Impey; Secretary, Department of Social Services and (Social services second review)

Impey; Secretary, Department of Social Services and (Social services second review) [2018] AATA 3914 (17 October 2018)
Division:GENERAL DIVISION
File Number: 2017/6849
Re:Secretary, Department of Social Services
APPLICANT

AndWilliam Impey
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:17 October 2018
Place:Brisbane

The Tribunal sets aside the decision under review and orders that the Respondent be considered a member of a couple and be paid the age pension at the partnered rate from 12 May 2017.
.................................[SGD]....................................
Senior Member P J Clauson
CATCHWORDS
AGE PENSION – eligible for age pension – whether the respondent be paid the age pension at the single rate or partnered rate – whether there is a special reason to exercise the discretion to not treat the respondent as being a member of a couple – factors in determining whether a person’s relationship is a de facto relationship
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1991 (Cth)
CASES
Boscolo v The Secretary, Department of Social Security (1999) FCA 106
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Wilson [2011] AATA 554
Cocks v Centrelink [2000] FCA 1248
Re Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Rautenberg and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 978
Brawn and Secretary, Department of Social Services [2017] AATA 873
SECONDARY MATERIALS
Guide to Social Security Law – Part 2.2.5.50: Discretion not to Treat a Person as Not Being a Member of a Couple for a Special Reason
REASONS FOR DECISION
Senior Member P J Clauson
17 October 2018
BACKGROUND

Mr William Impey (“the Respondent”) has been in receipt of the age pension since 6 January 2015.[1] There is no dispute over whether the Respondent is in a permanent relationship with Ms Suwicha.
[1] Exhibit 1, T Documents, T12, Centrelink Mainframe Screenshots, p. 67.
On 12 May 2017, the Respondent commenced living with Ms Suwicha while she was visiting Australia on a visitor’s visa. [2] Centrelink were advised of this.[3]
[2] Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, p. 46.
[3] Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, p. 45.
On 30 June 2017, based on this arrangement, Centrelink made a decision to pay the Respondent the partnered rate of the age pension from 12 May 2017.[4]
[4]Exhibit 1, T Documents, T8, Age Pension Letter from the Department, dated 30 June 2017, pp. 56 – 58; T9, Single Rate Rejection Letter, dated 30 June 2017, pp. 59 – 60.
On 10 July 2017, an Authorised Review Officer (“ARO”) affirmed Centrelink’s decision, agreeing that the Respondent is to be paid the partnered rate of the age pension from

