Towle and Secretary, Department of Social Services (Social services second review)
[2017] AATA 565
•28 April 2017
Towle and Secretary, Department of Social Services (Social services second review) [2017] AATA 565 (28 April 2017)
Division:GENERAL DIVISION
File Number: 2016/5363
Re:Thomas Towle
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member R W Dunne
Date:28 April 2017
Place:Adelaide
The Tribunal affirms the decision under review.
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Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – payment of disability support pension ("DSP") to applicant at single rate – applicant living with non-residential partner – decision made to suspend DSP – whether DSP was correctly suspended – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 24(2)
Social Security (Administration) Act 1999 (Cth), ss 68, 81 and 95
REASONS FOR DECISION
Senior Member R W Dunne
28 April 2017
INTRODUCTION
The applicant in this case is Thomas Towle. He has been in receipt of disability support pension (“DSP”) at the single rate since 1996.
In early 2013, the applicant met a female citizen from China with whom he wished to be partnered. Later in 2013, he started living with her as his partner.
When an officer of the respondent (“Centrelink”) decided to suspend the applicant’s DSP he applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) for review. When the AAT1 affirmed the decision, the applicant applied to this Tribunal for further review.
THE HEARING
At the hearing, Mr Towle represented himself. The respondent was represented by Mr C Visser (from the Department of Human Services). I admitted into evidence the T Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.[1]
[1] Exhibit R1.
At the behest of Centrelink, the Deputy District Registrar of this Tribunal issued a summons to the applicant’s partner to give evidence at the hearing.
ISSUE FOR THE TRIBUNAL
The issue for this Tribunal is whether the applicant’s DSP was correctly suspended.
LEGISLATION
The legislation relevant to this review application is found within the social security law, in particular, the Social Security Act 1991 (“Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
The Administration Act
As the provisions of the Administration Act are the more relevant here, they are set out first. Section 68 relevantly reads:
“Person receiving social security payment or holding concession card
(1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or energy supplement under Part 2.25B of the 1991 Act) is being paid.
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
(c)give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.
…”
Section 81 relevantly reads:
“Cancellation or suspension for non-compliance with certain notices
(1) If:
(a)a person who is receiving a social security payment (other than a newstart allowance) has been given:
(i) a notice under section 67 or 68 that requires the person to give the Department a statement; or
(ii) a notice embodying a requirement under Division 1 of Part 5; and
(b)the person does not comply with the requirement of the notice;
the Secretary may determine that the payment is to be cancelled or suspended.
…”
As it is also relevant, section 95 reads:
“Automatic cancellation – failure to provide statement under subsection 68(2)
(1) If:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b)the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c)the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
…”
The Act
“24 Person may be treated as not being a member of a couple (subsection 4(2))
…
(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.
…”
BACKGROUND
The following background and findings are based largely on the statements of facts and contentions of both the applicant and the respondent. However, I am satisfied of the material facts on the balance of probabilities and the findings are set out to the extent they are, in my opinion, clearly relevant.
At the time of the hearing, the applicant had been receiving DSP and had been paid at the single rate, purportedly under s 24 of the Act. On the material available, it appears this is because he became partnered to Ms Ya-Fen Chang in October 2013. Ms Chang was born in Taiwan and she first came to Australia on 27 June 2013. She arrived in Australia on a tourist visa and was then granted a Bridging visa (subclass 010) on 19 October 2015. It appears this was done to allow her to remain in Australia during the processing of an application she made to the Department of Immigration and Border Protection for a Partner (subclass 820) visa.[2]
[2] Exhibit R1, T5 page 57.
On 30 June 2016, the respondent sent a letter to the applicant seeking information relating to his DSP. Attached to the letter was a questionnaire requesting information about a number of matters, including those relating to the personal affairs of Ms Chang. On 14 July 2016, after not receiving all the information in the questionnaire from the applicant, a decision was made by an officer of Centrelink to suspend his DSP. On 18 July 2016, the applicant requested an internal review of the suspension decision by a Centrelink authorised review officer (“ARO”). In requesting the internal review, it appears from the material available that the applicant said:
“I believe the decision is an error because Ya-Fen Chang has not been accepted by the Australian Government as being in a legitimate partnership with myself. I do not have rights to demand from her access to her private information.”[3]
[3] Exhibit R1, T11 page 80.
On 26 July 2016, the ARO decided to affirm the decision under internal review.
On 20 September 2016 or thereabouts, the AAT1 affirmed the decision of the ARO under review. The AAT1 Member found that the decision was the correct or preferable decision under social security law. In her reasons for decision, the AAT1 Member referred to the provisions of ss 68, 81 and 95 of the Administration Act that were relevant in the review. When the applicant made submissions to the AAT1 Member regarding the application of s 24 of the Act, the Member explained that any decision under s 24 was not before her. She said this was because the ARO did not make any determination under that section of the Act in the statement before the AAT1.[4]
[4] Exhibit R1, T2 page 6.
