Gunduz and Department of Family and Community Services - [2001] AATA 631

DECISION AND REASONS FOR DECISION [2001] AATA 631

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1042

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CELALETTINI GUNDUZ
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date22 June 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
  ..........Sgd. Mr J. Handley..............
  Senior Member
CATCHWORDS
Social Security – Applicant married and lives with his wife – paid pension at 50% of married rate – claims pension at the single rate – wife subject to assurance of support – whether any 'special reason' to treat applicant not as a member of a couple – decision affirmed.

REASONS FOR DECISION

22 June 2001 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 28 July 2000. The SSAT then decided to affirm a decision made by an officer of Centrelink to pay Disability Support Pension ("DSP") to the applicant at the married rate rather than at the single rate.
The applicant's wife Dogannur Gunduz also issued proceedings by application V2000/1159. Mrs Gunduz lodged an appeal against a decision of the SSAT made on 22 August 2000 where it affirmed a decision made by a Centrelink officer to reject her claim for special benefit.
Both applications were heard on 26 April. Ms Cooke of Counsel appeared on behalf of both applicants. Ms Bradley appeared on behalf of the respondent in both applications.
On 21 May 2001 Mrs Gunduz withdrew her application. A decision has been made pursuant to s.42A(1A) of the Administrative Appeals Tribunal Act 1975 acknowledging the withdrawal of her application. Accordingly the only application which remains current before the Tribunal is the application brought by Mr Gunduz. These reasons for decision therefore only concern his application.
Despite this, the application brought by Mrs Gunduz and the evidence heard in her proceedings – including her evidence under oath – have an impact on the application of Mr Gunduz. It is therefore necessary to briefly describe the proceedings that Mrs Gunduz instituted.
Mrs Gunduz sought special benefit. That is a discretionary benefit payable in some circumstances. In brief terms Mrs Gunduz has at all times been a Turkish citizen. She married Mr Gunduz on 14 August 1998 in Turkey, and applied for permanent residence in Australia on 2 September 1999 and arrived in Australia on 21 October 1999. She is the subject of an assurance of support, which expires on 21 October 2001.
In her proceedings, Mrs Gunduz sought to avoid the "newly arrived residence waiting period" on the basis that she asserted that she had suffered a "substantial change in circumstances beyond her control".
The respondent called Mushin Eroglu to give evidence in the proceedings of Mrs Gunduz. He provided an assurance of support in 1999 with respect to Mrs Gunduz. In evidence he said he understood the documents he signed and what his responsibilities were. He understood that he was under a legal responsibility to provide support to Mrs Gunduz for two years. He acknowledged that he was prepared to provide either financial assistance or to allow Mr and Mrs Gunduz and their infant child to live in his home. He was also prepared to allow them to live in a rental property that he owns from which he receives income.
Although a decision has not been made with respect to the application brought by Mrs Gunduz – because she withdrew her application before decision – the evidence of Mr Eroglu would have been of influence in deciding whether she had suffered a substantial change in her circumstances beyond her control so as to avoid the newly arrived residence waiting period.
With respect to the application brought by Mr Gunduz and over which this decision relates he said in evidence that he has lived in Australia for approximately 26 years and has been an Australian Citizen for a period that he estimated to be between 11 and 15 years. He said he has dual nationality between Australia and Turkey. Mr Gunduz has been in receipt of Disability Support Pension since 1993 because of a diagnosed condition of schizophrenia.
Between 1996 and 1999 Mr Gunduz lived in Turkey and resided in an apartment owned by his parents in Ankara. Mr Gunduz met his wife in Turkey and they eventually married. They both decided to travel to Australia.
Shortly after arriving in Australia Mrs Gunduz obtained employment with Daram Tudor Pty Ltd as a machinist. She earnt a salary but ceased employment at the end of January 2000 when she became pregnant. In a statement filed during the course of these proceedings by Osman Cetinkaya, who is a director of Daram Tudor Pty Ltd, he said that Mrs Gunduz left his employment – despite him continuing to offer employment to her – because she had not supplied him with an employment declaration form and a tax file number. He recorded in his statement that Daram Tudor Pty Ltd was not prepared to continue to employ her unless the employment declaration form and tax file number were provided.
After arriving in Australia, Mr Gunduz said that he and his wife lived with his parents in their home in Brunswick. Their baby was born in September 2000 and in February 2001 Mr and Mrs Gunduz moved out of that home and obtained private accommodation in Carlton. The respondent pays pension to the applicant at 50% of the married rate being $235 per fortnight. Benefit is also paid with respect to the infant child at $216 per fortnight. The applicant said that he does not own real estate and pays rent at $107 per fortnight. He says he has the usual day to day expenses associated with gas, telephone, electricity, groceries, insurance and motor car registration. He said that he has not received financial assistance from any other person in Australia but did borrow monies from his wife's father in Turkey. Mr Gunduz said that there is "no-one else here that can help". He said that his wife is unable to work because of her need to provide full-time care for their infant child and that he is unable to work because he is "not well". He said he has looked for work on a part time or casual basis for 13 years but has been unable to secure it. He takes medication regularly for his schizophrenia. Mr Gunduz said that the effect of only being paid pension at 50% of the married rate caused his health to suffer. He said that he and his wife endure considerable hardship and he has become depressed and suffers from severe headaches.
