Davis and Secretary, Department of Social Services (Social services second review)

[2016] AATA 1005

Davis and Secretary, Department of Social Services (Social services second review) [2016] AATA 1005 (8 December 2016)

Division

GENERAL DIVISION

File Number

2015/4757

2016/1515

Re

Garvin Davis

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Mrs J C Kelly, Senior Member
Date	8  December 2016
Place	Sydney

In matter No. 2016/1515, the reviewable decision is affirmed.

In matter No. 2015/4757, the Tribunal:

(a)     affirms the reviewable decision to grant the Age Pension with effect from 22 April 2015; and

(b)     varies the decision to pay the applicant under the Pension Bonus Scheme in so far as the applicant is to be paid as a member of a couple, and not as a single person, from 10 January 2014.   

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

Mrs J C Kelly, Senior Member

Catchwords

SOCIAL SECURITY – age pension – date of commencement – pension bonus scheme –whether ‘member of a couple’ – whether single or married rate applies – financial aspects of the relationship – the nature of the household – the social aspects of the relationship – sexual relationship between members – nature of the people’s commitment to each other – decision under review affirmed with respect to payment of age pension at the couple rate – decision under review varied with respect to payment of pension bonus scheme at the member of a couple rate from 10 January 2014

Legislation

Social Security (Administration) Act 1999 (Cth), ss 11, 13, 41, 42, and schedule 2, cl 3

Social Security Act 1991 (Cth), ss 4(2), (3) & (3A), 16(1), (2), 93D, 93H, 93J

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

8 December 2016

Introduction

1. Mr Davis, the applicant, seeks to have his Age Pension (AP) and pension bonus (PB) paid at the single rate.  He claims that he and his wife separated in March 2003, but continued to live under the same roof. He also claims that his AP should have commenced from 27 March 2015 when he contacted the Department, rather than on 22 April 2015.

   The decisions under review

   Matter No. 2015/4757

2. The decision under review in proceedings No. 2015/4757 was made by the Social Services and Child Support Division of this Tribunal on 10 August 2015 (AAT1).  The decision affirmed the decision made by the Department of Human Services (the Department) on 30 April 2015 and affirmed by an Authorised Review Officer on 13 May 2015, to grant AP with effect from 22 April 2015 and to pay the applicant under the Pension Bonus Scheme (PBS) as a member of a couple for the period 26 October 2009 to 9 January 2014 and as a single person from 10 January 2014.

   Matter No. 2016/1515

3. The decision under review was made by the AAT1 on 20 January 2016. The AAT1 affirmed an original decision made by the Department on 27 July 2015 which was affirmed by an Authorised Review Officer on 3 September 2015, to pay the applicant’s AP as a member of a couple.

   The issues

4. The issues raised by the reviewable decisions are:

   (a)On which date did the applicant’s AP take effect?

   (b)Has the applicant been a member of a couple, as defined in the Social Security Act 1991 (Cth) (the Act) at any time since 2003?

   The legislation

5. The relevant legislation is the Act and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

6. The provisions relevant to the PBS are set out in Chapter 2, Part 2.2A, Division 1 of the Act. Section 93D of the Act sets out how to calculate the amount of PB. Relevantly, section 93H of the Act provides that a person’s annual pension rate is calculated in accordance with the table in the section. Section 93J of the Act provides specific calculations to determine how much PB a person is entitled to during the relevant period. The annual rate of AP and PB for a person who is partnered is lower than the rate for a person who is single because it takes into account the joint pooling of financial resources presumed to be available to members of a couple.

7. Section 4(2) of the Act defines ‘member of a couple’ for social security purposes. Section 4(3) and (3A) set out the criteria for forming an opinion about the relationship between two people:

   (3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

   (a)the financial aspects of the relationship, including:

   (i)any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)any legal obligations owed by one person in respect of the other person; and

   (iv)the basis of any sharing of day-to-day household expenses;

   (b)the nature of the household, including:

   (i)any joint responsibility for providing care or support of children; and

   (ii)the living arrangements of the people; and

   (iii)the basis on which responsibility for housework is distributed;

   (c)the social aspects of the relationship, including:

   (i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

   (ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

   (iii)the basis on which the people make plans for, or engage in, joint social activities;

   (d)any sexual relationship between the people;

   (e)the nature of the people’s commitment to each other, including:

   (i)the length of the relationship; and

   (ii)the nature of any companionship and emotional support that the people provide to each other; and

   (iii)whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship.

   (3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

   Background

8. The applicant was born on 27 October 1942 and was 73 years of age at the time of the hearing before the Tribunal.   He was married on 21 June 1993.  His wife was born on 11 November 1964.  The couple’s daughter was a born in 1996 and their son was born in 1998.  Their daughter works.  Their son has a disability.  He attends a special class/school which he will leave this year.

