Norton and Secretary, Department of Family and Community Services
[2003] AATA 730
•1 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 730
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/352
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY NORTON Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date1 August 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements - age pension – appropriate rate of payment – whether applicant to be treated as a member of a couple
Social Security Act 1991 ss 4, 24, 1064, 1064B, 1064-G
REASONS FOR DECISION
1 August 2003 Mr R G Kenny, Member Background
1. Barry Norton (the applicant) was in receipt of age pension at the single rate, which is payable under the Social Security Act 1991 (the Act), when he was married on 5 February 2002. He was then paid at the partnered rate. In April 2002, he approached Centrelink and requested that he be paid at the single rate of pension but this was rejected by a delegate of Centrelink, on behalf of the Secretary, Department of Family and Community Services (the respondent). On 22 October 2002, an authorised review officer, in reliance on section 24 of the Act, decided to treat Mr Norton as a single person and he set aside the initial decision and substituted a decision to pay the applicant at the single rate.
2. The maximum single rate of age pension is higher than the maximum partnered rate but each is dependent on the value of a person’s assets with different levels being set for the two rates of pension. The decision of the authorised review officer resulted in a decrease in the applicant’s payments from $361.30 on 14 October 2002 to $322.70 on 28 October 2002 because the value of his assets exceeded the limit for a single person, although they did not do so for assessment on a partnered basis. After the applicant requested a review of this decision, Centrelink resumed paying him at the married rate from the next payday, and paid arrears for the short period in respect of which the decreased rate had been paid.
3. The applicant sought to have the matter reviewed by the Social Security Appeals Tribunal. This was an application for review of the decision made on 22 October 2002 by the authorised review officer and the Social Security Appeals Tribunal set aside that decision. It substituted its decision that the applicant be paid at the partnered rate, thereby formally recognising what the respondent had done administratively by restoring the applicant to the position of receiving payments at the partnered rate. On 16 April 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) (see T1).
Appearances
4. At the hearing, the applicant was not represented. The respondent was represented by Ms H Wallis-Dunn, advocate with the respondent’s Service Recovery Team.
5. In evidence were the following:
§exhibit 1 documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents (T1-T19));
§exhibit 2 a summary of age pension payments made to the applicant from 15 October 2001 until 21 July 2003;
§exhibit 3 a record of age pension payments for 14 October 2002 and 28 October 2002; and
§exhibit 4 a guide to Commonwealth Government payments.
Issues and Legislation
6. The facts in this matter are not in issue. The applicant contends that, because his wife is not eligible for any social security payment due to her being subject to a newly arrived resident's waiting period, he should be paid age pension at the single rate but be subject to the partnered assets test. That is the issue to be resolved and the following provisions of the Act are relevant:
“4(1) In this Act, unless the contrary intention appears:
‘approved respite care’ has the meaning given by subsection (9);
‘illness separated couple’ has the meaning given by subsection (7);
‘member of a couple’ has the meaning given by subsections (2), (3), (3A), (6) and (6A);
‘partner’, in relation to a person who is a member of a couple, means the other member of the couple;
‘partnered’ has the meaning given by subsection (11);
‘partnered (partner getting benefit)’ has the meaning given by subsection (11);
‘partnered (partner getting neither pension nor benefit)’ has the meaning given by subsection (11);
‘partnered (partner getting pension)’ has the meaning given by subsection (11);
‘partnered (partner getting pension or benefit)’ has the meaning given by subsection (11);
‘partnered (partner in gaol)’ has the meaning given by subsection (11);
‘respite care couple’ has the meaning given by subsection (8).
Member of a couple-general
4(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; or
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the "partner");
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961. …
4(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
Illness separated couple
4(7) Where 2 people are members of a couple, they are members of an illness separated couple if:
(a) they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and
(b) because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and
(c) that inability is likely to continue indefinitely.
