Bell and Secretary, Department of Family and Community Services

[2001] AATA 355

DECISION AND REASONS FOR DECISION [2001] AATA 355

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/610

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      Kym Jacqueline Bell        
  Applicant
           And    Secretary, Department of Family and Community Services        
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member  

Date2 May 2001

PlaceSydney

Decision      The decision under review is affirmed    
  .................[sgnd].....................
  Ms SM Bullock 
  Senior Member
Catchwords
SOCIAL SECURITY – Sole Parent Pension – Parenting Payment – Member of a Couple - Debt – Debt Recovery – Special Circumstances – Waiver

Legislation
Social Security Act 1947 ss 3, 3A, 43, 43A, 44, 47, 158, 168, 169, 246
Social Security Act 1991 ss 4, 14, 24, 249, 500, 510B, 510C, 1223, 1224, 1236, 1237A, 1237AAD

Authorities
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Re Greenwood and Secretary, Department of Social Security (1991) 25 ALD 775
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Bagy and Secretary, Department of Social Security (1993) 30 ALD 331
Re Secretary, Department of Social Security and Villani (1990) 20 ALD 49
Re Secretary, Department of Social Security and Mariot (1992) 25 ALD 581
Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295.
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Secretary, Department of Social Security and Gray-Corking (1997) 2(11) SSR 152

REASONS FOR DECISION

Ms SM Bullock, Senior Member              

1. The Applicant, Ms Kym Bell, seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 16 March 2000 (T2), which affirmed that Ms Bell owes debts totalling $97,998.80, being an amount arising out of Sole Parent Pension received in the period 1 February 1990 to 19 March 1998, to which Ms Bell was not entitled, and Parenting Payment (single) received from 2 April 1998 to 4 February 1999, to which she was also not entitled.

2. At the hearing before the Administrative Appeals Tribunal ("the Tribunal"), Ms Bell represented herself.  The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Ms Angela Smith, Departmental Advocate.  The Applicant's mother, Shirlie Bell, (also known as Shirlie Noble) attended the hearing and provided oral evidence.

3. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T Documents" T1 – T138) in addition to the following exhibits:
   Exhibit          Description  Date  
   T1-T138        T documents Various         
   A1      Clinical Psychological Assessment of Ms Bell by Associate Professor Hayes, Clinical Psychologist 12 September 2000
   A2      Report of Dr J Criticos, General Practitioner      7 February 2001      
   R1      Respondent's Statement of Facts and Contentions     8 January 2001       
   R2      Letter to Ms Smith from Mr T Comarmond of Gosford City Council   1 February 2001      
   R3      Computer print out listing addresses of Mrs Shirlie Bell          5 February 2001      
   Issues

4. The issues to be determined in this matter are

• Whether Ms Bell was a de facto spouse during the period 1 February 1990 to 30 June 1991, and whether she was a "member of a couple" during the period 1 July 1991 to 4 February 1999.

• Whether Ms Bell has legally recoverable debts of Sole Parent Pension and Parenting Payment (single) totalling $97,998.80; and if so, whether there are any grounds for not recovering all or part of the debts.

• Whether Ms Bell's Parenting Payment (single) was correctly cancelled on 26 November 1998.

Legislation

1. Because the events giving rise to this application for review span a period from 1990 to 1999, a determination in the matter requires consideration of both the Social Security Act 1947 (Cth) ("the 1947 Act") and the Social Security Act 1991 (Cth) ("the Act"). During the period 1 February 1990 to 30 June 1991, the 1947 Act was in force. From 1 July 1991, the Act came into force.

2. As relevant at the time, section 3 of the 1947 Act contained pertinent definitions. Subsection 3(1) stated:

   "3(1)    In this Act, unless the contrary intention appears:

   "married person" includes a de facto spouse but does not include:

   (a)a legally married person (not being a de facto spouse) who is living separately and apart from the spouse of the person on a permanent basis; or

   (b) a person who, for any special reason in any particular case, the Secretary decides should not be treated as a married person.

   "unmarried person" means a person who is not a married person;

   …"

3. Section 3A was added to the 1947 Act from 1 January 1990 and stated:

   "Marriage-like relationships

   3AIn forming an opinion about the relationship between 2 people for the purposes of the definition of 'de facto spouse' or 'married person' in subsection 3(1), 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;

   (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 to be 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. Part V of the 1947 Act deals with Sole Parent Pension and as relevant subsection 43(1) stated:

   "43(1)  In this Part, unless the contrary intention appears:
             "single person" means:
             (a)       a person who is not a married person;
             (b)       a married person whose spouse:

   (i)is serving a sentence of imprisonment in connection with the conviction of the spouse for an offence; and

   (ii)has been so serving that sentence of imprisonment for a continuous period of at least 14 days;

   (c)a married person who is living separately and apart from his or her spouse; or

   (d)a married person who is unable to live together with his or her spouse in a matrimonial home by reason of the illness or infirmity of the spouse, being an illness or infirmity:

   (i)that results in the spouse being unable to care for a child: and

   (ii)that the Secretary is satisfied is likely to continue indefinitely.

   …"

5. Section 43A of the 1947 Act qualified section 3A and as relevant stated:

   "Obligation to provide information about domestic circumstances

   43A. (1)This section applies where, for a period of at least 8 weeks, 2 people of opposite sexes who are not legally married to each other have shared a residence (in this section called the "shared residence") with each other and at least on of the following circumstances applies in relation to the people:

   (a)a child of both the people also lives in the shared residence;

   (b)the people have joint ownership of the shared residence;

   (c)the people are joint lessees of the shared residence, where the original duration of the lease was at least 10 years;

   (d)the people have:

   (i) joint assets with a total value of more than $4,000; or

   (ii)joint liabilities totalling more than $1,000;

   (e)the people have at any time been married to each other;

   (f)the people have at any time shared another residence with each other.

   …"

6. Subsection 44(1) of the 1947 Act dealt with the qualification for Sole parent pension and stated:

   "44(1)  A person is qualified to receive a sole parent pension if:
             (a)       the person is a single person;
             (b)       the person has a qualifying child;

   (c)the person satisfies the requirements relating to residence in Australia set out in section 45, or section 46 applies to the person; and

   (d)section 47 does not apply in relation to the person.

   …"

7. Section 47 of the 1947 Act provided:

   "Sole parents required to claim maintenance in some cases

   47       This section applies to a person (in this section called the "sole parent") if:

   (a)the sole parent is entitled to claim maintenance from another person for:

   (i)        himself or herself; or

   (ii)       for a dependent child of the sole parent; or

   (iii)a child who, if he or she were not in receipt of income from employment exceeding $100 per week, would be a dependent child of the sole parent; and

   (b)the Secretary considers that it is reasonable that the sole parent should have taken action to obtain maintenance from the other person; and

   (c)the sole parent has not taken such action as the Secretary considers reasonable to obtain appropriate maintenance from the other person.

   …"

8. Subsection 158(1) of the 1947 Act dealt with the grant of payment of a pension under Part V of the 1947 Act  amongst other things, and as relevant stated:

   "Claims
   158(1)  The grant or payment of:
             (a)       a pension under Part IV or V or Schedule 1B;
             (b)       an allowance under Part VI, IX or X;
             (c)       a double orphan's pension under Part XI;
             (d)       a child disability allowance under Part XII;
             (e)       a benefit under Part XIII; or
             (f)        a mobility allowance under Part XV;

   shall not be made except upon the making of a claim for that pension, benefit or allowance.

   …"

9. Section 168 of the 1947 Act dealt with the cancellation, suspension or variation of a pension and as relevant stated:

   "Cancellation, suspension or variation of pension, etc.
   168(1)  Subject to subsection (2), if-

   (a)having regard to any matter that affects the payment of a pension, benefit or allowance under this Act;

   (b)by reason of the refusal or failure of any person to comply with a provision of this Act; or

   (c)for any other reason;

   the Secretary determines that a pension, benefit or allowance should be cancelled or suspended, or that the rate of a pension, benefit or allowance is more than it should be, the Secretary may, by determination, cancel or suspend, or decrease the rate of, the pension, benefit or allowance with effect from the date of the determination or such later date as is specified in the determination.

   168(2)  Where a determination is made under subsection (1)-

   (a)by reason of the refusal or failure of any person to comply with a provision of this Act, other than-

   (i)subsection 163(5) in relation to a notice under subsection 163(2); or

   (ii)subsection 164(3); or

   (b)by reason that an amount has been paid by way of pension, benefit or allowance that, but for the false statement or misrepresentation of any person, would not have been paid,

   a date ealier than the date of the determination may be specified in the determination as the date from which the cancellation, suspension or decrease, as the case may be, takes effect.

   …"

10. Subsection 169(2) of the 1947 Act dealt with the consequences of not notifying the Department of a change of circumstances and as relevant provided:

    "169(2) Where:

    (a)a person who is in receipt of a pension, benefit or allowance under Part III, IV, V, VI, IX, X, XI, XII, XIV or XVI or section 237 or  Schedule 1B is required to notify the Department of the occurrence of an event or a change in circumstances in accordance with a notice under subsection 163(1);

    (b)the person does not notify the Department of the occurrence of that event or that change in circumstances within the period specified in that section or in the notice; and

    (c)by reason of the occurrence of that event or that change in circumstances:

    (i)the person ceases to be qualified or eligible to receive that pension, benefit or allowance; or

    (ii)that pension, benefit or allowance is payable to the person at a lower rate;

    that pension, benefit or allowance ceases to be payable to the person or becomes payable to the person at a lower rate, as the case may be, as from the day after the day on which that event or that change in circumstances occurred.

