Watson and Secretary, Department of Family and Community Services
[2002] AATA 311
•6 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 311
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1703
)
GENERAL ADMINISTRATIVE DIVISION )
Re BARBARA WATSON
Applicant
And Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms N Isenberg, Member
Date6 May 2002
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
[Sgd] Ms N Isenberg
Member
CATCHWORDS
Social Security – member of a couple – special reason to regard otherwise – waiver under section 1237 AAD of the Social Security Act 1991 – application of section 24 of the Social Security Act 1991
LEGISLATION
Social Security Act 1991 – sections 4(3), 24(1), 1237AAD
CASE LAW
Beadle v Director–General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Reid and Director- General of Social Services (1981) 4 ALN N1
Re Secretary, Department of Social Security and Begum (1998) 51 ALD 187
Re SRL and Secretary, Department of Social Security (1998) 51 ALD 796
Perry and Department of Family and Community Services [2001] AATA 282
Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343
Secretary, Department of Family and Community Services and Ellis [2000] AATA 350).
REASONS FOR DECISION
6 May 2002 Ms N Isenberg, Member
DECISION UNDER REVIEW
The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 9 November 1998 (T 20) to raise and recover overpayments of newstart partner allowance in the sum of $4753.17 for the period 15 September 1994 to 21 June 1995, and parenting allowance in the sum of $9338.40 for the period 6 July 1995 to 18 December 1997. The original decision was affirmed by the authorised review officer on 19 December 2000 (T 28) and also by the Social Security Appeals Tribunal ("the SSAT") on 22 May 2001 (T 3).
APPEARANCES
At the hearing, Mrs Barbara Watson ("the Applicant") was represented by Sandra Clark of Welfare Rights Centre Inc. and the Respondent was represented by John Kenny, an advocate of the Advocacy and Administrative Law Team at Centrelink. The Applicant was assisted by Ruben Amores, an accredited interpreter in the Filipino language.
LEGISLATIONThe relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular, sections 4(3), section 24(1) and section 1237AAD. Those sections, so far as is relevant, provide as follows:
"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.
24(1) Where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
SECTION 1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt."
ISSUES BEFORE THE TRIBUNAL
It was agreed that there were two issues for determination by the Tribunal:
whether the Applicant should not be treated as a member of a couple during the debt period by virtue of section 24 of the Act; and
whether recovery of the Applicant's debts should be waived under section 1237AAD of the Act.
AGREED FACTS
By way of narrowing the issues the parties agreed as to a number of facts, as follows:
On 21 April 1991, the Applicant arrived in Australia.
In February 1992, Dennis Harvie Mouncey falsified his identity after which he obtained a passport and tax file number in the name of Peter Watson.
In 1992, the Applicant married Dennis Mouncey under his new identity of Peter Watson.
The marriage was constantly characterized by severe psychological and physical violence against the Applicant. This is substantiated by events including her hospitalisation with cuts and bruises a month before the birth of their first child, Dennis, in 1993 and police attendance at their home on the 2/3/1995 after which assault charges were laid against Peter Watson (although these were subsequently withdrawn by the Applicant on reconciliation). There were additional occasions when the neighbours called the police, and when hospital staff witnessed abusive behaviour directed both against the Applicant and against their children. The Applicant told the police these were merely "family disputes" because she was fearful for her safety as her husband had constantly threatened to hurt her if she said anything to anyone about the violence. The extent and nature of the domestic violence is documented at T31/128-131.
When the Applicant attempted to separate from her husband in 1995, he said "If you leave I will kill you. I will kill all of you."
At the time during which the debt was incurred, Mr Watson was in receipt of social security benefits under the names of Watson and Mouncey. Additionally, he received income from employment under his legal name.
The Applicant had no knowledge that her husband was claiming social security payments under two names nor did she know that her husband was employed. Throughout their marriage, the Applicant did not closely question her husband about his movements for fear of violent repercussions. She had firmly been told that what he did during the day was none of her business. In addition, there was no objective evidence upon which the Applicant could form a view that her husband was in receipt of additional income. Throughout their marriage there was no extra money coming into the household, her husband pressured the Applicant into asking her own family for money and from time to time the electricity and telephone were cut off because of unpaid bills.
