Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas

[2009] AATA 416

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 416

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1265

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And WILHELMUS NICOLAAS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date10 June 2009

PlaceBrisbane

Decision

The Tribunal:

1.     sets aside the decision under review; and

2.     substitutes a decision that the Secretary should not exercise the discretion to treat the respondent as if he were not a member of a couple.

.......................[Sgd].......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Age Pension – Member of couple – Special reasons – Whether special reasons that applicant should not be treated as member of a couple – No special reasons – Decision set aside and substituted

Social Security Act 1991 (Cth) s 24(1)

Boscolo v Secretary, Department of Social Security [1999] FCA 106, (1999) 90 FCR 531

REASONS FOR DECISION

10 June 2009 Senior Member Bernard J McCabe         

1. This case concerns the circumstances in which the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs will determine that a married person living with his or her partner should be treated as if he or she were not a member of a couple pursuant to s 24 of the Social Security Act 1991 (“the Act”). The question is important because a single person is generally paid benefits at a higher rate than a married person.

2.      

Mr Wilhelmus Nicolaas receives the age pension at the single rate. He is married and his wife, Mrs Rosalinda Nicolaas, now lives with him after she migrated from the Philippines in late 2007. Centrelink decided in November 2008 that

Mr Nicolaas should be paid at the married rate. Mr Nicolaas disagreed and appealed to the Social Security Appeals Tribunal (“the SSAT”). The SSAT agreed with

Mr Nicolaas.

3. The Secretary asked the Tribunal to reconsider the issue. The Secretary, the applicant in these proceedings, said Mr Nicolaas should be paid at the married rate. Mr Nicolaas said the Secretary should exercise the discretion under s 24 of the Act to treat Mr Nicolaas as if he were not a member of a couple notwithstanding the fact his wife lives with him.

4.      For reasons I will explain, I accept the Secretary’s argument that Mr Nicolaas should not be treated as if he were a single person.

The facts

5.      The facts are uncontentious. Mr Nicolaas is qualified to receive the age pension. He resides in a mobile home park in Caloundra with his wife. He owns his mobile home but rents space in the park for around $223 per fortnight. He estimated the home is worth between $70,000 and $80,000. He owns an old car. His only other asset is a number of term deposits and a superannuation account worth a total of around $70,000. The term deposits are a recent addition to Mr Nicolaas’s portfolio; he had an estimated $125,000 in superannuation but lost a substantial portion of that amount during the recent upheaval in the stock markets. He has since transferred most of the remaining funds from superannuation into term deposits.

6.      Mr Nicolaas receives a pension from the Netherlands, where he grew up. He previously received around 130€ per month. Centrelink was aware of those payments and his Australian pension, which was paid at the single rate, was reduced by around $100 to reflect the income from overseas.

7.      Mrs Nicolaas came to Australia from the Philippines in November 2007. She was admitted to this country on a subclass 300 visa, which is issued to a person intending to marry. She was subsequently issued with a subclass 820 visa in May 2008. Neither visa confers a right of permanent residency. Although Mrs Nicolaas is entitled to take up paid work, she is not eligible to apply for most social security benefits which are only available to Australian residents. She will not become a permanent resident until March 2010. In the meantime, she is eligible to apply for a special benefit, but that benefit is only available in cases of severe financial hardship.

8.      Mrs Nicolaas gave evidence at the hearing. She is an articulate and educated woman. She holds a law degree and an arts degree, which she earned in the Philippines. She was employed there for many years as a community worker and advocate. She raised four children on her own after her first husband died. She said in her evidence that Mr Nicolaas was a long-term friend, and they decided she would move to Australia when they married.

9.      While Mrs Nicolaas is clearly a capable woman, she has been unable to find a job in this country. Both Mr and Mrs Nicolaas explained in their evidence that she needed to obtain some qualifications from a training organisation before she could secure work in a clerical or hospitality job. Mrs Nicolaas also said the fact she was not a permanent resident meant she was not entitled to publicly-funded training. Her status also made it harder for her to get a job.

10.     Centrelink had been paying Mr Nicolaas the age pension at the single rate for a time after his wife arrived and began living with him in Australia. But then two things happened: first, Mrs Nicolaas obtained some paid work as part of a training scheme between February and June 2008; and, secondly, she was granted the subclass 820 visa in May 2008. Mrs Nicolaas has not received any further paid work, but the Secretary has taken the view that she is capable of working and making a contribution to the joint household. In those circumstances, the Secretary says it is no longer appropriate to treat Mr Nicolaas as if he were a single person and pay him a pension at that rate.

11.     I should say more at this point about the pension Mr Nicolaas receives from the Netherlands. I have already observed that he was receiving a payment of 130€ each month. When he told the Dutch authorities that he had married and that his wife was unemployed, he became entitled to a higher payment. He now receives a total of 366€ per month. He said in his evidence that he expects the payment will diminish when his wife does find work, but he was uncertain whether the payments will revert to the amount he was previously paid as a single man. I note the SSAT did not appear to have all of the facts about the Dutch pension before it when it made its decision.

