Ren De Liang and Secretary, Department of Social Services
[2015] AATA 275
•29 April 2015
[2015] AATA 275
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4399
Re
Ren De Liang
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member
Date 29 April 2015 Place Sydney The Tribunal sets aside the decision under review and substitutes a decision that Mr Liang should not be treated as a member of a couple for the period from 1 February 2014 until 30 April 2014.
...............................[sgd].........................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
SOCIAL SECURITY – Age Pension – special reason not to be treated as a member of a couple –inability to pool resources with spouse – absence of spouse to fulfil filial obligations – financial hardship – modest financial circumstances – unreasonableness of using superannuation entitlement allocated to funeral expenses – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth ) s 24(1)
Health Insurance Act 1973 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 42CCASES
Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484
Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225
Boscolo the Secretary, Department of Social Security (1999) FCA 106; (1999) 90 FCR 531; (1999) 53 ALD 277; (1999) 29 AAR 120
Cocks v Centrelink [2000] FCA 1248; (2000) 32 AAR 360; (2001) 4(10) SSR 124; [2000] FCA 1248
Gordon and Secretary, Department of Employment and Workplace [2006] AATA 792
Hawkins v Secretary, Department of Social Security [1996] 44 ALD 651
Holt and Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143
Hutchins, Re; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 14 FCR 510
Isaacs v Ocean Accident & Guarantee Corporation Ltd & Winslett (1958) SR (NSW) 69
Jess v Scott (1986) 12 FCR 187; 70 ALR 185; 14 IR 341
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Lada and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1496
Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307
Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75
Pala and Secretary, Department of Social Services [2014] AATA 313
Purdie and Secretary, Department of Social Services [2013] AATA 743SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
29 April 2015
Since at least 2002 Mr Liang has received a social security pension. For most of that period he received a disability support pension. After he turned 65, in September 2011, he began to receive an age pension.
In the meantime, in September 2006 Mr Liang married his Chinese citizen wife. Between then and May 2012 he made about 10 trips to China. Mrs Xie (as I shall refer to her) made three trips to Australia, between August 2010 and May 2011. Each of the spouses’ reciprocal visits was for about 3 months. In May 2012 Mrs Xie obtained a permanent resident visa and came to live in Australia.
On 29 January 2014 Mr Liang asked for his age pension to be paid at the single rate whilst his 55-year-old wife returned to China to look after her elderly mother. He said that Mrs Xie had an obligation, under Chinese law, to return to China and look after her mother. Subsequently Mrs Xie provided a statement, dated 4 January 2015, in which she said she went to China because her mother telephoned her in late January 2014 after being released from hospital and asked her to come and look after her while she recovered. Mrs Xie said her mother was substantially bedridden and had no one living at home to look after her. Mrs Xie also said that she was both legally obliged and, in any event, duty bound, to look after her mother. Mrs Xie bought a plane ticket the day after her mother’s phone call and left for China on 1 February 2014. She returned on about 30 April 2014.
Centrelink refused Mr Liang’s payment rate request and, in a 23 July 2014 decision, the Social Security Appeals Tribunal (SSAT) affirmed the refusal decision. The SSAT’s affirmation is the subject of Mr Liang’s review application to this Tribunal.
Mr Liang does not dispute that he should ordinarily be treated as a “member of a couple” (the criterion contained in section 1064-A2 of the Social Security Act 1991 – (SSA 1991) − and consequently not entitled to be paid age pension at the single rate. However he contends the Secretary should be satisfied that he ought not be treated as a member of a couple during his wife’s overseas absence. If that proposition was made good it would permit a determination of the kind contemplated in SSA 1991 s 24(1). That provision is in the following terms:
Section 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.
Prior to Mrs Xie taking up permanent residence in Australia in May 2012, the Secretary had frequently applied SSA 1991 s 24(1) to adjust Mr Liang’s relevant pension rate − broadly according to whether or not he was residing alone in Australia, or was on one of his periodic visits to China. Those past decisions no doubt reflected the fact that Mrs Xie had no Australian visa, and thus no right to reside here. The Secretary’s decision, and submissions, in the present review proceedings, implicitly took into account Mrs Xie’s post-May 2012 permanent residence status, and sought to characterise her 2014 absence in China as an informed decision which was either purely voluntary, or at least neither unusual nor uncommon. The Secretary contended that such an absence could not provide a basis for satisfaction of the relevant “special reason” criterion.
