Auston and Chubb Security Services Limited
[2013] AATA 148
•21 March 2013
[2013] AATA 148
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1533
Re
Janet Attiwill
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 19 March 2013 Place Adelaide The Tribunal:
(a)sets aside the decision under review and decides in substitution for that decision that Ms Attiwill is not a member of a couple for the purposes of the Social Security Act 1991 and has not been a member of a couple since 14 November 2010; and
(b)remits the matter to the respondent for assessment of Ms Attiwill's entitlement to newstart allowance accordingly, on the basis that the date of effect of this decision is 14 February 2012.
..........................[Sgd]..............................................
Senior Member K Bean
CATCHWORDS
SOCIAL SECURITY – Newstart allowance - Whether applicant a member of a couple - Acknowledged previous relationship - Whether relationship has changed sufficiently that no longer a de facto relationship - Some relevant financial and household arrangements dictated by financial hardship and/or necessity rather than choice - Applicant no longer a member of a couple - Consideration of date of effect of decision given late application to SSAT - Decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth), s 4
Social Security (Administration) Act 1999 (Cth), s 152
Administrative Appeals Tribunal Act 1975 (Cth), s 43
CASES
Secretary, Department of Employment and Workplace Relations and Mitchell (2007) 92 ALD 201
REASONS FOR DECISION
Senior Member K Bean
19 March 2013
INTRODUCTION
The applicant, Ms Attiwill, has lived with Ms Patricia Hermann for approximately fifteen years. Initially, Ms Attiwill was effectively Ms Hermann’s tenant, as Ms Hermann owned the house they both lived in and Ms Attiwill shared the property as her ‘house mate’. However a relationship subsequently developed between them and during the course of that relationship, the title to the property was altered so that they each owned the property as joint tenants.
In November 2010, the relationship between Ms Attiwill and Ms Hermann broke down, and since that time they have not regarded themselves as a couple. Nevertheless, they have continued to share the house they both own, albeit that they have adjusted their living arrangements to some extent, including by changing their sleeping arrangements.
However on 20 April 2011, an employee of Centrelink rejected Ms Attiwill’s claim to be paid newstart allowance (NA) at the single rate, determining that she was a member of a couple with Ms Hermann. That decision was affirmed by an Authorised Review Officer (ARO) and following an application by Ms Attiwill to the Social Security Appeals Tribunal (SSAT), the SSAT affirmed that decision, having also concluded that during the relevant period, Ms Attiwill was a member of a couple with Ms Hermann.
On 19 April 2012, Ms Attiwill applied to this Tribunal for review of the decision of the SSAT, giving rise to these proceedings.
LEGISLATION AND ISSUES
The question of whether a person is a member of a couple for social security purposes is governed by s 4 of the Social Security Act 1991 (the Act), which relevantly provides as follows:
“Section 4 – Family relationships definitions - couples
…
(2)Member of a couple - general
Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(b) all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different 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 de facto 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.
(3)Member of a couple - criteria for forming opinion about relationship
In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, 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 or a de facto relationship.
(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”
It follows that in broad terms, the main issue before me is whether, from 20 April 2011 when she applied to be paid NA at the single rate, Ms Attiwill has been in a de facto relationship with Ms Hermann and has therefore been a member of a couple pursuant to the above provisions.
DURING THE RELEVANT PERIOD, WAS MS ATTIWILL IN A DE FACTO RELATIONSHIP WITH MS HERMANN?
Clearly, in addressing this question, I am required to have regard to the criteria set out in the Act, which I propose to address in turn before making an overall assessment of the relevant evidence and reaching a conclusion. Before discussing the evidence I should indicate that I found both Ms Attiwill and Ms Hermann to be entirely honest in their evidence and I have no hesitation in accepting the evidence of either of them.