9. The applicant retired on 4 March 2015.

   The evidence before the Tribunal

10. The following evidence was before the Tribunal and considered in relation to both the applications:

    • Two bundles of documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents) marked ‘T1’ and ‘T3’ in respect of matter No. 2015/4757.
    • One bundle of T documents marked ‘T2’ in relation to matter No. 2016/1515.
    • A comprehensive Statement of Facts, Issues and Contentions in matter No. 2015/4757 dated 20 January 2016, including four attachments:
    • Claim for Commonwealth Seniors Health Card received by the Department on 7 December 2007;
    • Form SS 293 (extract, pgs 3-13) – Relationship Details – Separated under the one roof, lodged by the applicant on 13 May 2015; 
    • a document from the applicant’s former superannuation fund; and
    • a document from the applicant’s former employer.
    • A Statement of Facts, Issues and Contentions in matter No. 2016/1515.
    • Statutory declarations by the applicant’s then wife and one of his sisters.
    • Oral evidence and three handwritten statements from the applicant received by the Tribunal on 4 December 2015, 22 June 2016 and at the hearing on 28 June 2016.
    • An Application for Divorce filed in the Parramatta registry of the Federal Circuit Court of Australia on 16 June 2016 with a hearing date of 25 August 2016 and an Order for Divorce dated 25 August 2016.

    Claims and reports in contemporaneous documents

11. The following information about the applicant is recorded in contemporaneous documents that are before the Tribunal:

    • On 17 December 2007, the applicant lodged with the Department a claim for Commonwealth Seniors Health Card in which he stated that his current marital status was married 20 June 1993.
    • On 18 August 2011, the applicant attended an interview with a Departmental Financial Officer to discuss the PBS.
    • On 19 August 2011, the applicant lodged a PBS registration form which included information about his partner who co-signed the document on 15 September 2011.
    • On 22 September 2011, the Department sent the applicant a letter confirming his registration as a member of the PBS from 27 October 2007.
    • On 18 December 2014, the applicant contacted the Department regarding mobility allowance. It was noted at that time, that his marital status had changed in the past 12 months.
    • On 27 March 2015, the applicant first contacted the Department about claiming AP. An acknowledgement of his intention to claim was sent the same day.
    • On 22 April 2015, the applicant personally lodged his claim for AP and PBS with the Department. In response to the question number 35 “What is your current relationship status?” the applicant initially marked the box next to “Married” with an X, then crossed it out, and initialled it, and then put an X in the box to indicate “Separated”. However he did not follow the direction given in relation to that question to go to answer question 42, which was “Do you live in the same house is your former partner?” and left blank the boxes that indicated “yes” or “no”.  Rather, he continued to answer questions 36 about the date of the marriage, question 37 about when he started living with his partner as a member of a couple and  question 38, which asked if he currently lived in the same house as his partner, to which he indicated “yes”.  The applicant also answered “no” to the question, had his relationship changed since the date he registered for PBS?
    • In the section headed “Pension Bonus” in the same form, the applicant indicated with an X that his relationship status had not changed since his PBS registration date.
    • On 22 April 2015, the applicant also lodged an Income and Assets form.  In answer to question four “Do you have a partner?” the applicant ticked “yes”. He provided his partner’s name in answer to question five, then crossed it out and initialled the change.  He did not cross-out his answer to question four.
    • On 30 April 2015, the Department wrote to the applicant informing him that he would be paid AP from 22 April 2015 and that he had been paid PB of $39,048.50.
    • On 1 May 2015, the applicant contacted the department to appeal against the rate of PB paid to him and the start date of his AP. The applicant said that he should be paid $49,155 in PB and his AP should have commenced from 27 March 2015.
    • On 4 May 2015, a department officer spoke to the applicant and explained that he had been paid PB at part married rate because the records of the applicant and his wife both recorded their date of separation as 10 January 2014 and that his claim for AP could not be paid from 27 March 2015 because his claim was not lodged within 14 days of that date. The applicant told that the officer that he and his wife had been separated since 2003.
    • The original decision was affirmed and on the same day the applicant requested the decision be reviewed by an Authorised Review Officer (ARO).
    • On 12 May 2015 the ARO had a conversation with the applicant about his appeal. The applicant informed the officer that he had been separated since 2003 and asserted that he did not complete the information in 2011 that he was married.
    • On 13 May 2015, the ARO affirmed the decision under review and a copy was sent to the applicant on the same day.
    • On the same day the applicant lodged a Form SS 293 – Relationship Details – Separated under the one roof, and which he signed and dated 11 May 2015. He wrote in answer to question 10 that he separated from his wife on 20 January 2003. In answer to question 14, the applicant put a cross in the box indicating that he had not filed for divorce, and in answer to the question why not, wrote “I have remained because my 2 children were small”. In answer to question 12 about how the relationship differs from that of a married couple, the applicant wrote “yes – no physical contact no sex”.
    • The applicant and his partner lodged an application for divorce on 16 June 2016 which was granted on 25 August 2016.

