Mohammad and Secretary, Department of Social Services (Social services second review) - [2020] AATA 4911

Mohammad and Secretary, Department of Social Services (Social services second review) [2020] AATA 4911 (2 December 2020)
Division:GENERAL DIVISION
File Number: 2020/1929
Re:Mr James Mohammad
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:2 December 2020
Place:Melbourne

The Tribunal:
(a) pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b) remits the matter to the decision-maker for reconsideration of the applicant’s entitlement to the age pension single rate, in accordance with a direction from the Tribunal, pursuant to section 43(1)(c)(ii) of the AAT Act that Mr Mohammad meets the requirements of section 24 of the Social Security Act 1991, as there are special reasons to consider him not part of a couple.

............................[sgd]............................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – age pension – special circumstances when person not to be treated as a member of a couple – capacity to share resources – impecuniosity – inability of spouse to find employment - based upon practical considerations – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Bota and Secretary, Department of Social Services (Social services second review) [2018] AATA 2508
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Nicolaas; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2009] AATA 416
Sorrenti and Secretary, Department of Social Services [2018] AATA 4301
Crem and Secretary, Department of Social Services [2019] AATA 5520
Pascoe and Secretary, Department of Social Services [2013] AATA 745
Wilson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2011] AATA 554
Ahamed v Secretary, Department of Social Services [2020] FCCA 1245
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms A E Burke AO, Member
2 December 2020
INTRODUCTION

Mr James Mohammad (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) which determined he was a member of a couple with Mrs Nazmun from 18 March 2019, reducing his rate of payment of age pension from the single to the couple rate.
The application was heard via telephone on 2 October 2020. Mr Mohammad was self-represented and Mr Tim Noonan, a government lawyer in the Litigation and Information Release Branch Team of Services Australia, appeared for the Respondent. Mr Mohammad and his wife Mrs Nisha Nazmun gave evidence under affirmation and were cross-examined by Mr Noonan.
BACKGROUND
On 13 February 2008, Mr Mohammad commenced receiving the age pension at the single rate. Mr Mohammad is now 77 years of age and previously worked in manufacturing.
On 18 March 2019, Mr Mohammad married Mrs Nazmun, a Fiji national, who is 63 years of age. Mrs Nazmun currently holds a class 020 bridging visa while she awaits her permanent partner visa application to be finalised.
On 8 April 2019, Mr Mohammad advised the department he had married and subsequently, on 24 April 2019, he provided the Department with a Partner Details Form (Mod P) which advised he had married Mrs Nazmun on 18 March 2019 and that they were living together. He advised Mrs Nazmun was unemployed, had no assets and was not receiving any income or income support payments.
On 8 August 2019, the Department determined Mr Mohammad was a member of a couple and should be paid at the couple rate from 18 March 2019, reducing his payment and imposing a debt.
On 24 October 2019, on internal review, an Authorised Review Officer (ARO) affirmed the earlier Department decision made on 8 August 2019 to assess Mr Mohammad as a member of a couple and to pay him at the couple rate of Age Pension from 18 March 2019. The ARO stated:
The amount of Age Pension paid to a person who is a member of a couple is less than the amount paid to a person who is single. The assessment under Section 24 of the Act is only applied to decide if there is a special reason NOT to treat a person as a member of a couple and is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted. There must also be some degree to which circumstances are out of your control and cannot be changed.
Section 24 of the Act is applied in limited situations, generally if either member of a couple does not benefit, or cannot reasonably expect to benefit, from the pooling of resources that usually occurs in a member of a couple relationship. In general, your circumstances must be unusual, uncommon, abnormal or exceptional. 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.
A decision was made by the department on 24 September 2019, to not apply section 24 of the Act and to continue paying you at the partnered rate of Age Pension. The department determined that Nisha who is currently holding a bridging visa subclass 020 while waiting the outcome of her permanent visa application has an unrestricted ability to work or study. As Nisha has the ability to derive income she therefore has ability to contribute to pool resources with you to cover your day to day expenses.
I note that you have stated that Nisha is unable to contribute to the pooling of resources as she has not been able to gain employment. I understand this has placed a financial burden on you to support both yourself and Nisha however, as she has the ability to work and you have agreed to support her within your visa applications it was determined that you have contributed to your current financial circumstances.
I further note that there was a lack of evidence to verify the extent of your financial hardship or supply Nisha’s visa notice identifying any restrictions that she might have which would impact her ability to work or contribute to the pooling of resources. I suggest if you were to appeal this case further it would be in your best interest to supply additional information verifying your circumstances.
