Woods and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1092
•23 December 2016
Woods and Secretary, Department of Social Services (Social services second review) [2016] AATA 1092 (23 December 2016)
Division
GENERAL DIVISION
File Number
2016/2003
Re
Jason Woods
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Theodore Tavoularis
Date 23 December 2016 Place Brisbane The Tribunal sets aside the decision under review and substitutes that decision with the decision that the Applicant and Ms Woods were not “members of a couple” for social security purposes in the period until 9 July 2015. Consequently, the Applicant does not have social security debts to the Commonwealth in respect of that period.
....................[sgd]...........................................
Senior Member Theodore Tavoularis
Catchwords
SOCIAL SECURITY – Centrelink overpayment – where Applicant had received benefits and payments as a single person – where Applicant had been married – whether Applicant was in a de facto relationship before marriage – whether Applicant was a member of a couple – special reason – whether there was a special reason for discretion to be exercised – whether Applicant should be considered a member of a couple – financial difficulty – unable to pool resources – wife subject to a NARWP – wife had to care for her family – decision under review set aside
Legislation
Social Security Act 1991 (Cth) ss 4, 24, 739A
Cases
Pelka v Secretary, Department of Social Services
(2006) 151 FCR 546
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Purdie and Secretary, Department of Social Services [2013] AATA 743
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Pascoe and Secretary, Department of Social Services [2013] AATA 745
Cocks v Centrelink [2000] FCA 1248
Ashby and Secretary, Department of Social Services [2014] AATA 913
Secondary Materials
Guide to Social Security Law
Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2015 [No 2]REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 December 2016
INTRODUCTION
This is an application for review of a decision by Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) on 7 March 2016. That decision affirmed an earlier decision of the Department of Human Services (“the Department”) to raise and recover from Mr Jason Woods (“the Applicant”) the following two debts:
(a)$2,103.57 in newstart allowance for the period 12 July 2011 to 14 June 2014 (“the newstart debt”); and
(b)$20,249.57 in carer payment for the period 15 June 2012 to 9 July 2015 (“the carer payment debt”).[1]
[1] T Documents, T 2, pp 3-7.
THE RELEVANT FACTS
The Applicant claimed newstart allowance from 11 June 2009 to 14 June 2012. From 15 June 2012 onwards, the Applicant was in receipt of a carer payment on a single rate. From the date he first claimed newstart allowance to 9 July 2015, payments were calculated on the basis that the Applicant was a single person.
In 2010, the Applicant met his now-wife, Ms Maria Sarah Woods online. On 17 May 2011, the Applicant travelled to the Philippines and on 29 June of that year, he married Ms Woods. The Applicant returned, alone, to Australia on 12 July 2011.
While the Application was in the Philippines in this period, his newstart payments were suspended. However, his payments were restored at the single rate when he returned.
On 17 June 2013, Ms Woods applied for a Partner (Provisional) visa (subclass 309). This was granted on 7 January 2014, and she arrived in Australia to live with the Applicant on 18 January 2014.[2]
[2] Exhibit 6, Visa Grant Notice.
Between their marriage and Ms Woods’ permanent arrival in Australia on a Partner (Provisional) visa (subclass 309), the Applicant visited her twice in the Philippines, and she travelled to Australia four times.
There was some dispute as to whether the Applicant had been misinformed about his reporting requirements to Centrelink.[3] In any event, the Applicant did finally inform the Department that he is married on 9 July 2015.[4]
[3] See e.g. Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, [36].
[4] T Documents, T 46, p 234.
On 28 August 2015, the Department decided to raise debts from the Applicant in the amount of $13,666.76 for newstart allowance overpayment for the period of 12 July 2011 to 14 June 2012, and $20,249.57 for carer payment for the period of 15 June 2012 to 9 July 2015.[5]
[5] Ibid, T38, pp 190-193.
Dissatisfied with this result, the Applicant requested a review. This review was completed on 29 October 2015, when an authorised review officer (“ARO”) determined that it was correct to raise both debts, but that the newstart allowance debt was in fact $2,103.41.[6] This decision was appealed to AAT1, which affirmed it on 7 March 2016 in a decision posted on 16 March 2016.[7]
[6] Ibid, T 39, pp 194-197.
[7] Ibid, T 2, p 3.
The Applicant remained dissatisfied with the decision and lodged an appeal with the Tribunal on 14 April 2016.[8]
[8] Ibid, T 1, p 1.
ISSUES FOR THE TRIBUNAL
Consideration of this matter necessarily involves a determination of the following three issues:
(a)When did the Applicant become a “member of a couple” with his now wife?