Respite care couple
4(8) Where 2 people are members of a couple, they are members of a respite care couple if:
(a) one of the members of the couple has entered approved respite care; and
(b) the member who has entered the approved respite care has remained, or is likely to remain, in that care for at least 14 consecutive days.
4(9) For the purpose of this Act, a person is in approved respite care on a particular day if the person is eligible for a respite care supplement in respect of that day under section 44-12 of the Aged Care Act 1997.
Temporarily separated couple
4(9A) Two people are members of a temporarily separated couple if they:
(a) are members of a couple for the purposes of this Act; and
(b) are legally married to each other; and
(c) are living separately and apart from each other but not on a permanent or indefinite basis; and
(d) are neither an illness separated nor a respite care couple. …
4(11) For the purposes of this Act:
(a) a person is partnered if the person is a member of a couple; and
(b) a person is partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person's partner:
(i) is not receiving a social security pension; and
(ii) is not receiving a social security benefit; and
(iii) is not receiving a service pension or income support supplement; and
(c) a person is partnered (partner getting pension or benefit) if the person is a member of a couple and the person's partner is receiving:
(i) a social security pension; or
(ii) a social security benefit; or
(iii) a service pension or income support supplement; and
(d) a person is partnered (partner getting pension) if the person is a member of a couple and the person's partner is receiving:
(i) a social security pension; or
(ii) a service pension or income support supplement; and
(e) a person is partnered (partner getting benefit) if the person is a member of a couple and the person's partner is receiving a social security benefit; and
(f) a person is partnered (partner in gaol) if the person is a member of a couple and the person's partner is:
(i) in gaol; or
(ii) undergoing psychiatric confinement because the partner has been charged with committing an offence.
…
Person may be treated as not being a member of a couple (subsection 4(2))
24(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.
Rate of age … pension
1064(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(2) Subsection (1) does not apply to a person's age or disability support pension or to a person's disability wage supplement if the person is permanently blind.
…
MODULE B-MAXIMUM BASIC RATE
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.
TABLE B: MAXIMUM BASIC RATES
Column 1 Column 2 Column 3 Column 4 Item Person's family situation Rate per year Rate per f’night 1 not member of couple $10,740.60 $413.10 2 Partnered $8,970.00 $345.00 3 member of an illness separated couple $10,740.60 $413.10 4 member of respite care couple $10,740.60 $413.10 5 partnered (partner in gaol) $10,740.60 $413.10 MODULE G-ASSETS TEST
Effect of assets on maximum payment rate
1064-G1. This is how to work out the effect of a person's assets on the person's maximum payment rate:
Method Statement
Step 1 Work out the value of the person's assets.
Step 2 Work out the person's assets value limit (see point 1064-G3 below).
Step 3 Work out whether the value of the person's assets exceeds the person's assets value limit.
Step 4 If the value of the person's assets does not exceed the person's assets value limit, the person's assets excess is nil.
Step 5 If the value of the person's assets exceeds the person's assets value limit, the person's assets excess is the value of the person's assets less the person's assets value limit.
Step 6 Use the person's assets excess to work out the person's reduction for assets using points 1064-G4 to 1064-G7 below.
Value of assets of members of couples
1064-G2. For the purposes of this Module:
(a) the value of the assets of a member of a couple is to be taken to be 50% of the sum of:
(i) the value of the person's assets; and
(ii) the value of the person's partner's assets; and
(b) the value of the assets of a particular kind of a member of a couple is to be taken to be 50% of the sum of:
(i) the value of the person's assets of that kind; and
(ii) the value of the person's partner's assets of that kind.
Assets value limit
1064-G3. A person's assets value limit is worked out using Table G-1. Work out the person's family situation and home ownership situation. The assets value limit is the corresponding amount in column 3.
