Staniszewski and Secretary, Department of Family and Community Se Rvices
[2003] AATA 1315
•22 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/644
GENERAL ADMINISTRATIVE DIVISION ) Re BOLESLAW STANISZEWSKI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date22 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – disability support pension – rate of payment – member of a couple – applicant’s wife subject to a two year newly arrived resident’s waiting period - whether applicant should be paid at the single rate
Social Security Act 1991, s 24
Social Security (Administration) Act 1999
Re Sarmini and Secretary, Department of Family and Community Services [2003] AATA 190
Re Kaddous and Secretary, Department of Family and Community Services [1999] AATA 183
REASONS FOR DECISION
22 December 2003 Mr O Rinaudo, Member Decision Under Review
1. This is an application for review of a decision made by the Social Security Appeals Tribunal on 13 March 2003 affirming a decision of the respondent made on 17 June 2002 that Mr Staniszewski’s Disability Support Pension be paid at the partnered rate.
The Decision of the Tribunal
2. The decision of the Tribunal in this case is to affirm the decision under review which means the application is unsuccessful. Following are the Tribunal’s reasons for that decision.
Issues
3. The issue which the Tribunal has to determine in this case is whether the applicant should be treated as not being a member of a couple for the purposes of the Social Security Act 1991 (the Act) or the Social Security (Administration) Act 1999 (the Administration Act).
Facts
4. The applicant’s wife, Mrs Staniszewski, arrived in Australia on 22 February 2002 and is subject to a two year newly arrived resident’s waiting period.
5. Mr and Mrs Staniszewski were married on 26 March 2002. Centrelink decided to pay Mr Staniszewski Disability Support Pension at the partnered rate on and from 17 June 2002. Mr Staniszewski appealed this decision and when it was affirmed by an authorised review officer, further appealed the decision to the Social Security Appeals Tribunal.
6. Upon receipt of the decision of the Social Security Appeals Tribunal, on 13 March 2003, Mr Staniszewski appealed to this Tribunal.
Evidence
7. Mr Staniszewski attended at the hearing and gave evidence on his own behalf. A translator in the Polish language assisted Mr Staniszewski and the Tribunal.
8. In addition to the oral evidence of Mr Staniszewski exhibits were tendered as follows:
§Exhibit 1 Section 37 (T) documents
§Exhibit 2 Copy of an assurance of support document signed by Mr Weislaw Kazma on 21 May 2002
§Exhibit 3 Centrelink file notes dated 11 June 2002 and 18 June 2002
§Exhibit 4 Carer Allowance information sheet
§Exhibit 5 Copy of money transfer and receipt dated 29 July 2003
§Exhibit 6 Centrelink notice to Anthony Staniszewski (the applicant’s son) in respect to Youth Allowance
§Exhibit 7 Separation details, signed by the applicant and dated 1 December 2003.
9. In evidence the applicant stated that the household which now consisted of himself, his wife and his son were in receipt of $636.00 per fortnight from Disability Support Pension, Mrs Staniszewski’s Carer’s Allowance and Mr Staniszewski’s son’s Youth Allowance. This equated to $212 per fortnight each or $106 per week each. He said that this was simply insufficient for their purposes and that they were in severe financial difficulty.
10. Mr Staniszewski stated that in respect of the $15,000 which his wife had when she arrived in Australia, $9,600 had been sent to their daughter for college fees in the United States and a further $1,270 had been sent to their daughter on 29 July 2003 as evidenced by Exhibit 5. They had paid $2,000 in fees for immigration, $600 in doctor’s bills and had retained the other $2,000, which had been spent by them. Mr Staniszewski said that example 3 on page 4 of T1 (Exhibit 1) fit his circumstances exactly. He said that he had the telephone numbers of two other people who were in receipt of Disability Support Pension at the single rate and who were in the same circumstances as he was.
11. Under cross-examination Mr Staniszewski refused to say whether the money his wife had when she came to Australia (the $15,000) was in the bank in June 2002 when his Disability Support Pension had been reduced to the partnered rate and his wife had claimed special benefit. He said that the money was not his, it was his wife’s and he did not know when the money was transferred.
