Burrell and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1162
•6 May 2020
Burrell and Secretary, Department of Social Services (Social services second review) [2020] AATA 1162 (6 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2019/1141
GENERAL DIVISION ) 2019/1142Re: Martin Burrell
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Member D Mitchell
DATE OF CORRIGENDUM: 11 May 2020
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision as follows:
1.the matter number on the cover sheet be amended to include the linked file number “2019/1142”; and
2.the date “5 July 2016” as it reads twice on page 11 at paragraph 26, once on page 33 at paragraph 82 and once on page 46 at paragraph 134 should read “3 July 2017”.
.............................[SGD]........................
Member D MitchellDivision:GENERAL DIVISION
File Number(s): 2019/1141
Re:Martin Burrell
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:6 May 2020
Place:Brisbane
The Tribunal affirms the decisions under review.
...............[SGD]...................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Age Pension – rate of pension – overpayment – wife’s income not taken into consideration - whether Applicant was a member of a couple – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Ammar and Secretary, Department of Social Services (Social services second review) [2016] AATA 493
Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Groth v Secretary, Department of Social Security[1995] FCA 1708; (1995) 40 ALD 541
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084
Liang and Secretary, Department of Social Services [2015] AATA 275
L v Department of Social SecurityNo N94/272 AAT No. 10230 (1995) 38 ALD 176
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Purdie and Secretary, Department of Social Services [2013] AATA 743
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Buonu and Department of Social Security (1997) 50 ALD 597
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225
Re Secretary, Department of Family and Community Services and Radmilovich [2002] AATA 770
Re Stubbs and Secretary Department of Families Community Services (2003) AAT 03/0729
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones(2012) 89 ATR 267; [2012] FCA 639
Secretary, Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
REASONS FOR DECISION
Member D Mitchell
6 May 2020
INTRODUCTION
1. Mr Martin Burrell (the Applicant) is seeking review of a decision of the Social Services and Child Support Division (SSCSD) of this Tribunal made on 18 February 2019[1] to affirm the following three decisions of the Respondent that the:
(a)Applicant’s correct rate of age pension is the partnered rate;
(b)Applicant has an age pension debt of $8,467.80 for the period 9 October 2012 to 3 June 2013; and
(c)Applicant has an age pension debt of $4,636.69 for the period 28 June 2016 to 26 December 2016.
[1] Exhibit 1, T Documents, T2, pages 2-17, Decision of the SSCSD.
BACKGROUND
2. The Applicant provided a Customer Declaration Form – Newstart Allowance on 17 March 2011 in which he declared that he was married to Ann Mary Burrell (Mrs Burrell), and that this relationship status start date was 1 July 1991.[2]
[2] Exhibit 1, T Documents, T4, pages 38-42, Customer Declaration Form – Newstart Allowance.
3. The Applicant was granted Newstart Allowance with effect from 8 March 2011.[3]
[3] Exhibit 1, T Documents, T34, page 255, Centrelink mainframe captures for the Applicant – Allowance benefit history.
4. Having reached age pension age, the Applicant was granted the age pension from 12 August 2011.[4]
[4] Exhibit 1, T Documents, T34, page 254, Centrelink mainframe captures for the Applicant – Pensions status history.
5. On 5 December 2016, Mrs Burrell submitted a claim for age pension in which she provided that she had been married to the Applicant since 26 December 1972.[5]
[5] Exhibit 1, T Documents, T6, pages 48-65, Claim for Age Pension made by Ann Burrell (redacted).
6. On 12 December 2016, the Respondent wrote to the Applicant to request that he provide copies of Mrs Burrell’s payslips for the period 8 March 2011 to 12 December 2016.[6]
[6] Exhibit 1, T Documents, T33, pages 248-249, Letters from Respondent to Applicant.
7. In a response dated 19 December 2016, the Applicant advised the Respondent that he did not have access to Mrs Burrell’s payslips for the period sought and that he believed that Mrs Burrell may make an application to be considered to be separated but living under one roof.[7]
[7] Exhibit 1, T Documents, T7, page 66, Letter from Applicant.
8. Mrs Burrell provided a number of documents to the Respondent between 23 December 2016 and 27 January 2017.[8] These documents are fully redacted pursuant to orders made under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
[8] Exhibit 1, T Documents, T8, pages 67-83; T9, pages 84-91; T10, pages 92-97; T11, pages 98-101, Documents received from Ann Burrell (redacted).
9. The Department wrote to Mrs Burrell’s employer, the Mater Hospital, on 15 May 2017 requesting information regarding her income and a response was received on 29 May 2017.[9]
[9] Exhibit 1, T Documents, T13, pages 117-142, Documents from the Applicant (partially redacted).
10. On 3 July 2017, the Applicant lodged a SS293 – Separated under one roof form[10] and advised among other things:[11]
[10] Exhibit 1, T Documents, T12, pages 102-116, Relationship details – separated under one roof form.
[11] As summarised in Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, pages 2-3, paragraph 10.
·he had separated from Mrs Burrell in 2000;
·they had not lived at different addresses from each other at any time since separating;
·there was no likelihood of them getting back together;
·they have separate finances, friends, social functions, and have no sex, but have not applied to legally terminate their relationship because there was no benefit to doing so;
·he and Mrs Burrell jointly own their home, and pay 50 percent each of the rates and water;
·no property proceedings had been commenced;
·he and Mrs Burrell do not eat together or prepare meals for each other, they do use the same kitchen but cook separately, use the same laundry but use it at different times, share the same bathroom but use it at different times, and do not share a bedroom;
·they do not have a sexual relationship and are free to form a sexual relationship with others;
·they provide care or practical support for one another in times of illness, personal crisis, money matters, and family disputes, ‘as any good friend would do’;
·they do not holiday together, others do not consider them to be partnered, and they do not share social and leisure activities;
·he does not claim Mrs Burrell as a dependent for tax purposes;
·Mrs Burrell’s name is on his Medicare card;
·they do not share joint bank accounts, he does not have access to Mrs Burrell’s accounts, and they do not share any debts;
·he pays for the phone/internet, and they each pay 50 percent of the electricity and gas;
·they do not share a vehicle, and each separately pay for their food and housekeeping items;
·they share cleaning, gardening and general maintenance tasks, but separately do their own washing;
·they jointly own whitegoods and furniture;
·they share joint private medical insurance, and have a joint house insurance policy;
·the Applicant does not have a will, but Mrs Burrell is nominated as a beneficiary under his superannuation and life insurance; and
·they have no dependent children.
11. On 5 July 2017, the Respondent decided that the Applicant and Mrs Burrell are to be treated as a member of a couple.[12]
[12] Exhibit 1, T Documents, T36, pages 324-325, Customer contact file notes for the Applicant for the period 17 March 2011 – 6 November 2018.
12. On 22 November 2017, Mrs Burrell provided further information to the Respondent.[13]
[13] Exhibit 1, T Documents, T15, pages 145-152, Documents from Ann Burrell (partially redacted).
13. On 3 January 2018, the Respondent raised the following two debts against the Applicant on the basis that Mrs Burrell’s earnings from the Mater Hospital had not been taken into account in the payments made to the Applicant:
(d)an age pension debt of $8,467.980 for the period 9 October 2012 to 3 June 2013;[14] and
(e)an age pension debt of $4,636.69 for the period 28 June 2016 to 26 December 2016.[15]
[14] Exhibit 1, T Documents, T16, pages 153-154, Account Payable – debt ID: 94558540.
[15] Exhibit 1, T Documents, T17, pages 155-156, Account Payable – debt ID: 64522864.
