Croft; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1872

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1872

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1686

GENERAL ADMINISTRATIVE DIVISION  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And WILLIAM CROFT

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date18 October 2007

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal dated 10 November 2006 is affirmed.

........................[sgd]...........................

Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension at single rate – applicant still married but living with wife separately under one roof - whether applicant member of a couple – overall financial and household circumstances and nature of relationship considered – decision of the SSAT that applicant was not a member of a couple affirmed

LEGISLATION

Social Security Act 1991 ss 4, 1064

CASE LAW

Re Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly     

The Issue

1.      Mr William Croft married his wife in 1974.  They are not divorced and live under the one roof.   The Social Security Appeals Tribunal (“the SSAT”) held that, for the purpose of calculating his Disability Support Pension (DSP) entitlement, Mr Croft was not a member of a couple, and the decision took effect on and from 28 September 2006. 

2.      The Secretary, Department of Employment and Workplace Relations, (“the Secretary”) contends in these proceedings that Mr Croft was a “member of a couple” at all relevant times. That is the issue. The date of effect of the decision was not disputed before me.  For the reasons that follow I affirm the SSAT’s decision. 

Law

3. The rate of DSP is worked out using the rate calculator in section 1064 of the Social Security Act 1991 (“the Act”).   A person who is not a member of a couple receives a higher rate of basic pension. The relationship status of the person also affects the calculation of ordinary income and application of the assets test.

4. As Mr Croft is still legally married, s 4(2)(a) of the Act applies:

… a person is a member of a couple if the person is legally married to another 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”.

5. Section 4(3) of the Act requires the Secretary to “have regard to all the circumstances of the relationship including, in particular” matters set out in the section.  Those matters are not an exhaustive list. Rather, an overall assessment is to be made: Re Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27.

Background

6.      The following matters are not in dispute.   Mr and Mrs Croft have three adult sons.  They lived at Bonnyrigg in Sydney until 2003 when they purchased a house at Umina Beach with their oldest son, as joint tenants.  Mr and Mrs Croft moved to that house in approximately June 2003 and continue to live there. 

7.      In November 2004 Mr Croft suffered a stroke and was hospitalised for six to eight weeks. He was paralysed down the left side of his body.   He has not been able to work since.  He loved working and is frustrated by his inability to do so.  As a result of the stroke Mr Croft has lost some movement in the left side of his body and also suffers some memory loss.  He requires assistance to do various things. 

8.      Mr Croft claimed Sickness Allowance from 20 January 2005. He indicated in his claim form which was lodged on 25 January 2005 that he was "married and currently living together". On a number of occasions during 2005 he confirmed that information in the context of sickness allowance and his claim for DSP. 

9.      On 16 January 2006 in a random review undertaken by a Centrelink officer, Mr Croft was asked about his marital status. The officer noted that Mr Croft's marital status was "married".  File notes indicate that Mr Croft advised the interviewing officer, after the written record was made, that he was separated from his wife.

10.     On or about 30 March 2006 a Centrelink officer assessed Mr Croft as living “in a marriage-like relationship” with, and not being separated from Mrs Croft.

11.     On 4 May 2006 the Authorised Review Officer (ARO) determined that Mr Croft was a member of a couple.

12.     On 29 May 2006 Mrs Croft claimed Carer Allowance in respect of  Mr Croft. She indicated she was separated as of  20 February 2005.  She was unsuccessful because it was found that his condition was not sufficiently serious.  

13.     On 28 September 2006 Mr Croft requested a review of the ARO’s decision by the SSAT. ..

Consideration

14.     Following are my findings.  I have taken into account all the evidence before the Tribunal, including the oral evidence of Mr and Mrs Croft, their son Brendan and Mrs Croft’s sister, Mrs Browne.  Mr Croft has had some difficulty with his memory since his stroke.  Therefore, where there is a conflict between his evidence and that of other witnesses, I have preferred the evidence of others.

Financial Circumstances

15.     Mr Croft currently receives DSP of approximately $470 per fortnight. Mrs Croft earns approximately $420 after tax from working as a carer.   They own the Umina home with their son as joint tenants.   The property cost $300,000 and was financed by a $240,000 mortgage and $60,000 from the sale of their Bonnyrigg property.  Mr and Mrs Croft both contribute $100 each per week to the mortgage repayment and their son pays the balance of $134. 

16.     Mr Croft contributes approximately $100 per week to the costs of the household including groceries and bills such as electricity and water.  Mr and Mrs Croft pay the Council rates.  Mrs Croft pays the bills and does the shopping.  She has always organised most of the household finances and considers that Mr Croft would be unable to manage his finances now.     Besides contributions to household expenses, they are not accountable to each other for the rest of their money.

17.     I accept that Mr and Mrs Croft cannot afford to move out and live separately.  Their son Mr Brendan Croft made inquiries about selling the house after his father’s stroke, so they could live separately, however, he was not happy with the price at the time. 

18.     Mr and Mrs Croft have continued their joint health insurance which is paid by direct debit from Mrs Croft’s bank account. Mrs Croft says she made inquiries about getting their own policies but was told Mr Croft’s present health problems would not be covered if he starts a new policy.  It is also cheaper.  They are both named on the Medicare card. Their Home and Contents insurance is jointly held. 

