BRIMSON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 797
•18 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 797
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4661
GENERAL ADMINISTRATIVE DIVISION ) Re CLAYTON BRIMSON Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr T Schafer, Member Date18 October 2010
PlaceSydney
Decision The decision under review is affirmed. .....................[sgd]..................
Dr T Schafer
Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – whether member of a couple – whether couple had separated – couple remained legally married – evidence of shared living arrangement – evidence of financial interdependence – evidence of shared social life – evidence of emotional commitment – decision under review is affirmed.
Social Security Act 1991, s 4
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
Pelka v Secretary Department of Family and Community Services (2006) 151 FCR 546.
REASONS FOR DECISION
October 2010 Dr T Schafer, Member 1.Mr Brimson has applied to the Tribunal for review of the decision of the Social Security Appeals Tribunal dated 1 September 2009 which affirmed the decision of Centrelink to assess his Newstart Allowance on the basis he is a member of a couple.
Background
2.Mr Brimson and Ms Sherry Bryen married on 31 August 2003. Mr Brimson continues to be married to Ms Bryen.
3.On 23 April 2008, Mr Brimson lodged a claim for Newstart Allowance, and nominated Ms Bryen as his partner. The claim was granted and payments were backdated to 17 April 2008.
4.On 29 May 2008, Mr Brimson informed Centrelink that he had separated from Ms Bryen on 19 May 2008, although they planned to live temporarily (for a period of 12 weeks) under the same roof. Mr Brimson listed Michaelle Domingo and Rita Ghosn as referees who could confirm the separation. Centrelink contacted Ms Domingo and Ms Ghosn to confirm Mr Brimson’s separation on 6 June 2008. Ms Domingo advised Centrelink that Mr Brimson had told her about 4 weeks beforehand that he and Ms Bryen had separated. Ms Ghosn advised Centrelink that Mr Brimson had told her about 2 weeks beforehand that he and Ms Bryen had separated.
5.On 6 June 2008, Centrelink accepted Mr Brimson’s claim to be living separated under the same roof and backdated its decision to 19 May 2008.
6.On 14 November 2008, Centrelink wrote to Mr Brimson in relation to notification Centrelink had received from the Department of Immigration and Citizenship which indicated that he departed from Australia with Ms Bryen on 26 October 2008. Mr Brimson was advised that this change in circumstance may affect his Centrelink payment and that he must contact Centrelink by 5 December 2008.
7.On 26 November 2008, Centrelink wrote to Ms Bryen and requested that she complete an SS293 ‘Assessment of Living Arrangements – Separated Under One Roof’ form. On the same day, Centrelink wrote to Mr Brimson and requested that he complete the same form. They also requested that he:
(a)advise why he is living with his ex-partner under the same roof; and
(b)provide the names and addresses of two friends who could confirm that Mr Brimson and Ms Bryen were still separated.
8.On 10 December 2008, Centrelink received an Assessment of Living Arrangements Form from Mr Brimson. Mr Brimson stated in the form that:
(a)he and Ms Bryen shared the living areas, kitchen and laundry, but had separate sleeping areas and bathroom;
(b)he did not pay rent or board because he looked after the pets;
(c)Ms Bryen paid for electricity gas and telephone and Mr Brimson would “chip in” if he could;
(d)he and Ms Bryen shared the use of a car;
(e)he and Ms Bryen both had access to each other’s bank accounts;
(f)Ms Bryen was authorised to use a credit card operating on Mr Brimson’s account;
(g)he and Ms Bryen were each nominated as beneficiaries under each other’s wills and superannuation policies;
(h)there were relative, friends or regular associates who did not know that Mr Brimson and Ms Bryen were separated;
(i)he and Ms Bryen no longer had a sexual relationship; and
(j)he and Ms Bryen hadn’t filed for dissolution of marriage because Ms Bryen did not believe in divorce due to her religion.
9.On 22 January 2009, Centrelink wrote to Mr Brimson and reiterated that Mr Brimson was required to provide the names and addresses of two friends who could confirm that he and Ms Bryen had separated. They requested this information by 6 February 2009.