14. The Applicant sought review of these decisions and provided a number of submissions together with further information to the Respondent.[16]
[16] Exhibit 1, T Documents, T20, pages 168-169; Statement by Applicant; T21, page 170; T22, page 171, Letter from Keller Nall & Brown Solicitors; T23, pages 172-174, Statement by Applicant; T24, pages 175-180, Statement by Applicant.
15. On 27 February 2018, an Authorised Review Officer (ARO) affirmed the decisions of 3 January 2018 to raise the debts for the periods 9 October 2012 to 3 June 2013[17] and 28 June 2016 to 26 December 2016.[18]
[17] Exhibit 1, T Documents, T26, pages 187-192, Decision and Notes of Authorised Review Officer (debt ID: 94558540).
[18] Exhibit 1, T Documents, T25, pages 181-186, Decision and Notes of Authorised Review Officer (debt ID: 94522864).
16. On 10 July 2018, an ARO affirmed the decision made on 5 July 2017 to pay the Applicant age pension at the partnered rate.[19]
[19] Exhibit 1, T Documents, T27, pages 193-205, Decision and Notes of Authorised Revie Officer (age pension).
17. The Applicant sought a first-tier review of the Respondent’s decisions by the SSCSD of this Tribunal.[20] The SSCSD affirmed the decisions under review on 18 February 2019.[21]
[20] Exhibit 1, T Documents, T28, pages 206-207, Request for statement (debts); T29, pages 208-209, Request for statement (age pension).
[21] Exhibit 1, T Documents, T2, pages 2-17, Decision of the SSCSD.
18. Following this, the Applicant sought a second-tier review of these matters by the General Division of this Tribunal by way of an application received on 1 March 2019.[22]
[22] Exhibit 1, T1, pages 1-2, Application for Review of Decision.
19. A Hearing was held by this Tribunal on 17 December 2019. At the Hearing, the Applicant was self-represented, appeared in person and gave evidence under oath.
ISSUES
20. The issues before the Tribunal are:
1.what was the Applicant’s correct rate of age pension;
2.whether the Applicant has been paid more than his correct amount of age pension for the periods 9 October 2012 to 3 June 2013 and 28 June 2016 to 26 December 2016 (the debt periods), and if so;
3.whether the excess payments are debts that are recoverable in part or in full?
CONSIDERATION
21. The relevant law in relation to these matters is found in the
Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act).What was the Applicant’s correct rate of age pension?
Was the Applicant a member of a couple?
22. Sections 4(2) and 4(3) of the Act set out the member of a couple test. These subsections relevantly provide as follows:
(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; ….
Member of a couple – criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), …, 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 majority 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.
23. The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe (as he then was) provided the following useful analysis:
16. Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person's income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
24. In Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, French J noted:
47. The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of 'marriage-like', will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
25. The factors listed in section 4(3) of the Act are not an exhaustive list and no one factor is determinative, rather, consideration should be given to the total picture of the relationship created by all of the factors.[23]
[23] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [51].
26. The reviewable decision before the Tribunal relates to the Applicant’s correct rate of age pension between 12 August 2011 up to and on 5 July 2016.[24] As such, the evidence provided by the Applicant in relation to his arrangements with Mrs Burrell after this period are relevant only to the extent that they shed light on their intentions and arrangements during that period between 12 August 2011 and 5 July 2016.
[24] Being the date that the Applicant was granted the age pension up to and on the date he lodged his SS293 – Separated under one roof form.
Applicant’s Evidence at Hearing
27. At Hearing the Applicant told the Tribunal he primarily relied on the written evidence he had submitted. He told the Tribunal:
·He was not a member of a couple on 12 August 2011 and believed he was being paid the single rate.
·It is inconsistent to say that he told Centrelink that he separated on 3 July 2017 as he has no recollection of advising them of that on that date. He said he submitted a Form SS293 Separated under one roof form,[25] but that was not advising that he separated on that date. He said he only told Centrelink about three months ago when he completed a form.
[25] Found at Exhibit 1, T Documents, T12, pages 102-116, Relationship details – separated under one roof form.
·He made it clear to the person at Centrelink at Toowong when he was applying for Newstart Allowance that he was single.
·He did not have any evidence of that conversation.
·When asked if he ever checked the rate of his payments, that he was paid less than the full rate. Centrelink had asked him for further information in relation to his superannuation and he figured his rate was lessened due to his financial situation not because he was a member of a couple.
·He did not receive any correspondence from Centrelink that advised him what rate of payment he was receiving. If the correspondence had of said basic rate or partnered rate he would have queried it. He said he had no problem until Mrs Burrell applied for the age pension and submitted a SS293 form. It was only then he took the matter up with Centrelink.
·When asked if he had ever looked the rates up, he said no he had assumed Centrelink were competent.
·Referred to T27, page 202 the ARO notes where the ARO had written ’On 5/7/17 a decision was made he was not a member of a couple.’ When reference was made to that being a typographical error given the context of the remainder of the document, said how many typos do we have to put up with?
·The T-documents were lengthy and mostly irrelevant from T27 onwards.
·He did not have a lot more new to say, the problem is not documented information it is, lack of it – he was single when he applied and everyone who knows him knows that.
·When asked why he had not asked Mrs Burrell to give evidence at the Hearing, he said she had provided two written statements that they were not members of a couple and she did not want to give evidence. He said: ‘She has been disinclined to be a part of this.’
·Their house is in joint names and this is a business arrangement, maintaining the house is an issue as Mrs Burrell does not want to contribute to maintaining it.
·Mrs Burrell had wanted a property settlement and they had an appointment booked with Relationships Australia however that was cancelled.
·Nothing had really changed.
28. Under cross-examination, the Applicant:
·Confirmed that in the Customer Declaration Form – Newstart Allowance dated 17 March 2011[26] he indicated he was married because he was still married. When asked if it was fair to say you would cross out married and say separated, said the issue is with the Centrelink forms – the forms should have the option.
[26] Exhibit 1, T Documents, T4, pages 38-42, Customer Declaration form – Newstart Allowance.
·Confirmed that on the Your Reporting Statement Application for payment of Newstart Allowance form dated 27 March 2011[27] he had ticked no in response to the question asking him if anything had changed (which included: You separated from your partner) and that was consistent with the fact that he was already single at that time.
[27] Exhibit 1, T Documents, T5, pages 43-47, Reporting statement – application for payment of Newstart Allowance.
·When referred to his letter to Centrelink dated 12 December 2016 where he had written ‘I do not have access to my partner’s payslips for the period ….. I believe that my partner may apply for the Separated but Living Under the One Roof application,’[28] said he was using Centrelink’s words, using their language, it does not mean he was admitting he was a partner.
[28] Exhibit 1, T Documents, T7, page 66, Letter from Applicant.
·Confirmed that at 5 July 2017:
oHe jointly owned a property with Mrs Burrell.
oMost expenses were paid by him, except for the rates, house insurance and electricity and water which are paid jointly.
oHe paid for his mobile phone and Mrs Burrell paid for hers.
oThe cost of the home phone and internet were shared.
·When asked if he and Mrs Burrell live together to save money, said ’We are not living together, [Mrs Burrell] lives in Hobart. Save money on rates and insurance only.’
·When taken to Mrs Burrell’s Claim for age pension form completed on 5 December 2016 where she had answered ‘No’ to the question ‘Do you own a home but live elsewhere?’[29] Said Mrs Burrell lives in Tasmania, from 2007 she had the intention to live elsewhere and to live with someone else. At the moment, her intention was to live in Tasmania for 10 days every fortnight.