12. Mr Staniszewski was asked in cross-examination if what he told the Social Security Appeals Tribunal that the balance of the money, after payment of the daughter’s school fees, had been spent on house renovations was correct or not. Again Mr Staniszewski’s evidence in this regard was vague. However the Tribunal is satisfied that at least some of the money was spent on house renovations; as Mr Staniszewski referred to the need to improve the standard of his Housing Commission home having regard to his former wife’s illness (cancer) and the need to improve the home for his new wife.
13. Mr Staniszewski again was not forthcoming when the contents of Exhibit 3 were put to him. Exhibit 3 tended to confirm that the $15,000 was still in the bank as at June 2002 when the claim for Special Benefit was made.
Discussion and Decision
14. Mr Staniszewski provided the Tribunal with a document (Exhibit 7) which purports to be a separation notice signed by him on 1 December 2003. He claims he and his wife have been living separately and apart although under one roof since December 2002.
15. The advocate for the respondent indicated that this was not a document which had been seen by either the respondent or Centrelink before.
16. The Tribunal notes this document was brought into existence one day before the hearing of the application and is not evidence of the status of their relationship at the time the decision under review was made. It is not a document which the Tribunal can have regard to at this time. If the applicant believes that he and his wife are now separated under one roof then he can make application to Centrelink on that basis for payment of Disability Support Pension at a different rate. Until he does so the Tribunal has no jurisdiction in respect of that matter.
17. As far as the application before the Tribunal is concerned the Tribunal must be satisfied that the applicant and his wife are lawfully married and residing together. It is clear that Mrs Staniszewski had $15,000 in her possession when the parties married and when they applied for Special Benefit in June 2002. The Tribunal is satisfied that at that time it was appropriate for Centrelink to pay the applicant at the partnered rate.
18. The issue for the Tribunal is therefore whether the provisions of section 24 of the Act apply in this case. Section 24 states as follows:
“(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.
(2) Where:
(a) a person has a relationship with a person of the opposite sex (the ‘partner’);
and
(b) the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage-like relationship; and
(d)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.”
19. In this regard the respondent submitted to the Tribunal that there were three reasons why section 24 could not be satisfied in this case. These were that:
(i)In addition to a payment of Disability Support Pension at the partnered rate, Mr Staniszewski was also in receipt of Family Tax Benefit until 7 November 2003. This was an additional amount of $240 per fortnight. Mrs Staniszewski has been in receipt of Carer’s Allowance in the sum of $87.70 per fortnight since January 2003.
(ii)The respondent says, in respect of Mrs Staniszewski’s migration to Australia, it was subject to an assurance of support by a Mr Wieslaw Kuzma signed in support of Mrs Staniszewski (Exhibit 2). In this regard the respondent referred the Tribunal to the guidelines as set out at page 21, T3 of Exhibit 1 as follows:
“Also section 24 would not apply if:
§ an AoS (1.1.A.310) is in force in respect of the person’s partner (the assuree), and
§ the person who gave the AoS (the assurer) is willing and able to provide an adequate level of support to the assuree, and
§ it would be reasonable for the assuree to accept that support.
This is because the acceptance of support by the person’s partner from the assurer would mean that the person would not need section 24 applied to avoid financial hardship.”
In this regard Mr Staniszewski’s evidence was that Mr Kuzma, when he gave the assurance of support, was earning a large sum of money per week (approximately $900) was the evidence. But that shortly after Mrs Staniszewski arrived in Australia Mr Kuzma had an accident and he is now on sickness benefits which are continuing. Mr Staniszewski’s evidence was that Mr Kuzma is not in any position to provide any assistance or support for Mrs Staniszewski. There was no other evidence of this other than the evidence of the applicant.
20. Thirdly, in respect of the $15,000 the respondent says that, accepting that it was necessary for $9,600 of the money to be sent to Mr Staniszewski’s daughter in the United States for her college fees, this left an amount of $5,400 which was spent “in a discretionary manner over a period of time”. The respondent says:
“The sum of $5,400 is equivalent to over 7 months worth of DSP payments at the married rate, as it was in June 2002. Therefore, the balance of the sum following the payment of college fees would have been sufficient to comfortably sustain Mrs Staniszewski until at least February 2003 had the money been conserved following the reduction in rate of Mr Staniszewski’s DSP.”