The financial aspects of the relationship
On the evidence before me, many aspects of the financial arrangements between Ms Attiwill and Ms Hermann are consistent with them having continued to be members of a de facto couple after they claim to have separated. For example, they continue to own the house they share as joint tenants with a shared mortgage, and the evidence indicated a high degree of financial interdependence between them. They both acknowledged that currently bills were paid largely on the basis of who was able to afford them and, although Ms Hermann had paid a larger proportion of the bills in the past, currently Ms Attiwill was paying more towards the bills and mortgage. This was partly due to the fact that Ms Hermann was no longer receiving workers’ compensation payments as she had in the past. Ms Attiwill and Ms Hermann also each acknowledged that they were prepared to lend each other small amounts of money. Further, whilst Ms Hermann said in her evidence that Ms Attiwill was not a beneficiary in her will or the beneficiary of her superannuation, Ms Attiwill acknowledged that Ms Hermann was the beneficiary of her superannuation if she died, and was also the beneficiary in her will.
In considering the extent to which these arrangements reflect a de facto relationship however, I must also have regard to the reasons put forward by Ms Attiwill and Ms Hermann as to why their affairs are organised in the way in which they are.
As to their financial arrangements, Ms Attiwill and Ms Hermann gave consistent evidence to the following effect. They each explained that the property was placed in joint names whilst they were still in a relationship, but largely for financial rather than emotional reasons. They explained that at the time this was done they were both in debt, and they made a joint decision that the best way for them to address their situation was to consolidate their debts with the mortgage and transfer the house and mortgage into both names, so that they would each be responsible for paying the mortgage. They said that even though their relationship had since ended, the house remained in joint names largely because they were both in a dire financial situation, neither could afford to buy the other out, and they each needed a place to live.
As for payment of the mortgage and household expenses, my understanding of their evidence was that, essentially, as they were in a very difficult financial situation which was steadily getting worse, any income coming in to the household was being used to pay the bills, as a matter of necessity. For example, Ms Attiwill explained that if she did not pay the electricity bill then the electricity would be turned off. Similarly if she did not contribute as much as she could possibly pay toward the mortgage, the bank was likely to foreclose. In other words, their current financial arrangements were largely dictated by necessity due to their extremely perilous financial situation.
With regard to her will and superannuation, Ms Attiwill also explained that she had left Ms Hermann as her beneficiary not because the two of them were in a relationship, but because she was estranged from her family and did not wish her family to benefit from her death. She also explained that she did not wish Ms Hermann to be forced to sell the house if she died and she thought the risk of that was reduced by Ms Hermann being the beneficiary in her will. She said she did not have any other friends or family whom she wished to provide for in the event of her death.
The nature of the household
As with their financial arrangements, there are also a number of aspects of Ms Attiwill and Ms Hermann’s household arrangements which would appear to suggest they continue to be members of a de facto couple.
Each of them acknowledged that they share a bedroom, although they each have their own single bed and their evidence was that, since Ms Hermann generally does not go to bed before 6am and sleeps in the day time, they sleep at different times. They also each explained that they both had very serious mental health issues (which was supported with medical evidence) which had resulted in them each feeling unmotivated to attend to the cleanliness and tidiness of their house. In addition, a number of years ago they had come into possession of a significant amount of extra furniture which they received from Ms Attiwill’s family. The combined result of these factors was that their house had become extremely cluttered and although it was a three bedroom house, there was only one ‘useable’ bedroom. They each acknowledged that this was an unusual situation which caused them embarrassment, but they have consistently put forward this explanation as to why they continue to sleep in one room, albeit in single beds, and I accept their evidence in this regard. For completeness, I should also make mention of the fact that the evidence of each of them was to the effect that when they were in a relationship they shared a double bed, but this was sold when the relationship ended, and replaced with the two single beds.
As to other aspects of their living arrangements, both Ms Attiwill and Ms Hermann said they do very little housework, although they acknowledged that they do tend to share those tasks which are done. For example either of them may do the washing up depending on who feels “up to it”. With regard to the laundry, as Ms Hermann has physical limitations, they each acknowledged that Ms Attiwill would take responsibility for washing the heavier items whilst Ms Hermann would wash other things. On occasion, Ms Hermann would take things to the laundromat and Ms Attiwill would bring them back if the washing was too heavy for Ms Hermann to bring home when it was wet. Whilst they do not shop together, they said they did have an understanding that Ms Hermann would purchase lighter items whilst Ms Attiwill would purchase things which were heavier and therefore more difficult for Ms Hermann to carry home. They each said they do very little cooking and mainly lived on take-away meals, which they co-operated in purchasing. For example, if Ms Attiwill was going out to purchase a take-away meal, she would ask Ms Hermann if she wanted something and, if she did, she would purchase that item for her.
