Towle and Secretary, Department of Social Services (Social services second review)
[2024] AATA 2579
•22 July 2024
Towle and Secretary, Department of Social Services (Social services second review) [2024] AATA 2579 (22 July 2024)
Division: GENERAL DIVISION
File Number(s): 2022/1585
Re:Thomas Towle
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President K Millar
Date:22 July 2024
Place:Adelaide
The decision to pay Mr Towle the partnered rate of disability support pension from 29 March 2019 is set aside and remitted for reconsideration in accordance with the directions that:
· Mr Towle was a member of a couple with Miss Chang; and
· His rate of disability support pension is to be recalculated taking into account his income; and
The decisions regarding Mr Towle’s mobility allowance are set aside and substituted with decisions that Mr Towle qualifies for mobility allowance:
· At the higher rate from 25 June 2015 until 14 July 2016;
· At the lower rate from 15 July 2016 to 27 August 2018; and
· At the higher rate from 28 August 2018.
...............[sgnd].........................................................
Deputy President K Millar
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the applicant was a member of a couple – whether the absence of a permanent visa precludes conclusion that a person is a member of a couple – whether rate of disability support pension was calculated correctly – mobility allowance – whether applicant qualified for mobility allowance – whether rate of mobility allowance was calculated correctly – decisions under review set aside and remitted for reconsideration
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Privacy Act 1988 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Prygodicz v The Commonwealth (No 2) [2021] FCA 634
Re Bretag v IRT [1991] FCA 582
Repatriation Commission v O’Brien (1985) 155 CLR 422
Towle v Registrar of Motor Vehicles [2023] SASC 92
Towle v Secretary, Department of Social Services [2017] AATA 565
Towle and Secretary, Department of Social Services [2023] AATA 1507
SECONDARY MATERIALS
Department of Social Services, Social Security Guide (Web Publication, 6 May 2024)
REASONS FOR DECISION
Deputy President K Millar
22 July 2024
INTRODUCTION
Mr Towle has been seeking the reinstatement of his disability support pension at a single rate for many years. He argues that his relationship with Miss Chang, who he sponsored on a partner visa, is not one that makes him a member of a couple until Miss Chang was granted a permanent partner visa, or that if it did, the discretion not to treat them as a member of a couple should be exercised.
BACKGROUND
Mr Towle met Miss Chang on 13 July 2013 when her employer brought her to his share house. At the time he owned a double unit he purchased from the Housing Trust, and lived in one unit and loaned the other unit to a labour hire company. The labour hire company decided who lived in the other unit. When Miss Chang arrived, as there were already ten people in the labour hire house, the supervisor asked that Miss Chang stay in the spare room in Mr Towle’s unit. Mr Towle said he had no marital relationship with Miss Chang at this time, but that Miss Chang helped him manage a backpacker’s hostel his sister owned. By 25 October 2013, Miss Chang had left her job and remained in Mr Towle’s house, which Mr Towle said was as a business partner. This is the same date specified by Miss Chang in her Partner (Residence) visa application as the date they commenced a de facto relationship.
Miss Chang was granted a tourist visa while in Australia in August 2015, and applied for temporary and permanent partner visas on 16 October 2015. On 13 December 2016 she was granted a Partner (Temporary)(Class UK) visa on the basis of her relationship with Mr Towle. On 23 October 2019, Miss Chang was granted a Partner (Residence) visa, also on the basis of her relationship with Mr Towle.
Mr Towle argues that it is only from the date she was granted a Permanent Partner (Residence) visa that they were members of a couple.
On 15 May 2022, Mr Towle advised Centrelink that they were separated under the one roof.
THE DECISION UNDER REVIEW
Mr Towle applied for a review of a decision of the Social Services and Child Support Division of the Tribunal (‘AAT1’) to pay him a partnered rate of disability support pension from 29 March 2019, and decisions about his rate of mobility allowance from 24 June 2015.
Mr Towle has not applied for a review of an earlier decision of AAT1 to retore his disability support pension from 28 August 2018 and pay him arrears at a partnered rate, and expressly does not seek review of this decision. This means that much of his central complaint of not being paid a social security payment for a period of approximately two years cannot be addressed. This outcome requires some background and further explanation.
On 10 December 2015, Mr Towle says that, unbeknownst to him, the Secretary made a determination under s 24 of the Social Security Act 1991 (Cth) (‘the Act’) that he would not be treated as a member of a couple with Miss Chang for the purposes of assessing his rate of disability support pension. As a result, he was paid at the single rate of pension, without having regard to Miss Chang’s income.
On 30 June 2016, the Secretary issued Mr Towle a notice to provide information about Miss Chang’s income. As Mr Towle did not consider that he could require Miss Chang to provide information about her income, he did not provide this information and his disability support pension was suspended on 14 July 2016. Mr Towle appealed this suspension, and the Full Federal Court found there was no error in suspending his pension for failing to comply with a notice issued under s 68 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’). Mr Towle’s application for leave to appeal to the High Court was refused.
Following the decision of the Full Federal Court, Mr Towle says he provided information about Miss Chang’s income. A delegate of the Secretary considered the information he provided did not comply with the notice that had been issued, and on 28 August 2018 his disability support pension was cancelled with effect from the date his disability support pension was suspended, which was on 14 July 2016.