(b)Is there a “special reason” to treat the Applicant as if he has not been a member of a couple for the purposes of the Social Security Act 1991 (Cth) (“the Act”), and should that “special reason” enliven the use of a discretion to treat the Applicant as not being a member of a couple in the relevant period?
(c)Should the debt raised in respect of alleged overpayment of benefits between 11 June 2011 and 15 July 2015 be waived in whole or in part?
Issue A: When did the Applicant become a Member of a Couple?
The marriage of two people creates a presumption that they are members of a couple.[9] That is not in question here.[10] I therefore find that the Applicant was a member of a couple with Ms Woods in fact at least from the date of their marriage, on 29 June 2011. However, in its Statement of Facts, Issues and Contentions, the Department raised the argument that the Applicant and Ms Woods became members of a couple on 5 September 2010.[11] That contention merits some discussion.
[9] The Act, s 4(2)(a).
[10] See: Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, [1(a)]; Exhibit 8, Department’s Statement of Facts, Issues and Contentions, [22].
[11] Exhibit 8, Department’s Statement of Facts, Issues and Contentions, [32].
Taking into consideration all relevant facts and the factors listed in s 4(3) of the Act, I determine that this argument lacks merit. Although it is clear to me that the Applicant was in a relationship with Ms Woods, even to the exclusion of all others, in the period before their marriage, I do not consider this is sufficient to consider them to have been “members of a couple” for the purposes of social security law.
By the very nature of their relationship, the Applicant and Ms Woods could not have shared a household or had a sexual relationship in this period. The geographical distance between them simply precluded that. They did plan to be married and pool their apparently rather scant resources for their wedding. This indicates their shared intention to continue their relationship indefinitely. However, their relationship at that stage had not lasted very long. Indeed, it does not appear that the Applicant had even met Ms Woods face to face before travelling to the Philippines to marry her.
I consider that the practical realities of the Applicant’s relationship with Ms Woods before their marriage outweigh their intention to share their lives together before their marriage. Though there can be no doubt that they had a relationship and indeed a serious one, it does not meet the threshold of being “marriage-like” as described, for instance, by the Federal Court in Pelka v Secretary, Department of Social Services.[12]
[12] (2006) 151 FCR 546, [36]-[47].
Consequently, I answer the question posed in Issue A in the negative – the Applicant and his now-wife were not members of a couple before the time of their marriage.
Issue B: Should the Applicant be treated as a Member of a Couple?
The Legal Framework
Although I have found that the Applicant was in fact a member of a couple from the date of his marriage, that is not necessarily determinative of whether or not he should be treated as such for the purposes of the Act. Section 24 provides an exception where someone who is married could still not be treated as a member of a couple for the purposes of the Act. The relevant portion of this provision reads:
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 an 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.
Although it is not binding upon me,[13] I am assisted in interpretation of this provision by the Guide to Social Security Law (“the Guide”) at Instruction 2.2.5.50. The Guide refers to three core questions that should be considered in determining whether s 24 should be applied:
·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?
[13] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 for a discussion of the application of Departmental policies by the Tribunal.
The Guide further points towards some situations in which it is likely that s 24 should be applied. I recognise that these are only generic examples, but some are still of some relevance here:
·Where one member of a couple “is in receipt of an income support payment” and the other “has no financial resources to contribute to the relationship and has no income… In such cases, and subject to the usual means and assets tests, section 24 should generally be applied…”.[14]
·Where one member of a couple is in receipt of an income support payment and the other has no financial resources to contribute to the relationship as a result of losing her job and is ineligible for an income support payment, meaning that “the couple are living on a partnered payment that is designed to support half a couple, with the result that they are in financial difficulty… section 24 should generally be applied”.[15]
·Where the couple is in financial difficulty and the partner (i.e. the person not in receipt of payments) is either not residentially qualified for an income support payment (e.g. where the partner is living overseas and waiting for their residence application to be considered), or subject to the NARWP (as I understand it, the “Newly Arrived Resident’s Waiting Period”).[16]
·Where one member of a couple applies for NSA (newstart allowance), but the other remains overseas but “can contribute nothing to the relationship financially as she works on her parents’ small farm and is not paid. The couple has no other financial resources and are in financial difficulty. It may be appropriate in this case to apply the discretion in subsection 24(1) to treat” the Australian member of the couple as not being a member of a couple and grant NSA at the single rate.[17]
·Where one member of a couple is a foreign national and is serving a NARWP and “has not yet managed to find work and is unable to contribute financially to the relationship. As the couple are in financial difficulty it may be appropriate to apply section 24” to pay the other partner’s NSA at the single rate.[18]
[14] T Documents, T 4, p 49.
