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

Sim and Secretary, Department of Social Services (Social services second review) [2022] AATA 2807 (26 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1029
Re:Stuart Maxwell Sim
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:26 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
...................[sgd].....................................................
Dr Stewart Fenwick, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – member of a couple – reporting of spouse earnings – prior adjustment after long period of overpayment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
26 August 2022
BACKGROUND

Mr Sim applied for review of a decision of the Social Services & Child Support Division dated 18 January 2022 (AAT1) arising from the decision of a Centrelink Authorised Review Officer (ARO) dated 2 November 2021.
These decisions have at their root the issue of how the wage income of the Applicant’s wife has or has not been factored into the assessment of his Disability Support Pension (‘DSP’) over some years. The ARO had upheld an earlier decision to reduce the rate of Mr Sim’s DSP from 20 May 2011, taking into account his wife’s earnings.
In his application for review, Mr Sim makes reference to disability discrimination, abuse of the rule of law, and government corruption. He states that this matter is political, and he intends to turn everything over to his local Member of Parliament, and the media.
Somewhat unusually, but understandably in the circumstances, AAT1 attempted to reflect its understanding of a wider set of issues about rights and welfare that had been agitated by the Applicant. It also addressed the calculation of Mr Sim’s DSP relatively briefly, while observing that marriage and household income were not the central issue in this matter (at [14]).
At the hearing of his application for review before me, Mr Sim appeared to maintain his complaints about the adequacy of the welfare system. He expressed a view that he might indeed prefer to advance his case in other forums; and, after some discussion, I raised the possibility of Mr Sim withdrawing his application for review by the Tribunal.
However, I sought the assistance of the Respondent in further investigating the wider history of Mr Sim’s DSP payments during an adjournment in the hearing. This was because the material before me did not identify the cause of what appeared to be a critical engagement between Mr Sim and Centrelink in around mid-2021.
Upon resuming the hearing, some additional material was lodged by the Respondent that shed light on the issue; in particular material relating to a separate debt matter that had preceded the current series of decisions.
The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC), and both initial and supplementary documents under s 37 of the Administrative Appeals Tribunal Act 1975 (T and ST). These were reproduced in a Hearing Bundle (HB), together with two bundles of material lodged by Mr Sim comprising almost 300 pages.
The additional material lodged by the Respondent at the hearing was in two bundles. The first being records relating to Mr Sim’s earlier debt, and the second being Centrelink customer records between 2013 and 2019. I will refer to these as Exhibit R1 and R2 respectively.
LEGISLATION
The Social Security Act 1991 (the Act) provides (at s 117) that DSP is payable in accordance with various Pension Rate Calculators. The relevant calculator in this matter is Pension Rate Calculator A (s 1064). This calculator is set out at length in the Act and it includes several modules and takes into account various factors, including a person’s partnership status.
Many different kinds of relationships are defined in s 4 of the Act, including ‘member of a couple’. The Act further sets out various criteria including financial affairs and aspects of household arrangements that inform this definition (s 4(3)).
Relevantly here, Pension Rate Calculator A treats a couple’s resources, being income and assets, as pooled. Ordinary income (broadly defined in s 8) is then attributed 50/50 between the couple.
There is discretion under the Act to treat a person as not being a member of a couple (s 24), if a ‘special reason’ is found to exist. There is authority for the view that this discretion is not to be lightly engaged, and that something unusual or different about a couple’s ability to pool resources must first be shown (Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37]).
EVIDENCE
At the hearing, Mr Sim stated that he had previously been informed about a debt owing of approximately $13,000, later raised to $17,000. He told me that this debt had subsequently been ‘zeroed’, apparently due to an error on the part of Centrelink.
He stated further that ‘nothing had changed’ with his wife’s work. In fact, she had received a pay rise, and Mr Sim reported this in mid-2021. Mr Sim confirmed for me in evidence that he had been receiving the DSP for some 15 years and had been married to his wife since 1993. She had been working in a home security business ‘for years’.
Mr Sim was concerned that his DSP payments had been cut to $111.00 and said that he had told the ARO that this had caused his marriage to breakdown and fractures in other familial relationships.
Mr Sim stated that: his personal circumstances had changed arising out of circumstances in 2019; he had not spoken to his wife; was in no hurry to push for a divorce; and cannot continue to live in his present residence. The Applicant also referred to his desire to move out and live with his daughter.
Mr Sim stated further that he considered he had been subject to ‘judicial apprehended bias covering up the abuse of the horrible Morrison mafia’. Mr Sim stated that his mental health had deteriorated, and the mistake by the Respondent should never have been made.
The evidence given at the hearing is consistent with material lodged by Mr Sim. The Applicant made the following written statements (HB, p 305):
(a)in February 2019 he was receiving $306.00 per fortnight;
(b)payments were stopped then restarted in November 2020 at $166.00 per fortnight;
(c)in February 2019 the Applicant was told he had a debt which was then further raised;
(d)‘After 17 years of not reporting I was told I had to start in June 2020. My very first report I was told I had incurred a debt. My pension was cut by another $50.00 down to $111.00’;
(e)‘You are told by Centrelink that your partner has to pick up where the government shirks its responsibilities. Wages stalled cost of living increased partner no pay rise yet has to fund more and more’;
(f)‘Causes resentment, angst arguments domestic violence and marriage breakdowns. Morrison mafia extorting …’.
In another statement (HB, p 457) Mr Sim states:
