Liang and Secretary, Department of Social Services (Social services second review)
[2022] AATA 646
•5 April 2022
Liang and Secretary, Department of Social Services (Social services second review) [2022] AATA 646 (5 April 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1849
Re:Ren De Liang
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:5 April 2022
Place:Sydney
The decision under review is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – rate of age pension – where Applicant’s wife travelled overseas for 6 weeks – whether there is a special reason not to be treated as a member of couple – whether couple could pool resources – whether there was financial difficulty – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 4, 24, 1064
CASES
Liang and Secretary Department of Social Services [2015] AATA 275
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
Social Security Guide, Department of Social Services
REASONS FOR DECISION
Dr L Bygrave, Member
5 April 2022
INTRODUCTION
This matter is about the rate of age pension the Applicant, Mr Ren De Liang, is entitled to be paid in the period from 20 January 2020 to 2 March 2020.
On 17 January 2020, Mr Liang contacted the Department of Human Services (Centrelink) to advise that his wife, Ms Shaoshan Xie, would be travelling to China from 20 January 2020 to 2 March 2020 and to request that he be paid age pension at the single rate during this period.[1]
[1] Exhibit T-T12, page 85.
On 13 February 2020, Centrelink wrote to Mr Liang to inform him that he was not entitled to be paid age pension as a single person from 20 January 2020. Mr Liang sought review and an authorised review officer of Centrelink affirmed this decision on 17 September 2020.
Mr Liang subsequently applied for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 19 February 2021, the AAT1 affirmed the decision made by Centrelink. Mr Liang was notified of this decision on 3 March 2021.
On 26 March 2021, Mr Liang lodged an application for review with the General Division of the Tribunal.
The matter was heard by the Tribunal in Sydney on 22 March 2022. Mr Liang did not have legal representation; however, he attended the hearing in person and gave oral evidence with the assistance of an interpreter of the Mandarin language.
RELEVANT LEGISLATION AND ISSUE
The rate of age pension paid to a person is calculated in accordance with section 1064 of the Social Security Act 1991 (Cth) (the Act). Relevant to this matter, the rate of age pension is affected by factors including whether a person is single or partnered: the single rate of payment is more than the partnered rate because it is anticipated that, where two people are members of a couple, they will pool resources (income and assets) and share expenses.
Section 24 of the Act provides that a person may be treated as not being a member of a couple (as defined in subsection 4(2) of the Act):
(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. [emphasis added].
It is not in dispute that Mr Liang and Ms Xie are legally married to each other and, from 20 January 2020 to 2 March 2020, they were not ‘living separately and apart…on a permanent or indefinite basis’. I therefore find that Mr Liang satisfied the requirements in paragraphs 24(1)(a) and (b) of the Act during the period from 20 January 2020 to 2 March 2020.
Consequently, the sole issue for determination by the Tribunal is whether Mr Liang should ‘for a special reason in [his] particular case, not be treated as a member of a couple’ as required by paragraph 24(1)(c) of the Act.
The Social Security Guide (the Guide) offers guidance on the interpretation and application of the Act. Although I am not bound to strictly apply the Guide, it is government policy and should be considered unless there are cogent reasons not to do so.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
At section 2.2.5.50, the Guide states that the discretion in section 24 of the Act ‘exists to deal with unfair, inequitable and/or unjust anomalies’ and ‘should only be applied when all other reasonable means of support have been explored and exhausted’.
The Guide identifies that all circumstances must be taken into account:
The discretion to treat a person as NOT being a member of a couple should be exercised ONLY where a full consideration of all the circumstances relevant to the individual’s case would make it unjust or unreasonable not to do so.
It is appropriate that the decision maker strike a balance between the individual circumstances of the person and the circumstances of the couple. In the case of Boscolo v Secretary, Department of Social Security (1999) FCA 106, the Federal Court found that the decision maker must make the decision with reference to the circumstances of the person seeking the discretion, rather than the position of the couple. HOWEVER, the Federal Court also noted that this does not prevent the decision maker from considering all relevant circumstances, including the position of the couple as it relates to the individual. It is also important to review the partner of the person who has had section 24 applied as part of the process.
The couple’s circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply section 24 do not exist. There must be some degree to which circumstances are outside the couple’s or individual’s control and cannot be changed.[3] [emphasis in original]
[3] Social Security Guide, section 2.2.5.50.