[29] Exhibit 1, T Documents, T6, page 53, Claim for Age Pension made by Ann Burrell.
·When taken to point 4.1 of Exhibit 10, which was a submission he provided relating to his tax returns and asked if he records Mrs Burrell as he partner and puts her income in as $0, said, ‘yes, I put her down as my wife and zero and they accept that…I am an accountant…I should have never guessed what [Mrs Burrell’s] income was for Centrelink’.
·When asked when he called the Australian Tax Office, said at the end of October 2019 and that he had not contacted them prior to then to discuss putting in zero, he had always put in zero and they accepted it.
·When asked if he claims to be separated, then why does he claim his wife and that he is married in his tax return, said there was nothing inconsistent.
·When asked why they share private health insurance, said they could have separated it any time before him turning 65, however, they have now split it about 3 months ago but it could have been done at any stage.
·Said he and Mrs Burrell have separate bedrooms however share a bathroom.
·Said he maintains the gardens and the house and does not ask Mrs Burrell for assistance.
·When asked about his written statement, where, he had said that he had not told friends that he and Mrs Burrell were separated as they would have to choose and further asked, when did he tell them, he confirmed that was correct and that he could not give a date. He read out the witness statement of Mr John,[30] which made reference to a telephone call between Mr John and the Applicant in 1988 in which he says the Applicant told him that he was no longer a member of a couple. When asked about the statement, and it was noted that the Applicant’s current home was purchased after 1988, he said yes. When asked if it could be that Mr John was not familiar with the Applicant’s situation, he said he saw him regularly and their wives talked regularly. He said he advised Mr John on 17 April 2019 that Mrs Burrell spends 10 days a fortnight in Tasmania.
·When asked why Mr John’s statement was not dated or sworn, said because Mr John is sick and the best he could do was email it.
·Said he was told he was not required to have witness statements in affidavits, that signed letters that had contact details would be acceptable. When asked why though the witness statements contained in Exhibit 10 were presented as if they had been cut and paste into one document, said it was to save space.
·Said that the witness statements were credible and they support him.
·Said that his health is declining and he sees his GP when he needs to, that he does not have an emergency contact listed at the GP’s surgery.
·When asked about Mrs Burrell listing him as an emergency contact, he said yes for her work at the hospital; however, that could have been corrected a while ago.
·Said his relationship with his daughter was no different to anyone else in this age. He talks to her and his grandchildren sometimes but not often. He said the same applies in relation to his son.
[30] Exhibit 11, Statement of Bill John.
Written evidence in relation to the factors outlined in section 4(3) of the Act
Financial aspects of the relationship
29. It is not disputed that the Applicant and Mrs Burrell jointly own their family home. There is no debt related to this property and the Applicant’s evidence is that he has no debt at all.
30. The Applicant’s evidence is that in relation to day-to-day expenses, he and Mrs Burrell purchase their own food, both contribute to the purchase of cleaning products for the home and that Mrs Burrell will not contribute to the cost to undertake maintenance of the property.[31]
[31] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
31. The Applicant’s evidence is that he and Mrs Burrell share the cost of the rates, electricity, water and home insurance equally. That he pays the home phone and internet bills and that Mrs Burrell was paying the joint private health insurance premiums. The Applicant submitted that ‘even by splitting the electricity, gas and water expenses, we are not getting any financial advantage out of it – we are only paying, roughly, for what each person uses – exactly the same as a shared house for renters.’[32]
[32] Exhibit 10 Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
32. There is no evidence before the Tribunal that the Applicant and Mrs Burrell owe any legal obligations in respect of each other. The Applicant’s evidence is that he and Mrs Burrell have separate bank accounts, it is unclear when this arrangement commenced as throughout the Applicant’s written submissions and records of his conversation with the ARO reference is made to the 1980s, 1992 and 2009.[33]
Nature of the household
[33] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019; Exhibit 1, T Documents, T27, pages 193-205, Decision and Notes of Authorised Review Officer (age pension).
33. The evidence before the Tribunal makes it clear that the Applicant and Mrs Burrell own their family home jointly and both consider it to be their primary place of residence.
34. Although the Applicant provided in his submissions that Mrs Burrell lives between their family home and Tasmania, he did not provide any firm evidence in relation to where she stays when she is in Tasmania or that she has set up a place of residence there. Mrs Burrell in her Claim for Age Pension provided their family home address as her permanent residence[34] and answered yes to the question does she currently live in the same home as her partner[35] and answered no to the question did she own a home but live elsewhere.[36] As such, while it may be the case that Mrs Burrell does spend a number of nights outside the family home, she has made a clear indication to Centrelink that her permanent residence is her family home in Brisbane.
[34] Exhibit 1, T Documents, T6, page 49, Claim for Age Pension made by Ann Burrell (redacted).
[35] Exhibit 1, T Documents, T6, page 50, Claim for Age Pension made by Ann Burrell (redacted).
[36] Exhibit 1, T Documents, T6, page 53, Claim for Age Pension made by Ann Burrell (redacted).
35. The Applicant and Mrs Burrell’s children are adults who no longer live in the family home. There is no evidence that they share any joint responsibility for providing care or support to their children.
36. The evidence before the Tribunal indicates that the Applicant and Mrs Burrell have separate bedrooms, however share the bathroom, laundry and kitchen.
37. In relation to the basis on which responsibility for housework and maintenance is concerned, the Applicant’s evidence is varied across his written submissions, the recorded conversations he had with the ARO and evidence provided at Hearing. For example, the Applicant is recorded as advising the ARO on 9 July 2018 that they share the cleaning, gardening and general maintenance,[37] in his Form SS293 Separated under one roof form he advised that cleaning, gardening and general maintenance is 50% each whereas in his submission provided to the Respondent on 22 February 2018 he wrote, ‘I do 95% of the cooking, housework, maintenance and gardening – the same attitude a guest would have’[38]. In his submission dated 28 May 2019 he wrote, ‘I now do 100% of the housework, gardening and maintenance around the house’.’[39]
Social aspects of the relationship
[37] Exhibit 1, T Documents, T27, page 199, Decision and Notes of Authorised Review Officer (age pension).
[38] Exhibit 1, T Documents, T12, page 109, Relationship details – separated under one roof form.
[39] Exhibit 7, Applicant’s submission titled Supplementary Evidence #7, dated 28 May 2019.
38. The evidence before the Tribunal indicates that the Applicant and Mrs Burrell have been married since 26 December 1972 and continue to hold themselves out as being married to each other.
39. This was evidenced in the Applicant’s submission that he was not disputing that he and Mrs Burrell are married and that if that is what Mrs Burrell also ticked on her application for age pension it is only confirming that we are independently consistent on that point.[40]
[40] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019; Exhibit 1, T Documents, T24, page 177, Statement by Applicant.
40. Although the Applicant has advised that since the Hearing of the SSCSD on 5 February 2019 he has separated his and Mrs Burrell’s private health insurance and Medicare cards, up until that point they had continued to present to these organisations as a couple.