    Consideration of the evidence and findings

    Start date of Age Pension

12. Section 11 of the Administration Act provides that a claim for a social security payment must be made in accordance with Division 1 of the Administration Act. The person makes a claim by lodging a written claim form for payment (section 16(1)) that is in accordance with a form approved by the Secretary (section 16(2)).

13. Section 41 of the Administration Act provides:

    Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

14. Section 42 of the Administration Act provides:

    For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

15. Clause 3 of Schedule 2 of the Administration Act provides that the general rule is that if a person makes a claim for a social security payment and the person is qualified for that payment on the day on which the claim is made, then the start date is the day on which the claim is made.

16. Relevantly, the effect of clause 3 of Schedule 2 and section 13 of the Administration Act is that the start date for a payment is the date on which a person contacted the Department in relation to a claim for payment if the person was qualified for the payment on that day, and the person was given written notice acknowledging that the Department has been contacted in relation to the claim and the person lodges a claim for the payment within 14 days after the Department was contacted.

17. Section 13(3) provides an exemption where a claim is made more than 14 days but not more than 13 weeks after the Department is contacted, if the Secretary is satisfied that the person was suffering a medical condition throughout the period after the Department was contacted and ending on the day on which the person lodged the claim and the medical condition or the circumstances relating to the medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier.

18. The applicant first contacted the Department on 27 March 2015 about his intention to make a claim for a social security payment and on the same day he was sent a notice confirming his intention to make a claim and informing him that in order to receive his payment from the earliest possible date, the claim had to be lodged on or before 10 April 2015.  The applicant did not lodge his claim for AP and PBS until 22 April 2015, after the 14 day period had ended. 

19. The applicant told the AAT1 that he did not lodge his claim within 14 days because he went away on a trip with his son. His explanation does not satisfy the exemption in section 13(3). The reviewable decision is correct in relation to the date of effect of his claim for AP.

    Has the applicant been a member of a couple for social security purposes at any time since 2003?

20. The applicant has maintained throughout the review process that he understood separated to mean living apart. He said that he was still married and so that is what he said. At the Tribunal hearing, he said that he had gone to apply for a divorce after a conference at the Tribunal in this matter where he was asked whether an application had been made for divorce. He said that he had been thinking about doing that for two years and he instigated it.  He said that he did not leave the home before because of his love for his children but his son has turned 18 and is in the last year of high school and so he can now leave.  

21. The applicant advised the Tribunal after the hearing in a letter dated 7 September 2016 that he had been granted a divorce on 25 August 2016 which became final “in 30 days”.  He also advised that he had changed his address on 11 July 2016 “and Australia Post have been directing” his mail.  His current address is in northern New South Wales, which is consistent with his evidence to the Tribunal about his planned move to a home in a retirement village owned by his elderly mother who had moved into a nursing home.

    OUTCOME

    The financial aspects of the relationship

22. The applicant was consistent in claiming that the mortgage over their property was 99 per cent his and only 1 per cent in his wife’s name because he had an income.  The Tribunal accepts that is so.  He denied that his wife had a card to access the redraw facility on the mortgage.   The Tribunal cannot find evidence to support the respondent’s claim that the applicant’s wife has a card to access that facility. During the 2015 telephone interview, she said that there is a redraw facility on the mortgage, which was correct.  The applicant acknowledged in the form he filled out on 11 May 2015 that the home was jointly owned.  The Tribunal finds that the applicant and his wife jointly owned the home.   

23. By the time of the hearing, the applicant said that they had sold their home, although his wife had leased it back at least until November. He said that his wife was paying the lease of $350 per week from her Newstart allowance.  He had given all the furniture to his wife. They had settled things to their satisfaction.  He was still living there but was not a party to the lease and was planning to move to northern New South Wales in July. He would only take his clothes, linen, and personal effects.

24. The applicant said that he and his wife each received a cheque for $127,090.  He said that they split the proceeds 50/50 because that is what the law would have required because the mother gets 50 per cent.  However, such a division is also consistent with their each owning 50 per cent of the property. The applicant still had an unbanked cheque for approximately $5,000 which were the proceeds of the deposit less the agent’s commission. The applicant said that he did not know whether they were joint tenants or tenants in common. 

