Dempster; Secretary, Department of Family and Community Services
[2004] AATA 1287
•3 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1287
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/683
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT
OF FAMILY AND
COMMUNITY SERVICESApplicant
And
ELLEN DEMPSTER
Respondent
DECISION
Tribunal: Ms M J Carstairs, Member Date:3 December 2004
Place:Brisbane
Decision: The Tribunal:
(a) sets aside the decision of the SSAT that the respondent should be paid disability support pension at the single rate on and from 6 August 2002, and substitutes the decision that the respondent was a member of a couple for the purposes of s4 of the Social Security Act 1991 and therefore she should be paid the partnered rate of disability support pension; and
(b) sets aside the decision of the SSAT that the respondent was not a member of a couple in the period 8 March 1996 to 25 July 2002 and substitutes the decision that the respondent was a member of a couple for the period 17 January 1997 to 25 July 2002 (the period). The Tribunal remits the matter to the applicant for re-calculation of the amount of the respondent’s debt of sole parent pension, austudy payment and disability support pension arising in the period.
.................... [Sgd]...................
M J Carstairs
Member
CATCHWORDS
SOCIAL SECURITY - benefits and entitlements - whether applicant in a marriage-like relationship - debt - waiver
Social Security Act 1991 ss 4, 1237A, 1237AAD
Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992)
REASONS FOR DECISION
3 December 2004 Ms M J Carstairs, Member 1. This is an application by the Secretary to the Department of Family and Community Services (the applicant) for review of two decisions made by the Social Security Appeals Tribunal (the SSAT) on 18 July 2003. The SSAT decided that Ellen Dempster (the respondent) should be paid the single rate of disability support pension, and the SSAT set aside a decision that she had incurred a debt. The debt had been raised by Centrelink against the respondent after a finding was made that she was a member of a couple and this affected the rate of income support payments that she had received in the period 8 March 1996 to 25 July 2002 (the relevant period).
2. At the hearing the applicant was represented by Ms H Wallis-Dunn, an advocate with Centrelink. The respondent was represented by Mr S Hamlyn-Harris of counsel, instructed by Legal Aid Queensland.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits marked A1-A12 for the applicant and R1-R7 for the respondent.
BACKGROUND
4. The respondent is aged fifty-four. She has received sole parent pension, austudy payments and disability support pension in the relevant period. All of these payments were made at the single rate, based on an assessment that she was not a member of a couple, or in a relationship with a person of the opposite sex.
5. The respondent has four children. In 1996 her two daughters, Rachel (then aged sixteen) and Rebekah (then aged fourteen) lived with her at a caravan park at Clontarf and were attending high school. In 1996 the respondent undertook a course at Caboolture TAFE. Robert Parish was also a student there. Since about 1995, Mr Parish has rented a house from the Housing Commission at 5 Cork Street, Deception Bay (Cork Street). The respondent and Mr Parish met through their studies and became friends. In January 1997 the respondent took over the tenancy of a flat immediately next door to Mr Parish, although its street address was 2/19 Ewart Street, Deception Bay (Ewart Street).
6. In September 2002 after internal investigations were conducted when Centrelink received anonymous information about the respondent’s living circumstances, a delegate decided that the respondent should be paid disability support pension at the partnered rate, which is lower than the single rate. In another decision, also in September 2002, a debt of $32,267.72 was raised against the respondent relating to the benefits that the respondent had received from Centrelink during the relevant period. Both decisions were based upon conclusions that Mr Parish was the respondent’s partner.
7. The respondent maintained that she should be assessed as a single person throughout the relevant period and should paid disability support pension at the single rate now. When the SSAT examined these issues, it was satisfied that the weight of the evidence did not point to the respondent and Mr Parish being members of a couple. It is that decision that the applicant seeks to have reviewed by the Tribunal.
8. The issues for the Tribunal are whether the respondent was a member of a couple within the meaning of s4(2) of the Social Security Act 1991; whether she has incurred a debt in the relevant period; and if so, whether it should be recovered from her.
