Ravikumar Govindarajulu Naidu and Secretary, Department of Social Services
[2014] AATA 833
•6 November 2014
[2014] AATA 833
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3245
Re
Ravikumar Govindarajulu Naidu
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor Ron McCallum AO, Member
Date 6 November 2014 Place Sydney The decision under review is affirmed.
......................[SGD]..................................................
Professor Ron McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY—Disability support pension—Income test—Whether the applicant is a member of a couple—Whether the applicant’s wife’s income should be taken into account in calculating the applicant’s rate of disability support pension—Whether there are special reasons the applicant should be treated as not a member of a couple—Whether the applicant was discriminated against on the grounds of his disability—Decision affirmed
LEGISLATION
Disability Discrimination Act 1992 (Cth) – ss 51
Social Security (Administration) Act 1999 (Cth) – ss 4(2); 24(1); 37(1)
Social Security Act 1991 (Cth) – ss 98; 117(a); 1064; 1072SECONDARY MATERIALS
United Nations Convention on the Rights of Persons with Disabilities
REASONS FOR DECISION
Professor Ron McCallum AO, Member
6 November 2014
BACKGROUND
The Applicant, Mr Ravikumar Govindarajulu Naidu, was born in India in 1953. The Applicant married Mrs Ravi Kumar Savithri in India in 1990, and they emigrated to Australia in 1999. The Applicant and his wife became Australian citizens in 2001.
The Applicant suffered injuries in several workplace accidents in 2000, 2002 and in 2005, and he has not worked since 2005. He was receiving periodic payments under the NSW workers compensation scheme, but these payments ceased in January 2013. Since 2001, Mrs Savithri has been a secondary school teacher employed by the NSW Department of Education. Since the cessation of his periodic workers compensation payments, Mrs Savithri has been the sole bread winner for the family.
On 19 April 2013, the Applicant applied for a disability support pension (DSP), but his application was refused on 12 August 2013. On 20 September 2013, a review officer affirmed the original decision. The Applicant appealed to the Social Security Appeals Tribunal (SSAT), but on 26 May 2013 his claim for DSP was rejected. He now appeals to this tribunal. The SSAT held that having regard to his income, he could not receive DSP payments. Put briefly, there is an income test for DSP, and the Applicant's income was too high for him to receive any DSP payments. In calculating his income, the SSAT and the earlier decision-makers took into account his wife's income. From the material before me, I have come to the view that if the income of the Applicant's wife was not taken into account, the Applicant would be entitled to the full amount of DSP, if he otherwise qualified for the DSP.
The Applicant argues that it is unfair to take into account his wife's income when calculating his income. He further asserts that this aspect of the income test is contrary to Australian human rights law.
The issue which I have to decide
The issue before me is simply one of payability. In other words, I am required to decide whether the decision under review by the SSAT was correct, namely, that the income of Mrs Savithri should be taken into account when determining the Applicant's income.
The evidence of the Applicant and his wife
The Applicant and Mrs Savithri gave sworn evidence at the hearing. I found them both to be truthful witnesses. They explained their circumstances. They said they lived together as a married couple and shared their household and other expenses. I observed that they were both stressed by their plight. No other persons gave evidence at the hearing.
The legislation
The relevant legislation governing DSP is the Social Security (Administration) Act 1999 (Cth) (the Administration Act), and the Social Security Act 1991 (Cth) (the SS Act). Section 37(1) of the Administration Act relevantly provides that,
...[T]he Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a)the claimant is qualified for the social security payment; and
(b)the social security payment is payable.
The DSP is a social security payment and whether the DSP is payable to the Applicant depends upon various provisions of the SS Act.
Section 117(a) of the SS Act provides that the rate of DSP for a person who is not blind is to be worked out using Pension Rate Calculator A at the end of s 1064. The pension rate calculator operates as an income test.
Section 98 of the SS Act relevantly provides that "...[A] disability support pension is not payable to a person if the person's disability support pension rate would be nil."
For the purposes of the Applicant's case, s 1064-A2 relevantly provides:
Where two 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...
When the applicant’s wife’s income is taken into account using the Pension Rate Calculator in s 1064, the applicant’s resulting pension rate is nil.
Is the Applicant a member of a couple for the purposes of the SS Act?
As was noted above, the Applicant and his wife married in 1990. Section 4(2) of the SS Act relevantly provides:
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;...".
Section 4(3) lays down a five part test to determine whether two persons are actually living together as a couple. The factors to be taken into account include:
·Financial aspects of the relationship
·Living arrangements and household responsibilities
·Social aspect of the relationship, including holding themselves out as a couple
·Sexual aspects of the relationship
·Commitment to the relationship, including length of the relationship and likely future
As they stated in their evidence, the Applicant and his wife live together, and share their finances and household responsibilities. It is clear that the Applicant and his wife are a couple for the purposes of the SS Act.
Are their special reasons why the Applicant should not be treated as a member of a couple?
Section 24(1) of the SS Act provides:
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.
In the present matter, there is no written determination by the Secretary that the Applicant should not be treated as a member of a couple for the purposes of the SS Act. No evidence was adduced concerning any special reasons which would be applicable whereby the Applicant should not be treated as a member of a couple. Accordingly, I find that the Applicant was a member of a couple for the purpose of calculating his income under the income test for DSP.
Was the Respondent correct to take into account the gross income of Mrs Savithri?
The Applicant argued that in taking into account his wife's income, it was not permissible for the decision-makers below to take into account her gross income. However, s 1072 of the SS Act provides:
A reference in this Act to a person's ordinary income for a period is a reference to the person's gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
Division 1A refers to deductions for persons operating a business and are not relevant to Mrs Savathri. Accordingly, the decision-makers below were correct to take account of the gross income of Mrs Savithri.
Was the Applicant discriminated against when he was denied DSP?
Both before the SSAT and at the hearing before me, the Applicant argued that by taking into account his wife's income, the decision-makers below had discriminated against him on the grounds of his disability, contrary to human rights law. The Applicant pointed to the United Nations Convention on the Rights of Persons with Disabilities (the Convention) which Australia has signed and ratified. The Parliament of Australia has given effect to this Convention by Divisions 1, 2, 2A and 3 of Part 2 of the Disability Discrimination Act 1992 (Cth) (the DD Act). However, s 51 of the DD Act relevantly provides:
1(1) This Part does not affect discriminatory provisions relating to pensions, allowances or benefits in:
...
(d)the Social Security Act 1991;
...
2This Part does not render unlawful anything done by a person in direct compliance with a provision referred to in subsection (1).
I am not satisfied that in applying the income test for DSP, the SSAT and previous decision-makers have discriminated against the applicant on the grounds of his disability. In any event, s 51 of the DD Act permits the Respondent to comply with the provisions of the SS Act with respect to pensions, allowances and benefits, free from the taint of discrimination.
DECISION
I affirm the decision under review.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Professor Ron McCallum AO, Member ..................[SGD]......................................................
Associate
Dated 6 November 2014
Date(s) of hearing 29 October 2014 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review
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