    …"

11. Subsection 246(1) of the 1947 Act dealt with debts due to the Commonwealth and provided at the time:

    "246(1) Where, in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance or benefit under this Act which would not have been paid but for the false statement or representation, failure or omission, the amount so paid is a debt due to the Commonwealth.

    …"

12. For the next period of the debt from 1 July 1991 to 4 February 1999, the applicable legislation is contained in the Act.

13. Qualification for a Sole Parent Pension was dealt with under section 249 of the Act and applied to a person who, among other things, was "not a member of a couple".  A "member of a couple" was defined in section 4 of the Act as:

    "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 basis; or

    (b)all of the following conditions are met:

    (i)the person is living 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 subsection (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.

    Note:a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

• an ancestor of the person;

• or a descendant of the person;

• or a brother or sister of the person (whether of the whole blood or the part-blood).

  Member of a couple - criteria for forming opinion about 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.

  4(4)     If:

  (a)       a person claims, or is receiving, sole parent pension; and

  (b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and

  (c) the claimant or recipient is not legally married to the other person; and

  (d)at least one of the following subparagraphs is satisfied:

  (i)        a child of both the people also lives in the residence;

  (ii)       the people have joint ownership of the residence;

  (iii) the people are joint lessees of the residence and the original duration of the lease was at least 10 years;

  (iv) the people have joint assets with a total value of more than $4,000;

  (v) the people have joint liabilities totalling more than $1,000;

  (vi)the people have at any time been members of the same couple;

  (vii) the people have at any time shared another residence with each other;

  the Secretary must not form the opinion that the claimant or recipient does not have a marriage-like relationship with the other person unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient does not have a marriage-like relationship with the other person.

  4(5)     If:

  (a)       a person claims, or is receiving, sole parent pension; and

  (b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and

  (c)the claimant or recipient and the other person are legally married to one another; and

  (d) the claimant or recipient and the other person:

  (i) are living separately and apart on a permanent basis; or

  (ii)claim to be living separately and apart on a permanent basis;

  the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis.

  …"

1. With effect from 29 September 1995, subsection 4(2)(b)(i) of the Act was amended to remove the requirement that a person be "living with a person of the opposite sex" and was replaced with the requirement that the person "has a relationship with a person of the opposite sex".

1. Subsection 14(1) of the Act deals with circumstances in which the Secretary may treat a legally married person living with a partner as not being a member of a couple for a special reason. Subsection 24(2) provides that the Secretary may treat a person having a relationship with another person of the opposite sex in a marriage-like relationship as not being a member of a couple.

2. On 20 March 1998, Sole Parent Pension was replaced by Parenting Payment. Subsection 500(1) of the Act deals with qualification for Parenting Payment and states:

   "500(1) A person is qualified for a parenting payment if:

   (a)the person has at least one PP child (see sections 500D to 500H); and

   (b)the person is an Australian resident; and

   (c)the person is in Australia, or satisfies the requirements of section 500A; and

   (d)at least one of the following conditions is satisfied:

   (i)the person is not a member of a couple and the person was not a lone parent at the start of the person's current period as an Australian resident (see subsections (2) and (3));

   (ii)The person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;

   (iii)the person has a qualifying residence exemption for parenting payment.

   …"

3. Subsection 500(3) defines "lone parent" in subsection 500(1)(d)(i) of the Act as follows:

   "500(3) For the purposes of subparagraph (1)(d)(i), a person was a lone parent on a particular day if, on that day:

   (a)the person was not a member of a couple; and

   (b)the person had a dependent child.

   …"

4. Section 510B of the Act provides that the Secretary of the Department is to determine that parenting payment is to be cancelled or suspended where a person has received the payment when he or she was not payable under the Act.

5. Section 510C of the Act provides that the Secretary of the Department may determine that a Parenting Payment be suspended or cancelled where a person does not comply with the requirements of a notice.

6. Section 1223 of the Act deals with debts due to the Commonwealth. Prior to 1 October 1997, subsections 1223(1) and 1223(5) provided:

   "Recipient not qualified for payment or amount not payable

   1223(1)Subject to subsections (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:

   (a) the recipient was not qualified for the social security payment when it was granted; or

   (b)        the amount was not payable to the recipient;
   the amount so paid is a debt due to the Commonwealth.

   …

   Incorrectly paid amount
   1223(5) If:

   (a) an amount (the received amount) has been paid to a person by way of social security payment on or after 1 October 1997; and

   (b) because the received amount had not been correctly calculated using the relevant rate calculator, or for any other reason, the received amount is greater than the amount (the correct amount) of social security payment that should have been paid to the person under this Act;

   the difference between the received amount and the correct amount is a debt due to the Commonwealth.

   …"

7. Subsection 1224(1) of the Act deals with debts arising out of a false statement or representation, or a failure or omission to comply with a provision of the Act or the 1947 Act and as relevant states:

   "1224(1) If:

   (a) an amount has been paid to a recipient by way of social security payment; and

   (b)      the amount was paid because the recipient or another person:

   (i)       made a false statement or a false representation; or

   (ii) failed or omitted to comply with a provision of this Act or the 1947 Act;

   the amount so paid is a debt due by the recipient to the Commonwealth.

   …"

8. It is accepted by the Tribunal that debt arising under the 1947 Act can be dealt with under the provisions of the Act. Part 5.3 of the Act deals with debt recovery.

9. Section 1236 at the relevant time stated:

   "Secretary may write off debt

   1236(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

   1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:

   (a)      the debt is irrecoverable at law; or
   (b)      the debtor has no capacity to repay the debt; or

   (c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

   (d)the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.

   1236(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

   (a) the debt cannot be recovered by means of deductions from a person's youth training allowance, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

   (b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

   (c)the debtor is discharged from bankruptcy and the debt was incurred before the discharge and was not incurred by fraud; or

   (d)the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.

   1236(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of deductions from a person's social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

   1236(2)      A decision made under subsection (1) takes effect:

   (a) if no day is specified in the decision--on the day on which the decision is made; or

   (b) if a day is specified in the decision--on the day so specified (whether that day is before, after or on the day on which the decision is made).

   1236(3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

   …"

10. Section 1237A deals with waiver of a debt in circumstances of sole administrative error.

11. Section 1237AAD deals with waiver of a debt in special circumstances and as relevant at the time stated:

    "Waiver in special circumstances
    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

    (a)the debt did not result wholly or partly from the debtor or another person knowingly:

    (i)        making a false statement or a false representation; or

    (ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and

    (b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

    (c)it is more appropriate to waive than to write off the debt or part of the debt.

    Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

    …"

Background

1. The following information is provided by way of background and the facts contained within are not in dispute.  

• Ms Bell was born on 17 June 1961 in Sydney.  Presently she is 39 years old.

• Ms Bell has a brother and two sisters, although they did not grow up together as a family as they have different fathers.  Ms Bell grew up living with her mother, Ms Shirlie Noble (aka Mrs Shirlie Bell).

• Ms Bell completed her formal schooling up to Year 11 and left school at the age of 17.

• Upon leaving school, Ms Bell obtained employment in the printing section of the Department of Defence.  She has also worked as a book binder and a screen-printer.

• Ms Bell ceased working following the birth of her first child, Ben, who was born on 18 December 1985.  Ms Bell then gave birth to Shane on 24 July 1988, and twins, Joel and Kane, on 13 June 1989.  Ben, Shane and the twins have three different fathers.

• The Respondent alleges that Ms Bell has been in a "marriage-like relationship" with Shane's father, Mr Brian Howlett, from 1 February 1990 to 4 February 1999.

• On 11 December 1989, Ms Bell made a statement advising the Department that she had been living with Mr Howlett at 18 Guedecourt Avenue, Earlwood, but that he had moved from the premises and she did not know of his whereabouts (T4).

• On 12 February 1990, Ms Bell signed a Sole Parent's Review form (T5), noting that she had moved to 1D Bay Street, Tempe on 22 January 1990 with her children and her mother, Shirlie Noble.

• On 2 May 1990, Ms Bell provided a further statement to the Department advising that Mr Howlett resided in Brisbane and worked as an interstate truck driver for "Allalong Transport" travelling between Sydney and Brisbane.  Mr Howlett paid $50.00 maintenance per week.

• On 25 March 1991, the dwelling at 23 Barden Street, Tempe was purchased in the names of "Mr B and Mrs K Howlett" (T58).

• On 19 April 1991, Ms Bell signed a Sole Parent's Review form, stating that she had not changed her address from 36 Barden Street, Tempe (T21).

• On 30 July 1991, the Department received advice that Mr Howlett did not work for the firm "Allalong Transport" and was not known to them (T24).  This advice was contrary to the information provided by Ms Bell to the Department on 2 May 1990.

• On 1 July 1992 and 17 September 1992, Ms Bell lodged Sole Parent Review forms, noting that she lived with her mother and her children at 36 Barden Street, Tempe (T32 and T34).

• On 4 March 1993, Ms Bell lodged a Sole Parent Review form on which she advised that she had moved to 24 Barden Street, Tempe on 12 February 1993 (T38).

• On 27 May 1993, Ms Bell lodged a Sole Parent Review form (T39) that was addressed to her at 20 Barden Street, Tempe, stating that she had not changed her address from that shown on the form.  Centrelink records show that 20 Barden Street, Tempe was the address recorded for her from 14 April 1993 (T129, p404).

