Makinen and Secretary, Department of Social Services (Social services second review) - [2019] AATA 4298

Makinen and Secretary, Department of Social Services (Social services second review) [2019] AATA 4298 (22 October 2019)
Division:GENERAL DIVISION
File Number: 2018/3485
Re:Baeyoung Makinen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:22 October 2019
Place:Brisbane

The Tribunal affirms the decision under review.
......................[sgd]..................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – overpayment - whether member of a couple – decision under review affirmed.
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; 53 ALD 277
Cocks v Centrelink [2000] FCA 1248
Day and Secretary, Department of Education, Employment and Workplace Relations (2009) AATA 415
In the Marriage of Todd (No 2) (1976) 25 FLR 260
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas [2009] AATA 416
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
SECONDARY MATERIALS
Guide to Social Security Law
Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
REASONS FOR DECISION
Member D K Grigg
22 October 2019

The Applicant has been a recipient of the Disability Support Pension (“DSP”) since 5 October 2012.[1]
[1]Exhibit 1, Amended Statement of Facts, Issues and Contentions dated 14 January 2019.
The rates at which people are paid DSP is determined using the Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991 (Cth) (“Act”).[2] The maximum basic rate payable varies depending upon a person’s family situation. The maximum basic rate payable to a member of a couple is less than that of a person who is not a member of a couple.[3]
[2]Section 117, Act.
[3]Section 1064-B1, Act.
For almost 10 months, between 24 February 2017 and 13 December 2017 the Applicant was paid DSP calculated on the single rate.
The Applicant is married to Mr Ilpo Makinen. In February 2017 the Applicant attended the Department of Human Services (“Centrelink”) requesting information regarding financial assistance for her husband.[4] The Applicant was asked to complete and return a Separated Under One Roof form.
[4]Exhibit 1, Amended Statement of Facts, Issues and Contentions dated 14 January 2019, Attachment A, Centrelink record dated 6 February 2017.
In the Separated Under One Roof form submitted to Centrelink by the Applicant, the Applicant advised that, although her husband is still living in the marital home, they have been separated for a “very long time”. The Applicant reported that:[5]
[5]Exhibit 7, T Documents, T4, pages 51-61, Relationship details form – Separated under one roof completed by the Applicant dated 8 February 2017.
·they use the same kitchen and bathroom but at different times;
·she stays in the family room and he has the dining room;
·they do not go on holidays together;
·their friends and family do not consider that they are in a relationship with each other;
·they do not go out together;
·they are not invited out together as a couple;
·they do not share social and family occasions;
·Mr Makinen is unemployed;
·they share a Medicare card;
·they do not have a joint bank account;
·they do not have access to each other’s bank accounts or credit cards;
·they do not share the expense of a telephone;
·they share the cost of the electricity with the arrangement being that the Applicant buys her husband’s groceries;
·they have no outstanding joint debts or loans;
·the Applicant pays most of the food and housekeeping items and does most of the grocery shopping and household tasks;
·they use separate vehicles;
·they do not have any joint insurance policies;
·the husband is nominated as a beneficiary under her will; and
·they have one child of the relationship, aged 29, who lives in the matrimonial home.
On 9 February 2017 Mr Makinen informed Centrelink that he nominated his wife to be his authorised person and nominee for payments and correspondence.[6]
[6]Exhibit 7, T Documents, T5, pages 62 – 63, authorising a person or organisation to enquire or act on your behalf form completed by Mr Makinen on 9 February 2017.
On 14 February 2017 Mr Makinen applied for the DSP.[7]
[7]Exhibit 7, T Documents, T6, pages 64 – 93, DSP application form dated 14 February 2017.
On 15 February 2017, various documents were lodged by the Applicant to Centrelink. A home loan statement from Bank of Queensland confirmed that the home loan account was in joint names and that as at 21 March 2014, the home loan had been repaid in full.[8] The Applicant’s son, Michael Makinen, provided a statement that his parents had “separated due to finances” and that his mother “no longer received adequate financial support to pay for the bare necessities as a homemaker.”[9]
[8]Exhibit 7, T Documents, T7, page 97, Statement from Bank of Queensland dated 21 March 2014.
[9]Exhibit 7, T Documents, T7, page 101, statement of Mikael Makinen dated 14 February 2017.
On 18 April 2017 the Applicant’s husband lodged a Relationship Details Separated Under One Roof Form declaring that:[10]
[10]Exhibit 7, T Documents, T8, pages 102 – 114, relationship details separated under one roof form completed by Mr Makinen dated 18 April 2017.
·he intended to continue living in the marital home because he is very sick and cannot move or sell his house;
·he separated from his wife in 1995 and there was no possibility that he would get back together with her;
·since separating he and his wife have had separate lives, finances, friends, holidays and living areas;
·he is too sick to use the kitchen or laundry;
·he and his wife eat separately;
·he and his wife have separate bedrooms and bathrooms;
·he does not have a sexual relationship with his wife;
·his wife is his carer and nominee;
·relatives and friends do not consider that they are a couple they do not share social and leisure activities;
·they have a shared Medicare card, but the Applicant has her own Medicare card;
·they have no joint accounts or access to each other’s accounts or credit cards;
·he pays $100.00 for council rates and $100.00 for water authority, however both are overdue;
·the Applicant is unemployed;
·he pays for his own food, although the Applicant does the shopping;
·they do not share a vehicle;
·his wife does the shopping and household chores because she is his carer;
·they do not have any joint insurance;
·he does not have a will; and
·his son resides with them regularly.
Based on the information provided, Centrelink determined that the Applicant was living as a member of a couple with her husband between 9 February 2017 and 5 December 2017 and that therefore she should have been receiving her DSP during that period at the partnered rate of payment not the single rate.[11]
[11]Exhibit 7, T Documents, T9, pages 115 – 120, Debt Calculation.
On 16 March 2018 Centrelink wrote to the Applicant informing her that as it had determined she was a member of a couple on 9 February 2017, she had only been entitled to the partnered rate of payment of DSP from 24 February 2017 to 5 December 2017 (Debt Period) and as a result she had been overpaid the sum of $4,455.57 (“DSP Debt”)[12] which was now a debt recoverable by Centrelink.[13]
[12]Exhibit 7, T Documents, T9, pages 115 – 120, Debt Calculation.
[13]Exhibit 7, T Documents, T10, pages 121 – 122, Letter from Centrelink to the Applicant dated 16 March 2018.

Claim History

As a result of Centrelink’s decision to raise the DSP Debt, the Applicant sought a review by an Authorised Review Officer (“ARO”). The ARO decided that the Applicant and her husband were living as members of a couple and that she was entitled to the partnered rate of pension but that the debt was to be waived in full because throughout the debt period she was of the belief that she was not in a relationship with a husband and that she would receive the payments in good faith believing that she was entitled to them to be calculated single rate.[14]
[14]Exhibit 7, T Documents, T12, pages 124 – 131, Authorised Review Officer’s Decision and Notes dated 28 March
2018.
The Secretary has subsequently waived recovery of the DSP Debt pursuant to section 1237A of the Act. Section 1237A of the Act provides, among other things, that 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.
While the DSP Debt has been waived, Centrelink’s decision means that the Applicant continues to be paid DSP calculated at the partnered rate. The Applicant contends that her rate of payment should be assessed as a single person pursuant to section 24 of the Act, because she is not a member of a couple.
Section 24 relevantly provides:
(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.
On 5 April 2018 the Applicant then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[15] The SSCSD rejected the Applicant’s claim and affirmed the ARO’s decision on 25 May 2018.[16]
[15]Exhibit 7, T Documents, T13, pages 132 – 133, Request for Statement dated 5 April 2018.
[16]Exhibit 7, T Documents, T2, pages 3 - 11, SSCSD’s Decision and Reasons for Decision dated 25 May 2018.
The Applicant has sought a review of the SSCSD’s decision that she is a member of a couple by this Tribunal.[17]
[17]Exhibit 7, T Documents, T1, pages 1 - 2, Application for Review dated 25 June 2018.

ISSUES FOR DETERMINATION

The Tribunal has to decide whether the Applicant:
(a)is a member of a couple; and, if yes
(b)should, for a special reason in this case, not be treated as a member of a couple (section 24(2)(d) the Act).
The DSP Debt was waived by the ARO and affirmed by the SSCSD of this Tribunal. The Secretary does not wish to agitate the DSP Debt issue and contends that the decision to waive the debt is the correct and preferable decision.[18] The Tribunal does not need therefore to concern itself with this aspect of the reviewable decision.
[18]Exhibit 1, Secretary’s Amended Statement of Facts, Issues and Contentions dated 14 January 2019.
In terms of the relevant timeframe, what is relevant is whether the Applicant is a member of a couple from 13 December 2017. Whether she was a member of a couple or not in the Debt Period is practically irrelevant because she was paid at the single rate and the debt was waived.

WAS THE APPLICANT A MEMBER OF A COUPLE?

Section 4 of the Act, relevantly, defines a person as a "member of a couple" if the person is legally married to another and is not living separately and apart on a permanent or indefinite basis.[19]
[19]Subsection 4(2)(a), Act.
Pursuant to section 4(3) of the Act, in determining whether two people are to be regarded as a member of a couple, all the circumstances of the relationship are to be taken into consideration including the following:[20]
[20]See Melvin v Secretary, Department of Social Security [2016] FCA 375, at [23]-[24].
(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.[21]
[21]Section 4(3), Act.
(My emphasis)
The factors listed in section 4(3) of the Act are not an exhaustive list and no one factor is determinative.[22] The circumstances of each case must be looked at in totality having regard to all the material facts.[23]
[22]Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [51].
[23]Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27, at 32-33.
Watson J in In the Marriage of Todd (No 2) (1976) 25 FLR 260 (at 262–263), said of marriage:
What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
In Pelka v Secretary, Department of Family & Community Services [2006] FCA 735, French J noted at [47] that:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
In Day and Secretary, Department of Education, Employment and Workplace Relations (2009) AATA 415 (“Day”) the Tribunal placed greater reliance on independent evidence than that of the applicant and found that if the applicant’s evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence
The Tribunal in Day found that the applicant’s evidence in that case “should be closely scrutinised and should not be accepted by the Tribunal unless it is “substantiated by independent and verifiable evidence””. [24] This finding was made in the context of various instances of the applicant having acted dishonestly. It is not a blanket rule that an applicant’s evidence should be disregarded unless independently corroborated. The Respondent has made no direct assertions in this matter that the Applicant has acted dishonestly. However, as is set out below, there are some inconsistencies in the Applicant’s evidence and there is a distinct lack of corroborating and independent evidence to support any of her claims.
[24]Day and Secretary, Department of Education, Employment and Workplace Relations (2009) AATA 415 [41].

Mr and Mrs Makinen’s Relationship
The Financial Aspects of the Relationship

According to the information provided by the Applicant and Mr Makinen:
(a)as at 24 February 2017 the house was unmortgaged;[25]
(b)utility and electricity bills were bills issued in joint names of both the Applicant and Mr Makinen; and
(c)the Applicant and Mr Makinen are in receipt of government pensions.
[25]Material was provided that as of 21 March 2014 the home loan had been repaid in full.
The Applicant told the Tribunal that:
(a)her DSP is paid into her Bank of Queensland account;
(b)Mr Makinen’s DSP was originally paid into a Bank of Queensland account in her name because:
(i)his bank account had previously been closed due to non-use;
(ii)he cannot walk;
(iii)he cannot go to the bank; and
(iv)Centrelink said she can open an account for him in her name;
(c)the Applicant assisted Mr Makinen in his application for the DSP; and
(d)Mr Makinen now controls his bank account using internet banking.
The Applicant was unclear in her evidence regarding when she established an account for Mr Makinen. She could not recall whether it was when Mr Makinen received Newstart Allowance or when he began receiving the DSP.
The Applicant also told the Tribunal she opened a joint account with Mr Makinen in May or June 2017 in order that Mr Makinen’s tax return payment could be deposited into an account and Mrs Makinen could then use that money. The Applicant said at that time her husband was not mobile so could not attend the bank himself to arrange transactions.
The Applicant told the Tribunal that she has a husband and wife will with her husband.
After December 2017, when Mr Makinen was in receipt of Newstart Allowance, the Applicant would use money from both of their accounts to pay for household expenditure.
The home loan was in joint names and was paid in full by the husband from 21 March 2014.[26]
[26]Exhibit 7, T Documents, T7, page 97, Bank of Queensland Statement dated 21 March 2014.
At the SSCSD hearing the Applicant said her husband would pay the bills and mortgage repayments and she would clean the house and do the washing.[27]
[27]Exhibit 7, T Documents, T2, page 5, Decision of the Social Services & Child Division dated 25 May 2018.
There is no evidence of any financial contribution by the Applicant toward the mortgage repayments before it was paid in full by Mr Makinen.
The Secretary notes that the Applicant’s evidence is inconsistent with what she reported on 10 March 2003. At that time, she was noted as stating that she was not supported financially by her husband and that he paid her $1,250.00 per month as per a court settlement and she used those funds to pay the home loan, car loan and other bills.[28]
[28]Exhibit 1, Amended Statement of Facts, Issues and Contentions dated 14 January 2019, Attachment B.
A Centrelink record dated 27 September 2012 records the Applicant as stating that she used her savings and money from her husband to travel.[29]
[29]Exhibit 1, Amended Statement of Facts, issues and Contentions dated 14 January, page 6, paragraph 41.
There is no objective evidence of a court settlement.
The evidence establishes that the Applicant and her husband shared some financial commitments and to the extent possible pooled their financial resources in order to look after each other's welfare. This is indicative of the Applicant being a member of a couple.

