GPLF; Secretary, Department of Social Services and (Social security second review)
[2025] ARTA 636
•28 May 2025
GPLF; Secretary, Department of Social Services and (Social security second review) [2025] ARTA 636 (28 May 2025)
Applicant/s: Secretary, Department of Social Services
Respondent: GPLF
Tribunal Number: 2024/3807
Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:28 May 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, determines that the Respondent’s entitlement to age pension be assessed on the basis that he is a member of a couple from 29 August 2019.
......................[SGD]..................................................
Senior Member J Longo
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999 (Cth)
Catchwords
SOCIAL SECURITY – age pension – rate – whether the respondent is a member of a couple for the purposes of calculating his rate of age pension – whether the respondent is a member of an illness separated couple – whether there is a special reason for the respondent not to be treated as a member of a couple – whether previous decision on these issues relevant - provisions of the Social Security Act 1991 (Cth) considered – relevant policy and cases considered – decision under review set aside.
Legislation
Social Security Act1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Cases
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Cocks v Centrelink [2000] FCA 1248
Cheung v Administrative Appeals Tribunal [2009] FCA 241
G v MIBP [2018] FCA 1229
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Munro and Secretary, Department of Social Services [2018] AATA 688
Pala v Secretary, Department of Social Services [2014] AATA 313Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Social Security Guide
Statement of Reasons
BACKGROUND
This is a second review of a decision to treat the Respondent as a member of a couple and pay age pension at the partnered rate. I have set out the history of this matter as relevant to the decision under review.
The Respondent has been in receipt of age pension since 9 September 2013. On 14 September 2015, the Respondent departed for Thailand and was granted a tourist visa for 30 days. On 15 October 2015, he married his wife, a Thai national. On 12 July 2018, the Respondent notified Services Australia – Centrelink (the Agency) of his marriage.
On 23 September 2019 the Agency decided that the Respondent was a member of a couple from the date of his marriage and decided to pay age pension at the partnered rate from 29 August 2019.
On 16 October 2019 and 21 October 2019, the Respondent completed two separation details forms stating that he had separated from his wife on 11 February 2016. On 8 November 2019, the Respondent further advised that he and his wife were separated due to his wife’s ill-health. On 24 November 2019 the Respondent advised that he had never lived with his wife due to an infection contracted in 2014.
On 4 December the Respondent sought internal review of the Agency’s decision on 23 September 2019. On 9 December 2019 and authorised review officer affirmed the decision under review. On 4 February 2020, the Respondent sought review with the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the AAT). On 31 March 2020 the SSCSD affirmed the decision. On 1 May 2020 the Respondent lodged an application for second review of the SSCSD decision. On 26 November 2021, the AAT on second review affirmed the decision.
According to the Applicant’s submissions, the Respondent then contacted the Agency on 26 September 2022 asking for a letter advising when and why his age pension was reduced. The Agency sought further information regarding his circumstances to determine whether the discretion should be exercised under section 24 of the Social Security Act1991 (the Act). The Respondent provided further information on 15 December 2022. On 17 May 2023, the Agency made a decision not to consider the Respondent to be single under section 24 of the Act.
On 19 June 2023, the Respondent sought further review and on 27 July 2023 an authorised review officer of the Agency affirmed the decision under review. The Respondent sought further review of the decision to not exercise the discretion under section 24 of the Act with the SSCSD of the AAT. The SSCSD set aside the decision of the Respondent and decided, in substitution, that the Applicant should be treated as “single” for social security purposes from 15 October 2019. As a consequence, his age pension rate was adjusted was to be adjusted from 15 October 2019 and he should receive arrears of age pension. The Applicant has sought further review of the decision of the SSCSD of the AAT.
On 7 June 2024 the Applicant lodged an application for review of that decision in the General Division of the AAT. On 2 August 2024 the AAT granted a stay order regarding the implementation of the SSCSD decision until the resolution of the substantive application.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The evidence before the Tribunal comprises the documentation filed by the Applicant and the Respondent and the oral evidence of the Respondent. The Applicant’s legal representative made detailed written submissions, which were also provided to the Respondent. The Respondent has also provided written submissions.
For the reasons that follow, the decision under review is set aside.
ISSUES
The statutory provisions relevant to this application are found within the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999. The issues requiring determination in this matter are:
(a) Whether the Respondent should not be treated as being a member of a couple for the purpose of calculating his rate of age pension; and
(b) Whether the Respondent is entitled to arrears of age pension at the single rate.
