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

[2020] AATA 2321

Saber and Secretary, Department of Social Services (Social services second review) [2020] AATA 2321 (16 July 2020)

Division:GENERAL DIVISION  

File Number:          2019/1321

Re:Jason Saber

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:16 July 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – age pension – rate – member of a couple – whether the applicant is living separately and apart from the other person on a permanent or indefinite basis – separated under one roof – circumstances of the relationship – decision under review affirmed

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

Social Security Guide

REASONS FOR DECISION

Dr L Bygrave, Member

16 July 2020

INTRODUCTION

1. On 25 April 2018, Services Australia[1] decided Mr Jason Saber was a member of a couple with the consequence that Mr Saber is paid age pension at the partnered rate. This decision was affirmed by an authorised review officer of Services Australia on 7 November 2018.

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

2. Mr Saber applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 14 February 2019, the SSCSD affirmed that Mr Saber was a member of a couple as at 25 April 2018.

3. On 11 March 2019, Mr Saber made an application for review to the General Division of the Tribunal.

4. The matter was heard in Sydney on 23 June 2020. Mr Saber did not have legal representation; he attended the hearing and provided oral evidence to the Tribunal by conference telephone.

   ISSUE

5. The sole issue for determination by the Tribunal is whether Mr Saber was a member of a couple as at 25 April 2018 for the purpose of his rate of age pension.

   RELEVANT LEGISLATION

6. The rate of age pension is calculated in accordance with section 1064 of the Social Security Act 1991 (Cth) (the Act) and is affected by whether a person is single or a member of a couple. The partnered rate of age pension is less than the single rate because where a person is a member of a couple, it is expected they will pool their resources and share their expenses.

7. Subsection 4(2) of the Act states that a person is a member of a couple if they are legally married or in a relationship with another person and they are not living separately or apart from each other on a permanent or indefinite basis.

8. Pursuant to subsection 4(3) of the Act, when forming a view on whether a person is living separately and apart from the other person on a permanent or indefinite basis, all the circumstances of the relationship are to be considered, in particular:

   (a)  the financial aspects of the relationship, including:

   (i)  any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)  any significant pooling of financial resources especially in relation to major financial commitments; and 

   (iii)  any legal obligations owed by one person in respect of the other person; and

   (iv)  the basis of any sharing of day-to-day household expenses;

   (b)  the nature of the household, including:

   (i)  any joint responsibility for providing care or support of children; and

   (ii)  the living arrangements of the people; and

   (iii)  the basis on which responsibility for housework is distributed;

   (c)  the social aspects of the relationship, including: 

   (i)  whether the people hold themselves out as married to, or in a de facto relationship with, each other; and 

   (ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and 

   (iii)  the basis on which the people make plans for, or engage in, joint social activities;

   (d)  any sexual relationship between the people;

   (e)  the nature of the people's commitment to each other, including:

   (i)  the length of the relationship; and

   (ii)  the nature of any companionship and emotional support that the people provide to each other; and 

   (iii)  whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)  whether the people see their relationship as a marriage-like relationship or a de facto relationship.

9. Section 24 of the Act also provides that a person may be treated as not being a member of a couple 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]

10. The Social Security Guide (the Guide) provides direction about exercising the discretion in section 24 of the Act. The Guide represents government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    CONSIDERATON – IS MR SABER A MEMBER OF A COUPLE?

11. Mr Saber has been married to Mrs Nadia Albassit since 1979.[2] They are the parents of four adult children. Mr Saber has been in receipt of age pension at the partnered rate from 17 December 2013. Mrs Albassit received carer payment at the partnered rate for the care she provided to Mr Saber between 17 May 2013 and 27 April 2018.[3]

    [2] ‘Albassit’ is her maiden name; she has previously been known as Mrs Nadia Saber.

    [3] Exhibit T-T10, page 78.

12. On 22 November 2017, Mr Saber completed a Relationship details – Separated under one roof form in which he declared he separated from Mrs Albassit on 7 July 2017. Mrs Albassit also completed a Relationship details – Separated under one roof form that she lodged with Services Australia on 18 December 2017, confirming they separated on 7 July 2017.

13. Evidence before the Tribunal about the circumstances of the relationship between Mr Saber and Mrs Albassit as outlined in subsection 4(3) of the Act comprises:

    ·Services Australia records in relation to Mr Saber and Mrs Albassit;

    ·written statements filed with the Tribunal by Mr Saber; and

    ·oral evidence provided by Mr Saber, Mrs Albassit and Ms Stephanie Iamundi to the Tribunal.

