Riveiro; Secretary, Department of Social Services and (Social services second review)

[2020] AATA 4530

Riveiro; Secretary, Department of Social Services and (Social services second review) [2020] AATA 4530 (11 November 2020)

Division:GENERAL DIVISION

File Number:          2020/0185

Re:Secretary, Department of Social Services

APPLICANT

Antonio RiveiroAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:11 November 2020

Place:Sydney

The decision under review is set aside and, in substitution, the Administrative Appeals Tribunal decides the discretion in subsection 24(1) of the Social Security Act 1991 (Cth) does not apply to Mr Antonio Riveiro and he is to be paid the partnered rate of age pension from 11 June 2018.

.....[sgd]...................................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – age pension – where the respondent should be paid age pension at single or partnered rate – member of a couple – where respondent’s partner is retired and not able to access social security – section 24 discretion – special reason – whether couple able to pool resources – financial difficulty – respondent’s situation not uncommon or exceptional – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Guides to Social Policy Law – Social Security Guide, released 9 November 2020

REASONS FOR DECISION

Dr L Bygrave, Member

11 November 2020

INTRODUCTION

1. The respondent, Mr Antonio Riveiro, was granted age pension paid at the single rate on 24 November 1999.

2. Ms Elda Duharte, a Cuban national, arrived in Australia on 22 October 2013 on a subclass 300 prospective marriage visa and, on 9 November 2013, Mr Riveiro married Ms Duharte.

3. The Department of Human Services (now Services Australia) (Centrelink) determined in 2015 that Mr Riveiro was a member of a couple with Ms Duharte from 22 October 2013 and raised an age pension debt on the basis that he had been paid age pension at the single rate rather than the partnered rate.

4. Mr Riveiro sought review of this decision and, on 5 April 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) decided that Ms Duharte did not have any assets or income and so Mr Riveiro should be paid the single rate of age pension until Ms Duharte ‘becomes lawfully entitled to work in Australia’.[1]

   [1] Exhibit T-T7, page 43.

5. Ms Duharte was granted a subclass 801 partner visa (permanent) on 4 October 2016.

6. On 11 June 2018, Centrelink decided to pay Mr Riveiro the partnered rate of age pension.

7. Mr Riveiro sought review of this decision and, on 2 October 2019, an authorised review officer of Centrelink affirmed the decision.

8. On 18 October 2019, Mr Riveiro applied to the SSCSD for review. The SSCSD decided on 10 December 2019 that Mr Riveiro is ‘not to be treated as a member of a couple from 11 June 2018 to 21 October 2023 and that the single rate of age pension is payable to him during this period’.[2]

   [2] Exhibit T-T2, page 3.

9. The Secretary of the Department of Social Services (the Secretary) subsequently filed an application for review of the SSCSD decision made on 10 December 2019 with the General Division of the Tribunal.

10. The matter was heard on 29 October 2020. Mr Riveiro was represented by his niece, Ms Isabel Bentancor. Both Mr Riveiro and Ms Duharte attended the hearing and provided oral evidence with the assistance of an interpreter of the Spanish language.

    RELEVANT LEGISLATION AND ISSUE

11. Section 1064 of the Social Security Act 1991 (Cth) (the Act) sets out that the rate of a person’s age pension is affected by factors including whether they are single or partnered. The partnered rate of payment is less than the single rate because it is anticipated that where two people are members of a couple, they will pool their resources (income and assets) and share their expenses.

12. Subsection 24(1) of the Act provides that a person may be treated as not being a member of a couple (as defined in subsection 4(2) of the Act) 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 [emphasis added].

13. The undisputed facts of this matter are that Mr Riveiro and Ms Duharte are legally married to each other and are living together; the requirements in paragraphs 24(1)(a) and (b) are met.

14. Therefore, the sole issue for determination by the Tribunal is whether Mr Riveiro should, for a special reason in his particular case, not be treated as a member of a couple as set out in paragraph 24(1)(c) of the Act.

