Purdie and Secretary, Department of Social Services
[2013] AATA 743
•23 September 2013
[2013] AATA 743
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2422; 2013/3125
Re
Ian Purdie
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 23 September 2013 Place Perth
In application 2013/2422 the decision under review is affirmed.
In application 2013/3125 the decision under review is set aside and remitted to the respondent with directions,
(a) that there is a special reason in the particular case not to treat the applicant as being a member of a couple;
(b) that the respondent is at liberty to reach a different view should the circumstances set out in this decision alter.
...(Sgd) P E Hack.......................
Deputy President PE Hack SC
CATCHWORDS
SOCIAL SECURITY – member of a couple – whether special reason in particular case not to treat applicant as member of a couple – decision set aside and remitted
SOCIAL SECURITY – portability – whether statutory exception to general rule regarding maximum portability period applies – decision affirmed
LEGISLATION
Social Security Act 1991, ss 24(1), 1217, 1220
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588
REASONS FOR DECISION
Deputy President PE Hack SC
3 October 2013
The applicant, Mr Ian Purdie, is an Australian citizen. His spouse of many years, Ms Yvonnet-Purdie, has been an Australian citizen since 1975. She has French heritage. They lived together in Australia for many years. In late 2006 the couple left Australia to live in France. Ms Yvonnet-Purdie remains in France however Mr Purdie returned to Australia in July 2012. On his return he applied for, and was granted, the age pension.
Two issues that arise in these applications – should Mr Purdie be paid age pension at the partnered rate (as Centrelink decided) or at the single rate (as he contends) and would Mr Purdie remain qualified to receive the age pension if he now returned to France to be with Ms Yvonnet-Purdie.
Some further reference to the background facts is necessary. Mr Purdie and Ms Yvonnet-Purdie went to France in 2006 because of Ms Yvonnet-Purdie’s father’s ill health. His health improved and they made a decision while they were in France to stay on and purchase and operate a bed and breakfast business in the French countryside. The global financial crisis and Ms Yvonnet-Purdie’s poor health affected their capacity to do so as well financially as they might have hoped and, more recently, has affected their ability to sell the property at a realistic price. The business ceased in 2010 because of Ms Yvonnet-Purdie’s health. Since then they have attempted, so far unsuccessfully, to sell the property. Their financial situation has gradually worsened and they have found it necessary to use their reserves for living expenses. Mr Purdie returned to Australia to obtain the age pension.
Mr Purdie has been receiving the age pension since his return to Australia in July 2012. His pension at present is $609 per fortnight. Ms Yvonnet-Purdie receives modest pensions from the French government, at present an amount in the order of $438 per fortnight[1]. Ms Yvonnet-Purdie wants to return to Australia to live but, in a practical sense, is prevented from doing so by the inability to sell the French property. Without the proceeds of its sale they cannot afford the costs of transporting their possessions from France to Australia nor can they afford Ms Yvonnet-Purdie’s air fare. It is equally impractical to abandon the property in France; to do so would make a future sale very difficult and would expose the property to the risk of being taken over by trespassers.
[1] Ms Yvonnet-Purdie receives two pensions, one of €101 per quarter and the other of €358 per fortnight.
There is no doubt that Mr Purdie is qualified to receive the age pension. Neither is there any doubt that Ms Yvonnet-Purdie would be entitled to receive the age pension if she were to return to Australia. The live issue is the rate at which age pension is payable to Mr Purdie. The rate of pension depends on a number of matters including, relevantly, whether the recipient is “a member of a couple”. Because Mr Purdie is legally married to Ms Yvonnet-Purdie and because he is not living separately and apart from her on a permanent or indefinite basis, he satisfies the definition of “a member of a couple” in s 4(2) of the Social Security Act 1991 (Cth). Thus, without more, he should receive the age pension at the “partnered rate”, an amount somewhat less than the “single rate”.
Section 24(1) of the Social Security Act provides the Secretary (and thus the Tribunal in her stead) with a discretion to treat a person who is a member of a couple as not being a member of a couple where,
(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…
If so satisfied, the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of the Act.
Mr Purdie said that there were special reasons in his case not to treat him as being a member of a couple. Centrelink did not agree with him. On 25 July 2012 Centrelink decided that he ought be paid age pension at the partnered rate. That decision was affirmed on internal review and by the Social Security Appeals Tribunal. Mr Purdie seeks a review of that decision. It forms the subject matter of application 2013/3125.
The other application (2013/2422) concerns the portability of Mr Purdie’s age pension and arises from the operation of s 1220 of the Social Security Act. It is in these terms:
(1) If:
(a)a person is an Australian resident; and
(b)the person ceases to be an Australian resident; and
(c)the person again becomes an Australian resident; and
(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i)an age pension; or
(ii)a disability support pension; or
(iii)a bereavement allowance; and
(e)after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and
(f)financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
On the Secretary’s argument this section operates in this way. Up until December 2006 Mr Purdie was an Australian resident. When he went to France in December 2006 and commenced to reside in that country he ceased to be an Australian resident. He again became an Australian resident in July 2012 when he returned to Australia and, within two years of that return, he was granted an age pension. Thus, says the Secretary, if, before the end of two years after his return in July 2012 Mr Purdie leaves Australia, the age pension is not payable to him during any period during which he is outside Australia.