10.On 2 February 2009, Mr Brimson nominated Mr Suzie Blades as a referee who could verify his current living arrangements. He stated that he would provide the name of the second referee within 48 hours, but this did not occur. Centrelink wrote to Ms Blades on 3 February 2009 and requested that she complete a questionnaire in relation to Mr Brimson’s separation from Ms Bryen, within 14 days. Centrelink did not receive a response to this correspondence.
11.On 3 April 2009, Centrelink notified Mr Brimson of its decision that, based on the information provided by Mr Brimson and the fact that his separation from Ms Bryen could not be verified by a referee, Centrelink was unable to continue to pay his Newstart Allowance based on the single person rate.. Centrelink requested that Mr Brimson compete a MOD P form so that he could be assessed for the partnered rate of his Newstart Allowance. Centrelink also advised Mr Brimson that if the form was not received by 20 April 2009, Mr Brimson’s payments would be suspended.
12.On 9 April 2009, Mr Brimson contacted Centrelink and requested that the decision of 3 April 2009 be reviewed. On the same day, Centrelink wrote to Mr Brimson and advised him that the original decision maker affirmed the decision and that the decision had been sent for review by an authorised review officer (ARO).
13.On 24 April 2009, Mr Brimson’s Newstart Allowance was suspended because the MOD P form had not been returned.
14.On 30 April 2009, the ARO telephoned Mr Brimson. Mr Brimson told the ARO that his circumstances had changed in that Ms Bryen had moved out. The ARO advised Mr Brimson to attend a Centrelink office to inform them of his changed circumstances. The ARO also stated that, based on the changed circumstances, a new decision might be made about Mr Brimson’s Newstart Allowance, but the change in circumstances would not otherwise affect the decision under review.
15.On 1 May 2009, Mr Brimson attended the Penrith Centrelink office and stated that Ms Bryen had moved out of their home. Based on this information, Mr Brimson’s Newstart Allowance payments were reinstated.
16.On 4 May 2009, the ARO again telephoned Mr Brimson. Mr Brimson stated that:
(a)Ms Bryen had moved in with her father, but that he and Ms Bryen had chosen not to inform her father of their separation;
(b)Ms Bryen’s pets were still at Mr Brimson’s address, and he was looking after them;
(c)Mr Brimson and Ms Bryen still shared one car;
(d)Mr Brimson paid the car loan;
(e)Ms Bryen still contributed to the rent of Mr Brimson’s flat;
(f)Ms Bryen still had a key to Mr Brimson’s flat;
(g)Mr Brimson paid the bills, and Ms Bryen paid the shortfall;
(h)Ms Bryen now had her own bank account, part of her wages went into that account, and part continued to go into her and Mr Brimson's joint account;
(i)both Mr Brimson and Ms Bryen had recently dated other people;
(j)Mr Brimson and Ms Bryen had booked a holiday in March 2008 which had a no refund policy, so they went on the holiday together; and
(k)Mr Brimson and Ms Bryen were still very good friends.
17.On 12 May 2009, the ARO affirmed the decision under review and found that Mr Brimson was a member of a couple during the relevant period.
18.On 15 May 2009, Centrelink wrote to Mr Brimson and requested evidence of Ms Bryen’s address within 14 days, or payment of Mr Brimson’s Newstart Allowance would be suspended. As no response was received to this letter, Mr Brimson’s Newstart Allowance payments were suspended.
19.On 10 July 2009, Mr Brimson lodged an application with the SSAT for a review of the decision made by the ARO.
20.On the same day, Mr Brimson advised Centrelink that Ms Bryen was moving back in with him that day, but they were still separated.
21.Also on the same day, Mr Brimson’s Newstart Allowance was reinstated, pending review by the SSAT.
22.On 1 September 2009, the SSAT affirmed the decision of the ARO.
23.On 30 September 2009, Mr Brimson lodged an application for review of the decision of the SSAT by this Tribunal.
24.On 1 October 2009, the Tribunal made a stay order against implementation of SSAT’s decision, pending the Tribunal’s decision or further order of the Tribunal.
Issue to be decided
25.The issue to be decided is whether Mr Brimson has been a member of a couple since 3 April 2009.
Relevant legislation
26.The phrase ‘member of a couple’ is defined in section 4 of the Social Security Act 1991 (the Act), which provides:
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
…
27. Subsection 4(3) of the Act provides that, in forming an opinion about the relationship between two people, the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
...
Consideration of Evidence
28.Mr Brimson was self-represented. He refused to give an oath or affirmation before giving his evidence, and maintained that refusal, despite being advised that such a refusal could affect the weight that would be given to any oral evidence he gave before the Tribunal. The Respondent was unwilling to cross-examine Mr Brimson without sworn evidence.
29.Mr Brimson was legally married to Ms Bryen at the time the original decision was made and continued to be married to her when he appeared before the Tribunal. For the purposes of the Act, therefore, he would be considered a member of a couple unless he can establish that he and Ms Bryen have been living separately and apart, on a permanent or indefinite basis. The criteria in sub-section 4(3) of the Act must be considered in deciding whether or not Mr Brimson and Ms Bryen have been living separately. It is noted, however, that the list of criteria in section 4(3) is not exhaustive and the Tribunal must have regard to the circumstances of the case: Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27 and Pelka v Secretary Department of Family and Community Services (2006) 151 FCR 546.
30.The Tribunal notes Mr Brimson’s statement that Ms Bryen decided not to provide evidence that she and Mr Brimson are separated. She refused to provide a statutory declaration, which was requested by Centrelink, or to provide other confirmatory evidence to Centrelink, the ARO, the SSAT or this Tribunal.
Financial aspects of the relationship
31.In evidence before the Tribunal, Mr Brimson stated that at the time the original decision was made, which is the relevant time for the purposes of this review, Mr Brimson and Ms Bryen had a joint bank account and Ms Bryen had a credit card which operated on Mr Brimson’s account. Mr Brimson also stated that he and Ms Bryen jointly owned a car, although this is inconsistent with Mr Brimson’s evidence to the SSAT, wherein he stated that the car was registered in his name but that he and Ms Bryen each contributed to the registration costs on a year about basis (i.e. he would pay the costs one year and Ms Bryen would pay the costs in alternate years).
32.In relation to financial expenses, Mr Brimson stated that Ms Bryen was working at the time the original decision was made, whereas Mr Brimson was not. He also stated that he contributed household support whilst he wasn’t working and made some contribution to the household expenses from his Centrelink payment. He conceded, though, that Ms Bryen was meeting most of the financial expenses.
33.The above circumstances indicate that Mr Brimson and Ms Bryen demonstrated financial interdependence at the time the original decision was made.
34.Mr Brimson stated before this Tribunal that he and Ms Bryen now have separate bank accounts, and ownership of the car has been transferred solely into Ms Bryen’s name. He also stated that he is now working, and is therefore able to financially contribute on an equal basis to the household expenses. I note that these changes in circumstances may affect Mr Brimson’s current eligibility for Newstart Allowance, but they are not relevant for the consideration of Mr Brimson’s present application for review.
The nature of the household
35.Mr Brimson stated in evidence before the SSAT that he and Ms Bryen lived in a three bedroom, two bathroom townhouse and they each had their own bedroom and bathroom. They have continued to live together, apart from a brief period from May 2009 to July 2009, when Ms Bryen lived with her father.
36.Before this Tribunal, Mr Brimson stated that one of the reasons he and Ms Bryen continued to live together was because of the difficulty in separating their pets, which they jointly owned and he considered their “children”. Relevantly, he admitted to the SSAT that he and Ms Bryen had “only recently acquired” two kittens.
The social aspects of the relationship
37.There appeared to be little, if any, third party evidence regarding Mr Brimson’s and Ms Bryen’s separation. Mr Brimson stated that Ms Bryen’s family has not been informed about the separation. In relation to his family, he told the SSAT that he is not on speaking terms with either his mother or sister, and had not told his family about the separation. Although he stated that a couple of his friends knew about the separation, he said that they probably saw it more as a rough patch rather than a permanent separation.
38.Before this Tribunal, Mr Brimson was directly asked whether his friends thought that he and Ms Bryen were still legally married, rather than separated. He responded that people had noticed and commented that he had stopped wearing a wedding ring, but stated that he did not discuss his personal life.
39.In relation to Ms Bryen’s family, Mr Brimson stated that the family knows that Mr Brimson and Ms Bryen are having “major marriage dramas”. They chose not to discuss their separation with her family because the family had been affected by illness and one family member had died.