(a)‘For the past 6 weeks I have been made to report my wife’s income in order to receive my disability pension. I have been on the disability pension for 17 years and have never had to do this before’;
(b)‘My wife has a fixed income as she is in long term permanent employment so her wage does not change each week. Reporting the same income each fortnight is hell for me’; and
(c)‘My wife’s and my circumstances have not changed in many years yet my payments keep getting messed around …’.
On 31 May 2021 Centrelink informed Mr Sim in writing of the obligation to report fortnightly (upon dates specified) on matters including gross fortnightly income (T8, p 166).
The material lodged at the hearing further supports the picture that emerges from this evidence. I note from Exhibit R2:
(a)on 1 March 2019 a customer record notes that partner income had not been updated since 2009;
(b)a record of 4 March 2019 notes an objection by Mr Sim who wishes to go to the Ombudsman during a conversation about the need to provide income updates;
(c)an initial debt of $13,335.52 is recorded on 6 March 2019; and
(d)the debt is revised on 8 August 2019 to $17,464.24 for the period 30/6/11 – 27/2/19, on the basis that the Applicant’s partner changed employment on 1/12/10 and this change was not advised until March 2019.
It appears from Exhibit R1 that on 4 November 2020 the debt was set aside on the basis that it was calculated using average income sourced from ATO records, and any amount paid by Mr Sim was to be refunded.
I note the decision record of the ARO (T5) sets out the manner in which a partner’s earnings affect calculations. It describes the marital and financial relationship, noting also that Mr Sim’s DSP was being paid into a joint bank account, held in both his and his wife’s name. It also notes advice said to have been provided by the Applicant that his relationship with his wife is over, but states that no evidence has been provided to demonstrate this fact.
In the material lodged by Mr Sim I note numerous references to the debt matter, to FOI requests, access to recordings of conversations with Centrelink, a range of internal and other complaint mechanisms, Coalition/Government corruption, copies of correspondence to (then) Opposition parliamentarians, and copies of annotated items from the media on issues including cost of living and people with a disability.
In this material there are also several references to a prenuptial agreement. In one piece of correspondence directed to the legal representative of the Respondent (HB, p 362) Mr Sim states: ‘I have been told for 15 years that prenuptials agreements are not binding in Australia, even on the first of November 2021 in a conversation with ARO’.
I also note statements by Mr Sim in his material (HB, pp 441-445):
(a)‘[ARO] suggests I am not truthful about marriage over because I have not moved out. I have no money, no super left, no car, no phone …’;
(b)‘my doctor … has seen my decline since the persecution started at February 2019 until now it still goes on’;
(c)‘taxpayers have a right to expect behaviour that is above the defective and criminal abuse Centrelink deals out’;
(d)‘[a]s I pointed out to [the ARO] the 3 requests I made for the review were well before the incident in August which ended my relationship. The request had nothing to do with marriage breakdown, nothing’; and
(e)that he cannot move to live with his daughter as he needs to stay near medical specialists familiar with his history.
CONSIDERATION
The material lodged by Mr Sim includes an annotated copy of the Respondent’s SFIC (HB, pp 323-329). Here, Mr Sim has made several comments including:
(a)at [8.1] summarising the observation by AAT1 that the Applicant did not dispute his marital status or household arrangements as ‘Mis info. Not part of review’;
(b)at [14] addressing the definition of member of a couple, ‘Not the reason for review’;
(c)at [15] addressing the financial aspects of the relationship, ‘I do not own house’;
(d)at [16] addressing lack of evidence of separation from his wife, ‘nothing to do with review’;
(e)at [16.3] regarding the joint bank account with his wife, ‘Mrs Sim has many bank accounts in maiden name’; and
(f)at [46] addressing the decision sought from the Tribunal in the present matter, ‘Lies, lies, and more lies, I look forward to playing the recording to Federal ICAC and Royal Commission’.
It is contended in the Respondent’s SFIC that:
(a)there is no evidence the Applicant and Mrs Sim have been living separately and apart on a permanent or indefinite basis ([16]);
(b)accordingly, the Tribunal should find that the Applicant was and is a member of a couple ([17]);
(c)Mr Sim’s DSP rate for the periods in dispute were correctly calculated in accordance with Pension Rate Calculator A ([26]-[29]); and
(d)there is no cause to trigger the ‘special reason’ discretion in s 24 of the Act to exclude Mrs Sim’s income in the calculation of Mr Sim’s DSP on the basis that Mr Sim is not a member of a couple ([45]).
There are some apparent contradictions in the material before me. Mr Sim has argued before me and AAT1, and in writing numerous times, that this matter is not about his marital status. Equally, there are also clear references throughout the evidence and wider material to indicate that Mr Sim is experiencing problems in his relationship, and/or that it is indeed over.
A fair reading of the matter, I consider, indicates that the better interpretation is one also expressed directly by Mr Sim. That is, any change in his status as a member of a couple is best understood as being a result of the decision made prior to the decision under review. That decision, in respect of the substantial debt raised from an update in the income of the Applicant’s wife, was concluded in Mr Sim’s favour. The decision under review here relates to a further, comparatively minor, adjustment due to ongoing reporting.
If Mr Sim has indeed undergone, or does undergo, a change of his relationship status, then I encourage him to remain engaged with Centrelink, despite the misgivings he clearly has about public administration. It may be that with relevant information Mr Sim might obtain a different outcome.
Despite the ambiguity inherent in this application, I consider it appropriate to conclude that having considered the material and submissions, I find the correct and preferable decision is to affirm the decision under review.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

..................[sgd]....................................................
Associate
Dated: 26 August 2022

Date of hearing: 19 July 2022

Representative for the Applicant:

Advocate for the Respondent:

Stuart Sim, self-represented

Adrian Downie

Solicitors for the Respondent: Australian Government Solicitor

[2022] AATA 2807

26 August 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction