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

[2018] AATA 4301

Sorrenti and Secretary, Department of Social Services (Social services second review) [2018] AATA 4301 (19 November 2018)

Division:GENERAL DIVISION

File Number:           2018/1026

Re:Domenico Sorrenti

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:19 November 2018

Place:Melbourne

The decision under review is affirmed.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – age pension – request to be treated as not a member of a couple – discretion available to Secretary – special reasons required – special reasons must distinguish applicant from others in category of age pension recipients – discretion not enlivened – decision of Social Services and Child Support Division affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 37
Social Security Act 1999 (Cth), ss 4(2), 24

Cases
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 2 ALD 60
Purdie and Secretary, Department of Social Services, Re [2013] AATA 743

Secondary Materials
Department of Human Services – Guide  to Social Security Law (on-line edition accessed 31 October 2018)
House of Representatives Explanatory Memorandum - Social Security Legislation Amendment Bill (No. 4) 1991 (Cth)

REASONS FOR DECISION

Senior Member D. J. Morris

19 November 2018

Background

1. The Applicant, Mr Domenico Sorrenti was born in 1945 and is an Australian citizen.  Mr Sorrenti has been a recipient of an age pension under the Social Security Act 1991 (the Act) since 2010 when he was transferred to that benefit from a disability support pension.  On 20 June 2015 Mr Sorrenti married Mrs Shirley Sorrenti.

2. On 22 June 2015 Mr Sorrenti contacted the Department of Human Services (the Department) in relation to a claim for Family Tax Benefit (FTB) and advised the Department of his marriage.  The Department reduced Mr Sorrenti’s age pension from the single rate to the partnered rate from 31 July 2015.  On 14 September 2015 Mr Sorrenti contacted the Department to query why the rate of his age pension had changed.  Section 24 of the Act gives a discretionary power to the Secretary of the Department to determine, in writing, that a person who is legally married to another person and who is not living separately from the other person, if the Secretary is satisfied that for special reasons in the particular case, not be treated as a member of a couple.  Department officers advised Mr Sorrenti that he could lodge a request for an assessment under section 24.  Mr Sorrenti made such a request.

3. On 28 September 2015 an officer of the Department, acting on behalf of the Secretary, refused Mr Sorrenti’s request for a section 24 determination.  It appears from the papers before the Tribunal that Mr Sorrenti was not notified of this refusal decision.  On 31 May 2017 Mr Sorrenti (again) requested that a determination be made under section 24.  An officer of the Department, acting on behalf of the Secretary, granted a section 24 determination to Mr Sorrenti with effect from 22 May 2017. 

4. On 7 June 2017 Mr Sorrenti contacted the Department and submitted that the determination should apply not from 22 May 2017 but from September 2015, the date of his original request.  On 19 June 2017 an authorised review officer (ARO), an officer of the Department not involved in the original decision, affirmed the 31 May 2017 decision.

5. On 15 September 2017 Mr Sorrenti sought a review of the ARO decision by the Social Services and Child Support Division of this Tribunal (AAT1).  On 16 February 2018 AAT1 set aside the ARO decision and decided that there is no determination under section 24 of the Act.  AAT1 decided that Mr Sorrenti was a member of a couple from 17 June 2015 and should not have been treated as not being a member of a couple.

6. On 1 March 2018 Mr Sorrenti lodged an application for further review with the General Division of the Tribunal.  That is this hearing.  The hearing took place on 21 September 2018 by telephone.  Mr Sorrenti made submissions and gave evidence.  Ms Belinda Lewis appeared on behalf of the Respondent. 

7. The Respondent tendered documents and supplementary documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T and ST documents), which were taken into evidence.  Mr Sorrenti submitted a written statement from himself, and a written statement from Mrs Sorrenti, both dated 20 September 2018, together with a list of medical appointments relating to him and Mrs Sorrenti (Exhibit A1).

8. At the end of the hearing the Tribunal granted leave for Mr Sorrenti to provide any further medical reports on which he intends to rely and for the Respondent to provide details of certain Social Security benefits paid to Mr and Mrs Sorrenti.  Both parties provided further documents and this information was taken into account by the Tribunal.

   The law

9. Section 4(2) of the Act provides:

   Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

   (a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

   …

10. Mr Sorrenti did not dispute before the Tribunal that he is married to Mrs Sorrenti, that they live together in their residence in a Melbourne suburb, and that for the purposes of the Act, he is a ‘member of a couple’ with Mrs Sorrenti. 

11. Section 24 of the Act provides:

    (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.

    The Respondent’s submissions

12. The Respondent drew the Tribunal’s attention to the Explanatory Memorandum tabled in the House of Representatives when section 24 was inserted into the Act by the Social Security Legislation Amendment Bill (No. 4) 1991.  The Memorandum stated:

    [T]here is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together.  This justification is based on the premise that the unpartnered person does not enjoy the same economies of shared living costs as does the member of a couple in those circumstances.  If the economies of scale are not available to the member of the couple because he or she is living apart from his or her partner because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.

13. The Respondent also referred to the Department’s publication, Guide to Social Security Law (the Guide).  The Guide provides direction to officers of the Department assessing requests from persons, such as the one made by Mr Sorrenti, for a Determination under section 24 of the Act.