40.In evidence before the SSAT, Mr Brimson said that he and Ms Bryen are still invited to places as a couple. This is consistent with his statement before this Tribunal. Mr Brimson also told the SSAT that he and Ms Bryen still go out together sometimes and would probably continue to do so.
41.It is noteworthy that Mr Brimson stated to this Tribunal that he spent 95% or more of his time with Ms Bryen. At the same time, Mr Brimson stated that he and Ms Bryen were “both seeing and sleeping with other people”. I find it difficult to accept any claim by Mr Brimson that either he or Ms Bryen could possibly establish separate intimate relationships with other people if they spend greater than 95% of their time together.
Any sexual relationship between the people
42.The Assessment of Living Arrangements form submitted to Centelink on 10 December 2008 by Mr Brimson indicated that he and Ms Bryen had not been in a sexual relationship since their separation. The Tribunal did not question Mr Brimson further regarding this aspect of his relationship with Ms Bryen.
The nature of the people’s commitment to each other
43.Mr Brimson stated that he and Ms Bryen are “best friends” that would spend greater than 95% of their time together. Despite apparently separating, they at least continued to hold a joint bank account until recently, to jointly contribute to the running of a car until recently, and to contribute variously to household duties and financial expenses. They also continued to jointly care for a cat, a cockatoo and a parrot, and recently acquired more pets together.
44.Despite Mr Brimson’s claim that his relationship with Ms Bryen ended on 19 May 2008, he has not sought a divorce. I note the SSAT’s comment that Mr Brimson had previously said he was not pursuing a divorce because of Ms Bryen’s religious beliefs, to which Mr Brimson responded that Ms Bryen was Catholic, but only as much as it suited her.
Decision
45.Mr Brimson and Ms Bryen are still legally married. The evidence indicates that Mr Brimson and Ms Bryen were financially interdependent at least until the time the SSAT’s decision was made. At the time of the SSAT decision, Mr Brimson stated that he cared for the animals, did housework including the cooking and cleaning, and Ms Bryen paid the rent. Mr Brimson also said that he and Ms Bryen jointly owned a car, and had a joint account into which his Newstart Allowance and Ms Bryen’s wage was paid, and out of which all the bills and household expenses were paid. In my view, this evidence is strongly indicative of both financial and household interdependence.
46.Before this Tribunal, Mr Brimson stated that he and Ms Bryen now have separate bank accounts, that he is working and now contributes more equally to household expenses, and that the car which he and Ms Bryen jointly owned has been transferred to Ms Bryen. These changed circumstances, however, do not assist Mr Brimson in relation to his status or otherwise as a member of a couple on 3 April 2009; I note that they may be relevant should Mr Brimson wish to apply for a change to his Newstart Allowance based on these circumstances.
47.There was considerable evidence before the Tribunal that Mr Brimson and Ms Bryen continue to socialise together. Neither their families nor most of their friends are aware that they have separated. The nature of their commitment was evidenced by their ongoing companionship and ongoing emotional and financial support of each other. The most compelling evidence was Mr Brimson’s statement that he and Ms Bryen spend greater than 95% of their time together and would do anything for each other.
48.For the reasons stated above, this Tribunal determines that Mr Brimson was a member of a married couple as at 3 April 2009 and was not, in the Tribunal’s view, living separately and apart from Ms Bryen on a permanent or indefinite basis.
49.The Tribunal also determines that Mr Brimson was a member of a couple as at 1 September 2009, when the SSAT’s decision was made.
50.During the hearing, Mr Brimson presented evidence of changed circumstances in respect of his living arrangements with Ms Bryan, which might result in a change in his Newstart Allowance, subject to him submitting an application to Centrelink for reassessment on the basis of these changed circumstances. Mr Brimson was encouraged to advise Centrelink of his changed circumstances, but was advised that they were not relevant to the decision under review.
51.The decision under review is affirmed.
I certify that the 51 preceding paragraphs are a
true copy of the reasons for the decision
herein of Dr T Schafer, Member.Signed: .................................................................................
Date of Hearing 9 July 2010
Date of Decision 18 October 2010
ApplicantSelf-represented
Representative for the Respondent: Ms A Bain, Sparke Helmore
0
1
0