12 May 2017.[5]
[5] Exhibit 1, T Documents, T10, ARO Decision, dated 10 July 2017, pp. 61 - 65.
The Respondent sought a further review of the decision of the ARO to the Social Services and Child Support Division (“SSCSD”). On 13 October 2017, the SSCSD set aside the decision under review and substituted it for a decision that the Respondent be paid the single rate of the age pension assessed on the basis that he was not a member of a couple from 12 May 2017.[6]
[6] Exhibit 1, T Documents, T2, Decision of the SSCSD, dated 13 October 2017, pp. 3 - 8.
On 20 November 2017, the Secretary (“the Applicant”) sought a review of the SSCSD decision to this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, Application for Review, dated 20 November 2017, pp. 1 – 2.
THE LEGISLATIVE FRAMEWORK
The relevant legislation is contained in the Social Security Act 1991 (“the Act”). The relevant government policy, Guide to Social Security Law (“the Guide”) informs this statute. The Guide is a non-binding policy drawn to assist in the application of the legislation but should be followed when appropriate to ensure consistency of approach to decision making within the social security system. The Guide at 2.2.5.50 is relevant when applying s 24 of the Act.
Section 4(1) of the Act states that:
“‘member of a couple’ has the meaning given by subsections (2), (3), (3A), (6) and (6A)”.
Section 4(2) of the Act provides:
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(b) 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.
Section 4(3) of the Act provides that:
“In forming an opinion about the relationship between 2 people for the purposes of paragraph…2(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.”
Section 24 of the Act outlines:
Person may be treated as not being a member of a couple (subsection 4(2))
…
(2) Where:
(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a de facto relationship; and
(d) the Secretary is satisfied that the person should, for 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.
(Emphasis in original)
SUBMISSIONS
Secretary’s Submissions
I outline below the Secretary’s submissions and contentions as to why the Secretary considers that the Respondent is a member of a couple for the purpose of s 4(2)(b) by way of his satisfying s 4(3) of the Act.
Financial aspects of the relationship
The Secretary submits that the financial aspects of the Respondent’s relationship are not indicative that he is a member of a couple as he is paying the full amount of rent including the expenses, and his savings accounts are in his name only.[8]
[8]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [21]-[22].
Nature of the household
The Secretary submits that the nature of the household is indicative that the Respondent is a member of a couple as the lease is under both their names and there is no evidence that they have separate living arrangements.[9]
[9] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [23].
Social aspects of the relationship
The Secretary contends that it can be inferred on the evidence that the Respondent and Ms Suwicha attend gatherings together and that the social aspects of their relationship are indicative of being a member of a couple.[10]
[10]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [25]-[26].
Sexual relationship
The Secretary contends that there is no evidence that the Respondent does not have a sexual relationship with Ms Suwicha however the absence of a sexual relationship, does not in itself, mean the lack of being a member of a couple.[11]
[11]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [27]-[29].
Nature of the commitment to each other
The Secretary submits that the Respondent is committed to Ms Suwicha as they have applied for a spousal visa so she can return to Australia on a permanent basis. The Respondent has also organised his living arrangements to reflect that he is in a committed relationship, and the evidence indicates that they are a member of a couple.[12]
[12]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [30]-[32].
Conclusion
In summary, the Secretary submits that on the balance of all of the above factors, the Respondent should be considered to be a member of a couple from 12 May 2017. Further, the Secretary submits that there are no special reasons to treat him as not being a member of a couple. The Secretary submits that the Respondent is on the full partnered rate of age pension and has income and savings that can be used to pool resources with Ms Suwicha. The Secretary contends that the evidence indicates that Ms Suwicha has been able to work in Thailand and given her qualification as a hairdresser, this improves her employment prospects.[13] The Secretary further submits that there is no corroborating evidence to support a finding that she cannot undertake paid work in Thailand or that she has no income,[14] and in Ms Suwicha’s own statement she outlined that although she was not currently receiving income, she has an employer.[15] The Respondent also reported to Centrelink in a file note that Ms Suwicha sometimes does “sewing machine work but had not done it recently”.[16]
[13] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [51].
[14] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [51].
[15] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [50].
[16] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [50].
The Secretary submits that while financial hardship is a consideration, it is not determinative and that when deciding whether or not to apply the s 24 discretion, the overall situation should be considered. Income and readily available funds from assets should be compared to necessary expenditure.[17] “Financial hardship” has been taken to mean not being able to provide for accommodation and the basic necessities of life.[18] The Secretary submits that in May 2017, the Respondent had $144,549.48 available in his savings account and in October 2017, he had approximately $120,000.00 available. On the evidence available, the Respondent’s expenses totalled $376 per week and that given the current partnered rate of age pension is $799.60 per fortnight, this would cover his expenses.[19] The Secretary contends that the evidence indicates that the Respondent is spending approximately $5,000.00 per month and that this is significant and while the Respondent is supporting Ms Suwicha, she is also being supported financially by her family.[20] The Secretary contends that the exception does not apply where a person’s pension rate is insufficient for their needs – it must be much more than that, usually meaning that one party is unable to pool any income or where they are forced to live apart and maintain two households because of a situation outside of their control.[21]
[17] Guide to Social Security Law and Secretary, Departmentof Families, Housing, Community Services and Indigenous Affairs [2010] AATA 978.