41. The Applicant’s evidence indicates that he and Mrs Burrell ceased to undertake many joint social activities quite early in their marriage and that at a certain point ceased undertaking joint social activities at all. He submitted that they travelled overseas separately and did not go on joint holidays.[41]
[41] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
42. The Applicant’s evidence was that his daughter did not consider him and Mrs Burrell as personal partners because on her joint wedding invitation (sent at the end of 2016) she invited Mrs Burrell and her friend, [Mr X], and then him separately. He said that this indicated to all other guests (family and close friends) their position on personal partners – that Mrs Burrell had a personal partner and he did not. He said that for the last 30-40 years Mrs Burrell had never invited him to partner her to one of her work events.[42] In his correspondence to his daughter dated November 2016, the Applicant, after providing his opinion of Mrs Burrell and her friend said: ’Do not bother to vary the guest list, the cat is out of the bag, and if, in future you are contemplating including [Mr X] as a family member, do not bother to invite me. Further degradation may only lead to bitterness towards me.’[43]
[42] Exhibit 1, T Documents, T23, page 174, Statement by Applicant.
[43] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
43. The Applicant’s evidence was that he and Mrs Burrell have separate friends and attend different events. Much of the evidence provided related to times after July 2017 and, consequently, bears little weight on this present matter.[44]
[44] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
44. In relation to whether they had told their family and friends that they were separated or no longer a member of a couple, the Applicant’s written submissions provided the following in addition to the material he provided at the Hearing:
·[Mrs Burrell’s] mother is still alive, and it would break her heart if she knew [Mrs Burrell] and I had separated, so our separation has been a selective secret. In the culture of my youth, you did not air your dirty laundry in public. If you did you would be ostracised.[45]
·That people had reached their own conclusions because Mrs Burrell had a new partner who attended events with her.[46]
·Over the last 20 years all of his friends and relatives have been advised that [Mrs Burrell] and he are no longer members of the same couple.[47]
·In the SS293 – Separated under one roof form that he answered No to question 71 which asked if his children were aware of the separation.[48] He then told the ARO that the question is technically wrong, he advised that people – his son and close friends would properly come to the same independent conclusion that they are separated. The Applicant advised he could not prove this, but that he could get statements from his friends.[49]
[45] Exhibit 8, Applicant’s submission titled: Supplementary Evidence 6, dated 1 May 2019.
[46] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
[47] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
[48] Exhibit 1, T Documents, T12, page 111, Relationship details – separated under one roof form.
[49] Exhibit 1, T Documents, T27, page 201, Decision and Notes of Authorised Review Officer (age pension).
45. The Applicant provided unsworn witness statements in support of his application. Relevantly:
·Ms Walls, a family friend wrote that she knew the Applicant and his wife since 1981 and that they did get married and she believed they have not applied for a divorce, but it has become apparent to her that they have grown apart over the last 20 plus years. She states that, ‘For Centrelink purposes, I do not consider that [the Applicant] and [Mrs Burrell] were members of a couple when he turned 65, or are presently members.’[50]
·Ms Johnson, a former work colleague of the Applicant wrote that she had known the Applicant for 10 years since 2000 and that although he had said he was married to [Mrs Burrell] he had never attended the many work functions with her and she had never met her, although partners were invited. She said ‘He certainly did not present to these work groups as a member of a couple with [Mrs Burrell].’[51]
·Mr Nicholas Burrell, the Applicant’s son wrote that ‘For as long as I can remember my father has not been a member of a couple. Certainly, was not at age 65.’[52]
·Ms Sokvine, the Applicant’s sister wrote that the Applicant and Mrs Burrell, although having gone through many testing times without the need to get a divorce, they have worked together to keep a roof over their children’s heads and provide them with the best support possible. She said: ‘I do not consider [the Applicant] has been a member of a couple for the last 15-20 years and he certainly was not at age 65’.[53]
[50] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
[51] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
[52] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
[53] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
Sexual relationship
46. The Applicant has provided a significant amount of information about his sexual relationship with Mrs Burrell dating back to prior to their marriage to both the Tribunal and in submitted correspondence to his daughter. His evidence was that he and Mrs Burrell have long ceased to have a sexual relationship.[54]
[54] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
47. The Respondent accepts the Applicant’s evidence, however, contents that this fact carries no weight one way or another.[55]
Nature of the commitment to each other
[55] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 8, paragraph 47.
48. The evidence before the Tribunal is that the Applicant and Mrs Burrell have been married since 1972, have spent time living overseas together, moved together from Tasmania to Brisbane, raised two children and at all relevant times have had a place of residence together.
49. In the ARO’s notes of their conversation with the Applicant on 9 and 10 July 2018 it was recorded that the Applicant advised:[56]
[56] Exhibit 1, T Documents, T27, pages 193-205, Decision and Notes of Authorised Review Officer (age pension).
·He continues to live with Mrs Burrell as it is convenient.
·Advised [Mrs Burrell] is seeing someone else and is spending less and less time at their home.
·It is not financially or emotionally viable to get a divorce.
·Divorce is emotional and traumatic and it is too difficult to divide up property.
·They have come to a deal that they live their own lives.
·They support each other as good friends would in times of illness, personal crisis, money matters or family dispute.
·[Mrs Burrell] is his best friend.
·At his age they are still married but not a couple.
·His separation goes back to when they got separate bank accounts in the 80’s, it has been a process that has evolved over time and he feels 2000 is not an accurate date as it could be stretched back to the 1980’s.
·He and Mrs Burrell had decided that they could not afford to get divorced.
·There is no benefit in legally terminating the marriage as they cannot afford it.
·The emotional trauma of going through divorce is too much. They both mutually agree not to get a divorce.
·His situation has not changed, so he wondered why it is an issue now.
50. The Applicant provided an example of him showing support to Mrs Burrell during a time of personal need and a continued commitment to do so in his communication to his daughter at the end of 2016.[57]
[57] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
51. The Applicant consistently maintained that he and Mrs Burrell never celebrated their wedding anniversary or Valentine’s Day.
52. The Applicant submitted that he does not need to preserve his assets as he trusts Mrs Burrell.[58]
[58] Exhibit 1, T Documents, T24, page 179, Statement by Applicant.
53. The Applicant submitted that he provides no more emotional support to Mrs Burrell than that of two good friends. He wrote:[59]
I have no commitment to a relationship with [Mrs Burrell] other than treating her the same as any of my other good friends. Divorce would destroy this good friendship.
[59] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
54. The Applicant made a number of submissions in relation to Mrs Burrell currently being in a relationship and previously being in a relationship with other men. However, his evidence is contradictory in relation to whether these are romantic relationships, genuine relationships, friendships or relationships of convenience.[60]
[60] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
55. The Applicant also provided evidence that he had throughout the course of their marriage engaged in relationships outside of his marriage.[61]
[61] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
56. The Applicant submitted that Mrs Burrell had booked a session with Relationships Australia in April 2019 and he agreed to listen at another time. He provided:[62]
On a phone appointment to them the first thing they asked was, “have any domestic violence orders been issued?” I have always been willing to talk with people who may be able to help but I got the impression that my separate mediation session arranged for 3 April 2019 was to divide up property. This would indicate that [Mrs Burrell] considers our relationship to have completely broke down, wants to get as much wealth as possible, quit her job, terminate our current agreement and live elsewhere on a 100% basis.
…..
[Mrs Burrell] has voiced her intention to implement the final step in our separation on many occasions over the last decade or so and this is the first by a mediation service.
[62] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
Applicant’s Contentions
57. The Applicant at the closing of the Hearing contended that:
·the Respondent was not looking at the whole of the picture and that there was at least one precedent that says the Tribunal makes decisions using a holistic approach;
·he was single at the date he started receiving the age pension and everything was verbally communicated to Centrelink;
·he has 10 close friends who agree;
·should he have been aware that he was not being paid the single rate when he did not have anything from Centrelink stating that the rates were single or partnered, there was no reason for them to contact him or for him to contact them and it was not until Mrs Burrell was paid the age pension that he realised what had occurred; and
·Mrs Burrell nominating him as an emergency contact, their joint Medicare cards and joint private health insurance could have been changed earlier and have now been changed because of Centrelink. He said these are minor things that should not be given weight.