The Guide sets out the following three questions that need to be considered when assessing the circumstances of the case:
·Is there a special reason to be considered in this couple’s circumstances? The Guide states that the circumstances must be ‘unusual, uncommon, abnormal or exceptional’, and notes that ‘financial difficulty is not, of itself, sufficient to constitute “special reason”’.
·Is there a lack of being able to pool resources for the couple as a result of the circumstances? The Guide states that members of a couple will pool their resources ‘in ordinary circumstances’ and an ‘inability to pool resources for their mutual benefit is a special reason to exercise the discretion’ in section 24 of the Act. Relevant to this matter, the Guide further states:
Generally, section 24 would NOT be appropriate where a couple is able to, but chooses not, to pool resources or where one or both members of a couple choose not to access a source of support which they could contribute to the pool.[4] [emphasis in original]
·Is there financial difficulty as a result of the couple’s circumstances? The Guide describes ‘financial difficulty’ for this purpose as ‘not being able to provide for accommodation and the basic necessities of life’ or ‘to be without adequate means of support’. In considering whether to apply the discretion in section 24, the Guide states the ‘overall financial situation should be considered’ and ‘income and available funds from assets should be compared to necessary expenditure’, which could include utilities, rates, rent, groceries, transport and loan repayments.
[4] Social Security Guide, section 2.2.5.50.
The Guide also outlines at section 2.2.5.50 that it may be appropriate to treat a person in Australia as not a member of a couple while their partner is overseas. The Guide states that ‘all relevant factors should be listed and weighed’ including whether there are any legal restrictions on the transfer of funds from overseas, the overseas partner has sufficient funds to send to Australia, either of the parties have the power to alter the situation, and/or the situation is beyond the control of either partner.
EVIDENCE
The following chronology and facts were confirmed by Mr Liang at the hearing:
·Mr Liang has been married to Ms Xie since September 2006.
·Mr Liang has been paid the age pension at the partnered rate since 20 September 2011. Section 24 provisions have been applied to his payment (meaning he has been paid at the ‘single rate’ of age pension) on occasion; most recently, in the period from 21 April 2016 to 22 May 2016.[5]
·Ms Xie has been in receipt of carer payment and carer allowance for the care she provides to Mr Liang at the partnered rate since 8 June 2016.
·Ms Xie departed Australia and travelled to China on 20 January 2020, and she returned to Australia on 3 March 2020.
[5] Exhibit T-T13, page 99.
Centrelink records and bank account documents also show that in the period Ms Xie was overseas from 20 January to 2 March 2020:
·Mr Liang received age pension in the amount of $641 per fortnight and age pension supplementary payments of $51.90 plus $10.60, totalling $703.50 per fortnight.[6] Mr Liang had government rent deducted from his age pension payments in the amount of $171.40 per fortnight.[7] Mr Liang’s age pension was paid into a bank account held in his name only.[8]
·Ms Xie received carer payment in the amount of $703.50 per fortnight and carer allowance in the amount of $131.90 per fortnight, totalling $835.40 per fortnight.[9] Ms Xie’s carer payment and carer allowance were paid into a joint bank account held in her and Mr Liang’s names.[10]
[6] Exhibit R1.
[7] Exhibit R1.
[8] Exhibit A6.
[9] Exhibit R2.
[10] Exhibit A8.
At the hearing, Mr Liang made submissions that he should be paid age pension at the single rate from 20 January 2020 to 2 March 2020 because he and Ms Xie were unable to pool resources while he was in Australia and she was in China. Mr Liang and Ms Xie provided written and oral evidence about their circumstances during this period and, in particular, the following circumstances of Ms Xie’s travel to and time in China:
·On 16 January 2020, Ms Xie received a telephone call from her sister in China advising that their mother was ‘critically ill’ and asking her to return to China.[11]
[11] Exhibit T-T11, page 63.
·Ms Xie immediately purchased an airfare for her to fly to China departing Australia on 20 January 2020 and returning to Australian on 3 March 2020. The airfare cost $1,263.33 and Mr Liang arranged the purchase of the ticket and paid $600 towards the total cost of the airfare.[12]
[12] Oral evidence of Mr Liang, 22 March 2022 and Exhibit A3.
·Prior to leaving Australia, Ms Xie borrowed $4,000 from a friend on the basis that she would repay this loan when she returned to Australia in March 2020.[13]
[13] Exhibit A7.