15. The Social Security Guide (the Guide) offers guidance on the interpretation and application of this discretion. Although I am not bound to strictly apply the Guide, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

    [3] [1979] AATA 179; (1979) 2 ALD 634.

16. The Guide, at topic 2.2.5.50, states that section 24 of the Act ‘exists to deal with unfair, inequitable and/or unjust anomalies’ and ‘should only be applied when all other reasonable means of support have been explored and exhausted’. The Guide sets out three questions that need to be considered when assessing the circumstances of the case:

    ·Is there a special reason to be considered in this couple’s circumstances? The Guide notes that a person’s circumstances must be ‘unusual, uncommon, abnormal or exceptional’; noting that ‘financial difficulty is not, of itself, sufficient to constitute “special reason”’.

    ·Is there a lack of being able to pool resources for the couple as a result of the circumstances? The Guide sets out that, in ordinary circumstances, it is expected that members of a couple will pool their resources and share their expenses: there should be consideration as to whether ‘either member of the couple has access to any social security or other support that has not been explored or realised’.

    ·Is there financial difficulty as a result of the couple’s circumstances? The Guide describes ‘financial difficulty’ for this purpose as ‘not being able to provide for accommodation and the basic necessities of life’. In considering a person’s overall financial situation, the Guide states that a person’s income and available funds from assets should be compared to their ‘necessary expenditure’ that could include utilities, rates, rent, groceries, transport and loan repayments.

    EVIDENCE

17. The circumstances of Mr Riveiro and Ms Duharte as set out in their evidence to the Tribunal are as follows:

    ·Mr Riveiro is 86 years old and Ms Duharte is 70 years old. Mr Riveiro has lived in Australia since 1969; he worked until he retired and was granted age pension at the single rate in 1999. Ms Duharte is a Cuban national who worked as a qualified general medical practitioner prior to retiring when she was aged 63 years.

    ·Mr Riveiro and Ms Duharte met and fell in love; Ms Duharte subsequently moved to Australia on 22 October 2013 and married Mr Riveiro on 9 November 2013.

    ·Mr Riveiro receives the age pension at the partnered rate, which is currently $648.70 per fortnight (plus supplementary payments) and earns interest of $355 per annum. Mr Riveiro owns his home in Sydney unencumbered. He listed his general expenses (rates, insurance, utilities, phone and internet) as $223 per fortnight; his household expenses (groceries and medical) as $530 per fortnight; and his transport expenses (car and public transport) as $116 per fortnight. Mr Riveiro has savings in six bank accounts (including an account he opened in Ms Duharte’s name after they married and a joint account he holds with Ms Duharte); the combined savings in these accounts currently totals approximately $84,000.

    ·Ms Duharte’s evidence is that, due to the communist regime in Cuba, she came to Australia with no assets, savings or income. While Ms Duharte worked as a medical practitioner in Cuba, she is unable to seek employment in Australia due to her age and limited English. Ms Duharte is not eligible to receive age pension until she has ten years qualifying Australian residence on or after 4 October 2026.

18. At the Tribunal hearing, Mr Riveiro said that he did not expect Ms Duharte to receive social security benefits from the Australian government; however, he thought it ‘was logical’ that he should continue to be paid the age pension at the single rate after he married Ms Duharte because he needed to support them both financially.

19. Mr Riveiro accepted that he and Ms Duharte are able to meet their necessary expenditure of utilities, rates, groceries, medical and transport costs from his age pension (partnered) payments and savings. However, he said they are unable to afford ‘luxuries’ such as eating out at restaurants, attending rugby matches or travelling overseas, and they rely on the generosity of Ms Bentancor for items such as chocolate.

20. Mr Riveiro also told the Tribunal that he is concerned about future expenses: these include surgery for varicose veins (estimated at $5,000 to $10,000), a new car (estimated at $30,000), a new fridge and stove (combined estimated at $3,800) and restoration of the roof (estimated at $12,000). However, Mr Riveiro did not provide any detail about the urgency of these expenses, supporting evidence (for example, quotes or medical reports), or adequately explain why his surgery could not be undertaken in the public hospital system.