On 13 December 2016, Miss Chang was granted a Partner (Temporary) (Subclass 820) visa on the basis that she was in a de facto relationship with Mr Towle. She provided further information in support of the grant of a Partner (Residence) (Subclass 801) visa and this visa was granted on 23 October 2019.
On 29 March 2019, Mr Towle applied for an age pension, and his application was granted at a partnered rate as he was considered to be the de facto partner of Miss Chang.
On 4 September 2019, the Social Services and Child Support Division (‘AAT1’) reviewed the decision made on 28 August 2018 to cancel Mr Towle’s disability support pension (‘the first AAT1 decision’). Curiously, the Member decided that he was not bound by the decision of the Full Federal Court, instead finding that the notice issued to Mr Towle seeking information was not, as found by the Full Federal Court, issued under s 68 of the Administration Act, but instead was issued under s 63 of the Administration Act. As a result, the Member decided that Mr Towle’s disability support pension should not be cancelled, setting aside the decision to cancel Mr Towle’s disability support pension, and substituting decisions that:
· Mr Towle should be paid arrears of disability support pension from 28 August 2018 to the date he was granted age pension on 29 March 2019, and
· that those arrears should be paid at the partnered rate taking into account the combined income of Mr Towle and Miss Chang.
Subsection 118(11) of the Administration Act requires the cancellation of Mr Towle’s disability support pension to take effect from the day it was suspended, which was 14 July 2016. The AAT1 decision substituted a decision that the cancellation of Mr Towle’s disability support pension was revoked, but that Mr Towle only be paid arrears from 28 August 2018, which is the date the decision was made to cancel his disability support pension. It is unknown why AAT1 specified a date that was not the date his disability support pension was suspended. This decision was interpreted by the Secretary as setting a date of effect for the revocation of 28 August 2018.
This resulted in Mr Towle not being paid any type of social security payment for the period 14 July 2016 to 28 August 2018. This is essentially Mr Towle’s complaint.
Both Mr Towle and the Secretary applied for a further review of the decision, however both withdrew their applications. The Secretary states a stay was granted and that the stay remained in place until the applications were withdrawn. As a result, Mr Towle continued to receive age pension until 25 September 2020. After this date, the information before me does not show that the decision to restore Mr Towle’s disability support pension from 28 August 2018 has been implemented. A statement about his benefit history says that he has been on age pension since 29 March 2019.[1] Mr Towle explained that he withdrew his application for review because he wanted to keep the arrears paid for the period 18 August 2018 to 29 March 2019. The Tribunal cannot review the part of the decision that relates to payment for the period 16 July 2016 to 28 August 2018 without reviewing the entirety of the first AAT1 decision. Mr Towle has repeatedly stated that he does not want this decision reviewed. This means that this decision, which is at the core of his complaint, cannot be reviewed as no application has been made to review it.
[1] T22, 245.
Understandably confused by this outcome, Mr Towle again asked for internal review by an authorised review officer (‘ARO’), seeking payment for the period 16 July 2016 to 28 August 2018. As the decision to reinstate his pension and pay arrears from 28 August 2018 was the subject of the first AAT1 decision, a delegate of the Secretary considered the decision could not be reviewed again at the internal level, and advised Mr Towle that he could approach the Ombudsman.[2] It is somewhat concerning that the response to Mr Towle dated 2 February 2023 advising him to approach the Ombudsman did not mention applying to the Tribunal for a second review of the decision.
[2] Ex 49, B 16, Centrelink letter, ‘Formal review of decision’, dated 2 February 2023.
Where a decision follows on from an earlier decision, there is no jurisdiction to review the earlier decision.[3] As neither party has a current application for review of the first AAT1 decision, I have no jurisdiction to consider this decision.
[3] Repatriation Commission v O’Brien (1985) 155 CLR 422.
In Towle and Secretary, Department of Social Services [2023] AATA 1507, Senior Member Illingworth made an interlocutory decision that the jurisdiction of the Tribunal in this matter is limited to a review of a second AAT1 decision dated 3 February 2022. This is the decision that is the subject of this review.
The decisions under review
The application before me is an application to review decisions of AAT1 that are expressed as follows:
· To pay Mr Towle the partnered rate of disability pension from 29 March 2019;
· To restore Mr Towle’s mobility allowance payments from 24 June 2015 and to pay him the higher rate of mobility allowance from 28 August 2018; and
· To reduce the rate of mobility allowance paid to Mr Towle to the lower rate from 16 September 2016.
Mr Towle stated he has no objection to a decision to pay him a partnered rate of pension from the date that Miss Chang was granted a permanent visa on 23 October 2019. He argues that he should be paid a single rate of pension in the period 29 March 2019 to 23 October 2019 because he was not a member of a couple with Miss Chang.
Why disability support pension?
In the period from 29 March 2019, Mr Towle was being paid age pension, however the first AAT1 decision reinstated his disability support pension. In a recording of a call about implementing this decision,[4] Mr Towle was asked if he wanted to transfer back to age pension. He said he wanted to remain on disability support pension and was assured this would occur.
[4] Ex 47.
While under s 90 of the Administration Act a person may be transferred to a new payment without a claim, the Social Security Guide states that disability support pension recipients likely to be adversely affected by transferring to an age pension should be contacted and offered the choice between payments.[5] It is unknown if remaining on disability support pension would result in a different rate of payment, however Mr Towle said it was more beneficial for him to remain on disability support pension.