The Nature of the Household

The Applicant and Mr Makinen have an adult child that lives with them.
The Applicant explained that the house is a 3 bedroom home and they each have a separate bedroom.
The Applicant’s evidence was that:
(a)her husband went to hospital in January 2017;
(b)she visited her husband once per week while he was in hospital because the medical staff asked her to come;
(c)her husband came home from hospital in March 2017;
(d)because her husband was ill she cooks for him and helps him use the bathroom;
(e)at the time her husband came home from hospital she applied for the Carer Allowance as her husband’s carer;
(f)their son was diagnosed with a rare skin condition 10 years ago, and she has supported him since then. Her son has not improved, and therefore she remains in the house with her husband;
(g)her husband has mental health issues and is “obsessed with his self-created strange religion”.[30]
[30]Exhibit 3, page 12, Applicant’s submissions dated 12 November 2018.
No corroborating evidence was given of the son having any medical condition either from a medical practitioner or from the son.
The Secretary also points out that the Applicant's evidence in relation to her son is inconsistent with departmental records because at the time she said he was very ill and needed her help, her son was studying at Griffith University and was able to secure full time employment with Griffith University until approximately 2010. The Tribunal also notes that the Applicant’s evidence is that her son requires care and yet he is now the official carer of her husband and receiving carer’s allowance.
Ms Makinen says she was not a member of a couple in February 2017 because she had no idea about her husband’s activities, and he did not tell her he had been unemployed for seven years. She also says he left her with over $13,000.00 of unpaid bills. There is no corroborating evidence to support these claims. There is no evidence that she has had to remain in the home in care for her son. No mention of this is made in the son’s statement. There is no evidence that Mr Makinen has questionable mental health issues and is “obsessed with his self-created strange religion”.[31] Further, the Carer Report completed by Mr Makinen’s doctor, lodged in support of the Applicant’s carer payment application, indicates that Mr Makinen’s medical conditions are only physical in nature.
[31]Exhibit 3, page 12, Applicant’s submissions dated 12 November 2018.

The Social Aspects of the Relationship

There is no evidence that Mr and Mrs Makinen held each other out as being together or that they otherwise socialised together. This is understandable given Mr Makinen has been quite unwell and has difficulties mobilising.
The Applicant told the Tribunal that her family were not aware she had separated from Mr Makinen and that she did not tell them because she did not want to worry them. This is contrary to the Separated Under One Roof Form submitted to Centrelink where she declared that family do not consider her to be in a relationship with Mr Makinen.
In the Separate under One Roof form completed by the Applicant in February 2017, the Applicant also indicated that she was not sure if she would get back together with her husband.[32] The Applicant says she stated she was not sure because she could not know what might happen in the future, “there is always a one per cent open you know. He give up his religion or change person or something like he does good, you know”.
[32]Exhibit 7, T Documents, T4, page 51, Relationship details form – Separated under one roof completed by the Applicant dated 8 February 2017.
In relation to Mr Makinen’s DSP claim form dated 14 February 2017,[33] the Applicant acknowledged that she completed the form on her husband’s behalf because he was too ill to do so. One of the questions in the form asks whether the Applicant is married, separated, divorced etc. The Applicant ticked “married”. When asked why she answered in that way on the form the Applicant seemed unsure and suggested it was because she had not seen the other options, or because they were not divorced, alternatively she said, “maybe I made a mistake, or I didn’t see that”.
[33]Exhibit 7, T Documents, T6, pages 64 - 93, DSP claim form dated 14 February 2017.
The Tribunal finds that for all intents and purposes the Applicant considered that she was in a legal relationship with her husband.
Although the Applicant and her husband do not socialise that is due primarily to Mr Makinen’s physical ailments.

Any Sexual Relationship between the People

The Applicant told the Tribunal there was no sexual relationship and there is no evidence to the contrary.
The Secretary accepts the Applicant ceased having a sexual relationship well before 24 February 2017.

The Nature of the People’s Commitment to Each Other

The Secretary referred to Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, where the Full Federal Court commented at [30] on what regard the decision maker should have to the nature of two person's commitment to each other for the purposes of determining whether or not the persons were members of a couple:
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person.
The Applicant has demonstrated a commitment to her husband by:
(a)living with him since 1994;
(b)attending to all domestic chores and tasks; and
(c)caring for him during his confinement.
These factors are indicative of the Applicant being a member of a couple. There is insufficient information before the Tribunal for it to conclude that the relationship is one of carer and care recipient only.
Other Evidence
The Applicant provided the Tribunal with the following documentary evidence:
(a)Statements from her friends, Anne Miettinen, Emilie Wulf, Hyun-son Yoon, Christopher Miettinen, Chin- Mian Hsiao, Pei-Chi (Peggy) Liu, Erno Miettinen, Wan-Chen Liu (“The Applicant’s friends”) , which all state the same thing, namely that they have known Mr and Mrs Makinen for years and that the Applicant was living as a single person during the period in question;
(b)A bank statement of Mr Makinen for the period 19 January 2017 to 25 January 2017 which shows a closing balance of $0.00;
(c)A notice from Centrelink to Mr Makinen dated 18 December 2017 regarding the payment of $1,492.50 for his Newstart allowance;
(d)An electricity invoice addressed to the Applicant at her home address dated 27 January 2017 totalling $3,642.30, of which $2,922.30 was overdue;
(e)A letter from Origin Energy addressed to the Applicant at her home address dated 10 March 2017 advising that her application for Home Energy Emergency Assistance had been denied;
(f)An electricity invoice addressed to the Applicant at her home address dated 11 April 2017 indicating there were overdue charges totalling $3,582.33;
(g)A phone bill addressed to the Applicant at her home address dated 15 April 2017;
(h)Brisbane City Council rates reminder notices addressed to both Mr and Mrs Makinen dated 16 March 2017 and 24 May 2017;
(i)Brisbane City Council rates invoice addressed to both Mr and Mrs Makinen dated 10 July 2017;
(j)An Urban Utilities overdue account notice addressed to both Mr and Mrs Makinen dated 19 March 2017;
(k)An Urban Utilities invoices addressed to both Mr and Mrs Makinen dated 1 May 2017 and 26 October 2017;
(l)A bank statement of the Applicant for the period 12 December 2016 to 11 January 2017 showing a closing balance of $49.37;
(m)A bank statement of the Applicant for the period 12 January 2017 to 11 February 2017 showing a closing balance of $79.33;
(n)A bank statement of the Applicant for the period 12 February 2017 to 11 March 2017 showing a closing balance of $65.96;
(o)A bank statement of the Applicant for the period 12 March 2017 to 11 April 2017 showing a closing balance of $82.05;
(p)A bank statement of the Applicant for the period 12 April 2017 to 11 May 2017 showing a closing balance of $301.43;
(q)A bank statement of the Applicant for the period 12 May 2017 to 11 June 2017 showing a closing balance of $30.32
(r)A notice from Centrelink to the Applicant dated 22 February 2017 regarding being appointed as a payment nominee for Mr Makinen;
(s)A medical certificate signed by Dr Cyril Fernandez dated 4 May 2018 regarding Mr Makinen’s medical conditions impacting upon her capacity for work or study;
(t)A medical report from Wishart Medical Centre dated 6 February 2019 regarding Mr Makinen’s assessments based on Impairment tables;
(u)A medical report of Mr Makinen dated 5 January 2018 lodged to Centrelink titled Carer Payment and/or Carer Allowance;
(v)A notice of assessment from the Australian Taxation Office to Mr Makinen dated 3 March 2017 regarding year ended 30 June 2013;
(w)A cheque statement from Australia and New Zealand Banking Group Limited to Mr Makinen for the period of 19 January 2017 to 25 January 2017 showing a closing balance of $0.00;
(x)Aletter from Department of Human Services to Mr Makinen dated 19 July 2018 regarding payments for the Continence Aids Payment Scheme for the amount of $596.60;
(y)Statement from Independence Australia to Mr Mikinen for the period ending 31 July 2018 showing a due amount of $71.96;
(z)A notice from Anglicare to Mr Makinen dated 24 August 2018 showing a due amount of $20.00;
(aa)A transaction update of the Applicant’s Pension Plus account for the period of 6 August 2018 to 6 September 2018;
(bb)A transaction update of the Applicant’s Day2Day Plus 1 account for the period of 17 August 2018 to 10 September 2018 and the peiod of
(cc)A transaction update addressed to both the Applicant and Mr Makinen for the period of 6 August 2018 to 10 September 2018;
(dd)A transaction update addressed to the Applicant for the period of 1 September 2018 to 6 October 2018;
(ee)A transaction update of the Applicant’s Pension Plus for the period of 11 September 2018 to 6 October 2018;
(ff)A transaction update of the Applicant’s Day2Day Plus 1 account for the period of 11 September 2018 to 6 October 2018;A transaction update addressed to both the Applicant and Mr Makinen for the period of 11 September 2018 to 6 October 2018.