In April 1999, Mr Watson was convicted of defrauding the Commonwealth and falsifying his identity in February 1992 to obtain a tax file number in the name of Peter Watson.
The couple became estranged when he was imprisoned after his conviction. The Applicant decided that it was easier to leave her husband whilst he was in jail. She moved house and changed her telephone number but continued to fear for her safety.
Throughout his imprisonment and after his release, Mr Watson has continued to intimidate and harass the Applicant. As a result of this behaviour on his release from prison in October 2000, the Applicant has had to seek protection orders for herself and the children. Both temporary and permanent orders have been granted.
The marriage has produced four sons now aged 3,4,5 and 6. The children are currently residing with the Applicant in Sydney. The family's only source of income is social security payments.
Pursuant to section 24(1) of the Act, there is discretion to treat a person who is legally married to another and not living apart from that person as not being a member of a couple is there is a special reason in the particular case not to treat the person as a member of a couple for the purposes of the Act.
EVIDENCE: Documents
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence as ExhibitTD1.
Other documents taken in as evidence were as follows:
Exhibit No Description Date
A1 Applicant's Statement of Facts and Contentions 21 August 2001
A2 Statement of Applicant 18 February 2002
A3 Order of the Federal Magistrates Court of Australia 3 August 2001
A4 Centrelink publication: Working to assist people experiencing violence
A5 Protection Order (Magistrates Court of Queensland) 20 June 2001
R1 Respondent's Statement of Facts and Contentions 29 October 2001
EVIDENCE: the Applicant
The Applicant gave evidence in English, assisted, as necessary, by Mr Amores. She said that she presently lives with her 4 children aged 8, 7, 6 and 4 in one bedroom of her brother's house.
The Applicant adopted her statement dated 18 February 2002 (exhibit A2), with a couple of minor corrections. In relation to paragraph 8 of the statement she said that her husband never asked her to sign Social Security forms although she had signed some once when he took her to a Centrelink office. She could not remember if this occurred on more than one occasion.
In relation to paragraph 45 of her statement, the Applicant said that this did not quite accurately reflect her movements following the time her husband was imprisoned. In any event she had a number of relocations until she finally returned to Sydney to live with her brother and his family.
The Applicant was shown exhibit A3 which is the order made by the Federal Magistrates Court at Townsville in relation to her and her children. In summary, the order was that her husband is to have no physical or telephone access to the children and that any contact is to be through an intermediary only. Mr Watson appealed the decision but his appeal was dismissed. He has not had any contact with his children since.
The Applicant was asked to describe the circumstances under which she and her family had lived when she was with her husband. She said that services such as the telephone and electricity were disconnected from time to time and they fell behind in rental payments. She said her husband wanted to buy everything second-hand. She described her life as "very hard". When money became an issue her husband would tell her to ask her family for money.
The Applicant said she was not sure if she knew that her husband obtained money from working. There were continual arguments about money. He told her that friends asked him to do fishing and to do work. Sometimes he told her that he was working but after three days or so he would say that he didn't like the job and was going to ask for more money. If he didn't get more money, he would leave the job.
Ms Clark asked the Applicant what she would anticipate her husband's reaction would have been if she had told Social Security that she knew he was doing something wrong. The Applicant replied that she did not know how to report to Centrelink. She added that her husband was "a very dangerous man" and that she "developed being scared". It was like "living in a cage" as he was physically violent over small things.
The Applicant said that both she and her children have been to counselling at the suggestion of the Family Court and this has been helpful.
The Applicant's only income is from Centrelink and is presently in the vicinity of $920 per fortnight, which includes $13 from her husband by way of maintenance. From her benefits, Centrelink deducts $163 per fortnight by way of repayment. She pays $85 per week to her brother. She is seeking to pay off debts which remain from her marriage. She also owes $800 to a brother who lives in Guam. She finds it difficult to provide for the children, three of whom are in school. Her children seem to be particularly hard on things like shoes and she asks them to be careful so as not to wear them out.
In cross-examination the Applicant was asked whether, if she had known that her husband was receiving income, would she have told Social Security about the income. She said that she did not know what was going on.
The Applicant was asked about letters that Social Security might have sent her which obliged her to advise Social Security about her husband's income. She said that of course she would tell Social Security, but she would need a lot of preparation before doing so, because she was scared of her husband's response if he found out. However she said she did not know anything about what he was getting because she was busy with the kids.
The Applicant's attention was directed to document T6 and she was asked if she recalled receiving a letter similar to it. In particular her attention was directed to the portion of the letter which reads:
"Your payment is worked out using both your and your partner's incomes. The incomes we have used to work out how much you are paid are shown on the back of this letter. You should tell us within 14 days if either your or your partner's income changes."
She said that she did not remember much as she was "override by pressure".
The Applicant was asked if she assumed that her husband was keeping Centrelink informed and she said that she had no idea as he did not discuss his business with her at all.
The Applicant was shown document T7. She did not know if she had received that document but agreed that if it was addressed her then surely she would read it if she received it. She said she was generally able to understand documents in English. Her attention was invited to the portion of the document that obliged her to tell Centrelink within 14 days about changes in circumstances affecting payment, one of which is if her partner's total personal income goes over $0 a fortnight. She said that she understood this to mean that she was obliged to tell Social Security.
The Applicant was asked about her understanding of what her husband may have been earning. She said that he told her only that friends were asking him to work but he did not tell her if he was paid. She was asked if it was her husband's practice to work for friends without payment and she said that sometimes he would say that they were going fishing so as not to have to buy fish.
Mrs Watson's attention was invited to her evidence in chief in which she had said that her husband would work for a few days and then ask for an increase in pay. When asked if she thought that in those circumstances she should have informed Social Security, she said that she did not know if her husband was telling the truth that he was working.
When asked about household contributions, the Applicant said that she made no contribution to rent when she and her husband were together. If they were in financial trouble, she would ask her family for money.
When they were together the Applicant did not know that her husband used other names and that the first she knew of his multiple Social Security claims was when the police raided their house in Queensland.
The Applicant said that her husband was out of the house a lot during the working day. They would go out together a lot as a family – to Darling Harbour and church and he would take the kids out a lot.
The Applicant said that her husband told her not to go to the postbox and she was told not to open his mail. She does not know if there was a padlock on the postbox but one room in the house – her husband's room – was padlocked.
Mr Kenny, the Respondent's representative, asked the Applicant if she could recall, when they lived at Merrylands, if electricity bills had been received in the name of Mouncey. She said that she did not know if she saw electricity or Social Security correspondence in that name. Her husband told her on at least one occasion that he had to return mail to the Post Office but she did not ever see him re-address any mail.
Mr Kenny directed the Applicant's attention to paragraph 41 of her statement, in which she said that the husband had bought the house in Collinsville in Queensland, where they had been living prior to his imprisonment. She was invited to comment upon how the family had been able to afford such a purchase and she said that he had just told that they were moving and that she would have to pay the "rental" while he was in gaol.
The Applicant said that while in hospital with her first child she had been advised by the social worker to get the parenting allowance paid to her, rather than to her husband. When they went shopping, her husband would ask for the money from the Centrelink income "for goods". Her husband told her to list expenses. When they went shopping her husband didn't put in any money and all he bought for the family was second-hand clothes and shoes. She did not know if he spent any of his own money otherwise on the family. While on an outing, if he did not have any money he would ask her for money.
The Applicant did "everything" around the house. Her husband would sometimes look after the kids but he was short tempered with them.
The Applicant conceded that her relatives and friends saw her and her husband as a couple and she was happy that they were known as such. However she did this because she did not want her family to know what was happening to her and also word would get around quickly in the Filipino community.
Mr Watson is the father of all her children and she has had no other relationship other than having a boyfriend as a teenager in the Philippines before she came to Australia.
SUBMISSION: ApplicantIn her submission Ms Clark for the Applicant referred the Tribunal to Beadle v Director–General of Social Security (1985) 7 ALD 670 where it was held that 'special circumstances' was incapable of a precise and exhaustive definition. It was submitted that in this case there were special circumstances, not just because of the domestic violence suffered by the Applicant but also the circumstances in which she had suffered.
InGroth v Secretary, Department of Social Security (1995) 40 ALD 541 'special circumstances' was to be distinguished from usual cases. Ms Clark commented that it appeared to be the Respondent's position that domestic violence was not sufficiently uncommon or unusual. Ms Clark submitted that applying Groth (supra) would avoid an outcome which was unjust or unfair.
