De Beer and Secretary, Department of Family and Community Service S
[2004] AATA 140
•13 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/459
GENERAL ADMINISTRATIVE DIVISION ) Re GABRIELA DE BEER Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date13 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd)......................
O Rinaudo
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – Health Care Card – eligibility for Health Care Card – whether notice to provide information reasonable – whether applicant had a reasonable excuse for failing to provide information – whether applicant in a marriage like relationship
Social Security Act 1991
Social Security Act (Administration) 1999 ss 63(2), (6), (10)
McDonald v Director-General of Social Security (1984) 6 ALD 6
Re Dos Santos and Secretary, Department Family and Community Services [2003] AATA 432
Re Ford and Secretary, Department of Family and Community Services [2003] AATA 7
REASONS FOR DECISION
Mr O Rinaudo, Member 1. This application is made by Gabriela De Beer (the applicant) for a review of the decision of the Social Securities Appeals Tribunal (SSAT) on 12 May 2003 which affirmed the decision of Centrelink on 3 January 2003, rejecting her application for a Health Care Card.
2. The Tribunal had before it two volumes of T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Volume 1 T1 – T24 and Volume 2 T1-T22, marked as Exhibits 1 and 2 respectively) and documentary evidence as follows:
§ Exhibit 3 Letters and attachments dated 28 November 2003
§ Exhibit 4 Claim for Health Care Card dated 20 August 2003
3. The applicant was unrepresented at the hearing. The respondent was represented by Mr T Ffrench, a Departmental Advocate. The applicant gave oral evidence as did Mr B Ford.
4. The applicant began living with Mr Ford in 1990, purchasing a home together at Sunshine Beach in 1996. They subsequently purchased an investment property and maintained joint financial arrangements. This consisted of a joint mortgage account, insurance policies and a credit card.
5. On 22 October 2001 Mr Ford lodged a claim for Newstart Allowance. On 27 November 2001 Centrelink, in rejecting his claim, determined that Mr Ford was living in a marriage-like relationship with the applicant and therefore a member of a couple for the purpose of Social Security payments. This decision was affirmed by the SSAT on 6 March 2002. Mr Ford appealed to the Administrative Appeals Tribunal (AAT). On 7 January 2003 the AAT affirmed the decision under review.
6. On 10 December 2002 the applicant lodged an application for a Health Care Card. In assessing her application, Centrelink wrote to the applicant on 2 January 2003 requesting she provide, within fourteen days, information relating to her relationship with Mr Ford. This included Mr Ford’s personal details, proof of his identity and details of any wages, managed funds etc.
7. On 3 January 2003, the applicant contacted Centrelink advising them that she could not provided the information requested on the basis that any details relating to Mr Ford were not relevant to her claim for a Health Care Card. The applicant made no attempt to obtain the information requested.
8. When the applicant, after the expiration of the fourteen days, failed to provide the information requested, Centrelink rejected her application. The applicant appealed to the SSAT. The SSAT determined that the applicant did not qualify for a Health Care Card on the basis that she failed to reasonably comply with the notice sent to her on 2 January 2003 requesting further information.
Evidence of the Applicant
9. In her evidence, the applicant generally confirmed the factual content of the decision made by the SSAT. However, she stated that she and Mr Ford had never lived in a marriage-like relationship. The applicant stated that at the beginning of 2003 she bought Mr Ford out of his financial interest in their joint investments and they no longer held any property jointly. She stated that she is now paying all the expenses they had previously shared including rates, food etc.
10. The applicant stated Mr Ford worked overseas for long periods of time but when he was at the Sunshine Beach home he occupied the self contained quarters at the residence. She further stated that she did not and had never had a sexual relationship with Mr Ford. She said that she did the cooking, cleaning and washing and when Mr Ford was at home they would often engage in conversation over dinner.
11. She confirmed that they went on a walking trip in Tasmania and that Mr Ford had discussed retirement to Tasmania. She indicated that she had no desire to reside in Tasmania and would remain resident in Noosa.
12. The applicant referred to a letter from her friend Karin Carroll (Exhibit 3), which says:
“Gabriela de Beer has told me about her dilemma with Centrelink over an application for a Health Care Card, which is refused to her because she is regarded as living in a marriage like relationship with Mr Brian Ford.
I have known Gabriela for more than 25 years, and also got to know Brian over the years.
He started sharing her big house in Sydney when he moved from Melbourne. Later, as they became friends, they purchased a house together as an investment in Noosa, but then decided to move to Noosa for a better life style.
Gabriela was semi retired at that stage.
She has altered the house so that Brian may have his own separate quarters when he is in Noosa.
I know that he has been for the last few years working in London and he is now working and living in Sydney.
He only goes to Noosa every month or so for a short break.
I see him here in Sydney occasionally when we go out together.
He lives here with a Lady, but I have not met her.
They are good friends, but always have separate finances.
They share some social activities, but mostly have their own interests.
I know that Gabriela is benefiting in this relationship financially, because Brian is contributing to the bills for the house in Noosa.
It is a relationship that is convenient and financially better for Gabriela than living completely alone, but gives her all the freedom of a private life.
Gabriela has recently paid Brian out from his share of the house, but he still wants to remain sharing the house there.
I hope this will help to give a better picture of Gabriela’s living arrangements and will enable her to get a Health Care Card.”
13. Under cross-examination the applicant was advised by Mr French that the decision would be based on an assessment of her living arrangements as at 10 December 2002 and not as at the date of the hearing (9 December 2003).
14. The applicant confirmed that she and Mr Ford no longer assumed a joint financial interest in the Sunshine Beach home and confirmed that the joint venture agreement set out at T4 page 23 of Volume 2 of the T-documents no longer exists.
evidence of Mr Ford
15. In his evidence Mr Ford told the Tribunal there had been several changes to the living and financial arrangements between himself and the applicant. He said he was now resident in Sydney, living with another woman.
16. He confirmed that he had been paid out for his interest in the Sunshine Beach home from monies the applicant received from the estate of her late Aunt. He stated that he and the applicant were very good friends but lived very independent lives.
17. He said that on 2 December 2002 he moved to Sydney permanently. However, he maintained the self contained quarters as a holiday residence. He confirmed that they had a very “thin on the ground” social life and no sexual relationship. He said that he has to pay some household bills because he maintains the flat there.
18. He anticipated that his job in Sydney would be extended and he may have to go to London in the future.
19. He said the relationship between himself and the applicant had changed. He confirmed he may move to Tasmania in a couple of years. He also confirmed that he would trust the applicant with his life. He described the relationship as an amicable friendship. He said “she does not need me and I don’t need her” and that they have a “close friendly relationship”.
Issue
20. The issue for the Tribunal is to determine whether, as at 10 December 2002, the applicant was eligible for a Health Care Card.
Legislative Framework
21. The legislation relevant to this application is contained in sections 63(2), (6) and (10) of the Social Security Act (Administration) 1999 (the SSAA), which provides:
“63.(2) If the Secretary is of the opinion that a person to whom this section applies, other than a person to whom subsection (3) applies, should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may give the person written notice that he or she is required, within a specified time, to:
(e) attend that office; or
(f) contact the Department; or
(g) attend that place for that purpose; or
(h) give that information;
as the case may be.
…
63.(6) If:
(a) a person is the holder of, or has made a claim for, a concession card; and
(b) the Secretary gives the person a notice under subsection (2); and
(c) the requirement of the notice is reasonable; and
(d) the person does not comply with the requirement;
the person ceases to be qualified, or is not qualified, as the case requires, for a concession card.
…
63.(10) The Secretary may determine that a person who, by virtue of subsection (6), has ceased to be, or is not, qualified for a concession card is qualified for such a card if the Secretary is satisfied that the person has a reasonable excuse for not complying with the requirement of the notice under subsection (2).”
Discussion and Decision
22. Although this application was treated by the respondent as being a consideration of whether, as at 10 December 2002, the applicant and Mr Ford were living in a marriage-like relationship, the decision of the Social Security Appeals Tribunal was made on the basis that the applicant, without reasonable excuse, failed to comply with a reasonable notice to provide information, pursuant to sections 63(6) and (10) of the SSAA.
23. One factor in assessing a person’s eligibility for a Health Care Card is whether the person satisfies the “health care income test” (see section 1061ZO(2) of the Social Security Act 1991 (the SSA)). The first step in this test, is to determine the person’s “ascertained income” for an eight week period immediately prior to the claim for the Health Care Card. In determining the person’s “ascertained income”, provision is made for couples. Where a person is a member of a couple, the person is required to supply his or her partner’s income as well as his or her own (see sections 1071A – 1 and 1071A – 4 of the SSA).
24. As at the date of lodgement of the application for a Health Care Card, Centrelink, based on the information before it, determined the applicant to be in a marriage-like relationship and therefore a member of a couple for the purpose of assessing her eligibility for a Health Care Card.
25. The applicant has disputed the determination that she was in a marriage-like relationship with Mr Ford. At the time she lodged her claim for a Health Care Card, Mr Ford had appealed to this Tribunal against the decision of the SSAT affirming the decision of Centrelink to regard Mr Ford as living in a marriage-like relationship with the applicant and therefore a member of a couple for the purposes of assessing his entitlement to Newstart Allowance. This Tribunal subsequently affirmed the decision on 7 January 2003. Notwithstanding, there may have been some uncertainty with regard to the final determination, it was correct for Centrelink to treat the applicant as a member of a couple until such time as the decision was handed down or the applicant’s personal circumstances changed.
