Lasan and Secretary, Department of Family and Community Services
[2005] AATA 724
•27 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 724
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/389
GENERAL ADMINISTRATIVE DIVISION ) Re VJEKOSLAV LASAN Applicant
And
SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way, Member Date29 July 2005
PlaceSydney
Decision The Tribunal affirms the decision that Mr Lasan is a member of a couple
The Tribunal sets aside the decision to recover from Mr Lasan an age pension debt of $1,344.14 and in substitution therefor determines that an age pension debt of $1,329.78 is due to the Commonwealth by the Applicant and the debt of $1,329.78 is to be recovered.
[Sgd] Mr I R Way
Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether member of a couple – whether debt exists – consideration of whether debt should be waived or written off – consideration of special circumstances and whether they exist – Tribunal decides that Mr Lasan is a member of a couple – Tribunal sets aside decision to recover original age pension debt and substitutes a determined debt of $1,329.78 to be recovered from Mr Lasan.
Social Security Act 1991
Re Department of Social Security and Denise Tsimpidaros (AAT 10292, 5 July 1995)
Re Department of Social Security and Jane Catherine Porter (AAT 11804, 24 April 1997)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director –General of Social Security (1985) 7 ALD 670
Groth v Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
29 July 2005 Mr I R Way, Member 1. This is an application by Mr Vjekoslav Lasan for review of a decision of the Social Security Appeals Tribunal (“the SSAT”), dated 8 March 2005, that firstly affirmed a Centrelink decision that determined that Mr Lasan is a member of a couple; and secondly, set aside a Centrelink decision to recover an age pension debt of $1,476.58 due to the Commonwealth by Mr Lasan, substituting a decision that the amount of the debt is $1,344.14 and that the debt of $1,344.14 is to be recovered.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T68 and T57A), and an undated letter from Mrs A Lasan (Exhibit A1).
3. The Applicant was self-represented and gave oral evidence. The Respondent was represented by Ms S Mantaring.
issues and legislative framework
4. This matter is to be determined within the provisions of the Social Security Act1991 (“the Act”).
5. The issues in these matter are:
·Whether Mr Lasan is a member of a couple;
·Whether Mr Lasan owes the Commonwealth an aged pension debt of $1,344.14 for the period 8 March 2002 to 5 August 2004; and if so
·Whether all or part of that debt should be written off or waived.
6. The relevant provisions of the Act are:
“Member of a couple—general
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite 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 marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
* an ancestor of the person; or
* a descendant of the person; or
* a brother or sister of the person (whether of the whole blood or the part-blood).
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (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 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.
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
Member of a couple—special excluding determination
4(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
Note: section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.
24(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.
SECT 55
How to work out a person's age pension rateA person's age pension rate is worked out:
(a) if the person is not permanently blind—using Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or
(b) if the person is permanently blind—using Pension Rate Calculator B at the end of section 1065 (see Part 3.3).
- SECT 1064
Rate of age, disability support, wife pensions and carer payment
and of disability wage supplement (people who are not blind)
1064(1) The rate of:
(a) age pension; and
(b) disability support pension or disability wage supplement of a person who has turned 21; and
(c) wife pension; and
(d) carer payment; and
(f) mature age allowance under Part 2.12A; and
(g) mature age partner allowance;
is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.
Note 1: Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.
Note 2: the rate obtained by applying the Rate Calculator may be reduced because of:
·
the receipt of compensation (see Part 3.14); or
* overseas portability (see Part 4.2—Division 3); or
* the receipt of payments under the New Enterprise Incentive Scheme (see Part 3.15).
Members of a couple
1064-A2. Where 2 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 (see points 1064-E2, 1064-F2 and 1064-G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis (see section 1070V).
Ordinary incomes of members of couples
1064-E2. If a person is a member of a couple, add the couple’s ordinary incomes (on a yearly basis) and divide by 2 to work out the amount of the person’s ordinary income for the purposes of this Module.
SECT 1223
Debts arising from lack of qualification, overpayment
etc.
[see Note 9]
1223(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
SECT 1236
Secretary may write off debt
1236(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
SECT 1237A
Waiver of debt arising from errorAdministrative error
1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
SECT 1237AAD
Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt”.
background facts
7. The Respondent, in a Statement of Facts and Contentions dated 11 July 2005, has set out the background facts in this matter. The Tribunal has considered all of the material before it and it is satisfied that the background facts, as set out by the Respondent, are correct and finds as follows:
7.1 On 11 February 2002, Mr Lasan lodged his claim for age pension.
7.2 On his age pension claim form, he declared his marital status as “married’ with dated of marriage as 17 April 1965
7.3. He provided information about his wife, Ankica Lasan who completed a partner details form.
7.4 Mrs Lasan advised on her partner details form that she worked for Tip top Bakery and earns $762.17 gross per week.
7.5 Mr Lasan’s pension claim was assessed taking into account Mrs Lasan’s annualised income of $39,632.84 ($762.17 multiplied by 52 weeks).
7.6 On 1 March 2002, Centrelink wrote to MR Lasan advising him of the grant of his age pension at the rate of $37.09 per fortnight based on his combined annual income of $45,293.66 ($39,632.84 plus 5,660.82 from investment income). In the same letter Mr Lasan was advised of a comprehensive list of “what he must tell Centrelink”. Under the heading “Income” he was advised to tell Centrelink “if his combined income increases and if he and his partner start work or recommence work”.
7.7 On 30 July 2002, Mr Lasan attended the Hurstville Customer Service Centre in Hurstville and advised that he disagreed with the assessment of his age pension in relation to his allocated pension. During the interview, he said that “he will separate from his wife to be paid the single rate”.
7.8 On 6 August 2002, Mr Lasan was requested to provide information relating to his allocated pension.
7.9 On 10 September 2002, Centrelink sent Mr Lasan a letter advising him of his updated age pension rate of $33.67 per fortnight which is based on his combined annual income of $47,895.20.
7.10 On 12 December 2002, Centrelink sent Mr Lasan a letter advising him of his updated age pension rate of $30.21 per fortnight which is based on his combined annual income of $48,345.92.
7.11 On 15 January 2003, Centrelink sent Mr Lasan a letter advising him of his updated age pension rate of $36.37 per fortnight which is based on his combined annual income of $47,545.44.
7.12 On 4 April 2003, Centrelink sent Mr Lasan a letter advising him of his updated age pension rate of $52.62 per fortnight which is based on his combined annual income of $46,615.68.
7.13 On 15 January 2004, Centrelink sent Mr Lasan a letter advising him of his updated age pension rate of $67.19 per fortnight which is based on his combined annual income (from investments) of $6,661.16 and combined regular fortnightly earnings of $1,524.34. The resulting combined annual income is $46,294.00 = $6,661.16 plus $39,632.84.
7.14 On 8 March 2004, Centrelink sent Mr Lasan a letter advising him of his updated aged pension rate of $64.56 per fortnight which is based on his combined annual income (from investments) of $8,251.20 and combined regular fortnightly earnings of $1,524.34.
7.15 On 15 March 2004, Centrelink issued Mr and Mrs Lasan separate income and assets statement advising them of the income and assets being used by Centrelink to work out Mr Lasan’s age pension. Specifically mentioned in the statement are the earnings from Tip Top Bakery in the amount of $762.17 per week from 11 February 2002.
7.16 On 13 April 2004, Centrelink sent a letter to Mr Lasan in relation to a data matching exercise between Centrelink and the Australian Taxation Office (ATO).
7.17On 13 August 2004, Centrelink sent a letter to Tip Top Bakeries Pay Office requesting for information relating to Mrs Lasan’ earnings.
7.18 On 10 September 2004, the payroll supervisor of Tip Top Bakeries provided completed questionnaire relating to Mrs Lasan’s earnings.
7.19 On 14 September 2004, the information provided by Tip Top Bakeries was used in the calculation of Mr Lasan’s debt which amounted to $1,476.58 for the period 4 February 2002 to 5 August 2004. Centrelink sent Mr Lasan advising him of his age pension debt.
7.20 On 18 September 2004, Mr Lasan disagreed with the decision to raise and recover the debt.
7.21 On 8 October 2004, Centrelink issued Mr Lasan an Income and Assets update form for him to complete. He lodged the completed form on 11 October 2004. On this form he stated that he was separated since January 2004.