19.     Currently Mr and Mrs Croft have separate bank accounts.  A joint account was closed after Mr Croft was first denied DSP at the single rate.   He is happy for Mrs Croft to have internet access to his account.

20.     Mr and Mrs Croft do not have current wills but do not intend to make each other beneficiaries.   Mrs Croft has not nominated any beneficiary for her superannuation account.

Nature of the Household

21.     Mr and Mrs Croft were temporarily separated on about three occasions before February 2005.  Each time they got back together mainly for the sake of their children. 

22.     Since Mr Croft has returned to live at Umina, he and Mrs Croft have their own areas in the home.  Mr Croft moved out of the marital bedroom located at the front of the house because it was more comfortable for him and also because the relationship was “rocky”.  His bedroom is the biggest in the house and easier than his wife’s to move around in.  It is also closer to the bathroom.  He was going to bed late at night, disturbing Mrs Croft.

23.     Mr Croft uses a bedroom and a sunroom at the back of the house.  Mrs Croft uses the former marital bedroom at the front of the house. 

24.     When he first came home from hospital, he and Mrs Croft ate their meals together in the kitchen.   He then stayed with Mrs Browne for a few weeks.  She  found looking after him too much, given her state of health.  When Mr Croft returned to Umina, he began eating his meals while watching television in the sunroom.   Mrs Croft eats in the dining room and watches television in the lounge room.  Before Mr Croft’s stroke they both ate meals in the dining room.

25.     Mrs Croft does the household cleaning, washing, cooking and purchases groceries.     Mr Croft does what he can, including cleaning his own room and trying to vacuum the house.  He occasionally mows the law, although his son usually does that.

Social Aspects

26.     Mr and Mrs Croft used to go the RSL together but have not done so since Mr Croft suffered his stroke.  Previously Mrs Croft would have introduced Mr Croft to her work colleagues, but now she does not. She has her own social engagements and Mr Croft does not accompany her. They do not spend time together socially.

27.     Their only shared interest is visiting their grandchildren when Mr Croft accompanies Mrs Croft, who drives.

28.     Mr and Mrs Croft have only talked of the break-down of their relationship with Mrs Browne and their sons.  Neither of them has close friends where they now live in whom they confide. 

Sexual Relationship

29.     I accept Mrs Croft’s evidence that she and her husband have not had a sexual relationship since before Mr Croft suffered the stroke.

Nature of Commitment to Each Other

30.     After the move to Umina in 2003 and before Mr Croft suffered the stroke, he was working as a night porter at Camperdown and Mrs Croft was working day shift at Royal Prince Alfred Hospital.   They saw each other about 10 to 20 hours a week.  Mr Croft was tired, and they argued frequently.  Their relationship deteriorated during this period.

31.     Although Mr Croft was hopeful that they would get back together over time, it is clear that Mrs Croft does not share that hope.  For her, their marriage was over after Mr Croft returned to Umina from her sister’s house in about February 2005.  This was not a sudden change in her feelings, but the culmination of a deteriorating relationship where Mr and Mrs Croft spent little time together and led increasingly separate lives.

32.     I accept that since February 2005 when Mrs Croft made it clear that for her the marriage was over, the household has been more peaceful.    Mr Croft is happy to have a divorce as long as he does not have to pay for it.

33.     The communication between Mr and Mrs Croft principally concern Mr Croft’s physical needs, which are  fitted in to Mrs Croft’s work and social commitments.  Mrs Croft helps Mr Croft get dressed and is always within calling distance if he is showering.  She is concerned that Mr Croft is cared for. 

34.     I do not consider that the forms that were filled out by Mr Croft where he indicated that he was married and living with his wife are inconsistent with their living separately and apart under the one roof. 

Conclusion

35.     Taking into account all the circumstances of Mr and Mrs Croft’s relationship, I find that Mr and Mrs Croft have been living separately and apart on a permanent  basis since February 2005 and therefore Mr Croft has not been a member of a couple since that time.   

36.       I do not accept the submissions made on behalf of the Secretary that the financial and household arrangements appear to indicate a functioning, albeit not romantically happy marriage that has adapted to Mr Croft’s disability.  Their financial circumstances is the main factor that has kept them in the same residence.  The property is the principal asset each of them has, and given their limited financial means, their current living and financial arrangements are a practical solution. Mrs Croft is a capable carer.  She is prepared to assist Mr Croft to the extent that is necessary since his stroke. 

Decision

37.     The decision of the SSAT dated 10 November 2006 is affirmed.

I certify that the preceding 37 paragraphs are a true copy of the reasons for the decision of Senior Member,
Mrs Josephine Kelly

Signed: Mr Steven Mulipola

Associate

Date of Hearing  6 August 2007; 7 August 2007 
Date of Decision  18 October 2007
Counsel for the Applicant         Mr M Fordham
Solicitor for the Applicant          Mr A Carter, Sparke Helmore
Counsel for the Respondent     Dr K Sant
Solicitor for the Respondent     Ms S Gray, Legal Aid Commission