Amelia Bradley and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
[2013] AATA 455
[2013] AATA 455
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0449
Re
Amelia Bradley
APPLICANT
And
Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 3 July 2013 Place Brisbane The decision under review is set aside and remitted to the respondent for reconsideration on the basis that the applicant is not a member of a couple within the meaning of s 4 of the Social Security Act 1991.
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Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – Member of a couple – Must have regard to all the circumstances of the relationship – Decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Social Security Act 1991 (Cth) s 4
REASONS FOR DECISION
Senior Member Bernard J McCabe
An individual who is a member of a couple is required to provide details about his or her partner’s earnings when the individual applies for social security benefits like the Youth Allowance. The partner’s assets and income are taken into account when determining the individual’s entitlement. If the individual is eligible to receive a payment, the individual will be paid at a lower rate than a single person because the legislation assumes members of a couple can pool their resources and live more cheaply than individuals.
It is therefore important to work out whether an applicant in a particular case is a member of a couple for the purposes of the social security law. The question may be difficult to resolve because human relationships are amazingly diverse. One must approach the question with an open mind in light of the reality that people of different ages from different backgrounds, cultures, religious traditions, sexual orientations and circumstances might conceive and conduct their relationships in quite different ways. Persons whose life experience is confined to watching re-runs of the Brady Bunch would be perplexed by the task.
The task is made somewhat clearer if one is mindful of the policy objective that is evident on the face of the legislation. The social security laws are designed to help people get access to the welfare benefits they need – but no more than they need.
The starting point of the legal analysis is the definition of member of a couple in s 4 of the Social Security Act 1991. Section 4(2)(b) deals with relationships between people who are not married or who do not have a registered relationship under state law. That sub-section imposes a number of conditions. Only one of them is in issue here. Section 4(2)(b)(iii) requires the decision-maker to consider whether “the relationship between the person and the partner is… a de facto relationship”. In the course of doing so, the decision-maker must have regard to s 4(3). That sub-section refers to a number of features commonly seen in relationships between members of a couple. The decision-maker must look to all of these matters and make an assessment as to how the particular relationship should be characterised in all the circumstances. It is an objective test, in the sense that the opinions of the individuals involved in the relationship are not conclusive. But it is not a box-ticking exercise that obviates the need for judgment on the part of the decision-maker. Section 4(3) makes it clear the decision-maker must have regard to all the circumstances of the relationship in coming to his or her view, and not just the indicia referred to in the sub-section.
BACKGROUND TO THE DISPUTE
The applicant is a young woman in the process of completing her final year at university. She does some part-time work but the nature of her studies means there are periods when she cannot work. Her parents are not in a position to support her. Youth Allowance would be of great assistance in those periods when she cannot work.
The applicant became friendly with another woman who was a member of the same sporting team in 2006. I will refer to that individual as Ms Green. The applicant and Ms Green became good friends in due course, and commenced a sexual relationship in 2010. The applicant was living in a share house with other people at the time the relationship commenced. Ms Green moved away from Brisbane for several months during that year while she travelled overseas, but when she returned to Brisbane the applicant explained it was convenient for Ms Green to move into the house Ms Bradley shared with other people. The applicant said the introduction of Ms Green into her household was not intended to signal a deepening of their relationship. She said it was simply a matter of convenience: Ms Green needed accommodation, and a vacancy had opened up in the applicant’s share house. After several months, the share house dissolved and the applicant, Ms Green and another friend moved into a three bedroom house together. I understand the third member of the household was replaced in due course by another house-mate, but the essential characteristics of the household remain the same.
The applicant has shared a bed with Ms Green for most of the time they have been living together. Ms Bradley explained she has her own room in the house she lives in now, but she only sleeps in that room occasionally. She said she anticipates remaining in this situation until the end of the year when she completes her studies. After that, she expects to get a job that will see her posted to a regional centre, away from Brisbane. If all goes according to plan, she said she will cease co-habiting with Ms Green and they will go their separate ways as friends when the lease concludes.
The applicant applied for Youth Allowance on 22 January 2012. She recalled being asked by Centrelink staff whether she had a girlfriend with whom she was living. She answered “yes”, as that was literally true. The respondent subsequently refused her claim for Youth Allowance because it insisted Ms Green’s income must be taken into account, and that income was (and is) such that the applicant cannot qualify for payments.
The applicant said the question she was asked about her relationship does not do justice to her situation. The applicant does not deny she has a relationship with Ms Green, and that she often refers to Ms Green as her girlfriend. She also acknowledges there is a sexual component to the relationship and a degree of intimacy that comes from sharing a bed with someone on a regular basis. But she insisted she should not be regarded as a member of a couple if one has regard to all the circumstances, including the matters referred to in s 4(3). She denied Ms Green is her partner in the sense intended by the legislation.
