Rautenberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 978
•7 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 978
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0997
GENERAL ADMINISTRATIVE DIVISION ) Re ROMAN RAUTENBERG Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member K Bean Date7 December 2010
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – Disability support pension at the partnered rate – Whether special reason to treat the applicant as not being a member of a couple – Erosion of applicant’s financial position due largely to decision to give money to wife’s family – Applicant not suffering real financial difficulty – No special reason to treat him as not being a member of a couple – Decision under review affirmed.
Social Security Act 1991 ss 24, 739A
Re Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277REASONS FOR DECISION
7 December 2010 Senior Member K Bean introduction
1. The applicant, Mr Rautenberg, has been in receipt of Disability Support Pension (DSP) since 13 March 2007. Prior to 8 December 2009, Mr Rautenberg received DSP at the rate applicable for a single person. However, on 7 June 2009, he married Dianna Rautenberg, a citizen of the Philippines, who was then residing in the Philippines. Mrs Rautenberg arrived in Australia on 5 December 2009 and has lived with Mr Rautenberg in Australia since then. Accordingly, from 8 December 2009, Mr Rautenberg’s rate of DSP was reduced to the rate applicable to a member of a couple.
2. Section 24 of the Social Security Act 1991 (the SS Act) provides a discretion to treat someone who is married as not being a member of a couple in certain circumstances. Mr Rautenberg has sought to have that discretion exercised in his favour, but has been unsuccessful at each tier of the decision making process thus far. He has now sought review by this tribunal of the decision of the Social Security Appeals Tribunal (the SSAT) dated 25 February 2010, declining to exercise the discretion in his favour.
the issue
3. The issue for my determination is whether, for a special reason within the meaning of s 24 of the SS Act, Mr Rautenberg should be treated as not being a member of a couple with Mrs Rautenberg.
the applicable law and policy
The Relevant Provision
4. Section 24 of the SS Act relevantly provides as follows:
“24 Person may be treated as not being a member of a couple (subsection 4(2))
(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.
…”
Applicable Policy
5. Guidance for decision-makers in the exercise of this discretion is also contained in the Social Security Guide (the Guide), which relevantly provides:
“Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies.
Section 24 is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted. …
The discretion to treat a person as NOT being a member of a couple should be exercised ONLY where a full consideration of all the circumstances relevant to the individual’s case would make it unjust or unreasonable not to do so. … The couple’s circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply s 24 do not exist. There must be some degree to which circumstances are outside the couple’s or individual’s control and cannot be changed. …
Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case 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?
…”
The Guide also contains particular guidance for situations in which one member of the couple is not qualified for an income support payment, or is subject to the newly arrived resident’s waiting period (NARWP)[1] before becoming eligible for an income support payment, as follows:
“The discretion to apply s 24 may be applied in cases where the couple is in financial difficulty and the partner:
·is not residentially qualified for an income support payment … or
·is subject to the NARWP.
…”[2]
[1] This is imposed by s 739A of the SS Act.
[2] Social Security Guide, 2.2.5.50
Relevant Case Law
6. The application of s 24 of the SS Act has also been considered by both the Federal Court and the Tribunal.
7. In ReHolt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, the Tribunal found that due to their particular circumstances it was impractical for two members of a married couple to both work at the same time and that the couple “cannot reasonably be expected to benefit from the pooling of resources that usually occurs in a marital relationship resulting in financial hardship”. The Tribunal found that the couple’s circumstances were both special and particular and unlikely to be replicated by many other couples living together and the s 24 discretion should therefore be exercised in their favour.
8. In the Federal Court decision of Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277, French J (as he then was) observed in relation to the s 24 discretion (at 281-282):
“The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course … but that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 32 ALD 309; 108 ALR 322.”
the evidence and contentions
9. The main factors advanced by Mr Rautenberg in support of his application to be treated as not being a member of a couple were financial hardship and unfairness. He said that as a result of his marriage, his DSP had been reduced by $80 a week. He said he had contacted Centrelink prior to Mrs Rautenberg arriving in Australia and was made aware that it was possible that his rate of DSP would be reduced to that applicable to a couple once she was living with him. However he considered this to be unfair in all the circumstances, including the fact that his wife was not receiving any income.
10. Mr Rautenberg said he had paid tax all of his life and was not wealthy and did not have any major assets. He said that as a result of him now being treated as a member of a couple, his savings had been significantly eroded and his financial position was steadily deteriorating. He said that he was also expected to provide support to his wife’s family in the Philippines, which he had done, and this had contributed to the serious deterioration of his overall financial position. He also advanced this as a reason why it was unfair for him to be paid DSP at the partnered rather than single rate. He said that currently his outgoings exceed his income by a significant margin and this would continue to be the case unless his rate of DSP was returned to the single rate.