Ms Clark further referred to Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533 which held that the discretion was to be applied where children were to be disadvantaged by the operation of the Act. In this case, it was submitted that if the discretion is not used, there will be disadvantage to the Applicant's children.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 it was held that in determining whether the applicant should be treated as not being a member of a couple, it is appropriate to focus on the applicant's particular circumstances and not on those of the couple. It was submitted that in this case the Applicant was not in a position to do anything about what Mr Watson had done.
Citing Reid and Director- General of Social Services (1981) 4 ALN N1, Ms Clark submitted that not exercising the discretion would lead to 'an unjust, unreasonable and inappropriate result'.
Referring to Re Secretary, Department of Social Security and Begum (1998) 51 ALD 187, Ms Clark for Applicant said that a wife and children should not be punished for the recalcitrant attitude of the husband. It was submitted that the present case was said to be stronger than Begum (supra) in that the Applicant was unable to control the actions of her recalcitrant husband. The object of section 24 of the Act is not to punish a wife for her husband's actions.
Ms Clark cited Re SRL and Secretary, Department of Social Security (1998) 51 ALD 796 and said that the debt had arisen due to the husband's employment and that section 24 of the Act should be used in these circumstances to waive the debt. In her written submission, Ms Clark also referred to Perry and Department of Family and Community Services [2001] AATA 282 as a case where the Tribunal had affirmed its approach in SRL (supra), that it is appropriate for the Tribunal to exercise the discretion retrospectively in order to prevent an unjust result.
Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343, Ms Clark said, was authority for the proposition that because the legislation is beneficial, section 24 of the Act should be used where the application of the Act would be unfair to the welfare of a person.
Finally, Ms Clark referred to Perry (supra) in which the Tribunal declined to exercise the discretion. The facts in that case were said to be very different, particularly in relation to the amount of control that Mrs Perry had over her circumstances. In this case the Applicant had only been able to leave her husband after he was imprisoned.
Ms Clark asked the Tribunal to take into account the Family Court orders which prevented Mr Watson from contacting his children except through a third party. This, she said, was a reflection of the level of violence in the family. Such orders were said to be rare. Similarly, she referred the Tribunal to the Applicant's statement to the effect that she had felt it necessary to obtain an Apprehended Violence Order against her husband, even though, at the time, he was still in gaol.
In conclusion, Ms Clark said there was nothing in the Act to prevent the retrospective application of section 24. If the government intended to prevent retrospective application it would have said so. A beneficial section should not be fettered by the Department's approach. Section 24 of the Act should be used to achieve a just and reasonable result not otherwise achievable. Unless section 24 is applied in this case, the Applicant will be required to pay a substantial debt affecting her and her children. Her situation arose though the actions of a violent and controlling man. While it may be uncertain as to her knowledge of her husband's working and income, it is clear that she would be in danger if she reported him.
Ms Clark requested that if the Tribunal were to find against the Applicant, she would seek a rate of recovery of $15 per fortnight, as she had been paying previously. Unless the Applicant can accumulate some money she and her children will continue to live in a single bedroom in her brother's house.
SUBMISSION: RespondentMr Kenny for the Respondent said it was the Respondent's position that because the Applicant's husband had knowingly made a false statement, the Applicant cannot invoke Section 1237AAD of the Act and ask for a waiver of the debt. Therefore the case must turn upon whether section 24 of the Act should apply.
The Respondent submitted that as the legislation states that the discretion to treat a person as not being a member of couple should only be exercised "for a special reason in the particular case" such circumstances should be unusual, uncommon and abnormal. The Respondent further submitted that in this case there was no special reason to regard the Applicant as single because domestic violence, unfortunately, is not an isolated or uncommon occurrence in Australian society. The Respondent then submitted that domestic violence is a feature of many cases that come before the Respondent and therefore, despite the Applicant's predicament at the time of the debts, her circumstances were not "special".
In relation to section 24 of the Act Mr Kenny said that the section applied where members of a couple were not able to pool their resources and were not living together. Section 24 should not be applied so as to be 'waiver by the back door'. The waiver provision is clearly set out in section 1237AAD of the Act, but the Applicant cannot avail herself of that provision because of Mr Watson's fraud.
