Zomaya and Secretary, Department of Family and Community Services

[2002] AATA 1196

DECISION AND REASONS FOR DECISION [2002] AATA 1196

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W2002/3

GENERAL  ADMINISTRATIVE  DIVISION     )          
           Re       MARIAM ZOMAYA           
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal        Mr Murray Allen (Member)           

Date 21 November 2002

Place Perth

Decision       The Tribunal: Affirms the decision of the Social Security Appeals Tribunal dated 29 November 2001.      

……......(sgd M Allen)......................
  Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension -member of a couple – whether a special reason in the particular case for the applicant not to be treated as a member of a couple
Social Security Act 1991 ss4, 24(1)

Boscolo v SDSS French J (1999) 53 ALD 277
Cocks v Centrelink (2000) FCA 1248
SDSS and Tsimpidaros (1995) AATA 1029
Re SDSS and Begum (1998) AATA 12798, 51 ALD 187
ReCroy and SDSS (1996) AATA 11083

REASONS FOR DECISION

21 November 2002  Mr M Allen, Member

1. On 29 November 2001 the Social Security Appeals Tribunal (the SSAT) affirmed the decision of a delegate of the Secretary of the Department of Family and Community Services (the Secretary) made on 28 August 2001 (affirmed on internal review by an Authorised Review Officer) to cancel payment of a disability support pension (DSP) that had prior to that time been paid to the applicant, Mrs Mariam Zomaya.  On 2 January 2002 Mrs Zomaya, by her representative (her son, Mr Tony Zomaya), applied for a review of the SSAT decision.

2. At the hearing of the application on 25 October 2002 Mr Zomaya (participating in the hearing by telephone) represented Mrs Zomaya and the Secretary was represented by Mr Jones from Centrelink's Advocacy and Administrative Law Team. The Tribunal received into evidence the documents ("the T documents") lodged by the Secretary in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Oral evidence was given by Mr Zomaya and the Tribunal received as Exhibit A1 a letter from Mr Zomaya to the Tribunal dated 21 January 2002 (including ten pages of attachments).

Background

1. Mrs Zomaya started to receive a DSP in December 1997.  In August 2001 Centrelink became aware that she had married and was living in Kuwait with her husband, Mr Mohammed Abdel-Rahman Al-Salem.  Centrelink also became aware that Mr Al-Salem received income (by way of a retirement pension from the Government of Kuwait) of 800 Kuwaiti Dinars (KD) per month.  Using an exchange rate of KD1=AUD$6.2578, Centrelink calculated that this income equated to $5006.25 (Australian dollars) per month and determined that the combined income of Mrs Zomaya and her husband exceeded the allowable limit to such an extent that her rate of DSP was reduced to nil and that the DSP should, therefore, be cancelled.

2. Before the SSAT Mr Zomaya submitted that the cost of living in Kuwait was very high and that for this reason the DSP payable to his mother should continue.  The SSAT concluded that the income of Mrs Zomaya and her husband was sufficient to produce a DSP rate of nil and affirmed Centrelink's decision to cancel the DSP.  The SSAT noted that it understood the points made by Mr Zomaya about the high cost of living in Kuwait, but also noted that the Social Security Act 1991 (the Act) does not make any provision to recompense pensioners living overseas for such costs. 

The legislation

1. The following provisions of the Act are relevant to this proceeding:

   4 Family relationships definitions--couples
   Member of a couple—special excluding determination
   4(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.

   24 Person may be treated as not being a member of a couple (subsection 4(2))
    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.

   98 Disability support pension not payable if pension rate nil

   98(1) Subject to subsection (2), a disability support pension is not payable to a person if the person's disability support pension rate would be nil.

Consideration of the issues

1. The issue for the Tribunal to determine is whether Mrs Zomaya is entitled to receive a DSP in the light of her marriage and the income of her husband.  This involves the determination of the following questions:

(a)Whether Mrs Zomaya should be treated as a member of a couple or whether a determination should be made under subsection 24(1) of the Act that she not be treated as a member of a couple.

(b)If she is to be treated as a member of a couple, whether the combined income of Mrs Zomaya and Mr Al-Salem is such as to reduce her rate of DSP to Nil. 

1. Although, logically, question (b) should follow question (a), it is convenient to consider it first.  The undisputed evidence before the SSAT and the Tribunal (T4 and the oral evidence of Mr Zomaya) is that Mrs Zomaya is married to Mr Al-Salem, and that he has a monthly income of KD800.  I make those findings of fact.  The amount this represents in Australian currency will fluctuate with the exchange rate, but is approximately $5000 per month or approximately $2308 per fortnight.  Mrs Zomaya   is entitled to an "income free amount" (ie an amount of income that does not affect the rate of her DSP) of $200 per fortnight, resulting in an "excess" amount of approximately $2108 per fortnight.  This excess amount reduces the rate of her DSP by 20 cents in the dollar – or a total of $421.60.  This amount, in turn, exceeds the maximum DSP rate that Mrs Zomaya would otherwise be entitled to ($335.50 per fortnight) by a considerable margin, thereby reducing the DSP rate to nil.  By virtue of s98(1), therefore, a DSP would not be payable to Mrs Zomaya.  That conclusion is not affected by whether or not the cost of living in Kuwait is greater or less than the cost of living in Australia – in the same way that the varying cost of living between different parts of Australia is not relevant for the purposes of this calculation.  My answer to question (b) above is, therefore, Yes.