I must consider the position at the time of the decision to reject the claim, but I must also be conscious of whether that situation has changed since. As it happens, I am satisfied the circumstances have not changed between the time of the application in January 2012 and the present day.
I am satisfied the applicant is right in her contentions. She is not a member of a couple. I explain my reasons for that conclusion below.
THE CIRCUMSTANCES OF THE RELATIONSHIP
The financial aspects of the relationship
The applicant and Ms Green do not own any assets together. They do not owe each other money, nor do they have joint credit cards or loans. They do have a joint bank account, but the applicant explained that account is used to pay common household bills. She pointed out Ms Green and the other house-mate also hold a joint account which is used to pay other common household expenses. She said all three members of the household contributed money equally into both accounts to pay the bills. Ms Bradley explained the accounts were really like a common jar of money into which they all made a contribution and which was used to pay joint expenses.
Ms Green and the applicant do not pool or share their financial resources. Ms Green does not provide any financial support to the applicant. When they furnished their accommodation, they each bought items so that the housemates could quickly go their own way if and when the accommodation arrangements came to an end.
The applicant noted Ms Green was contemplating purchasing a home in the near future. Ms Bradley expects Ms Green would move into that property when it was acquired. She said there is no suggestion she would take an interest in the property or contribute to the purchase price. The applicant has no part in the venture and plainly does not regard it as any of her business.
I am satisfied the financial aspects of the relationship are entirely consistent with the applicant and Ms Green cohabiting as flat mates. Those aspects of the relationship do not suggest they are members of a couple. Indeed, the applicant’s evidence suggests she is determinedly independent of Ms Green in a financial sense.
The nature of the household
There are no children in the household. Ms Green has a cat, but the applicant made it clear it was Ms Green’s responsibility and she did not have any responsibilities with respect to the animal.
Household chores are shared out amongst members of the household. There is a roster. The applicant occasionally shopped on her own, or with Ms Green, or with her other housemate, or with both of them: she indicated there was no particular pattern. While they bought a number of household items like milk and cleaning products collectively, they shared the cost equally. They tended to buy other items individually.
All three housemates dined together once a week. During the rest of the week, dining arrangements were more casual. The applicant agreed she dined with Ms Green more often than she dined with her other house mate but that was mainly because of the hours each flatmate was keeping.
Ms Bradley said household chores were shared out amongst the housemates according to a roster. The applicant said she generally did her own washing but often did some of Ms Green’s washing as well. (It seems they occasionally borrowed clothes from each other, although they maintained separate wardrobes.) She added she occasionally took her other housemate’s clothes off the line, and he did the same for her.
The male housemate has his own room and bathroom. I have already noted the applicant has her own room, but it usually functions as her study rather than a bedroom. She stays in Ms Green’s room most nights and they share a bathroom.
The sleeping arrangements are certainly consistent with the applicant and Ms Green being members of a couple. The other features of the household are more suggestive of three individuals who are housemates.
Social aspects of the relationship
The applicant said many of her friends know of her relationship with Ms Green. They have a number of common friends and socialise together with them. But they also have their own friends and maintain a separate social life. The applicant said at least some of her friends are not aware of Ms Green’s existence. She said friends would probably describe Ms Green as her “girlfriend” but her parents have mostly described Ms Green as the applicant’s “friend”. Ms Bradley surmised that was because her parents did not wish to characterise the relationship one way or another. She added she had a good relationship with her parents and she was completely open with her mother in particular. The applicant noted her parents did not treat Ms Green with the same familiarity or intimacy as they treated the partner of her brother. She said that was fair enough as her relationship with Ms Green was not as serious or committed as the relationship between her brother and his partner. The applicant said her family did not really regard Ms Green as a member of the applicant’s family, although Ms Green was friendly with the applicant’s mother and an occasional visitor to the applicant’s family home.
Ms Bradley agreed she told Centrelink she was in a de facto relationship but explained that was because the form did not really offer her a more nuanced alternative description.
The applicant said she had travelled overseas with Ms Green on several occasions, but she had also travelled on her own and separately with other friends. She agreed they worked together at a summer camp for young people in 2011, but I do not think much turns on that.