On 7 October 2016, the applicant requested a review of the decision of the AAT1 by this Tribunal. In his application for review, the applicant contended that:
(a)the decision of the AAT1 was wrong;
(b)his submissions to the AAT1 were not taken into account; and
(c)insufficient time was given for his submissions.
EVIDENCE
Evidence of Mr Towle
In giving his evidence, the applicant was critical of the manner in which Centrelink had sought information from him about Ms Chang. He said Centrelink had approached him in the questionnaire seeking information from him on the basis that she was his partner, but in the knowledge that she was not a member of a couple. In these circumstances, it could not be expected that he would ask her for details of her income. In relation to the questionnaire itself, he was unaware of the authority under the Act under which it had been made and he believed he was entitled to know that. As Ms Chang was his partner and not a member of a couple, it was unfair for Centrelink to require him to provide her personal information so it could make a decision likely to have the effect of causing her to be placed in a situation where her income would be used to reduce the amount of his DSP.
The applicant made reference to the application of s 24 of the Act to his case on several occasions. He suggested some staff of Centrelink should be given guidance on the operation of the section. In making this suggestion, he was critical of the fact that he had not been advised by Centrelink that he was, or had been found to be, eligible for the benefit of s 24.
The applicant also referred, more than once, to the fact that he and Ms Chang had paid almost $7,000 to the Minister for Immigration to determine “if we are a genuine couple”. He inferred that the position taken by Centrelink under s 24 of the Act and the involvement of the Minister for Immigration in Ms Chang’s case had placed the Commonwealth of Australia in a “conflict of interest situation”.
Evidence of Ms Chang
Ms Chang was examined first by Mr Visser. When he asked her whether she was the partner of the applicant, she said yes. When he asked whether she refused to give details about her income and assets to the Australian Government, she said she was willing to provide that information. When he asked her whether she was willing to supply that information to her partner, the applicant, she said she would have supplied it if the applicant gave her the reasons why he wanted to know.
Mr Visser then asked Ms Chang this. If Mr Towle said to you, “Centrelink have asked me about that information”, would that have been satisfactory and you would then answer him? Ms Chang said she would. Finally, Mr Visser asked Ms Chang, “Would you give permission for Mr Towle to tell your financial details to Centrelink”? Ms Chang again said she would.
Ms Chang was then cross-examined by the applicant. When he asked her who or what Centrelink is, she said she basically knew what it is. She said it “should be a government department…something to do with family’s income.” When he asked her if an employee of Centrelink asked her to provide them with her financial information, she said she would have given it. She then said she would give the information to the applicant because he “would use it correctly and according to the law.” If the applicant advised her that he thought Centrelink shouldn’t have that information, she said she would ask him the reason why. If the applicant suggested the reason was wrong according to the law and she didn’t need to give the information to Centrelink, she said she thought she would trust the applicant’s judgment.
CONSIDERATION
Was the applicant’s DSP correctly suspended?
On the information available to me in the T documents:
(a)on 28 September 2015, the applicant queried Centrelink about whether his DSP would be effected if he became partnered;
(b)on 11 December 2015, Centrelink made an assessment to pay the applicant as a single person, even though he has a partner;
(c)on 24 December 2015, the applicant’s DSP was assessed by Centrelink at the single rate even though he is partnered, he is unemployed, his partner is not residentially qualified for an income support and there is a special reason for not treating him as a member of a couple;
(d)on 14 July 2016, on review in relation to the applicant, Centrelink reported:
“Customer will not provide partners employment details/amount earnt each fortnight. He has just claimed that
‘I am not privy to her bank accounts or any income’
‘She is not supported by the Australian Government’
‘She gets casual work AS NEEDED in agriculture industry’
‘Centrelink does not support her’
Customer needs to be strongly advised that he is clearly partnered and they have applied for a partner visa which is pending the outcome. In order for Centrelink to pay customer Disability payment we are required to have all information requested for both customer and his partner regardless if she is herself receiving a payment.
…”[5]
[5] Exhibit R1, T11 page 79.
When the letter and questionnaire were sent to the applicant on 30 June 2016, it was said to be asking for information to help Centrelink to make the right decision about the applicant’s DSP. The request was expressed to be an information notice given under social security law. Expressed in this way and although no provision of the social security law was given by Centrelink in the letter, in my view the notice was provided (or intended to be provided) under s 68(2) of the Administration Act. The DSP, which was still being paid at the single rate, was then suspended on 14 July 2016.
