Almond and Secretary, Department of Family and Community Services

[2004] AATA 923

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 923

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/30

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KATHRYN MARY ALMOND

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date3 September 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security – eligibility – disability support pension (DSP) – member of a couple – marriage-like relationship - aspects of relationship - review by SSAT.

Legislation

Social Security Act 1991- ss 4, 98(2), 117, 1064(1) and 1064(A-2)

Social Security (Administration) Act 1999

Guide to Social Security Law

Authorities

Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27

Re Peck and Secretary Department of Social Security (1992) AATA No 8357

Lambe v Director-General of Social Security (1981) 57 FLR 262

Re Tang and Director-General of Social Security (1981) 3 ALN N83

Re Secretary, Department of Family and Community Services and Carpenter (2002) AATA 17)

Re Bell and Secretary, Department of Family and Community Services (2000) AATA 573

Re Sturges and Director-General of Social Security (1983) 13 SSR 132

Re SRQ and Secretary, Department of Social Security (1998) AATA 12954

Re Petty and Davis and Director-General of Social Services (1982) 4 ALN 215

Casarotto v Australian Postal Commission  (1989) 86 ALR 399

Jones and Dunkel (1959) 101 CLR 298

Re Rodger and Secretary, Department of Social Security (1991) AATA 7468

REASONS FOR DECISION

3 September 2004 Associate Professor B W Davis AM (Part-time Member)   

The Application

1.      This is an appeal by the applicant, Kathryn Almond against a decision made by a Centrelink officer on 30 October 2003, to reject Miss Almond’s claim for payment of disability support pension (DSP).

The Issues

2.      The issues in this appeal are:

(a)whether Miss Almond and Mr Mark Carrick are living in a marriage-like relationship within the meaning of the Social Security Act 1991 (“the Act”); and

(b)whether DSP is payable to Miss Almond.

Standard of Proof

3.      The standard of proof is to the reasonable satisfaction of the Tribunal, based upon the balance of probabilities.

Legislation

4.      The relevant legislation is as follows:

Social Security Act 1991 – sections 4, 98(2), 117, 1064(1) and 1064(A-2)

Social Security (Administration) Act 1999

Guide to Social Security Law

Background

5. Miss Almond submitted an application for disability support pension (DSP) on 20 October 2003. Her claim was assessed on 29 October 2003 and referred to a Complex Assessment Officer (CAO) who completed a report on 11 November 2003. As a result Centrelink made a decision to reject Miss Almond’s claim, on the grounds she was living in a marriage-like relationship and the combined income of herself and partner precluded her qualifying for DSP under s98(1) of the Act.

6.      Centrelink sent Miss Almond a letter dated 11 November 2003, informing her of the decision to reject her claim.   She sought review of the decision, but it was affirmed by the original decision-maker on 17 November 2003 and subsequently by an Authorised Review Officer (ARO) on 5 December 2003.

7.      The ARO’s reasons are briefly summarised below:

“(a)the rate of all social security payments, including DSP, is subject to income received either by the person being paid or their partner;

(b)Miss Almond lives in a marriage-like relationship with Mr Mark Carrick;

(c)Their combined income, following assessment of financial circumstances exceeds that allowed under the Act;

(d)As a member of a couple it did not matter that Miss Almond did not receive financial support from Mr Carrick.”

The ARO referred to ss8, 117, 1064 and 98 of the Act.

8.      

On 10 December 2003, Miss Almond appealed to the Social Security Appeals Tribunal (SSAT).  A tribunal hearing was conducted in Launceston on 10

February 2004, the applicant being represented by Mr John Crooks of the Launceston Community Legal Centre Inc and Miss Almond attending and speaking to the Tribunal.

9. After weighing all evidence and taking account of specified factors in s4 of the Act about “marriage-like relationships”, the SSAT concluded that Miss Almond’s commitment to living with Mr Carrick indicated an ongoing emotional commitment, not necessarily a financial convenience. However, this emotional commitment to living together provided a special quality of relationship rendering it one that satisfied the legal definition of marriage-like, under s4 of the Act i.e. DSP was not payable to Miss Almond.

10.     Miss Almond rejected this conclusion and applied for review by the Administrative Appeals Tribunal on 10 December 2003.

Facts and Contentions

11.     The respondent (DFCS) submitted a statement of facts and contentions prior to the AAT hearing, claiming that the decision to reject Miss Almond’s application for DSP was lawfully made, that evidence existed of the applicant’s marriage-like relationship with Mr Carrick and there were numerous prior case determinations which supported the DFCS approach and decision.

12. Counsel for the applicant agreed with most of the claimed facts in the case, but argued in his statement of facts and contentions that the criteria in s4(3) of the Act did not reflect Ms Almond’s current circumstances, which was not a marriage-like relationship.