[19] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [56].
[20] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [59].
[21]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 February 2018 at [60]-[61].
The Respondent’s Submissions
The Respondent maintains that he has a continuing relationship with Ms Suwicha, but there is a distinction to be drawn between the subjective belief that he was in a permanent relationship and the Secretary’s assessment of him being in a member of a couple for the purposes of calculating his pension rate. The Respondent contends that it was not correct for the Secretary to proceed on the basis that he was in a de facto relationship (member of a couple) with Ms Suwicha.[22]
[22] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [14]-[15].
Financial aspects of the relationship
The Respondent submits that the financial aspects of the relationship support the contention that he was not in a de facto relationship at the time of the original decision. The Respondent submits that Ms Suwicha’s visa restrictions did not allow her to work when she came to Australia and he has financially supported her.[23] On this basis, the Respondent contends that this supports a finding that there was no de facto relationship.
[23] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [21].
Nature of the household
The Respondent submits that they moved in together on 12 May 2017 and became engaged on the basis of advice they received in order to have the best possible chances of securing a spousal visa.[24] The Respondent submits that, given Ms Suwicha was in Australia on a tourist visa, they were only cohabiting for a short period of time and the living arrangement was intended to be temporary in nature and designed to increase the chances of obtaining a spousal visa.[25] The Respondent further submits that there is no evidence that Ms Suwicha has returned to Australia since her departure on 16 August 2017 or that the spousal visa has been approved.
[24] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [23].
[25] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [25].
Social aspects of the relationship
The Respondent contends that Ms Suwicha was reluctant to introduce him to members of her family during his visit to Thailand and that she no longer wears her engagement ring, supporting a finding that Ms Suwicha does not see herself as being a member of a couple with the Respondent.[26]
[26] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [27]-[28].
Sexual relationship
The Respondent contends that he slept with Ms Suwicha on occasion but this was limited because of his medication and permanent injury.[27]
[27] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [29].
Nature of the commitment to each other
The Respondent submits that overall, as there was only a short period of cohabitation from 12 May 2017 to 16 August 2017, and then briefly in Thailand until 13 September 2017, that no significant weight should be placed on this occurrence as evidence supporting a de facto relationship. The Respondent submits that he is committed to Ms Suwicha “in so far as he was engaged to her” and in turn, she has applied for a spousal visa so she can return to Australia on a permanent basis.[28] They also continue to communicate with each other.
[28] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [31]-[34].
Conclusion
The Respondent submits that there are special reasons to treat him as not being a member of a couple, which include the following:
·that he has an acquired brain injury;[29]
·the funds in his bank account are from an employment accident (which left him with the acquired brain injury) and are required to sustain his future healthcare needs;[30]
·at the time of the original decision Ms Suwicha’s visa did not entitle her to work and she is currently not working so she has no capacity to pool any resources;[31] and
·Ms Suwicha is currently residing in Thailand and does not have a substantive visa that entitles her to reside and work in Australia. [32]
[29] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [45].
[30] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [45].
[31] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [45].
[32] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [45].
The Respondent also submits that he cannot reasonably be expected to benefit from the pooling of resources for mutual benefit as he currently has to sustain two households as Ms Suwicha is not able to stay in Australia and her visa pathway is currently uncertain.[33] The Respondent also submits that the sum of money in his bank account from a workplace injury was intended to compensate him for the loss of his mental function and physical symptoms, which are likely to be ongoing and if the funds were to be depleted, they cannot be replenished as he is unable to work.[34] Further, as Ms Suwicha is currently not working she is unable to assist in this regard.
CONSIDERATION
[33] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [49].
[34] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 1 May 2018 at [51]-[54].
Introduction
The issue before this Tribunal is to determine whether, pursuant to s 4(2) and s 4(3) of the Act, the Respondent should be considered a member of a couple within the meaning of the Act. Section 4(3) sets out the factors that must be taken into consideration when determining whether a person is a member of a couple. These factors include having regard to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of their commitment to each other. If this Tribunal concludes that the Respondent should be considered a member of a couple within the meaning of the Act, then pursuant to the operation of s 24 of the Act, it will need to be determined whether there was a “special reason” to exercise the discretion to not treat the Respondent as being a member of a couple from 12 May 2017.
Financial aspects of the relationship and the nature of the household
At the hearing the Respondent gave evidence that he met all the household expenses for the couple as Ms Suwicha was on a tourist visa so unable to work in Australia and therefore unable to make any contribution to the joint household overheads. The Respondent gave evidence that Ms Suwicha became seriously ill while in Australia and required admission to the Sunshine Coast University Hospital for treatment. The cost of this treatment was $10,000.00 and Ms Suwicha had no funds or insurance to meet this expense so it was paid for by her sister. A perusal of Ms Suwicha’s Partner Details Form dated 30 June 2017 reveals that her Thai bank account contained a total of 47 Baht, which according to the Commonwealth Bank Online Currency Convertor (as at 25 September 2018) equates to approximately $1.93 AUD.[35]
[35] Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, p 49.