It is proper for the Tribunal to also have regard to the contents of the Social Security Guide (the Guide). The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it.[1] In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. I have adopted this approach in my considerations of the Guide as relevant to this application.
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
It is not in dispute, based on the submissions and evidence before me, that the Respondent was married on 15 October 2015 and is still married. The Respondent’s submissions are that he and his wife should be treated as an illness separated couple or as not being a member of a couple due to a special reason.
CONSIDERATION
As discussed above, the Respondent has previously sought review of the decision to treat him as a member of a couple. On 26 November 2021, the AAT on second review affirmed a decision not to exercise the discretion. However, the fact that one decision maker has decided not to exercise the discretion does not mean it establishes a precedent for other decision makers. However, to make a different decision to what has been previously determined would generally require new evidence of a change of circumstances from the previous considerations.
In Cheung v Administrative Appeals Tribunal [2009] FCA 241 the court stated as follows (at paragraph [49]:
49. Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course (Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374 at 390).
In Pala v Secretary, Department of Social Services [2014] AATA 313 (Pala), Senior Member Redfern considered circumstances analogous to those of the Respondent in this matter. In Pala, the Tribunal found that while it was not bound by the previous decisions of the Tribunal, it should still give those findings considerable weight in determining the matter before it, as well considering the available evidence, including the evidence before the previous Tribunal and any new evidence of the Respondent’s circumstances.[2]
[2] At para [37].
Are the Respondent and his wife an illness separated couple?
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 at 2.2.5.60 provides the following to assist in assessing an illness separated couple:
It is not the intention that medical evidence is required for the majority of assessments. A couple separated due to illness or infirmity will be accepted as illness separated in situations where:
·it is apparent that the illness or infirmity of one or both members of a couple prevents them from living together, and/or
·there is supporting evidence of illness or infirmity, for example, where the ill or infirm member of the couple
ohas current care needs that indicate that the couple cannot live together (this could be based on information Services Australia already holds on care needs provided to assess entitlement of a carer to receive CA or CP in respect of the ill or infirm member of the couple)
ohas had an ACAT assessment that indicates care is needed on an ongoing basis
opermanently lives in an aged care facility that provides low (hostel) or high level (nursing home) residential care
ois residing in a psychiatric facility, or
ois a patient in a normal hospital ward and has been classified as a nursing home type patient.
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 Respondent has stated that his wife has a medical condition, lymphatic filariasis, which she contracted when she was young. This condition has developed into elephantitis. She has been recently hospitalised due to an exacerbation of the condition.
Although the Respondent has provided photographic evidence of the medical devices being utilised associated with his wife’s condition and various receipts for the purchase of this equipment, no medical reports regarding the Respondent’s condition have been provided in this matter. However, although there is no report, I accept that the Respondent’s wife suffers from the medical condition as stated. What is unclear on the evidence before me, is why this illness prevents her and the Respondent from living together. The Respondent has stated that his wife is unable to use the stairs in the property where he currently resides.
The Applicant submits that there is a lack of evidence to support the claim that the Respondent’s wife requires a single storey residence or that a single storey dwelling could not be obtained to alleviate the limitations of his wife having to use stairs. I am not satisfied that there is sufficient information to make a determination under subsection 4(7) of the Act that as a result of the Respondent’s wife’s illness or infirmity they are unable to live together in there home as she needs to live in a single storey residence on account of her illness. On this basis, I find that the Respondent and his wife are not an illness separated couple.
Is there a special reason to treat the Respondent as not being a member of a couple?
The qualification requirements for age pension are found in Part 2.2 of the Act. In respect of the payability of age pension, these requirements are found in Part 3.2 of the Act. A person’s rate of age pension is determined on the basis of, amongst other things, whether the person is a member of a couple.
Relevant to this application, section 24 of the Act states as follows:
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 stated above, section 24 of the Act provides that, if there is a special reason in the particular case, the person may be treated as not being a member of a couple. Where this discretion is exercised a person is considered not to have a partner for the purposes of determining their rate of age pension.
The term special reason is not defined in the Act. In Boscolo v Secretary, Department of Social Security [1999] FCA 106 (Boscolo), French J stated:
The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Thoo (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 27 FCR 32 (at 29 AAR 124).