EVIDENCE
9. The respondent gave evidence that she moved to Deception Bay when her daughter Rachel was seventeen and Rebekah was fifteen. She stated that before moving into the flat at Ewart Street in early 1997, she and her daughters had stayed with Mr Parish. She said that when she stayed at Cork Street, Mr Parish slept in the lounge. She said when she and her daughters moved into the flat at Ewart Street she slept on a narrow divan bed in the lounge room. She said that if she was locked out of the flat at Ewart Street, she would stay at Mr Parish’s house. The respondent stated that she was not sleeping in the same room as Mr Parish when she stayed at his house, and has not had a sexual relationship with him. The respondent said that after Rachel left the flat in 1999 (Rebekah had left earlier that year), she stayed on, occupying it alone. She agreed that her computer was located at Cork Street and she would spend four or five hours per day using it at that address.
10. The respondent said that she had paid the rent at Ewart Street until 27 June 1999 (T56), and said that she had simply forgotten to tell Centrelink when the tenancy ceased. She said that she had also forgotten to tell Centrelink when she commenced working in 2001/2002.
11. The respondent said that when she left the flat at Ewart Street she again stayed briefly with Mr Parish at Cork Street. A caravan was moved to the Cork Street address, after Mr Parish arranged for the respondent to rent it from the caravan’s owner, Joe Susstand. The respondent said that Mr Susstand came regularly to collect the rent, until she mentioned to him that she had told Centrelink that she was paying rent to him. She said that Mr Susstand then said that she had paid enough rent and could keep the van. She said that when living in the caravan, she had always done her own cooking. She said that she occasionally would have a cup of coffee with Mr Parish, but did not otherwise eat or socialise with him. She said that Mr Parish had a relationship with a woman named Jackie, whose surname she did not know, but who visited Mr Parish regularly. She said that she did not join in cooking with Jackie when she was there.
12. The respondent said that she regarded Mr Parish as one of the best friends she had ever had but she denied that her daughter Rachel ever referred to him as Daddy.
13. In regard to Mr Parish’s campaign for election to local government in 2000, she said she was only one of many involved in it and that Mr Parish needed her to attend functions as a note-taker.
14. In oral evidence Mr Parish confirmed that he and the respondent met through their studies in 1996, and that she and her two daughters had stayed for brief periods at Cork Street in 1996. When describing the relationship between himself and the respondent from that time he said that she was a friend, that she was like any neighbour, and also that they offered support to each other. He said that they would have coffee together occasionally and repeatedly stressed that many people would come to his house, and many stayed overnight.
15. In regard to access to the house at Cork Street from the caravan, Mr Parish said that there was no need for the respondent to come into the house, although he would let her use the laundry but only if he was there. His evidence was that the respondent sometimes brought the computer to the house, but otherwise it was in the caravan. He said that there would have been occasions when the respondent stayed over at the house, but he said that his house is a half-way house for many in Deception Bay.
16. Mr Parish said that he had a relationship with Jacqueline Wilkinson, whom he had known since 1995. He was clear in his evidence that he had known her before he met the respondent and said that Ms Wilkinson was the reason for the breakdown of the relationship with his former wife. When he was cross-examined about his limited knowledge of matters such as Ms Wilkinson’s birthday or details about her children, Mr Parish said that he has memory problems. He did not recall whether Ms Wilkinson had cooked at Cork Street and he did not recall whether he, Ms Wilkinson and the respondent had ever eaten together. He said that he and Ms Wilkinson had broken off their relationship after she had given her evidence to the Tribunal on a previous hearing day, stating to him that she had had enough.
17. In regard to his relationship with the respondent’s daughters, Mr Parish said that both daughters had been attracted to him, and that although he had never encouraged Rachel, she had made sexual overtures to him on one occasion. He said that at Rachel’s eighteenth birthday party, her behaviour to him had been observed by others as being like girlfriend and boyfriend. He said that she might have called him Pa but that many people in Deception Bay call him by that name. He said he does not allow anyone other than his own children to call him Daddy.