The Secretary also disputed that the circumstances relevantly involved significant financial hardship. The Secretary conceded that Mrs Xie’s newstart allowance was not payable to her during the period she stayed in China in 2014. But the Secretary pointed to the fact that Mr Liang has a small (approximately $3,200) superannuation asset. The Secretary contended that the existence of those funds and their potential availability to alleviate any financial hardship during Mrs Liang’s absence weighed heavily against any finding that the circumstances of Mr Liang and Mrs Xie involved significant financial hardship. The Secretary’s ultimate position was that Mrs Xie’s need to return to China, to care for her elderly mother was a foreseeable, rather than unpredictable, event. It was the Secretary’s view that the expense of visits of this kind, and the financial difficulties they involve, are matters that should be funded from Mr Liang and Mrs Xie’s own resources, perhaps with assistance from their family members, rather than provoke applications for an increase in the pension rate ordinarily payable to Mr Liang. The Secretary contends that the exercise of the SSA 1991 s 24 discretion in favour of Mr Liang:
would be contrary to, or at least significantly inconsistent with, the policy expressed in the [Guide to Social Security Law] that 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 policy to which the Secretary points is set out in the Guide to Social Security Law. Relevant exegesis concerning the exercise of the power conferred by SSA 1991 s 24 is contained in section 2.2.5.50 of the Guide and, so far as is relevant, is in the following terms:
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.
It is appropriate that the decision maker strike a balance between the individual circumstances of the person and the circumstances of a couple.
…
The couple’s circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply section 24 do not exist. There must be some degree to which circumstances outside the couple’s or individual’s control and cannot be changed.
…
In general, the circumstances must be unusual, uncommon, abnormal or exceptional. It is the context which generally determines whether the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
…
A significant body of case law has established that the inability to pool resources for their mutual benefit is a special reason to exercise the discretion in s 24.
…
In deciding whether or not to apply the discretion in s 24, the overall financial situation should be considered. Income and readily available funds from assets should be compared to necessary expenditure.
The references in the Guide to “unjust” or “unreasonable” results, and to circumstances outside the control of the persons concerned, are an attempt to express the qualities which the circumstances of “the particular case” ought to have, in order to meet the legislative “special reason” criterion. They serve to emphasise that “the discretion is not likely to be enlivened… there must be something unusual or different”. That emphasis is reasonably appropriate, but it must be used to inform, and not replace, the specific statutory criterion itself.
The specific criterion in SSA 1991 s 24(1) is satisfaction “for a special reason in the particular case” that the person should not be treated as a member of a couple. It is a long established criterion.
Circumstances may be “special” even if they are not “extremely unusual, uncommon or exceptional”. That proposition emerges from a long series of cases about the application of the SSA 1991 s 24 discretion. Hawkins & Secretary, Department of Social Security, Re (1996) 44 ALD 651 involved a person whose spouse was a foreign national, with no financial resources and no prospect of lawful employment because of her tourist visa status. In determining that “special circumstances” applied Deputy President Blow observed (at page 652):
(12) In the context of the present case, the expectation of the legislature is that couples will pool their resources and thus live more cheaply than they would as two individuals living separate existences. That expectation has been disappointed because the applicant's wife has no financial resources to pool…
(13) A case very similar to this was considered by Senior Member Muller in Re Secretary, Department of Social Security and Tsimpidaros (AAT, Senior Member Muller, decision No 10292, 5 July 1995, Q95/55, unreported). In that case the respondent's husband was in the same position as the applicant's wife is in this case — prohibited from earning an income or receiving social security benefits. Senior Member Muller commented that he had been regarded by the Australian Government as a ``non-person'’, and affirmed a decision of the Social Security Appeals Tribunal to the effect that the respondent in that case should be treated as not being a member of a couple. The fact that a pooling of resources was not possible was seen as a special reason justifying the exercising of the discretion conferred by s 24(1).
(14) One must not lose sight of the fact that the discretion has to be exercised in the context of the Social Security Act, and that therefore the individuals involved will ordinarily be impecunious. However, I believe that the extreme impecuniosity of the applicant's wife, coupled with her inability lawfully to earn any income, are special factors which take this case out of the ordinary run of cases. This is a case in which one could not reasonably, or even possibly, expect there to be a pooling of resources by husband and wife. The wife has no resources at all. I am therefore satisfied that the applicant's wife's total lack of resources constitutes a special reason in this particular case for the applicant not to be treated as a member of couple.