    The financial aspects of the relationship

14. Services Australia documents show that Mr Saber and Mrs Albassit have lived at the same home address since November 1991. Mr Saber and Mrs Albassit told the Tribunal they continue to share this address; however, since 7 July 2017, Mrs Albassit has resided in the house while Mr Saber has lived in a converted garage on the property.

15. Mr Saber and Mrs Albassit jointly own and have a joint mortgage over their home property. They provided documentary evidence that they equally share the mortgage repayments, council rates and water/electricity/gas and phone/internet payments in relation to their home property. They jointly own basic household goods and appliances. In November 2018, Mr Saber informed Services Australia that he and Mrs Albassit had recently renegotiated their mortgage repayments but had not informed the bank they were separated.[4]

    [4] Exhibit R3.

16. At the Tribunal hearing, Mr Saber said that he continues to live at this home address for financial reasons as he cannot afford to find a place to rent and live by himself. In her Relationship details – Separated under one roof form, Mrs Albassit declared she pays for ‘household food and keeping of home’, and does ‘all the shopping, and pay[s] for it’.[5] However, Mrs Albassit told the Tribunal she stopped paying for groceries and food when she ceased receiving carer payment for Mr Saber in April 2018.

    [5] Exhibit T-T5, page 47.

17. Mr Saber told the Tribunal he was employed on a part-time basis for about seven months, including the period when he lodged his Relationship details – Separated under one roof form in November 2017 and when Services Australia assessed he was a member of a couple with Mrs Albassit on 25 April 2018. Mr Saber stated he applied to be considered as separated from Mrs Albassit in part because his income affected the rate of Mrs Albassit’s carer payment.

18. The evidence before the Tribunal shows that Mr Saber and Mrs Albassit hold separate bank accounts, own and maintain separate cars, and have separate Medicare cards.

19. Based on the evidence, I am satisfied Mr Saber and Mrs Albassit jointly own real estate and so have substantial financial and legal obligations to each other. I am further satisfied that, as at 25 April 2018, Mr Saber and Mrs Albassit shared household costs including mortgage repayments, council and utilities payments, and groceries; this shows a significant pooling of financial resources.

20. I find the financial aspects strongly weigh for Mr Saber and Mrs Albassit being in a member of a couple relationship.

    The nature of the household

21. The Relationship details – Separated under one roof forms submitted by Mr Saber and Mrs Albassit declare they separated on 7 July 2017; but Mrs Albassit continued to prepare meals, clean and do the laundry for Mr Saber because she was his carer. Mrs Albassit declared that she would provide care or practical support to Mr Saber in circumstances of illness, personal crisis, money matters and family disputes because she is ‘the carer’ and ‘he is unwell’.[6]

    [6] Exhibit T-T5, page 44.

22. Mr Saber and Mrs Albassit told the Tribunal they had an argument on 7 July 2017 and Mr Saber subsequently moved to live in the converted garage, which is self-contained and separated from the main house by the backyard. However, Mrs Albassit said she continued to provide meals and care for Mr Saber until she stopped receiving carer payment for him on 27 April 2018.

23. In oral evidence to the Tribunal, both Mr Saber and Mrs Albassit said they rarely see each other despite living at the same property. Mr Saber said he is ‘better now’ and is able to prepare his own meals, clean and do his laundry, drive his car, and undertake household maintenance of the converted garage. Mr Saber organises council and utilities payments after Mrs Albassit pays him her share of the bills.

24. Mrs Albassit confirmed she now receives carer payment for care she provides her father. She continues to clean the main house and maintain the garden. She cares for their grandchildren, and hosts friends and family members at the main house without Mr Saber. They both submitted that they have maintained separate households since 7 July 2017. 

25. There was some inconsistency between the documentary evidence and the oral evidence of Mr Saber and Mrs Albassit in relation to the nature of their household/s. In part, this is explained by the relationship of Mrs Albassit providing care for Mr Saber as his paid carer. I note there is a need in these circumstances to separate the attributes of their relationship as members of a couple from their relationship as a carer and a care receiver. The inconsistency also appears to be due to the completion of the Relationship details – Separated under one roof forms lodged by Mr Saber and Mrs Albassit with Services Australia, by Ms Stephanie Iamundi, the sister-in-law of Mrs Albassit. I note that both these forms are almost identical in content, completed in the same handwriting but signed on different dates by Mr Saber and Mrs Albassit. Mr Saber told the Tribunal he could not recall if he was present when his form was completed by Ms Iamundi. In view of Mr Saber’s oral evidence, I have concerns about the integrity of these forms and the information declared.

26. The evidence before the Tribunal indicates that Mr Saber and Mrs Albassit have maintained separate households, albeit on the same property, since July 2017. The Guide notes that ‘where one party is residing in a separate fully-contained dwelling such as a flat attached to the home…it is more likely to be considered that the person is living separately and apart’.[7] [emphasis added] Nonetheless, as at 25 April 2018, Mrs Albassit continued to provide care for Mr Saber including preparing meals, cleaning and laundry; although purportedly as his paid carer rather than as his wife.

    [7] Social Security Guide, section 2.2.5.30.

27. The Tribunal finds that the nature of separate households between Mr Saber and Mrs Albassit weighs slightly against them being in a member of a couple relationship.

    Social aspects of the relationship

28. Mr Saber and Mrs Albassit remain married. They told the Tribunal they have only informed their adult children that they are living separately at the same property. Mr Saber said that he has not informed his extended family, who live overseas, that he is separated. Mrs Albassit said that her extended family reside in Sydney but only her sister and sister-in-law (Ms Iamundi) know they have separated; she said she provides excuses that Mr Saber is unwell when he does not attend family events. Neither Mr Saber nor Mrs Albassit have told friends they are separated; Mrs Albassit said they ‘pretend to be married’. Mr Saber and Mrs Albassit said they last attended a social gathering together about two years ago.

29. Mr Saber provided a brief letter written by Dr George Nema (general practitioner) on 13 May 2019, which stated that Mr Saber had informed him that ‘there has been a lot of trouble with his wife and they have been separated for 2 years’.[8] Ms Iamundi also provided a brief written statement on 28 April 2020 that included the declaration that Mr Saber and Mrs Albassit ‘live together purely for financial reasons and for family reasons’.[9] Ms Iamundi confirmed this in her oral evidence to the Tribunal.

    [8] Exhibit A1.

    [9] Exhibit A5.

30. Based on the evidence, I find that Mr Saber and Mrs Albassit remain married and present socially to their extended families as a married couple. I am satisfied that the social aspects of their relationship weigh towards Mr Saber and Mrs Albassit being members of a couple.

    Any sexual relationship between the people

31. Mr Saber and Mrs Albassit no longer have a sexual relationship. I am satisfied this factor weighs against Mr Saber and Mrs Albassit being in a member of a couple relationship.

    The nature of the people’s commitment to each other

32. Mr Saber and Mrs Albassit remain married after 41 years; their reasons for living together are financial and to ‘not make it harder’ on their children and grandchildren. Mr Saber told the Tribunal that if he and Mrs Albassit divorce, they would be unable to see each other due to their religion and culture. Neither Mr Saber nor Mrs Albassit told the Tribunal they have re-partnered; I note that Mrs Albassit previously told Services Australia that they are not free to re-partner while they remain married.

33. In view of the length of Mr Saber and Mrs Albassit’s marriage and their plans to continue living indefinitely at their home address, I am satisfied they have an ongoing commitment to each other. I find that this factor weighs strongly for Mr Saber and Mrs Albassit being in a member of a couple relationship.

    Is there a ‘special reason’ to exercise the discretion in section 24 of the Act?

34. Pursuant to section 24 of the Act, I also consider whether there is a ‘special reason’ in the particular instance of Mr Saber to exercise the discretion to treat him as not being a member of a couple. The Guide notes that: 

    Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies…

    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…

    In general, the circumstances must be unusual, uncommon, abnormal or exceptional…This is not to say that the circumstances must be unique but there must have a particular quality of unusualness that permits them to be described as special.[10] [emphasis in original]

    [10] Social Security Guide, Topic 2.2.5.50.

35. I have considered all the evidence in relation to Mr Saber’s circumstances and I am satisfied there is no special reason to exercise the discretion in section 24 of the Act.

    CONCLUSION

36. Weighing all the evidence in relation to the five factors set out in subsection 4(3) of the Act, I am satisfied that Mr Saber and Mrs Albassit were not living separately and apart on a permanent or indefinite basis as at 25 April 2018. It follows that Mr Saber was a member of a couple with Mrs Albassit on 25 April 2018.

37. Further, I find there is no special reason to exercise the discretion in section 24 of the Act to treat Mr Saber as not being a member of a couple.

    DECISION

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 16 July 2020

Date of hearing:	23 June 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Dr Stephen Thompson, Services Australia