Section 24 assessments are applied when all other reasonable means of support have been explored and exhausted. There must also be some degree to which circumstances are out of your control and cannot be changed. In the absence of additional evidence I have determined the decision to not apply the section 24 application and pay you at the partnered rate is correct.
On 26 February 2020, the Social Services & Child Support Division of this Tribunal (Tier 1) affirmed the decision of the ARO to assess Mr Mohammad as a member of a couple and to pay him at the couple rate of Age Pension from 18 March 2019. The Member stated:
In view of the above considerations, the Tribunal is not satisfied that there is a special reason to be considered in this case. The Tribunal is of the view that it is open to Ms Nazmun to seek gainful employment in a wide range of industries and occupations rather than limiting herself to positions within law firms, as she has presently chosen to do. As confirmed at the hearing she resides lawfully in Australia on a bridging visa with full work rights, pending the outcome of her partner visa application. The Tribunal is therefore of the view that Ms Nazmun has the ability to gain employment income and contribute to the pooling of the couple's resources.
For the couple's circumstances to warrant favourable consideration there must be some degree to which their circumstances are outside the couple's or individual's control and cannot be changed. That is not the case here.
The Tribunal finds that there is no special reason affecting the couple's circumstances.
…
The Tribunal notes that the couple's present circumstances do not disclose any lack of capability to pool their resources.
The Tribunal further notes that there appears to be considerable financial difficulty as a result of the couple's circumstances. Mr Mohammed reported difficulty in paying for the various utilities such as gas, electricity and mobile phones, and had amassed over $10,500 in credit card debt. However, as stated in paragraph 24 of these Reasons, the Tribunal is satisfied that Ms Nazmun has the ability to gain employment income and contribute to the pooling of the couple's resources, thus alleviating the couple's present financial difficulties.
On 23 March 2020, Mr Mohammad sought a review of the Tier 1 decision by this division of the Tribunal, stating in his application:
I am making this application for a reason that my wife is not working and she can’t find a job at the moment.
I am not receiving enough money to support both of us, paying bills and buying groceries.
I would just like to inform the AAT’s to please somehow increase my payment, so that I don’t have to live in stress and worry, since I am an old man.
Please I hope my letter will be taken into consideration.
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Mohammad and Mrs Nazmun also gave oral evidence at the hearing of this matter.
In a letter provided to the Department, Dr Nicholas Barraclough, Renal Registrar, Department of Nephrology St Vincent Hospital certified that Mr Mohammed has the condition of end stage renal failure which requires him to be on dialysis.
A Departmental file note records: Customer has provided a MOD P on 27/08/2019 and was married on 18/03/2019. As a result a $8036.90 debt has been raised due to being paid single rate of AGE.
A Departmental file note records:
Customer is residing in Australia: Yes
Txt: Reason S24 assessment required: Ý Customer had advised the partner is actively looking for work and is being advised they are not successful due to limited time in AU, partner is also unable to claim payments other than test for SPL benefits if Section 24 not applicable, customer has advised with paying the housing rent and food and bills for 2 people is not possible as they are now supporting 2 people on the single payment. partner is still on bridging visa¨
A Departmental file note records: Customer entitled to the partnered rate of payment. Customer advised of marital status via letter received on 24 APR 2019. This was not processed until 8 AUGUST 2019. The delay in processing caused a large part of debt.
At the hearing, Mr Mohammad advised the Tribunal that:
·He is in very poor health suffering from end stage renal failure, diabetes and a heart condition. He takes a great deal of medication for his conditions which costs about $50 a fortnight for prescriptions and he also requires numerous non-prescription drugs, such as vitamin D. He attends dialysis three times a week for five hours at Dandenong hospital, that he previously did dialysis in the home but that this was no longer strong enough and he now had to attend hospital, this change had occurred prior to his marriage.
·He is in a very precarious financial situation as he simply cannot afford to survive on half of his previous rate of age pension. Prior to his marriage and the reduction in his age pension he could manage financially, he could put things on his credit card and pay it off, but he now has about $10,000 owing on his credit card and has had to borrow from family to meet his expenses.
·His gross rate of age pension per fortnight was $711.18, however net was $354.60 as there were many deductions: $165.90 for rent; gas $60, electricity $40 and $100 was being withheld for debt owed for period he was paid at single rate when he should have been on couples rate.