[5] Department of Social Services, Social Security Guide (Web Publication, 6 May 2024) 8.2.1 Transfers <>
As Mr Towle’s disability support pension was restored in a decision that has not been challenged, and in accordance with policy he elected to remain on disability support pension, this is the payment type under review despite the subsequent grant of an age pension and the apparent continuation of his age pension.
Objection to documents
Mr Towle objected to the Tribunal considering documents that included information provided to the Department of Home Affairs for the assessment of Miss Chang’s application for a Partner (Residence) visa, being that part of the visa application that relates to the grant of a Subclass 801 visa, and a statutory declaration he made in support of the grant of this visa. These are Exhibits R4 and R5.
Mr Towle submits that providing these documents breaches privacy laws because Miss Chang’s consent was not obtained.
The Secretary has broad powers to obtain information or documents if the Secretary considers the information or document may be relevant to (among other things) the rate of social security payment that is applicable to a person.[6] The Australian Privacy Principles allow an entity to disclose information if this is required or authorised by or under an Australian law.[7] There is no breach of privacy laws if this information is required under the Administration Act.
[6] Social Security (Administration) Act 1999 (Cth) s 192.
[7] Privacy Act 1988 (Cth) Sch 1 Principle 6.2(b).
There was also an objection on the grounds of relevance because the documents post-date the period in dispute in this case. The documents to which Mr Towle objects shed light on how he regarded his relationship with Miss Chang at various points in time. They are relevant to a question that is before the Tribunal and can be considered.
Mr Towle also did not consider evidence in Exhibit R2, which is the transcript from the Economic and Finance Committee, to be relevant but did not press this objection.
Operation of the Migration Act 1958 (Cth) and the Social Security Act 1991 (Cth)
Mr Towle says that he cannot be considered a member of a couple for the purposes of s 4 of the Act while Miss Chang did not hold a permanent visa. He argues that this is because s 4(3A) of the Act states:
(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
Mr Towle argues that ‘indefinite’ in the Act means, in his circumstances, until Miss Chang is granted a permanent visa.
Mr Towle says that this is different from the definition of de facto relationship in s 5CB of the Migration Act 1958 (‘the Migration Act’), which states in part that a person is in a de facto relationship with another person if they are not in a married relationship with each other but:
…
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis…
Mr Towle and Miss Chang were, in fact, living in the same household at the point in time this was required to be assessed, and have continued to live in the same household. At no time have they lived apart. I do not accept that they lived separately and apart on a permanent or an indefinite basis.
Mr Towle argues that they were not ‘mentally settled’ in the relationship until Miss Chang was granted a permanent visa. This contradicts the information provided in support of their de facto relationship for the purposes of in the Migration Act, which requires at s 5CB that there is a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, and the couple live together, or do not live separately and apart on a permanent basis.
Mr Towle and Miss Chang were required to meet this definition for the grant of a Partner (Provisional) (Subclass 820) visa,[8] both on the date Miss Chang applied for this visa on 16 October 2015[9] and on the date it was granted on 13 December 2016.[10]
[8] Migration Regulations 1994 (Cth) Sch 2 Part 820.
[9] T11, 115.
[10] T11, 114.
Mr Towle argues that until Miss Chang was granted a permanent, or Partner (Residence), visa on 23 October 2019, he cannot be considered to be a member of a couple with her. He considers the decision of the Full Federal Court in Towle v Secretary, Department of Social Services[11] supports his view. This is because the headnote reads ‘whether absence of finding of partner visa under the Migration Act 1958 (Cth) procedurally consistent with a person being a member of a couple for the purposes of the Social Security Act 1991 (Cth)’.
[11] [2017] AATA 565.
Mr Towle’s argument is both an incorrect interpretation of the headnote and is expressly addressed at paragraphs [18] – [21] where Logan J states:
What did emerge very clearly from Mr Towle’s submissions was a fundamental disagreement on his part as to how the absence of a Partner visa for Miss Chang (though she had made an application for one), was consistent with the suspension of his disability support pension. In effect, his contention was that it must necessarily have followed from the absence of a Partner visa for Miss Chang that he should have been treated as a single person for disability support pension purposes and that there was no occasion at all for the suspension of his pension. That looks to have been the subject dealt with expressly by the Tribunal.
The question is one which surely must have wider application in the administration of the Social Security Act than just to Mr Towle. So it is desirable to deal with it directly. There is nothing in s 4(2), read with s 4(3), of the Social Security Act which expressly either excludes or requires consideration of the visa status of one or other or both of the people potentially constituting the couple. The fact that a non-citizen, living in Australia, does not hold a visa may clearly be relevant as part of the factual matrix.
In turn, in deciding whether or not the discretion to determine that a person is not a member of a couple under s 24 of the Social Security Act should be exercised, the circumstance that one member of the couple does not hold, either at all or as yet, a Partner visa is a fact which permissibly can be taken into account by the Secretary.
