HARDING and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 231
•31 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 231
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5559
GENERAL ADMINISTRATIVE DIVISION ) Re HILARY HARDING Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date31 March 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Age pension – Whether the applicant is a member of a couple – Decision affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s34J
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth)
Social Security Act 1991 (Cth) ss 4, 24, 1064
Boscolo v Secretary Department of Social Security (1999) 53 ALD 277
Re Hawkins and Secretary Department of Social Security (1996) 44 ALD 651
REASONS FOR DECISION
31 March 2010 Dr P McDermott, RFD, Senior Member 1. Mr Hilary Harding (the applicant), who is in a same-sex relationship has sought review of a decision by Centrelink to calculate his age pension from 1 July 2009 on the basis that he was a member of a couple. I have determined that no special reason exists to justify treating the applicant as not being a member of a couple.
BACKGROUND
2. Since 1998 the applicant has been qualified to receive age pension.
3. In February 2007, the applicant commenced a same-sex relationship with his partner who, in that month, arrived in Australia on a student visa. This relationship is disclosed in a Form 40SP (Sponsorship for a partner to migrate to Australia) which the applicant completed on 22 January 2008 for the Department of Immigration and Citizenship.
4. The applicant and his partner have pooled their funds. On 4 March 2008, the applicant wrote a letter to the Department of Immigration and Citizenship in support of an Interdependency Visa application by his partner. In that letter, he disclosed that he and his partner had pooled their assets and shared their finances since their relationship began. Before arriving in Australia, the applicant’s partner transferred $14,700 into a bank account that is jointly held by both he and the applicant. On 29 May 2006, via telegraphic transfer, the applicant gave $9,990 to his partner.
5. The applicant and his partner have executed wills which name each other as beneficiaries. This was done on 2 July 2007.
6. In his statutory declaration which was made on 22 January 2008, the applicant described the nature of the relationship in the following terms:
Right from the start we have pooled our financial resources and currently, we own a joint bank account into which all payments made to me and my partner are deposited. Since I am co-owner of this home where we live, we jointly contribute to such things as statutory bills (power, phone, rates and water) the balance being paid by the other part owner of this home. The telephone and power accounts are registered in my name for reasons of convenience although all the occupants of this home share equally in paying whatever bills arise. My portion of the rates and water charges are now paid jointly by my partner and myself. My partner is the sole beneficiary in my Will and in due course, I intend to pass my share of ownership of this home to him, since he is the younger of the two of us.
7. The applicant’s statutory declaration is corroborated by the statutory declaration of Peter Mathys van Schaik which was also made on 22 January 2008.
8. The material before me also includes tax invoices in the names of both the applicant and his partner which show that they have jointly purchased household items.
9. In June 2008, the applicant’s partner was granted an Interdependency (subclass 826) Visa.
10. As at 27 June 2009, the applicant had liquid assets in excess of $56,595.07 and was in receipt of an Australian age pension as well as part payment of an age pension from the United Kingdom.
11. The applicant’s partner was in employment by September 2009 and depending on the number of hours worked, has earned approximately $2,000 per fortnight since that time..
PRIOR DECISIONS
12. On 1 July 2009, the partner lodged a claim for Special Benefit. On 10 July 2009, this claim was rejected on the ground that the partner was not considered to be in hardship. The partner was certainly residentially qualified for the payment. He was not subject to the newly arrived residents waiting period because as from 1 July 2009 he was regarded to be a family member of an Australian Citizen.
13. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws -General Law Reform) Act 2008 (Cth) came into force on 1 July 2009. On 10 July 2009, following this change to Commonwealth law, Centrelink determined that the age pension of the applicant was to be calculated on the basis that he was a member of a couple with effect from 1 July 2009. On 31 August 2009, the applicant sought a review of that decision and it was reviewed and affirmed by the original decision-maker.
14. The applicant sought a further review of the decision by Centrelink by an authorised review officer. The applicant advised that officer that his liquid assets had been reduced to approximately $29,000. On 16 September 2009, an authorised review officer affirmed the decision.
15. On 11 November 2009, the Social Security Appeals Tribunal (SSAT) reviewed the decision by Centrelink to calculate the rate of the applicant’s age pension on the basis that he was a member of a couple. The applicant advised the SSAT that his liquid assets had depleted to $19,000. The SSAT affirmed the decision and declined to exercise the discretion to treat the applicant as not being a member of a couple.