• On 10 September 1994, Ms Bell and Mr Brian Howlett both completed and signed consecutively numbered electoral enrolment forms, stating that their address was 23 Barden Street, Tempe.  Ms Bell completed her form in the name of "Kym Howlett".  The forms were witnessed by Shirlie Noble who recorded that she lived at 20 Barden Street, Tempe (T67).

• On 10 April 1997,  Ms Bell signed an enrolment form for New South Wales Department of School Education in respect of Shane, in which she stated her address was 23 Barden Street, Tempe (T65, p235).  Shane's father was recorded as "Brian Bell", who also signed the enrolment form (T65, p236).  On 26 May 1998, Mr R Hellmers, School Counsellor at Carinya School, Mortdale, recorded Shane Bell's mother and father as Kym and Brian Bell of 23 Barden Street Tempe.  Their marital status was noted as "unknown" (T65, p233).  Mr Hellmers also advised that Shane's mother and father both attended meetings at school but they were not always together because of Mr Bell's work.

• On 23 January 1998, an anonymous "Public Information" was lodged with Centrelink alleging that Ms Bell was living in a de facto relationship with Mr Howlett (T54-55).

• On 23 February 1998, Ms Bell completed and signed an "Assessment of Living Arrangements" form noting amongst other things, that she had never lived with Mr Howlett; she was not on the electoral roll; she did not live in a marriage-like relationship; she owned no property with Mr Howlett and Mr Howlett did not help decide on matters relating to the education and development of the children (T57).

• On 4 March 1998, the Registrar of the New South Wales Births, Deaths and Marriages, advised Centrelink that there was no record of marriage between Brian Howlett and Kym Bell (T63).

• On 23 November 1998, a delegate of the Respondent determined, in relation to Ms Bell and Mr Howlett, that… "there is no difference between their relationship & that of a married couple, the only separation is distance due to his nature of work." (T70).  Ms Bell's Parenting Payment (single) was thereby cancelled.  However, following an internal review, it was decided that Ms Bell's payments could continue pending her appeal.

• On 18 January 1999, an Authorised Review Officer ("ARO") affirmed the decision to cancel Ms Bell's Parenting Payment (single) (T85).

• On 15 February 1999, the Respondent raised a debt of Parenting Payment (single) for the period 2 April 1998 to 4 February 1999.  The Respondent considered that Ms Bell had been a member of a couple in a marriage-like relationship with Mr Howlett (T83, p307).

• On 15 February 1999, the Respondent also raised a debt arising out of the payment of Sole Parent Pension for which Ms Bell had no entitlement, for the period 15 September 1988 to 19 March 1998 (T83, p308).

• On 14 April 1999, following an ARO's decision, the period of the debt was held to commence on 1 February 1990 (and not 15 September 1988) as there was insufficient evidence to support a conclusion that there was a marriage-like relationship existing between Ms Bell and Mr Howlett before that time (T41).

• The Applicant then exercised her right to have her matter reviewed by the SSAT.  On 16 March 2000, the SSAT decided to affirm the original decision.  It found that a debt in the amount of $97,948.80 was owed to the Commonwealth by Ms Bell.  In relation to the period 12 July 1991 to 29 September 1995, the SSAT further found that:

  "…There is no dispute that there has been joint ownership of real estate since 25 March 1991.  The tribunal has made findings that there was some division of payment of bills, some joint responsibility for the children, and some reciprocity for responsibility for housework.  There is no dispute that Mr Howlett has provided financial support for Shane since his birth.  In relation to the social aspects of the relationship, the tribunal has found that Ms Bell and Mr Howlett have on occasion held themselves out as being married and have used the same name, and that they have had some social contact.  The tribunal has been unable to make a finding as to whether there is any sexual relationship.  In relation to the nature of their commitment to each other, the tribunal has found that the relationship has lasted for over ten years and is likely to continue at least until Shane is 18 in 2006" (T2, p23).

• In reaching its decision, the SSAT also considered cases such as Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 and Re Bagy and Secretary, Department of Social Security (1993) 30 ALD 331. Having thus applied the relevant case law, the SSAT concluded that:

  "…While the relationship described by Ms Bell could not be described as a harmonious one, and on her description fluctuated and involved disagreements, the tribunal is not able to conclude that during the period 1 February 1990 and 1 July 1991 Ms Bell was not living in a marriage-like relationship with Mr Howlett".

• Similarly, for the period 1 July 1991 to 4 February 1999, the SSAT concluded that the weight of evidence supported its opinion that Ms Bell was a "member of a couple" (T2, p25).

• The Tribunal also notes that Ms Bell had previously repaid a debt of $7,280.50 for payment of Sole Parent Pension, which she received during the period November 1987 to September 1988, for which she had no entitlement as she was, at that time, living with Mr Howlett.  At the time, Ms Bell acknowledged that although she had been living with Mr Howlett, she had not advised the Department.

Evidence and submission of Ms kym bell

1. Ms Bell, while acknowledging that she has been in contact with Mr Howlett on an ongoing basis since Shane's birth 13 years ago, denies that they had been in or currently are in a de facto or marriage-like relationship.  Ms Bell acknowledged that she and Mr Howlett had a marriage-like relationship for a brief period when Shane was born.

2. Ms Bell's current circumstances are that she is presently living at a house in Wiseman's Ferry Road, Spencer with her children and has been there since early in 1999.  Mr Howlett maintains separate accommodation within the Spencer property, Ms Bell stated.  She told the Tribunal that Ben currently goes to TAFE from the Spencer home and her younger sons go to school in Spencer.  From time to time she travels to Sydney for a few hours, or sometimes on weekends.  Ms Bell stated that although her address is 2/17 Nathanial Street, Tempe, her mother's home, on reflection she acknowledged that at present her Spencer home could be considered her principle residence.   She stated to the Tribunal that her decision to move to Spencer was motivated by problems which she has been experiencing with Mr Howlett's daughter, including threats of violence by the daughter against Ms Bell and her children.

3. By way of background, Ms Bell explained to the Tribunal that Mr Howlett's daughter, Tracey, is jealous of Shane, Ms Bell and Mr Howlett's son, as he is seen to be Mr Howlett's "favourite" (because he is Mr Howlett's only son).  Ms Bell stated to the Tribunal that Tracey's anger and jealousy over Mr Howlett's preferential treatment of his son, has so consumed her as to drive Tracey to threaten Ms Bell and to "dob her in to the Department" for allegedly being in a de facto relation with Mr Howlett.

4. Mr Howlett's decision to relocate to Spencer from 23 Barden Street, Tempe was unexpected, Ms Bell told the Tribunal.  Mr Howlett had not told Ms Bell he was going to sell his house at 23 Barden Street, Tempe.  Suddenly one day, he presented Ms Bell with documents to sign for the purchase of the land and property in Wiseman's Ferry Road, Spencer.

5. Ms Bell stated that she personally did not feel safe living in Sydney as a result of the situation with Mr Howlett's daughter and she thus decided to go to live at Spencer.  This move was also precipitated by Mr Howlett suffering a heart attack.  Ms Bell agreed that she is currently living with her children in a house at Spencer and that Mr Howlett is also living there; the house is jointly owned by both Mr Howlett and herself.  Ms Bell stated, however, that Mr Howlett is ill and lives separately within the house.  She maintains that she has very little to do with him.  However, Ms Bell acknowledged that Mr Howlett is not entirely able to look after himself.  Ms Bell pays no rent at Spencer.  She maintains that despite her legal interest in the home, the house at Spencer is in effect Shane's house, as Mr Howlett wishes to provide for his son's future.  Ms Bell's joint ownership of the Spencer property in no way reflects a relationship between herself and Mr Howlett, she stated.

6. Ms Bell was asked why she did not tell either the ARO or the SSAT that 23 Barden Street, Tempe had been sold and she had moved to Spencer.  She denied that she had not revealed this fact because she wished to conceal the true nature of her circumstances.  Ms Bell stated that she did not intentionally conceal this information, explaining that she had not initially told either her sister or her mother because she was afraid that Mr Howlett's daughter, Tracey, would find out where she was and recommence the harassment.  Following further questioning, Ms Bell stated that she had considered that had she informed the Department of her living arrangements in Spencer, then her Parenting Payment may have been stopped and then she would have no money coming in (Transcript p58).

7. Having dealt with current living arrangements, evidence was provided about Ms Bell's previous circumstances.  Ms Bell lived initially with a person, Gary, with whom she had no children.  She then met Mr T Brooks with whom she had a child, Ben.  Ms Bell knew Mr Howlett at that time and subsequently had a child, Shane, with Mr Howlett.  Mr Howlett has four daughters from previous relationships.  In 1988, Mr Howlett and Ms Bell were living in a house with other friends, at 18 Guedecourt Avenue, Earlwood.  Ms Bell stated that she and the children then went to live for a few years at Bay Street, Tempe with her mother.

8. In a Sole Parent's Review form completed on 12 February 1990 (T5), Ms Bell noted that she had moved to Bay Street on 22 January 1990.  Ms Bell was then asked to explain a record of a telephone connection to 23 Barden Street, Tempe which was made in the name of "Mrs Kym Howlett" on 31 January 1990 (T59, p215).  Ms Bell stated that Mr Howlett had asked her to have the telephone connected in his name.  However, when she called Telstra in order to do this, she was informed that for the telephone to be connected in Mr Howlett's name, he had to arrange the connection himself and that she was not able to do so on his behalf.  Ms Bell stated to the Tribunal that she then asked the Telstra Customer Service Officer if the phone could be connected in her name.  She gave the name "Kym" to the Telstra staff member and she believes that this person simply assumed that she was "Kym Howlett", hence the connection in the name "Mrs Kym Howlett".