The Respondent has been sending Ms Suwicha sums of money intermittently to help support her, as he has seen how the Thai people live and how little they have. He described their living standards in general terms as being like Australia in the Fifties or Sixties. Although Ms Suwicha has never asked him for funds, he does send her small amounts from time to time but not regularly. He testified that he had sent her $150.00 a couple of weeks before the hearing and that since his return to Australia he has sent her, by his own approximation, about $2,000.00. The Respondent receives a pension of approximately $800.00 per fortnight and this sum is inclusive of his rental allowance. He has to pay the costs associated with his own living expenses and has provided an approximate assessment of his set overheads excluding his food necessities as being $376.00 per week. This Tribunal accepts that there will be variations to this figure probably on a weekly basis, but is prepared to accept this as a realistic approximation. The Respondent confirmed at the date of the hearing he had an aggregate sum of $122,861.00 in his bank accounts with ANZ Bank and the Bank of Queensland.
The Respondent bought Ms Suwicha’s return airfares when her visa expired in August 2017 and he accompanied her to Thailand on 16 August 2017. He also paid for their accommodation and covered all of their expenses whilst together in Thailand. He also paid for the spousal visa application, which cost in the sum of $7,000.00, as well as the additional application fee of $3,000.00 for her teenage son’s application, which, if approved, would allow them both to reside in Australia. The Respondent also placed money into Ms Suwicha’s bank account while he was there to facilitate the payment of costs to arrange her immigration application and to avoid carrying large sums around on him in public. He stated that he withdrew all his funds from that account prior to leaving to return home. He returned home to Australia on 13 September 2017.
The Respondent claims he does not know any details of the employment circumstances of Ms Suwicha and is not sure if she is working or not. The Respondent informed the Tribunal that Ms Suwicha had done a hairdressing course, but he is unsure how comprehensive or formal the course may have been, or whether she is working as a hairdresser. The Respondent also gave evidence that she does some sewing intermittently for a friend of hers in a small business, but is not sure how regular that activity is. This is confirmed in her Partner Details Form to Centrelink dated 30 June 2017, whereby Ms Suwicha outlined her employer’s name and address at Question 28 and described the employer’s details as “small business” at Question 32.[36] Both sections of the document provide an address for the employer in identical terms.[37] Ms Suwicha also outlined in this form that she does not receive any income from work.[38] The Tribunal accepts that this would be so as she was in Australia on a tourist visa and precluded from earning any income.
[36]          Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, p. 48.
[37]          Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, pp. 47-48.
[38]          Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, pp. 47-48.
There is nothing before this Tribunal to give reason to believe that any of Ms Suwicha’s answers to the questions above were anything but truthful, however, whether she is employed and earning an income since her return to Thailand is unclear from the evidence before the Tribunal.
The Respondent had been living in his caravan in Gympie prior to moving in with Ms Suwicha and Ms Suwicha had been living with and being supported by her sister. The Respondent and Ms Suwicha took migration advice as to the most appropriate way to heighten Ms Suwicha’s chances of obtaining a spousal visa. On the basis of this advice, the Respondent told the Tribunal that he moved out of his caravan (as Ms Suwicha’s sister had expressed that she did not want her sister living in a caravan) and moved in with Ms Suwicha on 12 May 2017 in a house rented in both their names. The Respondent bought the household furniture and other items.
Ms Suwicha currently resides in Thailand with friends or relatives, however, her actual physical place of residence is uncertain. The Respondent gave evidence that he understands she does normally live with her friend in Bangkok and lived there with her before coming to Australia. The Respondent also gave evidence that her son lives some ten hours away from Bangkok with an aunt.
Social aspects of the relationship
The evidence before the Tribunal demonstrates that the Respondent and Ms Suwicha’s social aspects of their relationship are indicative of a couple. The Respondent met Ms Suwicha through her sister while Ms Suwicha was visiting Australia on a tourist visa. The Respondent had known her for about a year before they commenced a meaningful relationship. While Ms Suwicha was in Australia, the Respondent and Ms Suwicha engaged socially with her sister in the local community, and when the Respondent was in Thailand, he met with other members of her family including her other sister Rai, Rai’s husband and also her brother.
Sexual relationship
The sexual relationship between the Respondent and Ms Suwicha was limited according to the Respondent because of his medical conditions impacting on his sexual capabilities. This however, is not to any degree persuasive of there not being a relationship in the circumstances as the absence of a sexual relationship does not in itself mean the lack of being a member of a couple.[39] The Respondent, also in his evidence to the Tribunal, indicated that Ms Suwicha was quite understanding of this, and told him she was more interested in companionship than the sexual aspect of their relationship, so this was not a deciding factor in the relationship’s continuance.
[39] Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792 at [34].
Nature of the commitment to each other
The Respondent has consistently stated that he and Ms Suwicha are in a permanent relationship together. They have been partnered from 12 May 2017 (the point in which they moved in together) up until the present time. The Respondent and Ms Suwicha are engaged and still persevering to obtain the necessary visa for her to come to Australia (and her son) and marry the Respondent. They have indicated that they are committed to this joint course and the Respondent has outlaid funds to hopefully, help effect a positive outcome.
The Respondent has given evidence to this Tribunal that he and Ms Suwicha are in a partnered relationship and this was confirmed to the Department as evidenced in the file note dated 13 June 2017 which refers to the term “partner” in either full or abbreviated form multiple times.[40] The file note also indicates that the Respondent indicated that “he is sharing accommodation” and “Sharer is actually his fiancC” (sic).[41] Ms Suwicha has also confirmed they are partnered as seen in the Partner Details Form where she wrote “12/5/17” as the date upon which she and the Respondent became partnered. [42]
[40]          Exhibit 1, T Documents, T13, p. 71.
[41]          Exhibit 1, T Documents, T13, p. 71.
[42]          Exhibit 1, T Documents, T7, p. 45.
Since Ms Suwicha’s tourist visa expired, and the Respondent’s return to Australia from Thailand around 13 September 2017, he has continued to regularly communicate on a daily basis with Ms Suwicha by text messages. He advised the Tribunal that he sometimes instigates the contact and on other occasions, she will start the communication.
The Respondent, in his Statement of Facts, Issues and Contentions states that:
“While there are factors that support a finding of a de facto relationship, the Respondent contends that the period during which he and Ms Suwicha cohabited in Australia was never intended to be reflective of a permanent living situation, although he accepts that had she been entitled to work and been successful in obtaining a spousal visa, he would have expected to be treated as a member of a couple.”[43]
[43] Respondent’s Statement of Facts, Issues and Contentions at [36].
The evidence before the Tribunal confirms that both the Respondent and Ms Suwicha made a commitment to each other and surely this cannot now be considered to be irrelevant. They are either partners or they are not, and if they are not so partnered then the Respondent would be able to claim his single age pension in the normal manner.
Summary
Having regard to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of their commitment to each other, the Tribunal finds that the evidence unequivocally supports that the Respondent and Ms Suwicha are indeed partnered and the Respondent should be considered a member of a couple within the meaning of the Act. The Respondent’s evidence confirms that he and Ms Suwicha are committed to each other in the long term as they are continuing to pursue a spousal visa for Ms Suwicha so she can live in Australia and eventually marry the Respondent.
DO ANY SPECIAL REASONS EXIST (S 24(2))?
The Respondent requests that the Tribunal find in his favour, and find that there are special reasons based on financial hardship for why he should be considered as not being a member of a couple from 12 May 2017. The Secretary contends that there are no special reasons and that he should be paid at the partnered rate of age pension. The way in which the discretion of the decision maker is to be applied in general circumstances to s 24 of the Act is set out in the Guide to Social Security Law Part 2.2.5.50: Discretion not to Treat a Person as Not Being a Member of a Couple for a Special Reason (“the Guidelines”).[44]