14. While the Tribunal is not bound to follow the Guide, it is desirable to have reference to it when it is a policy document which was used by Department officers in coming to the original decision.  As the Full Court of the Federal Court (Bowen CJ, Smithers and Deane JJ) stated in Drake v Minister for Immigration & Ethnic Affairs [1979] FCA 39; 2 ALD 60:

    In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision.  It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself.  If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision.  On the other hand the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

15. The Guide states, at part 2.2.5.50:

    In situations where the department considers that there is a special reason in the particular instance, and it would be unfair to administer the rate of payment, or income and assets test provisions that apply to couples, the Secretary can determine, under the provisions of section 24, that the person should not be treated as a member of a couple.

    …

    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 Applicant’s contentions

16. Mr Sorrenti submitted that he needs his wife to stay at home to care for him and that, for reasons of health; he is unable to care for their young daughter on his own.  Consequently, he submitted that it is not possible for Mrs Sorrenti to work outside the home.  He told AAT1 that he has complex medical needs and high medical costs, placing further importance on him being able to receive the single rate of the age pension.

17. The Tribunal notes that Mrs Sorrenti was, on 20 August 2015, granted a Subclass 820 Partner (Temporary) visa.  The Tribunal further notes that Mrs Sorrenti was subject to the Newly Arrived Residents Waiting Period (NARWP) which is a limitation on newly arrived migrants receiving certain social security benefits.  The Guide states (at part 3.1.2.40) that:

    Generally the NARWP ends when a person has been an Australian resident and in Australia for 104 weeks.

18. Mrs Sorrenti provided a written statement to the Tribunal dated 20 September 2018 advising that she now holds a Permanent Partner (Subclass 801) visa.

19. The Tribunal had before it a letter dated 29 January 2018 (ST1) from Dr Fabio Lo Giudice, Mr Sorrenti’s treating general practitioner.  Dr Lo Giudice relevantly stated:

    I confirm he [Mr Sorrenti] has multiple medical issues and is under regular medical review with myself, treating medical specialists and allied health.  His medical conditions result in joint pains and some impairment in activity levels.  As I understand it his partner assists with some of his personal care needs.

20. The Tribunal also had before it a detailed health summary dated 16 January 2018 prepared by Dr Rebecca Starkie which set out a number of Mr Sorrenti’s health conditions and the medications prescribed to him.

21. Mr Sorrenti also submitted a medical report from Dr Leonardo Congiu, consultant psychiatrist, dated 30 November 2017 which relevantly stated:

    Mr Sorrenti has suffered from a long-standing complex syndrome of the physical and psychiatric conditions.  He has attended me for the management of the latter however I have noted that he has suffered from numerous musculoskeletal and degenerative bony conditions involving numerous areas of his body.  On the psychiatric side he has suffered from an ongoing syndrome of both Anxiety and Depression.  The psychiatric symptoms have added to the difficulties in coping with the considerable physical disabilities associated with his other conditions.  The sum total of his illnesses has resulted in Mr Sorrenti having become totally and permanently incapacitated for all work.

    The Respondent’s contentions

22. The Respondent submitted that three questions need to be considered as part of an assessment, while looking at the full circumstances of the couple, in relation to the application of section 24.  The three questions are: Is there a special reason to be considered in this couple’s circumstances?  Is there a lack of being able to pool resources for the couple as a result of the circumstances?  Is there a financial difficulty as a result of the couple’s circumstances?

23. The Respondent submitted that the visas granted to Mrs Sorrenti, first a temporary partner (subclass 820) visa and then a permanent partner (subclass 801) visa; allow her to work in Australia.  The Respondent submitted that Mr and Mrs Sorrenti’s daughter was born in February 2015 and there was no evidence that the child has special needs or circumstances that would prevent Mrs Sorrenti from working because of the need to care for the child.  It was also noted that in the financial statement provided to AAT1 dated 11 January 2018, there was reference to payment for some child care in 2017.

24. The Respondent did not dispute that Mr Sorrenti has a number of long-standing medical conditions and that Mrs Sorrenti assists, as stated by Dr Lo Giudice, with some of his personal needs.  The Respondent noted that in the medical report dated 7 December 2017 (ST2) written in support of Mrs Sorrenti’s claim for Carer Payment, Dr Lo Giudice considered that Mr Sorrenti needs minor help transferring from bed to chair; help with dressing, but can do about half his dressing unaided; help with navigating stairs; and that he is dependent in terms of bathing.  Dr Lo Giudice considered Mr Sorrenti was independent in terms of general mobility, feeding and grooming.

25. In terms of being able to pool their resources, the Respondent submitted that Mrs Sorrenti is able to work and it is her choice that she does not. The Respondent noted that while Mrs Sorrenti was faced with certain restrictions in terms of social security because of the NARWP (which has now passed), there was no restriction on working and thereby contributing to the family household income.

26. In terms of financial difficulty, the Respondent noted that Mr Sorrenti owned his own residence and he confirmed in the hearing that this residence was not mortgaged.