Mr Kenny said that most of the cases involving Section 24 of the Act were ones where the Centrelink customer had notified Centrelink of the circumstances and had asked the Department to make the appropriate determination. The history of the legislation, both at the time and in its current form is such that in order for there to be a favourable determination then Centrelink must be notified. There can be no backdating.
Mr Kenny considered that Re SRL (supra) had been wrongly decided and urged the Tribunal not to follow that case. The effect of the decision was that the discretion in section 24 of the Act was applied so as to operate retrospectively, which was against the scheme of the Act.
Mr Kenny did indicate that the Department would accede to a reduced rate of recovery of the debt if the Applicant was having difficulty managing at the current level. This could be worked out between Centrelink and the Applicant, or could be fixed by the Tribunal, subject to changes in the Applicant's circumstances.
DISCUSSION OF EVIDENCE AND FINDINGS
In coming to the correct and preferable decision, the Tribunal had taken into account all the evidence, submissions, case law and relevant legislation.
From the outset of the case, it was clear to the Tribunal that the Applicant had been a victim of sustained domestic violence and it is against this unfortunate background that the matter must be decided.
The Tribunal turned first to consider the application of section 1237AAD of the Act, whereby a debt to the Department can be waived in special circumstances. However, waiver under this section is precluded if the debt resulted wholly or partly from the debtor or another person knowingly making a false statement or knowingly omitted to comply with the Act. This means that section 1237AAD of the Act cannot be used where a debt is attributable, even in part, to knowingly false statements by a third party (see Secretary, Department of Family and Community Services and Ellis [2000] AATA 350). It was agreed that the Applicant's debts were attributable to the failure by the Applicant's husband, Peter Watson, to declare his income whilst in receipt of benefits. In addition, Peter Watson received benefits in more than one name. These false statements which Mr Watson knew to be false therefore preclude waiver of the Applicant's debts under section 1237AAD of the Act.
The evidence was unclear as to whether the Applicant knew that her husband was working and there was no evidence that she knew him to be receiving benefits in more than one name. However in the application of section 1237AAD of the Act, it is not relevant whether Mrs Watson knew her husband's statements to be false, only that he ('another person') knew them to be false. That Mr Watson had perpetrated the fraud on Centrelink which gave rise to the debt was not in issue.
The submission on behalf of the Applicant was that the Tribunal should apply section 24(1) of the Act. Exercise of the discretion in section 24(1) so that the Applicant is not treated as a member of a couple for the purposes of the Act, means that the Applicant was not qualified for wife's pension during the period in question and therefore received an overpayment which, pursuant to section 1224(1) of the Act, is a debt due to the Commonwealth. As such, a waiver could be sought pursuant to section 1237AAD of the Act.
The first issue for the Tribunal in considering the submission in relation to section 24 of the Act is whether to exercise the discretion under that section so as to treat the Applicant as not being a member of a couple. The Tribunal must be satisfied that there is a "special reason" to do so.
Before doing so, the Tribunal turned to consider the situation when a person may be treated as not being a member of a couple in Section 24 of the Act, which, so far as is relevant, provides as follows:
"24.(1) Where:
(a) a person is legally married to another person; and(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act."
From the Applicant's evidence she and her husband lived together for a number of years in the same various premises until his imprisonment. He maintained a separate room which he locked, but this evidence was given in the context of Mr Watson maintaining some secrecy about his financial affairs, to the exclusion of the Applicant. They apparently shared a bedroom, as he is the father of her children. The Applicant and her husband both shopped for the family, otherwise the Applicant did "everything" about the home. Mr Watson participated in the care of the children and would take them on outings, although he was short tempered with them. He was obviously attached to his children, as evidenced by his hard-fought battles through the Family Court for access to them.
There was no evidence as to joint ownership of property, such as the Collinsville residence, although while Mr Watson was in gaol the Applicant had to keep up the 'rent'. While there was no general pooling of financial resources in the usual sense Mr Watson paid the rent and bought second hand goods for the family including the children's clothes and shoes. The Applicant said she did not pay the rent but she bought the food. There were frequent outings as a family and either Mr Watson or the Applicant would pay.
In addition to the outings, the Applicant said she was happy to be known as a married couple although this may have been to keep the truth of the turbulence in the household as a secret from the Applicant's family. There was no evidence as to the Applicant's present marital status, although she and her husband are clearly presently separated, and have been separated since his incarceration, the Applicant having left the family home while her husband was in goal. There was also no evidence as to division of their property, although Mr Watson presently pays $26 per month by way of maintenance.