[44]Social Security Guide – 2.2.5.50: Discretion to Treat a Person as Not Being a Member of a Couple for Special Reason.
The Guidelines which are not binding provide guidance and make it clear that as there are many situations where a s 24 request may be made each case will be different and must be considered on its own merits.
“This discretion can ONLY be exercised ‘for a special reason in the particular case.’ In general, the circumstances must be unusual, uncommon, abnormal or exceptional. It is the context which generally determines whether the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”[45]
[45]Social Security Guide – 2.2.5.50: Discretion to Treat a Person as Not Being a Member of a Couple for Special Reason.
The Guidelines refer to three questions that need to be considered when assessing whether a person should not be treated as a member of a couple. These questions are as follows:[46]
(a)Is there a special reason to be considered in this couple’s circumstance?
(b)Is there a lack of being able to pool resources for the couple as a result of the circumstances?
(c)Is there financial difficulty as a result of the couple’s circumstances?
[46]Social Security Guide – 2.2.5.50: Discretion to Treat a Person as Not Being a Member of a Couple for Special Reason, ‘All circumstances must be taken into account’.
In the matter of Boscolo v The Secretary, Department of Social Security (1999) FCA 106 (“Boscolo”), French J held that the s 24 discretion “is not to be lightly enlivened”[47] and that:
“…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”.[48]
[47] Boscolo v The Secretary, Department of Social Security (1999) FCA 106 at [18].
[48] Boscolo v The Secretary, Department of Social Security (1999) FCA 106 at [18].
When determining if “special reasons” exist, His Honour also stated:[49]
“… 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 a couple.”
[49] Boscolo v The Secretary, Department of Social Security (1999) FCA 106 at [20].
His Honour further stated that:[50]
“The Act requires that the decision-maker consider the circumstances of the person who is claiming to be paid the benefit at single rates.”
[50] Boscolo v The Secretary, Department of Social Security (1999) FCA 106 at [22].
It is perhaps apposite to consider the guidelines and authorities relevant to this question to help establish whether the Respondent’s circumstances fall within the discretion to treat him as not being a member of a couple for any special reason.
The Respondent submits he is suffering from financial hardship insofar as he has to draw upon his cash reserves in order to maintain his relationship and meet his expenses. The basis for his contention is that his fiancé is living in Thailand and from time to time he withdraws money from his savings and sends her those funds. She does not make any financial contribution to the joint economic circumstances of the relationship.
The Respondent stated to the Tribunal that although Centrelink judged him not to be in financial hardship he asserted that he would soon be. The Tribunal accepted this to mean that he knew he was not yet in financial straits but that if he continued the expenditure pattern he was following then he would inevitably be so. The Respondent asserts that he should be treated as falling within the s 24 exception because his personal situation takes him outside the usual circumstances of a partnered person because he suffers from a work-related brain injury for which he received compensation and that the cash in his bank accounts of $122,861.00 (as at the date of the hearing) represents a combination of his remnant compensation payout and savings from his pension. The Respondent told the Tribunal that his financial hardship is being exacerbated by his ongoing work injury related needs which require him to pay for extra physiotherapy treatments outside of his five free visits per year, as well as the occasional need for therapeutic neck massages for pain treatment. He is also a type two diabetic and requires blood thinning medication to help maintain his artificial heart valve.
The question of whether a decision not to exercise the discretion afforded by s 24(2) of the Act would result in financial hardship is a relevant but not determinative factor to be considered. In the matter of Re Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 (“Holt”) the discretion under s 24 was in fact exercised however, there were other attenuating circumstances of a significant nature other than the financial hardship consideration that led the Tribunal to that decision. There are no circumstances of such “different and unusual” nature which would warrant the exercise of the discretion in the Respondent’s case.