The AAT Hearing

13.     The AAT hearing was conducted in Launceston on 20 August 2004, the applicant being represented by Mr John Crooks from the Launceston Community Legal Centre and the respondent by Mr Brian Sparkes.   Three witnesses were called, namely Mrs Vera Almond, mother of the applicant, Mr Mark Carrick and the applicant herself, Kathryn Almond.

14.     Mrs Vera Almond was sworn and gave evidence of visiting her daughter at St Mary’s several times each year for various periods, as well as visiting the party’s earlier in Hobart.   She described the relationship between her daughter and Mr Carrick as one of “good friends”, sleeping in separate rooms, with her daughter initially working in the shop Mr Carrick was managing and partially owned, but now incapable of such duties due to poor health.   She did not know details of any financial relationship, but was aware her daughter had been loaned money in relation to car purchases.

15.     Mr Carrick was sworn and indicated he shared a small supermarket business at St Mary’s, Tasmania with a Mr John Cox.   He viewed the relationship with Miss Almond as one of “flatmates”, but argued that due to trading hours they rarely shared meals together, they rarely socialised together and that nobody would regard them as married, since they lived largely apart.

16.     Under cross-examination he admitted an earlier sexual relationship had existed between himself and the applicant, but this had faded, perhaps because of her ill health.   Miss Almond was a director (quarter share) in the supermarket business, but had never received anything, other than wages for a period of part-time work in the store and had not made any financial contribution or commitment to the enterprise.   He admitted she did receive a financial benefit, since she did not pay rent and expenses such a rates, telephone bills and electricity charges were met by the business.   

17.     Mr Carrick was queried about describing himself as Miss Almond’s “spouse” in his tax returns and said it was merely a phrase his accountant had used.   He could not explain why he had described the relationship as “partner”, in a statement relating to Miss Almond’s claim for DSP.   He was also queried about holidays he and Miss Almond had shared together, but stated he could not remember details, but admitted there had been shared accommodation in 2001 and a recent wedding visit to Melbourne.

18.     Kathryn Almond was then sworn as witness and explained the nature of the relationship as she saw it.   She had often described Mark Carrick as her “boyfriend” but only in a joking manner; they rarely socialised together, were flatmates but she was uncertain whether any kind of relationship would last.   She was emphatic they were not living in a marriage-like relationship.

19.     Miss Almond said she had no financial involvement in the supermarket business, other than being nominally a director.   She owned most of the furniture in the house adjoining the store and was the owner of a VW Golf car and a 4WD vehicle used by Mr Carrick.   He had loaned money to her from time to time but this was repaid.   She recognised she received a benefit from him by living rent-free adjacent to the store.

20.     Under cross-examination about statements she had signed describing Mr Carrick as “spouse”, “partner” and “living de-facto”, she said the categories provided on the forms were inadequate and she had only been able to tick those which indicated she was living in the same residence as Mr Carrick.   It did not imply she was in a close relationship with him.   She admitted she had been divorced, but had not indicated this to Centrelink.

21.     The applicant emphasised that shop hours did not permit she and Mark to eat together, except on rare occasions, they did not socialise and were living virtually separate lives in the same house.    Questioned about the lack of witnesses to confirm this, she indicated there had been little time to arrange such details and in any event few in St Mary’s knew what happened in her private life.

22.     In closing submissions Mr Crooks as counsel for the applicant, emphasised that Miss Almond met all requirements for payment of DSP, apart from the issue of whether a marriage-like relationship existed or whether the applicant and Mr Carrick were merely engaged in residential sharing.   He claimed there was clear evidence of the latter.

23.     Closing submissions by Mr Sparkes for the respondent focussed more on case determinations which supported the DFCS view that a marriage-like relationship existed.    Numerous factors must be considered, but it was evidence that Miss Almond received financial benefit from the relationship which had continued for many years; it was much more than being flatmates.

Analysis

24.     The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, noting relevant statutory provisions and prior case determinations.

25. Relevant statutory provisions are to be found in s4 of the Act:

Sections 4.1 and 4.2: member of a couple.

Section 4.3 criteria for forming opinion about the relationship.

26.     Sections 4.1 and 4.2 provide as follows:

“4(1) In this Act, unless the contrary intention appears:

“member of a couple” has the meaning given by subsections (2), (3), (3A), (6) and (6A).

“partner”, in relation to a person who is a member of a couple, means the other member of the couple.

Member of a couple—general

4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b)       all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner);

(ii)       the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.”

27. Section 4(3) deals with criteria to identify the nature of the relationship.

“4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)       the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv)      the basis of any sharing of day-to-day household expenses;

(b)       the nature of the household, including:

(i) any joint responsibility for providing care or support of children; and

(ii)       the living arrangements of the people; and

(iii)      the basis on which responsibility for housework is distributed;

(c)       the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)       any sexual relationship between the people;

(e)       the nature of the people's commitment to each other, including:

(i)        the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship.