At a higher level of generality, but still in the context of the SSA 1991 s 24 criterion, the following passage in the judgment of French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; (1999) 53 ALD 277; (1999) 29 AAR 120; [1999] FCA 106 at [18], has commonly been regarded as providing the most authoritative guidance about the meaning to be accorded to the expression “special circumstances”:
[18] The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A full court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss”: Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be “special” in relation to animals generally but “… when you are speaking of poets, he may need to be a Milton”: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70 ALR 185; 14 IR 341. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle (above) at ALR 228. Circumstances or reasons will not necessarily fall outside the designation of “special” because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Re Hutchins; Jarlas Pty Ltd v FCT (1987) 14 FCR 510; 74 ALR 455 at 473; 18 ATR 987. 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: Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324: Burchett J. 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; 27 ALD 309; 108 ALR 322.
The statement in Beadle to which French J referred, − that the term “special circumstances” was “sufficiently understood not to require judicial gloss”− does not favour any particular interpretation of the expression. The context of the statement was that the characterisation of circumstances as “special” was difficult, would depend upon “the circumstances of the particular case” and was a matter to be determined by the decision maker “bearing in mind the purpose for which the power was given”: see 60 ALR at 228. The fact that this “sufficiently understood” expression might properly be applied, despite resulting in apparently different conclusions, is readily evident from the result of the five similar matters that Beadle determined. Two of the five broadly similar matters were held not to involve “special circumstances”.
The circumstances in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 were as follows. The applicant was an age pensioner who ordinarily lived with his second wife in Western Australia. But for a number of months in 1996 and 1997, in order to finalise a custody issue involving a child from his first marriage, he lived alone in Sydney. His second wife, who was receiving newstart allowance and working part-time, remained in Perth, because of her work and study commitments as well as social ties. A delegate of the respondent refused Mr Boscolo’s application to be paid his age pension on a single basis during the months when he was living in Sydney. The Tribunal affirmed the delegate’s decision, on the basis that Mr Boscolo’s circumstances were not sufficiently uncommon or exceptional to constitute a “special reason” for the purposes of SSA 1991 s 24(1).
In setting aside the Tribunal’s decision, French J emphasised that the SSA 1991 s 24(1) criterion required regard to the position of the individual benefit or pension recipient, rather than the position of the couple. His Honour considered that the Tribunal had erred by focussing attention on either the joint decision of Mr and Mrs Boscolo not to both move to Sydney, or the reason for that decision. The error was that the Tribunal had failed to assess Mr Boscolo’s individual circumstances. In that regard it is very evident that French J was entirely sympathetic to the view that the “special reason” criterion had been satisfied. His Honour said “it might well be seen that circumstances which effectively compelled (Mr Boscolo) to live apart from his new wife for a time constituted a special reason in the particular case” why he should not be treated as a member of a couple.
The basic thrust of the earlier passage from French J’s judgment in Boscolo is that circumstances may merit contextual application as “special” even if they fall within a widely defined class or are foreseeable. This most readily emerges from French J’s reliance on the Full Federal Court decision in Jess v Scott (1986) 12 FCR 187; 70 ALR 185; 14 IR 341. That was a case involving a “special reasons” criterion for an extension of time to appeal, where a legal adviser had mistaken the date of the original judgment. After an extensive review of a range of earlier decisions that displayed marked divergences of opinion as to whether such a (readily foreseeable and pedestrian) mistake could satisfy the “special circumstances” criterion the Full Court (Lockhart, Sheppard and Burchett JJ) said (at 12 FCR 195):
… the expression “special reasons” is intended to distinguish the case from the usual course….But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.
…It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule .
The point that arose in Hutchins, Re; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 14 FCR 510 was the application of a “special circumstances” discretion to remit additional tax that would otherwise apply to late payment. The particular issue that Jenkinson J addressed was whether such a discretion could permit a general practice of remission. Jenkinson J baulked at the idea that the discretion could permit a practice of granting substantial extensions, but contemplated that a recognition of foreseeable practical exigencies would nevertheless fall within the “special circumstances” criterion. Jenkinson J said (at 14 FCR 510, 527):
If it were…assumed that the expression “special circumstances”…could not on its proper construction comprehend circumstances justifying a general remission in respect of tax paid seven days after the due date, yet, in my opinion, that expression might comprehend circumstances justifying a general remission in respect of tax paid on the day following the due date. In my opinion circumstances may fall within that expression, notwithstanding that they are circumstances which obtain in respect of a class which is widely defined and notwithstanding that they are circumstances the occurrence of which can be foreseen before they occur. It would, in my opinion, have been open to the Commissioner to have been “satisfied”, in terms of s 207(1 a)(c), at the time when the present s 207 came into force, that the vagaries of postal communication and the practical exigencies of the administration of the taxation laws with which he is charged were such as to constitute “special circumstances by reason of which it would be fair and reasonable to remit the additional tax” payable in every case in which payment of the tax other than additional tax was received by him on the day following the due date for payment of that tax.
In the latter part of the Boscolo judgment passage French J cited the judgment of Burchett J in Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 as suggesting that “special circumstances” required something “unusual or different”. But full regard to what Burchett J said (at 78 ALR 307) shows that neither he nor French J was intending to convey a meaning different from the views expressed in Beadle and Jess v Scott. The point under scrutiny in Thoo’s case was a provision of the Health Insurance Act 1973, and Guidelines authorised by the Act, which required regard, unless special circumstances applied, to a presumption favouring disqualification where a medical practitioner had been found guilty of a second relevant offence. Burchett J had regard to the context of the “special reasons” discretion and said (at 78 ALR 324):
… it is particularly important that the broad discretions, created to give a lively flexibility to the administration of the scheme, should not by the gradual deposition of judicial decisions become fossilised into rigidity. Those discretions are intended to be applied to a great variety of situations. In such a context, the core of the idea of “special circumstances” is that there is something unusual or different to take the matter out of the ordinary course, according to which the presumptions set out in the clause would be expected to apply. As a result, the ordinary course appears less appropriate or fair: cf Crabtree v Hinchcliffe (Inspector of Taxes) [1972] AC 707 at 731 per Lord Reid; Jess v Scott (1986) 12 FCR 187 at 195 ; 70 ALR 185; R v Secretary of State for Home Department;; Ex parte Mehta [1975] 1 WLR 1087; Re X and Adoption of Children Ordinance 1965 (1984) 2 FCR 533; Cortez Investments Ltd v Olphert & Collins [1984] 2 NZLR 434 at 437, 439, 411.
More specifically, there is authority for the view that the “special reason” discretion should be exercised, in favour of the pension holder where there are practical reasons why the “members of a couple” cannot pool their resources in the manner contemplated by the policy underlying the legislative use of that concept. This approach was apparent in the decision in Hawkins (see paragraph 11 above). It was implicit in French J’s approach in Boscolo. It was expressed in Cocks v Centrelink (2000) 32 AAR 360; (2001) 4(10) SSR 124; [2000] FCA 1248. In Gordon v Secretary, Department of Employment and Workplace [2006] AATA 792 DP Groom took a similar approach and said (at [47]) that the evident intention of the SSA 1991 s 24(1) was “to allow the higher payment rate when the other member of the couple is unable or unwilling adequately to contribute financially to the household”. The same approach was evident again in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084. In that case Justice Barker referred to a decision of the Tribunal in Holt and Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143, and continued with the following observation:
[41] The caselaw canvassed by Senior Member Creyke in Holt’s case confirms, in my view correctly, that there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that 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.
[42] It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a graph exercising the discretion under section 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.
More recently, in Pala and Secretary, Department of Social Services [2014] AATA 313 (at [54]) Senior Member Redfern applied the reasoning in Hawkins and Boscolo in holding that relevant “special reasons” existed when a Japanese citizen spouse spent substantial periods of time overseas in Japan away from her pensioner spouse and making no contribution to the household income and expenses.
Mr Liang supports his application by pointing to an application he made in relation to his wife’s similar absence from January to July 2013. That application, although initially rejected by the Secretary, resulted in review proceedings in the Tribunal which were consensually resolved, by a formal determination by the Tribunal that Mr Liang should not be treated as a member of a couple for the period of Mrs Xie’s absence in China “for a special reason in the Applicant’s particular case”. Mr Liang says that his wife’s absences in China obviously prevent the kind of resource pooling contemplated by SSA 1991 s 1064-A2. He also points to the fact that Mrs Liang had no income while she was away, and had no assets of any significance. Her absence, discharging a family responsibility to care for her elderly mother, involved significant financial hardship.