1. Ms Bell stated to the Tribunal that the house at 23 Barden Street, Tempe whilst also purchased on 25 March 1991 in the names of "Mr B and K Howlett" (T58, p212), was not actually her house.  Ms Bell informed the Tribunal that she had accompanied Mr Howlett when he was inspecting prospective houses for purchase.  He finally bought 23 Barden Street, Tempe, which Ms Bell thought he had previously rented.  Ms Bell stated to the Tribunal that Mr Howlett had purchased the house for Shane, so that "Shane could have a roof over his head".  Ms Bell further stated that Mr Howlett was concerned to provide Shane with some sort of security, as Mr Howlett is aware that Ms Bell would never be able to provide for Shane financially.

2. Ms Bell informed the Tribunal that she has never lived at 23 Barden Street, Tempe on a permanent basis.  Further, Ms Bell said that her name was on the title deeds for the property because Mr Howlett was trying to ensure that his daughters would not be able to claim an interest in the house should anything happen to him.  At the time of purchase, Mr Howlett had told Ms Bell to sign the necessary papers and she complied.  She told the Tribunal that she did not know of the legal implication of signing these documents, either in terms of ownership, or her responsibility for mortgage repayments in the event of Mr Howlett's demise.  Ms Bell stated that Mr Howlett wished to leave the property to Shane upon his death and/or to give the property to Shane when Shane turns 18.  In light of this, Ms Bell said that she has always considered that 23 Barden Street is "Shane's house".  Ms Bell told the Tribunal that she did not know what was in Mr Howlett's will, noting however, that Mr Howlett had said everyone would find out only after his death.

3. Ms Bell stated that even though Mr Howlett owned 23 Barden Street, he lived in Brisbane.  He was an interstate truck driver who did the "Sydney to Brisbane run".  Ms Bell stated that she never bothered to find out where in Brisbane Mr Howlett resided.  From time to time, if Mr Howlett was in Sydney, he would stay at 23 Barden Street.

4. When Mr Howlett was away from Sydney, Ms Bell or the children would collect the mail, feed Mr Howlett's two dogs and generally look after his Tempe home.  Ms Bell stated that someone would go to the house every day.  On occasions, if she had an argument with her mother, she would stay at 23 Barden Street, Tempe for longer periods - up to a number of days.  The children would stay as well.  The house had three bedrooms, Shane had his own room, and there was a separate room for Mr Howlett and another room with bunk beds for the other children.  When Mr Howlett was away, Ms Bell slept in his room.

5. Mr Howlett would provide Ms Bell with money from time to time to cover Shane's expenses such as for shoes, clothes and school items.  Money would either be left in the house or he would take Shane with him to purchase necessary items.  When discussing these arrangements with a Departmental Field Officer, a figure of $50.00 maintenance per week was assessed by the Field Officer as best describing this arrangement.  Ms Bell stated that Mr Howlett did not provide for her other children.

6. Ms Bell was questioned about a number of documents which indicated that she had told various organisations that her address was 23 Barden Street, Tempe.  The address she had for her bank account, which commenced in March 1990, was 23 Barden Street, Tempe (T11, p45).  Ms Bell explained the address for the bank account by noting that she may have been staying at 23 Barden Street at the time this account was opened, and therefore arranged for account details to be sent to 23 Barden Street, despite her not living at this address.

7. Another document showed the Carinya School Counsellor noted that the address to contact Ms Bell was 23 Barden Street, Tempe (T65, p233).  This was also the address from which a taxi organised by the Department of School Education would call to collect Shane and Kane to take them to their respective schools.

8. Carinya School also had recorded that Shane's contact address and mother and father were "Mrs Kym Bell" and "Mr Brian Bell" of 23 Barden Street, Tempe.  Ms Bell stated that she never "bothered" to correct Mr Howlett's name and she was not concerned that she and Mr Howlett were considered by the school to be husband and wife.  Ms Bell stated that it was sufficient for her to know that Mr Howlett and herself were not a couple, and it "never entered my mind" at the time that this public presentation of being married might lead to her being "dobbed in" to Centrelink as receiving a single rate of payment, when others in the community might consider her as a member of a couple and therefore not entitled to a single rate of benefit.

9. Records at Joel's school, Tempe Public School, also recorded the address for contact as 20 Barden Street, Tempe, but with the telephone number of 23 Barden Street, Tempe (T126).  Ms Bell stated that this telephone number was given to the school because the family spent a lot of time at 23 Barden Street, Tempe.  Kane's school, Bridge Road Public School, Camperdown, had the contact address as 23 Barden Street, Tempe.  Ms Bell stated that that address was recorded because this was the pick-up address for Kane and Joel (T127).

10. Ms Bell was referred to Electoral Enrolment Cards, which had then been signed on 10 September 1994 as "Kym Howlett" (T67, p242).  Her card was referenced with a number preceding Mr Howlett's enrolment card and both cards were witnessed by Ms Bell's mother, with the signature "S Noble".  Ms Bell confirmed that the signature on the enrolment card was hers, but she did not recall filling out the form and therefore did not have any explanation for the address on the card as 23 Barden Street, Tempe.  Ms Bell stated that she did not vote, so did not know why she would fill in an Electoral Enrolment Card.

11. Another document before the Tribunal was an Audiology Clinic report of 26 July 1991, recording Shane Bell's address as 36 Barden Street, Tempe but noting the telephone number for the 23 Barden Street home (T94).  Ms Bell's explanation was that she would be at 23 Barden Street, Tempe on occasions and therefore gave this as her contact number.  A further explanation provided by Ms Bell was that she might have known that the clinic, or indeed the Children's hospital (T95), which had similar contact details, would be calling at a specific time and she would have known that at that particular time, she would have been at 23 Barden Street, Tempe.  On further questioning, Ms Bell stated that she did not know if the Audiology Clinic had told her that she would be contacted at a specific time.  Ms Bell later stated that because these documents related to Shane's health, that might be another reason why Mr Howlett's telephone number was recorded on the documents.

12. Ms Bell did not agree that 23 Barden Street, Tempe was her principle address.  While she acknowledged that she and the children spent a great deal of time there, she maintained that she and the children mostly slept at her mother's house.

13. Ms Bell was questioned about answers she provided in a Sole Parents "Review of Pension" form (T22).  In this, Ms Bell had stated that she did not own real estate when in fact she co-owned 23 Barden Street, Tempe with Mr Howlett.  Ms Bell stated that she did not know she owned this property, believing that it had been purchased for Shane by Mr Howlett.  That is why she recorded that she did not co-own any property, Ms Bell explained.

14. Mail was addressed to various addresses in Barden Street, Tempe and elsewhere, but Ms Bell stated that she never had any problem with missing mail, except on one occasion with a Medicare document.  Ms Bell explained that everyone was so close and knew each other in Barden Street, Tempe and elsewhere in the local area, that having correspondence addressed to different locations, especially in Barden Street, Tempe was not a problem.  Ms Bell advised the Tribunal that on many occasion she simply forgot to correct her mailing addresses.

15. A further Departmental review was undertaken on 23 February 1998, in the form of an "Assessment of Living Arrangements" (T57).  Ms Bell noted in this review that she had never lived with Brian Howlett.  At hearing, it was put to Ms Bell that this was clearly not true, as she knew that she had lived with Mr Howlett previously at Denison Road, Dulwich Hill and at Guedecourt Avenue, Earlwood.  Ms Bell explained that she had forgotten all about these locations because they had not been living together as a couple.  Ms Smith for the Department pointed out that the question only referred to "sharing" accommodation with Mr Howlett and still, Ms Bell recorded on answer that she did not share with Mr Howlett (T57, p203).

16. Ms Bell had also recorded in the "Assessment of Living Arrangements" form that she was not on the Electoral Roll, when in fact she had completed Electoral Roll enrolment forms in 1994 (T57, p207).  Ms Bell also recorded that she had never had a de facto relationship with Mr Howlett, stating that this answer seemed appropriate because she did not think the form was dealing with her circumstances years back when she and Mr Howlett had briefly had a marriage-like relationship.  Ms Bell told the Tribunal that the Departmental Officer completing this form led her to believe that the question only related to her current situation, at the time the assessment was being undertaken.

17. In answer to the form's questions asking whether or not Ms Bell was married to or had a de facto relationship with Mr Howlett or used the same family name, Ms Bell had written "no".  While she acknowledged to the Tribunal that there were many documents on which she was recorded as Kym Howlett, Ms Bell maintained that she really had not thought about this much and had "forgotten" such instances when she was completing the assessment form.

18. In relation to further questions about Mr Howlett's contact with Shane's school, Ms Bell confirmed that, although Mr Howlett never attended Shane's school for sporting carnivals, he did attend appointments to speak to Shane's teachers on two or three occasions.  Therefore, in fact, Ms Bell's answer of "no" to the question in the "Living Arrangements Assessment" form about Mr Howlett attending school, sporting or leisure outings on behalf of Shane, was also not correctly answered, given Ms Bell's evidence to the Tribunal.

19. Ms Bell stated that the children mostly call Mr Howlett "Brian" and Shane calls him "Dad".  On some occasions the other children may call him "Dad" because they have heard Shane call Mr Howlett this and they look up to him as a "father figure".  Ms Bell explained that her other children do know that Mr Howlett is not their natural father.