7.22 On 19 October 2004, Mr Lasan rang the Centrelink Call Centre in Coffs Harbour and said that he is separated from his wife. He was issued with the living arrangements form.
7.23 On 29 October 2004, Mr Lasan lodged the completed living arrangements form and the separation details form.
7.24 On 11 November 2004, Mr Lasan lodged an Assessment of Living Arrangements – Separated under one roof form with incomplete responses.
7.25 On 16 November 2004, Centrelink wrote to Mr Lasan and reissued the Assessment of Living Arrangements – Separated under one roof form.
7.26 On 19 November 2004, Mr Lasan lodged an uncompleted Assessment of Living Arrangements – Separated under one roof form.
7.27 On 29 November 2004, a Centrelink officer advised Mr Lasan that his age pension debt was reduced from $1,476.58 to $1,462.22 for the same period i.e. 4 February 2002 to 5 August 2004. The officer affirmed the decision to assess Mr Lasan as being in a “marriage-like relationship”.
7.28 On 25 January 2005, an authorised review officer (ARO) affirmed the decision to raise and recover Mr Lasan’s age pension debt in the amount of $1,462.22.
7.29 On 27 January 2005, the ARO affirmed the decision to pay Mr Lasan age pension at the married rate from 4 February 2002 onwards.
applicant’s evidence and submissions
8. The Tribunal, being mindful that the Applicant had given the SSAT detailed evidence about his marital, living, financial and health circumstances at the hearing of his appeal on 8 March 2005, referred the Applicant to the SSAT record of that evidence (T2-6/7/8) and asked him to confirm, or otherwise, that this record correctly reflected what he had said. The Applicant affirmed that the record was correct.
9. The SSAT record of the Applicant’s evidence is as follows:
“…
2. Mr Lasan provided the following information.
3. Mr Lasan and Mrs Lasan married in 1964 or 1965. Their relationship started to deteriorate however following Mr Lasan’s retrenchment from work. In late 2001 Mr Lasan received a $120,000 lump sum employment termination payment, and later $45,000 superannuation payout. At the times of these payments Mr Lasan’s and Mrs Lasan’s relationship was O.K. Their relationship started to deteriorate however following a loss of about $10,000 due to poor financial advice, and renovations that cost some $50,000 instead of the planned $18,000 to $20,000. These renovations were to turn their garage and an attached empty area into a rumpus room for their family to stay in when visiting, and a storage area.
4. Following these financial losses, and as Mr Lasan’s age pension was only some $34pf, Mrs Lasan started to repeatedly ask Mr Lasan to get a job. However Mr Lasan was then aged 68, and unable to obtain employment. He and Mrs Lasan started to drift apart. They would not speak to each other for weeks at a time, and would only speak to each other when their daughter visited. By late 2003 Mrs Lasan was stating that all the money in their joint accounts belonged to her. By this time Mr Lasan had had enough, and at the start of 2004, definitely by the end of January 2004, Mr Lasan moved out their bedroom.
5. Mr Lasan and Mrs Lasan had not had any separations in their marriage prior to January 2004. They had not had however a sexual relationship for some years, since before Mr Lasan stopped working. This was because medication Mr Lasan took for several medical problems, ulcers, headaches, hypertension, shingles, anxiety and depression, had caused him to experience impotence. Mr Lasan was unable to afford the medication to correct this problem.
6. Mr Lasan’s and Mrs Lasan’s home is jointly owned in both their names. They have a joint term deposit of $150,000. This term deposit is kept for emergencies. It was built up from a $30,000 redundancy payment and $40,000 interest received by Mrs Lasan, with the balance being sourced from Mr Lasan’s redundancy payment. They also hold a $16,000 joint savings account, which is sourced by Mrs Lasan’s earnings that are directly credited to this account. All bills, for example car running costs, water and power bills, and day to day household expenses are paid from this savings account. Even when Mr Lasan received an age pension, that pension was only enough to allow him to buy very basic items such as bread or butter. Both Mr Lasan and Mrs Lasan have cards to access this joint savings account. Mrs Lasan is aware that Mr Lasan is withdrawing money from the account as he has no money. They have no other property. Mr Lasan does not have any life insurance or a will.