·While in China from 21 January 2020 to 2 March 2020, Ms Xie paid the following expenses:
oher share (shared with her two brothers and sister) of her mother’s medical, hospital and care expenses = CNY13,000 (approximately AUD$2,730);[14]
oaccommodation = CNY1,500 (approximately AUD$315);
ofood = approximately AUD$800; and
otransport = approximately AUD$100.[15]
·Ms Xie stated her living expenses in China were ‘much more’ than in Australia, especially because she had to ‘bear part of [her] mother’s caring and medical expenses as that is Chinese law’.[16] She provided no documentation or receipts to support these expenses.
·In the period from 20 January 2020 to 2 March 2020, Mr Liang had expenses of rent ($171.40 per fortnight), groceries and dining out (which he approximated was $100 to $160 per week), face-masks (due to the start of the covid-19 pandemic), petrol (approximated at $30 to $40 per week) and he purchased two books. Mr Liang withdrew most of his age pension payment from his bank account in cash each fortnight, allocating money for his immediate day-to-day expenses and saving $100 to $200 for future large bills such as his car ‘green slip’ insurance payment. Mr Liang filed an electricity bill for the period 4 December 2019 to 25 February 2020 in the amount of $175.64 due for payment on 30 March 2020.[17] He also filed receipts for monthly home Wi-Fi expenses of $63.95.[18]
·Mr Liang withdrew amounts of $50 cash from his and Ms Xie’s joint bank account on 30 January 2020, 13 February 2020 and 27 February 2020.[19] At the hearing, Mr Liang said he used this money to pay for Wi-Fi expenses.
·As at 28 February 2020, the balance of the joint bank account held in the names of Mr Liang and Ms Xie was $3,409.78.[20]
[14] Based on an approximate exchange rate for January to March 2020: CNY1 ~ AUS$0.21: see Chinese Yuan to Australian Dollar Spot Exchange Rates for 2020 accessed on 30 March 2022. These amounts are based on the written statement signed by Ms Xie on 14 January 2022 at Exhibit A7.
[15] Oral evidence of Ms Xie, 22 March 2022 and Exhibit A7.
[16] Exhibit A7.
[17] Exhibit A4.
[18] Exhibit A5.
[19] Exhibit A8.
[20] Exhibit A8.
In oral evidence to the Tribunal, both Mr Liang and Ms Xie said they pool their resources when they are both in Australia: Mr Liang pays for the government rent from his age pension ($171.40 per fortnight); and Ms Xie pays Mr Liang $400 at the beginning of every month, which comprises her contribution to their shared rent, and expenses for utilities, groceries and Wi-Fi. Ms Xie said that she paid Mr Liang this money in January 2020 but did not pay him this money in February 2020 because she was in China. She also said that she probably did not pay him $400 in March 2020 because she had to repay the loan of $4,000 she borrowed in January 2020.
At the hearing, Mr Liang accepted that he was able to meet his necessary expenditure of rent, electricity, food (groceries and dining out), medication and petrol from the age pension he received from 20 January 2020 to 2 March 2020. However, he believed he should be entitled to the age pension at the single rate because Ms Xie did not give him $400 per month in February 2020 and March 2020, and he contributed $600 to pay for her return airfare to China. This meant that he had reduced cash savings for when he had to pay for larger bills such as his ‘green slip’ car insurance or car repairs. He said he had no other savings or assets apart from his car.
CONSIDERATION
I now consider whether there is a special reason to not treat Mr Liang as a member of a couple for the purpose of his rate of age pension, having regard to the questions and policy outlined in the Guide.
Is there a ‘special reason’ in the couple’s circumstances?
In written submissions, the Respondent set out that the expression ‘special reason’ must be interpreted in the context and consistent with the scope and purpose of the Act as set out in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No
4) 1991 (Cth), which relevantly provided (at 17):
...there is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.[21]
[21] See Secretary’s Statement of Facts and Contentions dated 2 February 2022, paragraph 20.
Mr Liang provided written and oral submissions to the Tribunal that there was a special reason to treat him as unpartnered and pay him the single rate of age pension in the period from 20 January 2020 to 2 March 2020. He contended that he and Ms Xie were unable to pool their resources during this period because he was in Australia and she was in China. He stated that their circumstances meant that:
·Ms Xie did not pay him her usual monthly contribution of $400 towards their shared expenses in February 2020 and March 2020;
·he shared the cost of her return airfare to China (which was higher because it was purchased hurriedly due to the urgency for Ms Xie to travel to China to see her critically ill mother); and
·Ms Xie had expenses associated with her mother’s medical and hospital care.