In short, there is no necessary antipathy between the absence of a person’s holding a Partner visa and a conclusion that another person is, with them, a member of a couple for the purposes of the Social Security Act. Had there been such an antipathy, the Tribunal may well have been obliged to conclude that there should be no suspension of Mr Towle’s disability support pension because the questions asked could have no particular relevance to his pension. As it was though, the questions posed did have relevance to the question as to whether to continue the determination not to treat him as a member of a couple, and for that matter, the underlying payment to him of a disability support pension. The income, or otherwise, and the amount thereof could have affected the amount of pension to which Mr Towle was entitled. That being so, and given that there was no obligation to cite the particular statutory authority, the letter of 30 June 2016 asked lawful questions. The Tribunal’s conclusion that the questions had not been responded to was one open factually for the Tribunal to make.[12]
[12] Towle v Secretary, Department of Social Services [2017] AATA 565, [18] – [21].
It follows that this argument is misconceived. Many of the matters that require consideration of the grant of a Partner (Provisional) visa are also included in the assessment of whether a person is in a de facto relationship for the purposes of the Act. Mr Towle and Miss Chang’s view of their relationship, and how they presented this for immigration purposes, is therefore highly relevant in examining if they were members of a couple as defined in the Act.
Were Mr Towle and Miss Chang members of a couple?
Under s 117 of the Act, the provisions that relate to the calculation of Mr Towle’s rate of disability support pension are set out in pension Rate Calculator A at the end of s 1064 of the Act.
The person is paid a partnered rate if they are a member of a couple, as they are treated as pooling their assets and sharing them on a 50/50 basis. They are also treated as sharing their expenses on a 50/50 basis (s1064-A2 of the Act).
Subsection 4(2) of the Act defines a member of a couple, where the parties are not married and are not in a registered relationship, as follows:
(i)the person has a relationship 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 relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
In the relevant period, Mr Towle and Miss Chang had a relationship of some description and were not married, they were over the age of consent and the relationship was not a prohibited relationship.
The issue is then whether their relationship was a de facto relationship. The matters to be considered in deciding if a person is in a de facto relationship are set out in ss 4(3) and 4(3A) of the Act.
Subsection 4(3) provides that the Secretary is to have regard to all the circumstances, and in particular the financial aspects of the relationship, the social aspects of the relationship, any sexual relationship between the people and the nature of the commitment between the people. It further specifies items within these categories to be considered.
Mr Towle argues that they could not set up house or live as a marital couple until Miss Chang held a permanent visa. He submits that until Miss Chang was granted a permanent visa they were living separately and apart as she was unable to remain in Australia permanently. He argues that they were instead partnered with a common purpose and were in a working relationship and not a de facto relationship.
Mr Towle provided a detailed statutory declaration dated 16 September 2019 (‘the statutory declaration’) in support of Miss Chang’s application for a Partner (Residence)(Subclass 801) visa. In this statutory declaration he declares that the relationship began in 2013 and that they have lived together for six years. He makes various statements in support of shared financial affairs, shared household and social activities and their commitment to a shared life.[13] As this statutory declaration was in support of the Partner (Residence) (Subclass 801) visa and the grant of the temporary (Subclass 820) visa also requires Miss Chang to establish that she is the de facto partner of Mr Towle,[14] and the statutory declaration was made only shortly after the disputed period, I consider the information in the statutory declaration probative of the nature of their relationship in the slightly earlier period Mr Towle disputes from 29 March 2019 until 23 October 2019.[15]
[13] Ex R5.
[14] Migration Act 1958 (Cth) s 65; Migration Regulations 1994 (Cth) sch 2 cl 820,111.
[15] See Minister for Immigration and Ethnic Affairs v Pochi[1980] FCA 85 per Deane J at [24]; Re Bretag v IRT [1991] FCA 582 at [12].
Mr Towle says that this statutory declaration was written with ‘rose coloured glasses’ trying to impress the Minister for Immigration. He says it was not possible to live in a domestic relationship because Miss Chang could be deported at any time, and they lived with the ‘sword of Damocles hanging over their head’. I found Mr Towle’s attempt to distance himself from the material in his statutory declaration, stating that this declaration was only for the purposes of immigration, unconvincing and I do not accept the information in the statutory declaration is false.
As Mr Towle disputes that they were members of a couple, it is necessary to consider the provisions of the Act for assessing if they are members of a couple.
Living separately and apart from the partner on a permanent or indefinite basis
Mr Towle argues that under s 4(3A) of the Act he cannot be in a de facto relationship with Miss Chang as he considers they were living separately and apart on a permanent or indefinite basis. His argument is that until Miss Chang was granted a permanent visa, they could not live together on an indefinite basis. This overlooks that they were, in fact, living together throughout this period, with no intention to live separately, and s 4(3A) of the Act does preclude them being in a de facto relationship.
Turning then to the factors in s 4(3) of the Act.
The financial aspects of the relationship
The financial aspects of the relationship to be considered are specified in s 4(3)(a) of the Act as:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day‑to‑day household expenses…
In his statutory declaration, Mr Towle declares that they jointly own their furniture, a tractor with attachments, car trailer and building materials. They have held a joint account since May 2015 which is used for savings and paying everyday expenses, living costs, utilities, food shopping and petrol. Mr Towle declares Miss Chang deposits all of her casual income into the joint account, and he deposits 25% of his earnings. Mr Towle declares that they have completely paid off their home but it was not yet in both names because of Miss Chang’s residency status. By the time of the hearing, the house was in joint names.