·He had purchased a second-hand car for about $6,000 as he needed to get himself to dialysis three times a week and had borrowed money to cover the $7,000 application costs for his wife’s partner visa.
·Having a wife is a very nice thing, it is wonderful to have someone to talk to and help with his care. He met his wife through her brother, and they had known each other for a while, talking a lot when he visited Fiji and she had made a great deal of difference in his life.
·His wife provides him with a great deal of care, she prepares all his meals, does all the housework and massages him especially when he returns home after receiving dialysis. He had managed to put on weight thanks to his wife’s cooking and the hospital staff had noticed how much better he was looking.
·On days he does not attend dialysis he and his wife go for walks in the park, they go shopping and for a ride in the car – they can’t do much at present because of COVID-19 so it was good to have the company.
Mrs Nazmun advised the Tribunal that:
·She was keen to work and had concentrated on finding work with a law firm as she had a great deal of experience in this area, having worked as an administrative assistant for over 26 years in Fijian law firms.
·She had been actively looking for work for over 12 months, first through an agency and then cold calling all the law firms in their area, she noted there were a great many law firms in Dandenong which was a 15 minute bus ride from their home and she had contacted many of them.
·At first through the agency she had no luck finding work, as she was constantly advised she had no relevant Australian experience, and no one was prepared to train her in the local systems.
·She had found work for two days a week at a firm in Dandenong and they were prepared to train her on the LEAP system but this had ended as offices went into lockdown and she has no idea if she will get more work in the future.
·She provides daily care to her husband, as he can’t do anything, he is totally dependent on her; she gets his breakfast, lunch, dinner, vacuums, washes and cleans. That when he eats, he is very messy, and she must clean up after him. That on the days he has dialysis he needs a great deal of help, when he returns from treatment he is out of power, she has his lunch ready and then he rests for the remainder of the day.
·When she was working, she had some money and could help with buying the groceries but now her reserves have run out and she has no other financial resources.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Mohammad:
a)is a member of a couple; and
b)whether there are special reasons to treat him and the other person as not being a member of a couple.
RELEVANT LEGISLATION
Section 4 of the Social Security Act 1991 (the Act) defines Family relationships–couples:
(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.
Section 24 of the Act provides that a person may be treated as not being a member of a couple (subsection 4(2)):
(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.
Section 1064 of the Act sets out the method of calculation of an age pension and it specifies that a member of a couple receives a lower rate of payment than that of a person who is not a member of a couple:
1064 Rate of age, disability support, wife pensions and carer payment (people who are not blind)
(1) The rate of:
(a) age pension; and
…
is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.
…
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 and 1064‑G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis (see section 1070V).
Module B -- Maximum basic rate
1064‑B1 A person’s maximum basic rate depends on the person’s family situation. Work out which family situation in Table B applies to the person. The maximum basic rate is the corresponding amount in column 3.
The Guide to Social Security Law relevantly provides:
2.2.5.50 Discretion to Treat a Person as Not Being a Member of a Couple for a Special Reason
Summary
SSAct section 24 enables a delegate to decide that there is a 'special reason' NOT to treat a person as a member of a couple (1.1.M.120). This is a discretionary area of law and only applies in limited situations.
A person is a member of a couple under the SSAct if they are living with another person as their partner, where both people are over the age of consent (applicable to the relevant state or territory), are living together on a permanent or indefinite basis, are not in a prohibited relationship (subsections 4(12) and 4(13)), and are either:
·legally married, OR…
In situations where the department considers that there is a special reason in the particular instance, and it would be unfair to administer the rate of payment, or income and assets test provisions that apply to couples, the Secretary can determine, under the provisions of section 24, that the person should not be treated as a member of a couple.
Act reference: SSAct section 4(12) to section 4(13) Prohibited relationship
Explanation
Case law provides some direction as to the purpose of this legislation. Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies.
Section 24 is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted.
When section 24 is applied, the person is deemed NOT to be a member of a couple and is treated as a 'single' person for all purposes of the SSAct. As a result, the person is paid the single rate of payment and only their individual income and assets are included in the assessment of the rate of their payment.
…
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 and Secretary, Department of Social Security, 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.
Explanation: If it is reasonably within the individual or couple's control to improve their circumstances without section 24, generally this should be explored first.
Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:
·Is there a special reason to be considered in this couple's circumstances?
·Is there a lack of being able to pool resources for the couple as a result of the circumstances?
·Is there financial difficulty as a result of the couple's circumstances?
Is there a special reason to be considered in this couple's circumstances?
This discretion can ONLY be exercised 'for a special reason in the particular case'. In general, the circumstances must be unusual, uncommon, abnormal or exceptional. It is the context which generally determines whether the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
Is there a lack of being able to pool resources for the couple as a result of the circumstances?
Members of a couple in ordinary circumstances will pool their resources and share their expenses, making it cheaper for them to live than if they were 2 single people. A significant body of case law has established that the inability to pool resources for their mutual benefit is a special reason to exercise the discretion in section 24.
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. Consideration should be given to whether either member of the couple has access to any social security or other support that has not been explored or realised. Generally a person would be expected to claim any benefits to which they are entitled.
CONTENTIONS

Mr Mohammad does not dispute that he is a member of a couple in accordance with section 24 of the Act as he is legally married to and residing with his wife. The Tribunal finds that Mr Mohammad is a member of a couple.
The Respondent submitted that Mr Mohammad was a member of a couple with Mrs Nazmun from 18 March 2019 and there were no special reasons to treat them otherwise under section 24 of the Act.
Is there a special reason to be considered in this couple's circumstances?
Mr Mohammad simply argued that he and his wife cannot survive on the couple rate of the age pension. He is very unwell, needs constant care, has no other financial reserves as his superannuation had finished long ago and he is an old man. Also, his wife has not been able to find work, she has no rights to any benefits, the cost of her visa application was significant and even if she got work, he would struggle as he needs her help particularly on the days he has dialysis. He stated that having a wife was nice and had made his life easier in many ways but financially it was very difficult.
In essence, Mr Mohammad put to the Tribunal that he believed as a whole, his situation was unusual and/or uncommon which made it markedly different from the usual run of cases and for the reasons outlined above, should be considered special.
The Respondent contended that Mr Mohammad’s circumstances were not, as a whole, unusual or uncommon to make them markedly different from the usual run of cases. Whilst accepting Mr Mohammad did suffer from ill health, they argued it was not unusual or uncommon for people on age pension to suffer from health issues and there is no evidence that Mr Mohammad is worse than other income support recipients on age pension. The Respondent took the Tribunal to the matter of Pascoe and Secretary, Department of Social Services [2013] AATA 745, where the member held that:
With regard to Ms Pascoe’s health issues, there are three things to say. Firstly, for people in receipt of disability support pension, impaired function and poor health are common. So, too, are the consequential effects of disability on families relying on income support payments, in terms of household chores and finances for example. Families of this kind commonly face financial difficulties, struggling to cope in straitened circumstances. To that extent Ms Pascoe’s circumstances are not unusual…
Is there a lack of being able to pool resources for the couple as a result of the circumstances?
Mr Mohammad advised his wife had no resources which they could pool and no prospect of finding any work, particularly in the current state of emergency. He also advised that his reduced rate of age pension was simply not enough for them to live on, particularly given his necessary medical expenses.
The Respondent contended there was no evidence that Mr Mohammad has an inability to pool resources with Mrs Nazmun as he had not produced documentation about his financial position, particularly his expenditure.
The Respondent accepted that Mrs Nazmun is not residentially qualified for an income support payment, that she is ineligible for special benefit, has no income and has no assets.
The Respondent submitted the fact that Mrs Nazmun has no income or assets is not a special reason to exercise the discretion under section 24 of the Act. Referring the Tribunal to the matter of Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, where the Member found: ‘a finding that Mrs Holt brought no assets or income into the marriage is not sufficient on its own to justify a finding that Mr Holt should receive the Newstart allowance at the single rate’.
The Respondent contended that as Mrs Nazmun has the legal and practical ability to obtain work and contribute to the couple’s pool of resources, the discretion under section 24 should not be exercised.
The Respondent contended that there was no legal or practical reason why Mrs Nazmun would be unable to work because:
(a)There was no evidence that Mrs Nazmun’s bridging visas (010 and 020) had restrictions that prevent her from legally working in Australia. Her attempts to find work were indicative that no restrictions were imposed and during the hearing had advised she had been successful in gaining employment, albeit short lived.
(b)Mrs Nazmun had given evidence that she wanted to work, given her previous administrative experience in law firms in Fiji and had been actively looking for work for over 12 months.
(c)There is no evidence of language barriers or health issues that prevents Mrs Nazmun from working and her previous employment experience in law firms in Fiji indicated she is an intelligent and capable person with a capacity to obtain employment.
(d)The fact that Mrs Nazmun has been unable to find work was not a reason, on its own, to find that she has a practical inability to work. It is not uncommon for newly arrived migrants to take time to find work in Australia. It was not open to the Tribunal to find that Mrs Nazmun has a practical inability to obtain employment when she has only applied for a handful of jobs in one industry. While the global pandemic may have caused some hardship in finding work, this is not uncommon or unusual as the effects are experienced by most people in Australia and was not a relevant factor on 18 March 2019.
(e)In the similar matter of Nicolaas; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2009] AATA 416, Mr Nicolaas had argued that he should benefit from the discretion in section 24 because his wife was unable to access social security benefits because of her immigration status, had difficulty finding a job in Australia and did not have assets of her own. The Tribunal, in refusing to exercise the discretion under section 24, held:
I accept Mrs Nicolaas is practically unable to access social security benefits because the special benefit is only paid in limited circumstances which do not apply here. I also accept her residency status hampers her search for work and makes it more expensive for her to obtain qualifications that might assist her to get a job. Even so, before I can exercise the discretion in Mr Nicolaas’s favour, I must be satisfied these reasons amount to “special reasons” within the meaning of s 24 of the Act. If I am satisfied about that, I must then consider whether I should exercise the discretion having regard to all of the other circumstances of the case.
The inability of a spouse to access social security benefits might constitute “special reasons” for the purposes of s 24 of the Act. I would be less inclined to treat that disability as a special reason or give it any weight in the exercise of the discretion, if the spouse is able to make a contribution to the household from another source. In this case, Mrs Nicolaas does have the capacity to obtain paid work. She is an intelligent person of working age. She indicated a preparedness to move in order to get a job. Indeed, she gave evidence that she was recently interviewed for a contract position in Darwin.
(f)Mr Mohammad’s desire for his wife not to work because he wants her to stay home to take care of him and the household chores did not constitute a special reason. While there is no dispute that Mr Mohammad suffers from end stage renal failure and is required to be on dialysis, there is no evidence that he requires constant care to such an extent to prevent Mrs Nazmun from working. In the matter of Sorrenti and Secretary, Department of Social Services [2018] AATA 4301, Mr Sorrenti argued that he needed his wife to stay at home to care for him and for reasons of his health, he could not care for himself and his child. The Tribunal, found that Mrs Sorrenti was able to work and in refusing to exercise the discretion under section 24, held that:
Mr Sorrenti has provided medical evidence of the range of health conditions he has, and the fact that, prior to transferring to the age pension, he had been granted a disability support pension because of his inability to work. However, the Tribunal is not persuaded that, on the evidence, this suite of medical conditions is sufficiently distinguishable from the range of health conditions that other persons on the age pension might be typically expected to have, or to acquire In particular, while some of the challenges faced by Mr Sorrenti because of his various ailments are noted by Dr Lo Giudice in the Carer Payment medical assessment, Mr Sorrenti is not, for instance, confined to his bed or, indeed, to his residence. There is no evidence that someone needs to be with him, or even near at hand, provided he has general daily assistance with dressing and bathing……..
I am not persuaded on the evidence that Mr Sorrenti’s medical conditions are such that they combine to prevent Mrs Sorrenti working.
The Respondent argued that Mrs Nazmun did not have a practicable inability to work and her circumstances can be distinguished from other cases which have found that a member of a couple had a practical inability to work in that:
(i)Mrs Nazmun does not live in a remote or rural location where employment opportunities may be harder to find;
(ii)There is no evidence that Mrs Nazmun has any health, language or any other reason that limits her capacity to work; and
(iii)The couple is not separated (physically or otherwise) by illness or imprisonment or any other reason.
The Respondent argued that an inability to pool resources is not solely determinative of the application of section 24, noting the finding in Crem and Secretary, Department of Social Services [2019] AATA 5520 where the Member stated that:
Inability to pool resources is an important consideration as it triggers the availability of the discretion. However, inability to pool resources alone is not solely determinative; otherwise the terms of the statute would expressly state so rather than use the wider and more open term, “special reasons”.
While Mr Crem’s partner was unable to pool resources with Mr Crem, the Tribunal pointed out that factor alone did not render Mr Crem’s circumstances unusual or uncommon:
Whilst it is true that Mr Madrid is unable to pool financial resources with Mr Crem, this alone in my view does not make Mr Crem’s circumstances unusual, uncommon or abnormal. The authorities are littered with cases of examples where one member of a couple provides the bulk or all of financial resources for support of the couple. Further the capacity for economies of scale available to a couple exists in Mr Crem’s case while Mr Madrid is in Australia and resides with him in the home at Deloraine.