Mr Liang relied on the Tribunal decision in Liang and Secretary Department of Social Services made on 29 April 2015 in which Senior Member Taylor determined that Mr Liang should not be treated as a member of a couple with Ms Xie for the period from 1 February 2014 to 30 April 2014.[22] Senior Member Taylor concluded that he was satisfied there was a ‘special reason’ to not treat Mr Liang as a member of a couple for the period from 1 February to 30 April 2014 due to:
…the combination of (i) Mrs Xie’s substantial period of absence in China caring for her elderly mother; (ii) the absence of financial contribution by her, during her absence, to any pooling of the couple’s resources; (iii) the fact that Mrs Xie effectively forfeited payment of newstart allowance during her period of absence; (iv) Mr Liang’s very modest financial circumstances – meaning that he has no assets of any real significance and applies virtually the totality of his income to meeting living expenses; and (v) the unreasonableness of requiring Mr Liang to resort to his very small superannuation entitlement to meet his ongoing expenses, when he had reasonably allocated that sum towards defraying the funeral expenses that his estate will likely have to bear.[23]
[22] [2015] AATA 275.
[23] Liang and Secretary Department of Social Services [2015] AATA 275, paragraph [36].
While I note there are similarities in the circumstances of Mr Liang and Ms Xie between the periods from 1 February to 30 April 2014 and from 20 January to 2 March 2020, I also find there are clear and distinguishing facts between these two periods.
I am satisfied the evidence shows that in both periods (that is, 2014 and 2020) Ms Xie needed to urgently and unexpectedly return to China to see her mother who was unwell, and Mr Liang had limited savings, few assets and was financially reliant on his age pension. However, the evidence also shows that:
·Ms Xie’s period of absence from Australia was approximately three months in 2014 as opposed to six weeks in 2020; and
·Ms Xie forfeited her then payment of newstart allowance when she returned to China in 2014 (meaning she and Mr Liang were solely reliant financially on his age pension payment), while she continued to be paid carer payment and carer allowance into her and Mr Liang’s joint bank account throughout the period she was in China in 2020.
Weighing all the evidence, I accept that Ms Xie did not anticipate her return to China on 20 January 2020 and the circumstances of her mother’s critical illness and death after Ms Xie travelled to China would have been extremely upsetting. However, I do not find these circumstances were ‘unusual, uncommon, abnormal or exceptional’ as set out in the Guide. In particular, I note that it is neither unusual nor uncommon for children living in other countries to return to see their elderly and/or ill parents, and the evidence suggests that Ms Xie’s mother had been unwell and required care for several years.
I also do not find a review of the evidence shows Mr Liang was in ‘financial difficulty’ from 20 January 2020 to 2 March 2020. During this period, Mr Liang was able to pay his government rent (deducted from his age pension), groceries and dining out expenses, Wi-Fi and purchase two books. The evidence also shows that Mr Liang was able to share the cost of Ms Xie’s return airfare to China from his savings. Relevantly, there is no evidence before the Tribunal that Mr Liang was unable to afford his day-to-day expenses during this period.
It is clear from the submissions that Mr Liang believes he and Ms Xie were unable to pool their resources from 20 January 2020 to 2 March 2020 in part because Ms Xie did not pay him her usual $400 monthly contribution in February 2020 and March 2020. Nonetheless, Mr Liang was able to access the bank account he held jointly with Ms Xie to withdraw cash amounts totalling $150 between 30 January 2020 and 27 February 2020. I also find there is no objective reason that Mr Liang could not have accessed this joint bank account (which had a balance of $3,409.78 as at 28 February 2020) if he was in financial difficulty while Ms Xie was in China. I accept, however, that Ms Xie considered the carer payment and carer allowance amounts deposited into this joint bank account would be used to repay her $4,000 loan and Mr Liang was aware that Ms Xie would be upset if he withdrew excess money from this account.
I am satisfied that a ‘full consideration’ of all the circumstances relevant to Mr Liang and Ms Xie do not show that it would be ‘unjust or unreasonable’ to treat Mr Liang as a member of a couple. On balance, I do not find the circumstances of Mr Liang are a ‘special reason’ to not treat him as a member of a couple for the period from 20 January 2020 to 2 March 2020.
Is there a lack of being able to pool resources for the couple as a result of the circumstances?
I am satisfied the evidence shows that, in the period from 20 January 2020 to 2 March 2020, Mr Liang received age pension in the amount of $703.50 per fortnight paid into his bank account, and Ms Xie received carer payment and carer allowance in the amount of $835.40 per fortnight paid into her and Mr Liang’s joint bank account.
