Mei Di Wang and Secretary, Department of Education, Employment and Workplace Relations

[2013] AATA 139

[2013] AATA 139 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2825
Re	Mei Di Wang
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	15 March 2013
Place	Sydney

The decision under review is affirmed.

.................................[sgd].......................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – whether person is a member of a couple – consideration of all of the circumstances of the relationship – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 4

REASONS FOR DECISION

Ms N Isenberg, Senior Member

15 March 2013

BACKGROUND

1. Mei Di Wang, the Applicant, suffered a workplace injury and her employment was terminated on 4 August 2008.  In December 2008 she applied for, and was granted, Newstart allowance.

2. On 8 October 2010 a job capacity assessment was arranged by Centrelink due to change of circumstances reported by the Applicant.  At the assessment the Applicant’s psychiatric conditions were rated at 20 points, and it was concluded that she had a continuing inability to work.  The Applicant lodged a claim for disability support pension which was granted on 24 January 2011, backdated to 19 November 2010.

3. Centrelink issued a notice dated 24 January 2011 which explained the disability support pension would be paid at the partnered rate, as in her claim she had noted that she was married and living at the same address as her partner.

4. On 16 May 2011 the Applicant contacted Centrelink and requested to be paid disability support pension at single rate.  At that time she confirmed that she was still married to, and living with, her husband as a member of a couple.  Centrelink decided that payment of the Applicant’s disability support pension at a partnered rate was correct.  That decision was affirmed on review and by the Social Security Appeals Tribunal.

5. The Applicant complained about her alleged mistreatment by Centrelink noting that she wanted the “wrong payment” to be stopped.  The statement also detailed the Applicant’s concerns about how Centrelink had made a mistake in granting her disability support pension.  The Applicant further noted that her intention was not to claim disability support pension but to seek assistance in getting worker’s compensation.

   LEGISLATION

6. The Social Security Act 1991 (“the Act”) contains calculators to determine at what rate a person is to be paid certain benefits, including disability support pension.  The maximum basic rate payable to a person who is partnered is less than that for a person who is not a member of a couple.  Additionally, in the case of a person who is partnered their partner’s income is taken into account when the rate payable is calculated.

7. In relation to married couples, the Act provides that a person is a member of a couple if the person is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis: subs 4(2)(a).

   ISSUE BEFORE THE TRIBUNAL

8. The only reviewable decision is the decision to grant the Applicant disability support pension at the partnered rate.  Consequently consideration must be given to whether Mrs Wang was legally married to another person and was not living separately and apart from the other person on a permanent or indefinite basis during the relevant period.

9. Centrelink contended that at all relevant times Mrs Wang was the partner of Mr Chen and therefore a member of a couple as defined in s 4 of the Act.

   EVIDENCE BEFORE THE TRIBUNAL

10. From what I could make out from the Applicant’s submissions at the hearing, and from her voluminous evidence which she had filed in advance of the hearing, Mrs Wang does not want disability support pension at all; she wants workers’ compensation.  As I pointed out at the hearing, the only matter I am able to decide relates to the grant of her disability support pension and the rate at which it is payable.

11. At the hearing, the Applicant said she had been married since 1981.  She said her husband had ‘left home’ on 18 June 2008.  She said they ‘can’t live together’ but it was unclear if she was referring to their relationship or the effect that living together has upon the rate at which her pension is payable.  The Applicant became extremely distraught before this could be clarified.  The matter was adjourned so the Applicant could compose herself, to no avail. 

12. I took the view that continuing the hearing would only serve to further distress the Applicant.  I offered the Applicant the opportunity to provide further evidence and submissions in relation to her marriage.  The Applicant sent to the Tribunal a lengthy medical statement (a draft of which had been previously provided) and some emails in which she describes herself as ‘the full victim and her family’.  She provided no evidence or submissions in relation to her marriage. 

13. The Respondent chose to make no submissions other than to re-iterate its application under s 42B of the Administrative Appeals Tribunal Act 1975, that the proceedings be dismissed as frivolous.  A similar application had been made at the hearing, which I refused having regard to the Applicant’s evidence that she and her husband had separated, at least for a period.  For the same reason, I do not consider it appropriate to dismiss the matter without examination of the available evidence.

    CONSIDERATION OF THE EVIDENCE

14. In the absence of evidence to the contrary, I find that the Applicant is legally married to Mr Chen, to whom the she refers as ‘my husband’. 

15. Other than the Applicant’s assertion that her husband had ‘left home’ on 18 June 2008, and that they ‘can’t live together’, there was no evidence that they have been living separately and apart on a permanent or indefinite basis at any time while the Applicant has been in receipt of disability support pension.  On the contrary, the Applicant had previously admitted to being a member of a couple:

    ·In her claim form (T8/164) she wrote that she was married, although there is an option for ‘separated’. 

    ·She wrote in her statement that she told a psychologist (T1/57) in February 2009 that her husband ‘left just three days’. 

    ·When interviewed by the Authorised Review Officer she said (T12/193) that she and her husband were not separated and will not divorce.  At that time (August 2011) she said her husband was working at Bateman’s Bay and she travelled to stay with him.  She confirmed, at least twice in that conversation, that they were not separated. 

    ·On 16 May 2011 the Applicant was recorded as having contacted Centrelink (T20/256) complaining about the rate at which her pension was paid and that she did not want to be treated as separated.  

    ·In January 2012 (T14/198) she wrote to Centrelink referring to her husband’s health issues and the impact their health is having on their finances. 

16. Therefore, upon reviewing the totality of the evidence, I have come to the view that it is clear the Applicant and Mr Chen, who were legally married were, at the relevant date, not living separately and apart on a permanent or indefinite basis.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

....................................[sgd]....................................

Associate

Dated  15 March 2013

Date of hearing	19 February 2013
Applicant	In person
Solicitors for the Respondent	Ms Pankaj Sharma, Program Litigation and Review Branch, Legal Services Division, Departmet of Human Services