26. Therefore, the request for information with regard to Mr Ford’s personal details, proof of identity and financial details was reasonable because it was central to calculating the applicant’s “ascertained income”. However, the applicant formed the view that Mr Ford’s details were irrelevant to her claim and made no attempt to obtain the information.
27. It is clear the applicant consciously failed to comply with Centrelink’s request, as evidenced by her telephone conversation of 3 January 2003 (T11, page 32), with the full knowledge of what the consequences would be, that is, her claim would be rejected. Her failure to provide this information is without reasonable excuse.
28. The failure, by the applicant, to supply the information requested meant the delegate for Centrelink could not make a proper assessment of her claim. If the delegate was left in a position of uncertainty with regard to relevant factors concerning whether or not the applicant qualified for a Health Care Card, the correct and preferable decision was to reject her claim (see: McDonald v Director-General of Social Security(1984) 6 ALD 6; Re Dos Santos and Secretary, Department Family and Community Services [2003] AATA 432).
29. Accordingly, the Tribunal affirms the decision under review.
30. The other issue that arose in the course of these proceedings was whether the applicant was living in a marriage-like relationship with Mr Ford. Whilst the application before the Tribunal is not for a review of the decision that she is living in a marriage like relationship, for completeness, some discussion of the issue should be made.
31. In deciding whether two people are living in a marriage-like relationship, Centrelink must examine the criteria set out in section 4(3) of the SSA. One factor is the financial aspect of the relationship, including any joint ownership of real estate or other major assets and any joint liabilities, any significant pooling of resources and the basis of any sharing of day to day household expenses. Another factor is the nature of the household, including the living arrangements of the people and the basis on which responsibility for housework is distributed.
32. Regard is also made to the social aspects of the relationship, including the assessment of friends and regular associates of the people about the nature of their relationship, the basis on which the people make plans for, or engage in, joint social activities. Consideration is also had, as to whether there is a sexual relationship between the people. The final factor that is taken into account is the nature of the people’s commitment to each other. This encompasses the length of the relationship, the nature of any companionship and emotional support the people provide to each other, whether the people consider the relationship will continue indefinitely and whether the people see their relationship as a marriage-like relationship.
33. Having regard to the evidence before it, the Tribunal is of the view that the applicant was living in a marriage-like relationship with Mr Ford, as at 10 December 2003. These were two people, who had been with one another for some 12 years, even moving interstate together. There was joint ownership of real estate and considerable pooling of financial resources in relation to the mortgage payments and maintenance costs of the real estate held. The day-to-day household expenses were shared equally with the applicant providing Mr Ford with financial assistance during periods of unemployment. Their living arrangements were such that the applicant undertook the cooking and cleaning and Mr Ford completed the maintenance tasks.
34. Socially they enjoyed holidays together and celebrated birthdays and Christmas with one another. Although they maintained a separate circle of friends, there were also mutual friends with whom they would socialise with together. Whilst they did not have a sexual relationship this is not determinative in finding against a marriage like relationship. They had a strong degree of emotional support and commitment to each other, had demonstrated a willingness to assist one another if the need arose and considered that their living arrangements would continue indefinitely.
35. This was quite clearly a relationship founded on commitment, trust and mutual respect. The characterisation of the relationship between the applicant and Mr Ford is best explained by the comments of this Tribunal, at paragraph 53, in Re Ford and Secretary, Department of Family and Community Services [2003] AATA 7, where the Tribunal states:
“Whilst I accept that they do not have the level of emotional commitment found in some marriages, they have a degree of emotional attachment which transcends mere friendship. The household is not only structured in the matter that it is because of convenience, practicality and/or economy. It is structured in that manner because they have a strong bond based upon mutual respect, affection, loyalty and trust. Whilst these factors on their own would not be sufficient to indicate a marriage like relationship, it is their reliance and dependence on each other and their resolve that it should continue indefinitely, which leads me to the conclusion that, in law, Mr Ford is living in a de facto relationship with Ms De Beer.”
36. The applicant, at the hearing, appeared confused as to the relevant timeframe for determining her application, providing a new claim for a Health Care Card dated 20 August 2003 (Exhibit 4).
37. Much of the evidence provided by the applicant was directed towards her change in living arrangements with Mr Ford. It now appears that there has been a significant change in their financial and personal relationship. There is no reason to disbelieve the evidence of either the applicant or Mr Ford.
38. Whilst the Tribunal is not required to determine the applicant’s eligibility for a Health Care Card with regard to the claim lodged on 20 August 2003, it might be of assistance to Centrelink, in its deliberations, to note that there appears to be significant changes in the nature of the applicant’s relationship with Mr Ford, which when properly considered, may indicate the applicant is no longer living in a marriage-like relationship.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Kirsten Donnelly
AssociateDate/s of Hearing 9 December 2003
Date of Decision 13 February 2004The Applicant appeared in person
For the Respondent Mr T Ffrench, Departmental Advocate
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