In light of this evidence, I consider that Ms Hermann and Ms Attiwill display a high degree of co-operation in the way in which their household chores and tasks are carried out, which is consistent with them being in a de facto relationship. The fact that they share a bedroom is of course also a factor which, taken at face value, would tend to suggest they were members of a couple. However, I accept their evidence that they have been sharing a bedroom in the relevant period out of necessity as they see it, due to the inability of either of them to clear out one of the other bedrooms. Although this is a highly unusual and surprising situation, I accept their evidence that their mental health issues and general life situation have led to a degree of inertia and very low levels of energy and motivation, which have made it difficult for them to summon the resources to clear out one of the other bedrooms, even though they both find their current sleeping arrangements awkward.
The social aspects of the relationship
I accept the consistent evidence of Ms Attiwill and Ms Hermann that they do not regard themselves as in any way being members of a couple. They were both adamant that their relationship ended in November 2010 and in separate forms lodged with Centrelink in April 2011, they each indicated that they separated on 14 November 2010.[1]
[1] T6/40, T7/51.
Ms Attiwill and Ms Hermann were also both adamant that they had not resumed being a couple since they separated and that things had been very different between them since that time. I also accept their evidence that neither of them socialise very much, but although they did socialise together when they were a couple, they no longer do so.
I further accept the evidence given by Ms Hermann’s friend, Robyn Thompson, which was provided in the form of a written statement.[2] In her statement, Ms Thompson said that she had known Ms Hermann for 15 years and had also known Ms Attiwill since she moved into Ms Hermann’s home. She said so far as she was aware, whilst they had been in a relationship, the relationship between them had ended approximately three years ago.
[2] Exhibit 3.
Accordingly I consider that the social aspects of the relationship point away from Ms Attiwill and Ms Hermann being members of a de facto couple.
Any sexual relationship
I also accept the evidence of each of them that they have had no sexual relationship since they separated in November 2010.
The nature of the commitment
As I have referred to above, Ms Attiwill and Ms Hermann have lived together for approximately 15 years and they have acknowledged that they were members of a couple for the bulk of that time, although they say they ceased being a couple in November 2010.
Ms Attiwill also conceded that she derived comfort and support from Ms Hermann following the death of her mother, even though this occurred after their relationship as a couple had ended. Ms Attiwill and Ms Hermann also acknowledged that they would each attempt to help the other in a crisis and their current relationship appeared to involve some degree of companionship in that they would sometimes watch television together during the evenings.
Overall however, the evidence of each of them was to the effect that they no longer had an emotionally intimate relationship. Indeed, as a result of their mental health difficulties, my impression of the evidence was that neither felt able to emotionally support the other and that their relationship was generally quite strained. Some of their living arrangements also appeared to be designed to avoid spending too much time in one another’s company and, consistently with other aspects of their evidence, they each gave the impression of to some extent being forced into each other’s company out of necessity rather than choice. As I have mentioned above, they were both adamant that they were not in a couple-like or de facto relationship.
As to whether their relationship was likely to continue indefinitely, I gained the impression from their evidence that this depended largely on their financial circumstances. The evidence of each of them was to the effect that if they could afford to do so, they would probably live separately and, if they did, they would probably see less of one another than they do currently.
Overall assessment
As will be apparent from my discussion of the evidence above, I have found Ms Attiwill and Ms Hermann’s situation a particularly difficult one to assess. As I have already observed, at face value, there are a number of aspects of their relationship which would appear to suggest they continue to be members of a couple. However it is also apparent that they are currently in an extremely precarious financial position which leaves them with few choices. They each acknowledged that they were in arrears with the mortgage on their house and therefore at risk of losing the house they jointly owned. However they explained that neither of them had the financial or social resources to seek out alternative accommodation, or otherwise extricate themselves from their current predicament.