18. When Mr Parish gave his evidence to the Tribunal on its third day of hearing he said that he had removed the caravan from Cork Street, and that when he later went to the site to which he had taken it, it was no longer there. The respondent was recalled to give evidence about this matter and she said she had returned to Cork Street after a holiday to find the caravan gone and that Mr Parish would not disclose where he had taken it. The respondent said that she was sleeping in parks while she waited for a caravan to become available for rent at a caravan park.
19. In a written statement dated 28 June 2002 (exhibit A5) Rachel Dempster, the respondent’s older daughter, said that she resided at Ewart Street with her sister Rebekah and that her mother lived with Mr Parish at Cork Street. In her oral evidence Rachel said that after the caravan park at Clontarf, she and her sister, with their mother, had resided briefly at Cork Street, before Rachel and Rebekah moved to the flat at Ewart Street. She said that when they were first at Cork Street her mother’s bed was in the main bedroom. However she said that at a later time it was in the spare bedroom which had air-conditioning. She said that when she returned to the Cork Street address for a six week period in 1999, Mr Parish slept in the lounge room on a fold down futon bed.
20. Rachel stated (exhibit A5) it was her belief that her mother was in a de facto relationship with Mr Parish from late 1996 or early 1997. Rachel gave evidence that her mother had introduced Mr Parish as her husband in her presence, to friends, and to Rachel’s landlady. Rachel said that she has discussed with her mother her objections to her mother’s use of the term “husband”, because she said she holds Christian beliefs about marriage. She said that her mother had replied that in her eyes he was her husband, based on their commitment to each other.
21. Rachel said that there were occasions when her mother slept at the flat at Ewart Street but Rachel said that her mother mainly lived at Cork Street with Mr Parish. Rachel denied that her mother slept on a divan bed in the living room at Ewart Street. Rachel said that her mother had set up her computer at the Cork Street address, in the house. Rachel also said that she had been told by either her mother or Mr Parish that Joe Susstand was a fictitious name.
22. Rachel said that there was a time when she used to call Mr Parish her father and their relationship had been close. Rachel said that she had assisted in his campaign for election to local government in 2000. She said that her relationship with him broke down later, after he had been physically threatening to her when she attempted to intervene on behalf of her sister Rebekah. Rachel said that Mr Parish had come between her and her mother. Rachel described her relationship with her mother and with her sister Rebekah as strained.
23. Rebekah Dempster gave oral evidence supporting the respondent’s evidence that the respondent slept on a divan bed in the living room at Ewart Street, while Rebekah and Rachel slept in the bedrooms. Rebekah said that she left the unit at Ewart Street before Rachel did. Rebekah’s evidence was that Rachel lied about the family circumstances and about matters such as not having sufficient food to eat including to Pastor D Rauchle, the minister who ran the local church group. Rebekah said that she moved back to Cork Street when her son Tristan was born in 2000, and stated that at times she has lived in the caravan at Cork Street with her mother.
24. When Rebekah was asked if she knew Mr Susstand she said that she had seen him on one occasion but had not been introduced. She said however that she had rented another house in Deception Bay from him.
25. In a written statement dated 8 July 2002 (T29) Pastor Rauchle stated that Rachel lived at the Ewart Street flat with her sister and that the respondent was living next door at Cork Street, although he was unable to state whether this was a de facto relationship. He confirmed this in his oral evidence. He said that he had regular contact with Rachel in his church group over a period of two years while she was at Ewart Street, and has had less contact since. He said that he had assisted Rachel with food parcels when these were requested, and was aware of tensions between the respondent and Rachel particularly over issues such as preparing the flat for inspections by the agent. It was Pastor Rauchle’s belief that the respondent lived with Mr Parish. He said that he had observed them coming and going from the house at Cork Street; he had seen the respondent in a dressing gown there; and had observed the two of them entertaining friends in an area adjacent to the garage. He said that he believed that the community regarded the respondent and Mr Parish as a couple, including when Mr Parish was a candidate in council elections in 2000.