20. In terms of the harassment and death threats the family experienced because of the behaviour of Mr Howlett's daughter, Tracy, Ms Bell initially stated to the Tribunal that she never called the police, but after further questioning stated that she had in fact made general enquires of the police about this situation.

21. It was finally put to Ms Bell that she had told the SSAT and the Department certain information supporting there being no marriage-like relationship with Mr Howlett, yet in numerous documents there were clear indications of her having the names "Mrs K Howlett" or "Kym Howlett" with Mr Howlett's address and/or telephone number.  Such information was contradictory and indicating a possible lack of credibility.  Ms Bell stated that she knew it looked as if she and Mr Howlett were having a relationship, but there was none.  Ms Bell reiterated that the only reason for their contact was because of their son, Shane.

22. Ms Bell stated that she had asked Mr Howlett to come to the hearing to assist her with evidence and explain that they did not have a marriage-like relationship.  Mr Howlett had told Ms Bell he "would see".  Mr Howlett did not attend the hearing and Ms Bell stated that she did not know why he did not come to assist her.

23. In relation to her health, Ms Bell stated that for many years she has suffered from an iron deficiency for which she takes iron supplement tablets.  Ms Bell said that prior to discovering that she has this deficiency, she was very tired, suffered from headaches, was moody and uninterested in doing anything.  Ms Bell then consulted her General Practitioner, Dr J Criticos, who prescribed the iron tablets.

24. Dr Criticos reported on 7 February 2001 that Ms Bell has been consulting him since 1994 for anaemia (Exhibit A2).  Dr Criticos' reviews in 1995 and 1996 indicated continuing iron deficiency problems for which the iron supplement "Ferrogradumet" and dietary measures were prescribed.  Dr Criticos noted that:

    "…the symptoms of iron deficiency may well include some spaciness, lack of concentration, vagueness in cognition and lack of co-ordination.  It is of particular relevance, that these symptoms may have been present over the period of concern." (Exhibit A2).

25. Ms Bell told the Tribunal that she is still "spacey" although she now considers that this is not the result of her iron deficiency but rather the result of having "overloaded" her body with iron.  Ms Bell said that she forgets a lot of things and that when she tries to think or recollect something, often "there is nothing there".  Ms Bell described that her inability to recall events or details was "weird".  Ms Bell did not think she had experienced anxiety or depression.  Ms Bell stated, however, that at the commencement of the week of her Tribunal hearing "on Monday or Tuesday", at the suggestion of Dr Criticos, she had begun to take anti-depressants.

26. Dr Criticos further noted in his report that a "Mini International Neuro-psychiatric Interview" indicated a diagnosis of generalised anxiety disorder and accordingly, in view of a normal CT scan, Ms Bell was commenced on the anti-depressant, "Efexor 7mg XR" once daily.  Dr Criticos thought the generalised anxiety disorder had possibly been present for some time, but was not able to give a date of onset, as he had not seen Ms Bell for two years, prior to his report of 7 February 2001.

27. In support of her application, Ms Bell also tendered a report of Clinical Psychologist, Associate Professor S Hayes, dated 12 September 2000 (Exhibit A1).  Associate Professor Hayes reported that following a "Kaufman Brief Intelligence Test" ("K-BIT test") of Ms Bell, it was found that Ms Bell is of average intelligence.  Another test carried out by Associate Professor Hayes, the "Kaufman Short Neurological Assessment Procedure" ("K-SNAP"), indicated that:

    "…there is a possibility that Ms Bell suffers from a medical condition which is impairing her brain functioning.  This may be a result of the iron deficiency that she reports, or it may be as a consequence of another, as yet undetermined problem" (Exhibit A1, page 3).

28. Associate Professor Hayes concluded of Ms Bell that:

    "…her presentation is of a person who is vague, and as the neurological assessment indicates, not well orientated in time and place, and having serious difficulties in solving complex problems and undertaking executive functioning in planning and carrying out action" (Exhibit A1,  page 3).

29. Ms Bell's finances include $50.00 per week (approximately) from Mr Howlett as maintenance for Shane.  She currently receives $399.70 per fortnight Parenting Payment in addition to approximately $300.00 per fortnight in Family Payment.  Ms Bell pays her mother approximately $100.00 per fortnight to help with rent, shopping and household bills.  Ms Bell does not pay rent to Mr Howlett when she stays at the Spencer home.  At Spencer, she contributes to telephone accounts and electricity, contributing approximately $50.00 when an account is due for payment.  Ms Bell does her own shopping and Mr Howlett does his.

30. If the Tribunal affirmed the SSAT's decision and Ms Bell had to repay a debt to the Commonwealth, she indicated that she did not know if Mr Howlett would help out financially with such a debt.  Ms Bell had told Mr Howlett that he had an obligation to assist with the debt repayment because it was his daughter, Tracey, who had caused all the problems.  Mr Howlett had apparently told Ms Bell some time ago that he would help with the debt, but that was before his heart attack.  Ms Bell stated she did not know whether Mr Howlett would honour his offer of financial assistance.

31. Ms Smith noted that if the SSAT's decision was affirmed, Ms Bell would be eligible to apply for Parenting Payment, partnered.  Ms Bell asked, and became very upset over, why she would want the partnered rate of Parenting Payment when she was not in a relationship with Mr Howlett.
    evidence of Mrs Shirlie bell

32. Mrs Bell is the mother of the Applicant.  Mrs Bell gave evidence that the Applicant and her sons have lived with Mrs Bell since the boys were very young children.  Mrs Bell is also known by the name of "Shirlie Noble".

33. Mrs Bell explained that she and her daughter had moved with the children a number of times (including a number of times within Barden Street, Tempe).  Each time they moved into different rental accommodation, Mrs Bell's name always appeared as the only name on the lease because she considered that prospective landlords would be critical of her daughter, since she was a single mother living on government support.  Mrs Bell receives the Age Pension and had good references.  They had always mostly shared three-bedroom accommodation with Ms Bell and Mrs Bell having separate rooms and the boys in the other room.  At 2/17 Samuel Street, Tempe, this is a two-bedroom unit with an enclosed balcony.  Ms Bell lives mostly at Spencer now and holds most of her possessions there, Mrs Bell stated.  Mrs Bell stated that her daughter needs space and they get on better if Ms Bell is able to achieve this.  Mrs Bell described her daughter as a "loner".  Mrs Bell observed that her daughter is "highly strung, nervous, always pale and thin", but Ms Bell has seemed better since living in Spencer.  Ms Bell never complains, her mother stated.

34. Ben now stays with Mrs Bell three days per week while he attends TAFE.  She believes Shane is still doing correspondence school work, Kane may be at a "special school" in the Spencer area and Joel also attends school in the Spencer area.  Mrs Bell stated that Ms Bell had been living for approximately 12 months at Spencer and it was a much better location for the children.  There is always and has always been accommodation and possessions for Ms Bell and the children at Mrs Bell's various homes.

35. In the accommodation they have shared, Mrs Bell explained that she and Ms Bell would share the payment of bills, including rent, electricity, water and the like.

36. In relation to the Electoral Enrolment forms, Mrs Bell stated that she does not know why her daughter put her name as "Kym Howlett".  She stated that before Shane was born, Ms Bell and Mr Howlett were good friends.  After Shane was born, they argued a great deal and drifted apart.  Ms Bell came home to Mrs Bell when Shane was a few months old.  Mrs Bell described her feeling that "the children have been with me forever".

37. Mrs Bell stated that Mr Howlett had a heart attack in 2000 and following this event, Ms Bell went to live in the Spencer house.  Mrs Bell stated that her understanding of the living arrangements are that Mr Howlett lives in a self-contained flat and Ms Bell in the other part of the house.  They lead separate lives, Mrs Bell explained, and Ms Bell provides no assistance.  Ms Bell's whole life is her boys, Mrs Bell stated.

38. Mrs Bell expressed the view that her daughter did not have and does not have a marriage-like relationship with Mr Howlett, because Ms Bell has always been with her.
    Respondent's submissions

39. In the Respondent's Statement of Facts and Contentions, outlined for the Tribunal in chronological order, were the facts upon which the Respondent relies in order to establish that in the relevant time periods under review, Ms Bell was in fact in a de facto or marriage-like relationship with Mr Howlett (Exhibit R1).

1. In her oral submissions to the Tribunal, Ms Smith contended for the Respondent that qualification for receipt of the Sole Parent Pension and Parenting Payment (single) effectively depended on the claimant not being a member of a couple.  Indeed, Ms Smith contended that despite changes to the legislation from time to time in relation to the payments for people raising children without a partner,   "…the essence of the law has always been that in order for a person to qualify, they must not be living in a marriage-like relationship".

2. In addressing the legislative criteria to determine whether a person was a member of a couple, Ms Smith made submissions in respect of the property at 23 Barden Street, Tempe, which was purchased in the names of Brian and Kym Howlett.  Ms Smith contended that despite Ms Bell's statement that the property is held in trust for their son, Shane, there is no independent evidence to support Ms Bell's submission.

3. Further, Ms Smith contended that even if the house is being held in trust for Shane, "the fact that Brian Howlett has signed over a half share of the property to the applicant without any contribution from her, is indicative of a level of trust which would not exist between two people who claim to have no relationship" (Exhibit R1, p5).

4. Ms Smith further submitted that other financial aspects of this case also exist and point to the existence of a marriage-like relationship; namely, that the Applicant has stated that Mr Howlett has provided her with a mobile phone and he is responsible for the phone bills.  Furthermore, the Applicant has made statements to Departmental delegates over a period of time, including at the hearing itself, that Mr Howlett provided and still provides financial support in respect of Shane.

