Urias and Secretary, Department of Family and Community Service

[2000] AATA 189

DECISION AND REASONS FOR DECISION [2000] AATA 189

ADMINISTRATIVE APPEALS TRIBUNAL     )

)     No  T1999/92

GENERAL ADMINISTRATIVE DIVISION          )          

Re      JESUS URIAS        

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICE

Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)           

Date10 March 2000

PlaceHobart

Decision      The decision under review is affirmed.   

[Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Social Security – overseas age pension – meaning of ordinary income – member of a couple.
Social Security Act 1991 – ss.4, 8

REASONS FOR DECISION

10 March 2000        Ms A F Cunningham (Part-time Member)  

1. The applicant has sought the review of a decision made by an authorised review officer on 11 December 1998 which affirmed decisions of a Commonwealth Service Delivery Agency (Centrelink) delegate of the Secretary to the Department of Family and Community Services on 7 July 1998 to reduce the applicant's age pension because of additional income received together with deemed interest from investments with a further reduction as from 12 November 1998 due to his partner's income.    As a result of an appeal to the Social Security Appeals Tribunal (SSAT) the decisions under review were varied to the extent that the applicant's pension assessment should not include deemed income from payday 29 October 1998, and further from November 1998 the applicant's pension rate should be assessed on the basis that his partner received no income from employment.

2. With the consent of all parties the determination of this application was made on the basis of the documentary evidence before the Tribunal which included the T documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.   The applicant is currently residing in Spain and was unable to attend the hearing in person.

3. The essence of the applicant's appeal as set out in his letter to the Tribunal received on 18 June 1999, is that he should be regarded as legally married until the date of his divorce and that receipt of his French pension in the sum of 1,332.12 Francs should not have affected his pension entitlement.    The applicant enclosed a copy of his decree nisi of dissolution of marriage which showed the date of the decree nisi being 26 February 1999.   The applicant further stated in his letter of appeal that "with regard to Mrs. Devos we intend to get married when everything has become clear, something which will certainly not happen due to all the problems caused by my Australian pension…".

4. The history of the appeal was comprehensively detailed in the decision of the SSAT and does not appear to be under challenge.   What appears to be issue from the applicant's perspective is the respondent's decision to firstly pay him at a single rate when he was still "legally married" to his first wife, and secondly to reduce his pension on the basis of the income received from his French pension.   The applicant has not challenged the decision of the SSAT to vary the decision under review in relation to deemed income from the proceeds of sale of his home nor the decision to vary the pension rate following that Tribunal's acceptance of the fact that the applicant's partner received no income from employment as from 30 June 1998.  On the basis of the material contained in the T documents this Tribunal is able to confirm the appropriateness of the variations made in the decision of the SSAT.

5. The decision of a delegate of the respondent to reduce the rate of the applicant's age pension on the basis of the amount received from his French pension was made pursuant to the provisions of the pension rate calculator contained in Part 3.2 of the Social Security Act 1991 ("the Act").   Section 1064 of that Part prescribes the method of calculation for an age pension and states that the rate of age pension is to be calculated in accordance with the rate calculator at the end of the section.   Module A prescribes the overall calculation process and in sub-section 1064-A1 it is stated that the ordinary income test using Module E is to be applied in working out the income reduction.   Sub-section 1064-E1 prescribes the method of determining the effect of a person's ordinary income on their maximum payment rate.   Section 8 sets out the income test definitions and states :

   "income, in relation to a person, means:

   (a)an income amount earned, derived or received by the person for the person's own use or benefit …".

Subsection (2) states that:

"A reference in this Act to an income amount earned, derived or received is a reference to:

(a)an income amount earned, derived or received by any means; and

(b)an income amount earned, derived or received from any source (whether within or outside Australia)."

1. Clearly the income received by the applicant from his French pension comes within this definition and was correctly included by the  delegate of the respondent in calculating the ordinary income amount of the applicant for the purposes of determining the rate of his age pension.

2. Reference was made to sub-paragraph 1064-A2 which states that where two people are a member of a couple they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.   For this purpose the original decision-maker included the employment income of the applicant's partner, Maria Devos, in calculating his rate of pension.   However as already indicated the Tribunal concurs with the decision of the SSAT that the evidence supports a finding that Maria Devos did not have any income from employment from June 1998.

3. It would appear that the applicant is also challenging previous findings in relation to his marital status to his first wife, Mrs. Paula Urias and also his partner Maria Devos.   This issue was explored in detail by the SSAT in its determination as to whether throughout the relevant period the applicant should have been paid the single rate of pension or as a member of a couple.   In the applicant's letter of appeal to this Tribunal he does not make any reference to the status of his pension, that is, whether he was correctly paid as a member of a couple or as a single person during the relevant periods or to the original decision-maker's finding that the applicant had separated from his wife upon his filing for a divorce.  This finding actually resulted in a higher rate of pension being paid to him as a single person.  

4. The provisions of sub-paragraph 3(a) of paragraph 4 make it clear that a pension recipient cannot be paid as a member of a couple where the person has separated.  This sub-section states:

"The Secretary must not form the opinion that the relationship between  a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis."

1. The Tribunal agrees with the original decision-maker's findings on the basis of the applicant having filed an application for dissolution of marriage in which he must have stated that he had been separated from his wife for a period of at least 12 months, which would have been in early 1998.

2. In examining the nature of the relationship between the applicant and Maria Devos reference is made to s.4(3) of the Act which states:

   "4 (3)   In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
             (a)       the financial aspects of the relationship, including:

   (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;
             (b)       the nature of the household, including:

   (i)any joint responsibility for providing care or support of children; and

   (ii)       the living arrangements of the people; and

   (iii)      the basis on which responsibility for housework is distributed;
             (c)       the social aspects of the relationship, including:

   (i)whether the people hold themselves out as married to 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;
             (d)       any sexual relationship between the people;
             (e)       the nature of the people's commitment to each other, including:

   (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."

3. This Tribunal concurs with the original decision to subsequently vary the status of the applicant's pension to that for a partnered person on the basis of the information supplied by the applicant as to the status of his relationship with Maria Devos.   In a letter dated 7 October 1998 the applicant stated "I enclose a photocopy of the purchase contract of a flat in this city with the participation of my friend and furture wife Mrs. Maria Josefa Devos de lllana".  (T10)  In  a letter dated 20 November 1998 the applicant states he is living with Mrs. Devos because of his need for a companion  and that Mrs. Devos is currently living with him in Savilla where they had bought a flat together. (T23)   In a form completed by Mrs Devos, she stated that she had starting living in a de facto relationship with the applicant on 8 July 1998. (T13)

1. The Tribunal having found that the original decision-maker correctly included the applicant's French pension in his calculations as to the rate of age pension payable and agreeing with his determinations in relation to the status of the applicant's relationships with Mrs. Paula Urias and Maria Devos and his determination of the rate of pension  payable accordingly, the Tribunal thus dismisses the appeal before it, the applicant having failed to make out the grounds of appeal in accordance with the relevant legislation.   In Appendix III attached to the respondent's statement of case dated 1 December 1999,  a copy of which was forwarded to the applicant on 4 December 1999 and to which no response was received, the respondent included calculations referable to a period which post-dated the decision under review.   This Tribunal has no jurisdiction to take account of these further calculations.   The decision under review as varied by the SSAT is accordingly affirmed.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  Overseas application - matter decided on the papers.
   Date of Decision  10 March 2000