21. Ms Duharte, both in a written statement dated 8 August 2020 and in her oral evidence, described that Mr Riveiro has been diagnosed with hypertension, arthritis, neck pain, aortic sclerosis and heart arrythmia, and that she provides daily care for him and assists him to take his medications.

22. Both Mr Riveiro and Ms Duharte gave emotional evidence about the impact of Mr Riveiro’s age pension being reduced to the partnered rate. It is clear they feel unfairly penalised that, in circumstances where Ms Duharte cannot work and is unable to receive the age pension, Mr Riveiro is paid the age pension at the partnered, rather than single, rate.

    CONSIDERATION

23. I now consider whether there is a special reason to not treat Mr Riveiro as a member of a couple for the purpose of his rate of age pension, having regard to the questions outlined in the Guide.

    Is there a ‘special reason’ in the couple’s circumstances?

24. While Ms Duharte’s permanent visa status permits her to work in Australia, I accept that for practical and understandable reasons – including Ms Duharte’s age, limited English and requirement to care for Mr Riveiro – she has not sought paid employment. I also accept that Ms Duharte has no income, assets or savings other than the bank account she holds jointly with Mr Riveiro and a savings account with a balance of $1,222 that Mr Riveiro opened in her name after they married.

25. Mr Riveiro has continued to receive age pension since marrying Ms Duharte, albeit since 11 June 2018 at the partnered rather than the single rate; a difference of approximately $212 per fortnight.[4] Mr Riveiro owns his house unencumbered and retains savings of approximately $84,000, although these savings have reduced since 2018.

    [4] A guide to Australian Government payments sets out the basic rate of age pension at the single rate is $860.60 and member of a couple rate is $648.70.

26. While Mr Riveiro and Ms Duharte contend these circumstances are unusual and it is unfair to treat them as members of a couple, I am not satisfied their situation is either uncommon or exceptional. There is nothing exceptional about one member of a couple financially supporting their partner from their social security pension and savings. In particular, I cannot make a finding that there is a ‘special reason’ or that they are in ‘financial difficulty’ in circumstances where Mr Riveiro owns his home unencumbered and has savings of more than $84,000.

    Is there a lack of being able to pool resources for the couple as a result of the circumstances?

27. Mr Riveiro receives the age pension paid at the partnered rate. Mr Riveiro and Ms Duharte live together; they pool their resources and share their expenses. While Ms Duharte does not have her own income or assets, she undertakes domestic duties including cleaning, cooking and washing, and provides daily care to Mr Riveiro.

28. I find no evidence that Mr Riveiro and Ms Duharte are unable to pool their resources as a result of their circumstances.

    Is there financial difficulty as a result of the couple’s circumstances?

29. As stated in the Guide, a person’s financial situation requires consideration of any income and available funds to them compared to their ‘necessary expenditure’ on utilities, rates, groceries, transport and medical costs.

30. Based on the evidence, I accept that the expenditure of Mr Riveiro and Ms Duharte is higher than the rate of Mr Riveiro’s age pension. However, Mr Riveiro has given no reason why he is unable to continue to access his savings to pay for any shortfall between his expenditure and pension, and has provided no evidence to support future expenses of a car, household items and roof repairs.

31. I find there is no evidence of financial difficulty as a result of the circumstances of Mr Riveiro and Ms Duharte.

    CONCLUSION

32. Weighing all the evidence, I am not satisfied there is a special reason at this time to not treat Mr Riveiro as a member of a couple for the purpose of the rate of his age pension.

    DECISION

33. The decision under review is set aside and, in substitution, the Tribunal decides the discretion in subsection 24(1) of the Act does not apply to Mr Riveiro and he is to be paid the partnered rate of age pension from 11 June 2018.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ­

................[sgd]........................................................

Associate

Dated: 11 November 2020

Date of hearing:	29 October 2020
Advocate for the Applicant:	Ms I Bentancor
Solicitors for the Respondent:	Dr S Thompson, Services Australia