Respondent’s Contentions
58. The Respondent drew the Tribunal’s attention to the following two cases as follows:[63]
31. Notably, in the Applicant's case, the Tribunal observed in Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 that if the person's evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence.
32. Further, the Tribunal in RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 at [35] observed that the assessment of a person's credibility is frequently of vital importance in determining whether a person is a member of a couple.
[63] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 6, paragraphs 31-32.
59. Consequently, the Respondent contended that:[64]
33. The Secretary contended the documentary objective evidence is inconsistent with the Applicant's statements. Although he states he is separated and did so in 2000, the Applicant notes in the separated under one roof form that … he resides with Mrs Burrell to save money. Further, he makes reference to her as his partner in a response to request for information'. In accordance with the principle in Day cited above, the Tribunal can be reasonably satisfied the Applicant was a member of a couple with his wife from 3 July 2017.
34. Also, in accordance with the principle in RFZX cited above, the assessment of the Applicant's credibility as a reliable historian will be of vital importance in determining whether she was a member of a couple during the relevant period.
[64] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 6, paragraphs 33-34.
60. The Respondent contended that the Applicant was a member of a couple with Mrs Burrell as at 5 July 2017 on the basis that:
·There is a financial relationship between the Applicant and Mrs Burrell and this circumstance is indicative of the Applicant being a member of a couple.
·The nature of the household is indicative of the Applicant being a member of a couple with Mrs Burrell.
·The absence of a sexual relationship is not determinative of a lack of a couple relationship.
·The following circumstances are indicative of the Applicant being a member of a couple:[65]
oThe Applicant and Mrs Burrell have been living together since and married since 1991.
oThey both moved from Tasmania and bought the family home in Brisbane together.
oNo intention was declared at the time of application that they would not continue living together.
oThe ARO’s notes that the Applicant reported he provided support to Mrs Burrell in times of illness and, personal crisis and family matters. Mrs Burrell is his best friend and he has been listed as an emergency contact with Mrs Burrell’s employer.
[65] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, pages 7-9, paragraphs 36-50.
Tribunal Analysis
61. Prior to the Hearing, the Applicant provided a number of submissions (totalling in excess of 200 pages) which primarily related to his contention that he was incorrectly considered by the Respondent to be a member of a couple from the time he initially sought Newstart Allowance in 2011. The Applicant outlines why it is that he should not be considered to be a member of a couple for the purposes of section 4 of the Act.
62. Throughout his written submissions the Applicant provides a number of chronologies of his relationship with Mrs Burrell which are not entirely consistent with each other. The submissions cover different or overlapping timeframes, but in totality start from 1970, before they were married up until shortly before the Hearing. The Applicant also provided communication exchanges with his daughter in relation to her upcoming wedding dated November 2016 and makes submissions in relation to both the legislative tests for determining whether a person is a member of a couple and other points he considers relevant.
63. The Applicant’s submissions, if taken on face value as they are the Applicant’s view of events, show that the Applicant’s marriage did not take the form of a conventional marriage. However, the relationship is still a marriage that has remained intact since 1972 until at least the day of the Hearing of this matter. Regardless of the ups and downs faced or the arrangements they have centred their marriage around, the Applicant has described his wife as ‘his best friend.’
64. The Applicant’s submissions when read together are of a contradictory nature. On one hand the Applicant outlines behaviour that while may not be considered conventional by many married couples, certainly seems to have been conventional for his marriage. His evidence is that they have a ‘deal that they live their own lives’. However, the Tribunal notes that they also continue to jointly contribute to the utilities of their jointly owned home and provide support to each other.
65. The Applicant wains between showing friendship and support towards Mrs Burrell to showing contempt in relation to her friendships formed with others, her time away from the family home and their situation not being like he had thought it would be, all borne out of an arrangement he said they jointly put in place.
66. The Applicant repeatedly changed his evidence in relation to what point in time he is asserting that he and Mrs Burrell ceased being members of a couple, including, from 2000, when he applied for Newstart Allowance, to shortly after they were married, when they returned from living overseas, to the 1980’s when they first separated their bank accounts.
67. The Applicant, both in written submissions and at Hearing, contended that he had not checked his rate of age pension payment up until the point of which the debts were raised.[66] He said that he did not think he needed to as he believes he made it clear at the time he applied for Newstart Allowance that he was single and that ‘Centrelink were competent’.[67]
[66] Exhibit 7, Applicant’s submission titled Supplementary Evidence #7, dated 28 May 2019; Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
[67] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
68. The Applicant continually asserted that he had not been a member of a couple with Mrs Burrell for a very long time and definitely was not at the time of applying for Newstart or being transferred to the age pension. This however is difficult to accept when considering the following submissions made by the Applicant:[68]
I have been an accountant, IT consultant, Bachelor of Economics, commercial lawyer, Master of Project Management, renovated houses, Ford Motor Company ‘wiz kid’ with an IQ of 153.
………..
I do not need to preserve my assets, as I still trust [Mrs Burrell].
…..
If you questioned our family, close friends and work associates they would declare that [Mrs Burrell] and I are not physical or emotional partners.
It is irrelevant whether we are or are not progressing towards divorce. What is relevant is that we are progressing towards being less of a partnership. If this reverses, we can advise you.
……
Although I was verbally told I could appeal the Separated … form rejection, I decided to accept the reduction in pension and get on with life. Now that I am being hit with a backdated bill for $13,000 in addition (and God knows what sort of bills in the future) I have no option but to appeal.
[68] Exhibit 1, T Documents, T24, pages 177-180, Statement by Applicant.
69. In addition, the Applicant provided a large submission in relation to his education and professional qualifications and experience and holds himself out to be a very intelligent person[69] – the Tribunal accepts this evidence.
[69] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
70. However, these points shine light on the credibility of the Applicant’s contentions that he was not a member of a couple or that he did not know what his rate of pension was until some 5 years after first receiving the age pension, especially when he then conceded that he decided to accept the reduction in pension and get on with his life. Such a concession is not consistent with the Applicant’s assertions that he had not been a member of a couple from some time prior to 2011 or at the very least from August 2011 when he commenced receiving the age pension.
71. It appears to the Tribunal that the Applicant was in fact aware of his rate of pension and that he was a member of a couple and intended to continue to be so at that point of time had his age pension debts not have been raised. There is no evidence prior to when Mrs Burrell applied for the age pension and her income details were sought in relation to the Applicant’s age pension that he had ever advised Centrelink that he was not a member of a couple.
72. The Tribunal notes the decision in Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 where the Tribunal placed greater reliance on independent evidence than that of the Applicant stating that the evidence of the Applicant in that case ‘should be closely scrutinised and should not be accepted by the Tribunal unless it is “substantiated by independent and verifiable evidence”’.[70]
[70] Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 at [41].
73. It has not escaped the attention of the Tribunal that the Applicant did not call any witnesses to give evidence at the Hearing. He asserted that most were dead, infirmed, live outside Brisbane (and he was unable to pay for them to be here), some had provided written testimonials with telephone number and email addresses and some had been contacted by the SSCSD.[71]
[71] Exhibit 6, Applicant’s submission, titled Hearing Certificate, dated 28 August 2019.