25. The applicant told the Tribunal that he and his wife had jointly owned an investment property which was purchased in 2003 and sold about nine years later.  It was negatively geared.  The mortgage was over their home and that property but it was not a profitable investment. They signed the papers to purchase the investment property around the time of the separation, which he said was sudden.

26. The Tribunal does not accept that the 99 per cent and 1 per cent division of the mortgage reflects the percentage ownership of each of the applicant and his wife.  The Tribunal accepts that such a division reflects that he was the only income earner.

27. The Tribunal finds that joint ownership of two properties from 2003 until the sale of the investment property nine years later and the sale of their home in 2016, is inconsistent with the applicant and his wife separating in January 2003.  It is consistent with them being a member of a couple throughout that period.

28. The applicant denied that there had been any pooling of resources because his wife’s only income was the Government payment for the children which was used to pay for their clothes and the like.  He paid for everything from his income and spent his savings and superannuation to “keep afloat”. He paid the medical insurance for all the family.  At the hearing, he said that he “is” paying the bills and “always has”.  He pays for the landline and his wife pays for her mobile telephone.  The applicant disclosed a joint debt to GE Money for the purchase of a washing machine.   Later at the hearing when asked about his wife’s statement in 2014 that he gave her $120 towards groceries, the applicant said that in 2015 she paid for food.

1. The Tribunal accepts that the applicant was the only income earner and paid the bills, including the GE bill, but not his wife’s mobile bill and some expenditure for the children paid from the Government payment his wife received for them.  She may have paid for food when she was receiving Newstart allowance. However, the applicant continued to pay all other bills.  He has always supported his wife financially, at least until the sale of the home in May 2016.  

2. The Tribunal does not accept that the arrangements described in the previous two paragraphs are consistent with the applicant and his wife being separated under one roof as the applicant claims.  Rather, those arrangements are consistent with being a member of couple.

3. The Tribunal accepts that the applicant had no joint credit cards, bank accounts or Medicare cards with his wife. 

4. A statement from the applicant’s superannuation provider shows that the applicant’s wife was recorded as the beneficiary of his superannuation from 23 December 2004 until his exit date of 19 May 2015.  The applicant claimed that he was not aware of that.  The Tribunal finds that recording his wife as beneficiary from 23 December 2004 is inconsistent with his claim to have separated in January 2003.  His evidence does not overcome that inconsistency.

5. A statement from his employer said that the applicant’s wife was his emergency contact during his employment and that was never changed.  The applicant said that he had forgotten about that and he had worked for different franchises and was never told to update his details. The Tribunal gives the evidence about the emergency contact little weight.  They continued to live in the same house and were the parents of two children and he may have simply forgotten.

6. The applicant does not have a will.  During cross-examination, the applicant said that he did not know that everything would go to his wife if he died if he did not have a will.  He said that “today” he was thinking of making a will with his son as the beneficiary. The Tribunal does not accept that if the applicant and his wife were really separated that he  would not have made some inquiries about what happened to his assets if he died, given his age and the ages of his children.

   The nature of the household

7. The Tribunal finds that the applicant and his wife were jointly responsible for providing care or support to the children, and in recent years more particularly for their disabled son than their daughter, who is studying.

8. The Tribunal did not find persuasive the applicant’s evidence about being able to leave because his children were grown up and in particular because his son was 18 years old, about to finish school, and then has to get a job and provide for himself.  He said that he wanted to take his son on a holiday but his wife said that she had to get him assessed.

9. The applicant told the Tribunal the following about his son.  His son was physically good.  In some respects he is very clever.  He was in a special class at school.  He is taken on excursions every second week and does work experience packing in a factory.  His son gets himself ready.  The applicant drives him to school. He takes his son to the movies once or twice a month.  His wife takes care of his son too.  Lately, his son is at the point where he can look after himself a lot. The applicant has seen him cooking rice, washing up, and doing his own laundry.  He is not hopeless.

10. When the Tribunal commented that it was surprising that he would leave his son to whom he was close, the applicant said that his son had turned 18 and was not far off being employed. 

11. The Tribunal finds leaving his disabled son at a challenging time when he is about to move from a school environment to a work environment is inconsistent with the care and concern the applicant has demonstrated in the past. The Tribunal does not accept that the applicant will leave his son.  It does not accept that his son has developed recently to the extent that he can care for himself and enter the workforce without the support of both his parents, and in particular his father.  