The Guide at Instruction 2.2.5.50 does state that in order to consider if it is appropriate or not to apply the s 24 discretion, the overall financial situation should be considered. Income and expenditure should be compared and additionally this should also encompass a consideration of all readily accessed funds to which the claimant has recourse:
“… including, but not limited to, income from employment, income support payments, investments, insurance and compensation pay-outs, trusts, accessible superannuation and liquid assets’. The meaning of financial hardship has generally been considered to mean not being able to provide accommodation and the basic necessities of life” (See Rautenberg and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 978).
Brawn and Secretary, Department of Social Services [2017] AATA 873 (“Brawn”) is also authority for the proposition that where the shortfall between income and expenses is able to be met from savings, this does not constitute simply a “special” reason for invoking the discretion available under s 24 of the Act. The Tribunal considers that applying the reasoning in Brawn to the Respondent’s situation results in the same outcome as evidenced there.
It is not the intention of s 24 of the Act that, where a person claims that the partnered rate of pension is inadequate for their needs, the discretion should be employed by the decision maker. Here, the partner has worked in Thailand prior to her visit to Australia and commencing her relationship with the Respondent. There is no reason why she could not do so now. She has the support of her family as well. She is apparently able to live with friends and presumably share expenses as it would be expected they would do. The arrangement between the Respondent and his fiancé has been entered into voluntarily by them both fully understanding the circumstances of Ms Suwicha’s need to follow the necessary and albeit tortuous path of applying for the appropriate spousal visa for her and of that for her son.
In the Respondent’s Statement of Facts, Issues and Contentions at [45], he also relies upon the fact that at the time of the original decision in this matter, Ms Suwicha was not working and could not work because her visa prevented her from doing so. She is now residing in Thailand and does not have a substantive visa granted to her to reside in Australia. She is not working and does not have any resources to pool to the relationship.
He also claims in his Statement of Facts, Issues and Contentions at [46] that he is:
“… especially vulnerable as he has an acquired brain injury sustained in 2010. This injury results in difficulties in concentration, tiredness, and memory limitation. As a result, he is unable to work or bolster his financial situation”.
The Respondent contrasted his situation to that which prevailed in the matter of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Wilson [2011] AATA 554 (“Wilson”) on the basis that unlike Mr Wilson, whose partner was working full time, he does not have a partner who is working and able to pool any financial resources or provide any care with or for him.[51] The Respondent’s situation is that he is the partner in receipt of an income, namely, the age pension and has financial assets he has been willing to share with Ms Suwicha. He has paid for her visa and that of her son and has met living expenses when in Australia and Thailand with her.
[51] Respondent’s Statement of Facts, Issues and Contentions at [47].
The Respondent is able to care for himself and has financial assets to fall back upon should he need to. He has freedom of choice as to how he applies those assets and if he does so in a manner whereby he is depleting them without prospect of replenishing them that is a matter for him. The preservation of assets is a consideration for individuals themselves based upon their own judgement. The Respondent has, in fact, in his evidence to this Tribunal, stated that had he known that setting up the partnered structure with Ms Suwicha for the 96 days she was here would have resulted in such a negative impact on his pension he would not have taken that step. This is in the view of this Tribunal, a recognition by the Respondent that this was an exercise of his own choice regrettable as he may now consider it to be.
The Respondent has also relied upon the case of Cocks v Centrelink [2000] FCA 1248 (“Cocks”) as supporting his case insofar as there is no benefit accruing from an ability to pool resources by way of a partnered arrangement as envisaged under the Act. He contends that both he and his fiancé are obliged to maintain two households because she has no substantive visa rights to stay in Australia and although she has a spousal visa application process underway, the outcome of that is still uncertain.