7. Mr Lasan does the shopping for himself and the general household items. He also shops for Mrs Lasan, who will give him a list of the items she wishes him to buy for her. The car is registered in Mr Lasan’s name, and both he and Mrs Lasan use the car. Mr Lasan usually only drives the car when he goes shopping. Mrs Lasan will drive the car to and from work.
8. Mr Lasan does not do any household cleaning, as Mrs Lasan is never happy with his cleaning attempts. Years ago he used to do the vacuuming and cut the grass, but Mrs Lasan was never happy with the results. Now they cut the lawn together, with Mr Lasan doing the middle portion and Mrs Lasan doing the edges. It is only a small lawn. Their house has 2 toilets, one bathroom and three bedrooms. Mr Lasan has a bedroom and Mrs Lasan has another bedroom. However often he will sleep in the rumpus room, especially in winter, as the rumpus room is warmer. Mr Lasan has a television, DVD player, lounge, radio and writing desk all set up in the rumpus area. Mr Lasan will usually spend his days in a little room adjacent to the rumpus room. Mrs Lasan also has her own television. Mrs Lasan normally works from 12pm to 9.30pm, and by the time she gets home Mr Lasan will generally be downstairs.
9. Mr Lasan does not eat much, and mainly eats simple meals such as cheese sandwiches, eggs or a cup of soup. However if any meals are cooked, Mrs Lasan will do the cooking. For example Mrs Lasan may cook meals on a weekend, when their son is also at home. They may eat together on weekends, and/or Mr Lasan may eat the leftovers the following day. Mr Lasan may also eat leftovers from meals Mrs Lasan has cooked for their son. Mostly however they eat meals separately. Their son works 6 days a week, and often does not get home until about 5.30/6.00pm. Mr Lasan will buy bread for his sandwiches when he goes shopping.
10. Mrs Lasan does all the household cleaning, including, when necessary, his bedroom and the rumpus room. Mrs Lasan does all the clothes washing and ironing, although Mr Lasan does not have many clothes that need ironing. Mrs Lasan does these tasks for their son as well. Mrs Lasan will clean both toilets, and the bathroom.
11. Neighbours and family will occasionally visit Mr Lasan and Mrs Lasan. When neighbours visit they will usually just have a cup of tea or similar with Mrs Lasan upstairs. Mr Lasan will usually stay downstairs as he does not like such events. However, if family or long term friends visit, which is not that often these days, they all may have a meal together. They might watch a video, for example a home movie sent over from Croatia. Mr Lasan, Mrs Lasan and their son and daughter all still celebrate Christmas together, when they will have breakfast and lunch together and open presents together. Mrs Lasan will do all the cooking for Christmas Day. Mrs Lasan however no longer buys Mr Lasan any present for his birthday, and although Mr Lasan used to buy Mrs Lasan flowers for her birthday, she has told him that she no longer wishes to receive any gift. They have not gone out to restaurants for a long time. The only time they now go to church together is at Christmas.
12. All their family and associates know that there is a problem with Mr Lasan’s and Mrs Lasan’s relationship. Everywhere Mrs Lasan goes she tells people that there is a problem, that Mr Lasan is at home and does not want to work. Mrs Lasan’s family are ignoring the problem. Their children are aware of their difficulties, and have seen their arguments.
13. Mr Lasan feels very bad at his current situation. He feels bad that at his age someone else has to support him. Sometimes he wishes he could take poison.
14. About 4 to 5 years ago Mrs Lasan had an operation on her hands, and Mr Lasan looked after her. He is aware that Mrs Lasan now has health concerns regarding a possible tumour on her head, but only because he has read the various medical reports while Mrs Lasan was outside their home. If Mrs Lasan did require an operation, then Mr Lasan would probably look after her. Neither has required any care or assistance over the past year. Mr Lasan is unsure as to how long their current situation will persist. He does not think however that their relationship will ever again become as it was before. Mrs Lasan goes out with her own friends without Mr Lasan. Last Christmas holidays Mrs Lasan went out every day by herself. She does not tell Mr Lasan where she is going. Their only conversations are mainly concerning the shopping. Mr Lasan will only take the car in the morning, when he is fairly certain that Mrs Lasan will be at home.