5. In addressing the nature of the Applicant's household, Ms Smith contended that Mr Howlett has been involved in decisions concerning Shane's schooling (evidenced at T65, which contains information from Shane's School Counsellor).  Further, Ms Bell's evidence to the SSAT was that Mr Howlett has also been involved, at times, in disciplining Ms Bell's other sons; indeed, Ms Bell stated that the children see him as a father figure.

6. Ms Smith also directed the Tribunal to Ms Bell's previous statements that she was often at 23 Barden Street, Tempe when she and her mother argued (T74).  Ms Smith submitted that, by her own admission, Ms Bell often argued with her mother and she was thus often at 23 Barden Street.  Further, Ms Smith contended that Ms Bell, again by her own admission, went to feed Mr Howlett's dogs at 23 Barden Street and collect his mail, which would require her to be at 23 Barden Street, Tempe on a daily basis.  The evidence is that Ms Bell generally kept "an eye on the place" whilst Mr Howlett was working.

7. Ms Smith also addressed the fact that Ms Bell had given a number of different addresses in Barden Street, Tempe as her residential address during the period under review.  For example, Ms Smith directed the Tribunal to instances where Ms Bell has given two different addresses during the same period of time (see T118 and T119 respectively, where two letters were sent to Ms Bell from the Education Department; the first is sent to 58 Barden Street, Tempe and the second was sent to 20 Barden Street.  Both letters were dated 12 January 1999).  In Ms Smith's submission "obviously the Applicant could not have been residing at both addresses at the one time ".  Accordingly, Ms Smith contended that:

   "The evidence provided by her in the form of letters sent to her at various addresses therefore carries little weight in support of any assertion that she actually lived at those addresses at the time the letters were sent (Exhibit R1, p6).

8. The Tribunal was referred to Electoral Enrolment forms completed by Ms Bell and Mr Howlett on 10 September 1994, in which Ms Bell recorded in her form that she resides at 23 Barden Street, Tempe and on which she signed her name as "Kym Howlett".  Ms Smith urged the Tribunal not to accept Ms Bell's previously improvised explanation in this regard (namely, that she signed the electoral forms at the same time that she signed other paperwork relating to the purchase of 23 Barden Street).  Ms Smith submitted that:

   "It was not possible for both sets of documents to have been signed by the applicant at the same time, as the house purchase occurred in January 1990, some 3 ½ years before the electoral cards were completed" (Exhibit R1, p6).        

9. Ms Smith concluded that in regard to Ms Bell's household situation, Ms Bell had principally resided with Mr Howlett at 23 Barden Street, Tempe and only Ms Bell's mother resided at the other addresses. 

10. In respect of the social as well as the intimate aspects of the relationship between Ms Bell and Mr Howlett, the Respondent contended the following:

"Social Aspects

11.      The applicant and Brian Howlett presented as a couple to school authorities and gave their address as 23 Barden St on a number of occasions.   Ms Bell stated at T74 that she did that because she was sick of having to explain her circumstances to people.  However the respondent contends that her situation would not have been particularly unusual as to require any degree of explanation.  Single parenthood has become quite a common phenomenon in recent times, and enjoys a fair degree of acceptance in the community at large.  The respondent does not accept the applicant's assertion that explaining her circumstances would have presented her with any particular difficulties.

12.      Ms Bell stated at T57 that she and Mr Howlett do not share social, leisure or holiday activities however this is not unusual in view of his occupation, which would require him to be absent from home for periods.  The absence of shared activities is not indicative of an absence of a relationship.

Sexual Relationship

13.      The applicant asserts that there has been no sexual relationship between herself and Brian Howlett since the birth of Shane.  She maintains that the twins were fathered by someone else, but she does not know the identity of their father.  The respondent contends that the absence of a physical relationship is not of itself, determinative of the absence of a marriage like relationship." (Exhibit R1, p6).

1. Ms Smith further submitted that a level of commitment exists between Ms Bell and Mr Howlett in that they have lived together at previous addresses and were in a marriage-like relationship until September 1988.  They also have a child together.

2. A further issue for careful consideration in this matter, as submitted by the Respondent, is the question of Ms Bell's credibility.  The Respondent submitted that little weight should be given to Ms Bell's evidence where it is not corroborated by independent evidence.  Ms Smith sought to draw the Tribunal's attention to the following conflicting statements made by Ms Bell in relation to her circumstances.  Ms Smith noted that Ms Bell stated Brian Howlett lived in Brisbane.  However she knew he lived at 23 Barden Street, Tempe because she previously stated that he had asked her to have the phone connected there in the name of "Howlett" (T90, p321).  This evidence itself is then contradicted in a statement to the SSAT from the Welfare Rights Centre on behalf of the applicant, in which it is stated (T130, p410) that it was not Mr Howlett who wanted the phone connected, but Ms Bell herself, ostensibly so that she could be in touch with Shane when he was staying at 23 Barden Street, Tempe.

3. Ms Smith next referred to Ms Bell's completion on 23 February 1998, of an "Assessment of Living Arrangements" form (T57) in which she answered "No" to the question "Have you ever lived at another address with…?" [referring to Brian Howlett].  Ms Bell also wrote "We have never lived together".  The statement Ms Bell had made on 11 December 1989 (T4) directly contradicts this, as does Ms Bell's evidence to the Tribunal, as she had stated they had previously lived together at 18 Guedecourt Avenue, Earlwood.

4. Ms Bell also answered "No" to the question "Are you on the electoral role?".  In fact she had completed and signed an electoral enrolment form on 10 September 1994, a fact which was noted in the Welfare Rights Centre submission (T130, p409) and her evidence to the Tribunal.

5. Ms Smith noted that on both 26 July 1991 and 21 June 1992, Ms Bell had given her address to the Children's Hospital, Camperdown as 36 Barden Street, Tempe, but the telephone number she gave ["558 0387"] was connected to 23 Barden Street, Tempe (T95).  Ms Bell had also given her address to Tempe Public School in respect of Joel's records as being 20 Barden Street, but the phone number she gave ["9558 0387"] was connected to 23 Barden Street, Tempe (T126, p390).

6. Turning to the requirements of the legislative scheme as it stood at the time of the primary decision in Ms Bell's matter, Ms Smith contended on behalf of the Respondent that the operation of subsection 4(4) of the Act applies in the circumstances of this case, as 23 Barden Street had been Ms Bell's and Mr Howlett's principle home for at least eight weeks since 1 February 1990, which meant that paragraph (b) of the subsection is also satisfied; paragraph (c) is equally satisfied because Ms Bell and Mr Howlett are not legally married. The Respondent further submitted that "points (d)(i),(ii) (vi) and (vii) are all satisfied".  Ms Smith thus concluded that the weight of the evidence does not support the view that Ms Bell and Mr Howlett were not living in a marriage-like relationship and that:

   "the tribunal standing in the shoes of the Secretary, must not form the opinion that they do not have a marriage like relationship.  As the applicant was a member of a couple she did not qualify for the payment of sole parents (sic) pension and parenting payment" (Exhibit R1, paragraph 20).  

7. In respect of the issue of whether Ms Bell owes a debt to the Commonwealth, Ms Smith contended that a legally recoverable debt does exist under subsection 1224(1) of the Act.  Ms Smith submitted that the debt arose from 1 February 1990 to 4 February 1999, as Ms Bell failed to advise the Department of her correct circumstances.  Ms Bell had no entitlement to the payments she was receiving as she was in fact in a de facto relationship.  Ms Smith also submitted that the Tribunal should take note that no independent verifiable evidence has been brought forward by Ms Bell to support her assertions that she and Mr Howlett were not living together at 23 Barden Street, Tempe during the period of the debt.

8. Turning to the issue of debt recovery, Ms Smith further contended that section 1237A of the Act does not apply, as there are no grounds for waiver of the debt in the present circumstances.  In support of this contention, Ms Smith pointed out that there was no administrative error involved in this case and that the Applicant did not receive the payments in good faith.

9. Ms Smith contended that Ms Bell has made false and misleading statements from time to time for the purpose of being paid social security income support payments for which she had no entitlement. Therefore, the discretion to waive the debt on account of any special circumstances which might exist in this case, is precluded by virtue of subsection 1237AAD(1)(a) of the Act. For this same reason, the amount of any notional entitlement that Ms Bell may have had to Parenting Allowance/Payment during the relevant period cannot be waived by virtue of subsection 1237AAC(4)(b)(i) of the Act, Ms Smith submitted.

10. If the Tribunal did not agree with the Respondent's submissions in relation to subsection 1237AAD(1)(a) of the Act, the Tribunal was referred to the discussions about special circumstances in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in which Toohey J stated:

    "An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend upon the context in which they occur.  For it is the context which allows one to say that 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."

11. Special circumstances were also considered in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95, in which that Tribunal concluded:

    "The reference to special circumstances "by reason of which" a person liable "should be released" requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes…Thus whilst keeping the dominant principle of [recovery of debt] in mind, [the decision maker] must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate."

12. Ms Smith contended that there is nothing in Ms Bell's circumstances, either currently or at any time during the period of debt, which could be described as being unusual, exceptional or uncommon, as to set her apart from others who are in receipt of income support payments.  There are therefore no grounds for waiver of any part of the debt on account of special circumstances.

