ANDRIJA BILIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 806

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2829

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDRIJA BILIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date21 October 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  

(sgd) B H Pascoe

Senior Member

Social security - age pension – whether applicant is a member of a couple for social security purposes.

Social Security Act 1991

REASONS FOR DECISION

21 October 2009 Mr B H Pascoe, Senior Member   

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 9 April 2009 which affirmed a prior decision of the respondent to treat the applicant, Mr A Bilic, as a member of a couple for social security purposes.

2.      At the hearing Mr Bilic was unrepresented and gave evidence.  The respondent was represented by Mr T De Uray a legal services officer with Centrelink.

3.      Mr Bilic was born on 25 November 1941 and lodged a claim for age pension dated 17 October 2008.  On a further form dated 20 October 2008, he stated that he was permanently separated from his wife, Maria Bilic, from 15 October 2008.  Subsequently, in a Relationship Details form dated 27 November 2008 he stated that they were living at the same address but separate in all areas of lives.  The equivalent form signed by Mrs Bilic said that the date of separation was 1 August 2008 and that we are not a couple and live separate lives.  Both stated that they would not divorce for religious reasons.

4.      As a result of the information supplied, a customer services officer determined that Mr Bilic was a member of a couple and not living separated under the one roof.  This decision was affirmed by an Authorised Review Officer (ARO) on 23 January 2009.  In summary the ARO and the SSAT found that Mr and Mrs Bilic:

·continue living in the same jointly owned house;

·have separate sleeping areas but share utility areas of the house;

·share rates and utility costs;

·attend church and visit grandchildren together;

·share cleaning and some gardening responsibilities;

·each pay for their own food but at times eat together; and

·have one motor vehicle in the name of Mr Bilic but exclusively driven by Mrs Bilic.

5.      In his evidence before this Tribunal, Mr Bilic said that the separation commenced when his wife commenced work as a cleaner.  He said that he did not know the name of her employer, or where she worked and appeared vague as to her working hours.  He said that she refused to be responsible for his maintenance or expense, particularly the medical expenses incurred as a result of his multiple ailments.  He said that she insisted that the government should be responsible for such costs.  He said that they had slept in separate rooms for some seven to eight years although it is clear that a significant contributor to that state of affairs was his need to use a breathing machine during the night.

6.      While both the ARO and the SSAT appeared to accept that Mr and Mrs Bilic were regarded by relatives and friends as being separated, Mr Bilic gave evidence to this Tribunal that nobody knows we are separated – including my son and daughter as he preferred not to tell anybody including their priest.  He maintained that only he and his wife know of the separation.  It should be noted that this is at variance with other parts of his evidence having regard to the fact that his 30 year old son lives and shares the residence with them.  It is also at variance with the admitted fact that the Relationship Details forms signed by each of Mr and Mrs Bilic were both completed by the daughter given their difficulty with written English.

7.      It is clear that Mr Bilic has continued to live at the same jointly owned residence as Mrs Bilic.  They jointly own the adjoining townhouse in which their daughter and grandchildren live.  Another block of land which was jointly owned also had been sold for $380,000.00 and Mr Bilic has $90,000.00 of the proceeds remaining on fixed deposit.  They share household duties, watch television together and there appears to be no intention of living in separate residences.  The only area in which they appear not to share is in the financing of Mr Bilic’s personal expenditure.

8.      It was clear from the evidence of Mr Bilic that he is resentful of the fact that his wife is working while he is unable to work as a result of his medical conditions.  He continually stressed that she refuses to support him financially and that he agrees with her view that his history of being a hard worker who had paid his taxes should entitle him to recognition and support from the government.  It was said to be the responsibility of the government to provide the funds for his tablets and food not that of a wife who went out to work.  Mr Bilic stressed that he and his wife were not enemies.  He expressed the view that, if his wife stopped working, he would want to return to their former relationship.

9.      Having regard to all of the evidence, I am satisfied that Mr Bilic continues to be a member of a couple being legally married to Mrs Bilic and not living separately and apart from each other on a permanent or indefinite basis.  I am satisfied that there are conflicts primarily as a result of the attitudes of Mr Bilic to his wife working.  It seems clear that the decision to claim the age pension on the basis of being separated was done on the basis of seeking to avoid having the income and/or assets of Mrs Bilic taken into account in assessing his entitlement.  It is relevant that no evidence was provided by Mrs Bilic, the son who resides with them or the daughter who lives in an adjoining residence and who completed the relevant claim forms.  Mr Bilic said that his wife would only come to the hearing and give evidence if she was formally requested to do so in writing.

10.     It follows from the foregoing that the decision under review should be affirmed.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of  

Mr B H Pascoe, Senior Member

(sgd):  Leah Berardi
  Clerk

Date of Hearing  13 October 2009
Date of Decision  21 October 2009
Self Represented Applicant         Mr A Bilic
Advocate for the Respondent       Mr T De Uray, Centrelink Legal Services