4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

28. Sections 117 and 1064(1) of the Act specify how a person’s disability pension is calculated, while sections 1064 – A2 and 98(1) and (2) deal with income of a couple:

“Members of a couple

1064-A2 Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (see points 1064-E2, 1064-F2 and 1064-G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis.

“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.

98(2) Subsection (1) does not apply to a person if the person's rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

(a)       the social security law; or

(b) Division 2 of Part VIIA of the Veterans' Entitlements Act.”

All of the above is pertinent to Miss Almond’s case.

29. The SSAT used factors identified in s4(3) of the Act to consider the relationship between Miss Almond and Mr Carrick, under five sub-headings:

·     Living, eating and sleeping arrangements.

·     Financial arrangements.

·     The parties’ beliefs about their relationship.

·     Any moral, social or legal rights between the parties.

·     Nature of the relationship and degree of permanence.

30. Taking all evidence into consideration the SSAT decided to accept there was not a sexual relationship at present, but noted an ongoing emotional commitment to living together, making a relationship of special qualify which in their view satisfied the legal definition of marriage-like under s4 of the Act. The SSAT went on to consider application of ss117, 1064, 1064-A2 and 98 of the Act to calculate DSP pension and found that the combined income of Miss Almond and Mr Carrick led to a rate of nil. In other words, DSP is not currently payable to Miss Almond.

31.     It is necessary for the current AAT Tribunal to consider all evidence anew.  In so doing the Tribunal notes that many case determinations in equivalent situations exist, thus what and how various factors must be treated is now clarified.   See, for example, Staunton-Smith v Secretary, Department of Social Security 25 ALD 27; Peck and Secretary Department of Social Security (AATA No 8357); Tang and Secretary, Department  of Social Security (1981) 3 ALN N83. The general rule is that the criteria set out in s4(3) of the Act are not exclusive or determinative, in the sense that the weight to be given to each will vary from case to case and while the Tribunal must have regard to all material facts in the case, supplementary factors may be identified in reaching a determination about the matter as a whole.

32. Turning more directly to s4(3) factors in the current case and having reviewed the evidence anew, the Tribunal finds as follows:

(a)      Financial aspects of the relationship:

Miss Almond and Mr Carrick have equal shares in the same private company, although Miss Almond claims not to receive any financial benefit from this.   She does, however, receive considerable benefit from living rent-free with some household expenses paid by the Carrick-Cox enterprise.   Mr Carrick has also claimed Miss Almonds is a dependent in relation to tax affairs.   This is not an arms-length matter, but typical of a husband-wife or de facto relationship.

(b)      Nature of the household:

The Tribunal considers the witnesses before it are credible, thus their statements that parties have separate rooms and rarely eat or socialise together is probably correct.   Nonetheless they have cohabited for nearly 13 years and share some household duties, use of vehicles and other matters.

(c)       Social aspect of the relationship:

Miss Almond and Mr Carrick have both held themselves out as partners in official documents, variously describing the relationship as “spouse”, “boyfriend” and “living de facto”.   They live together, have loaned money to each other and have holidayed together on occasions.

(d)      Sexual relationship:

The parties admit that a sexual relationship existed in the past, but the Tribunal accepts their claim this no longer exists.

(e)      Nature of commitment:

Although Miss Almond expressed doubts about the future, the relationship has endured for some 13 years, sometimes in adverse circumstances.   It is clear that the situation involves companionship and emotional support and no independent third-party evidence exists to indicate otherwise.   Indeed Miss Almond has stated that if Mr Carrick developed a relationship with someone else, she would leave him.

33. The Tribunal acknowledges that the applicant views her relationship with Mr Carrick as other than marriage-like, but absence of a sexual relationship may merely mean that two persons have a comfortable, if not passionate, relationship that is marriage-like in other respects. The Tribunal agrees there are some aspects of Miss Almond’s situation which render her independence visible, however the evidence of emotional attachment over a long period, plus financial linkages, is sufficient to persuade the Tribunal that on balance the relationship satisfies the legal definition of marriage-like under s4 of the Act.

34. It remains to consider whether in these circumstances Miss Almond qualifies for DSP. Sections 117, 1064, 1064-A2 and s98 apply. Section 1064-A2 specifies that where two people are members of a couple, they will be treated as pooling assets and income for welfare calculation purposes. Section 98 provides that DSP is not payable to a person if the rate is nil. The applicant has not challenged Centrelink’s assertion that the combined income of she and Mr Carrick was $61,301 at November 2003 and this exceeds the cutoff point of $55,029 for a couple. The DSP payable is therefore nil.

35.     The decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  20 August 2004
Date of Decision  3 September 2004
Counsel for the Applicant         Mr John Crooks
Solicitor for the Applicant          Launceston Community Legal Service
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink