Editors --- "Disability support pension: same-sex relationship; partner a temporary resident; whether special reason exists to not be treated as a member of a couple" [2010] SocSecRpr 60; (2010) 12(4) Social Security Reporter, Article 15

• XBCZ and SECRETARY TO THE DFHCSIA
• Background
• Issue
• Evidence
• Discussion
• Findings
• Formal decision

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Disability support pension: same-sex relationship; partner a temporary resident; whether special reason exists to not be treated as a member of a couple

XBCZ and SECRETARY TO THE DFHCSIA

(2010/826)

Decided: 25th October 2010 by S. M. Isenberg.

Background

XBCZ was a member of a same sex couple. XBCZ received the disability support pension (DSP) at the single rate from 11 August 2008 until 1 July 2009 when the when amendments to the Social Secur-ity Act 1991 (the Act) arising from the Same-Sex Relationships (Equal Treat-ment in Commonwealth Laws – General Law Reform) Act 2008 came into force.

XBCZ’s partner arrived in Australia on 8 August 2008 from Malaysia and was granted a temporary visa (826 class). The effect of the partner’s visa status was that he was not eligible for any Centrelink payment other than special benefit (SP). He was refused SP because he could not demonstrate sufficient financial hardship. In December 2010, the partner would be eligible to apply for a permanent visa.

On 7 July 2009 XBCZ declared his same-sex de facto relationship to Centrelink. The original decision-maker placed XBCZ on the partnered rate of DSP. This decision was subsequently affirmed by both the Authorised Review Officer and the Social Security Appeals Tribunal.

On 29 May 2010, XBCZ suspended his DSP because he felt ‘humiliated’ and ‘like he was begging for money’ from Centrelink.

Issue

The issue was whether, for a special reason in his particular case, XBCZ should not be treated as a member of a couple.

The rate at which a person is paid DSP depends on whether or not that person is a member of a couple as defined in the Act. The AAT noted that the rationale for the partnered rate was the ability of the couple to pool resources and there-fore live more economically than each person could as a single person.

Under s.24 (2) of the Act, a person in a de facto relationship (same-sex or opposite sex) can be treated as not a member of a couple if there is a special reason in the particular case.

Evidence

XBCZ saw himself as a member of a couple. XBCZ and his partner had at all relevant times been living together and sharing household expenses from a joint account.

XBCZ gave evidence that he was in financial hardship and that his health and medical costs constituted a special reason under s.24 (2) of the Act. He also argued that he and his partner could not pool their resources as well as other couples because his partner was a temporary resident and had to pay tuition fees upfront.

XBCZ and his partner purchased an apartment in December 2008 with a mortgage of approximately $350,000. The mortgage repayments had not been able to be made for five months as a result of rising interest rates. In September 2010 they sold the apartment for $479,000 and intended to purchase a smaller apartment. XBCZ also owned an investment property and Centrelink valued the equity in this property at $32,000.

XBCZ’s partner undertook a Masters of Engineering and Telecommunica-tions and was classified as an inter-national student. He borrowed the upfront fee of $22,000 from his parents in Malaysia and was paying them back at $1000 per month. Centrelink records showed that the partner had worked fairly consistently since September 2009 earning on average $1000 per week.

XBCZ gave evidence that he broke his back and neck in a car accident in 1999. He suffered chronic pain, required physiotherapy twice per week and his medication cost about $50 per month. XBCZ employed two carers for a day and a half each week which cost him $300 per week and he paid $110 per month on private health insurance.

Since 29 May 2009 when XBCZ had his DSP suspended, he had been using money from his parents’ age pension for living expenses but those funds would only last another couple of months.

Discussion

In Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 53 ALD 277 French J said that the word ‘special’ before ‘reasons’ meant that the discretion was ‘not lightly to be enlivened’. However, the case does not need to be extremely unusual:

The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the’discretion out of the ordinary course. (at [18])

In the same case French J also said that s.24 requires the decision-maker to focus on one person and whether that person should not be treated as a member of a couple.

The AAT distinguished the recent case of Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143 in which Holt, a member of a couple, was paid the newstart allowance at the single rate. The difference was that XBCZ’s partner, unlike Mrs Holt, was in paid employment.

Harding and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 231 was also considered. In this case the AAT decided that the s.24 discretion should not be exercised in Harding’s favour. The AAT found that this case was ‘in some respects quite similar’ to XBCZ’s. Harding was in a same-sex relationship with a partner who had migrated from China and could not obtain Centrelink benefits. The partner found employment and earned approximately $2000.00 per fortnight which was paid into a joint account. The evidence was also that the partner in this case was trying to repay a $10,000 debt to relatives in China.

Findings

For XBCZ to be paid at the single rate there must be a special reason he should not be treated as a member of a couple. The AAT accepted that XBCZ’s financial situation was strained and that his medical expenses and the cost of carers was ‘not insubstantial’. The AAT, however, was not satisfied that XBCZ’s circumstances were un-usual, different, or out of the ordinary such that they amounted to a special reason for which he should not be treated as a member of a couple.

The AAT found that XBCZ’s partner was employed, earning on average $1000.00 per week. The earnings were paid into a joint account and shared. In addition, XBCZ had an investment property with equity of around $32,000. XBCZ would also be in a better financial position following the sale of the apartment.

XBCZ had also argued that other people had a ‘period of grace’ to disclose their relationships after 1 July 2009 and that he had not had the benefit of that period. XBCZ did not realise that his DSP would be affected by his declaration and he felt disadvantaged for having been frank with Centrelink. The DFHCSIA submitted that there had been no period of grace and the AAT accepted that submission.

Formal decision

The decision under review was affirmed.

[M. O’H.]