[15] Ibid, T 4, p 50.
[16] Ibid, T 4, p 51.
[17] Ibid, T 4, p 52.
[18] Ibid.
By way of explanation for the rationale behind the second-last example, the Guide notes:
Where a couple has married overseas prior to the granting of residential status to the non-Australian partner, and it is considered that the situation has not been contrived to obtain social security (or other) entitlements, it may be accepted that the current situation is not an intended consequence of the partner’s actions.[19]
[19] Ibid.
It appears to me that there are a few common points amongst these examples. First, the couple are in financial difficulty. Second, the member of the couple not in receipt of the benefits is unable to contribute financially to the relationship. Third, the situation is not an intended consequence of either member of the couple’s actions.
I note that, contrary to the Guide, DP Hack in Purdie and Secretary, Department of Social Services was not persuaded that s 24(1) actually posed three questions.[20] Rather, DP Hack considered that there was a single, broader question: “is there a special reason to treat [an applicant] in the present case as not being a member of a couple”?[21]
[20] [2013] AATA 743, [14].
[21] Ibid.
French J (as his Honour then was) has determined that the test should primarily focus on the applicant, rather than the couple as a whole, and that there should be two stages to the exercise of the s 24 power. The first question is whether a special reason exists. The second question is whether this should enliven the use of discretion to treat the applicant as not being a member of a couple.[22]
[22] Boscolo v Secretary, Department of Social Security [1999] FCA 106, [20].
Further to the Guide’s explanation I referred to above, Senior Member Creyke in Holt and Secretary, Department of Education, Employment and Workplace Relations noted that “[t]here must be some degree to which circumstances are outside the couple’s or individual’s control and cannot be changed”.[23] This perspective has been endorsed by the Federal Court, which added an emphasis on the pooling of resources.[24]
[23] [2010] AATA 143, [30].
[24] Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, [41]-[42] (Barker J).
Given the facts at hand, there are a further four cases that warrant a mention. The first case is Purdy and Secretary, Department of Social Services, which I referred to above. In that case, Mr Purdie moved to France with his partner, who happened to be French. After running a business out of a property they purchased together, Mr Purdie moved back to Australia to claim the age pension. His partner was prevented from moving back to Australia because she needed to stay in France to take care of the property, which they could not practically sell without someone present to take care of it, and which they were prevented from selling due to financial pressures caused by the Global Financial Crisis. Ultimately, DP Hack found that these circumstances were special enough to enliven the s 24 discretion: “It is impractical to require Mr Purdie or his spouse to sacrifice their financial interests in order for her to return to Australia. The choice to stay in France is a choice but it is a choice which is dictated by the practicalities of the situation.”[25]
[25] Purdy and Secretary, Department of Social Services [2013] AATA 743, [16].
The second relevant case is Pascoe and Secretary, Department of Social Services.[26] There, the Tribunal stated:
In my view the discretion conferred by s 24(1) should only be exercised when it is not reasonable for the person in question to be expected to seek the support of the other member of the couple, or when it is not reasonable to expect that other member to give support to the person… To this I would add that impecuniosity, where one member of a couple has nothing to contribute to the pool of resources by way of income or assets, may be a practical reason why the person may not be treated as sharing resources, or where it may not be reasonable for the other member of the couple to be expected to seek their support…[27]
[26] [2013] AATA 745.
[27] Ibid, [37]-[38].
The third relevant case is Cocks v Centrelink.[28] There, Mr Cocks was in receipt of the age pension. His wife was a Filipino national with whom he had a daughter. She was, as far as could be ascertained, unemployed. Both Mr Cocks’ wife and daughter lived in the Philippines. He visited them, but was unable to stay in the Philippines for more than six months at a time due to the expense and difficulty of obtaining a visa. The Federal Court ultimately found that Mr Cocks would not benefit from a pooling of resources when he was in Australia and his wife was overseas, and likewise would not benefit if they were together overseas, as she had nothing to contribute to the pool.
[28] Cocks v Centrelink [2000] FCA 1248.
Finally, there is Ashby and Secretary, Department of Social Services.[29] In that case, there was an actual and quantifiable degree of pooling of resources in the form of a jointly owned property and joint bank account. Yet these factors were not enough for Mr Ashby and his wife, who lived apart and were for all other intents and purposes separated, from being members of a couple.