The relevant law

12. The Act proceeds on the general assumption that members of a couple are able to pool their resources and live more cheaply when they reside together. Married and de facto couples are assumed to be in a position to call on each other for support. That being so, members of a couple are each paid less than they would receive if they were single people maintaining a separate existence.

13. The Act recognises that the assumption is not always valid. The Act invests the Secretary with the discretion to treat members of a couple as single persons in appropriate cases. The discretion is contained in s 24(1), which 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.

14.     The discretion is not enlivened unless it is possible to identify “special reasons”. They are reasons that are unusual or different: Boscolo v Secretary, Department of Social Security [1999] FCA 106, (1999) 90 FCR 531 at 536 per French J. The person’s situation need not be bizarrely unusual; it is enough that there is something different about his or her case which suggests the general rule should not be applied.

Is it possible to identify “special reasons” in this case?

15.     I have already explained that Mr Nicolaas is legally married to his wife. There is no dispute that they live together. The only issue is whether there is a “special reason” Mr Nicolaas should not be treated as a member of a couple.

16.     The SSAT found Mr Nicolaas was unable to take advantage of the usual pooling of resources one would expect in the case of a couple. Mrs Nicolaas was unable to access social security benefits because of her immigration status. She also had difficulty finding a job. She did not have any assets of her own. As a practical matter, Mr Nicolaas had to support both of them out of his own resources.

17. I accept Mrs Nicolaas is practically unable to access social security benefits because the special benefit is only paid in limited circumstances which do not apply here. I also accept her residency status hampers her search for work and makes it more expensive for her to obtain qualifications that might assist her to get a job. Even so, before I can exercise the discretion in Mr Nicolaas’s favour, I must be satisfied these reasons amount to “special reasons” within the meaning of s 24 of the Act. If I am satisfied about that, I must then consider whether I should exercise the discretion having regard to all of the other circumstances of the case.

18.     

The inability of a spouse to access social security benefits might constitute “special reasons” for the purposes of s 24 of the Act. I would be less inclined to treat that disability as a special reason, or give it any weight in the exercise of the discretion, if the spouse is able to make a contribution to the household from another source. In this case, Mrs Nicolaas does have the capacity to obtain paid work. She is an intelligent person of working age. She indicated a preparedness to move in order to get a job. Indeed, she gave evidence that she was recently interviewed for a contract position in Darwin. I accept she is more likely to find a job if she has Australian qualifications, but those can be obtained relatively easily. Both

Mr and Mrs Nicolaas pointed out that she would be required to pay tuition fees in connection with almost any course of study, but those fees (a figure of $2000 was mentioned in evidence for one course) could be funded from Mr Nicolaas’s resources by way of a loan.

19.     

While Mrs Nicolaas is ineligible for most Australian benefits, I note

Mr Nicolaas has received an increase in his pension from the Dutch government because he is married and his wife is unemployed. Even if the couple is unable to access benefits for Mrs Nicolaas from the Australian government, the contribution of the Dutch government makes it even less likely that the loss of Australian benefits can be seen as a special reason for exercising the discretion.

20.     Mr Nicolaas’s other circumstances must also be considered. He has assets. He owns his own home and receives rental assistance that helps to defray the cost of renting the site at the mobile home park. He does not have any significant debts. Importantly, he has a considerable sum of money in the bank. I accept he is concerned to manage that money carefully, but I cannot ignore its existence. While Mr and Mrs Nicolaas are under financial pressure, they are in a much better financial position than many other couples receiving social security benefits.

21.     

I was not provided with any evidence to suggest either Mr Nicolaas or his wife is in poor health or subject to any other disability. In all the circumstances of

Mr Nicolaas’s case, I am inclined to accept there are no special reasons that enliven the exercise of the discretion under s 24 of the Act. Even if I were to accept

Mrs Nicolaas’s ineligibility for social security benefits which made it harder for her to contribute to the household did qualify as a special reason, I am satisfied the other circumstances I have discussed suggest it is inappropriate to exercise the discretion in favour of Mr Nicolaas.

22.     

There is one final point. Mr Flintoft, the advocate for the Secretary, pointed out Mr Nicolaas was aware at the time his wife migrated here that she would not be able to access social security benefits until she became a resident. Mr Flintoft pointed out that the Department of Immigration and Citizenship was expected to require a person in Mr Nicolaas’s position to provide an assurance of support before it would issue a visa. Surprisingly, that did not occur. In any event, Mr Flintoft said

Mr Nicolaas’s knowledge of his wife’s ineligibility counted against the exercise of the discretion. Mr Nicolaas argued that is irrelevant because he did not anticipate a problem. He said he assumed his wife would be able to obtain work in Australia with relative ease. I am not convinced Mr Nicolaas’s foreknowledge was relevant to the discussion, so I have not taken it into account. If I did, it would count against him, so the decision would be unchanged.

Conclusion

23. The decision under review is set aside. The Tribunal decides in substitution that it is not appropriate to exercise the discretion in s 24(1) of the Act to treat him as being other than a member of a couple.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Date of Hearing  20 May 2009
Date of Decision  10 June 2009
Advocate for the applicant        Mr P Flintoft, Centrelink
Respondent was self-represented