The Federal Court decisions in Boscolo and in Cocks v Centrelink [2000] FCA 1248 (Cocks), found the inability to pool resources for mutual benefit is a special reason in relation to section 24 of the Act. Specifically, O’Loughlan J stated at [12] in Cocks’ case that:
The marriage of a man and woman is taken to mean, in ordinary circumstances, that they will pool their resources, share their expenses, and thereby live more cheaply than if they were two single persons who were living separate and apart. In the case of income earners they would pool their respective incomes.
In relation to the exercise of the discretion under section 24 of the Act, the Guide provides the following at 2.2.5.40:
Summary
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.
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.
Note: If a change in circumstances applies such that a partner commences earning income or receives a large payout, the application of section 24 needs to be reviewed. If an unreported change in circumstances is later discovered which would result in section 24 not having been applicable from the date of the change, this may result in the person incurring a debt.
Special reasons
In general, a couple’s circumstances must be unusual, although not necessarily unique, compared to most cases to be considered a special reason for the purposes of making a section 24 decision.
Previous decisions by the AAT and Federal Court indicate that when applying section 24, the following may not be sufficient to constitute 'special reason' in and of itself:
· ineligibility for a social security payment.
· a person's financial difficulty.
The following circumstances normally attract a single rate of payment under SSAct, and therefore section 24 would not be applicable:
· Illness separated couple.
· Respite care couple.
· Partner in gaol.
The Respondent stated at the hearing that there has been no consideration of his cost of living and the requirements of his visa. As discussed above, He stated that his wife’s medical condition, lymphatic filariasis, which has developed into elephantitis. More recently, he stated that his wife was hospitalised on 18 March 2024, suffering from diabetic ketoacidosis as well as other serious infections, including extreme oedema of the feet and legs. The Respondent stated that his wife was in hospital for 74 days, including 65 days in ICU. The Respondent also submitted in his written submissions that the hospital stay, and additional medical equipment, costs 375,000 Thai baht which was paid by way of loan from his wife’s uncle.
The Respondent stated that his wife is unable to live where he resides as his wife is unable to climb the stairs at the property where he resides and he cannot live with his wife because there are 10 adults and 2 children living in the same house. He states that it is cheaper to maintain two properties than to rent one single storey residence. He stated that he contributes to utilities, rent and groceries for both the property where he lives and where his wife is residing. He confirmed his previous evidence to the Agency and on first review that they have been living separately since 2015. As stated at hearing and in written submissions, he maintains that it is not by choice that he supports the extended family but to not do so would cause shame and provide a reason for his wife to divorce him. If this occurred, he would lose his current visa to remain in Thailand. He stated that he has always provided financial support to his wife’s family.
The Respondent stated that they are unable to pool resources because his wife does not have any assets and has no regular income. He stated that his wife works on occasion, making and preparing food for sale, but this work is ad hoc. He stated that in regard to his financial circumstances, he must maintain 400,000 Thai baht in his bank account for the purpose of his visa. He stated that he owed 150,000 Thai baht in September 2023 but this has since been repaid, however he has had to borrow additional funds, including for his savings deposit and his wife’s hospital admission, from his wife’s uncle. The Respondent provided a written loan agreement, dated 30 June 2024,[3] as evidence of the amounts borrowed from his wife’s uncle. While the loan agreement specifies interest to be paid at 1% per annum, the agreement provides that the principal or interest is to be paid at a date agreed by the borrower (the Respondent) and the lender (his wife’s uncle).
[3] Exhibit R1.
Most of the information outlined above by the Respondent in respect of his circumstances is information that was previously provided to the AAT in respect of the decision on 26 November 2021. The basis of that application was his inability to pool resources with his wife because she does not have any regular income or assets; that his wife cannot work, apart from on an ad hoc basis, due to her medical condition; that his wife is unable to live with him due to mobility issues which prevent her from climbing the stairs in the dwelling. I accept that these circumstances, as they were present in the previous review of this matter, are still relevant in these proceedings.
While the Respondent has provided further evidence of his wife’s recent hospitalisation and the associated costs, there is no evidence which indicates that she is unable to work or earn an income.
In considering whether there are special reasons, I note the decision Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 (Holt)where Senior Member Professor RM Creyke stated as follows:
39.A finding that Mrs Holt brought no assets or income into the marriage is not sufficient on its own to justify a finding that Mr Holt should receive the Newstart allowance at the single rate. The Tribunal accepts the correctness of the sentiment in the Explanatory Memorandum that:
There is no clear justification for paying a higher rate of pension/benefit or pharmaceutical allowance to a member of a couple simply because the partner does not also receive income support’.