26. Ms Wilkinson gave oral evidence that she has had a relationship with Mr Parish since about 1997 or 1998. She recalled having known the respondent before meeting Mr Parish, when she and the respondent were living in the same area and had children of about the same age. Ms Wilkinson said that she had visited the respondent when she lived at the caravan park at Clontarf prior to 1997. She said that the relationship between the respondent and Mr Parish was like that of brother and sister. Ms Wilkinson said that when she has visited Mr Parish she and the respondent have cooked meals together, using the kitchen in the house, or a barbeque.
27. Mrs Desley Roberts gave oral evidence that she had visited the flat (referring to it being at Cork Street). Her recollection was that the respondent had a divan bed in the lounge room at the flat. She said that she has also visited the respondent in the caravan at Cork Street. Mrs Roberts said she had met Mr Parish through the respondent, and believed it was at Rachel’s eighteenth birthday party, which was held at a restaurant at Lawnton. She said that Rachel was calling Mr Parish Daddy at the party and that there was a family table at which Mr Parish was seated with the respondent and her daughters. Mrs Roberts said that she considered the respondent and Mr Parish as a nice couple together. She said they go out and are sharing their life together. Mrs Roberts said that the respondent has told her that she loves Mr Parish, and that he loves her. She said that Mr Parish has said that he loves the respondent, but that she deserves better than him.
28. Mrs Roberts was asked about a statement in the T-documents (T56) which had been provided to the SSAT and was dated the day before the SSAT hearing:
I, Desley Mrs of Burpengary, state that I have known Ellen Dempster for the past 18 years.
We have been good friends and visited each other in our homes over the years. I was in her caravan in 1996 when she lived at Bramble Bay Caravan Park, Thompson Street, Clontarf.
I helped her move from that Caravan Park in January 1997 to her flat at 2/19 Ewart Street in mid January 1997.
She lived there with her daughters and for some months after the daughters left home in 1999. The due to the sale of the unit and vacant occupancy required by the new owner she moved into a caravan in the neighbour’s yard.
I aware of the situation she now finds herself in and give testament that she has and remains independent of Mr Parish’s lifestyle.
29. Mrs Roberts said that she had no recollection of preparing the statement, had not signed it, and had no knowledge of it being provided to the SSAT.
CONSIDERATION OF THE ISSUES
30. The relevant sections dealing with whether a person is a member of a couple of the Act are:
4(1) In this Act, unless the contrary intention appears: …
‘member of a couple’ has the meaning given by subsections (2), (3), (3A), (6) and (6A);
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)…….
(b)all of the following conditions are met:
(i)the person has a relationship with a person of the opposite sex (in this paragraph called the ‘partner’);
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) 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 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.
31. Ms Wallis-Dunn submitted that many factors identified for possible consideration in s4(3) did not arise on the evidence here. The parties each were in rented accommodation prior to them meeting and forming a relationship in 1996, and would have had the necessities required for a household. She said there may be no pressing need to acquire assets at their stage of life or, as recipients of social security payments, any substantial capacity to acquire them. She said that there was some evidence of financial interactions through joint responsibility for the electricity payments and the respondent’s actions in paying Mr Parish’s overdue electricity account in 1996.
32. Ms Wallis-Dunn’s main submission was that the evidence from the respondent and Mr Parish should not be believed, and being untrue, this made it difficult to know the financial, social, and relationship interactions that had occurred, to provide the information necessary to form an accurate view for the purposes of s4 of the Act. Ms Wallis-Dunn said that the evidence of Rachel Dempster, Pastor Rauchle and Mrs Roberts which pointed to the respondent having a committed relationship to Mr Parish should be preferred to the evidence of the respondent, Mr Parish and Rebekah Dempster.
33. Mr Hamlyn-Harris submitted that the evidence showed conclusively that the respondent remained at the caravan park at Clontarf until January 1997. He submitted that Centrelink evidence which relied on electricity connections in joint names from 8 March 1996 had been disproved. He submitted that the case should be looked at in discrete periods of time, after January 1997. The first of these was the period when the flat at Ewart Street was rented from January 1997 until the tenancy ceased in August 1999. Mr Hamlyn-Harris pointed in particular to the evidence of Rachel and Rebekah Dempster that each had moved out of the flat at Ewart Street in early 1999. He submitted it was unlikely that the flat would remain unoccupied until the lease terminated in August 1999 and that this offered support for the respondent’s evidence that she lived there and not at Cork Street.
