which is not means tested. CAO is requesting documents related to their family trust and expects to take some time because of the complexity of the case. cus said that they were in hardship. CSO please discuss with cus if her DSP claim can be processed without trust assessment. thanks…”
[sic]
[65] Exhibit TR1, T34, page 617.
A further Centrelink file note was made on 10 January 2014 following the above, it states the following[66]:
“… Tried calling cus and ptr mobile numbers and both numbers either are turned off or are not available – as cus is claiming dsp blind income and assets details are only required when claiming rent assistance – cus and ptr are claiming rent assistance therefore for cus claim details as listed in above notes for trust must be provided and claim is not able to be completed until cao report completed. PTR is also claiming dsp and full income and assets details are required for ptr’s claim of dsp.
I have tried calling cus and ptr multiple times this afternoon and all attempts have been unsuccessful…”
[sic]
[66] Exhibit TR1, T34, page 617.
A Centrelink file note dated 17 January 2014 stated that the applicant had been contacted and had advised that she will not be claiming rent assistance[67]:
“… have spoken to cus and she will not be claiming rent assistance. unable to complete claim as cus has no poi on system. tried to call cus numerous times but no answer….”
[sic]
[67] Exhibit TR1, T34, page 617.
On the same date, a letter was sent to the applicant, asking her to provide proof of identity to support her claim for the DSP, warning the applicant that her claim may be rejected if she didn’t provide that information[68].
[68] Exhibit TR1, T35, page 618.
On 29 January 2014, the applicant was granted the DSP with payment to occur from 27 November 2013, on the basis that the applicant was a permanently blind person[69]. The applicant’s DSP was paid at a rate which did not include rent assistance from 27 November 2013.
Consideration of eligibility of rent assistance from date of grant of DSP (29 January 2014)
[69] Exhibit TR1, T36, page 620; T37, page 622.
Sub-section 1065(1)(b) of the Act provides that the rate of DSP which is payable to a person who is permanently blind and over the age of 21 years, is calculated in accordance with the Rate Calculator at the end of that section within the Act. This required the respondent to calculate the applicant’s rate of DSP in accordance with Pension Rate Calculator B in section 1065 of the Act.
Pension Rate Calculator B in section 1065 of the Act does not stipulate a pension income or assets test, however Step 1 in the method statement in Module A – Overall rate calculation process in section 1065 of the Act requires the calculation of a notional income/assets tested rate; with Step 6 stipulating that a decision-maker is to compare the notional income/assets tested rate and the non‑income/assets tested rate, and whichever is the greater is the person’s rate of pension.
In circumstances where rent assistance was payable to the applicant, then the respondent was required to use Rate Calculator A in section 1065 of the Act, and this requires the application of a notional income and assets test. Therefore, the Tribunal is of the view the respondent acted reasonably, with respect to requesting further financial information as required by Rate Calculator A in section 1065 of the Act, which requires the application of a notional income and assets test in circumstances where a blind DSP recipient is seeking to claim rent assistance.
At the hearing the applicant gave evidence that Centrelink had forced her not to claim rent assistance as part of her DSP, and that she had incorrectly assumed she had been receiving rent assistance automatically, and that this was being updated when she had changed her address over the years.
The Tribunal acknowledges the applicant’s submissions with respect to her stated estrangement from the trustee of the family trust and the insolvency issues the joint business venture faced at the time in her submissions to Centrelink.
With respect to the applicant’s contentions, the Tribunal notes the applicant did not seek to enquire as to her entitlement to the payment of rent assistance until 6 April 2022, more than eight years following the grant of her DSP from 29 January 2014; this is a significant delay.
Whilst the Centrelink file note of 17 January 2014 records the applicant consenting to not claim rent assistance, and the applicant may have agreed to initially forgo her entitlement to rent assistance in order to receive payment of the DSP; the Tribunal is of the view that upon reflection of the facts in this application, the onus is on the applicant with respect to managing her entitlement to social security payments. The legislative test is clear, in circumstances where rent assistance is being claimed by a blind DSP recipient, then a notional income/assets tested rate calculation is to be carried out in order to determine the correct rate of DSP entitlement.
The Tribunal makes this finding with reference to earlier findings made in Decision one regarding the applicant’s evidence with respect to domestic violence not being the sole reason the applicant was unable to furnish relevant financial documents. The Tribunal is of the view the applicant’s involvement in the trustee company, family trust and associated business was greater than that which she had conveyed to this Tribunal.
The Tribunal is of the view the respondent correctly calculated the applicant’s rate of DSP pursuant to Pension Rate Calculator B in section 1065 of the Act and in turn, it was correct not to grant the applicant rent assistance in her approved claim for the DSP of 29 January 2014, given the applicant’s failure to respond to the respondent’s request for information with respect to her income and assets, in addition to the applicant’s directive which was recorded by Centrelink on 17 January 2014 that she would not be claiming rent assistance.
Was rent assistance payable to the applicant at the time of her request for review on 6 April 2022?
The applicant’s DSP was increased on 20 March 2022 when it was adjusted in accordance with inflation, which falls within 13 weeks of the applicant’s original request for review as to her entitlement for rent assistance which occurred on 6 April 2022[70].
[70] Exhibit TR1, T6, page 420.
Any favourable determination with respect to the back payment of rent assistance to the applicant is subject to legislation which determines the date of effect, with reference to section 109 of the Administration Act, particularly of note sub-section 109(2) which provides:
“… (2) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made…”
Sub-section 109(7) of the Administration Act provides that in circumstances where a person’s rate of social security payment increases, or has been adjusted or indexed, then the determination takes effect on the day on which notice is taken to have been given on the day on which the social security payment increased.
The Tribunal is of the view that any favourable determination with respect to arrears paid to the applicant regarding any entitlement to rent assistance could only take effect from 20 March 2022.
The Tribunal notes submissions from the respondent with respect to the applicant’s entitlement to the grant of rent assistance from the date of request for review[71]:
“… The Secretary notes contrary to the file note from 3 June 2022, the Applicant has not provided Centrelink or the Tribunal with evidence of her rental agreement or income and assets as at 20 March 2022. Neither has the Applicant been subsequently granted Rent Assistance from a later date. Accordingly, there is insufficient evidence for the Tribunal to be satisfied that Rent Assistance was payable and the appropriate course would be to remit that decision to Centrelink for reconsideration with directions to obtain further evidence from the Applicant of her rental arrangement and income and assets and reconsider her entitlement to Rent Assistance from 20 March 2022…”
[71] Exhibit R1, page 11, paragraph 83.
The Tribunal agrees with the respondent’s submissions, and the Tribunal remits the decision back to the respondent for reconsideration, in order to allow the respondent to seek further evidence from the applicant regarding her eligibility for rent assistance, with a favourable determination (if eligible) taking effect from 20 March 2022.
2023/1569, Decision three, Whether the applicant ceased to be a member of a couple from 31 March 2016 or an earlier date?
As set out in earlier reasons the applicant was granted the DSP on 29 January 2014 on the basis the applicant was a permanently blind person, with a rate of payment calculated on the basis the applicant was a member of a couple[72]. Records before the Tribunal confirm the applicant was paid a rate of DSP as a single person from 31 March 2016[73].
[72] Exhibit TR1, T36, page 620; T37, page 622.
[73] Exhibit TR1, T58, page 664.
On 13 July 2022, a Centrelink file note records the applicant’s request for review with the SSCSD of this Tribunal into a decision to pay the applicant a rate of DSP as a couple, as opposed to a single rate, with the applicant indicating she had separated from her ex-spouse on 15 March 2014[74]. As this decision had not yet been internally reviewed, Centrelink actioned an internal review, and as mentioned by the Tribunal in earlier reasons, on 16 August 2022 an ARO affirmed the decision to treat the applicant’s rate of DSP on the basis the applicant was single from 30 March 2016[75]. The Tribunal again notes the SSCSD on review of that decision set it aside in its reasons on 7 March 2023[76].
[74] Exhibit TR1, T5, page 387.
[75] Exhibit TR1, T74, pages 705 to 715.
[76] Exhibit TR1, T2, pages 6 to 17.
In the applicant’s application for second review before this Tribunal on 13 March 2023, she stated the following with respect to the treatment of her relationship status:
“… When I left [name redacted, applicant’s spouse] in September 2002, I never wanted to be classed in a relationship with him ever again, but Centrelink never considered my choice / rights and enabled him to have full control over me…[77]”
[Tribunal redaction]
[77] Exhibit TR1, T1, page 4.
The respondent has submitted to the Tribunal that due to the history of domestic violence and her carer relationship with her ex-spouse, there is a special reason to find that the Applicant should not be treated as a member of a couple from 15 March 2014[78].
[78] Exhibit R1, page 18, paragraph 117; and Exhibit R2, page 3, paragraphs 14 to 20.
The Tribunal refers to the Social Security Guide (herein referred to as the “Guide”). Whilst the Tribunal is not bound to strictly apply the Guide, the Tribunal will take into account the established practices set out in the relevant sections of the Guide, as consistent application of the relevant policies is desirable unless cogent reasons exist not to[79].
[79] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645].
The Guide at 2.2.5.30 provides the following with respect to the five factors which a decision-maker must have regard to when determining whether a person is a member of a couple, it states[80]:
[80] Refer 2.2.5.30 Determining member of a couple relationships | Social Security Guide (dss.gov.au)
“… particular regard must be given to the following 5 factors:
·financial aspects of the relationship
·nature of the household
·social aspects of the relationship
·any sexual relationship, and
·nature of the commitment.
Some of the 5 factors may be present in relationships that are primarily for companionship and/or caring/support reasons, such as where 2 people share a home and living costs, or attend social events together. The decision maker should not form the opinion that a member of a couple relationship exists where the nature of the relationship is indicative of this kind of companionship/care…”
The Guide at 2.2.5.30 provides the following with respect to the presence of family and/or domestic violence in a relationship:
“… The presence of family and/or domestic violence, may indicate that a person is not a member of a couple and needs to be considered when assessing each of the 5 factors. Evidence may be required to support the presence of the family and/or domestic violence.
Family and domestic violence includes, but is not limited to physical, sexual, financial, emotional and psychological abuse. All types of family and domestic violence should be considered, together with the 5 factors…”
The Tribunal notes that a person may not be treated as a member of a couple in certain circumstances where the Secretary is able to apply the discretion pursuant to section 24(1)(c) of the Act, which provides:
“… 24 Person may be treated as not being a member of a couple
(sub-section 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…”
[Bolding in original]
The Guide at 2.2.5.40 describes how such discretion is applied by a decision maker with respect to the treatment of a person as not being a member of a couple for a special reason where family and/or domestic violence exists in a relationship, and states[81]:
“… Section 24 of the SSAct provides discretion to enable a delegate to decide if there is a 'special reason' NOT to treat a person as a member of a couple (1.1.M.120).
It deals with inequitable and/or unjust situations and only applies in very limited cases when all other reasonable avenues have been explored and exhausted.
Where the delegate decides there is a special reason, which would make it unfair to administer the partnered rate of payment and/or the partner income and assets test in relation to a person, the person will be treated as not being a member of a couple. They will be paid the single rate of payment and, only the person’s individual income and assets are to be used in assessing their rate…”
[81] Refer 2.2.5.40 Discretion to treat a person as not being a member of a couple for a special reason - section 24 | Social Security Guide (dss.gov.au)
The Tribunal has had regard to many documented instances of the applicant informing Centrelink of the presence of domestic violence in her relationship dating as far back as 2002, which the respondent summarised in submissions before the Tribunal[82]:
(i)Centrelink liaised with Women’s Domestic Violence service for the applicant on 12 September 2002[83];
(ii)The applicant applied for a crisis payment on 17 September 2002 as she was unable to return home due to domestic violence[84];
(iii)Discussed family conflict and domestic violence on 6 February 2012[85]; and
(iv)Discussed family violence with Centrelink on 11 April 2016[86].
[82] Exhibit R1, page 7, paragraph 50.
[83] Exhibit TR1, T4, page 308.
[84] Exhibit TR1, T4, page 307.
[85] Exhibit TR1, T4, page 236.
[86] Exhibit TR1, T4, page 205.
With respect to whether the applicant ought to have been treated as a single person from an earlier period prior to 15 March 2014; it is not in contention between the parties that the applicant should be treated as a single person from an earlier period. The respondent has submitted to the Tribunal[87]:
“… In the Secretary’s Statement of Facts Issues and Contentions dated 7 September 2023 the Secretary accepted that due to the history of domestic violence and the carer relationship, there was a special reason to find that the Applicant should be treated as being single from 15 March 2014 (paragraph 117).
The Secretary accepts that such a determination could be made from an earlier date like 13 September 2002; however the Secretary notes that such a finding would be unnecessary, because the Applicant was already paid and assessed at the single rate from 13 September 2002 until 28 June 2006 (when the payment was cancelled for failure to provide requested information). The payment was also re-granted and paid at the single rate on 27 November 2013 until 14 March 2014 (when it was then paid at the partnered rate from 15 March 2014)…”
[87] Exhibit R2, page 5, paragraph 14-15.
As noted by the Tribunal in earlier reasons of this decision with respect to a favourable determination, sections 109 and 110 of the Administration Act seek to limit the arrears a recipient is owed in circumstances where a favourable determination is made to increase or resume payments to an individual, such that a recipient is only able to be paid arrears in circumstances where they have updated the Agency of a change to their circumstances.
In the present application, the respondent has contended that[88]:
“…the Applicant can be found to not be a member of a couple from 29 August 2002 due [to] the special circumstances of the relationship, or an even earlier date, however due to the operation of sections 109 and 110 of the Administration Act, the Applicant can only be paid arrears for DSP at the single rate for the periods:
·29 August 2002 to 11 September 2002;
·13 May 2014 to 19 September 2014;
·3 November 2014 to 18 January 2015;
·20 February 2015 to 19 March 2015; and
·4 November 2015 to 19 March 2016…”
[88] Exhibit R2, page 6, paragraph 38.
At the hearing, the applicant and respondent had a short adjournment to see if agreement could be reached between the parties as to the submission of the respondent outlined in the above paragraph. After the hearing resumed, both parties were in agreement with respect to the above dates of the respondent, except that the applicant was of the view that she was entitled to be paid arrears for her DSP at a single rate for the period of 15 March 2014 to 19 September 2014, as opposed to commencing from 13 May 2014.
With respect to the periods the applicant would be entitled to arrears for her DSP at a single rate, the Tribunal has reviewed the evidence and summarises it as follows:
(i)The applicant contacted Centrelink on 29 August 2002 seeking advice as to the impact of moving out of her family home on her entitlement to payments from Centrelink, with the applicant advising Centrelink on 2 September 2002 that she was moving out of her family home with her young children[89]. The Tribunal accepts the respondent’s submission that the applicant’s contact on 29 August 2002 can be treated as the applicant advising on a change in her circumstances[90]. From 11 September 2002 to 22 September 2005 the applicant was paid DSP at a single rate, following an ARO review of a decision to treat the applicant as an illness separated couple[91]. Therefore, the Tribunal accepts the applicant can be paid arrears for the DSP at a single rate for the period of 29 August 2002 to 11 September 2002.
(ii) As stated in earlier reasons, on 29 January 2014, the applicant was granted the DSP with payment to occur from 27 November 2013, on the basis that the applicant was a permanently blind person[92]. On 13 May 2014 the applicant contacted Centrelink, and a file note confirms a separation details form was subsequently sent to the applicant[93]. Following this date there are several subsequent interactions between Centrelink and the applicant involving updates as to her living arrangements following her separation, however it is noted that a separation details form had not been returned to Centrelink[94]. On 20 September 2014 the applicant received an indexation change to her rate of DSP. The Tribunal notes earlier reasons with respect to the application of a favourable determination and the effect of sections 109 and 110 of the Administration Act. Given this, the Tribunal accepts the applicant can be paid arrears for the period of 13 May 2014 to 19 September 2014.
(iii) On 3 November 2014, the applicant notified Centrelink of her change in contact details and a separation details form was subsequently sent to the applicant[95]. The respondent has conceded that the contact made by the applicant on 3 November 2014 can be treated as a notification of a change in circumstances[96]. The applicant was incarcerated from 19 January 2015 until 20 February 2015 and her DSP was suspended[97]. On 20 March 2015 the applicant received an indexation change to her rate of DSP. As noted in the above reasons with respect to a favourable determination, the Tribunal accepts the applicant can be paid arrears for the period of 3 November 2014 to 18 January 2015; and 20 February 2015 to 19 March 2015.
(iv) On 4 November 2015, there are numerous recorded interactions between the applicant and Centrelink, as part of these interactions the applicant was sent a form to complete with respect to being separated under the one roof[98]. The respondent has conceded that the contact made by the applicant on 4 November 2015 can be treated as a notification of a change in circumstances[99]. On 20 March 2016 the applicant received an indexation change to her rate of DSP. As noted in the above reasons with respect to the application of a favourable determination, the Tribunal accepts the applicant can be paid arrears for the period of 4 November 2015 to 19 March 2016.
[89] Exhibit TR1, T4, page 309.