Is there financial difficulty as a result of the couple's circumstances?
Mr Mohammad argued that his financial circumstances were severe. He stated that it was highly unlikely his wife could find work and even if she did manage to find work, she could not work full time as she provides care to him constantly and she is required to be with him on the three days he has dialysis.
The Respondent acknowledged that Mr Mohammad did not have any assets or savings, but argued that financial situation alone is not a special reason to exercise the discretion under section 24 and there was no evidence that Mr Mohammad’s financial circumstances are significantly worse than other income support recipients. Noting the determination in Wilson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2011] AATA 554 where the Member said:
Financial hardship has sometimes operated as a contributing factor where the pooling of resources has also been prevented, but it has rarely been held to warrant the exercise of the discretion on its own.[10] In Re Malajew and Secretary To the Department of Social Security,[11] the Tribunal suggested that normal financial hardship, of itself, would be unlikely to be sufficient for the discretion to be exercised: ‘In order for financial hardship to be "special", it must be more severe than in the usual sort of case considered under the Act.
The Respondent contended that, given Mrs Nazmun's ability to earn income from employment, the alleged impecuniosity does not preclude her sharing resources with her husband and is not a special reason to treat the Applicant as not a member of a couple. Referring the Tribunal to the matter of Pascoe, where the Tribunal found that impecuniosity may be a practical reason why the person may not be treated as sharing resources, or where it may not be reasonable for the other member of the couple to be expected to seek their support:
To this I would add that impecuniosity, where one member of a couple has nothing to contribute to the pool of resources by way of income or assets, may be a practical reason why the person may not be treated as sharing resources, or where it may not be reasonable for the other member of the couple to be expected to seek their support.
The Respondent also referred to the matter of Bota and Secretary, Department of Social Services [2018] AATA 2508 which approved of the Pascoe decision about the relevance of impecuniosity:
Impecuniosity may be taken as an example of the external and irresistible factors which makes the pooling impossible
CONSIDERATION
The Tribunal finds that taking all the circumstances into account, special circumstances exist in this particular case.
The Tribunal considers that Mr Mohammad’s end stage renal failure and his reliance on dialysis three times a week for five hours is not the run of the mill health issues experienced by the majority of aged pensioners. The Tribunal finds that Mr Mohammad’s complex ill health warrants special consideration, especially in light of the care he requires from his wife, particularly after treatment. The Tribunal also considers Mr Mohammad’s need to purchase a car to travel to his required treatment, has compounded his financial circumstances. Mr Mohammad can no longer undertake dialysis in the home because of the advanced nature of his disease.
The Tribunal considers Mr Mohammad and Mrs Nazmun are unable to pool resources in the relevant sense as Mrs Nazmun has no assets, income or ability to access any social security benefits. The Tribunal does not find Mrs Nazmun has an ability to earn income from ongoing employment. The Tribunal notes Mrs Nazmun does not have any language barriers to finding work in Australia and is not suffering any illness but the Tribunal finds Mrs Nazmun’s age, her lack of any Australian work experience and the lock down in Melbourne (although the Tribunal acknowledges this is not a relevant factor for the entire period in question) would be significant barriers to her finding ongoing work. The Tribunal, whilst mindful that Mrs Nazmun had testified she had secured employment for two days a week at a law firm prior to the lockdown, notes she had in fact only worked for two days a week and has had no work since or any ability to secure any employment.
The Tribunal finds Mrs Nazmun’s impecuniosity did preclude her sharing resources with her husband. The Tribunal is extremely mindful of the recent decision of Riethmuller J in the matter of Ahamed v Secretary, Department of Social Services [2020] FCCA 1245 where His Honour found at [13] – [21]:
There is a series of cases where the circumstances of the parties, on a practical level, meant that they were unable to pool resources in the relevant sense:
a) In Hawkins and Secretary, Department of Social Security [1996] AATA 927; (1996) 44 ALD 651 ('Hawkins Case') the appellant's wife was ineligible to work in Australia, ineligible for a pension and had no savings or assets. Blow DP (as his Honour then was) said (at paragraph [6]):
6.           … Under s.1064-B1 of the Act, the rate of pension payable to a member of an illness separated couple, a member of a respite care couple, or a partnered person whose partner is in gaol, is the same as that payable to a pensioner who is not a member of a couple. The evident policy behind the relevant legislative provisions is that ordinarily couples should be expected to pool their resources and practise economies of scale; that those expectations should not apply to couples who are separated by illness or imprisonment; but that there would have to be some special reason not to apply those expectations to members of other couples. In fact I was referred to the explanatory memorandum to the Social Security Legislation Amendment Bill (No. 4) 1991, which included the following paragraph:
"There is no clear justification for paying a higher rate of pension/benefit or pharmaceutical allowance to a member of a couple simply because the partner does not also receive income support. For example, the partner might still be earning a living in the workforce (eg, where a wife qualifies for age pension ahead of her husband because of the age differential) or the partner may have foreign pension income or, yet again, the partner may be prevented from receiving income support because he or she is on strike."
