Williams and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 910

Williams and Repatriation Commission (Veterans’ entitlements) [2015] AATA 910 (27 November 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2015/4002
Re	John Williams
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	27 November 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

VETERANS’ ENTITLEMENTS – service pension – whether “special reason” not to be treated as member of a couple – applicant aged 90 and in poor health – applicant needed full-time carer – applicant would not cohabit outside marriage – no suggestion relationship not genuine – decision under review affirmed.

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth), ss 5E(2), 5E(4), 5R(3), Part 1 of Schedule 6

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake and            Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

Deputy President PE Hack SC

27 November 2015

1. The applicant, Mr John Williams, has been the recipient of an age pension, paid pursuant to Division 3 of Part III of the Veterans’ Entitlements Act 1986 (Cth), for a number of years. Payability of that pension is dependent upon a number of matters including, relevantly, whether the recipient is a “member of a couple” as that expression is used in the Act. A pensioner who is a member of a couple is paid at a lesser rate than one who is single and the assets and income of the other member of the couple are taken into account in determining the rate of pension.

2. On 8 November 2014 Mr Williams, who had until then been a widower for some 12 years, remarried. He notified the respondent, the Repatriation Commission, of the fact of his marriage. Thereafter, on 15 December 2014, the Commission determined to pay his pension at the “partnered” rate instead of the single rate. Subsequently, the Commissioner was provided with details of the assets and income of Mr Williams’ spouse and reduced his pension even further on 16 January 2015.

3. Mr Williams presented numerous arguments. Most took issue with the way in which the Commission undertook its decision-making but, as I sought to explain to him during the hearing, the Tribunal undertakes merits review; its task is to make the correct or preferable decision on the material. It is not concerned with supposed errors in the earlier decision-making processes. Two arguments do need to be dealt with. The first is, that on the proper construction of the Act, the Commission was not entitled to reduce Mr Williams’ pension because of the assets and income of his spouse. Clear and unambiguous language was required to achieve that end. But in any event the Commission was wrong to treat him as a member of a couple. His circumstances, he contended, are such that he should be treated as not being a member of a couple.

4. As will appear, I am unable to agree with either argument.

5. The Act sets out numerous circumstances in which a person is a member of a couple. It is only necessary to have regard to that in s 5E(2)(a) of the Act. It provides:

   (2)       A person is a member of a couple for the purposes of this Act if:

   (a)the person is legally married to another person and is not living separately and apart from the other person on a permanent basis, or

   …

   Mr Williams accepts that he is legally married to his spouse and that they do not live separately and apart from one another on a permanent basis. He relies though on s 5E(4) of the Act which deems a person not to be a member of a couple if a determination under s 5R(3) is in force. It is in these terms:

   The Commission may determine, for any special reason, that a person who is a member of a couple is not to be treated as a member of a couple for the purpose of this Act.

6. As to the first of these arguments, the language is clear and unambiguous. Schedule 6 to the Act details the somewhat complex processes involved in calculating rates of service pension and income support supplement. Clause 2(1) of Part 1 describes the “standard categories of family situations”. They include, relevantly, “not member of a couple” and “member of a couple or partnered”. Additionally, and in equally clear and unambiguous language, SCH6-A2 requires that where two people are a member of a couple they will be treated as pooling their resources (income and assets) and sharing those resources, and expenses, on a 50/50 basis.

7. Mr Williams placed reliance on various canons of construction but that reliance was misplaced. To the extent that canons of construction apply, they apply when there is doubt about the proper construction of the statute. Here, there is no doubt and resort to canons of construction is not required.

8. In reality, Mr Williams’ argument rises no higher than saying that the Act could not have been intended to operate in a way that has “cast [him] into penury and destitution and made [him] a mendicant on [his] lawful wife”. What is clear is that the Act was intended to operate in a way that treats the assets, income and expenses of a couple as being equally shared unless there is some special reason for not doing so.

9. The Commission has propounded a policy document to assist its officials in dealing with applications for a determination under s 5R(3) of the Act. Mr Williams was critical of the primary decision-maker in having regard to the policy; however, the executive government is entitled to adopt policy guidelines to assist officials in the application of legislation to achieve the desirable goal of consistency. And, from the earliest days of the Tribunal, it has been authoritatively recognised that the Tribunal is entitled to have regard to, and treat as a relevant factor, government policy on dealing with particular exercises of discretion.[1] It cannot assist in construing the legislation and, to the extent it is inconsistent with the legislation, it may be disregarded; but it has a legitimate role in assisting administrative decision-making.

   [1]           See eg, Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 60 – 70; Re Drake and         Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644 – 645.

10. The Commission’s policy document gives this explanation of applications under s 5R(3) of the Act:

    Members of a couple may be considered to not be members of a couple

    Under section 5R(3) VEA, the Repatriation Commission has discretion to determine in writing that, for any special reason, members of a couple are not to be regarded as members of a couple for VEA purposes. This discretion should be exercised only where full consideration of all the circumstances relevant to the individual case would make it unjust or unreasonable not to do so. Generally the discretionary power should be used where a veteran’s partner is unable to or is prohibited from working, is not eligible for a pension from DVA or a pension, benefit or allowance from Centrelink, and there is financial difficulty as a result of the couple’s circumstances.

    …

    Circumstances warranting consideration under section 5R(3)

    The use of section 5R(3) VEA is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted. It should be considered in circumstances where the couple is unable to take advantage of the benefits and efficiencies which normally arise from being able to pool and share their combined resources, this being one of the reasons for a lower partnered rate of pension. This will include those circumstances where the couple are prevented from living together, or where financial circumstances or lack of access to other means of support mean that the expected benefits from being able to share resources do not arise.

    Factors to consider

    The case being considered should be compared to a couple in similar circumstances but for whom the reasons to apply section 5R(3) do not exist. There must be some degree to which circumstances are outside the couple’s or individual’s control and cannot be changed.

    Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:

    ·Is there a special reason to be considered in this couple’s circumstances?

    ·Is there a lack of being able to pool resources for the couple as a result of the circumstances?

    ·Is there financial difficulty as a result of the couple’s circumstances?

11. I turn then to Mr Williams’ particular circumstances. He is now aged 90 years. He is in poor health and, as his general practitioner points out, has end stage renal failure. Additionally, he suffers from osteoarthritis which necessitates the use of a walking stick. Treatment options are compromised by the renal condition. The result is that he needs a full-time carer, a role performed by his now wife both before and after the marriage. Without her care he would need to be cared for in a nursing home.

12. His now spouse, Mrs Mary Williams, first met him in June 2012 through their attendance at a church in Mundingburra. Mr Williams was then living in a nearby nursing home; Mrs Connor (as she then was) was living in her own home at Idalia, a suburb of Townsville. Mrs Connor had considerable experience in caring for sick and elderly persons. Initially, Mrs Connor assisted by driving Mr Williams to medical appointments and to other health-related destinations as well as engaging in other social activities with him. By 2014 Mrs Connor was spending much of every day assisting Mr Williams with shopping, personal hygiene and food preparation and doing so to such an extent that she was in attendance at his unit daily until late in the evening performing household chores and preparing meals for him.

13. Later that year, Mrs Connor attended a consultation between Mr Williams and his renal specialist where she learned of the seriousness of his medical condition. She describes what happened thereafter in this way in her affidavit:

    Right after that consultation, I offered to bring Mr Williams to live in my home and give him comfort and care. He said that he would like that very much but because of our long-time church leadership roles, we would have to marry so as not to give scandal and be a bad example to young people.

    Early in November, 2014 before we were married, I visited Mr Williams at his unit to find him in a very upset emotional state. He had been experiencing bad recall of his horrific memories from his experiences in World War II. Immediately I helped him to pack a bag of personal garments and effects and brought him to my home in Idalia and he has resided there since then.

    We were married on 8^th November, 2014. Mr Williams vacated all of his possessions from his rental unit 125 Villa McAuley mid-November, 2014. He is living at my home 25 Somerville Place, Idalia, Townsville where I provide him with sustenance, personal care, chauffeuring, mental stimulation etc. that is not possible (one to one) in a nursing home. This is in spite that Mr Williams is unable to contribute financially due to cancellation of his War Pension because we married.

    I should add, as well, that Mrs Williams receives a carer allowance from Centrelink.

14. Mrs Williams’ evidence was not challenged. I accept it. I accept as well that Mr Williams’ moral views are such that he regarded himself as unable to live under the same roof as Mrs Williams without the benefit of matrimony. Cohabiting outside of marriage, he said, “although fashionable, was not acceptable”.

15. It is unnecessary to attempt to define or delineate the meaning of “special” in this context. It is enough to say, to paraphrase what Kiefel J said in Groth v Secretary, Department of Social Security[2] of a similar expression, that there needs to be something to distinguish Mr Williams’ case from others, to take it out of the usual or ordinary case.

    [2] (1995) 40 ALD 541, 545.

16. I do not regard the present case as one that is special. The Act operates on the basis that spouses pool, and share equally, their assets and income. Mr Williams says that it is unfair to require Mrs Williams to bear the financial burden of caring for him. I am unable to agree. That, as it seems to me, was at the heart of one of the vows that I assume he and she exchanged during the marriage ceremony. Mr Williams did not suggest that he and Mrs Williams were unable to pool resources; on the contrary, he confirmed that he was dependent upon his wife’s generosity (as might be expected).

17. It may be accepted that Mr Williams’ health is poor but that is not at all unusual. It would be more unusual were he to be in good health. Equally, it is not at all unusual that Mr Williams is no longer able to obtain employment.

18. All that appears “special” about Mr Williams’ case is his insistence that he and Mrs Williams be married before they would reside together under the one roof, but he does not suggest that he and Mrs Williams were not genuine in their relationship or that it ought be viewed as anything other than the genuine relationship it appears to be. Mr and Mrs Williams seemingly regard it as a matter of principle that they needed to be married before they would live together. They are, of course, entitled to those views. Sometimes principles come at a price.

19. The Commission’s decision was correct. It will be affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 27 November 2015

Date of hearing	11 November 2015
Applicant	In person
Advocate for the Respondent	Mr B Williams, Department of Veterans' Affairs