Conclusion

The difficulty with placing much weight on the statements of the Applicant’s friends, is that their evidence is not able to be tested. The Tribunal is unsure whether they have first-hand knowledge of the nature of the Applicant’s relationship.
Michael Makinen stated his parents “separated” because they needed money to pay for the bare necessities. During the SSCSD hearing the Applicant spoke about her husband’s religion being the reason for their separation. The Applicant was questioned by Ms Wong at the hearing before this Tribunal about these being contrary reasons given for separation. The following exchange occurred:
Ms Wong: Why did he say that you separated due to financial issues? Because I note that there is a lot of evidence from the tribunal’s decision below, which spoke about you separating due to him finding a different religion?
Ms Makinen: Because at that time, this letter, this Centrelink want to ask me to bring my son’s letter or the writing. Centrelink officer ask me. So, before that, he was a very sensitive, very shy and had a problem with the skin and the digestion also. I didn’t want to explain many things, you know. Any stress can cause his pain more worse. He doesn’t want to hear sometimes. When I say something, he does the block his ears and he is trying to be calm that he doesn’t get this ‑ ‑ ‑
Ms Wong: When he said that you and Mr Makinen separated due to finances, is that true?
Ms Makinen: I don’t know. He - because he noticed I don’t have any money, because the minimum what he should pay sometimes. Because at that time, you know, internet card - internet attached to our card, he didn’t pay and also, electricity was didn’t pay. I have noticed this too. That is why I maybe told at the time. I didn’t know about the city council or the utility, I didn’t know. I thought that he paid it regular.
Ms Wong: This letter was written because you told your son to write a letter addressed to Centrelink? Is that right?
Ms Makinen: Yes. Centrelink want to have my son’s writing, so I just put.
Ms Wong: But did you tell him that you were separating due to finances, or did he say that himself?
Ms Makinen: He said himself.
The Tribunal finds that the motivation for submitting to Centrelink that she was separated from her husband was driven by financial need. This was confirmed by her son in his statement. The fact that the Applicant would be better off on a single rate of pay is not a basis for concluding that she is no longer in a couple-like relationship. The fact that her husband is ill, and she cares for him, or that they are in a difficult financial situation, does not detract from the objective evidence that they are members of a couple.
Considering the totality of the above factors, the Tribunal finds, based on the available evidence, that the Applicant was a member of a couple under section 4 of the Act during the Period. The Applicant was not living separately and apart from her husband and therefore she was a member of a couple for the purposes of determining her rate of DSP

IS THERE A SPECIAL REASON THAT THE APPLICANT SHOULD NOT BE TREATED AS A MEMBER OF A COUPLE PURSUANT TO SECTION 24?