74. It is not the role of the Tribunal in the current proceedings to contact the Applicant’s witnesses; he could have sought leave from them to provide evidence by telephone. The witness statements that were provided were not sworn, were cut and pasted or copied onto combined pages. The consistent theme throughout the witness statements was that the individual making the statement considered that the Applicant was not a member of a couple at age 65.
75. The Tribunal forms the view that these witness statements can be given very little weight, other than the fact that they are not sworn statements, the witnesses were not available for cross examination or to explain what they considered the definition of being a member of a couple was. The Tribunal does not accept the Applicant’s reasoning as to why these witnesses could not have been called upon to give evidence at Hearing other than the fact that perhaps they did not want to.
76. Further, the statement of Ms Johnson does not itself support the premise that the Applicant was not a member of a couple in circumstances where the Applicant is telling people he is married, rather than that he is single or separated. Whilst, his actions may indicate that he is not a member of a couple, this would not be inconsistent with the agreement that the Applicant said he had in place with his wife that they do their own thing and are able to see other people.
77. Mrs Burrell was also not called to give evidence at the Hearing. The Applicant told the Tribunal that she did not want to be part of the proceedings. Mrs Burrell did provide two statements, the first undated, which stated: ‘[The Applicant] has not been a member couple, by your definition, since 12 August 2011; when he started receiving the age pension at 65. This is to be used for Centrelink purposes only.’ The second dated 4 April 2019 to the effect of:[72]
[The Applicant] and I have slowly separated for a considerable period of time and this has not been recognised by Centrelink at any time. If a specific date is required then 2009 can be used. Evidence has been tendered that indicates we had separate bank accounts from, at least, this date, so that we no longer pooled money and made mutual decisions on money. We had stopped attending social function together and our friends and relatives stopped inviting us as a couple to their social functions. Although there is no benefit to us in telling these people we were no longer members of the same couple, they arrived at that conclusion by independent observation an there was no benefit to anybody in advising schools and doctors of this. From that time we did not go on holidays together or attend the traditional couple functions such as Christmas, Easter and birthdays. Many people come to a mutual agreement regarding separation as there is a stigma attached. We were not members of a couple for Centrelink purposes when [the Applicant] turned 65.
[72] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
78. The Tribunal places no weight on the written statements of Mrs Burrell on the basis that:
·The Tribunal notes that the Applicant submitted that he and Mrs Burrell met to discuss any adverse effects she may have had on his age pension on 8 July 2019 and they decided that neither of them would provide Centrelink with any information related to the debts.[73] This suggests that they were cooperating with the intention of maximising their Centrelink payments.
·Mrs Burrell’s statements make it clear that she is making these statements for Centrelink purposes. There is no reference to what she considers the relationship of members of a couple to be or how she views her relationship with the Applicant.
·The behaviour set out in her statement is consistent with the evidence provided by the Applicant demonstrating that was part of their normal marital behaviour.
[73] Exhibit 5, Applicant’s submission titled AAT, dated 3 December 2019.
79. In his submissions, the Applicant provided a large amount of information which when all read together evidences that part of the arrangements in relation to their marriage included sleeping in separate rooms, independent travel, independent friends and social activities, separate bank accounts and engaging in romantic or sexual relationships with other people. However, this does not of itself demonstrate that they were not members of a couple, rather, it demonstrates that this was what was acceptable to them and what formulated the boundaries of their marriage.
80. Overall the Applicant’s evidence in relation to him not wanting to get divorced or advise the world at large or tell their friends that they are separated are all inconsistent with the contention that he was not a member of a couple with Mrs Burrell. There are many married couples who separate and never get divorced that would not be considered to remain members of the same couple for section 4 of the Act purposes.[74] As such the Applicant’s focus on the only way of evidencing separation as being divorce is misguided.
[74] Re Buonu and Department of Social Security (1997) 50 ALD 597; Re Secretary, Department of Family and Community Services and Radmilovich [2002] AATA 770.
81. The Tribunal considers that the Applicant, in his written and oral submissions, has demonstrated that he is not a reliable historian. The Tribunal does not consider the Applicant to be a credible witness given the contradictory and inconsistent nature of his evidence relative to the objective or independent evidence before the Tribunal.
82. Consequently, in considering the tests set out in section 4(3) of the Act together with the evidence before the Tribunal in a holistic manner, the Tribunal finds that on balance, the Applicant was a member of a couple with Mrs Burrell at all material times. The Tribunal considers that the weight of the evidence before it leads to the conclusion that the Applicant and Mrs Burrell intended to be members of a couple and had no intention to divorce or change their arrangements during the period leading up to and on 5 July 2016. It is acknowledged that their arrangements may not be what others consider to be a marriage or couple like relationship, however such arrangements, on the evidence before the Tribunal, appear to have been their normal perhaps since shortly after they initially married.
Conclusion
83. The Tribunal finds, based on the evidence before it, that the Applicant was for the purposes of section 4 of the Act a member of a couple with Mrs Burrell at all material times from 17 March 2011 when he first lodged his claim for Newstart Allowance. As such, the Tribunal finds that the Applicant’s correct rate of pension was the partnered rate.
IS THERE A SPECIAL REASON THE APPLICANT SHOULD NOT BE TREATED AS A MEMBER OF A COUPLE?
84. Section 24(1) of the Act provides discretion to the Secretary to determine in writing that a person who is legally married to another person is not to be treated as a member of a couple, for the purposes of section 4(2) , if the Secretary is satisfied that some special reason exists in that particular case. Section 24(1) of the Act provides:
Person may be treated as not being a member of a couple (subsection 4(2))
(1) Where:
a. a person is legally married to another person; and
b. the person is not living separately and apart from the other person on a permanent or indefinite basis; and
c. the Secretary is satisfied that the person should, for special reasons in the particular case, not be treated as a member of a couple; and
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
85. In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, French J (as he then was) explained the special reason discretion as the following:
[18] The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a discretion to the decision-maker that the discretion it constrains is not lightly to be enlivened. A full court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss”. Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context.
86. The Respondent contended that there are three tests that should be considered in determining whether the discretion should be exercised.[75] This view was not accepted by Deputy President PE Hack SC in Purdie and Secretary, Department of Social Services [2013] AATA 743 who further explained the operation of this special reasons discretion in the following passage:
14. I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple. The Secretary’s submission point to the departmental policy guide for the application of this discretion. That guide suggests that three questions need to be considered as part of an assessment of the application of s24. Those questions are – is there a special reason to be considered in this couple’s circumstances? Is there a lack of being able to pool resources for the couple as a result of the circumstances? Is there financial difficulty as a result of the couple’s circumstances? For my part I remain unpersuaded that the section poses three questions. It seems to me the section poses only one question – is there a special reason to treat Mr Purdie in the present case as not being a member of a couple. It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something that I see dictated by the plain words of the statute.
[75] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, pages 10-11, paragraphs 61-64.
87. In Liang and Secretary, Department of Social Services [2015] AATA 275 at [29] and Ammar and Secretary, Department of Social Services (Social services second review) [2016] AATA 493 at [21], both Senior Member P W Taylor SC and Member Professor R McCallum AO respectively agreed with the approach taken by Deputy President Hack. I also adopt this approach to interpreting this special reason discretion.
88. There are no reasons before the Tribunal which give rise to a special reason to explain why the Applicant should not be treated as a member of a couple.
