PFLQ and Repatriation Commission (Veterans' entitlements)
[2018] AATA 3616
•24 September 2018
PFLQ and Repatriation Commission (Veterans' entitlements) [2018] AATA 3616 (24 September 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/5242
Re:PFLQ
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:24 September 2018
Place:Sydney
The reviewable decision, being the decision made by a delegate of the Repatriation Commission on 3 July 2017, that from 1 July 2014 the Applicant is to be paid a service pension at the partnered rate, is affirmed.
..................[sgd]......................................................
J W Constance
Deputy PresidentCATCHWORDS
VETERANS' AFFAIRS - application for a service pension at the single rate - applicant receiving service pension at the partnered rate - whether special circumstances apply - financial hardship - de facto relationship - weekly expenses - assets and liabilities - credit card repayments - financial assistance to family members - living expenses - additional expenses - decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Whippey and Repatriation Commission [1999] AATA 1030
REASONS FOR DECISION
24 September 2018
INTRODUCTION
The Applicant was a member of the Australian Regular Army for two years commencing in early 1966. He is in receipt of a service pension and a disability pension payable under the Veterans’ Entitlement Act 1986 (Cth).
From the end of June 2014, the Applicant has been in a de facto relationship with his partner. Since that time he has been paid the service pension at the partnered rate rather than at the single rate which he had received previously. On 11 January 2017, the Applicant requested the Commission to reconsider the decision to make payments at the partnered rate.[1]
[1] Exhibit R1 at 105.
By a determination made 3 July 2017 (“the reviewable decision”), a delegate of the Commission decided that the Applicant is a “member of a couple and his service pension is to be calculated at the member of a couple rate with effect from 1 July 2014”. [2]
[2] Exhibit R1 at 121.
The Applicant has applied to the Tribunal to review the delegate’s decision.
For the reasons which follow the decision under review will be affirmed.
LEGISLATIVE BACKGROUND
Schedule 6 of the Act provides a Rate Calculator for determining the rates at which service pensions are to be paid. The maximum basic rate of a particular pension depends on the recipient’s family situation. A lower rate applies to a person who is a member of a couple than a person who is not.
There is provision for the Commission to pay a pension at the single rate to a person who is a member of a couple in certain circumstances. Subsection 5R(3) of the Act provides:
The Commission may determine, for any special reason, that a person who is a member of a couple is not to be treated as a member of a couple for the purposes of this Act.
THE ISSUE FOR DETERMINATION
Although it had been a matter of dispute previously, at the hearing of this application the Applicant agreed that he has been a member of a couple with his partner since 1 July 2014.
The issue to be determined is whether there is any special reason to determine that the Applicant is not to be treated as a member of a couple for the purpose of determining the rate of service pension payable to the Applicant since 1 July 2014.
THE APPLICANT' CONTENTION
The Applicant argues that I should find that the financial hardship he is experiencing is a special reason for the purposes of the Act.
THE APPLICANT'S INCOME AND EXPENSES
At the hearing of this application, the Applicant set out his weekly income and expenses as follows:
Pension $675 per week
food $240
rates $50
electricity $30
water $6
wife $100
self $100
golf $40
house insurance $10
car insurance $13
ctp insurance $10
car fuel & costs $45
newspaper $13
TAFE $40
club membership $5
pharmacy $13
telephones $20
incidentals $50
total $785
incidentals include – take away food-extra fuel-garden-computer-unexpected costs. [3]
The expenses of $100 recorded for each of the Applicant's partner and himself are for miscellaneous expenses.
[3] Exhibit A1.
When he gave evidence at the hearing, the Applicant agreed that he receives $1868.00 per fortnight ($934.00 per week) in pension payments. This is the amount he receives after a deduction of $180.00 per fortnight in repayment of pension amounts previously overpaid.
CONSIDERATION
Unless otherwise stated, the findings of fact made in these reasons are made on the basis of the evidence of the Applicant.
Having considered the evidence of the Applicant and the documents in evidence, I have come to the conclusion that he does not suffer such financial hardship which would amount to a special reason within subsection 5R(3) of the Act. My reasons for this conclusion follow.
The pension payment received by the Applicant’s partner
Since about October 2017, the Applicant’s partner has been receiving a pension payment of $670 per fortnight ($335 per week). This additional income to the household means that the combined weekly income of the Applicant and his partner exceeds their weekly expenses.
Assets and liabilities
The Applicant's significant assets are the equity in his home of approximately $400,000.00 and a motor vehicle valued at approximately $3500.