Blow DP went on to find (at paragraph [14]) that:
14. One must not lose sight of the fact that the discretion has to be exercised in the context of the Social Security Act, and that therefore the individuals involved will ordinarily be impecunious. However I believe that the extreme impecuniosity of the appellant's wife, coupled with her inability lawfully to earn any income, are special factors which take this case out of the ordinary run of cases. This is a case in which one could not reasonably, or even possibly, expect there to be a pooling of resources by husband and wife. The wife has no resources at all. I am therefore satisfied that the appellant's wife's total lack of resources constitutes a special reason in this particular case for the appellant not to be treated as a member of couple.
b) In Eugeniusz Galewski and Secretary, Department of Social Security [1998] AATA 908; (1998) 54 ALD 569, ('Galewski's case') Senior Member Muller applied the reasoning in Hawkins' Case (at paragraph [11]) and found that 'the usual advantages of pooling of resources for married couples do not apply in Mr. Galewski's case because of his wife's lack of resources, income and prospects': see paragraph [13].
c) In Boscolo v Secretary, Department of Social Security [1999] FCA 106, French J (as his Honour then was) considered the provision in some detail, saying:
18.         The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. … The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322. In Beadle (supra) the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
That matter was remitted for reconsideration, in circumstances where the appellant's wife remained in Perth while the appellant moved to Sydney to pursue a family law dispute with respect to his children from a former relationship.
d) In Cocks v Centrelink [2000] FCA 1248, O'Loughlin J found that the appellant would not benefit from a pooling of resources, even if he lived with his wife in the Philippines, 'for she has nothing to contribute to the pool': see paragraph [22].
In other cases, a practical assessment of the parties circumstances showed a real capacity to pool resources:
a) In Nicolaas; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2009] AATA 416, the appellant's wife came from overseas but she had an earning capacity.
b) In Brawn and Secretary, Department of Social Services (Social Services second review) [2017] AATA 873 the appellant was treated as being a member of a couple when residing with his wife in Vietnam, as she had employment in Vietnam.
c) In Ekert and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 701, the appellant's wife had no work rights, however the couple had substantial savings.
d) In Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 ('Kazmierczak's Case') and Pascoe and Secretary, Department of Social Services [2013] AATA 745 ('Pascoe's Case') the appellant's partner had an income that could be shared, even though the appellant was reluctant to ask for or the partner to provide support. In all of these cases there was, on a practical level either assets or potential earnings to share.
A number of cases have emphasised the practical application of the test:
a) In Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 ('Holt's Case') Professor RM Creyke (at paragraph [32]), pointed out that the section must be interpreted in context, noting the terms of the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 which says (at page 17):
32. … 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.
34.         These extracts indicate two reasons for the partnered rate: that there are economies of scale in two people living together; and that because there has been a pooling of resources, the two persons are better off financially because they pool their joint income and assets.
Prof Creyke found that the appellant's wife had no resources or earning capacity and therefore section 24 of the Social Security Act was satisfied.
b) In Kazmierczak's Case Barker J said (at paragraphs [42] and [42]):
41. … there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that where two 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.
42. It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.
The desire of the appellant in Kazmierczak's Case to avoid having to seek support from his wife was insufficient to satisfy section 24.
c) Recently, in Pascoe's Case the Member said (at paragraph [38]), that:
[… ] where one member of a couple has nothing to contribute to the pool of resources by way of income or assets, may be a practical reason why the person may not be treated as sharing resources, or where it may not be reasonable for the other member of the couple to be expected to seek their support.
Ms Pascoe had sought a single rate of benefit, even though she lived with her partner who worked and received a partial benefit. The thrust of the argument, which was rejected, was that the couple kept their finances separate and that Ms Pascoe's partner did not provide any financial support.