Miss Chang contributed $40,000 to the purchase of his home. Mr Towle said that this was made necessary because his pension had been suspended, and that until she was granted a visa this was a loan. Mr Towle stated that when his pension was suspended in July 2016 Miss Chang paid his mortgage, and because she paid his mortgage he made a new will so that she would inherit the property. In the information Miss Chang provided for the permanent visa processing, she said that she paid over $45,000 to the purchase of the property. A copy of Mr Towle’s Will was provided to the Department for Home Affairs, which states that Mr Towle bequeaths all his real and personal property to Miss Chang.[16] Mr Towle said that the house has been in joint names from 4 January 2020. In the context of the intermingling of their financial affairs, I do not accept Miss Chang’s contribution to the purchase of the house was considered a form of conditional loan.
[16] Ex R3.
Miss Chang’s car was registered in joint names as Mr Towle was required to have it in his name to access an insurance policy under his name. The car remains in joint names.
I find Mr Towle and Miss Chang jointly owned some assets, pooled financial resources and shared household expenses in the period from 29 March 2019.
The nature of the household
The nature of the household includes:
(i)any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(ii)the basis on which responsibility for housework is distributed…[17]
[17] Social Security Act 1991 (Cth) s 4(3)(b).
Mr Towle and Miss Chang do not have any joint responsibility for children. In the period from 29 March 2019 they were living together, and in his statutory declaration Mr Towle describes sharing ‘domestic chores such as cleaning, cooking, washing and house and garden maintenance to fit with our abilities and our work rosters. Ya-Fen often works 6 days a week so I will do the weekly shopping however she writes a shopping list if necessary. If she is not working we do the shopping together.’[18]
[18] Ex R5.
His argument is that until Miss Chang was granted a permanent visa they could not set up house as a marital couple but could share a house and that decisions of the court meant they were living separately and apart.
As noted above, that not the case as they were living together and I find they lived together and shared housework in the period from 29 March 2019.
The social aspects of the relationship
The social aspects of the relationships include:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities…[19]
[19] Social Security Act 1991 (Cth) s 4(3)(b).
In a form dated 6 July 2016,[20] Mr Towle is asked ‘Do you still consider yourself partnered to Ya-Fen Chang? If not, please describe your marital status’. Mr Towle answers ‘Yes’.[21] Mr Towle attempted to draw a distinction between being partnered and being in a de facto relationship, however I do not accept that he saw himself as other than being in a de facto relationship with Miss Chang. I do not accept, in the context of the entire question, that he did not understand that the term ‘partnered’ was being used in relation to his marital status.
[20] T24, 789.
[21] T24, 785.
In his statutory declaration, Mr Towle states that they ‘sleep together, go out socially together, we are saving together to buy two cars.’[22] He states neither goes out socially without the other:
We usually go out to dinner together twice a week, to the Barmera Hotel, or Barmera Club. Sometimes to the Berri Chinese restaurant. We often invite friends to join us such as my long time friend Dallas and the proprietors of the Riverbush Holiday Cottages in Berri. When work commitments permit we travel to Adelaide or Mildura as getaways. In Adelaide we stay at the Sands Motel on Glen Osmond road. We are both members of Coomealla Club NSW and Renmark Club SA.
We regularly have a picnic together by Lake Bonney. Yesterday we had it by the Murray River in Renmark where coincidentally we were seen by my work colleague (Sheena), 3 of my clients and 3 Taiwanese work colleagues of Ya-Fen including one I know as ‘Ariel’. The documents packages submitted previously and currently have photographs of us enjoying the company of our friends, at BBQ’s, watching basketball or elsewhere. Ya fen has been to my work events as my partner, for example Christmas lunch 2018.[23]
[22] Ex R5, 38.
[23] Ibid.
In his statutory declaration, Mr Towle refers to attending a South Australian Parliamentary Committee inquiry into labour hire practices in the horticulture industry. The Secretary obtained and provided a transcript of Mr Towle’s address to this committee, at which he states: ‘You will notice I am here with my partner, who is from Taiwan.’[24] Mr Towle said he was referring to Miss Chang as his business partner. I reject this is the meaning he intended considering the preponderance of other evidence in support of the relationship including his own statutory declaration.
[24] Ex R2.
Mr Towle states in his statutory declaration that his oldest son Shane accepts Miss Chang as his stepmother.
I find that Mr Towle and Miss Chang held themselves out as being in a de facto relationship, that Mr Towle believes his friends and associates regard them as a couple and that they engage in joint social activities.
Any sexual relationship
In his statutory declaration, Mr Towle states that they sleep together. He was evasive when asked how long they had slept together, stating that he did not know. He said that they still share the same room.
I find that they had a sexual relationship the period from 29 March 2019. I make no findings about whether this sexual relationship continues to the current date.
The nature of the people’s commitment to each other
The nature of the commitment to each other includes:
(i)the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.[25]
[25] Social Security Act 1991 (Cth) s 4(3)(e).
In his statutory declaration, Mr Towle declares that his relationship with Miss Chang commenced in 2013 and at that stage they had lived together for six years. He declares that ‘[o]ur support of each other and 100% commitment to a shared future together has strengthened over the 6 years since first dating from being a girlfriend/boyfriend to being inseparable life-long partners.’[26]
[26] Ex R5, 38.
