Editors --- "Section 24: special reason not to treat as a member of a couple" [2010] SocSecRpr 61; (2010) 12(4) Social Security Reporter, Article 16

• KAZMIERCZAK v SECRETARY THE DFHCSIA
• Background
• Legislation
• Discussion
• Formal decision

---

Section 24: special reason not to treat as a member of a couple

KAZMIERCZAK v SECRETARY THE DFHCSIA

(Federal Court of Australia)

Decided: 5th October 2010 by Barker J

Background

Kazmierczak married in 1987. In 1994 he was granted a disability support pension (DSP) and his wife a wife pension. His DSP payments were reduced by his wife’s employment income. On 21 August 2007 and again on 30 March 2009 Kazmierczak appealed against the decision to reduce his payments based on his wife’s income.

Before the Administrative Appeals Tribunal (AAT) Kazmierczak sought to argue that there were ‘special reasons’ pursuant to s.24(1) of the Social Se-curity Act 1991 (the Act) not to treat him as a member of a couple for the purpose of calculating his rate of DSP.

The AAT found that Kazmierczak and his wife were married, not living sep-arately and the wife’s earnings were ap-plied towards household expenses, and there was no ‘inability to pool resources’, even though Kazmierczak was reluctant to have his wife contribute. On the basis of these findings the AAT decided that Kazmierczak’s circumstances did not warrant the application of the discretion provided for under s.24(1) of the Act.

Kazmierczak appealed to the Federal Court of Australia.

Legislation

Section 24(1) states 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 per-son 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.

Discussion

Kazmierczak was self-represented. He stated the error of law was the failure of the AAT to be satisfied that he should for special reasons not be treated as a member of a couple. The DFHCSIA submitted that no question of law was raised in the grounds of appeal. Barker J. found it was open to the AAT to make its findings and to not be satisfied that Kazmierczak should, for a ‘special reason’ be treated as a member of a couple. Kazmierczak told the AAT and the Court that it was unfair that he had to rely upon his wife for funds to meet expenses connected with his disability, because her income reduced his payments. He also stated it was unfair that his wife was deprived of the opportunity to have a full life and the ability to work full-time and provide for herself by way of superannuation contributions. These were the ‘special reasons’ that Kazmierczak sought to rely upon.

The Court agreed with French J’s comments in Boscolo v Secretary, Department of Social Security [1999] FCA 106 at [18] that:

the core of the requirement for ‘special reasons’ under s 24(1) is that there be something unusual and different to take the matter the subject of the discretion out of the ordinary course. But that does not require that the case be extremely unusual, uncommon or exceptional. I also agree with the observation of French J, at [18], that the word ‘special’ is in essence ‘instrumental’, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened.’ [at 37]

The Court referred to the AAT decision in Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 and stated that the case law canvassed in Holt confirms the view that the Act focuses on the practical ability of the resources of the partner being made available for pooling with the resources of the person receiving the pension. A ground for ex-ercising the s.24(1) discretion may exist if there is some legal or other practical reason the partner member of a couple cannot be treated as sharing income. The Court concluded that the AAT correctly understood that to be the test to be applied.

The AAT stated [at 31]: ‘It is obvious from Mr Kazmierczak’s evidence he feels reluctant to have his wife contrib-ute out of her earnings for his needs and the family needs and while the Tribunal understands that reluctance, that does not create an inability to pool resources.’ The Court held that this finding was open to the AAT on a proper application of the relevant considerations that bear upon the exercise of the s.24(1) discretion and the evidence before the AAT. The AAT did not misunderstand or misconstrue the factors relevant to the exercise of the s.24(1) ‘special reasons’ discretion.

Formal decision

The Court held that no question of law was raised for review in the appeal. Kazmierczak’s application was dis-missed and an order made for costs.

[J.F.]