Mouradian and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 317

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3578

GENERAL ADMINISTRATIVE DIVISION		)
Re		VIKEIN MOURADIAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms Regina Perton, Member

Date13 May 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.................[signed].........................

Member

SOCIAL SECURITY – disability support pension – applicant partnered – resultant change from single to married rate – wife not eligible for social security benefit – whether special reason for not being treated as a member of a couple – substantial savings – decision under review affirmed.

Social Security Act 1991 ss 24, 1064

Social Security Legislation Amendment Act (No 4) 1991

Boscolo v Secretary, Department of Social Security [1999] FCA 106

Ekert and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 701

Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nicolaas [2009] AATA 416

REASONS FOR DECISION

13 May 2011 Ms Regina Perton, Member

1.      Vikein Mouradian has been in receipt of disability support pension (DSP) at the single rate from July 1996.  He sponsored Ms Pham Thi Thu Ha from Vietnam as a future partner.  She arrived in Australia on a prospective spouse visa in December 2009.  Mr Mouradian and Ms Pham were married on 27 January 2010.

2.      Mr Mouradian advised Centrelink of his changed marital status in early March 2010.  He indicated that his wife had no income and submitted that he should continue to be paid DSP at the single rate.  On 26 March 2010 Centrelink, which administers DSP for the respondent, decided that Mr Mouradian was to be paid at the partnered rate of DSP because he was a member of a couple.

3.      Mr Mouradian sought an internal review of the decision.  On 30 June 2010 an authorised review officer (ARO) affirmed the decision that Mr Mouradian be paid DSP at the married rate.  Mr Mouradian sought review of that decision by the Social Security Appeals Tribunal (SSAT).  On 3 August 2010 the SSAT affirmed the decision of the ARO.  On 23 August 2010 Mr Mouradian lodged an application with the Tribunal for review of the SSAT decision.

RELEVANT LEGISLATION

4. Section 1064 of the Act sets out the rate at which DSP is paid. A member of a couple is paid a lower rate of pension than a single person.

5. Section 24 of the Act provides for a person not being treated as a member of a couple despite being married:

(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.

…

6.      The Explanatory Memorandum describing the rationale for amendments made under the Social Security Legislation Amendment Act (No 4) 1991 which brought in the provision that has impacted on Mr Mouradian stated, amongst other things:

The proposed amendment will limit the rate of pension/benefit payable to a member of a couple with a non-pensioner/non-beneficiary partner to the rate payable to a member of a couple with a pensioner/beneficiary partner…  The proposal will only apply to a partnered pensioner/beneficiary who is living with his or her non-recipient partner…

…

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… or … the partner may be prevented from receiving income support…

On the other hand, 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.

IS THERE A SPECIAL REASON FOR MR MOURADIAN NOT TO BE TREATED AS A MEMBER OF A COUPLE?

7.      Mr Mouradian and his wife live in a house owned outright by Mr Mouradian.  He has approximately $70,000 in bank accounts.  Mr Mouradian said it was unfair that his DSP payments were reduced when there are now two people to provide for on less income than when he only had to provide for himself.

8.      Ms Pham has no assets.  She arrived in Australia with a small amount of money, which she has since spent.  Ms Pham arrived on a prospective spouse visa.  She now holds a temporary spouse visa.  Her visa status precludes Ms Pham from eligibility for any social security payment other than special benefit until she receives a permanent spouse visa.  Ms Pham applied for special benefit in August 2010.  Her application was rejected, as she did not meet the mandatory hardship provisions attached to special benefit because she and her husband had access to more than $5000.  Ms Pham has not yet obtained employment, although it is unclear whether she has been actively seeking work.

9.      In Boscolo v Secretary, Department of Social Security [1999] FCA 106, French J (as he was then) pointed out that (at [20]):

It is of importance … to note that s 24 requires the decision-maker to focus on the position of one person, not the couple, and to assess whether the person should for a special reason not be treated as a member of a couple…

10.     A number of cases where the Tribunal has considered circumstances similar to those of Mr Mouradian were raised.  These included Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nicolaas [2009] AATA 416 and Ekert and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 701 where age pension payments and DSP payments were reduced to the married rate. In both cases, a single applicant had married and his rate of payment was reduced to the married rate. In both matters, the Tribunal determined that the circumstances did not constitute a special reason for the pension recipient to be treated as not being a member of a couple.

11.     Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 is an example of a case where the Tribunal determined that a recipient of Newstart Allowance should not be treated as a member of a couple. In that case, the remote location of the couple, difficulties in travel and their difficult financial situation were strong considerations.

12. Mr Mouradian cited a number of cases, legislative provisions and other sources, including the text of an address by the Hon J J Spigelman AC, Chief Justice of New South Wales, on 1 September 2010 on developments in statutory interpretation, as a basis for the Tribunal to exercise its discretion in his favour. However, there is no ambiguity in the wording of s 24 of the Act. Moreover, the Explanatory Memorandum makes it clear that it was a deliberate decision of Parliament to pay persons in Mr Mouradian’s situation the married rate of pension once he acquired a partner.

13.     The Tribunal understands the frustration experienced by Mr Mouradian in having his payments reduced.  However, given his financial situation, which includes considerable funds in the bank, and his decision to sponsor a wife who would not be eligible for social security benefits on arrival, the Tribunal is not satisfied that his circumstances constitute a special reason to treat him as not being a member of the couple.

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

Ms Regina Perton, Member

Signed: ……………...……[signed]…..…………..………..………

Associate  Grace Horzitski

Date of hearing:  4 March 2011

Date of decision:  13 May 2011

Advocate for the applicant:          Self-represented
Advocate for the respondent:       Mr A Carson, Centrelink Legal Services