The Respondent also relies upon the finding by the SSCSD that he and Ms Suwicha were unable to pool their resources and enjoy any economic benefit from so doing between 12 May 2017 and 16 August 2017 because she was prevented from obtaining work under the terms of her visa.[52] That is not disputed however, at that time the Respondent was not in financial hardship. He purchased furniture for the rented home they contracted to occupy and had significant cash reserves to fall back upon if necessary. No special reason existed at that time for the exercise of the discretion under s 24 of the Act.
[52] Exhibit 1, T Documents, T2, Decision of the SSCSD, dated 13 October 2017, p. 7.
Since Ms Suwicha’s return to Thailand the evidence relating to her financial circumstances is somewhat speculative.
The Respondent also advised the Tribunal that Thai society is very different from Australian society and there is no social security system there. He explained that there is a strong family and friendship support basis in Thailand. The Respondent advised the Tribunal that although Ms Suwicha has no tangible income that he can ascertain, he assumed that the mutual help and support provided by the extended family and friendship principle in Thailand society may have been applying in her case. However, there is no evidence before the Tribunal in this regard.
The Respondent has claimed that Ms Suwicha is not working however, he has also indicated that he does not know if she is working or not. It is not for the Tribunal to embark upon a speculative process to establish this one way or another. There is evidence in Ms Suwicha’s Module P Partner Details Form[53] that she has an employer in Thailand, and she works in this small business and has a bank account. There is also evidence that she has undertaken some type of hairdressing course and that she has, apparently, worked as a seamstress as well. It is therefore not possible for the Tribunal, without proof of current income and assets of the party who is living overseas, to come to any conclusion as to whether or not the circumstances of Cocks are met in such a way as to support the Respondent’s contention that his fiancé can provide no pooling of assets so as to enliven the discretion under s 24. Further, the Respondent is still financially secure as he still holds as at the date of this Hearing, the sum of $122,861.00 in his bank accounts. He is not in financial hardship in comparison to many other Social Security recipients.
[53] Exhibit 1, T Documents, T7, Partner Details Form, dated 30 June 2017, pp. 47-49.
The Respondent has been willing to expend considerable amounts of his cash reserves to obtain the necessary visas and to help support his fiancé while she is living in Thailand. He has continued to hold over in the rental property and has chosen not to remove himself to the caravan, which he could occupy at a much reduced rental while he waits for the visa process to be complete. He has sent large sums of money to his fiancé and that is his choice to do so. However, this does not mean that at this time he is so impecunious or under such financial duress coupled with other considerations that his situation should enliven the decision maker’s discretion under s 24 of the Act.
Accordingly, the Tribunal cannot be satisfied that “a special reason in the particular case” (see Boscolo at [18]) exists so that the Respondent should not be treated as a member of a couple with Ms Suwicha despite the continuance of their relationship.
DECISION
For the reasons set out above, the Tribunal sets aside the decision under review and orders that the Respondent be considered a member of a couple and be paid the age pension at the partnered rate from 12 May 2017.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

.........................[SGD]..........................................
Associate
Dated: 17 October 2018

Date of hearing: 3 May 2018

Applicant:
Secretary, Department of Social Services

Applicant’s Representative:

Respondent:

Department of Human Services

Mr William Impey – In person

[2018] AATA 3914

17 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Standing

Statutory Construction

Procedural Fairness

Natural Justice