For his part Mr Purdie points to the portability rules in s 1217 of the Social Security Act. Sub-section (1) of that section, read in conjunction with the table at the end of the section, sets out a person’s maximum portability period for the classes of payment set out in that table. The table provides that, so far as age pension is concerned, “all persons” have an “unlimited period” of portability for “any absence”. Mr Purdie says that rule ought apply to him. He points to extracts from the parliamentary debate on the bill that introduced s 1220 to the Act in support of his contention that the Parliament did not intend to preclude persons in his position from obtaining an age pension; he says that it was intended to operate in circumstances the “exact opposite” of his.
This argument, and the issue of portability, may be readily disposed of. As Mr Purdie correctly identifies in his written submissions, the emphasis in statutory construction has altered over time. It is unnecessary for present purposes to trace those changes. Whatever may have been the case in the past, the High Court has said frequently that the task of statutory construction must begin with the statutory text. Most recently in Commissioner of Taxation v Unit Trend Services Pty Ltd [2] that Court said:
As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. Context and purpose are also important. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross French CJ and Hayne J said:
“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority,‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ … That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.”(emphasis of French CJ and Hayne J) [citations omitted]
[2][2013] HCA 16; (2013) 87 ALJR 588; at [47].
The context of ss 1217 and 1220 of the Act is important. They are each within Part 4.2 of the Act, headed “Overseas portability”. Division 1 of that Part deals with preliminary matters, definitions and suchlike. Division 2 is headed “Portability of social security payments”. Subdivision A, within which s1217 is found, is headed “Basic portability provisions”. Subdivision B, within which s1220 is found, is headed “Exceptions to Subdivision A rules”. The text and context of this Part of the Act demonstrates that s1217 of the Act states the general rule about the maximum portability period. Following sections, including s1220, qualify or modify that general rule by defining particular exceptions to it. One such exception is the position in which Mr Purdie finds himself. It is, with respect to Mr Purdie, no answer to say that the Parliament did not intend to catch persons in his position or that the position is anomalous. If that be right, and as will appear, I think there is some force in the argument, it cannot dictate a conclusion contrary to that achieved by construing the language according to the settled rules of construction.
That language binds me to conclude that the age pension would not be payable to Mr Purdie were he to leave Australia within two years of his return in July 2012.
At an earlier time there had been a question whether there was a decision capable of being reviewed. The Social Security Appeals Tribunal concluded, correctly in my view, that there had been. The submissions of the Secretary identify that decision as being a decision that Mr Purdie’s age pension would not be portable were he to leave Australia before 12 July 2014. Again, in my view, that is a correct analysis of the decision making process. It follows that in that application the decision under review ought be affirmed.
I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple. The Secretary’s submissions point to the departmental policy guide for the application of this discretion. That guide suggests that three questions need to be considered as part of an assessment of the application of s 24. Those questions 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? For my part I remain unpersuaded that the section poses three questions. It seems to me the section poses only one question – is there a special reason to treat Mr Purdie in the present case as not being a member of a couple. It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.
There are though, in my view, considerable reasons to conclude that the present case is one which is exceptional or unusual. The Secretary’s submissions drew attention to what French J said when a member of the Federal Court in Boscolo v Secretary, Department of Social Security[3] where his Honour spoke of the word “special” as being,
…in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened.
His Honour also spoke of the need for there to be something unusual or different to take the matter the subject of the discretion out of the ordinary course.
[3][1999] FCA 106; (1999) 90 FCR 531, 535 at [18].
There are in my view a number of reasons for that conclusion to be reached here. There is first the somewhat anomalous position that were Ms Yvonnet-Purdie to return to Australia she would be entitled to receive an aged pension at the partnered rate. It is somewhat odd that the Secretary relies on her enforced absence, enforced in a practical sense, to demonstrate that there is no particular or special reason to treat Mr Purdie as not being a member of a couple. The fact of her enforced stay in France adds to the background of circumstances which fall to be regarded as special. It is true, as the Secretary’s submissions point out that, Mr Purdie’s position is the result of choices they have made but as with all of the affairs of human kind, choices are informed by practical considerations. It is impractical to require Mr Purdie or his spouse to sacrifice their financial interests in order for her to return to Australia. The choice to stay in France is a choice but it is a choice which is dictated by the practicalities of the situation. Mr Purdie does not have the capacity to pool resources as he would were he and his spouse to be living together. It is true that he is able to live more cheaply in Australia through the generosity of a friend but he is prevented from enjoying the ordinary benefits that would flow to him were he and Ms Yvonnet-Purdie to be maintaining one household rather than two.
Additionally, I think there is the somewhat anomalous position that there is no international social security treaty with France. That is somewhat unusual amongst European Union countries. Were there to be such a treaty, Mr Purdie would not be in the position that he is now in so far as the portability of his aged pension is concerned. It is also part of the background of facts that demonstrate a special reason that Ms Yvonnet-Purdie has poor health. It would be unnecessarily intrusive for me to list the matters that afflict her; they are set out in Mr Purdie’s submissions and the Secretary appears not to cavil with them.
It follows that the material satisfies me that there is a special reason in Mr Purdie’s case for him not to be treated as a member of a couple. Thus the result is that in application 2013/2422, that concerning portability, I would affirm the decision under review; in application 2013/3125, I would set aside the decision under review and remit the matter to the Secretary for consideration in accordance with a direction that there is a special reason in the particular case not to treat Mr Purdie as being a member of a couple. The Secretary is at liberty to reach a different view in the future should the circumstances set out in the decision alter.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
...(Sgd) T Freeman....................
Associate
Dated 3 October 2013
Date of hearing 23 September 2013 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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