15. Due to the costs involved, Mr Lasan does not have any plans at present to move out of the home or take divorce action. Mr Lasan is concerned about the solicitor’s costs, and also that Mrs Lasan may get most of their property in the settlement. Also what property is divided between them will not be enough for either to buy another separate property. Their son will also be adversely affected.
16. Mr Lasan knows of many others in his situation who are treated as separated. He does not know what might happen when Mrs Lasan retires. He could take $75,000 from the term deposit to supplement his age pension until his wife retires and his pension rate increases, but that money would not last long, and he has heard Mrs Lasan tell their children that she intends to keep working past 65. Mr Lasan honestly wishes that he could die as he can not have a normal life. One day Mrs Lasan is fine, but the next day she will ask him why he is stealing her money.”
10. When asked if there is anything further he wished to tell the Tribunal about marital status, his health, his financial circumstances or any other matter which he considered to be of special concern to him or relevant to the Tribunal’s consideration of this matter, the Applicant said that he was concerned:
· That the SSAT had not taken into account his wife’s letter (Exhibit A1);
· That Centrelink had refused to provide him with a copy of the Act;
· That his eyesight was causing him problems as a result of cataracts and glaucoma; he said he was using eye drops twice a day and was waiting for an operation to remove his cataracts;
· That the possibility of failing eyesight was one of the reasons he did not wish to move out of or dispose of his house, the surroundings being familiar;
· That his wife continued to accuse him of stealing her money and that he had no income;
· That the Centrelink calculation of his debt was in error;
· That he did not know what his wife was earning;
· That the investment of $150,000 was for emergency purposes.
11. The Tribunal notes the contents of Mrs Lasan’s letter (Exhibit A1) as follows:
“To Social Security Appeal Tribunal
Ref.No.S217333
I am not a Centrelink customer.
There is no law in this country wish [sic] can force me to support another person without my wish.
My earning at Tip Top Bakery is none of Centrelink or Vjekoslav Lasan business.
Stop Vjekoslav Lasan from using my money for payments of bills and his others expences [sic]. Government and Centrelink is responsible to care for that people without income.”
12. The Applicant agreed that he and Mrs Lasan were in a marriage like relationship until the end of 2003 and it was only from beginning of 2004 that he claimed to have separated from his wife and was, in his view, not a member of a couple.
13. In respect of his concern about the accuracy of the Centrelink’s calculation of his aged pension debt, the Applicant said that he had no disagreement with the accuracy of information provided by Tip Top Bakery about his wife’s earnings during the relevant period. However, he is adamant that Centrelink had overstated the amounts of her earnings in their calculations. He based his assertion on the amount of earnings showing in Centrelink’s records where his pension rate was calculated (T22-142 to 149 - the entitlement calculations). Mr Lasan did not or could not accept that the entitlement calculations only purported to show what his daily rates of pension would be, (based on his wife’s wages, CPI changes, interest deeming, etc.) at a particular day and that the rates, as determined this way at particular times were then used to calculate his fortnightly pension as shown at T22-152-155. It became apparent that Mr Lasan was of the view that in some way, Centrelink were aggregating his wife’s wages in the entitlements calculations.
14. At the commencement of the hearing, Ms Mantaring offered the services of a Centrelink officer by telephone (Mr Godfrey). Mr Godfrey is skilled in the making of the calculations of Mr Lasan’s pension entitlements, pension payments and debt calculations. In view of the difficulty Mr Lasan was having with the calculations, the Tribunal briefly adjourned to enable Mr Godfrey to attend in person and to discuss with Mr Lasan and Ms Mantaring the rational and method of the calculations made by Centrelink. The Tribunal resumed the hearing when it became apparent that Mr Godfrey’s attempts to explain the calculations to Mr Lasan were not successful.
15. The Tribunal drew the Respondent’s attention to an obvious error that was apparent in the calculation of the Applicant’s debt. At T54, a Centrelink authorised review officer had varied the Applicant’s debt from $1,476.58 to $1462.22 because of a previous waiver of $14.36 for the period 2 October 2002 to 28 November 2002, however this waiver, for reasons unknown, had not been carried forward. In effect, the SSAT had considered a debt of $1,476.58 when it should have been considering a debt of $1,462.22. This error does not at any way affect the SSAT decision to reduce the original debt by $132.44, however, the resulting debt is $1,329.78, not 1,344.14. The Respondent conceded that the correct figure to be considered by this Tribunal should be $1,329.78 and the Tribunal so finds.
16. The Applicant submitted that he should be paid age pension at the single rate with effect from 1 January 2004, that regardless of whether he was paid at the single or married rate, the debt calculations were wrong and in any event , any debt remaining after re-calculation should be waived pursuant to section 1237AAD of the Act because of his special circumstances, in particular, not knowing what his wife’s earnings were, being unable to touch his investments or divest himself of home assets and the accusation his wife was making about him stealing her money.
respondent’s submissions
17. In summary, the Respondent submitted that Mr Lasan had agreed that he was a member of a couple until the end of 2003, and that on balance the weight of the evidence pointed to the Applicant still being a member of a couple after that date. It was submitted that Mr Lasan is a member of a couple and is not living separately and apart from his wife, Mrs Lasan, on a permanent or indefinite basis.
18. In respect of section 24(1) of the Act the Respondent submitted:
“50.Subsection 24 (1) of the Act provides for exceptions to the application of subsection 4(2) of the Act and states:
Person may be treated as not being a member of a couple (subsection 4(2))
24. (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 to 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.
51.Mr Lasan further contends that subsection 24(1) of the Act should be applied in his case. The Secretary does not agree with Mr Lasan’s contention. Section 24 of the Act, in combination with subsection 4(6) of the Act, gives the Secretary a discretion to treat a person as not being a member of a couple even if they otherwise satisfy the provisions of section 4 of the Act. The Secretary submits that subsection 24 only applies in limited situations and is intended to be used in situations where either member of the couple does not, or cannot reasonably expect to, benefit from the pooling of resources that usually occurs in a marital relationship and that the discretion can only be exercised ‘for a special reason in the particular case.”
19. In considering this matter the Respondent referred the Tribunal to Re Department of Social Security and Denise Tsimpidaros (AAT 10292, 5 July 1995) and Re Department of Social Security and Jane Catherine Porter (AAT 11804, 24 April 1997) and said:
“In Mr Lasan’s case, he holds a (sic) of $150,000.00 joint term deposit and a $16,000 joint savings account with Mrs Lasan which he can access. The Respondent contends that it would be inappropriate in these circumstances to exercise the discretion in subsection 24(1) of the Act.”
20. In respect of debt calculation, the Respondent submitted that the debt has been correctly calculated and correctly raised pursuant to section 1223 (1) of the Act, and drew the Tribunal’s attention to T67-290/291, where there was an annotated summary of changes showing the sources of information for those changes.
21. In respect of write off or waiver of the debt the Respondent submitted that because Mr Lasan’s debt could be recovered by way of deductions from his social security payment, it was not possible to consider write-off of the debt pursuant to section 1236 of the Act.
22. Furthermore, it was submitted that Mr Lasan’s debt occurred solely due to his failure to advice Centrelink of the increases in his wiife’s earnings and therefore the debt could not be waived under the provisions of section 1237A of the Act.
23. In respect of special circumstances, it was submitted that Mr Lasan’s circumstances, taken as a whole are not special such that all or part of his debt should be waived under section 1237AAD of the Act.
24. In summary the Respondent submitted that the decisions to treat Mr Lasan as a member of a couple from 4 February 2002 onwards and to pay him at the married rate is correct. The Respondent further contends that the decision to raise and recover his age pension debt of $1,329.78 for period 8 March 2002 to 5 August 2004 is correct and for the Tribunal to affirm these decisions.
consideration
25. The initial question for the Tribunal is whether Mr Lasan is a member of a couple, with effect from 1 January 2004.
26. The Tribunal has carefully considered all the material before it, including Mrs Lasan’s letter and the submissions of both parties. The Tribunal has no reason to doubt what Mr Lasan has said about his matrimonial situation. Section 4(3) of the Act states that the Tribunal must have regard to all of the circumstances of the relationship including, in particular, a number of matters. Those matters, as set out in paragraph 6 above are not to be used as a score sheet but must be considered in forming a view whether the marriage relationship has broken down on a permanent or indefinite basis.
27. In this case there are a number of factors which would support a finding that Mr and Mrs Lasan’s relationship has broken down. However, there are also a number of factors that strongly indicate that their relationship has not broken down. The Tribunal is of the view that the SSAT has correctly assessed all of the factors that impact on the Lasan’s relationship and agrees with the SSAT finding that, on balance, the relationship continues to exist to such a significant degree that it can not be said that their marriage relationship has indefinitely broken down. Furthermore, the Tribunal is satisfied that Mr Lasan should not be treated as a member of a couple pursuant to section 24(1) of the Act.
28. The Tribunal therefore finds that Mr Lasan is a member of a couple, with Mrs Lasan, and that pursuant to section 1064E (2) of the Act, Mrs Lasan’s income must be taken into account in determining Mr Lasan’s rate of age pension.
29. Turning then to the calculation of Mr Lasan’s age pension entitlement’s and age pension payments during the relevant period.
30. The Tribunal has examined Centrelink’s records and calculations in detail and apart from the error already noted is satisfied:
·Firstly, that the method of calculation of pension rates, pension entitlement, pension paid and overpayments is correct, given the consistent pattern of Mrs Lasan’s earnings;
·Secondly, that the calculations correctly reflect the salary paid to Mrs Lasan by Tip Top Bakery during the relevant period; and movements in the CPI and interest payments; and
·Thirdly, that the calculation of rates, entitlements, and pension paid and pension overpayments are correct.
31. The Tribunal is satisfied that Mr Lasan was overpaid $1,329.78 during the period 8 March 2002 to 5 August 2004 and that this over payment is a debt due to the Commonwealth by the Applicant under section 1223(1) of the Act.
32. The question then is whether the debt can be written off pursuant to section 1236(1A) of the Act; or waived in whole or in part pursuant to section 1237A(1) or 1237AAD of the Act.
33. The Tribunal accepts the Respondent’s submission that write-off of the debt is not possible because Mr Lasan is in receipt of a social security benefit and deductions from this payment are being used to recover the debt.
34. The Tribunal is satisfied that the debt can not be attributed solely to an administrative error made by the Commonwealth and hence waiving of the debt under section 1237A is not possible. The remaining question before the Tribunal is whether pursuant to section 1237AAD of the Act, there are special circumstances which should be considered.
35. With respect to special circumstances, the Tribunal notes that although special circumstances are not defined in the Act, the approach to be taken in the interpretation and application of the discretionary provisions of the Act have been dealt with by the Tribunal and the Federal Court in numerous cases. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 it was said:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that 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.”
36. This decision was generally affirmed on appeal by the Full Court of the Federal Court of Australia in Beadle v Director – General of Social Security (1985) 7 ALD 670, where it was said:
“the phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”
37. Furthermore, the Tribunal is mindful that all of the circumstances in a particular case must be considered and the Tribunal should adopt a flexible response to such circumstances, bearing in mind the need to consider community interest in the recover, of public monies.
38. The Tribunal is also mindful that Justice Keifel in Groth v Department of Social Security (1995) 40 ALD 541 stated, in respect of special circumstances, that it would require something to distinguish an Applicant’s case from others, to take it out of the usual or ordinary case.
39. The Tribunal has carefully considered Mr Lasan’s evidence and submissions in respect of special circumstances and finds that Mr Lasan’s circumstances are not special, within the meaning of that term as set out above, such that the discretion to waive all or part of his debt should be exercised pursuant to section 1237AAD of the Act.
40. The Tribunal affirms the decision that Mr Lasan is a member of a couple.
41. The Tribunal sets aside the decision to recover from Mr Lasan an age pension debt of $1,344.14 and in substitution therefor determines that an age pension debt of $1,329.78 is due to the Commonwealth by the Applicant and the debt of $1,329.78 is to be recovered.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Associate
Date of Hearing 22 July 2005
Date of Decision 29 July 2005
Applicant Self Represented
Solicitor for the Respondent Ms S Mantaring
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