34. Mr Hamlyn-Harris acknowledged that the main issue for the Tribunal when faced with competing versions of events was an assessment of the credibility of the evidence. He said that recollections can vary, particularly with the passage of time. He urged the Tribunal to accept the respondent’s evidence, as she was doing her best to recall what had occurred and had not attempted to minimise the importance of Mr Parish’s friendship to her. However he submitted that while there was a basis for finding that there was a deep and committed friendship, there was little basis for finding that they were a couple at any time in the relevant period. Mr Hamlyn-Harris said that Mrs Roberts and Pastor Rauchle had made incorrect assumptions that there was more to the relationship and that this was understandable given the strength of the acknowledged friendship between the respondent and Mr Parish. Mr Hamlyn-Harris acknowledged that Mr Parish’s evidence that he regarded their relationship as that of neighbours did not support the respondent’s evidence of a stronger connection between them.
35. In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing. In Re Peck and Secretary, Department of Social Security (AAT 8357, 2 November 1992), the Tribunal stated:
The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a ‘marriage-like relationship’ exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. …
36. The Tribunal agrees with the parties that the decision rests upon which among the competing and contradictory versions of the interactions and relationship between the respondent and Mr Parish is accepted as correct. The Tribunal had the opportunity of hearing lengthy evidence from the respondent and Mr Parish, as well as the other witnesses who gave oral evidence. The Tribunal finds the respondent’s evidence to be vague and unreliable, and she readily relied upon health issues to account for her poor memory. On a number of points the respondent’s evidence was completely unbelievable. The Tribunal does not accept the respondent’s evidence on the following points:
· that she paid rent for the caravan to a person by the name of Joe Susstand. The Tribunal is satisfied that the document at T14, which is alleged to be signed by Mr Susstand, is a document created to mislead Centrelink, and that the documents at T15 stating that the respondent was paying $220 per week for the caravan are false;
· that she had simply forgotten to let Centrelink know when the tenancy of the flat at Ewart Street ended. The follow-up investigation that occurred about the rent of the caravan occurred after Centrelink had received anonymous information. When interviewed about the rent payments on 7 September 2001 the respondent said she had forgotten to notify that she had moved from Ewart Street two years previously. It is unlikely that a person in the respondent’s circumstances would forgo rent assistance which had been claimed at Ewart Street, if she in fact was paying rent of $220 per fortnight for the caravan;
· that the reason that the telephone number she provided to Centrelink to contact Mr Susstand was her own number was that she had given the telephone to Mr Parish, who in turn had given the sim card for the mobile telephone to Mr Susstand when the telephone had been damaged; and
· that she used Mr Parish’s post office box for security reasons and that about fifty people in Deception Bay also use that post office box.
37. The Tribunal does not accept Mr Parish as an honest and reliable witness. He, like the respondent, readily referred to health issues as a basis of his poor recall. He was of little assistance on a number of points because of his lack of recall. He was not clear about where the respondent’s computer was located, and settled on an account that she took it to and from the house and the caravan, a version which was inconsistent with the respondent’s account. This matter took on additional importance once the authenticity of the documents prepared for the SSAT hearing was brought into question after the evidence of Mrs Roberts. Mr Parish’s evidence was often illogical. On the one hand he said that his was an open house to one and all and that he would frequently return home to find a stranger in his bed, and yet he said he imposed rigid rules about the respondent’s use of the house and his system of locking it when he was away.
38. The Tribunal does not accept Mr Parish’s evidence that Rachel Dempster had wished to have a relationship with him as an account of the way that Rachel and Mr Parish interacted at Rachel’s eighteenth birthday. Rachel did not have the opportunity to answer Mr Parish’s assertions, as his evidence was given after hers. Rachel was clear and consistent in her evidence. She told the Tribunal that she was giving her evidence reluctantly as she wished her mother to attend her forthcoming wedding. Her evidence was detailed, and it was supported on material points by the evidence of Pastor Rauchle, who was an independent observer. The Tribunal considered that he has sufficient experience from his pastoral work to offer useful assessments of family situations and he was observing the household between 1997 and 1999 at first hand.
39. The Tribunal gained little assistance from the evidence of Rebekah Dempster, who also referred to her memory difficulties. The Tribunal does not accept her evidence concerning the collection of rent by Mr Susstand. Taking into account the questionable origins of the rent documents, and the inherent unlikelihood of many aspects of the caravan story, including the disappearance of Mr Susstand, the Tribunal prefers the evidence of Rachel Dempster that she had been told that it was a fictitious name.
40. Ms Wilkinson had some familiarity with the living circumstances at Cork Street, however on crucial aspects of the evidence including about the preparation of food and the sharing of meals, her evidence contradicted that of both the respondent and Mr Parish. The most important point in her evidence was that she said that she knew the respondent, and had visited her at the caravan at Clontarf, before she (Ms Wilkinson) met Mr Parish. This was completely at odds with the evidence of the respondent and Mr Parish. The Tribunal accepts that part of Ms Wilkinson’s evidence as true. The Tribunal is satisfied that Ms Wilkinson has never been in a relationship with Mr Parish.
41. Much of the evidence given by the respondent and Mr Parish lacks credibility. It has the appearance of being contrived to fit whatever additional piece of evidence that has arisen from time to time that pointed to the respondent and Mr Parish being in a relationship. Wherever the evidence of the respondent and Mr Parish conflicted with that of other witnesses the Tribunal preferred the evidence of others.
42. In considering each of the factors contained in s4(3) of the Act it is difficult to avoid the inference that the respondent and Mr Parish have gone to some lengths to conceal the true nature of the relationship between them. It is difficult to make accurate findings about the living arrangements as those involved in it have given a less than full and frank account.
43. Financial Aspects: There is no evidence that the respondent and Mr Parish jointly owned significant assets. There is no reliable evidence about how they dealt with their financial affairs.
44. Nature of the Household: It is difficult to form conclusions about the true living arrangements in place at Cork Street. The Tribunal does not accept that the respondent was living anywhere other than in the house and there was no evidence about how such matters as responsibility of the housework were distributed. In regard to other aspects of the family, with the parties being in their fifties, issues such as responsibility for children do not play the part that they would for younger people. However, the Tribunal takes into account that Mr Parish had purchased air- conditioning for Rebekah’s baby and from Rachel Dempster’s evidence there was a period when she was younger when she was considering Mr Parish as playing a fatherly role.
45. Social Aspects:The Tribunal accepts the evidence of Rachel Dempster that her mother has introduced Mr Parish as her husband, and the evidence of Mrs Roberts that the respondent has spoken to her of her feelings for Mr Parish. The Tribunal accepts the evidence of Pastor Rauchle that the community at Deception Bay accepted that the two were a couple at the time that Pastor Rauchle was there, which seems to cover the period 1997 to at least 2000, the year in which Mr Parish was a candidate in council elections. The Tribunal is satisfied that the respondent and Mr Parish have held themselves out in the community as partners. On certain documents the respondent was named as Ellen Parish.
46. Sexual relationship: The Tribunal is unable to make a finding on this matter.
47. Nature of Commitment: The Tribunal considers that with respect to whether the relationship is likely to continue indefinitely, sufficient regard must be given to the meaning of likely. Accepting the evidence of Rachel Dempster and others, the relationship had been in place at least since 1997. The parties have gone to considerable lengths to disguise it from Centrelink. The respondent and Mr Parish each refer to the counselling role that they have played for each other in times of need. Others, including Pastor Rauchle and Mrs Roberts, see their relationship as marriage-like.