The Secretary was aware, both at the time of Centrelink’s internal review decision, and the SSAT’s decision, of the Tribunal’s prior (13 December 2013) decision favouring Mr Liang, and that it involved similar circumstances. However, Centrelink dismissed the prior decision as irrelevant, because it was a determination made under s 42C of the AAT Act as a result of the parties’ consent. Centrelink speculated that there might be many reasons for such a consent. The SSAT disregarded the prior determination as unexplained by the details of the agreement, and irrelevant and non-binding because it involved a different application.
I regard this dismissal of the potential significance of the Tribunal’s prior determination as unsatisfactory. Parties cannot simply confer jurisdiction on the Tribunal by their consensual agreement. The making of an order or decision under AAT Act s 42C is contingent upon the Tribunal’s satisfaction about its own power, and the appropriateness of the decision. And a decision of the Tribunal under section 42C is a decision of the Tribunal, not just the agreement of the parties. In judicial fora there is a practice of obtaining judgments or orders that are expressly recorded as having been made “without admission of liability”. There is substantial authority for the view that orders or judgments of that kind do not give rise to any relevant estoppel in relation to the points at issue in the proceedings: see Isaacs v Ocean Accident & Guarantee Corporation Ltd& Winslett (1958) SR (NSW) 69 and Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 91. But the authorities are not all one way. Where a particular decision maker’s jurisdiction or powers depend upon satisfaction about a particular event or state of affairs, the power cannot be conferred by an agreement made “without admissions”: see Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484. In any event, there is nothing to suggest that the Tribunal’s 2013 decision was made “without admission of liability”. Nor is there an evidentiary basis merely to speculate, and especially not having regard to a decision maker’s primary statutory function, and its more specific obligations under AAT Act s 33(1AA), that the Tribunal’s formally recorded decision in an admittedly “similar case” may simply be disregarded because one or other of the parties may have agreed to the determination for additional or extraneous reasons.
Of course a prior determination of the Tribunal is not necessarily determinative of any particular application. But in the exercise of a statutory function, where consistency of decision making is desirable, the previous resolution of an apparently similar controversy between the same parties ought not be disregarded without actual, and justifiable, satisfaction that it is indeed irrelevant or erroneous.
One aspect of the reasoning that has influenced the Secretary’s approach to Mr Liang’s current application is that Mrs Xie’s return to China in February 2014 was substantially voluntary, and really amounted to no more than her subjective preference to visit China for a time. In support of that view the Secretary dismissed both Mr Liang’s and Mrs Xie’s contention that there was a relevant Chinese legal obligation for children to support their parents.
It is not necessary in my view to attempt to come to any final view about the actual content of Chinese law in this regard. It is sufficient merely to observe that (i) there is a an apparent justification for Mr Liang and Mrs Xie’w view that to some extent, Chinese laws can be enforced so as to require children to provide financial support, and physical assistance, to their parents; (ii) it is problematical whether or not any such obligations (assuming they existed) could be meaningfully enforced against Mrs Xie whilst she resided in Australia. But irrespective of the precise potential impact of Chinese law on Mrs Xie, if one accepts that she returned to, and remained in, China to care for her elderly mother, then I regard it as inappropriate to characterise that conduct as relevantly a matter of merely subjective preference. It is inappropriate because it fails to take into account that Mrs Xie’s return to China recognised a filial obligation to her mother. That obligation was the stronger because of (i) her cultural values, (ii) the sense of obligation she had to her mother, as a result of having lived with her mother for many years, after a previous divorce and prior to her marriage to Mr Liang, and (iii) the financial hardship involved in forfeiting payment of her newstart allowance whilst she was overseas in China.