89. Throughout the review process the Applicant maintained his contention that he had not been a member of a couple with Mrs Burrell for a long time before applying for the age pension. Consequently, he did not provide evidence to explain his circumstances, should his primary contention not be accepted, specifically, that there were special reasons for him to not be treated as a member of a couple. As set out above the Applicant’s evidence in relation to his relationship with Mrs Burrell is consistent with a view that their marriage has been a unique and unhappy one however, was not consistent with a view that they did not at any time intend not to be members of a couple. The Applicant and Mrs Burrell have a long and continuing relationship, they share costs in relation to their marital home and support each other in times of illness, personal crisis, money matters or family disputes.
90. The Tribunal therefore finds that no special reason exists to enliven the discretion in section 24 of the Act.
Do the Applicant’s Age Pension Debts Exist?
91. Pursuant to section 55(a) of the Act, the rate of age pension (where the person is not permanently blind) is to be calculated in accordance with section 1064 of the Act. The Method Statements set out in section 1064 of the Act provides that the partnered rate of the age pension is lower than the single rate and how the income of a person or their partner affects their maximum payment rate for the age pension.
92. The Respondent submitted that Mrs Burrell’s income from her employment was not taken into account in calculating the Applicant’s rate of age pension in the debt periods. As a result, the Respondent contended that the Applicant’s rate of age pension was calculated on an incorrect basis during the debt periods, and the amount which the Applicant was overpaid constitutes a debt.[76]
[76] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 12, paragraphs 68-69.
93. The onus is on the Applicant to advise the Respondent of any changes to his or his partner’s income and this requirement was clearly outlined in letters sent to the Applicant[77] pursuant to section 69(2) of the Administration Act.
[77] Exhibit 1, T Documents, T33, Centrelink Notice: Your Newstart Allowance, dated 14 July 2011; pages 221-222; Centrelink Notice: Your Age Pension, dated 29 July 2011; pages 226-227; Centrelink Notice: Your Centrelink Payment, dated 1 August 2011, pages 232-233; Centrelink Notice: Your Centrelink Statement for Age Pension, dated 1 August 2011, pages 234-237.
94. In his written submissions, although contending that he was not a member of a couple at the date he applied for the age pension and should be paid the age pension single rate from the day he applied being 12 August 2011, the Applicant wrote:[78]
·If Centrelink want to know what [Mrs Burrell] earns they can get it by contacting [Mrs Burrell] directly, her employer or through the Tax Dept.
·I should not be penalised, in any way, for not telling Centrelink about her income (or any other financial matters).
·The alleged $13,104.49 debt is claimed by Centrelink on the basis that I was overpaid. This was due to the fact that I did not know how much [Mrs Burrell] was earning and therefore could not inform Centrelink of variations in [Mrs Burrell’s] earnings. Centrelink has access to [Mrs Burrell’s] Tax file so they should have been able to get this information that way. Another way would have been to write to [Mrs Burrell] directly for it. This debt should be dropped and my age pension payments corrected for debt repayments taken out.
·Latest weekly costs:[79] pooled costs $81 per week (of which his 50% share equates to: rates $33, electricity and gas $10, water $21 and home insurance $17) and individual costs $228 per week (of which include vehicle $15, land line phone and internet $28, food and drink $150, petrol $5, personal, donations $50, other, repairs, garden $40). Totalling $309 per week and leaving $22 per week.
·He has no debt.
·He jointly owns his place of residence with his wife.
·The special circumstances in this case are that Centrelink have been totally at fault from the first day. Nobody has been able to cope with the complexity of my case, and this problem just increases. This application is littered with specific examples of this incompetence.
·When joint private health insurance was held, [Mrs Burrell] paid the premium as he paid the telephone and internet costs.
[78] Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019 and received by the Tribunal on 26 April 2019.
[79] The Tribunal notes that the Applicant disclosed this to be his financial position as part of a submission received by the Tribunal on 26 April 2019 which forms part of Exhibit 10, Applicant’s submission titled: General Division Revised Application, dated 23 April 2019.
95. As noted in paragraph 27, point six above, the Applicant although providing that he had not checked his rate of pension and was not a member of a couple at the time he commenced receiving the age pension, said he had decided[80] to accept the decision to pay him the partnered rate until the debts were raised.
[80] See paragraph 68 above.
96. At Hearing, in relation to the debts, the Applicant told the Tribunal:
·He can not dispute the calculations of the debt or records as he does not know how they were calculated and no one has been able to explain it to him.
·When asked by the Tribunal if he understands why the debt was raised, that he does not know anything about what his wife earns.
·If no one can explain the debt calculation, why is he being relied upon to report his wife’s income. Centrelink had wanted him to provide Mrs Burrell’s payslips back to 2011. When asked by the Tribunal whether he could have asked her for the details, said he contacted her to take it up with Centrelink.
·When asked if he had the capacity to repay the debts, said he was struggling on the pension now and lives off the generosity of family. Centrelink were deducting $218 as repayments.
·When asked if he had capacity to repay anything, said maybe $1 per fortnight, said when his pension is reduced Mrs Burrell does not help.
·He has no debt.
·He knows special circumstances are broad but his issue is that Centrelink are incompetent.
·When asked if he was saying that there had been an error by Centrelink, said there had been complete incompetence. The debts were plucked off skyhook, why did they pick only those two periods and they would not settle.
·It was fair to say that he knew Mrs Burrell was working but that he did not know what she was earning.
·He knew Mrs Burrell was working at the Mater Hospital and then at Saint Andrews Hospital and not working for a period of 12 months.
·He knew because Mrs Burrell told him.
·When asked why he answered no to whether his partner did any work in the period Tuesday 15 March 2011 to Monday 28 March 2011 on the Your Reporting Statement – Application for payment of Newstart Allowance from, said properly filled out at times he did not know if she was working or not.
·When asked so that means his answer was not correct, said not sure you need to check the bar chart. When asked about Mrs Burrell’s work and the relevant dates he said that is an issue for Centrelink.
·When asked if his pension in July 2019 was approximately $619 a fortnight, said that his age pension goes up and down like a yoyo but is around $600 a fortnight.
·When asked what his expenditure was each fortnight, noting he did not have a mortgage, said ‘No more than anyone else’s. There is an estimate at that time. Not much left over. Cannot afford to pay $218.’ Referred to Exhibit 10 page 3 and when asked if that had changed, said he could not say.
97. The Applicant’s main contention in relation to the debts is that they arose because the Respondent incorrectly recorded him as being a member of a couple and paid him the partnered rate of Newstart allowance and then age pension incorrectly since the time he made the claim for Newstart in 2011. He contended that if the Respondent cannot explain how the debts were calculated to him then they do not exist.
98. In relation to the calculation of the age pension debts, the Respondent provided calculation information in relation to the debt periods setting out how the amounts of $8,467.80 and $4,636.69 were reached. There is no evidence before the Tribunal to suggest that these calculations are incorrect.
99. Based on the evidence before it, the Tribunal finds that the Applicant received more age pension than he was entitled to for the periods 9 October 2012 and 3 June 2013 and 28 June 2016 and 26 December 2016 as a result of Mrs Burrell’s income not being taken into consideration. Consequently, this overpayment is a debt owed to the Commonwealth.
100. Section 1223(1) of the Act provides that if a person receives a payment that they were not entitled to for any reason the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Are the Applicant’s age pension debts repayable in part or in full?
101. As the Tribunal has found that the Applicant’s age care debts exist, it must consider whether the debts must be repaid.
102. It is generally expected that debts to the Commonwealth are recovered. This proposition was expressed by French J in relation to debt recovery in Secretary, Department of Social Security v Hales [1998] FCA 219 as:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
103. However, there are circumstances where the recovery of debts is either put on hold for a period of time (written off) or are no longer pursued (waived). Relevant to the Applicant’s age pension debt, the Respondent may write off or waive his age pension debt if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Should the Applicant’s age pension debts be written off pursuant to sections 1236 of the Act?