What emerges from these cases is that couples are expected to pool resources. In the ordinary run of cases this presents few difficulties for decision makers, as a spouse will be entitled to half of a couple's pension unless they have other resources or income (whatever category of benefit or pension one considers). That a couple in this situation have expenses greater than income, or choose lifestyle arrangements that cost more than their income amount, is not generally a special circumstance. Where, however, one member of the couple has no work rights and no assets or pension, the section is usually satisfied. The difficulty arises where the lack of pension or employment is not simply a legal impediment (such as a visa condition) but rather a practical one. In these circumstances careful consideration of the specific circumstances of the couple is required.
In the context of the appellant's case the question arose as to whether his wife could in practice work, given her lack of English and illness, and if not, whether she was actually entitled to some form of government benefit. As she had no resources of her own, at least one of these factors was necessary to enable her, on a practical level, to pool her resources with the appellant. This question is not sufficiently answered by merely pointing to a visa condition that provides legal permission to engage in employment, nor a legal discretion that may result in payment of a benefit. Rather, some consideration was required of whether the appellant's wife could 'on a practical level' work or whether she was likely to fall within the discretion for payment of a benefit or pension. Where both parties are Australian citizens living in Australia this question generally admits of a simple answer, as anyone without assets and unable to find work is generally entitled to a form of benefit (although see the unusual features of Holt's Case).
This was not a case where it was suggested that the wife had other financial resources (such as assets or a foreign pension) or where she was making a lifestyle choice to stay at home or go on strike. In this case, although the Tribunal found that the appellant's wife was not precluded by law from working, it did not address whether she could, 'on a practical level', work to earn an income that could potentially be shared. In the first tier review the member said that, '[t]here is no dispute that his wife was able to work, notwithstanding she was unable to find work': see paragraph [9]. The appellant's wife's capacity to earn an income, as distinct from her legal rights to engage in employment, was not addressed in the Tribunal decision. Unfortunately, there is no discussion of the evidence that the Tribunal member relied upon to reach these conclusions.
In the context of this case the real question was whether there was a practical reason that the appellant's wife could not be treated as sharing her income and assets with him. The practical problem advanced before the Member is that the appellant's wife had no income earning capacity, nor any assets. On the appellant's case his wife could not work due to a lack of language skills and illness. The practical inability of a spouse to earn an income was sufficient in Galewski's Case, Cock's Case and Holt's Case to enliven the discretion. The Tribunal was required to make findings about the extent (if any) of the wife's earning capacity and consider this in determining the exercise of the discretion under section 24 of the Social Security Act.

The Tribunal finds Mrs Nazmun’s total lack of resources and inability to pool resources forms part of a finding that there is a special reason, in this particular case, for Mr Mohammad not to be treated as a member of couple.
The Tribunal finds that Mr Mohammad and Mrs Nazmun do not have any assets or savings and that they have significant debt and are in financial difficulty. The Tribunal also finds that Mr Mohammad is not experiencing the economies of scale when two people are living together; there is no ability to pool resources, and he is financially worse off because his income has diminished whilst his out goings has increased.
The Tribunal notes Mr Mohammad’s financial situation has been compounded by a debt raised by the Department as they had not acted on Mr Mohammad’s advice that he was a member of a couple for some five months, resulting in his debt to the Department. Whilst there was little evidence that Mr Mohammad’s financial circumstances are significantly worse than other income support recipients, the Tribunal notes that Mr Mohammad has significant out goings for necessary medical requirements, a significant credit card debt and no other earning capacity.
The Tribunal, whilst recognising that Mr Mohammad’s financial situation alone is not a special reason to exercise the discretion under section 24, finds Mr Mohammad’s strained financial circumstances together with his complex health issues (which necessitate assistance from Mrs Nazmun) and Mrs Nazmun’s lack of resources and inability to pool resources gives rise to a finding of that there is a special reason in this particular case for Mr Mohammad not to be treated as a member of couple.
The Tribunal was satisfied in all the circumstances that Mr Mohammad should, for a special reason in this particular case, not be treated as a member of a couple and therefore, meets the requirements of section 24 of the Act.
DECISION
The decision under review is set aside and remitted to the decision-maker for reconsideration of the Applicant’s entitlement to the age pension in accordance with a direction from the Tribunal pursuant to section 43(1)(c)(ii) of the AAT Act that Mr Mohammad meets the requirements of section 24 of the Social Security Act 1991.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, AO Member

........................[sgd]................................................
Dated: 2 December 2020

Date of hearing: 2 October 2000

Applicant: Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Tim Noonan

Services Australia