Susan Tuck and Repatriation Commission
[2015] AATA 137
•11 March 2015
[2015] AATA 137
Division VETERANS' APPEALS DIVISION File Number
2014/5311
Re
Susan Tuck
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Brigadier (Retired) C Ermert, Member
Date 11 March 2015 Place Melbourne The Tribunal affirms the reviewable decision.
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Member
Veterans Entitlements – de facto relationship – separated from partner – member of a couple – partner service pension – non-illness separated spouse – not legally married – decision affirmed
Legislation
Veterans’ Entitlements Act 1986
Veterans’ Entitlements (Partner Service Pension – Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009
REASONS FOR DECISION
11 March 2015
INTRODUCTION
As at 23 November 2010 Ms Tuck, the Applicant, was in a de facto relationship with a veteran receiving a service pension and received the Partner Service Pension. On 1 May 2014 the Department of Veterans Affairs (DVA), the Respondent, received a letter from Ms Tuck’s partner notifying that he and Ms Tuck had separated on 16 April 2014. On 5 May 2014 the Respondent cancelled the Partner Service Pension.
On 23 May 2014 Ms Tuck applied for a review of the decision. On 1 August 2014 a delegate of the Respondent affirmed the decision. On 17 October 2014 Ms Tuck applied to this Tribunal for a review of the delegate’s decision.
HEARING
At the hearing, Ms Tuck represented herself and gave evidence on oath. Mr Purcell of counsel represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I had also the Respondent’s Statement of Facts and Contentions dated 10 February 2015.
PRELIMINARY ISSUE
Mr Purcell assisted Ms Tuck in querying a possible conflict of interest due to my previous military service. I outlined my service including my time as Head of Corps of The Royal Australian Electrical and Mechanical Engineers (RAEME). Ms Tuck said that her ex-partner had served in RAEME. I stated that I had never served in any units with her ex-partner; however, as Head of Corps there could have been occasions when his career was subject to decisions for which I was responsible. I had no recollection of her ex-partner, nor of his service in RAEME.
Ms Tuck stated she was satisfied with my explanation and was happy for me to proceed with the hearing.
I thank Mr Purcell for assisting Ms Tuck to raise the issue.
THE LEGISLATION
The relevant legislation is contained in the:
·Veterans’ Entitlements Act 1986 (the Act), and
·Veterans’ Entitlements (Partner Service Pension – Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009 (Determination 25/2009).
THE EVIDENCE
Ms Tuck left her partner last year. She said he had been a controlling partner.
Ms Tuck said that it was an inequity that her partner pension was stopped. She said she would have continued to receive this support if she had been married. As she had been in a de-facto relationship, she received no support. She found it incongruous and confusing that for some issues the DVA could treat all relationships as being the same, but on this issue the DVA separates de facto relationships from married relationships.
In response to questions from Mr Purcell, Ms Tuck confirmed that she took no issue with any of the facts recorded in the Statement of Facts and Contentions.
SUBMISSIONS
In her submissions, Ms Tuck said she understood the legislation. She noted the discretion afforded the spouse in an abusive relationship. She asked for that discretion to be applied to her case.
Mr Purcell submitted that the facts of the case were not in dispute. He conceded the Tribunal had jurisdiction to hear the matter.
Mr Purcell submitted that prior to the separation, Ms Tuck was properly in receipt of the partner pension. He contended that after the separation Ms Tuck was no longer a member of a couple as defined in section 5E(2) of the Act as she was no longer living with her partner. As Ms Tuck was no longer a member of a couple, she did not satisfy the provisions of section 38(1)(a)(i) of the Act and was therefore not eligible for a partner service pension.
Mr Purcell contended that the provisions of Determination 25/2009 did not apply to Ms Tuck.
TRIBUNAL CONSIDERATIONS
Ms Tuck does not dispute that she was in a de facto relationship with her partner and that by 1 May 2014 she was separated from him.
Eligibility for partner service pension is prescribed in section 38(1) of the Act which states relevantly:
Subject to this section, a person is eligible for a partner service pension if the person:
(a)is a person:
(i) who is a member of a couple; and
(ii) whose partner is a veteran who is receiving an age service pension or invalidity service pension …
Section 5E(2) of the Act relevantly defines the meaning of member of a couple as:
A person is a member of a couple for the purposes of this Act if:
…
(b)all of the following conditions are met:
(i) the person is living with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the person and the partner are, in the Commission’s opinion (formed as mention in section 11A), in a de facto relationship;...
In this case, there is no dispute that from the date of her separation from her partner Ms Tuck was no longer living with him and as a result, she ceased to be a member of a couple. The fact that Ms Tuck was not legally married to her partner (section 5E(2)(b)(ii)) and was in a de facto relationship (section 5E(2)(b)(iii)) is not material as she was not living with him and did not satisfy section 5E(2)(b)(i). Section 5E(2) of the Act requires all sub-sections of sub-section (2)(b) to be satisfied.
As a result, when Ms Tuck separated from her partner she ceased to be a member of a couple and under the provisions of section 38(1) she was no longer eligible for a partner service pension. I find accordingly.
Section 38(2AC) of the Act provides that the eligibility for partner service pension of a non-illness separated spouse does not cease if circumstances specified under sub-section (2AD) exist. The legislated circumstances are contained in Determination 25/2009 which sets out the circumstances in which a non-illness separated spouse of a veteran retains eligibility for the partner service pension, despite being separated from the veteran.
Section 5E(1) of the Act defines a non-illness separated spouse as a person who is legally married to another person but living separately and apart from that other person on an permanent basis. Ms Tuck is not legally married to her partner. As a result, the exception provisions of section 38(2AC) do not apply to Ms Tuck.
There are no other provisions in the Act that may provide relief to Ms Tuck from the eligibility provisions of section 38(1).
CONCLUSION
From the date of her separation from her partner Ms Tuck became ineligible for a partner service pension. There are no discretionary provisions in the Act that can provide relief from the requirements of section 38(1) of the Act.
The decision to cease payment of the partner service pension was correct within the terms of the Act and I find accordingly.
I take this opportunity to commend Ms Tuck for the way she approached the appeal and presented her case. In addition, I thank Mr Purcell for his assistance.
DECISION
I affirm the reviewable decision.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier (Retired) C Ermert, Member
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Associate
Dated 11 March 2015
Date of hearing 23 February 2015 Applicant In person Advocate for the Respondent Mr G Purcell, Department of Veterans’ Affairs
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