21. Mr Staniszewski says that the only amount of money which was available to them and which they used for living was a sum of $2,000 which he says has now been well and truly spent.
22. The respondent referred the Tribunal to the decisions of Re Sarmini and Secretary, Department of Family and Community Services [2003] AATA 190 a decision of Bullock SM and the decision of Re Kaddous and Secretary, Department of Family and Community Services [1999] AATA 183 the decision of Rodopoulos, Member.
23. In this regard the Tribunal found the decision of Sarmini particularly helpful as the facts of that case are very similar to the present case. Particular note is made of the following comments:
“Section 24 of the Act allows for a discretion to be exercised when there are unusual, uncommon or perhaps unjust consequences of their being a person considered to be a member of a couple which would then be alleviated by the discretion contained within section 24 if there is a special reason.”
24. In Mr Sarmini’s case he is married and his wife was allowed to come to Australia on the basis of a number of conditions including the signed, valid and current assurance of support. There has been no action taken to enforce the assurance of support of Mr Sarmini or his wife because they have chosen not to do so. This is a matter of pride for Mr Sarmini. There is nothing to suggest this could be actioned. While Mr Sarmini prefers not to seek an assurance from his friends, he has also decided not to make any application for other possible income support, for example in the form of a Special Benefit. In the present case of course Mr and Mrs Staniszewski have applied for Special Benefit and been rejected. It is also the case that Mr Staniszewski says that he has not called on Mr Kuzma (the assurer) because Mr Kuzma is no longer in a financial position to be able to provide support. The only evidence for this was Mr Staniszewski’s oral evidence. There is no corroborating evidence nor is there any other evidence which might substantiate this claim.
25. The Tribunal, with respect, accepts the proposition set out in the decision of Sarmini that:
“The Tribunal must, in addition to considering the legislative requirements, consider the policy guidelines and it is clear to me that section 24 of the Act both from the legislation and the intention behind the legislation, both in terms of the Migration Regulations and in terms of the Act in combination with the policy considerations would make it undesirable and inappropriate to have the discretion contained within section 24 to be exercised.”
26.In this instance the Tribunal rejects the application on the following basis:
(i)The Tribunal has taken into account the fact that the applicant was in receipt of Family Tax Benefit in the sum of an extra $240 per fortnight up until 7 November 2003.
(ii)The valid and enforceable assurance of support is in existence. Although it is questionable whether in accordance with the guidelines the assurer is not only willing but able to provide an adequate level of support to the assuree.
(iii)It is clear that Mr and Mrs Staniszewski have spent a considerable amount of money after their application for Special Benefit and Mr Staniszewski’s claim for payment of Disability Support Pension at the single rate were rejected. The Tribunal accepts that if the applicant and his wife had been prudent those monies may have lasted until February 2003.
27. In submissions the respondent stated that the applicant’s wife’s newly arrived resident’s waiting period will expire on 22 February 2003. The applicant did not accept this on the basis that Mrs Staniszewski’s residency visa was not given to her until later. Mr Staniszewski’s view was that the waiting period would not expire until two years after the receipt of Mrs Staniszewski’s permanent residency visa. This is supported by the wording of the assurance of support which says in the declaration at page 8:
“I understand and agree that the period for which this assurance of support is given is a period of two years beginning on the day when that person enters Australia or is granted the visa for which the giving of the assurance of support was required, whichever happens later.”
28. In any event the Tribunal is satisfied, given the submissions of the respondent and the facts as found by the Tribunal that circumstances might arise on and after 22 February 2003 in which section 24 might properly be exercised if in fact the two year waiting period does not expire on that date. Accordingly the Tribunal affirms the decision under review that the applicant should be paid Disability Support Pension at the partnered rate.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
Associate
Date of Hearing 2 December 2003
Date of Decision 22 December 2003The Applicant appeared in person
For the Respondent Mr J Howard, Departmental Advocate
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