    CONSIDERATION

27. While the various questions posed in the Guide to assist officers in assessing individual cases may be useful tools, the Tribunal is inclined to support the approach taken by Deputy President Hack, SC, in Re: Purdie and Secretary, Department of Social Services [2013] AATA 743, where he said:

    I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple.  The Secretary’s submissions point to the departmental policy guide for the application of this discretion.  That guide suggests that three questions need to be considered as part of an assessment of the application of s 24.  Those questions are – is there a special reason to be considered in this couple’s circumstances?  Is there a lack of being able to pool resources for the couple as a result of the circumstances?  Is there financial difficulty as a result of the couple’s circumstances? 

    For my part I remain unpersuaded that the section poses three questions.  It seems to me the section poses only one question – is there a special reason to treat Mr Purdie in the present case as not being a member of a couple.  It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.

28. French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, 535 said, at [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.

29. The Tribunal considers that the deliberate use by the Parliament of the term “special reason” in section 24 is particularly instructive, in the sense that decision-makers are directed to look at the entirety of the circumstances of a particular applicant to ascertain whether there are ‘special’ – that is, unusual or out of the ordinary – characteristics that apply to him or her which might provide a reason to enliven the discretion.  Logically, it follows that the special characteristics relating to a person must be sufficiently different from characteristics that might be broadly applicable to other persons in the same broad category as the applicant so as to make his or her situation ‘special’.

30. Mr Sorrenti has provided medical evidence of the range of health conditions he has, and the fact that, prior to transferring to the age pension, he had been granted a disability support pension because of his inability to work.  However, the Tribunal is not persuaded that, on the evidence, this suite of medical conditions is sufficiently distinguishable from the range of health conditions that other persons on the age pension might be typically expected to have, or to acquire. 

31. In particular, while some of the challenges faced by Mr Sorrenti because of his various ailments are noted by Dr Lo Giudice in the Carer Payment medical assessment, Mr Sorrenti is not, for instance, confined to his bed or, indeed, to his residence. There is no evidence that someone needs to be with him, or even near at hand, provided he has general daily assistance with dressing and bathing.  Supporting his relative independence, I note (at T13) that Mr and Mrs Sorrenti and their daughter travelled overseas from May to September 2016.  In addition, Mr Sorrenti told the Tribunal that he again travelled abroad in 2018 for eight weeks with his wife and daughter.  Mr Sorrenti said that he continues to drive his car to the local shops (though not long distances).  Mr Sorrenti said that when he attended the AAT1 hearing he drove to the railway station and he and Mrs Sorrenti then caught the train into the city, without apparent difficulty. 

32. I am not persuaded on the evidence that Mr Sorrenti’s medical conditions are such that they combine to prevent Mrs Sorrenti working.  In his evidence he said that it was in the best interests of their child that Mrs Sorrenti was at home.  That is essentially a personal choice that they have made as a couple; and, as such, not one that I view as an ingredient in enlivening the discretion in section 24 of the Act.

33. Continuing the analysis of Mr Sorrenti’s situation as a member of the broad category of age pension recipients, the Tribunal accepts that it is uncommon for a person in this category to have the costs associated with rearing a young child.  Balancing that, during the hearing, the Respondent indicated that Mr Sorrenti was receiving Family Tax Benefit (FTB), and Ms Lewis subsequently provided to the Tribunal summaries of payments of FTB, Carer Allowance paid to Mrs Sorrenti and the Special Benefit payment now paid to Mrs Sorrenti. 

34. The Tribunal notes that Mr Sorrenti currently receives $690.70 per fortnight for his age pension, plus $326.48 per fortnight FTB.  Mrs Sorrenti receives $127.10 per fortnight for Carer Allowance, plus $504.53 per fortnight special benefit.  This brings the total household income to $1,648.81 per fortnight.  Mr Sorrenti, in his Statement of Financial Circumstances submitted to AAT1, estimated their fortnightly expenditure is around $860, not counting some additional imposts such as credit card and personal debts.  The FTB component payable will increase when Mr and Mrs Sorrenti’s second child is born.  Given Mr Sorrenti’s evidence that he owns their residence outright and therefore does not have fortnightly accommodation costs, and taking into account that there is a somewhat fluctuating cost of medication, the Tribunal cannot be satisfied that there is evidence of particular financial hardship; especially as Mrs Sorrenti does have the ability to seek remunerative work.

1. Applying the general rules to Mr Sorrenti’s circumstances does not enliven any special element that might lead to the exercise of the discretion.  The only factor that the Tribunal finds might be regarded as ‘special’ in his particular instance, that of being an age pension parent, entitles him and Mrs Sorrenti to other social security benefits that other age pension recipients do not receive.  

2. The Tribunal concludes that there is nothing before it that supports a conclusion that, taking the whole of his circumstances into account, Mr Sorrenti should be regarded as not being a member of a couple. 

   DECISION

3. The decision under review is affirmed.

I certify that the preceding 37 (thirty‑seven) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

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

Associate

Dated: 19 November 2018

Date of hearing:

21 September 2018

Applicant:

By telephone

Advocate for the Respondent:

Ms Belinda Lewis

Department of Human Services