In any event, in the exercise of the SSA 1991 s 24(1) discretion, it is necessary to consider both the questionable significance of characterising a decision as “voluntary” and also the importance of identifying the person actually responsible for such a decision. In relation to the questionable significance of a “voluntary” decision, it is necessary only the repeat the observations of Senior Member Creyke in Holt v Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143:
29. There has been a tendency in the cases to treat the expression ‘for a special reason in the particular case’ in section 24(1)(c) as being equivalent to the expression ‘special circumstances’ used elsewhere in the Act. Undoubtedly, both expressions – ‘special circumstances’ and the ‘special reason in the particular case’– do grant a wide discretion to the decision-maker. Nonetheless, choice of a different expression when it could have been expected that another, well used expression of similar import would suffice, indicates a legislative intention to differentiate between the two. On that basis, some caution should be exercised about relying on the cases which deal with the meaning of ‘special circumstances’. The Tribunal notes that there appears to be a division of opinion in the cases as to whether the two expressions are equivalent, as is indicated in the Guide to Social Security Law at [24.05].
30. The Tribunal’s concern about eliding the two expressions is that a number of the cases and the Guide import a requirement that whatever the ‘special reason’, it must be ‘outside the couple’s or individual’s control and cannot be changed’. The quotation is taken from the Guide to Social Security Law (Guide) at 2.2.5.50, which relates to the discretion in section 24 to treat a person as not being a member of a couple for a special reason. This additional criterion would appear to have originated from the tests for ‘special circumstances’ which in two of the ‘special circumstances’ provisions in the Act contain a requirement that not only must there be ‘special circumstances’ but they must be ‘beyond the person's control’. No such criterion is written into the ‘special reason in the particular case’’ provisions in the Act. For that reason, caution should be exercised about importing any such requirement.
In relation to the significance of a decision made by the applicant’s spouse, it is necessary to acknowledge, as French J pointed out in Boscolo, that the statutory discretion requires regard to the reasons why it is (or is not) appropriate to treat Mr Liang as a member of a couple. In the present case it was Mrs Xie who returned to China and, as I have found, to care for her elderly mother. There is no basis for thinking that Mr Liang was responsible for that decision, or had any control over it. No doubt it may inferred, because it was an inherently reasonable and understandable decision, that he at least acquiesced, but there is no basis for finding, in the light of Mrs Xie’s evidence, that it was anything other than her strong preference and her decision. In that respect Mr Liang’s position is analogous to that of Mr Lada, whose wife chose to obtain her medical treatment in Austria, even though reasonable and appropriate medical treatment would have been available to her in Australia. In Lada v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1496 the Tribunal held that Mr Lada satisfied the “special reason” criterion, because he had no control over his wife’s decision to return to Austria for medical treatment and there were, consequently, no available resources for him to pool.
Similarly, I regard the Secretary’s view that Mr Liang should resort to his very modest superannuation entitlement to address any element of financial hardship attributable to his wife’s overseas absence, as inappropriately doctrinaire. Mr Liang’s available superannuation benefit is less than $3,000. He said that he intends that it should be available to meet his funeral expenses. Such an allocation of that modest sum, to meet an inevitable expense, is an entirely prudent and proper approach. I do not regard Mr Liang’s small superannuation benefit entitlement as detracting at all from his claim of financial hardship attributable to Mrs Xie’s absence in China. As the Tribunal (Member Webb) observed in Lada (at [18] and [39]) the purpose of the age pension is to provide income support to enable entitled recipients to live without great hardship. That purpose does not require the Commonwealth to exercise its statutory discretions in a way that drives applicants to the risk of penury or destitution. In that context, whilst financial hardship is a potentially relevant consideration in the application of SSA 1991 s 24(1), and despite any suggestion to the contrary in the Guide, I agree with the view of DP Hack in Purdie and Secretary, Department of Social Services [2013] AATA 743 (at [14]) that financial hardship is not a necessary pre-condition to satisfaction that the “special reason” criterion has been satisfied in a particular case.
In relation to that claim of financial hardship, the facts are that Mr Liang has very few assets. Those assets are detailed in a Centrelink statement dated 4 February 2014. Apart from the superannuation benefit referred to above, Mr Liang had a cash balance of $22 (as at 20 September 2013), household and personal effects of $250 and a car valued at $800. Mr Liang’s bank balance as at 7 February 2014 was $16.36. Mr Liang’s fortnightly age pension payment in June 2014 was about $635 gross. He actually received about $450 per fortnight after deductions, including his government housing rental. He estimated that his total weekly expenses (including rent) were about $300. Arithmetically the approximation suggests that, with good management, Mr Liang would have a small weekly surplus from his pension payments. And in the past Mr Liang had been able to provide funds for his wife (some $500) when she went to China, and to repay money ($800) he borrowed for his own air fares to China. (Mr Liang’s son lives in Shanghai.) But Mr Liang’s actual bank balance as at February 2014 sufficiently shows that his means are very, very limited.
