Editors --- "Married couple: s24 discretion" [2009] SocSecRpr 34; (2009) 11(3) Social Security Reporter, Article 12

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Married couple: s24 discretion

SECRETARY TO THE DFaHCSIA and NICOLAAS

(2009/1265)

Decided: 10th June 2009 by B.J. McCabe

Background

Nicolaas was receiving age pension (AP) at the single rate appropriately reduced because he also received a pension from the Netherlands at approximately €130 per month. He owned his mobile home and an old car. He rented space in a park in Caloundra; he had approximately $125,000 in superannuation but had lost a portion in the financial downturn.

Mrs Nicolaas came to Australia, from the Philippines, in November 2007. She was initially on a subclass 300 visa and was subsequently issued the partner temporary visa (subclass 820) in May 2008. Neither visa confers permanent residency. She was entitled to take up paid work but was eligible for no social security benefits, other than special be-nefit in the event of severe hardship.

Mrs Nicolaas held an arts degree and a law degree attained in the Philippines. She was employed for many years in the Philippines. She needed further training to secure work in Australia but, because she was not on Centrelink benefits, she was not entitled to publicly-funded training. Mrs Nicolaas obtained work for a short time only. She was not able to become a permanent resident until March 2010.

Nicolaas was paid AP at the single rate for a time but, after Mrs Nicolaas obtained work and her spousal visa, Centrelink took the view that she could contribute to the household and that it was no longer appropriate to pay Nicolaas at the single rate. The Netherlands increased his pension to €366 per month when he advised that he was married and that his wife was unemployed. The AAT observed that the SSAT may not have had all of the facts about the Dutch pension when it decided to continue the single pension.

Issues

The Secretary appealed the SSAT decision. In this case, the issue was whether there were special circumstances such that Nicolaas, a married person living with his partner, should be treated as if he were not a member of a couple pursuant to s.24 of the Social Security Act 1991 (the Act).

Legislation

The partnered social security rate is less than the single rate because there is an assumption that members of couple will pool their resources and live more cheaply when they reside together. However, s.24 of the Act invests the Secretary with the discretion to treat members of a couple as single persons in appropriate cases. Section 24(1) provides:

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;

d) 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.

The discretion needs a ‘special reason’. In Boscolo v Secretary, Department of Social Security [1999] FCA 106, (1999) 90 FCR 531 at 536 French J held that the person’s situation need not be bizarrely unusual; it is enough that there is something different about the case which suggests the general rule should not be applied.

Decision

The SSAT found that Nicolaas had no pooling of resources because Mrs Nicolaas had no assets of her own, was unable to access social security benefits, and that Nicolaas had to support both of them out his resources. T h e A AT found that the couple were married and living together. The AAT found that the inability to access social security be-nefits might constitute ‘special reasons’ for s.24 but, in this case, Mrs Nicolaas had the capacity to obtain paid work. In addition Nicolaas’ pension from the Dutch government had increased which made the reduction in Australian be-nefits less likely to be a special reason.

Nicolaas had money in the bank and neither he nor his wife were in poor health. The Department argued that Nicolaas was aware his wife would not be able to access benefits until she became a resident and that, under normal circumstances, he would have been asked to provide an assurance of support. The AAT was not convinced this was relevant.

Formal decision

The AAT set aside the SSAT decision and decided it was not appropriate to exercise the discretion in s.24(1) of the Act to treat Nicolaas as being other than a member of a couple.

[M.R.]