He describes Miss Chang as assisting him and nursing him during an illness in 2018, and that Miss Chang reports she has found happiness sharing life with him, which is reciprocal, and that he was a bachelor for over 21 years before he decided to make a life-long commitment with Miss Chang. He states that they plan to travel the world together and hope to buy a hobby farm and have started buying equipment, including a second-hand tractor. He declares that when Miss Chang visits Taiwan they communicate about twice a day on the internet using Skype. They keep in touch sometimes when at work. He states:
A measure of our commitment to each other is evidenced when Ya-Fen is not working, as expected with a casual job. She still contributes from her savings to all of our expenses including the house mortgage when we still had it. Likewise I make up any shortfall in her income as her partner and her sponsor.
When my mother died, Ya-Fen was visiting her family however after she returned she was my only source of emotional support and I was hers.[27]
[27] Ibid.
Mr Towle said that this was for immigration purposes and that it was true for immigration purposes. I do not accept that he regarded the relationship differently to how he reports it in support of the assessment of a permanent visa for Miss Chang.
I find that they were in a relationship since 2013, a period of approximately six years of the time in question, that they provide each other companionship and emotional support, that they considered the relationship would continue indefinitely, and that others saw their relationship as a de facto relationship.
Conclusion – Member of a Couple
Having considered all the circumstances of the relationship, including that Miss Chang did not hold a permanent visa at the time, and also having considered the matters in s 4(3) of the Act, I find that Mr Towle and Miss Chang were members of a couple. This includes the period Mr Towle disputes from 19 March 2019 until 23 October 2019.
Section 24 of the Act
Under s 4(6) of the Act, the Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if a determination under s 24 is in force in relation to the person.
Subsection 24(2) states:
(2) Where:
(a)a person has a relationship with another person, whether of the same sex or a different 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 de facto 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.[28]
[28] Social Security Act 1991 (Cth) s 24(2).
Mr Towle was the subject of a determination under s 24 of the Act that he was not treated as a member of a couple. The Centrelink records include a letter dated 11 December 2015 stating that he would be paid as a single person even though he has a partner, and requesting further information on his partner, including the completing of a ‘Mod P – Partner details’ form.[29] On 24 December 2015 he was sent a letter stating:
You will be paid the rate for a single person, even though you have a partner. The reason for this is that your partner is unable to claim an income support payment due to her Visa and she does not have any income and assets to support you.
The decision to assess you as a single person is subject to review and you should expect to be telephoned or asked to attend a service centre for this review to be conducted.[30]
[29] T23, 489.
[30] T23, 491.
Mr Towle said that while he was advised of the s 24 determination in a letter of 24 December 2015, he did not know the legal effect of this letter at the time. In retrospect he realises this was the determination.
A review of the s 24 determination on 29 March 2016 records that this determination is to remain in place.[31] This follows a form submitted by Mr Towle and dated 24 March 2016 in which he says he is still partnered with Miss Chang.
[31] T22, 363.
The Secretary submits that the s 24 determination was revoked on 19 August 2019 while granting Mr Towle’s claim for age pension. The Secretary states that this determination was made on the information contained in his application for an age pension, and that if Mr Towle disagreed with the decision that he was partnered or that a s 24 determination should apply, he can seek review of this decision. This is contrary to the advice to Mr Towle in the ARO decision about his mobility allowance, which states the s 24 determination was revoked when his disability support pension was cancelled.[32]
[32] T3, 24.
AAT1 reinstated Mr Towle’s disability support pension and stated that he should be paid at the partnered rate of disability support pension from 28 August 2018. This means that despite the reinstatement of his disability support pension, the s 24 determination has been revoked. Neither party challenges this decision.
Having regard to the circumstances at the time, including that Miss Chang was working, I do not consider there are otherwise special reasons that mean they should not be treated as members of a couple and find s 4(4) of the Act does not apply.
What is the correct rate of disability support pension?
The decision under review is stated to be to pay Mr Towle the married rate of disability support pension from 29 March 2019.
In Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321, Mason CJ states at 337 that
a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determination, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Determining if a person is paid at a single or married rate is only one component of a rate calculation. Other aspects of the calculations include the person’s income and assets. It is generally not practical or in accordance with the objects of the Act to canvass all aspects of a rate calculation. However, the decision that is under review is a decision about a rate of disability support pension, and not only the component that Mr Towle’s rate is calculated on the basis that he is partnered.
Mr Towle provided a copy of the Ombudsman Report Lessons in Lawfulness which addresses how employment income was used to calculate social security payments in the period up to 7 December 2020.[33] He also states that his rate was affected by ‘Robodebt’, in which income averaging was used over a financial year through information received from the Australian Taxation Office (‘ATO’). While some of Mr Towle’s arguments are misguided, as his rate was calculated using information received from him, and not income averaging from information received by the ATO, it could fairly be said that he has raised issues with the use of employment income to calculate his rate.
[33] Ex 41D.
Mr Towle states that he disputes his rate of payment of disability support pension from 29 March 2019 until 23 October 2019.
This falls within the period in which there is a disputed interpretation of 1073B of the Act. This is because, as it was at that time, employment income was to be apportioned on each day in a Centrelink instalment period, which is a period of 14 days. It did not allow apportionment across more than one instalment period, as was the practice at the time.