48. Given the unreliability of the evidence from the respondent and Mr Parish, and taking into account the whole circumstances of the relationship and in particular the length of time that the respondent and Mr Parish have lived at the one address, and their attempts to hide information from Centrelink, the Tribunal is satisfied that when it was decided in 2002 that the respondent should be paid at the single rate of disability support pension, they were members of a couple for purposes of payment of income support.
49. In regard to the relevant period the Tribunal accepts that the evidence that the respondent and Mr Parish were jointly responsible for the electricity account from March 1996 was refuted. The joint electricity account had provided the commencing date of the debt for the Centrelink delegate. The Tribunal was satisfied that the respondent lived at the caravan park at Clontarf during 1996 with her two daughters and was not in a relationship with another person during that time. The Tribunal finds that the respondent rented the flat at Ewart Street from 17 January 1997. The Tribunal accepts the evidence that the respondent and her daughter stayed with Mr Parish at Cork Street for some weeks over the holiday period 1996/97. However the evidence about that period is unclear, the relationship between the respondent and Mr Parish was recently formed, and the Tribunal prefers the clear evidence of the commencement of the lease as the starting date for the relevant period for the overpayment. On the material presented, the Tribunal finds that the applicant was, in the relevant period, a member of a couple within the meaning of s4(2)(b) of the Act.
50. The Tribunal finds that the respondent received payments of sole parent pension, austudy payments and disability support pension in excess of her entitlement. The overpayments are a debt to the Commonwealth under s1223(1) of the Act (after 1 July 2001) and s1223(1) and s1224 of the Act (prior to 1 July 2001). Had Centrelink known the true circumstances in the household at Cork Street, she would not have been paid at the rate that she was.
51. The Commonwealth’s right to recover an overpayment of social security benefits can be waived in limited circumstances as set out in s1237AAD of the Act:
1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or false representation; or
(ii)failing or omitting to comply with a provision of this 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.”
52. In relation to s1237AAD of the Act, the debt must not result from the debtor or another person knowingly making a false statement or failing or omitting to comply with a provision of the Act. Given the unreliability of the evidence from the respondent and Mr Parish and the findings made by the Tribunal that rent receipts for the caravan at Cork Street are false, and that there was no caravan owner Joe Susstand, as well as the concerns about the authenticity of the statement purporting to be from Mrs Roberts, the Tribunal is satisfied that the discretion in s1237AAD is not available to be exercised. Section 1237AAD requires the decision-maker to be satisfied that the debt has not arisen as a result of false statements, and it does not require a finding about who was responsible for the statements or representations. Thus, regardless of who was responsible for the falsehoods that are evident in this case, the respondent cannot have this debt waived on the basis of any special circumstances.
53. The Tribunal finds further that the respondent received social security benefits to which she was not entitled, and therefore the decision to raise and recover an overpayment of benefits was properly made. The amount of the debt will need to be recalculated for the reasons set out above. Because of this, and because there was insufficient evidence about the respondent’s financial position or any other relevant circumstances, the question of what may be a suitable rate of recovery of the debt should be left for the respondent to discuss with Centrelink when the debt is recalculated.
DECISION
54. The Tribunal:
(a)sets aside the decision of the SSAT that the respondent should be paid disability support pension at the single rate on and from 6 August 2002, and substitutes the decision that the respondent was a member of a couple for the purposes of s4 of the Social Security Act 1991 and therefore she should be paid the partnered rate of disability support pension; and
(b)sets aside the decision of the SSAT that the respondent was not a member of a couple in the period 8 March 1996 to 25 July 2002 and substitutes the decision that the respondent was a member of a couple for the period 17 January 1997 to 25 July 2002 (the period). The Tribunal remits the matter to the applicant for re-calculation of the amount of the respondent’s debt of sole parent pension, austudy payment and disability support pension arising in the period.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision of Ms M J Carstairs, Member
Signed: Camille Banks
AssociateDate/s of Hearing 27 April, 25 May, 26 and 27 July 2004
Date of Decision 3 December 2004
Counsel for the Applicant Mr S Hamlyn-Harris
Solicitor for the Applicant Legal Aid Queensland
For the Respondent Ms H Wallis-Dunn, Departmental Advocate
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