TABLE G-1: ASSETS VALUE LIMIT
Column 1 Column 2 Column 3 assets value limit Item Person's family situation Either person or partner homeowner
Column 3AColumn 3B
Neither person nor partner homeowner1 Not member of a couple $145,250 $249,750 2 Partnered (partner getting neither pension nor benefit) $103,250
$155,500
3 Partnered (partner getting pension or benefit) $103,250 $155,500”
Applicant’s Contentions
7. The applicant accepted that, as it stands, the terms of the Act do not admit of any means of assessing him on the basis of being single but in accordance with the asset limit applicable to a partnered person. However, he submitted that the means of calculating his age pension were unfair because it discriminated against him as a married person but with a spouse who was not eligible to have access to any income support payments under the social welfare system. He also referred to his step-daughter for whom he provides some financial assistance. In particular, he said that unfairness arose when he was also subjected to the more limited rate that applied to him for such things as pharmaceutical benefits. He said that he receives less in pension payments and benefits than does a single person and yet is unable to gain the advantage of having a partner who was either earning an income or receiving social security payments.
8. The applicant conceded that the level of his assets was much the same as it had been when the authorised review officer made the decision in October 2002 and he also conceded that, if his assets were taken into account as a single person, his pension payment would be reduced. It was for that reason that he wanted the asset limit of a partnered person to be applied to him.
Respondent’s Submission
9. Ms Wallis-Dun submitted that there was no provision in the Act or in other Commonwealth legislation which would enable the outcome sought by the applicant to be achieved. She referred to the discretionary terms of section 24 of the Act which would enable the applicant, if there were some special reason, not to be treated as a member of a couple for the purposes of this Act. However, she submitted that, if this discretion were exercised, it would still require the applicant’s assets to be treated as those of a single person. She submitted that this had been done by the authorised review officer and had resulted in a decrease in the applicant’s age pension payment. She submitted that the same outcome would be achieved if the Tribunal made that decision.
Consideration
10. I am satisfied that the applicant is married, that he lives with his wife, that his wife is not in employment, that his wife is subject to a newly arrived resident’s waiting period and that the level of his assets, as that term is used in the Act, is in the order of $180,000. None of those facts are in dispute.
11. On the basis of those findings, the applicant is a member of a couple as provided for in subsection 4(2) of the Act and, therefore, is partnered in accordance with subsection 4(11) of the Act. This means that the partnered rate of age pension, as provided for in section 1064-B of the Act is applicable to him as well as the assets test in relation to a partnered person in accordance with section 1064-G3 of the Act.
12. The Act makes provision for the rate of age pension that is payable to a single person to be paid to a person who is a member of an illness separated couple, a member of a respite care couple or a person whose partner is in gaol. Those terms are set out above and I am satisfied that they are not applicable to the applicant.
13. Subsection 24(1) of the Act makes further provision for a person not to be treated as a member of a couple. This is where there is a special reason for this to be done. However, that provision enables the person to be treated in that manner for the purposes of the Act. This means that, if the applicant is so treated, all components of the Act will apply to him as if he were not a member of a couple. This means that the asset value limit applicable to a single person in section 1064-G3 of the Act will provide the basis of calculation of his age pension. I am satisfied that this would result in the same outcome as was realised in the decision of the authorised review officer in October 2002. This would mean a reduction in the applicant’s rate of pension.
14. Ms Wallis-Dunn made reference to various authorities in relation to the operation of section 24 of the Act. While these related to the nature of the reasons that needed to be found in order to be special under that provision and also to the circumstances when the discretion will be exercised, none of those authorities enable the pension recipient to be treated as a member of a couple for some but not other purposes under the Act. I am satisfied that there is no provision in the Act which would enable the applicant to be treated as not being a member of a couple for the purposes of determining his rate of age pension but as a member of a couple for the purposes of applying the assets value limit.
Decision
15. The Tribunal affirms the decision under review.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 18 July 2003
Date of Decision 1 August 2003The Applicant appeared in person
For the Respondent Ms Wallis-Dunn, Departmental Advocate
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