I accept the evidence shows that Mr Liang and Ms Xie had additional expenses during this period due to Ms Xie’s urgent return to China to see her mother. In particular, Mr Liang and Ms Xie shared the cost of Ms Xie’s return airfare to China, and Ms Xie paid additional expenses of accommodation, food and travel while she was in China. It is my view, however, that Ms Xie would have food and travel expenses whether she is in Australia or China. She also did not pay her monthly contribution to Mr Liang in February and March 2020.
Except for the additional cost of Ms Xie’s accommodation in China (AUS$315), I find no objective evidence that Mr Liang and Ms Xie were unable to pool their resources from 20 January 2020 to 2 March 2020 as a result of their circumstances. I make this finding considering all the circumstances of Mr Liang and Ms Xie; including that their combined Centrelink payments during this period were $1,538.90 per fortnight, Mr Liang was able to access Ms Xie’s payments from their joint bank account, and they were able to pool their resources to pay for Ms Xie’s travel to China.
Is there financial difficulty as a result of the couple’s circumstances?
As set out in the Guide, determining whether to apply the discretion in section 24 of the Act requires a person’s ‘overall financial situation’ to be considered; in particular, their income and available funds should be compared to their ‘necessary expenditure’ such as rent, groceries, utilities and transport.
For the reasons set out at paragraph 28 above, I am not satisfied Mr Liang was in ‘financial difficulty’ from 20 January 2020 to 2 March 2020. This is because the evidence shows he was able to pay necessary expenses including rent, groceries, Wi-Fi and petrol. I note Mr Liang was able to pay for discretionary items including two books and dining out. He also had access to his and Ms Xie’s joint bank account where her carer payment and carer allowance amounts were deposited fortnightly. However, he only withdrew $150 from this account during this period.
I have also considered the additional expenses associated with Ms Xie’s travel to China from 20 January 2020 to 2 March 2020 and whether this could comprise ‘financial difficulty’. I have already made findings about the ability of Mr Liang and Ms Xie to pool resources at paragraphs 31 to 33 above. In addition, Ms Xie provided a statement that she and her siblings shared the payment of her mother’s hospital, medical and care expenses. Although there is no supporting documentation, Ms Xie told the Tribunal her share of these expenses was CNY13,000, which is approximately AUD$2,730. While I accept that Ms Xie may have been obliged for legal, cultural and/or familial reasons to pay her mother’s medical expenses, I find these expenses do not comprise ‘necessary expenditure’ when considering whether there is financial difficulty in relation to the discretion in section 24 of the Act.
I find no evidence of financial difficulty in the period from 20 January 2020 to 2 March 2020 in circumstances where both Mr Liang and Ms Xie continued to receive their social security payments and chose to pay for discretionary expenses.
Partner overseas
Finally, I address submissions Mr Liang made to the Tribunal that the discretion in section 24 of the Act should apply because his partner was overseas as set out in section 2.2.5.50 of the Guide (and summarised at paragraph 15 of this decision).
I have considered all the relevant factors and find this condition is not relevant to the circumstances of Mr Liang and Ms Xie for the following reasons. From 20 January 2020 to 2 March 2020, Mr Liang was able to access to Ms Xie’s carer payment and carer allowance through their joint bank account. Consequently, the factors of whether there were legal restrictions on Ms Xie transferring funds from overseas or whether Ms Xie had sufficient funds to send to Australia are irrelevant to this matter. Further, there is no evidence before the Tribunal to suggest the circumstances of Ms Xie’s travel to China from 20 January 2020 to 2 March 2020 were beyond her control and Ms Xie or Mr Liang had the power to alter the situation. While I accept that Ms Xie’s mother becoming critically ill was beyond the control of Ms Xie and Mr Liang, it was Ms Xie’s (quite understandable) choice to travel to China for six weeks to see her ill mother. It was also Ms Xie’s decision to pay for her mother’s medical, hospital and care expenses.
Based on the evidence, I do not find the discretion in section 24 of the Act should apply to Mr Liang because Ms Xie was overseas from 20 January 2020 to 2 March 2020.
CONCLUSION
Weighing all the evidence, I am not satisfied there was a special reason in accordance with section 24 of the Act to not treat Mr Liang as a member of a couple for the purpose of determining his rate of age pension in the period from 20 January 2020 to 2 March 2020.
DECISION
The decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 5 April 2022
Date(s) of hearing: 22 March 2022 Applicant: In person Solicitors for the Respondent: Ms Cara Hammerton, Services Australia
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