[29] [2014] AATA 913.
Assessment
For the purposes of addressing this issue, I propose to split the relevant time over which a debt allegedly accrued into two periods:
(a)Between 12 July 2011 and Ms Woods’ arrival in Australia on 18 January 2014; and
(b)Between Ms Woods’ arrival in Australia on 18 January 2014 and 9 July 2015.
The reason behind this split is that I consider the circumstances across these two periods to differ in material ways, not least the fact that in the latter period, the Applicant and Ms Woods were cohabiting but in the former, they were not.
Before Ms Woods’ Arrival
As a preliminary comment, I should say that I consider that, in this period, there were sufficiently special reasons to prevent the Applicant from attaining the benefits necessary to be considered members of a couple.
The Applicant has given evidence that he received $280 per week whilst on newstart allowance, and then $500 per week when he began caring for his mother. With this income, he claims to have had expenses totalling $380 per week. He further was burdened with certain expenses to help care for his mother.[30] He claims to have incurred additional costs of at least $100 per week when Ms Woods was staying with him (as she could not work due to her tourist visa restrictions).
[30] Exhibit 2, Statutory Declaration of Mr Jason Woods, dated 7 September 2016.
It is apparent that Ms Woods was herself burdened with the need to support her family. She “was responsible for repaying [her parents’] mortgage, and our other living expenses, including costs of all food, clothing and medication and… [her] brother’s education.” She attests to having used all her income earned each fortnight on these expenses.[31]
[31] Exhibit 3, Statutory Declaration of Ms Sarah Woods, dated 7 September 2016.
From what evidence is available to me, I conclude that Ms Woods was unemployed from September 2012 until she was able to gain employment in Australia in July 2015. The Applicant contends that the delay between Ms Woods quitting her job to be with him and her arrival in Australia in January 2014 was due to two factors. First, it took some time to arrange for alternative avenues of support for her mother and family. Second, it was difficult for the Applicant to quickly save enough money to afford the partner visa fee.[32]
[32] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, [30].
Even though they lived apart and he had only limited income, it is apparent that the Applicant sent what money he could to Ms Woods in this period to help support her.[33] Further, he borrowed money from his family to pay for the flights he and Ms Woods took to visit each other.[34] Finally, the evidence is that he obtained an advance from Centrelink and borrowed money from his family to pay the $2,680 fee for Ms Woods’ partner visa.[35] There is no evidence, so I have no reason to believe, that Ms Woods reciprocated this kind of financial support provided by the Applicant.
[33] Exhibit 2, Statutory Declaration of Mr Jason Woods, dated 7 September 2016, [18].
[34] Exhibit 3, Statutory Declaration of Ms Sarah Woods, dated 7 September 2016, [11].
[35] Exhibit 2, Statutory Declaration of Mr Jason Woods, dated 7 September 2016, [14].
I consider there are three factors extricable from these facts that are sufficient to constitute a special reason:
(a)Ms Woods’ need to financially support her family in the Philippines;
(b)Ms Woods’ period of unemployment; and
(c)The reasons underlying her delay in coming to Australia, namely, the need for her to make alternate arrangements for the support of her family, and the time it would take for the Applicant to raise money sufficient to pay for her partner visa fee.
Although financial difficulty in and of itself is not a sufficiently special reason, I consider it evident from the facts before me that there are circumstances of financial difficulty in this case. Moreover, the three factors I have listed above to my mind clearly provide a reason, outside of the Applicant’s control, prohibiting him from gaining the economic benefits of pooling of resources that is central to someone being a member of a couple for the purposes of social security legislation.
I therefore find that, from 12 July 2011 to 18 January 2014, there was a special reason for me not to consider the Applicant a member of a couple in accordance with s 24 of the Act. I think it is appropriate for me to exercise my discretion on the basis of the above facts and the striking resemblance they bear to cases in which the guide recommends the discretion be exercised. Consequently, I consider that, in accordance with s 24(1) of the Act, the Applicant should not be considered a member of a couple for the purposes of the Act. No debt therefore exists in the period to 18 January 2014.
After Ms Woods’ Arrival
As I alluded to earlier, this question is made rather more complex on the basis that Ms Woods was, after her arrival, cohabiting with the Applicant.
It is apparent that, until she commenced work in July 2015, Ms Woods was unemployed.[36] Consequently, the Applicant was once again unable to gain the benefits of pooling resources with her.
[36] See e.g. Exhibit 3, Statutory Declaration of Ms Sarah Woods, dated 7 September 2016, [12].