The Secretary conceded that there are errors in the rate calculations based on Mr Towle’s income and requested that the matter be remitted to the Secretary with a direction that the applicant’s entitlement to age pension be recalculated.
It adds to the complexity of this matter that the rates and calculations that have been provided to the Tribunal and to Mr Towle for the period from 29 March 2019 are rates of age pension and not rates of disability support pension. It appears that on reinstatement of his disability support pension, a rate of disability support pension has not been calculated and reconciled with the age pension he received.
The representative for the Secretary, while admirably taking carriage of this matter part way through the hearing, could not explain why rates of age pension were before me and not rates of disability support pension.
As I have not been provided with a rate calculation for disability support pension, I am not satisfied this rate was correctly calculated.
Mobility Allowance
Mobility allowance is paid to people who (among other things) meet the definition of a ‘handicapped person’ in the Act and who are unable to use public transport. Mobility allowance is paid at two different rates: a higher rate and a lower rate.
To qualify for the higher rate in Mr Towle’s circumstances he must be receiving a disability support pension.
Mr Towle said both that he disputes the decrease in his rate from the higher rate to the lower rate, and that he does not seek review of decisions about his mobility allowance. The Secretary argues that Mr Towle was not eligible for mobility allowance because he was able to use public transport.
The ARO decision dated 12 October 2021[34] was to restore Mr Towle’s mobility allowance from 24 June 2015 and to pay him at the higher rate from 28 August 2018, this being the date that AAT1 decided his disability support pension was again payable.
[34] T3, 24 – 25.
The notes to the ARO decision shed a little further light on the timeframe:
· Mr Towle’s mobility allowance was retrospectively cancelled from 24 June 2015;
· He was paid mobility allowance at a higher rate until 16 September 2016. His rate reduced to the lower rate on this date because his disability support pension was suspended, and on 16 September 2016 he was advised of this decision;
· Mr Towle queried this decision on 2 December 2016. This was accepted by the ARO as a request for a review of the decision to reduce his rate;
· On 14 November 2018 his mobility allowance was cancelled from 24 June 2015, however Mr Towle was not notified of this decision;
· On 7 December 2018, Mr Towle queried the cancellation of his mobility allowance.
This decision was affirmed by AAT1, who expressed the decision as:
· To restore Mr Towle’s mobility allowance payments from 25 June 2015 and pay him at the higher rate of mobility allowance from 28 August 2018; and
· To reduce the rate of mobility allowance to the lower rate from 16 September 2016.
It follows that the issues are:
· Was Mr Towle qualified for mobility allowance from 25 June 2015; and
· If he was qualified for mobility allowance, what is his correct rate. This in turn depends on the effect of the suspension of his disability support pension.
The higher rate of mobility allowance
The provisions that relate to mobility allowance are set out in Part 2.21 of the Act. To be paid a higher rate of mobility allowance under s 1044(1A) of the Act, a person must meet the requirements in s 1035A(1). These are:
(a)The person is a handicapped person; and
(b)The Secretary is of the opinion that the person is unable to use public transport without substantial assistance (either permanently or for an extended period) due to the person’s physical or mental disability; and
(c)The person is an Australian resident; and the person satisfies one or more of subsections (2) to (9).
As it applies to Mr Towle, s 1035A(3) of the Act requires that the person is receiving disability support pension.
The term ‘handicapped person’ is defined by s 23(1) and s 19 of the Act as a person who has a physical or mental disability and has turned 16.
It is not disputed Mr Towle has a physical disability and meets s 1035A(1)(a) of the Act, however the Secretary raised for the first time prior to the hearing that Mr Towle did not meet the requirements to be unable to use public transport without substantial assistance for the purposes of s 1035A(1)(b) of the Act.
Mr Towle held a Class HC (heavy vehicle) drivers licence until it was cancelled on 10 June 2020, and he appealed the loss of his heavy vehicle licence to the South Australia Civil and Administrative Tribunal (‘SACAT’)[35] and then to the Supreme Court of South Australia.[36] In the course of the SACAT hearing, Mr Towle stated that he used a heavy vehicle licence as part of his employment driving people with disabilities. His appeal to the Supreme Court included the submission that the decision had led to the loss of his job as a disability support worker where driving and transporting vulnerable people was a major part of his duties.
[35] Towle v Registrar of Motor Vehicles [2022] SACAT 31.
[36] Towle v Registrar of Motor Vehicles [2023] SASC 92.
The Secretary argues that this means Mr Towle was transporting people in a bus and it is illogical that he can be a driver of a bus but cannot be a passenger on a bus.
Mr Towle submits that being able to drive a bus did not mean he was able to use public transport. In his job as a disability support worker Mr Towle said he transported people at times in a car and at times in a bus. He says that the support workers assisted people to get in and out of the vehicle and used equipment such as ramps and elevators. He says he may have been required to strap in the wheelchair, but mostly the support staff helped. He says that he delegated tasks such as doing up harnesses and could delegate the driving. He states the issue with public transport is the effect of carbon dioxide on his breathing.
The decision of the Supreme Court in Towle v Registrar of Motor Vehicles [2023] SASC 92 shows that the reason for the suspension of Mr Towle’s heavy vehicle licence was a medical condition affecting his right ankle.