The picture which emerged from the evidence was in effect one of the two of them being forced to co-habit due to financial necessity and the absence of any alternative for either of them. Equally, whilst they are currently sharing financial resources, again this was taking place largely out of necessity as, if the bills were not paid they would both suffer the consequences of this. Similarly, although they were sharing a bedroom, again, the evidence established that this was out of necessity due to the absence of available space in the house. This in turn was due to the poor state of mental health of each of them, in combination with having come into possession of excess furniture which they had not yet had the wherewithal to sell or otherwise dispose of.
On close examination of the evidence, it is accordingly apparent that some of the aspects of their relationship which point most strongly toward them being members of a couple are driven more by necessity than choice. Having said that, I am satisfied that there is a degree of choice involved in their allocation of household tasks and the purchasing of meals, however I note that at least some of the household tasks appear to be arranged on a reciprocal basis having regard to Ms Hermann’s physical limitations and therefore in my view do not point strongly toward them being members of a couple. The fact that Ms Hermann is named as beneficiary in Ms Attiwill’s will and superannuation policies also tends to point toward them being members of a couple, however again there are clear practical reasons for this, including Ms Attiwill’s preference that her family not benefit from her death, and the absence of others in her life whom she wishes to provide for.
Clearly, if the relevant question was whether there is a high degree of financial interdependence between Ms Hermann and Ms Attiwill from which they both benefit, then the answer to that question would be yes. However the question asked by the Act is whether they are in a de facto relationship, having regard to the indicia commonly applied by the community in determining whether two people are in a couple-like or marriage-like relationship.
The question of whether, during the relevant period, Ms Attiwill and Ms Hermann were in such a relationship, is a finely balanced one. On balance however, having regard to the reasons behind their financial and household arrangements, I have concluded that Ms Attiwill and Ms Hermann have not been in a de facto relationship since 14 November 2010, when they consider they ceased being members of a couple, and therefore they were not in a de facto relationship on 20 April 2011 when Ms Attiwill applied for NA at the single rate.
In reaching that conclusion I have had regard to the fact that their sleeping and financial arrangements in particular are driven by necessity rather than choice. Whilst their household arrangements reflect a degree of co-operation which would be consistent with a couple-like relationship, I consider that to some extent these are attributable to Ms Hermann’s physical limitations and that there is a degree of reciprocity in their arrangements overall which would also be consistent with a relationship of friends or ‘house mates’ rather than members of a de facto couple. Whilst Ms Attiwill has made provision in her will and superannuation policies for Ms Hermann, Ms Hermann has not made the same provision for Ms Attiwill and, given the explanation put forward by Ms Attiwill, I do not consider that this militates so strongly in favour of them being members of a couple as to outweigh the other considerations outlined above.
For completeness, I note that as I have concluded that Ms Attiwill and Ms Hermann were not in a de facto relationship during the relevant period, it is unnecessary for me to address the question of whether they have been living “separately and apart” on a “permanent or indefinite basis” pursuant to s 4(3A) of the Act.
I should also make mention of the fact that, although it was not explored at the hearing, an issue arises on the material as to when Ms Attiwill first asked to be paid NA at the single rate, and whether this may have been before 20 April 2011. I note there is some evidence that she reported her separation from Ms Hermann as early as December 2010.[3] However in light of my conclusion below as to the date of effect of my decision, I have concluded that it is unnecessary for me to resolve this issue, and that it is sufficient for the purposes of my decision for me to determine that Ms Attiwill has not been a member of a couple since 14 November 2010.
[3] T3/22-23.
THE “DATE OF EFFECT” ISSUE
As to the date of effect of my decision, the respondent pointed out that Ms Attiwill did not apply to the SSAT for review of the decision of the ARO, dated 17 May 2011, until 14 February 2012. Accordingly, the respondent contended that, having regard to the “date of effect” provisions in the Social Security (Administration) Act 1999 (Administration Act), if the SSAT decision had been favourable to Ms Attiwill, it would only have taken effect from 14 February 2012, being the date she applied to that Tribunal for review of the ARO’s decision.[4]
[4] See s 152 of the Social Security (Administration) Act 1999.