An examination of the social aspects of the relationship offers an equivocal picture. It seems the applicant and Ms Green are regarded by many as “girlfriends”, but the applicant says there is an important distinction between being someone’s girlfriend and being regarded as that person’s partner. I accept that expressions like “girlfriend” and “partner” might have subtly different meanings for different social or cultural groups. I accept that even in general usage, the two terms are not necessarily synonymous and describing someone as a “girlfriend” might suggest a less committed relationship than that which might exist between “partners”. In all the circumstances, I think the way the applicant and Ms Green hold themselves out socially is consistent with them being members of a couple, but does not exclude the possibility of a less serious or committed relationship.
Sexual relationship
The applicant acknowledged she and Ms Green have an ongoing sexual relationship. She said she sees no reason why that would not continue for as long as it remained convenient. Ms Bradley says the relationship has been exclusive for some time in the sense she has not had a sexual relationship with anyone else – but she says that is more a consequence of circumstances than a conscious choice that would indicate a commitment to exclusivity. She said she did not think there would be any obstacle to her pursing a relationship with anyone else if someone appropriate came along. The applicant said she confronted that possibility recently when she became friendly with another person. She said there was no expectation that she would desist from such a relationship if it suited her and the other person.
The enduring and regular nature of the sexual relationship is consistent with the applicant and Ms Green being members of a couple, but – once again – it does not exclude the existence of a less committed relationship.
Nature of commitment
One can be a member of a couple without the intention of staying together for life. The applicant said she does not expect the relationship to end or change while it remains convenient for both her and Ms Green. The relationship might cease to be convenient because of work commitments (the applicant says she is hopeful of securing employment next year that will incidentally require her to move out of Brisbane, and there is no suggestion either party to the relationship have been factoring in their relationship to career decisions). The applicant also indicated she was open to meeting someone else, or Ms Green might move out because she acquires a house of her own. But for now, the relationship persists – and it has persisted since 2010.
Ms Bradley made it clear she does not regard Ms Green as her life partner. She gave several examples to illustrate her attitude. She said she was listed as an emergency contact for Ms Green with Ms Green’s general practitioner, but that was only because Ms Green’s mother did not drive. The applicant listed her brother as her emergency contact. She said she and Ms Green would not ordinarily discuss medical issues (although she said she would offer support and encouragement in the way that any good friend would). Ms Green was not nominated as the applicant’s beneficiary for superannuation purposes, nor is Ms Green mentioned in the applicant’s will.
Ms Bradley stressed the relationship is essentially one of convenience. She does not deny she has a good relationship with Ms Green, but the applicant insists the level of commitment falls short of what one would expect between members of a couple. Mr Guthrie, for the respondent, suggested in submissions the applicant might have an idealised view of partnered life, and might not appreciate that her relationship exhibited at least as much commitment as was apparent in many couples. I agree the applicant’s view of the relationship is not determinative, but it is relevant (see s 4(3)(e)(iv)). I note in particular the applicant’s matter-of-fact description of the nature of the relationship that emphasised the convenience aspect and the absence of any serious commitment.
I accept the relationship has persisted successfully for some time, and that it is unlikely to end in the short term. I accept there is also a degree of intimacy over time which is more than one would expect to see in a relationship that might be described as “friends with benefits”. But I do not see evidence of the sort of commitment and support I would expect to see between members of a couple.
IS THE APPLICANT A MEMBER OF A COUPLE IN ALL THE CIRCUMSTANCES?
When I have regard to the circumstances of the relationship as a whole, I am satisfied the applicant is not a member of a couple. I acknowledge the ongoing intimate relationship is relatively unusual in individuals who are not members of a couple, but that aspect of the relationship must be seen in the wider context. Most other aspects of the relationship – and the absence of any real sense of commitment in particular – suggest the applicant is not the partner of Ms Green.
CONCLUSION
The decision under review must be set aside. The matter is remitted to the respondent for reconsideration on the basis that the applicant is not a member of a couple within the meaning of s 4 of the Social Security Act 1991.
There is one final matter. The applicant asked that her friend’s name be supressed because the friend is a school-teacher and she might experience difficulty in her work if mischievous students were able to access intimate details of her personal life. Moreover, while the friend teaches in a state school, the details of her private life might be an obstacle to her obtaining employment in some private schools if she were minded to seek that option. I think the burden of publicity might be especially onerous for the applicant’s friend.
While the Tribunal does its work as far as possible in public, the public identification of the applicant’s companion in this case might serve to discourage others in a similar position to the applicant from accessing the Tribunal’s services. It is a fact of life that some individuals involved in a same-sex relationship might be fearful of disclosing the fact of that relationship to anyone else, let alone to the world at large. It would be a concern if the Tribunal’s commitment to open justice were to become an obstacle to accessing that justice.
I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .
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Associate
Dated 3 July 2013
Date of hearing 28 June 2013 Applicant In person Solicitor for the Respondent Mr J Guthrie
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