13. Ms Smith concluded that the objective evidence clearly indicates that Ms Bell has been in the habit of making self serving statements to various bodies about her relationship with Mr Howlett. As many of her statements are contradicted by other objective evidence contained in documents, the Respondent submitted that, in forming an opinion in terms of section 4 of the Act, Ms Bell's uncorroborated evidence should carry little weight.

14. Having so contended, Ms Smith recognised the diversity in the manner in which couples conduct their lives.  However, Ms Smith contended that even allowing for such diversity, it could not be concluded otherwise than that Ms Bell and Mr Howlett have been living in a marriage-like relationship.  While the relationship might not be said to be ideal, punctuated as it appears to have been by Mr Howlett's long absences on account of his employment and by various arguments, Ms Smith contended that the weight of evidence supports a view that Ms Bell and Mr Howlett have been members of a couple at all relevant times.  The decision of the SSAT should therefore be affirmed, Ms Smith concluded.
    Findings

15. The Tribunal has reached a decision in this matter, taking into account oral and documentary evidence, the submissions, the legislation and case law.

16. The Tribunal finds it convenient in taking into account the various changes in legislation during the period under review, to divide the review period into four stages, firstly from 1 February 1990 to 30 June 1991, a period during which the 1947 Act applied. The second period is from 1 July 1991 to 28 September 1995, the date from which the Act was amended. The third period is from 29 September 1995 to 19 March 1998, when on 29 September 1995, subsection 4(2)(b)(i) was amended to remove the requirement that a person be "living with a member of the opposite sex" and replace it with a requirement that the person "has a relationship with a person of the opposite sex". The amendment had the effect of widening the parameters in determining whether a marriage-like relationship exists. The fourth period is from 20 March 1998 to 4 February 1999. On 20 March 1998 the Sole Parent Pension was replaced by the Parenting Payment, where qualification is dealt with under subsection 500(1) of the Act, if a person is not a member of a couple as defined in section 4 of the Act.

17. Before embarking on the findings in relation to specific stages in the period under review, the Tribunal wishes to make a number of general comments.  Throughout the entire period of review from 1 February 1990 to 4 February 1999, there are many instances of Ms Bell being recorded in documents as "Mrs K Howlett": for example on Marrickville Council records of home ownership of 23 Barden Street, Tempe (T58); from 25 March 1999, on school records of the children as living at 23 Barden Street; also as having different addresses in Barden Street, however with the telephone number associated with 23 Barden Street, as was the case in relation to children's hospital forms and the audiology clinic report.

18. There is further evidence that on 1 February 1999, "BE and KJ Howlett" purchased Lot 57 at Wiseman's Ferry Road, Spencer (T133) and of Ms Bell living there with her children.  There is evidence of Ms Bell signing property transfer documents on 2 February 1999 as "K Howlett" (T134), or as being joint tenants with Mr Howlett in the Spencer property (T135).  Further, there are mortgage documents completed on 30 December 1998 for "Brian Edwin Howlett and Kim Jacqueline Howlett" and signed by both (T136).

19. Against this evidence, Ms Bell states that she was unaware of jointly owning property at 23 Barden Street, Tempe or more recently that of the property at Wiseman's Ferry Road, Spencer.  Ms Bell claims that she believed that properties were purchased by Mr Howlett for Shane and she only signed "K Howlett" because Mr Howlett asked her to do so.  Ms Bell's evidence was that signing in this way would secure the property for Shane so that his step sister could make no claim on it.  In terms of having school authorities record her as living as a family with Mr Howlett, she did not consider this would affect her single rate of Sole Parent Pension.  Further, Ms Bell claimed that while visiting 23 Barden Street, Tempe, this was for the purpose of looking after Mr Howlett's place and his dogs while he was away, or to obtain respite from arguments with her mother.

20. While Ms Bell claimed in Departmental documents that she had never had a relationship with Mr Howlett or lived with him, this clearly was not the case as she advised at hearing.  Further, in relation to her relocation to Spencer, Ms Bell admitted that she had not told the Department or the SSAT of this move, because she knew it could have looked as if she was in a de facto relationship and her single benefit status might be affected.

21. There are also numerous documents which indicated that during the period under review Ms Bell lived at addresses other than those inhabited by Mr Howlett.  However, Ms Bell's credibility is somewhat diminished in the Tribunal's eyes because of the numerous signatures on documents as "K Howlett" recording her address at 23 Barden Street, Tempe and the belief perpetuated by organisations such as banks, municipal councils, schools, the Electoral Commission and Telecom, that she is indeed Mrs Kym Howlett.  Further, Ms Bell has contradicted certain material, seen most prominently in her answers to the "Assessment of Living Arrangement" form (T57), where in evidence to the Tribunal it was clear that her written answers contained within the form were incorrect and found by the Tribunal to be not fully explained by her misunderstanding of the questions or by lapses of memory.
    1 February 1990 to 30 June 1991

22. During this period, the 1947 Act Applied.  A person was qualified to receive the Sole Parent Pension if the person was a single person (subsection 44(1) of the 1947 Act), and a single person was defined in subsection 43 (1) of the 1947 Act as not being a married person.  Subsection 3(1) of the 1947 Act defined a married person, including a de facto spouse.  On 1 January 1990, subsection 3A of the 1947 Act listed a number of criteria to help decision makers in forming the opinion as to whether or not a person was in a de facto relationship.

23. In Ms Bell and Mr Howlett's case, the Tribunal finds that from time to time there was a level of cooperation in their financial arrangements beyond that of acquaintances or flat mates.  Ms Bell and Mr Howlett jointly owned 23 Barden Street, Tempe and there was more often than not a sharing of household expenses.  There was certainly responsibility taken by Mr Howlett for Shane and the Tribunal accepts that though there was no or little assistance for the other children, Mr Howlett was seen as a father figure to the other children.  Mr Howlett was away from home because of his truck-driving responsibilities and Ms Bell would either stay at or visit the 23 Barden Street home, and she and/or the children looked after the dogs, the mail and other household requirements.  These activities indicated to the Tribunal a degree of commitment and attachment.  Further, the Tribunal finds that Ms Bell held herself out to various people and authorities as being a member of a couple.  The Tribunal cannot accept Ms Bell's evidence that she did not think or bother about the fact that people recorded her name as Mrs Howlett or K Howlett.  The Tribunal does not accept that such occurrences were accidental, particularly as there is some volition involved by Ms Bell in signing her name "Kym Howlett" or "K Howlett".

1. The Tribunal, like the SSAT, is unable to determine whether or not a sexual relationship occurred between Mr Howlett and Ms Bell during this period.  The Tribunal does not consider, however, that evidence provided by Ms Bell that Mr Howlett had provided her with a mobile phone is indicative of a relationship lacking in any commitment or attachment.

2. On consideration of the qualification of section 3A of the 1947 Act by subsections 43A(1), (6) and (17), the Tribunal finds that Mr Howlett and Ms Bell had joint ownership of property at 23 Barden Street, Tempe and had previously shared other residences in Dulwich Hill and Earlwood. In reaching a decision in this matter the Tribunal considered Re Secretary, Department of Social Security and Villani (1990) 20 ALD 49, which concluded that where a state of uncertainty exists in the evidence, the decision-maker is required to conclude that a person is living in a marriage-like relationship.

3. In all the circumstances, it appears to the Tribunal that Mr Howlett and Ms Bell's relationship waxed and waned.  There were fluctuations in the relationship similar to those described by Mrs Bell as characterising her relationship with her daughter.  The Tribunal must also take account of Ms Bell's evidence at hearing, which at times was inconsistent with evidence given previously to the SSAT or contained within the T Documents.

4. Accordingly, the Tribunal determines that there was a marriage-like relationship between Ms Bell and Mr Howlett during the period 1 February 1990 to 30 June 1991.
   1 July 1991 to 28 September 1995

5. With the Act coming into force on 1 July 1999, qualification for Sole Parent Pension (section 249 of the Act) required, amongst other things that a person not be a member of a couple as defined in section 4 of the Act. The Tribunal considers that section 4 is similar in effect to section 3A and subsection 43A(1) of the 1947 Act. The Tribunal finds that from 1 July 1991 to 28 September 1995, Ms Bell lived mostly at 23 Barden Street, Tempe and Mr Howlett lived there when in Sydney. As discussed above, the Tribunal concludes that on all of the evidence and including findings about Ms Bell's credibility, that Ms Bell was a member of a couple. It was during this period that Ms Bell signed the Electoral Enrolment forms as "K Howlett" in September 1994 (T67).  Further, it is during this period that hospital and audiology records have Ms Bell's telephone number as that at 23 Barden Street, Tempe, despite her residential address being recorded as other than 23 Barden Street.  School records have Ms Bell recorded as living at 23 Barden Street, Tempe, as well as at other addresses in Barden Street.
   29 September 1995 to 20 march 1998

6. With the amendment of subsection 4(2)(b)(i) of the Act on 29 September 1995, the Tribunal finds that Ms Bell had a marriage-like relationship with Mr Howlett for the reasons discussed in the previous paragraphs and therefore was not eligible to receive Sole Parent Pension.
   20 March 1998 to 4 February 1999

7. During this period, amendment to the legislation had the Sole Parent Pension replaced by the Parenting Payment. The definition of a member of a couple is contained in section 4 of the Act. The Tribunal finds that there was a continuation of the relationship and during this time in December 1998, finance was approved by the Commonwealth Bank in the names of "BE Howlett" and "K Howlett" on 30 December 1998 (T136), which led to the transfer of property on 1 February 1999 at Wiseman's Ferry Road, Spencer in the names of "Brian Edward Howlett and Kim Jacqueline Howlett" as joint tenants (T135).  This indicates to the Tribunal that Mr Howlett and Ms Bell could still at that time be considered as members of a couple, despite the fluctuations in their relationship.  The Tribunal finds that there seems to be a consistency in Ms Bell holding out to certain organisations and authorities that she was a member of a couple with Mr Howlett, while to other organisations she indicated that she was not.  The objective evidence is that she moved to Spencer after Mr Howlett took ill following his suffering a heart attack.  These actions are indicative to the Tribunal of a higher level of commitment and care for another person, similar to that evidenced by members of couples.  Ms Bell has also not been able to satisfactorily explain to the Tribunal why she would have her name recorded as "K Howlett" on documents if in fact she was not a member of a couple.  In the Tribunal's opinion the objective evidence suggests that Ms Bell and Mr Howlett were members of a couple.  This evidence, the Tribunal finds, involves deliberate actions on Ms Bell's part and cannot be explained by vagueness or memory difficulties as discussed by Associate Professor Hayes and Dr Criticos.

8. The Tribunal has also considered the variety of relationships present in society today.  The Tribunal believes that some flexibility must be applied by decision makers in determining whether a person is a member of a couple or in a marriage-like relationship.  Certainly, Ms Bell's relationship with Mr Howlett is unusual, but on balance, when considering all the evidence objectively, the Tribunal cannot help but come to the conclusion that Ms Bell has been a member of a couple for the period under review.  That Ms Bell has been inconsistent in her oral and documentary evidence is something with which the Tribunal has had to grapple.  The Tribunal considers that Ms Bell cannot expect that her actions, including having signed documents as "K Howlett" or "Mrs Howlett", provided telephone numbers and  the address of 23 Barden Street, Tempe and later, moving to the Spencer home jointly owned by herself and Mr Howlett without advising the Department, can be interpreted as those of a person who is naive as to the implications of such actions.

9. Therefore, the Tribunal finds on an objective analysis of all the facts in this matter that Ms Bell is not qualified for the Parenting Payment in this last period.

10. In relation to whether or not the Parenting Payment should have been cancelled on 26 November 1998, given the Tribunal's previous finding that Ms Bell is a member of a couple and clearly not qualified for this benefit under section 500 of the Act, the Tribunal determines that Ms Bell was not qualified to received the Parenting Payment and therefore the decision to cancel the benefit on 26 November 1998 was correct. The Tribunal is confirmed in this view when considering the mortgage taken out by Mr Howlett and Ms Bell on 30 December 1998 (T136).

11. The Tribunal next turns to consider whether or not there is a debt owed by Ms Bell to the Commonwealth.

12. The Tribunal considers that the approach adopted by the SSAT, that the 1947 provisions apply to debt arising before 1 July 1991 is correct and notes: Re Secretary, Department of Social Security and Mariot (1992) 25 ALD 581; Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295.

13. Under subsection 246(1) of the 1947 Act, if a person made a false statement or representation or failed or omitted to comply with the Act and a pension or benefit was paid which should not have been paid, then that caused a debt to arise. In Ms Bell's case, she regularly informed the Department through review forms that she was not a member of a couple (T5, T12, T14, T16, T18, T19, T20, T21, and T23), and in such circumstances continued to be paid the Sole Parent Pension. The Tribunal has found that Ms Bell's principle home during the period 1 February 1990 up to 30 June 1991 was 23 Barden Street, Tempe and that she was living there as a member of a couple with Mr Howlett. In such circumstance, the Tribunal finds that Ms Bell should not have been paid the Sole Parent Pension and accordingly, under the provisions of subsection 246(1) of the 1947 Act, the amount of Sole Parent Pension paid to Ms Bell during this period is a debt due to the Commonwealth.

14. The next period considered relevant for the consideration of whether or not a debt exists, is 1 July 1991 to 4 February 1999. During this period, the relevant provisions under the Act are contained in subsection 1224(1) of the Act. Again, Ms Bell provided various Departmental review forms to the Department, arising out of either sections 284 and 285 of the Act (Sole Parent Pension) or 506E in relation to Parenting Payment. As with other Departmental reviews, Ms Bell did not inform the Department of her relationship with Mr Howlett or her living at 23 Barden Street, Tempe (T25, T26, T29, T32, T34, T35, T38, T39, T40, and T43). Payments of Sole Parent Pension and later Parenting Payment (single) continued because Ms Bell did not notify the Department, and later Centrelink, of this relationship and accordingly, amounts were paid to her as income support for which she had no entitlement. Departmental benefits paid to Ms Bell during this period are debts due to the Commonwealth.

15. In relation to the quantum of the debts, noting the ARO's calculation, the Tribunal is satisfied that the total debt owed by Ms Bell to the Commonwealth is an amount of $97,998.80.

16. The issue which the Tribunal must next consider is whether the debt should be recovered.

17. The Tribunal does not consider that there are any grounds to write off the debt under the provisions of section 1236 of the Act. Ms Bell has a capacity (although limited) to repay the debt and nothing would be gained by postponing the recovery of this debt.

18. In relation to the waiver of the debt because of sole administrative error as provided in section 1237A of the Act, the Tribunal finds that there is no sole administrative error in this case and accordingly, waiver is not permitted under this provision.

19. The Tribunal considers section 1237AAD of the Act, which provides that the Secretary, or the Tribunal standing in the Secretary's shoes, may waive in whole or as a part, the right to recover a debt, if satisfied that a person did not knowingly make false statements or representations, or failed or omitted to comply with a provision of either the 1947 Act, or the Act and where there are special circumstances.

20. The Explanatory Memorandum on the introduction of section 1237AAD of the Act noted that a consideration of a person's special circumstances are barred if the debt arose because of deliberate fraud, that is, "…the discretion may be exercised where a debt arose wholly because of an innocent mistake".  The Explanatory Memorandum further noted that:

    "…Accordingly, the new special circumstances provision can only be used where the debt arose because of an innocent mistake by a social security recipient.  The rationale for this exception is that it is not considered appropriate to provide relief under section 1237AAD if a debtor has deliberately set out to defraud the Commonwealth."

21. In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, that Tribunal concluded:

    "48. There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission."

22. Re Callaghan (supra) was applied in Re Secretary, Department of Social Security and Gray-Corking (1997) 2(11) SSR 152 in which that Tribunal decided that the Respondent "was merely naive about her responsibility to disclose the relationship rather than that the debt arose because she knowingly failed to comply with a provision of the Act."

23. The Tribunal has in this decision expressed concern about Ms Bell's credibility and her failure to correctly inform of her true situation in various Departmental  and other documents.  It is clear that Ms Bell held herself out to many people and organisations as being Mrs Howlett and therefore a member of a couple.  To the Department she represented herself as being of single status.  The Tribunal has considered whether Ms Bell is simply naive in her actions, unaware of her responsibilities or the consequences of her actions, or caused by her medical condition to make an innocent mistake.  Further, the Tribunal finds on the evidence that, while Ms Bell does have a condition reported by Associate Professor Hayes and Dr Criticos which causes her to be vague, not orientated in time or space and having difficulty in solving complex problems and undertaking executive functioning in planning and carrying out an action (Exhibit A1), her deliberate actions cannot be fully explained by this condition.  Ms Bell is reported as being of average intelligence and no other organic brain dysfunction has been discovered on further investigation undertaken by Dr Criticos.  Ms Bell has been diagnosed in 2001 as having generalised anxiety disorder, but Dr Criticos is unable to determine the date of onset, as he has not treated her since 1998.  By inference, it would seem as though Ms Bell has had the onset of generalised anxiety disorder between 1998 and 2001.  The Tribunal asks itself, could Ms Bell's condition of iron deficiency have caused her to sign documents as "Kym Howlett or Mrs Howlett" and to forget that she in fact was of single status.  While the Social Security Act 1991 is beneficial legislation, there is nothing before the Tribunal to indicate that Ms Bell would not have known the difference between signing as Ms Bell and as "Mrs Howlett".  The frequency of records of Ms Bell being recorded as "Mrs Howlett" or "Kym Howlett" and signed by her in this form, and also of indicating her home and/or telephone number was that associated with 23 Barden Street, Tempe over a long period, leads the Tribunal to conclude that Ms Bell and Mr Howlett were more than "flat-mates who argue", as was described by Associate Professor Hayes.  Ms Bell's actions in this regard appear to the Tribunal to be more deliberate and are not described or accounted for by the symptoms of Ms Bell's condition as noted by Associate Professor Hayes and Dr Criticos.

24. In all the circumstances, the Tribunal determines that Ms Bell does not meet the provisions of section 1237AAD(a)(ii) of the Act because she did not advise the Department of her true situation.

25. Accordingly, for the reasons set out above, the Tribunal finds that Ms Bell does not satisfy subsection 1237AAD(a) of the Act and therefore the discretion to waive a part or whole of the debt in the special circumstances of this case is not able to be considered. In these circumstances, the decision under review is affirmed.

26. The debt owed by Ms Bell to the Commonwealth is very large and particularly so for a person in receipt of income support.  The Department is urged to consider the recovery of this debt in a compassionate manner and to organise repayment commensurate with Ms Bell's capacity to repay.

    I certify that the 136 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member

    Signed:         ............[sgnd]..................................................................
      Stella Vaughan, Associate

    Date of Hearing  8 February 2001
    Date of Decision  2 May 2001
    Representative for the Applicant              Self represented
    Representative for the Respondent        Ms A Smith, Departmental Advocate