Ekert and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 701

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 701

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0665

General Administrative DIVISION		)
Re		Bruce Ekert

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date15 September 2010

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]...........................

Senior Member

CATCHWORDS

SOCIAL SECURITY - applicant receiving disability support pension - applicant married - pension reduced from single to partnered rate - applicant's wife not eligible for Centrelink benefits - applicant's wife having difficulty obtaining employment - whether special reason for which he should not be treated as a member of a couple - substantial savings -  decision under review affirmed.

Social Security Act 1991, ss 24

Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277

Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nicolaas [2009] AATA 416

REASONS FOR DECISION

15 September 2010	Senior Member Jill Toohey
Background

1.      Mr Bruce Ekert has been receiving a disability support pension (DSP) since July 1994.  In June 2009, he married.  His wife, a Russian citizen who came to Australia in April 2008, is not presently entitled to Centrelink benefits and nor has she been able to find employment.

2.      Centrelink paid Mr Ekert DSP at the rate for a single person until 5 November 2009, when it decided he should be paid at the lesser rate for a partnered person.  Both Centrelink and the Social Security Appeals Tribunal (SSAT) have affirmed that decision. 

3.      Mr Ekert does not dispute that he is married and lives with his wife, but he says their circumstances are such that he should continue to be paid at the single rate.

The legislation

4.      The rate at which a person is paid DSP depends on whether or not he or she is a member of a couple as defined in the Social Security Act 1991 (the Act).  The rationale is that a couple has the ability to pool resources and live more cheaply than if each was single.

5.      A person who is legally married, and not living separately and apart from their spouse on a permanent or indefinite basis may be treated as if he or she were not a member of a couple if there is a special reason in the particular case: s 24 (1) of the Act.

The issues

6.      The facts are not in dispute.  I have to decide whether, for a special reason in his particular case, Mr Ekert should not be treated as a member of a couple.

Evidence and submissions

7.      Mrs Ekert came to Australia on a tourist visa, now converted to a spouse visa.  The effect of her visa status is that she is not presently eligible for any Centrelink payment other than special benefit.  She has applied for special benefit but was refused on the ground that she did not demonstrate sufficient financial hardship.  She will become eligible to apply for other benefits once she is granted permanent residency which she believes should be around February 2011.  She will become eligible for a Russian pension in approximately two years.

8.      In the meantime, Mrs Ekert is allowed to work.  She is a qualified environmental scientist and speaks fluent English but has been unable to find employment.  She has applied for a number of positions and is prepared to take what she is offered but she has had no success so far.  One employment agency declined to keep her on its books because they thought her over-qualified, and she thinks that, at 53, her age is against her.

9.      Mr and Mrs Ekert live on his DSP and rent assistance which, at the partnered rate, is $635 a fortnight.  From that they pay $400 a fortnight in rent, leaving the balance to meet all other living expenses including his medical expenses.  It hardly need be said that they struggle to manage. 

10.     Mr and Mrs Ekert’s assets comprise his savings of approximately $58,000 in a term deposit which has been reduced from approximately $70,000 since November 2009, and they have approximately $3200 in other accounts which include the balance remaining of some $5000 which Mrs Ekert brought with her to Australia.  They own a car which is worth approximately $12,000. 

11.     Mr Ekert submits that the financial hardship which he and his wife are experiencing constitute a special reason for which he should not be treated as a member of a couple.

12.     Centrelink say that Mr and Mrs Ekert have substantial savings on which to draw.  Further that, while she has had difficulty finding employment, Mrs Ekert is capable of working.

Consideration

13.     It appears that, after Mr Ekert advised Centrelink in June 2009 that he had married, Centrelink decided he should not be treated as a member of a couple because he and Mrs Ekert were not benefiting from pooling of resources and she had no income or assets.  Apparently, their savings were not taken into account when this decision was made.  There is no suggestion that Mr Ekert tried to conceal them from Centrelink.

14.     Mr Ekert says that when Centrelink decided in November 2009, to reduce his DSP to the partnered rate, he was not advised of the decision and only learned of it when he went to his bank.  He is understandably aggrieved by this.  However, I can only consider what is before the Tribunal, being the question whether or not he should be treated as a member of a couple.

15.     In Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277, French J said (at [18]) that the word “special” before “reasons” indicates that the “discretion it constrains is not lightly to be enlivened”. However, that does not require that the case be extremely unusual, uncommon or exceptional:

The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course.

16.     French J also said (at [20]): 

It is of importance in the present case to note that s 24 requires the decision-maker to focus on the position of one person, not the couple, and to assess whether that person should for a special reason not be treated as a member of the couple.

17.     Each case must be decided on its merits but it is helpful to consider how the Tribunal has determined other cases.

18.     In Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, the Tribunal decided that Mr Holt should be paid Newstart Allowance at the single rate, and set out all the particular circumstances which it considered amounted to a special reason in his case. Like Mrs Ekert, Mrs Holt was unable to obtain employment, but the similarities ended there. In particular, the Tribunal noted (at [57]) the “straitened financial position” Mr and Mrs Holt were in; they were existing “at subsistence level” and had no savings.

19.     In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nicolaas [2009] AATA 416, the Tribunal agreed with the Secretary that the discretion should not be exercised in Mr Nicolaas’ favour. That case was in some respects quite similar to this. Mrs Nicolaas had migrated from the Philippines and was unable to obtain Centrelink benefits. She had tertiary qualifications and was capable of working but was finding it very difficult to obtain employment. Mr Nicolaas had approximately $70,000 in savings which the Tribunal thought “considerable” and could not be ignored.

20.     I accept that, apart from a relatively small amount in savings, Mrs Ekert has no resources to pool with her husband.  That situation will continue unless and until she is able to find employment or she becomes eligible for a Centrelink payment.  She is clearly an intelligent, educated woman with much to contribute but her age and background may well be against her.  However, she is capable of working, even if not in her field of expertise, and continues to look for employment. 

21.     In the meantime, the main factor counting against Mr Ekert’s application is that the couple has substantial savings.  Their savings have been reduced by more than $10,000 since November 2009 and Mr and Mrs Ekert are understandably very concerned; their savings are all they have.  However, they are still substantial.    

22.     I accept that Mr and Mrs Ekert are in difficult financial circumstances but I am not satisfied that Mr Ekert’s circumstances are unusual, different, or out of the ordinary such that they amount to a special reason for which he should not be treated as a member of a couple.

Decision

23.     I affirm the decision under review.

I certify that the 23 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         .............[sgd]....................................................................
           Diana Weston  Associate

Date of Hearing  6 September 2010

Date of Decision  15 September 2010

ApplicantSelf-represented

Representative for the Respondent:               Ms Megan Palmer, Sparke Helmore