[90] Exhibit R2, page 5, paragraph 35.
[91] Exhibit TR1, T9, pages 499 to 523.
[92] Exhibit TR1, T36, page 620; T37, page 622.
[93] Exhibit TR1, T4, page 225.
[94] Exhibit TR1, T4, pages 222 to 224.
[95] Exhibit TR1, T4, page 222.
[96] Exhibit R1, page 21, paragraph 137.
[97] Exhibit TR1, T6, page 414.
[98] Exhibit TR1, T4, page 208.
[99] Exhibit R1, page 21, paragraphs 137 and 138.
With respect to the applicant’s submissions that she is entitled to be paid arrears for her DSP at a single rate for the period of 15 March 2014 to 19 September 2014, as opposed to commencing from 13 May 2014, the Tribunal is satisfied that the contact that is recorded in the Centrelink file history on 12 February 2014, 27 February 2014, and 3 March 2014 do not amount to the applicant advising the respondent as to a change in her circumstances[100]. Therefore, the Tribunal is satisfied the correct date from which the applicant is entitled to be paid arrears for that period in question is 13 May 2014.
[100] Exhibit TR1, T4, pages 224 to 226.
Therefore, the Tribunal sets aside the decision of 7 March 2023 by the Social Services and Child Support Division and remits the matter to the respondent for reconsideration, with the direction that arrears are payable from:
(i)29 August 2002 to 11 September 2002;
(ii)13 May 2014 to 19 September 2014;
(iii)3 November 2014 to 18 January 2015;
(iv)20 February 2015 to 19 March 2015; and
(v)4 November 2015 to 19 March 2016.
DECISION
In summary, the Tribunal determines the following with respect to the joined applications:
(i) Pursuant to sub-section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of 7 March 2023 by the Social Services and Child Support Division (2023/1617), with respect to the cancellation of the applicant’s Disability Support Pension with effect from 28 June 2006.
(ii) Pursuant to sub-section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), in accordance with the reasons of this decision, the Tribunal sets aside the decision of 7 March 2023 by the Social Services and Child Support Division (2023/1615), with respect to the applicant’s entitlement to rent assistance from 27 November 2013, and remits the matter to the respondent for reconsideration, with the applicant to provide the respondent further evidence regarding her eligibility for rent assistance, with a favourable determination (if any) taking effect from 20 March 2022.
(iii) Pursuant to sub-section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), in accordance with the reasons of this decision, the Tribunal sets aside the decision of 7 March 2023 by the Social Services and Child Support Division (2023/1569), with respect to whether the applicant ceased to be a member of a couple from 31 March 2016 (or an earlier date), and remits the matter to the respondent for reconsideration with the direction that arrears are payable from 29 August 2002 to 11 September 2002, 13 May 2014 to 19 September 2014, 3 November 2014 to 18 January 2015, 20 February 2015 to 19 March 2015 and 4 November 2015 to 19 March 2016.
I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
……………[SGD]….……………
Associate
Dated: 10 June 2024
Date of hearing: 20 March 2024
Applicant: DSDJ (self-represented)
Solicitor for Respondent: Ms Jasmine Forsyth (Moray & Agnew Lawyers)
Annexure 1 – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
TR1.
Section 37 T-Documents (T1-T75, 1-720 pages)
-
-
12/04/2023
R1.
Respondent Statement of Facts, Issues and Contentions
R
07/09/2023
R2.
Supplementary Statement of Facts, Issues and Contentions
20/02/2024
R3.
3 x NewsMail articles (6 pages)
-
20/03/2024
R4.
Moore v Devanjul Pty Ltd as Trustee & Ors [2010] QSC 250
-
R5.
Moore v Devanjul Pty Ltd as Trustee & Ors [2012] QSC 66
-
R6.
Respondent’s closing submissions
10/04/2024
10/04/2024
A1.
Applicant Bundle of Material (photographs, screenshots, and letter of A.B. – 11 pages in total)
A
-
18/03/2024
A2.
Support letter of Jackie Coetzee, Registered Psychologist (1 page)
14/03/2024
A3.
Affidavit of Applicant (9 pages)
-
A4.
Allied Care Report (38 pages)
13/12/2023
A5.
Polygraph Disclosure Statement (9 pages)
06/06/2023
A6.
Statement of Applicant’s son (3 pages)
-
19/03/2024
A7.
Applicant’s closing submissions
A
-
07/05/2024
0
4
0