Mr Towle provided a considerable body of medical reports for the purposes of his disability support pension showing he suffers chronic obstructive airways disease and mixed anxiety and depression[37]
[37] Ex 49.
The Secretary has not provided any medical reports or other information to show how Mr Towle’s chronic obstructive airways disease or anxiety and depression affect his ability to use public transport. I am not satisfied that because his heavy vehicle licence was suspended because of an ankle condition this shows he was able use public transport considering the evidence that his primary condition is chronic obstructive airways disease and mixed anxiety and depression.
In the absence of information to contradict his oral evidence and the medical evidence provided showing that he cannot use public transport due to his breathing, I consider that he was unable to use public transport and that he met s 1036A(1)(b) of the Act from 25 June 2015.
The next requirement is the requirement in s 1035A(3) of the Act that the person is receiving disability support pension.
The term ‘receive’ is defined in s 23 of the Act as set out in ss 23(2), (4), (4A), and (4AA). Under s 23(2) of the Act, a person is taken to be receiving a social security payment from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day. Under s 23(4), a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person, even if the last instalment of the payment is not paid until a later day.
Mr Towle was not receiving a disability support pension from the date it was suspended on 14 July 2016 until the decision of AAT1 that he should be paid again from 28 August 2018, and he does not qualify for mobility allowance at the higher rate in this period.
A person who is receiving mobility allowance at the higher rate under s 1044(1A) of the Act, and who ceases to satisfy the requirements in s 1035A(3) to be receiving disability support pension, continues to be qualified for mobility allowance for 12 weeks after the person would otherwise cease to be qualified for mobility allowance.[38]
[38] Social Security Act 1991 (Cth) ss 1046(2A) and 1046(3).
The decisions under review about Mr Towle’s mobility allowance have assumed this means that he receives mobility allowance at the higher rate for a period of 12 weeks after his disability support pension is suspended and he is no longer receiving this payment.
However, the period of 12 weeks applies if the person no longer qualifies for mobility allowance. This does not specify the rate at which mobility allowance is paid. If Mr Towle qualified for mobility allowance at the lower rate from the time he ceased receiving disability support pension, I do not see how s 1046(3) applies to extend the time for which he can be paid mobility allowance at a higher rate.
Therefore, I find that the decision to restore his mobility allowance from 24 June 2015 is correct, but that he was no longer eligible to be paid at the higher rate from 14 July 2016 until he recommenced receiving disability support pension on 28 August 2018.
The lower rate of mobility allowance
Under s 1035(1) of the Act a person is qualified for a mobility allowance at the lower rate specified in 1035(1)(a) – (h) in circumstances which include:
· the person is a handicapped person; and
· the person is unable to use public transport without substantial assistance either permanently or for an extended period; and
· the person’s inability to use public transport is due to the person’s physical or mental disability; and
· the person is engaged in gainful employment, or vocational training for at least 23 hours in every 4 weeks on a continuing basis, or is undertaking certain job search activities or volunteer activities a combination of these activities for at least 32 hours in every 4 weeks; and
· the person is an Australian resident.
At the time Mr Towle ceased receiving disability support pension, he was asked to verify his work for mobility allowance.[39] He provided information to show that he was working at least 32 hours every four weeks, and I am satisfied that he met the requirements for mobility allowance at the lower rate from the date he stopped receiving disability support pension. While I do not have information to show that he continued to meet the requirement to work at least 23 hours every four weeks, I am prepared to infer that he continued to do so from the information provided for the period 31 May 2016 – 25 July 2016 and the decision of the Supreme Court of South Australia that records a ground of appeal that the loss of his licence led to the loss of his job as a disability support worker. As his heavy vehicle licence was lost in 2020, I infer he continued to work until at least August 2018.
[39] T9, 103 – 109.
Because the Secretary submitted Mr Towle was not eligible for mobility allowance as he held a heavy vehicle licence, I have not been provided with information on the assessment of mobility allowance in the period from 14 July 2016. This includes information on whether he was engaged in gainful employment, vocational training, job search or volunteer activities. However, he did receive mobility allowance in this period and the Secretary did not contend he otherwise did not meet the requirements for mobility allowance.
The appropriate decision is then to substitute the AAT1 decisions and replace them with decisions that Mr Towle qualifies for mobility allowance:
· At the higher rate from 25 June 2015 until 14 July 2016;
· At the lower rate from 15 July 2016 to 27 August 2018; and
· At the higher rate from 28 August 2018.
DECISION
The decision to pay Mr Towle the partnered rate of disability support pension from 29 March 2019 is set aside and remitted for reconsideration in accordance with the directions that:
· Mr Towle was a member of a couple with Miss Chang; and
· His rate of disability support pension is to be recalculated taking into account his income; and
The decisions regarding Mr Towle’s mobility allowance are set aside and substituted with decisions that Mr Towle qualifies for mobility allowance:
· At the higher rate from 25 June 2015 until 14 July 2016;
· At the lower rate from 15 July 2016 to 27 August 2018; and
· At the higher rate from 28 August 2018.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Millar.
[sgnd]
………………………………………Associate
Dated: 22 July 2024Date of hearing: 12 & 13 December 2023 & 6 May 2024 Advocate for the Applicant: Self-represented
Advocate for the Respondent: Chris West & Alex Chan,
Sparke Helmore