In determining whether there is, for the purposes of s 24(1) of the Act, a special reason why the Applicant should not be treated as a member of a couple, what has to be considered is the position of the Applicant, not the position of the couple of which he is a member: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at
536; 53 ALD 277 at 282 per French J (“Boscolo”).
The Guide to Social Security Law (“the Guide”), used by the Department, sets out in section 2.2.5.50, how section 24 is to be applied. The Tribunal is not bound to apply the Guide, but it may, and it should, apply it in exercising its discretion, unless it is unlawful or “tends to produce an unjust decision”.[34]
[34]Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
Section 2.2.5.50 provides that the questions to be considered are whether there is:
(a)a special reason in this couple’s circumstances;
(b)a lack of being able to pool resources as a result of the couple’s circumstances; and
(c)financial difficulty as a result of the couple’s circumstances.
There is some debate as to whether section 24 of the Act poses 3 questions or fewer.[35] While financial difficulty and an ability, or lack thereof, to pool resources may be relevant in the circumstances to an exercise of the discretion, they are only relevant if they constitute a “special reason” which is all the section prescribes.
[35]See Purdie and Secretary, Department of Social Services [2013] AATA 743, at [14].
The Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth), explains the justification for paying a higher rate of pension to an unpartnered person as follows (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 same 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 he or she is living apart from his or her partner 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.
The core requirement for special reason[s] is that there be something “unusual or different”: French J in Boscolo, at [18]; Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, Barker J, at [37].
In Cocks v Centrelink [2000] FCA 1248, O’Loughlin J said that it may be appropriate to exercise the discretion where a couple could not pool resources. In that case Mrs Cocks had nothing to contribute to the pool. In Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas [2009] AATA 416 however, it was found that although the applicant’s partner was unable to contribute to the pooling of resources, it did not weigh in favour of exercising the discretion. Each situation must be considered based on its own circumstances.
For the Applicant to not be treated as a member of a couple for the purposes of calculating his DSP, the Secretary needs to be satisfied that there is a special reason why she should not be so treated. In the event that there is such a special reason, the Secretary may then determine that the person is not to be treated as a member of a couple.[36] That is, under section 24 of the Act, even if a special reason exists, the Secretary may still decide not to exercise the discretion.
[36]Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [19].
There are no reasons before the Tribunal which give rise to a special reason to explain why the Applicant should not be treated as a member of a couple.
There is no evidence that the Applicant and her husband were prevented from pooling their resources. The evidence shows that they did pool resources when necessary. Although they have had tough times financially, and Mr Makinen is ill, that is not uncommon for persons in receipt of social security benefits and does not make the Applicant’s situation unusual or special.
There is no other special reason of which the Tribunal is aware as to why the Applicant should not be treated as a member of a couple based on her circumstances.
The Tribunal therefore finds that no special reason exists to enliven the discretion in section 24 of the Act.
If the Applicant’s situation changes or if the Applicant is able to produce corroborating evidence of her circumstances, she can apply to Centrelink for reconsideration of her rate of DSP payments.

DECISION

The Applicant’s appeal fails. She is a member of a couple for the purposes of the Act and no special reason exists to treat her differently.
The decision under review is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.............................[sgd]...........................................
Associate
Dated: 22 October 2019

Dates of hearing: 14 January 2019 and 25 June 2019

Date reserved: 25 June 2019

Applicant: In person

Advocate for the Respondent: Ms A Wong

Solicitors for the Respondent: Mills Oakley Lawyers

Dates of hearing:	14 January 2019 and 25 June 2019
Date reserved:	25 June 2019
Applicant:	In person
Advocate for the Respondent:	Ms A Wong
Solicitors for the Respondent:	Mills Oakley Lawyers