As at 9 January 2018, the balance owing on the mortgage over the Applicant's home was approximately $163,000. The amount owing is reducing each month. The Applicant’s mortgage repayments are $1092.49 per month.[4]
[4] Exhibit R2 at103.
Prior to his partner receiving pension payments, the Applicant was concerned that he may have difficulty in meeting his mortgage payments in addition to the increased living expenses of himself and his partner after they became a couple. He no longer has this concern. The Applicant has always made the repayments on his mortgage as they fell due. Prior to his partner receiving the pension, the Applicant had been paying the mortgage from a personal loan from his Bank.
Repayments of credit card debt
Records produced by the Applicant' Bank[5] show that between June 2014 and December 2017 the Applicant was able to pay the amount owing on his credit card in full each month. At times the amount owing was in excess of $1000.00.
[5] Exhibit R2 at 188-268.
At the time of the hearing the Applicant continued to be able to clear his credit card debt each month.
Financial assistance to the Applicant's daughter
Both before and after the Applicant's service pension was reduced to the partnered rate, he has given his adult daughter approximately $400 - $500 per month. The Applicant is not under a legal obligation to do this.
Living expenses
When he gave evidence at the hearing, the Applicant agreed that he has been able to pay money back into his Bank account from the money withdrawn to meet living expenses. He described these deposits as “left-over money in the jar.” These amounts are recorded as “Cash Deposits” in the Applicant's account held jointly with his partner.
Between 12 November 2016 and 29 December 2017 the Applicant made cash deposits of $1996.00 into the joint account.[6] Although these amounts are not properly described as “savings”, as was suggested by the Solicitor for the Commission, they do indicate that the Applicant has not been experiencing difficulties in meeting the combined living expenses of himself and his partner.
[6] Exhibit R2 at 73-80.
Additional expenses
Since the Applicant has been in receipt of the pension at the partnered rate he has been able to meet the following additional expenses on a “one-off” basis:
·overseas travel expenses for his partner;
·$5000.00 in October 2016 for expenses for his partner’s family.
Discussion
In Whippey and Repatriation Commission,[7] the Tribunal said:
The rationale for the legislation by which a member of a couple is paid less than a person living alone, is based on two main premises:
(a) In Australia a spouse usually brings to marriage some financial benefit. A spouse usually has one or more of the following: savings, independent means, an occupation or rights to benefits under various Australian Acts.
(b) Two people living together can pool their financial resources, share their expenses, rationalise their overheads and thereby each member of a couple can live more cheaply than they could have as non-partnered persons.
It sometimes occurs that a spouse is not able to bring any financial benefit whatsoever to a union. The other spouse who is the recipient of a pension is then placed at an unreasonably disadvantage by having their pension reduced, at a time when their personal expenses have increased. Subsection 5R(3) of the Act recognises that there may be instances where the strict application of the Act may cause an injustice.[8]
[7] [1999] AATA 1030.
[8] Ibid at [7]-[8].
Having considered all of the evidence, I am not satisfied that any special reason has been shown which would enliven the discretion to determine that the Applicant is not to be treated as a member of a couple. The Applicant has failed to show that he is experiencing financial hardship, being the basis on which he claims that a finding of a special reason should be made.
In reaching this conclusion I have taken into account that the Applicant's weekly income is greater than that to which he referred in his statement.[9] I have also considered that the Applicant has been able to make deposits into his account from money previously withdrawn to meet his listed living expenses. Importantly, his partner now receives a pension payment which is contributing to the household income.
[9] Exhibit A1.
Further, I am satisfied that the Applicant has been able to make his mortgage repayments as they fall due. He is no longer concerned that his home may be re-possessed by the Bank. On this basis I am satisfied that, provided his present circumstances do not change, he will be able to continue to meet these payments.
The Applicant has been able to clear his credit card debt on a monthly basis and has been able to make significant payments to his daughter on an ongoing basis.
None of the factors I have referred to are indicative of a person experiencing financial hardship. I accept that the Applicant has been meeting some of his payments from the personal loan received from his Bank. It may be that when these funds are exhausted his financial position may change. However, I am required to make a decision on the basis of the Applicant' present situation.
CONCLUSION
The reviewable decision, being the decision made by a delegate of the Repatriation Commission on 3 July 2017, that from 1 July 2014 the Applicant is to be paid a service pension at the partnered rate, will be affirmed.
I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...................[sgd].....................................................
Associate
Dated: 24 September 2018
Date(s) of hearing: 10 April 2018 Advocate for the Applicant: RSL Veterans' Centre Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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