In these circumstances, the respondent contended that if this Tribunal’s decision was favourable to Ms Attiwill, then that decision should also take effect from 14 February 2012. The respondent submitted that the statutory framework reflected a policy that where review is sought of a social security decision more than 13 weeks after the decision, any favourable decision should only take effect from the date on which review was sought. Whilst acknowledging that this Tribunal had power to set an earlier date of effect, the respondent contended that it would be inappropriate for the Tribunal to do so as this would create an anomalous and “absurd” outcome having regard to what would have occurred if Ms Attiwill had been successful before the SSAT.[5]
[5] Supplementary Submissions for the Respondent dated 17 December 2012.
In support of these submissions, the respondent relied upon the decision of Deputy President Jarvis in Secretary, Department of Employment and Workplace Relations and Mitchell (2007) 92 ALD 201, where he referred to the relevant provisions of the Administration Act and the Administrative Appeals Tribunal Act 1975 (AAT Act), and stated (at [59]-[60]) as follows:
“Where (as in the present situation, by virtue of the AAT Act) this tribunal stands in the shoes of the SSAT, and has the same powers and discretions as the SSAT, and its decision is deemed to be that of the SSAT, the specific constraint in s 152(4) on the effective date of the deemed SSAT decision should, in my view, prevail over the discretion to order retrospectivity contained in s 43(6), which is a provision of general application. In resolving the apparent conflict between the two provisions, it is also significant that the specific provision, s 152(4), does not literally refer to the effective date of the SSAT decision, but refers in terms to how the social security law is to have effect.
My above conclusion is, I think, also consistent with the role of this tribunal in conducting merits review. If the SSAT had decided to set aside the suspension decision for the reasons I have referred to above, that decision would have been correct, but by virtue of s 152(4) of the Administration Act could not have had an effective date earlier than the (belated) date when Mr Mitchell had applied to the SSAT for review of the ARO’s decision. It would not be appropriate for this tribunal to interfere with what in those circumstances would have been a correct decision, by giving that decision a retrospective operation.”
As pointed out by the Deputy President (and acknowledged by the respondent), s 43(6) of the AAT Act gives this Tribunal power to determine that the date of effect of its decision will be different than the date of effect which would have been applicable if the decision-maker below had made the same decision. However it also provides that, unless the Tribunal otherwise orders, the date of effect of the Tribunal’s decision will be the same as the date of effect of the decision under review. In these circumstances, and having regard to the considerations referred to by the Deputy President in Mitchell, I am also satisfied that my decision should take effect from the date the SSAT decision would have taken effect if it had been favourable to Ms Attiwill, namely 14 February 2012.[6] Whilst it may not be strictly necessary for me to do so, for abundant clarity I will specify that date in my formal decision.
[6] T2/4.
CONCLUSION
For the reasons given above, I have concluded that, having regard to the criteria set out in s 4(3) of the Act, Ms Attiwill and Ms Hermann are not currently in a de facto relationship and have not been in a de facto relationship since 14 November 2010. I have therefore decided to set aside the decision under review and substitute a decision that Ms Attiwill has not been a member of a couple with Ms Hermann since 14 November 2010. I have also decided that my decision should only take effect from the date Ms Attiwill applied to the SSAT, namely 14 February 2012.
DECISION
The Tribunal:
(a)sets aside the decision under review and decides in substitution for that decision that Ms Attiwill is not a member of a couple for the purposes of the Act and has not been a member of a couple since 14 November 2010; and
(b)remits the matter to the respondent for assessment of Ms Attiwill’s entitlement to newstart allowance accordingly, on the basis that the date of effect of this decision is 14 February 2012.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of ...........................[Sgd].............................................
Administrative Assistant
Dated 19 March 2013
Date of hearing 11 December 2013 Date final submissions received 10 January 2013 Applicant In person Advocate for the Respondent Christian Visser Solicitors for the Respondent Centrelink Program litigation and Review Branch
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