Regarding a Member of a Couple as Not a Member of a Couple

Members of a couple may be considered to not be members of a couple

Under section 5R(3) VEA, the Repatriation Commission has discretion to determine in writing that, for any special reason, members of a couple are not to be regarded as members of a couple for VEA purposes. This discretion should be exercised only where full consideration of all the circumstances relevant to the individual case would make it unjust or unreasonable not to do so. Generally the discretionary power should be used where a veteran's partner is unable to or is prohibited from working,  is not eligible for a pension or payment from DVA or a pension, payment, benefit or allowance from Centrelink, and there is financial difficulty as a result of the couple's circumstances.    

Member of a couple/Partnered

A person is a member of a couple under the VEA if they are living with another person as their partner, where both people are over the age of consent (applicable to the relevant state or territory), are living together on a permanent or indefinite basis, are not in a prohibited relationship (subsection 5E(6)), and are either:

• legally married, or
• in a registered relationship (whether of the same sex or a different sex), or
• in a de facto relationship (whether of the same sex or a different sex).

The term "partnered" is also commonly used.

Note: When assessing a person's situation, it may be appropriate to consider whether the person's circumstances are such that they should in fact be regarded as living 'separately and apart' from their former partner. If a person is living separately and apart from their former partner on a permanent or indefinite basis they DO NOT meet the definition of a member of a couple and should be determined as single, without recourse to section 5R(3)    

Circumstances warranting consideration under section 5R(3)

The use of section 5R(3) VEA is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted.  It should be considered in circumstances where the couple is unable to take advantage of the benefits and efficiencies which normally arise from being able to pool and share their combined resources, this being one of the reasons for a lower partnered rate of pension or payment. This will include those circumstances where the couple are prevented from living together, or where financial circumstances or lack of access to other means of support mean that the expected benefits from being able to share resources do not arise.

Factors to consider

The case being considered should be compared to a couple in similar circumstances but for whom the reasons to apply section 5R(3) do not exist. There must be some degree to which circumstances are outside the couple's or individual's control and cannot be changed.

Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:

• 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?

Details on how to interpret and answer these 3 questions are below.

Is there a special reason to be considered in this couple's circumstances?

This discretion can ONLY be exercised 'for a special reason in the particular case'. In general, the circumstances must be unusual, uncommon, abnormal or exceptional. It is the context which generally determines whether the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

Decisions from the ART and Federal Court indicate that ineligibility for income support, of itself, is very unlikely to constitute 'special reason' for the exercise of section 5R(3).  Decisions considering a person's financial difficulty is not, of itself, sufficient to constitute 'special reason'.

Is there a lack of being able to pool resources for the couple as a result of the circumstances?

Members of a couple in ordinary circumstances will pool their resources and share their expenses, making it cheaper for them to live than if they were 2 single people. A significant body of case law has established that the inability to pool resources for their mutual benefit is a special reason to exercise the discretion in section 5R(3).

Example: One partner is lost at sea and due to the body not being found, the Coroner will not declare the partner dead for 2 years. The surviving partner cannot pool resources and as a consequence may be eligible for the application of section 5R(3).

Generally, section 5R(3) does not apply if the couple are living together overseas. The decision maker in assessing couples living together overseas must be satisfied that the information provided is a special situation to warrant the application of section 5R(3). It is important to consider whether the couple can benefit from pooling of resources.

In the case of Cocks v Centrelink, the Federal Court found that Mr Cocks would not benefit from a pooling of resources whilst he was in Australia and his wife was overseas and that Mr Cocks would likewise not benefit from a pooling of resources while residing with his wife overseas as she has nothing to contribute to the pool. If possible, the decision maker should verify the circumstances stated. The social security system that applies to the country of residence needs to be also taken into account when assessing couples living overseas.

Is there financial difficulty as a result of the couple's circumstances?

Various tribunals and courts described financial difficulty for this purpose as not being able to provide for accommodation and the basic necessities of life or to be without adequate means of support.

In deciding whether or not to apply the discretion in section 5R(3), the overall financial situation should be considered. Income and readily available funds from assets should be compared to necessary expenditure.

Income, and readily available funds, from all sources should be taken into account. This includes, but is not limited to, income from employment, income support payments, investments, insurance and compensation pay outs, trusts, accessible superannuation, liquid assets, etc.  Any in-kind support should be considered.

Necessary expenditure could include, for example, electricity, gas, telephone, rates, rent, groceries, transport and loan repayments.