In so far as Mr Liang’s financial circumstances are relevant to, but not determinative of, the present application, it is appropriate to note that Mrs Xie is qualified to receive newstart allowance, and it was being paid to her before she went to China in early 2014. She resumed her entitlement, and received further payments, following her return (as had occurred after her 2013 return from China). In those circumstances the fact is that the total benefits to which Mr Liang and Mrs Xie would be entitled to as a couple when they reside together in Australia, are likely to be significantly greater than the single age pension payment Mr Liang is pursuing in the present application. In other analogous circumstances vigorous opposition to the exercise of the SSA 1991 s 24 discretion has been criticised as involving an unacceptable “parsimony”: see Cocks v Centrelink (2000) 32 AAR 360; (2001) 4(10) SSR 124; [2000] FCA 1248 per O’Loughlin J. Somewhat less caustically, the prospect of such a notional “saving” to the Commonwealth has been regarded as contributing to satisfaction that the particular case does provide “special reasons” for satisfaction that an applicant should not be treated as a member of a couple: Purdie and Secretary, Department of Social Services [2013] AATA 743 at [16].
I said earlier that my disinclination to characterise Mrs Xie’s absence in China as a merely discretionary preference depended upon accepting her claim that she went to China, and remained there, in order to care for her elderly mother. What she said about that, in addition to her explanation about the phone call she received from her mother in late January 2014, was as follows. Mrs Xie’s mother is a widow aged 78 and lives in Guangzhou. Mrs Xie had lived with her mother for about 10 years after her own divorce in about 1996. Mrs Xie’s mother went into hospital in about January 2014 because she had kidney stones. But she was regarded as too old to have corrective surgery and she was sent home. Her mother had other health problems as well as the kidney stones and when she went home she was not able to look after herself. Mrs Xie stayed with her until she was sufficiently recovered.
Mrs Xie’s mother asked her to come and help because she had a closer relationship with her mother, and because her parents had provided for her after her previous divorce. Her mother was actually so unwell that she thought she might die. Probably because of that fear, some of Mrs Xie’s siblings also visited her mother. Mrs Xie is one of four siblings. Her two brothers live in Hong Kong and the USA. They provide some financial support for their mother, but the brothers were not in a position to provide nursing and daily care. Mrs Xie has a younger sister who does live in Guangzhou, about 30 kilometres away from her mother’s home. Normally, when their mother is reasonably well, her sister does look after her to the extent that she needs occasional help. But her sister’s health is not good. She has high blood pressure and suffers from gout.
From early March to mid-April 2014 Mr Liang himself went to China and visited his son in Shanghai. Mrs Xie did not visit him there, nor did she return to Australia with him. She remained in Guangzhou until the end of April 2014.
There was no serious challenge to Mrs Xie’s evidence about the reason for her sudden travel to China in February 2014, or the length of her stay there. Bearing in mind that it involved her being separated from her husband for a substantial time, and ceasing to receive the newstart allowance she had previously been paid, I accept Mrs Xie’s evidence. I find that she travelled to China because of family exigency, the illness and incapacity of her elderly mother, and that her absence from her Australian residence with Mr Liang was in no relevant sense a matter of mere lifestyle preference. It was the fulfilment of a filial obligation.
DECISION
I am satisfied that there is “special reason” in Mr Liang’s particular case for not treating him as a member of a couple. That special reason derives from the combination of (i) Mrs Xie’s substantial period of absence in China caring for her elderly mother; (ii) the absence of financial contribution by her, during her absence, to any pooling of the couple’s resources; (iii) the fact that Mrs Xie effectively forfeited payment of newstart allowance during her period of absence; (iv) Mr Liang’s very modest financial circumstances – meaning that he has no assets of any real significance and applies virtually the totality of his income to meeting living expenses; and (v) the unreasonableness of requiring Mr Liang to resort to his very small superannuation entitlement to meet his ongoing expenses, when he had reasonably allocated that sum towards defraying the funeral expenses that his estate will likely have to bear.
The decision under review is set aside. In substitution for that decision I determine that Mr Liang should not be treated as a member of a couple for the period from 1 February 2014 until 30 April 2014.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
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Associate
Dated 29 April 2015
Date of hearing 12 February 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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