PETER VAN KAMPEN and JULIE HENSLEY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 164

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 164

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2506 &

GENERAL ADMINISTRATIVE  DIVISION		)                 2507
Re		PETER VAN KAMPEN and JULIE HENSLEY

Applicant

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

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date9 March 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements - Disability support pension and carer payment – Calculation of rates of payment based on the combined value of the parties’ assets – Calculation of rates not subject to terms of financial agreement - Decision affirmed.

Social Security Act 1991 (Cth) - s 1064

Family Law Act 1975 (Cth) -s 90UB

REASONS FOR DECISION

9 March 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      Peter van Kampen and Julie Hensley are members of a couple and are in receipt of the disability support pension and carer payment, respectively, in accordance with the terms of the Social Security Act 1991 (Cth) (the Act). On 9 February 2009, a delegate of Centrelink determined that the rates of their respective payments should be calculated on the basis of the combined value of their assets. This was in the alternative to assessing each of them separately on the value of their individual assets. That decision was affirmed by an authorised review officer on 27 February 2009 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 1 May 2009.

LEGISLATION, SUBMISSIONS AND ISSUES 

2.      The factual aspects of this matter are not in dispute.  It is common ground that Mr Van Kampen meets the qualification requirements for the disability support pension; that Ms Hensley meets the qualification requirements for the carer payment; and that Mr Van Kampen and Ms Hensley live together as members of a couple.  Neither is there dispute about the identity or value of the respective assets of Mr Van Kampen and Ms Hensley.  It is also accepted that, in May 2009, Mr Van Kampen and Ms Hensley entered into a financial agreement in accordance with the relevant provisions of the Family Law Act 1975 (Cth)[1] in which they declared an intention to marry within 5 years; listed their respective assets; and declared that, on dissolution of such marriage, each would retain ownership of his/her own property. 

[1] See s 90UB of the Family Law Act 1975.

3.      Mr Van Kampen and Ms Hensley contend that, because of the financial agreement, Centrelink should have treated their respective assets as belonging to each of them separately and should have calculated their respective payments under the Act on the basis of those assets.  This would have resulted in the calculation of their payments not being made on the combined value of their assets.  They stated that the provisions of the Act had been explained to them but considered that these provisions were outmoded and do not reflect the way in which members of a couple arrange their financial matters especially where they have entered into an agreement to keep their assets separate.

4.      Mr Guthrie submitted that the scheme under the Act does not enable the assets of members of a couple to be treated separately in the manner contended by Mr Van Kampen and Ms Hensley and that only the combined value of the assets may be utilised for the calculation of both the disability support pension and carer payment.

5.      The issue for the Tribunal is whether the value of Mr Van Kampen’s and Ms Hensley’s assets may be combined for the purposes of the Act or assessed in accordance with the terms of the financial agreement entered into by them.

6.      The relevant provision under the Act is s 1064 which provides that the rates at which disability support pension and carer payment are to be calculated are to be determined in accordance with the rate calculator at the end of that section.  This includes Module A which provides details of the overall rate calculation process.  Therein, s 1064-A2, for the purpose of Module A, reads:

1064‑A2Where 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).

7.      The method statement following s 1064-A1 also provides that module G is applied as part of the calculation process.  Therein, s 1064-G2 reads:

S 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;

CONSIDERATION

8.      I have noted the contentions of Mr Van Kampen and Ms Hensley.  However, I am bound to apply the terms of the Act.  The relevant provisions, noted above, do not admit of the exercise of any discretion and they preclude a treatment of the assets of Mr Van Kampen and Ms Hensley in the manner for which they have argued.  It is the combined value of those assets which must be taken into account and this was the approach adopted in the decision under review.

DECISION

9.      The Tribunal affirms the decision under review.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  ...........[Sgd].................................................................
               Kate Slack, Research Associate

Date/s of Hearing  24 February 2010
Date of Decision  9 March 2010
Applicants were self-represented
Solicitor for the Respondent     Joe Guthrie, departmental advocate