11. In relation to his overall financial position however, Mr Rautenberg acknowledged in his evidence that he owns his own home and has a share port folio worth approximately $27,000. He also has approximately $19,000 currently in a savings account, he owns a car worth approximately $17,000 and he has no significant debts. He also indicated that he was currently 58 years old and at 60 expected to be able to access the preserved part of his superannuation, being an amount in the vicinity of $170,000-$180,000.
12. Elaborating on the deterioration in his financial position, Mr Rautenberg acknowledged that prior to his marriage he had had a much larger amount in his savings account, in the vicinity of $70,000. However, since Mrs Rautenberg’s arrival in Australia on 5 December 2009, Mr Rautenberg had spent approximately $50,000. He estimated that $7,000 of this was attributable to his and Mrs Rautenberg’s living expenses in Australia, whilst approximately $43,000 had been spent on Mrs Rautenberg’s family in the Philippines.
13. Mrs Rautenberg also gave brief evidence at the hearing, indicating that she had enquired about some employment opportunities, but had been unsuccessful in securing employment to date. She indicated that she had worked in the Philippines as a house-helper/cleaner.
14. Mr Rautenberg forwarded correspondence to the tribunal subsequent to the hearing indicating that he and his wife were attempting to start a family and submitting that this was relevant to whether she could contribute to the household income by working. The respondent did not dispute this information or object to it being considered by the tribunal.
15. Further correspondence and submissions were also received after the hearing in relation to the question of whether Mr Rautenberg had provided what is known as an “assurance of support” for Mrs Rautenberg. Material supplied by the respondent indicated that Mr Rautenberg had not provided an assurance of support for Mrs Rautenberg, but that it appeared that he had acted as her sponsor in immigrating to Australia.
16. Material provided by the respondent also indicated that current information supplied by the Department of Immigration and Citizenship to those intending to sponsor a partner to migrate to Australia advised them that they would be required to give an undertaking to provide adequate accommodation and financial assistance as required to meet their partner’s reasonable living needs for their first two years in Australia. However a sample form supplied by the respondent containing a sponsorship undertaking only required the sponsor to undertake to ensure that adequate accommodation was available to their partner on arrival in Australia or, if necessary, to provide accommodation for up to two years from arrival in Australia.
17. There is no evidence before me as to precisely what undertaking was given by Mr Rautenberg in connection with his sponsorship of Mrs Rautenberg. At the hearing however, Mr Rautenberg acknowledged that Mrs Rautenberg was precluded from Centrelink benefits for two years from her arrival in Australia and that he had agreed to provide for her during that time.
consideration
18. As Mrs Rautenberg appears to be subject to the two year NARWP imposed by s 739A of the SS Act before accessing Centrelink benefits, it would be consistent with the policy articulated in the Guide to treat Mr Rautenberg as not being a member of a couple if it could be said he is experiencing financial difficulty.
19. In relation to that issue however, on the material before me I am not satisfied that Mr Rautenberg is currently suffering from financial difficulty in the relevant sense. As he acknowledged, Mr Rautenberg still has approximately $19,000 in savings, as well as a share portfolio worth approximately $27,000. He also owns his own home and car and has no significant debts. With approximately $46,000 available to Mr Rautenberg in cash and shares, as well as the income he is currently receiving in the form of DSP, albeit at the partnered rate, Mr and Mrs Rautenberg are in relatively comfortable circumstances when compared with many welfare recipients. Whilst Mr Rautenberg’s desire to preserve his remaining assets is understandable, it is clear that circumstances out of the ordinary must be shown before the usual rule, that couples received income support at the partnered rate, is departed from.
20. It is also relevant to the exercise of the discretion in this matter that Mr Rautenberg has chosen to enter his current situation, knowing that Mrs Rautenberg would be dependant upon him, unless she could find work, for the first two years after arriving from the Philippines and knowing also that his DSP may be reduced to the partnered rate. Further, by far the largest contribution to the dramatic deterioration in his financial circumstances since his wife’s arrival in Australia has been his decision to spend approximately $43,000 of his savings on Mrs Rautenberg’s family in the Philippines. While this action on his part is understandable and appears commendable, he has made a choice to spend his funds in that way and the fact he has voluntarily eroded his own funds in this way by sending money to his wife’s family in the Philippines does not assist Mr Rautenberg’s claim to increased income support in the form of social security payments. In essence, Mr Rautenberg’s current situation is one of his own choosing and not one which has resulted from circumstances outside his control, or which are especially unusual or anomalous, or have resulted in any unfairness. In my view, the fact that Mr and Mrs Rautenberg are attempting to start a family does not have the result that Mrs Rautenberg is unable to seek work, or add any unfairness or unusualness to their situation which is not otherwise present.
conclusion
21. In all of these circumstances, including the absence of what I consider to be real financial difficulty, I am not satisfied that Mr Rautenberg has established a special reason why he should not be treated as a member of a couple within the meaning of s 24 of the SS Act.
decision
22. The decision under review is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ….........J Coulthard.........................................
AssociateDate of Hearing 7 September 2010
Date of Decision 7 December 2010
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms J Edwards
Centrelink Advocacy Branch
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