104. Section 1236(1) of the Act provides that, subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise.
105. Section 1236(1A) of the Act allows the Respondent to decide to write off a debt only if:
(f)the debt is irrecoverable at law; or
(g)the debtor has no capacity to repay the debt; or
(h)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(i)it is not cost effective for the Commonwealth to take action to recover the debt.
106. Section 1236(1B) of the Act provides that for the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)there if no proof of the debt capable of sustaining legal proceedings for its recovery; or
(b)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(c)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
107. Section 1236(1C) of the Act provides that for the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a)deductions from the debtor’s social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c)setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
108. The term ‘severe financial hardship’ is not defined in the Act, however, has been considered by the Tribunal in a number of cases.
109. In Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225, the Tribunal considered that for financial hardship to be established, a person’s entire financial positon would need to be materially less than the current rate of pension.
110. In Re Stubbs and Secretary Department of Families Community Services (2003) AAT 03/0729, the Tribunal remarked that:
…Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature ….
111. In L v Department of Social Security No N94/272 AAT No. 10230 (1995) 38 ALD 176, the Tribunal stated:
66. In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation …
112. The Applicant submitted that there were initially three debts, one of which was written off, as such, that means technically these two debts can be written off. In relation to his financial position, the information the Applicant chose to provide and rely upon showed that he has no debt, a small surplus each week after expenses and the capacity to make a $50 donation each week.[81]
[81] As set out in paragraph 94 above.
113. The Respondent contended that the Applicant’s debts cannot be written-off under section 1236 of the Act as:[82]
·The debt is not irrecoverable at law;
·There is no evidence to suggest that the Applicant is in severe financial hardship; and
·The Applicant has capacity to repay the debt by way of withholding from his age pension payment.
[82] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 13, paragraph 79.
114. Based on the evidence before it, the Tribunal is satisfied that the age pension debts are recoverable at law, the Applicant’s whereabouts are known and that it is cost effective for the Commonwealth to take action to recover the debts.
115. The Tribunal accepts that the Applicant’s financial circumstances may be strained, however, he has not provided any evidence to the Tribunal to suggest that the recovery of the debts would cause him severe financial hardship.
116. On the basis that the Applicant is in receipt of age pension, has no debts and is able to make a $50 donation each fortnight, the Tribunal is satisfied that the Applicant has the capacity to repay the age pension debts and if suitable repayment amounts were deducted from age pension payments being made to the Applicant, this would not result in the Applicant being in severe financial hardship.
117. Consequently, the Tribunal finds that the Applicant’s age pension debts cannot be written off pursuant to section 1236 of the Act.
Should the Applicant’s age pension debts be waived due to sole administrative error pursuant to sections 1237A of the Act?
118. Section 1237A of the Act provides that the Respondent must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
119. Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [35] stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
120. The Respondent contended that there was no sole administrative error as the Applicant had said that Mrs Burrell was not working in his claim for Newstart Allowance and it was not until Mrs Burrell lodged a claim for the age pension the Respondent was notified that she had been working. The Respondent contended that there is no evidence of sole administrative error.
121. The Applicant’s main contention was that his age pension debts have arisen from what he considers to be the incompetence of Centrelink. He relies on his contention that he was not a member of a couple at any time since he began receiving the age pension, as such, Mrs Burrell’s income was irrelevant to his age pension. Further he contended that he had no knowledge of how much his wife earnt or about her financial affairs. On that basis, the Applicant did not dispute that he did not advise the Respondent of Mrs Burrell’s income in relation to the debt periods.
122. Based on the evidence before it, the Tribunal finds that the Applicant’s failure to report Mrs Burrell’s income both at the outset of claiming Newstart Allowance or at any time since contributed to his age pension debts for the debt periods.
123. Consequently, the Tribunal finds that the Applicant’s age pension debts were not a result of sole administrative error and therefore cannot be waived pursuant to section 1237A of the Act.
Should the Applicant’s age pension debts be waived due to special circumstances pursuant to sections 1237AAD of the Act?
124. Section 1237AAD of the Act provides that the Respondent may waive the right to recover all or part of a debt if they are 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, the Administration 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.
125. The Respondent did not contend that the Applicant knowingly failed to comply with reporting requirements or that he knowingly made a false statement or a false representation.
126. The Respondent contended that the Applicant’s debts cannot be waived under section 1237AAD of the Act, as there is no evidence to suggest that his circumstances as a whole are such that they are sufficiently unusual, uncommon or out of the ordinary so as to make his case markedly different from the ordinary run of cases and otherwise ‘special’.[83]
[83] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 15, paragraph 89.
127. The Act does not provide a definition of special circumstances. However, the general proposition, established by relevant Federal Court decisions, make it clear that ‘special’ means something different from the usual or ordinary.[84]
[84] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37].
128. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held at paragraph [3]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to 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.
129. In Re Ivovic and Director-General of Social Services (1981) 3 ALN N95, the Tribunal stated:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” …., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion …., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the …. Act.
130. The Applicant contended at Hearing that he believes the debts are illegal as he says Centrelink cannot explain the calculation. He said consistently within his written submissions outlined above that he does not really claim that he has any special circumstances other than the Respondent erred 100 percent in his case.
131. The Respondent contended that the Applicant has had the benefit of age pension payments to which he was not entitled and there is no injustice or unfairness in requiring him to repay the overpayment amounts on the basis that he does not pay rent, lives in an unencumbered property and does not disclose any continuing financial commitments other than utilities.[85]
[85] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 16, paragraph 90.
132. The Respondent contended that the Applicant put no evidence to the Tribunal that special circumstances exist. Further, the Applicant’s financial situation, whilst not updated to the time of the Hearing, includes a $50 per fortnight donation. This is relevant as most people on Centrelink have difficulty with everyday expenses, let alone making charitable donations. The Applicant’s financial position shows that he could afford to make repayments of some sort in relation to the debts.
133. Based on the evidence before the Tribunal, in particular that given by the Applicant at the Hearing, the Tribunal does not consider that the Applicant’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in section 1237AAD of the Act to waive the debts. Consequently, the Tribunal finds that the Applicant’s age pension debts cannot be waived pursuant to section 1237AAD of the Act.
CONCLUSION
134. The Tribunal finds that from 8 March 2011 up to and on 5 July 2016, the Applicant was a member of a couple for the purposes of section 4 of the Act and that no special reason exists to treat him differently.
135. Consequently, the Tribunal finds that the:
(d)Applicant’s correct rate of age pension is the partnered rate;
(e)Applicant was paid more than his correct amount of age pension for the periods 9 October 2012 to 3 June 2013 and 28 June 2016 to 26 December 2016;
(f)Applicant’s age pension debts of $8,467.80 for the period 9 October 2012 to 3 June 2013 and of $4,636.69 for the period 28 June 2016 to 26 December 2016 are correctly calculated and are debts owed to the Commonwealth;
(g)requirements of sections 1236, 1237A and 1237AAD of the Act are not met; and
(h)Applicant’s age pension debts are recoverable in full.
136. The Tribunal affirms the decision under review.
I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.............[SGD]...................
Associate
Dated: 6 May 2020
Date of hearing: 17 December 2019 Applicant: In person Advocate for the Respondent:
Solicitors for the Respondent:
Ms Jasmine Forsyth
Mills Oakley Lawyers
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