2. That leaves question (a) to be considered, which requires consideration of whether the provisions of s24(1) of the Act are applicable to Mrs Zomaya's situation.  Nothing in the T documents indicates that any of the Centrelink decision makers/reviewers or the SSAT considered Mrs Zomaya's circumstances in the light of that section; nor did the Secretary's Statement of Facts and Contentions filed with the Tribunal address the issue although Mr Jones made submissions on the issue at the hearing. 

3. There is no dispute  that Mrs Zomaya is married to Mr Al-Salem and s24(1)(a) of the Act is therefore satisfied.  I was told at the hearing that Mrs Zomaya was due to arrive back in Australia from Kuwait a few days after the hearing to visit relatives. Mr Al-Salem was not to accompany her. In response to my questions I was informed (and accept) that this visit and period apart from Mr Al-Salem was not in any way an indication that Mrs Zomaya and Mr Al-Salem were separating or that the marriage was in any way at an end.  I therefore conclude that s24(1)(b) of the Act is also satisfied.

4. I must therefore consider whether there is, for the purposes of s24(1)(c) of the Act, in the circumstances of this particular case a special reason why Mrs Zomaya should not be treated as a member of a couple.  In so doing, what must be considered is the position of Mrs Zomaya, not the position of the couple of which she is a member: Boscolo v SDSS French J (1999) 53 ALD 277 at 282. Nevertheless, the circumstances of both Mrs Zomaya and her husband will be relevant to that assessment.

5. As has been pointed out frequently in cases arising from the many different statutory discretions that involve judgements about whether "special reasons" or "special circumstances" exist  in a particular case, in the words of French J in Boscolo (supra) "[t]he core of the requirement…is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 27 FCR 32."

1. The rationale for the setting of separate rates for single persons as against that for married persons has been explained in terms of  two people living together in a marriage situation can pool their individual resources, thereby allowing them to live cheaper than the aggregate of two separate individuals living separate existences; see Re SDSS and Tsimpidaros (1995) AATA 1029

1. The inability of the members of a couple to gain benefits from the pooling of resources and expenses because one member of the couple has nothing by way of financial resources to contribute to the pool has been considered in a number of cases: see Cocks v Centrelink (2000) FCA 1248 and the cases referred to therein by O'Loughlin J. My research suggests that these cases involve typically a situation where the social welfare beneficiary has greater resources than an impecunious partner (as was the case with Mr Cocks) or is for some reason unable to gain access to the resources of the partner - see for example Re SDSS and Begum (1998) AATA 12798, 51 ALD 187 in which a married woman with two children was permitted to receive sole parent benefit because her husband (who was receiving a scholarship and studying in Japan) refused to accept financial responsibility for his wife and children.

2. The personal circumstances of Mrs Zomaya, whether living with her husband in Kuwait or visiting relatives in Australia, must be considered.  Mr Zomaya submitted that the reasons why special circumstances should be considered to exist in respect of his mother are the higher cost of living in Kuwait compared to Australia, particularly the cost of medicines, and the fact that his mother has no other income apart from the DSP (when she was receiving it).  Mr Zomaya relied on document T4 (a letter dated 20 August 2001 from Mr Al-Salem to Centrelink containing some information about monthly income and expenditure) and the attachments to Exhibit A1 – which are receipts for various items of expenditure in Australia and Kuwait – to demonstrate both that the cost of living in Australia is lower than in Kuwait and that Mr Al-Salem and Mrs Zomaya struggle to make ends meet. 

3. As regards the relative costs of living in the two countries, the information provided is very limited.  Apart from the fact that some of the documents were in the Arabic language which were not translated into English, most of the receipts do not permit me to draw any reasonable conclusions because they do not contain sufficient information to enable an assessment of quantities, qualities and types of foodstuffs involved.  In some cases where they identify the type of foodstuff it appears not to be relevant; for example, the first and second pages of attachments to Exhibit A1 contain receipts for what is described as baby food. 

4. As regards the issue of whether the couple are in financial difficulties in Kuwait, again the information provided is limited.  Document T4, which has not been challenged by the Secretary and which I am prepared to accept, explains that from his monthly income of KD800 Mr Al-Salem, in August 2001 met monthly commitments of:

   Rent  KD250
   Electricity, phone, water etc   150
   Bank loan repayments                      120
   Contribution to support of other family members               130
   Available for food, health, petrol, incidentals   150

5. Mr Zomaya said that he understood that the loan repayments were in respect of a loan taken out for the purchase of his mother's motor vehicle in 2001 although he was not aware of the amount of principal outstanding.  Likewise, Mr Zomaya understood that the monthly contribution made by Mr Al-Salem for the support of other family members was in respect of Mr Al-Salem's sister or sisters, but he was not able to provide any details about the circumstances of the contributions made. 

6. I accept Mr Zomaya's evidence that his mother has no other income and is dependent on her husband. Mr Zomaya said at the hearing that his mother would live with him and his family when she was in Australia, that she would be expected to contribute to her upkeep here and that he did not know where she would find the money to do so as she would have no other income in this country if she was not able to receive a DSP. 

7. Mr Jones submitted that  no special reason could be said to exist in this case.  The members of the couple were living together (which was not the situation in some of the other cases that raised this issue - such as Cocks), the "problem" was due only to the provisions of the legislation, and even though the financial position of the couple might be such that they were fully expending their income there was no evidence that they were experiencing severe financial hardship.

8. In my opinion the issue of the relative cost of living in Australia and Kuwait will only be relevant as one of the factors that affect the overall financial position of Mrs Zomaya and her husband.  On the evidence I do not consider that I would not be justified in concluding that the cost of living in Kuwait is significantly higher than in Australia – but even if I were to reach that conclusion I do not believe on the evidence that I could conclude that Mrs Zomaya and her husband are experiencing financial hardship.  To mention only one factor that could significantly affect the situation, if Mrs Zomaya had sold her motor vehicle, or the loan used to purchase it has been repaid, since August 2001 - or will be soon - then the financial circumstances may well have already, or be about to, change for the better.

9. As regards Mr Zomaya's contention that his mother is dependent on her husband and that he does not know how she will support herself while she is in Australia, I observe that the implication  is that Mr Al-Salem would not be prepared to make a contribution for the time that Mrs Zomaya is in Australia.   Whether that will prove to be the case or not something I am prepared to speculate about.  As I have noted above, there is no suggestion that Mrs Zomaya's visit to Australia is a separation by the members of the couple.

10. The fact that one member of a couple is dependent on the other member (in the financial sense that the other member's income is much greater than the first) would, in my opinion, be something that is not particularly unusual or different.  It would often be the case where one member of a couple choses to or cannot work and the other member of the couple has an income that is sufficiently large to preclude welfare benefits.  The Act is welfare legislation whose general object is to make provision for those who are in genuine need.  It is one thing to exercise the discretion available under s24(1) of the Act in the situation where a welfare beneficiary has benefits reduced because of marriage even though the spouse is impecunious.  It is quite a different thing to exercise the discretion so as to permit a person to continue to receive welfare benefits when the spouse has (by Australian standards) significant income or assets.  The present case bears similarities to that of Re Croy and SDSS (1996) AATA 11083. In that case an aged pensioner had married a person with considerable assets and had entered into a pre-nuptial agreement which provided that the two members of the couple would be financially independent as if the marriage had not taken place. Deputy President Blows commented in that case as follows:

    "10.     If the applicant's wife's income and assets are taken into account in the ordinary way, the applicant will not be eligible for an age pension, and will have to seek support from his wife.   There is nothing abnormal about that.    The only unusual features of this case are that the applicant was apparently ignorant of the means test provisions of the Act as they apply to couples, that the applicant and his wife entered into the pre-marital agreement under the influence of his ignorance on that point, and possibly that such agreements have greater legal force in the USA than they have in Australia.   In my view those circumstances do not amount to special reasons for the applicant not to be treated as a member of a couple.    There is no reason to think that his wife will not support him to the extent that he reasonably needs support.    There is no reason to think that it would be unreasonable for him to seek her support, to the extent that he needs it.    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."

11. In my opinion the circumstances of Mrs Zomaya  are not such as to be so unusual or different as to make her case out of the ordinary.  Accordingly, I do not consider that in the particular circumstances of this case a special reason exists to justify treating Mrs Zomaya as not being a member of a couple.  I would not, therefore, exercise the discretion that the Secretary has under s24(1) of the Act.  Because, as a member of a couple, her income is such as to produce a DSP rate of nil, the decision of the Secretary to cancel Mrs Zomaya's DSP was correct.  I therefore affirm the SSAT decision under review.

    I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of 

    Signed:         ........(sgd V Wong)..........................................
      Associate

    Date/s of Hearing  25 October 2002
    Date of Decision       21 November 2002
    Counsel for the Applicant            Mr T Zomaya
    Counsel for the Respondent        Mr A Jones
    Solicitor for the Respondent        Advocacy & Administrative Law Team,  Centrelink