12. The applicant’s wife lodged a Centrelink form on 24 June 2014 in which she claimed that she had separated from her husband on 10 January 2014 when they went into separate bedrooms. In her statutory declaration dated 3 December 2015 she stated that they separated in early 2003, were living in separate bedrooms, and had had no physical contact.  Although living under the one roof, the marriage “has been finished for some time now with no chance to reconcile”.  She gave no explanation for providing the 10 January 2014 date in the Centrelink form lodged in June 2014.  The applicant denied that his wife would have given the 2014 date of separation, when it was really 20 January 2003, as a consequence of her suffering post natal depression.

13. Given the inconsistencies in the evidence, the Tribunal does not accept that the applicant and his wife have occupied separate bedrooms since 2003.  It does however accept that they have been living in different places since July 2016.

14. There were some inconsistencies in the evidence between the applicant and his wife about the distribution of responsibility for housework. However, the Tribunal accepts that the applicant does his own cooking and washing and that he does the lawn with the help of his son. His wife does the cleaning with some assistance from the children.

    The social aspects of the relationship

15. The applicant claimed in his written statement received at the hearing, that after his continual argument with Centrelink, relatives and friends now know that they are not a couple. In the form his wife completed in June 2014, she said that “friends/relatives see as a couple because they don’t know what is going on”.  The material before Centrelink in August 2015 from his wife was that they presented to the community as a couple, although her sister knew of the separation and they had recently told their daughter but not their son. She said that she did not like to tell people what happens behind closed doors.

16. In his statement received by the Tribunal on 4 December 2015, the applicant wrote that “the lady and man next door who we are friendly with since 17 yrs does [sic] not know of my situation I do not shout it from the rooftops”.

17. The Tribunal takes into account the statutory declaration of 27 November 2015 signed by the applicant’s sister in which she states that her sister advised her that the applicant’s marriage had ended in 2003. The Tribunal finds on the applicant’s evidence that the sister who provided that information to the declarant died in 2007.  He said at the hearing, that the last time he and his wife went out together was to attend the funeral.

18. The Tribunal finds that the applicant and his wife presented to the community as a couple until around the time they sold their home in 2016.  It gives little weight to the evidence of the applicant’s sister about the separation given the inconsistencies in the evidence of the applicant and his wife on that issue.

19. There is little evidence about the applicant and his wife making plans for or engaging in joint social activities. The Tribunal accepts that the applicant has holidays separately with his son.

    Any sexual relationship between the applicant and his wife

20. The Tribunal does not consider that the evidence enables it to make a finding on the question of whether there is currently a sexual relationship between the applicant and his wife or when it ceased, because it finds the evidence about when they separated and when physical contact ceased is inconsistent and it is not able to resolve the inconsistency.

    The nature of the people’s commitment to each other

21. The applicant and his wife were married from 21 June 1993 until they divorced in 2016.  Their marriage had extended over more than 23 years.  They had two children, the last of whom was born in 1998.  The applicant claims that they have not been in a marriage-like relationship since 2003.  His wife has provided conflicting evidence that it ended in January 2014 and in 2003.  

22. The Tribunal takes into account the divorce, but is not persuaded that it was done because they are no longer members of a couple. On the applicant’s evidence, he only took that step after participating in a Tribunal preliminary conference in this matter where the issue was raised.

23. The evidence before the Tribunal does not explain why the applicant’s wife suddenly applied in June 2014 for Newstart allowance, having been provided for financially by the applicant since their marriage. The evidence does not suggest that the applicant suddenly stopped supporting her financially. He said that he was still paying the bills, except the lease payment, at the time of the hearing.  His wife has contradicted her claim to have separated in January 2014 in her later statutory declaration and without explanation.   Applying for Newstart allowance as a single person just six months before the applicant retired is consistent with seeking to maximise the social security benefits she and the applicant would receive after he retired in March 2015.

24. Taking into account all the evidence before it, the Tribunal does not accept that the applicant and his wife have separated permanently.  As stated above, the lease of the home until November leaves open the possibility that the wife and the son, who will have finished school, may then move to northern New South Wales to live with the applicant.  The Tribunal does not accept that the applicant has not been a member of a couple in 2003 or at any time since 2003.

    Decision

25. In matter No. 2016/1515, the reviewable decision is affirmed.

26. In matter No. 2015/4757, the Tribunal:

    (a)affirms the reviewable decision to grant the Age Pension with effect from 22 April 2015; and

    (b)varies the decision to pay the applicant under the Pension Bonus Scheme in so far as the applicant is to be paid as a member of a couple, and not as a single person, from 10 January 2014.    

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated 8 December 2016

Date(s) of hearing	28 June 2016
Applicant	In person
Solicitors for the Respondent	Dr S Thompson, Department of Human Services