In cross-examination Mr Gunduz said that he did not work in Turkey between 1996 and 1999. He acknowledged that his wife did work in Australia for five or six weeks after they arrived in 1999 but said that she left the work because it was "hard labour", involved long hours with a poor salary and because she was pregnant. He agreed that Centrelink was not notified that she was working and agreed also that he had received letters from Centrelink asking him to notify them of any change in his circumstances.
Mr Gunduz said that he had sought assistance from Mr Eroglu. He said that assistance had been denied and when he had requested it Mr Eroglu had become abusive. However the applicant denied an entry at T-20 p.49 where an officer of Centrelink has recorded that the applicant had stated that support was being provided by the assuror and another entry at T-22 p. 53 where the interviewing officer "ascertained that assuror was still providing level of support".
Mr Gunduz said that he had expected that his wife would receive special benefit despite the presence of an assuror. He said that he expected payment would be made "because everyone I know receives it – who are in my position".
Mr Gunduz acknowledged that he does have a licence to drive taxis which was issued approximately 20 years ago. He said he has not worked as a taxi driver but did obtain work as a casual cleaner in 1999. He also acknowledged that he did not notify Centrelink of that employment.
The Legislation
Section 4(2) of the Social Security Act 1991 provides that a person is a "member of a couple" if that person is legally married to another person and is not living separately and apart from that person on a permanent or indefinite basis. Section 4(6) provides that a person is not a member of a couple if there is a determination issued under s.24.
Section 24 provides that a person may not be treated as a member of a couple if a person is legally married and is not living separately and apart on a permanent or indefinite basis and if 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.
Conclusion & Reasons For Decision
At all relevant times the applicant and his wife Dogannur Gunduz were legally married and were a "member of a couple". They continued to reside together and accordingly they are not "living separately and apart".
The issue therefore in these proceedings is whether a determination should be issued under s.24 upon the basis that there is a "special reason in the particular case" which would permit a finding that Mr Gunduz should not be treated as a member of a couple. This would allow him to receive pension at the single rate which would entitle him to a greater rate of pension than the rate which he currently receives being 50% of the married rate.
There are many decisions of this Tribunal and of the Federal Court which discuss the objective of Social Security legislation having an object or purpose in providing a social security benefit for persons who are in need.
There are also decisions which refer to the intended or at least implied objective of the quantum of married rate of pension being an expectation that persons who are members of a couple would pool their resources.
I am unable to find a "special reason" in the present application. Mr and Mrs Gunduz live in rented accommodation with their infant child. There is nothing unusual or special about this. It is acknowledged they have debts associated with day to day living costs, but so do other persons. Both Mr and Mrs Gunduz have demonstrated by their evidence in these proceedings that they are capable of working and have infact worked. Mrs Gunduz continues to be capable of working and has no illness or injury, which would prevent employment. Mr Cetinkaya indicated that he would provide employment to her if she provided an employment declaration form and a tax file number. Mrs Gunduz said that she was unable to work because she is required to breast feed her baby. However the application made by Mr Gunduz for payment of Disability Support Pension at the single rate was made in May 2000 approximately four months before the infant child was born. In any event there are many women who leave the workforce upon maternity leave and return at a later date having made adequate arrangements for the care of infants. Mr Gunduz apparently does not now work and I can think of no reason why he would not be capable of looking after the infant during the day should Mrs Gunduz decide to return to the workforce.
Additionally, the evidence of Mr Eroglu, given under oath is compelling and cannot be ignored. He indicated that he was prepared to provide support - either financial or by provision of accommodation.
The financial circumstances Mr Gunduz described giving rise to his need for a greater rate of pension arose out of both his financial circumstances and the cost of accommodation. The support offered by Mr Eroglu would alleviate that financial distress.
I cannot in all of the circumstances find that there is a "special reason" where Mr Gunduz should not be treated as a member of a couple.
The decision under review will be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         ...C. Irons ................................................
  Secretary
Date/s of Hearing  26 April 2001
Date of Decision  22 June 2001
Counsel for the Applicant
Solicitor for the Applicant         Ms Cooke
Counsel for the Respondent
Solicitor for the Respondent    Ms R. Bradley, Departmental Representative