In the Act, s 68(1) provides that s 68(2) applies to a person to whom a social security payment is being paid. As the applicant was receiving DSP prior to its suspension, s 68(1) applies to the applicant, and hence so does s 68(2). In the letter and questionnaire, pursuant to s 68(2), the applicant is required (among other things) to give Centrelink one or more statements about a matter that might affect the payment to him of the social security payment, the DSP.
In my opinion, the questions in the questionnaire relating to Ms Chang involve a matter that might affect the payment to the applicant of DSP. Even though Centrelink may be satisfied that the applicant and Ms Chang should not be treated as a member of a couple, the applicant has acknowledged that Ms Chang is his partner, and on this basis the questions in the questionnaire are reasonable.
In his written submissions, the applicant has made reference in his case to the application of s 24 of the Act. On the information available it is clear that Centrelink has found that s 24 is appropriate. The applicant has been found to be eligible for the benefit of s 24 and, in my view, he should have been advised accordingly. As it appears the applicant was not so advised and any decision under s 24 was found by the Member not to be before the AAT1, it is on further review also not relevantly before this Tribunal.
Also in his written submissions, the applicant has referred to the fact that he and Ms Chang paid almost $7,000 to the Minister for Immigration. He said (at paragraph 33):
“Ms Chang and myself have acted according to the instructions given to us when we paid the Commonwealth Government almost $7,000 to determine if we are a genuine couple. i.e. Fee for Service. We have set about gathering evidence to assist The Minister for Immigration determine if we are a genuine couple for the purposes of the Immigration Act relevant to Partner Visas. Copious amounts of evidence are required by DIBP before it will determine we are a couple.”
In the context of the payment to the Minister, the applicant has suggested that there is conflict between provisions in the Act and in the Migration Act 1958. He said (at paragraphs 44 and 99-100):
“I suggest that the basic intention of Section 24, if applied to people in my situation, is to remove the recipient of financial welfare support from the application of the Social Security Act as it relates to couples, to prevent conflict with the Immigration Act and to prevent miscarriage of justice, as has been my misfortune to currently be victim.
….
I assert The Secretary, Centrelink has placed the Minister for Immigration and the Commonwealth of Australia in a Conflict of Interest situation.
The Minister for Immigration has demanded a payment, of $7,000, by the applicant for a Partner Visa to determine if she is part [sic] a member of a couple while at the same time the Secretary, Centrelink, has determined she is a member of a couple, having received no Fee”
In my opinion, the provisions in the Act dealing with a partner and members of a couple are not in conflict with provisions in s 5CB of the Migration Act 1958. Section 5CB deals with a person who is the de facto partner of another person, if the person is in a de facto relationship with the other person. The Migration Regulations 1994, such as Regulation 2.03A, then contain conditions relating to applications for visas by persons who claim to be in a de facto relationship. The relevant provisions in the Act and those in the Migration Act 1958 and the Migration Regulations are thus for entirely different purposes and, as such, are not in conflict.
Mr Visser examined Ms Chang under summons in relation to being a partner of the applicant. She acknowledged that she was the applicant’s partner, that she would be willing to give details of her income and assets to Centrelink, that if Centrelink had asked about that information she would have given it to them and she would be willing to supply that information to the applicant if he gave her the reasons why he wanted to know it. Ms Chang also said that she would give permission to the applicant to give her financial details to Centrelink.
In the decision under review by this Tribunal, I note that the AAT1 found that it was reasonable for Centrelink to request information from the applicant under s 68 of the Administration Act. I agree with this finding. The AAT1 found that, under s 81 of the Administration Act, Centrelink was able to suspend the applicant’s DSP pending further enquiries. I agree with this finding. In relation to s 95 of the Administration Act which the applicant contended applied to him rather than s 68, the AAT1 found that s 95(2) is not relevant because the applicant’s DSP was suspended and not automatically cancelled under s 95. I also agree with this finding.
The AAT1 Member made it clear to the applicant at the hearing of the decision under review that s 24 of the Act was not before that Tribunal because the ARO involved did not make any determination under that section which was before the AAT1. I am satisfied that the decision of the AAT1 was correct and that the operation of s 24 of the Act and the decision under that section is also not before me.
CONCLUSION
Having reviewed all the oral and written evidence and the material in the documents, I am also satisfied that the applicant’s DSP was correctly suspended. In order for the suspension decision to be reconsidered or reviewed by Centrelink, it seems to me it is appropriate for the applicant to provide answers to all the questions set out in the questionnaire (if he hasn’t done so already) and to questions in any consequential requests for information received from Centrelink.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
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Administrative Assistant
Dated: 28 April 2017
Date(s) of hearing: 30 March 2017 Applicant: In person Advocate for the Respondent: Mr C Visser Solicitors for the Respondent: Dept of Human Services
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