It was then for the Tribunal to determine if, in applying section 24(1) of the Act, there was a special reason not to regard the Applicant as a member of a couple.
In Le-Huray (supra), Jenkinson J emphasised that the decision-maker must have regard both to the purpose of the enactment and the facts of the case in giving effect to a just outcome. He considered the meaning of "special reason" with reference to the discussion of "special circumstances" in Beadle (supra). What emerges from that discussion is that to be "special", the circumstances must be unusual, uncommon or exceptional. In Le-Huray (supra) however, there was minimal intermingling of the financial resources between Ms Le-Huray and her partner who provided little, if anything, in support of Ms Le-Huray's children.
The purpose of section 24(1) of the Act was discussed by the Tribunal in Porter (supra) where it was considered that there is a general expectation that where two people are members of a couple they will pool their resources. There, however, the couple were illness separated. While the circumstances in that matter were quite different from those in the present case, there are some helpful and general observations that the discretionary power in section 24(1) of the Act:
"... be exercised for the purpose for which it was conferred and having regard to the scope and object of the Act as a whole. The Act is welfare legislation whose general object is to make provision, by way of social security payments, for those who are in genuine need thereof. The purpose of s.24(1) of the Act is to preclude the application of the abovementioned general rule in a particular case if, for a "special reason" in that case, such application would not promote, but would instead impair, the welfare of the relevant "member of a couple" in receipt of social security and, therefore, would not accord with the general object of the Act: see Le-Huray (above), at ALR 542. "
The Applicant also relied on Boscolo (supra) where the Federal Court held that section 24 of the Act required the decision-maker to focus on one person, not the couple, and to assess whether, for a special reason, that person should not be treated as a member of a couple. The Applicant also sought to rely on Begum (supra) where the husband had effectively deserted the family and had refused to accept financial responsibility for his wife and children. On the basis of the decision in Begum (supra) it was submitted for the Applicant that both the degree of control and the choice available to an applicant were relevant considerations in deciding whether the discretion in section 24 of the Act should be applied. The Tribunal in Begum (supra) held that not to exercise discretion would impair the welfare of the wife and lead to an unjust outcome because of the husband's recalcitrant attitude.
The Applicant also relied on the Tribunal's decision of Reid (supra). On the basis of that case, it was submitted that a decision-maker must respond to the particular circumstances of the case if application of the general rule would be unjust, unreasonable or otherwise inappropriate.
It was submitted for the Department that the legislation already provides for married couples who live separately and apart. Persons who could not qualify under those provisions should not be able to qualify under section 24 of the Act. It was submitted that section 24 of the Act is for use in those cases where a couple is prevented from enjoying the pooling of resources and expenses within a marriage, for example as a result of illness or one person being overseas. Thus it should not act retrospectively by taking account of circumstances that could have been notified by the Applicant at the time. It was submitted for the Respondent that the approach outlined by the Tribunal in SRL (supra) was not an appropriate exercise of the discretion contained in section 24 of the Act.
The Tribunal found that the circumstances in this case significantly differed from those in SRL (supra), the main case relied on by the Applicant . In that matter the Applicant and 'Mr D' lived separate lives, he shopping, preparing and cooking his own meals and doing his own washing and ironing. There was no sexual relationship and he did not participate in the care of the children. In each of these features, that case differed from the circumstances of the Applicant and her husband in the present matter at the relevant time.
The Tribunal had no doubt that the circumstances of the Applicant's relationship with her husband were unfortunate but taking into account the legislation and the case law regarding the discretionary power in section 24(1) of the Act, the Tribunal is not reasonably satisfied that a "special reason" exists in this case for the exercise of its discretion under section 24(1) of the Act.
DECISION
On this basis the Tribunal finds that there is a debt owed by the Applicant to the Commonwealth in respect of the overpayments outlined in these reasons. The Tribunal affirms the decision under review.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: H. Sim .....................................................................................
AssociateDate of Hearing 22 February 2002
Date of Decision 6 May 2002
Solicitor for the Applicant: Sandra Clark of Welfare Rights Centre Inc.Advocate for the Respondent: John Kenny of the Department of Family and Community Services.
1