However, as I noted above, this inability to pool resources must have been because of circumstances outside of the Applicant’s or Ms Woods’ control.[37] It is apparent from the examples appearing in the Guide that unemployment is considered to be a factor out of someone’s control.[38] Indeed, it seems to me that this is precisely a case where one member of the couple, Ms Woods, “has not yet managed to find work and is unable to contribute financially to the relationship. As the couple are in financial difficulty it may be appropriate to apply section 24”.[39] That Ms Woods did intend to eventually contribute financially to the relationship is evident from the fact that she did eventually secure employment.[40]
[37] Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, [30].
[38] See discussion above.
[39] Guide to Social Security Law (“the Guide”), Instruction 2.2.5.50 found in T Documents, T 4, p 52.
[40] See e.g. Exhibit 2, Statutory Declaration of Mr Jason Woods, dated 7 September 2016, [30].
It appears to me that there was one remaining way in which Ms Woods could have financially contributed to the relationship: by herself claiming some form of benefit.
As I understand it, s 739A of the Act established what are known as Newly Arrived Resident’s Waiting Periods (“NARWPs”). Generally, the NARWP has the effect of precluding newly arrived permanent residents from claiming Commonwealth payments or benefits in the first 104 weeks after their arrival in Australia.[41] This would mean that, generally, someone in Ms Woods’ position would have been unable to claim benefits such as newstart allowance or carers’ payments for two years after her arrival.
[41] The Act, s 739A(3)(d).
However, there are some classes of visa for which the clock on the 104 week period starts running on the date the person applied for their visa.[42] It is apparent that Ms Woods applied for, and holds, a Partner (Provisional) visa (subclass 309).[43] This is one of the subclasses to which this exemption applies.[44] Consequently, s 739A(3) applies, meaning the start date is indeed the date on which Ms Woods applied for her visa.
[42] Ibid, s 739A(4).
[43] See e.g. T Documents, T 2, p 5; Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, [30].
[44] See: Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2015 [No 2], s 5(a).
Ms Woods lodged her visa application on 17 June 2013.[45] Consequently, she would have been barred, as a result of the NARWP, from claiming Commonwealth benefits or payments until 104 weeks after that – 17 June 2015.
[45] Exhibit 6, Visa Grant Notice.
Ms Woods commenced employment in early July 2015. I therefore consider 17 June 2015 to be close enough to the date of actual employment of Ms Woods so as to not impede the Applicant from being absolved of the debt if I conclude that this amounts to a special reason. I also note that the gap in time between 17 June 2015 and early July of that year should be viewed with regard to a likely delay between when Ms Woods started employment and when she was first paid.
The final question to be answered is whether or not I consider this to amount to a special reason. I do. The Applicant has attested that when Ms Woods stayed with him, living expenses he paid for increased by at least $100 per week.[46] This makes sense – two people’s needs were now being met by the single carer’s payment. Indeed, I stress that both needs were being met by the Applicant. There is no indication that Ms Woods contributed financially.
[46] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, [22].
Consequently, it appears to me that there was no capacity for pooling of assets to reduce the financial burden on each individual member of the couple. Rather, the entire burden was being met by the Applicant. This is precisely the kind of scenario envisaged by the examples from the Guide. I do not intend to stray from them. The conditions for the s 24 discretion to be exercised have been met, and I will exercise that discretion.
I therefore find that, even after Ms Woods joined the Applicant permanently in Australia, the Applicant should not be considered a member of a couple for social security purposes.
Issue C: Should the debt be waived?
In accordance with my above finding, I have by way of s 24 considered the Applicant to not be a member of a couple for the purposes of social security law or the benefits and payments he has received. It was therefore appropriate that he received his benefits and payments as if he were a single person. Consequently, no debt has arisen.
As no debt has arisen, there is no debt to be raised.
There is thus no requirement for me to consider the issue of waiver.
CONCLUSION
I therefore set aside the decision under review and substitute that decision with the decision that the Applicant and Ms Woods were not “members of a couple” for social security purposes in the period until 9 July 2015. Consequently, the Applicant does not have social security debts to the Commonwealth in respect of that period.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............[sgd]....................................................
Associate
Dated: 23 December 2016
Date of hearing: 12 September 2016 Counsel for the Applicant: Matthew Taylor Advocate for the Applicant: Andrea de Smith Solicitors for the Applicant: Disability Law Queensland Advocate for the Respondent: Maleah Underhill Solicitors for the Respondent: Department of Human Services
0
8
0