16. On 23 November 2009, the applicant sought review by this Tribunal.
CONSIDERATION
17. The parties have consented to this review being determined without a hearing pursuant to s 34J of the Administrative Appeals Act 1975 (Cth).
18. The rate of age pension which is payable to a person is to be determined in accordance with s 1064 of the Social Security Act 1991 (Cth). Under this provision, a person who is not a member of a couple is entitled to a higher maximum rate of pension than a partnered person. The provision also provides for a reduction of the rate of aged pension which is based on the income received by the partner.
19. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws -General Law Reform) Act 2008 (Cth) amended the Social Security Act 1991 (Cth) to recognise same-sex relationships under social security law.
20. Under s 4(2)(b) of the Social Security Act1991 (Cth), a person is a member of a couple if all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
21. The applicant does not dispute that he is a member of a couple. However, he does not wish to be treated as a member of a couple for the purpose of calculating his entitlement to age pension.
22. I am satisfied that the applicant is a member of a couple for the purposes of the Social Security Act 1991 (Cth). I have formed this opinion by reading the statutory declarations of the applicant and Mr van Schaik which were made on 22 January 2008 as well as reading the submission dated 4 March 2009 from Advocate Immigration Lawyers & Agents to the Department of Immigration and Citizenship on behalf of the applicant and his partner.
23. Under s 4(6) of the Social Security Act 1991 (Cth) a person is not a “member of a couple” if a determination under s 24 of that Act is in force in relation to the person. Under s 24(2)(d), the Secretary can exercise discretion to not treat the applicant as a member of a couple where “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”.
24. In considering the application of s 24, I have to consider the position of the applicant. In Boscolo v Secretary Department of Social Security (1999) 53 ALD 277 at [19] – [24] French J (as he then was) stated that:
s 24 requires the decision-maker to focus on the position of one person, not a couple, and to assess whether that person should for a special reason not be treated as a member of the couple … The Act requires that the decision-maker consider the circumstances of the person who is claiming to be paid the benefit at single rates.
25. I am also required to consider the circumstances of the partner of the applicant in so far as they affect the applicant: see Boscolo v Secretary Department of Social Security at [25].
26. In Re Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651 at 652, where Deputy President Blow discussed the policy that underlines s 24:
The evident policy behind the relevant legislative provisions is that ordinarily couples should be expected to pool their resources and practise economies of scale; that those expectations should not apply to couples who are separated by illness or imprisonment; but that there would have to be some special reason not to apply those expectations to members of other couples.
27. Section 2.2.5.50 of the Guide to Social Security Law outlines the policy that underlies s 24:
Members of a couple in ordinary circumstances will pool their resources and share their expenses, making it cheaper for them to live than if they were 2 single people. A significant body of case law has established that the inability to pool resources for their mutual benefit is a ‘special reason’ to exercise the discretion in section 24.
28. This is not a case where the parties have an inability to pool their resources. The applicant and his partner have pooled their resources since the commencement of their relationship.
29. The applicant’s partner is allowed to work in Australia. However, the applicant has mentioned his partner’s difficulty in obtaining employment stating: “Most of the permanent jobs for which he is qualified carry the condition requiring permanent residence.” The applicant has not provided any material relating to which positions have permanent residence as a condition of obtaining employment.
30. By September 2009, the applicant’s partner did however secure employment. He has been earning approximately $2,000 per fortnight. These earnings were paid into the bank account that is held jointly by the applicant and his partner. The partner of the applicant can certainly contribute to the support of the applicant. I note that there is some evidence that the partner owes $10,000 to relatives in China and is attempting to repay that debt however no evidence was given to the SSAT regarding the amount paid or the total debt outstanding.
31. There has been a diminution of the applicant’s liquid assets. I appreciate that this is a matter of concern to the applicant. In recent times, the applicant has gone from having $56,595.07 liquid assets to $19,000. There is however, no material before me to explain the expenditure of the applicant’s funds. The applicant has not made reference to any extraordinary expenditure.
32. The SSAT has advised the applicant that he may make an application to Centrelink if his circumstances change. I note that the applicant has not yet had his circumstances assessed by the aged care assessment team since his move to Queensland.
33. I have come to the conclusion that there is no special reason to treat the applicant as not being a member of a couple. I therefore decline to exercise the discretion that is vested in the Secretary under section 24(2)(d) of the Social Security Act 1991 (Cth).
DECISION
34. I affirm the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ...............[Sgd]..............................................................
Kate Slack, Research AssociateHearing on the papers
Date of Decision 31 March 2010
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