40. Nor is financial hardship on its own a sufficient ‘special reason’, although hardship is a consideration. There must be other circumstances, in addition to the fact that there was no pooling of assets or other monies in the case of Mr and Mrs Holt, to justify the favourable exercise of the discretion. In particular, since Mrs Holt is able to work, but chooses to be a full-time housewife and homemaker, those circumstances or special reasons must explain why it would be unreasonable to deny Mr Holt the benefit of the exercise of the discretion in section 24. (citations omitted)
In Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, Barker J agreed with the observations of SM Creyke in Holt and stated as follows:
40. In Holt, Senior Member Creyke went on to consider the relevant provisions of the Guide and the case law that has dealt with the capacity of persons such as the applicant and his wife to pool resources for their mutual benefit. At [48], the Senior Member identified the issue as being whether, for practical reasons, they could not reasonably be expected to enjoy the pooling of resources that usually occurs in a marital relationship. A number of decisions of the AAT, including Holt and Lada show that circumstances will arise from time-to-time as a result of which the s 24 “special reasons” discretion should be exercised in favour of the pension holder, on the basis that for practical reasons the income enjoyed by the pension holder’s partner is not available for pooling.
41. The case law canvassed by Senior Member Creyke in Holt’s case confirms, in my view correctly, that there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.
42. It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.
The Applicant, in their written submissions, also referred to the decision in Munro and Secretary, Department of Social Services [2018] AATA 688 (Munro). The decision in Munro is similar to the matter before me. In Munro, as in this application, Mr Munro argued that the discretion in section 24 should be exercised as there had been no pooling of resources because his wife had no income or assets. The Tribunal in Munro found as follows:
24.Mr Munro submitted that he was not able to pool resources because his wife had no resources to contribute. As Mr Sparkes pointed out however, there was no corroborative or objective evidence supporting this claim. What is clear from the authorities is that the strained financial circumstances of a social security recipient are not a particularly different or unusual situation. A couple must be prevented from being able to pool their resources as a result of a particular circumstance, such as a forced separation, and this circumstance gives rise to the financial difficulties. In other words there must be a ‘special reason’ in Mr Munro’s circumstances to justify treating him as not being a member of a couple.
25.Whilst Mr Munro contends that his financial circumstances at the relevant time were difficult and that they continue to be so, he has not, despite directions from the Tribunal, provided any objective evidence regarding the couple’s expenses. The Tribunal was accordingly unable to undertake a thorough assessment as recommended in the Guide.
26.The Tribunal accepts the evidence regarding income as outlined by Mr Sparkes and also takes account of the comparative incomes and living expenses for persons residing in Thailand. Mr Munro is in receipt of the same amount of age pension in Thailand as he would have received if residing in Australia but has considerably different outgoings and living expenses. It is particularly notable that at the time of the Department’s decision and during the following nine months, Mr Munro had considerable savings which he subsequently chose to use for the purchase of a residence and car.
27.The Tribunal is, for the above reasons, unable to conclude that there was a ‘special reason’ constituting circumstances which either prevented Mr Munro from pooling resources or from being able to enjoy the economies of shared living costs. Whilst Mr Munro claims that he suffers financial difficulties, both now and at the relevant time, there is no corroborative evidence to support his claims.
Having considered the evidence of the Respondent in this matter, I am not satisfied that there are financial circumstances in this matter which make it appropriate to exercise the discretion in section 24 of the Act. I have also given weight in determining the matter before me, to the evidence before the previous Tribunal of the Respondent’s circumstances, consistent with the decision in Pala.
I am also not satisfied that the other circumstances identified, even when considered together with the financial issues, are such that the discretion should be exercised. The obligation to support his wife’s extended family is not a legal requirement and is not a circumstance which persuades me to exercise the discretion to treat the Respondent as not being a member of a couple. In addition, while it has been submitted that the Respondent and his wife must live apart, I am not satisfied that there is anything which prevents them from living together and therefore not satisfied that there is a special reason.
DECISION
The Tribunal sets aside the decision under review and, in substitution, determines that the Respondent’s entitlement to age pension be assessed on the basis that he is a member of a couple from 29 August 2019.
Date of hearing: 18 March 2025 Solicitors for the Applicant: Mr Gauci, Hunt & Hunt Respondent: Self-represented
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