Example: One member of a couple is in receipt of an income support payment at the partnered rate and the other member of the couple has no financial resources to contribute to the relationship and is not in receipt of an income support payment. The other member of the couple may not be in receipt of an income support payment due to being not residentially qualified or being subject to a Newly Arrived Residents Waiting Period (NARWP).  As a consequence the couple are living on a partnered payment that is designed to support only half of a couple, with the result that they are in financial difficulty.  The ART has indicated that only being ineligible for income support is very unlikely to constitute a special reason for the purposes of the exercise of section 5R(3), but being in financial difficulty as a result of having a partner who is not residentially qualified for an income support payment or who is subject to the NARWP may constitute a special reason.

There may be circumstances in which factors other than income need to be taken into account in considering whether to apply the discretion. For instance, in some cases a couple may be worse off due to special expenses which have to be taken into account in establishing whether to apply the discretion.

Examples of unusual situations where section 5R(3) may apply

The following situations are examples where it may be appropriate to consider that a person is not a member of a couple:

• the partner of a veteran is overseas awaiting the correct visa or medical tests to come to Australia and therefore cannot claim a pension or payment,
• the partner of a veteran is in Australia but does not have the correct visa to be allowed to work or to be eligible for a DVA pension or payment, and is subject to the two year waiting period before being eligible for a pension, allowance or benefit at Centrelink,
• the veteran is not a [glossary:T&PI:Def Special Rate (T&PI)] veteran and the partner is under the partner service pension age limit with no dependent children and therefore is unable to receive partner service pension from DVA and is not eligible to receive any pension, allowance or benefit from Centrelink,
• the partner travels overseas on a permanent basis or for a prolonged length of time, with the result that the partner remaining in Australia is genuinely deprived of access to the travelling partner's income, after having taken reasonable steps to gain access,
• there are legal or other restrictions which limit access to a partner's income, including situations where access to a partner's income requires the approval of a person with power of attorney, or
• a partner is prevented from working and has no other source of income.

Note 1: Where a veteran has been determined to be living separately and apart from his/her partner on a permanent or indefinite basis (including separation under the same roof), they do not satisfy the definition of member of a couple. In these circumstances the higher non-partnered rate is already payable and a determination under section 5R(3) VEA is not required.    

Note 2: The above circumstances are not exhaustive, and there may be other unusual or special reasons which may warrant the discretion in section 5R(3) VEA being applied. Delegates must consider all cases on their individual merits, having regard to the ability of members of a couple to share their resources, and whether it would be unjust or unreasonable not to apply the discretion.

Examples where a partner is prevented from working and has no other source of income

Situations where a spouse may be unable to make any contribution to a couple's finances include where a veteran:

• enters into a genuine marriage outside Australia and the spouse cannot apply for a partner service pension and cannot gain entry to Australia, or
• marries a non-resident spouse who cannot receive either partner service pension or any Centrelink benefit, and cannot obtain work within Australia.

Calculation of rate of pension for not a member of a couple

The rate of service pension, veteran payment and income support supplement for a person who is not a member of a couple is based on the not a member of a couple items in the tables in the Rate Calculator in Schedule 6 in the VEA.

Calculation of rate of pension or payment after section 5R(3) determination

When calculating the rate of pension or payment after a determination under section 5R(3) VEA is made, the person must be treated as not a member of a couple for all the purposes of the VEA. The pension or payment assessment is therefore based on the lower income and assets limits that apply to a non-partnered person.

Note: The person is paid the single rate of payment and only their individual income and assets are included in the assessment of the rate of their payment. The income and assets of the person's partner are not to be included in the person's assessment. If the inability to share asset value with a partner results in a lower pension or payment entitlement than would otherwise be payable (partnered rate), the discretion in section 5R(3) VEA should not be exercised.

Reviews

It is important to ensure that cases where the discretion under section 5R(3) is applied are kept under close review especially if there is a high risk of incorrect payments. A manual review is to be conducted every 13 weeks, earlier if warranted. However, if there is a very low risk of incorrect payment a review may only need to be conducted annually. The purpose of the review is to identify whether it is appropriate to continue to apply section 5R(3), or whether the person's circumstances have changed so that it is no longer appropriate to apply the discretion.

The review should include evaluating the circumstances at the time of the original decision to apply section 5R(3) with the current circumstances:

• Have the circumstances changed?
• Are the circumstances still beyond the control of the recipient?
• Have reasonable steps been taken to change the circumstances within the recipients control?

The review should consider whether reasonable steps have been taken to access funds from assets and/or income previously not readily accessible.

Whenever a claimant/recipient leaves Australia to visit their partner overseas, a review should be conducted to determine if section 5R(3) can still be applied whilst they are away.

Where a determination has been made under 5R(3), the recipient must be advised of their obligations to notify of any changes to the circumstances of both members of the couple not just the person in the assessment.