Dimov and Secretary, Department of Family and Community Services
[2005] AATA 912
•20 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 912
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/414
GENERAL ADMINISTRATIVE DIVISION ) Re ANASTASIA DIMOV Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Deputy President S D Hotop Date20 September 2005
PlacePerth
Decision The Tribunal affirms the decision under review
(sgd) S D Hotop
Deputy President
CATCHWORDS
SOCIAL SECURITY – age pension – applicant legally married to another person – applicant and other person live in separate residences – matrimonial relationship not broken down – applicant not living separately and apart from other person on permanent or indefinite basis – applicant a member of a couple – assets test – principal home is residence where applicant lives – value of other person’s interest in residence where he lives to be taken into account in calculating rate of applicant’s pension – decision under review affirmed
Social Security Act 1991 (Cth) s 4 and s 1118
Re Utczas and Secretary, Department of Social Security (1989) 19 ALD 110
REASONS FOR DECISION
20 September 2005 Deputy President S D Hotop Introduction
1. Anastasia Dimov (Ms Dimov) migrated to Australia from Greek Macedonia in 1953 when she was 17 years old. Later that year she married Dimitrios Dimov (Mr Dimov) who was then 22 years old. They had 3 children, namely, Christopher (born in 1954 but passed away in 1988), Fay (born in 1957) and Katy (born in 1966). Many years ago Mr Dimov purchased a property in Bulwer Street, East Perth which is presently owned jointly by him and his daughter, Fay. Subsequently, in the 1970s, Mr Dimov and Ms Dimov jointly purchased a property in Eton Street, North Perth which they still own. Mr Dimov and Ms Dimov are still legally married.
2. Ms Dimov has been receiving an age pension, and on 28 June 2004 a Centrelink officer decided, applying the “assets test” in the social security law, that the rate of her age pension be reduced on the basis that she is a “member of a couple” (comprising herself and Mr Dimov) and, therefore, in accordance with the social security law, the value of Mr Dimov’s interest in the Bulwer Street property is to be taken into account in calculating the rate of her pension. Ms Dimov unsuccessfully appealed against that decision to the Social Security Appeals Tribunal, and she now appeals to this Tribunal.
The Issue
3. The crucial issue in this case is whether Ms Dimov is a “member of a couple” the purposes of the social security law. For the reasons which follow, the Tribunal finds that Ms Dimov is a “member of a couple” (comprising herself and Mr Dimov) and that, in applying the “assets test”, the value of Mr Dimov’s interest in the Bulwer Street property is to be taken into account in calculating the rate of Ms Dimov’s age pension.
The Relevant Law
4. The phrase “member of a couple” is defined in s 4 of the Social Security Act 1991 (Cth) as follows:
“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)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
…
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.
…”
5. Under Part 3.2 of the Act (which contains the age pension rate calculator), “members of a couple” are treated as pooling their resources (income and assets) and sharing them equally, and, for the purposes of the “assets test”, the value of the assets of a “member of a couple” is taken to be 50% of the sum of the value of his/her assets and the value of his/her partner’s assets. Section 1118(1)(b) of the Act, however, provides that, if a person is a “member of a couple”, in calculating the value of that person’s assets for the purposes of the Act the following is to be disregarded:
“the value of any right or interest of the person in one residence that is the principal home of the person, of the person’s partner or of both of them that is a right or interest that gives the person or the person’s partner reasonable security of tenure in the home;”.
The Evidence of the witnesses
6. Oral evidence was given by Ms Dimov, Mr Dimov and Fay Tollis (a daughter of Ms Dimov and Mr Dimov). Their evidence may be summarised as follows.
Ms Dimov
7. Ms Dimov lived with Mr Dimov in the Bulwer Street property until August 1988 when their eldest child and only son, Christopher, was killed in a motor vehicle accident. Christopher used to divide his time between the Bulwer Street property, where he lived with Mr Dimov and Ms Dimov, and the Eton Street property where he worked during the day with a view to starting a business.
8. About 6 weeks after Christopher passed away Ms Dimov and Mr Dimov moved from the Bulwer Street property to the Eton Street property because Ms Dimov wanted to be “close to [her] son” and not to “let him go”. Mr Dimov, however, found it difficult living at the Eton Street property because of the memory of his son and problems with the neighbours, and he eventually returned to the Bulwer Street property where he has resided alone ever since. Since Mr Dimov’s return to the Bulwer Street property, Ms Dimov has continued to reside alone in the Eton Street property.
9. Ms Dimov sleeps, prepares and eats meals, and does the washing, cleaning and gardening, at the Eton Street property. She pays the whole of the electricity, gas and telephone bills, and shares equally with Mr Dimov the cost of Council rates and Water Corporation charges, in respect of that property.
10. Before their son passed away Ms Dimov and Mr Dimov always went on outings together but nowadays they do not do so because Mr Dimov does not want to go.
11. Ms Dimov’s friends and neighbours see her as a single person because her “husband is not there”.
12. Since their son passed away, her relationship with Mr Dimov has changed in that she cannot talk to him like a husband but rather talks to him like a big brother and respects him.
13. Ms Dimov cares for Mr Dimov “all the time”. She does the cleaning, cooking, washing, ironing, mending, shopping, “everything” for him. She telephones him early in the morning and if he does not answer she drives to the Bulwer Street property to see if he is all right. If he is not, she takes him to the doctor or gives him tablets and then “when [he is] safe” she drives back home. If she feels tired from working all day at the Bulwer Street property she may sleep there overnight, and if Mr Dimov is sick she will stay because she will not leave him by himself.
14. Ms Dimov does not see herself as ever living with Mr Dimov again.
15. Ms Dimov still regards Mr Dimov as her husband, but they do not live together.
Mr Dimov
16. Mr Dimov moved with Ms Dimov from the Bulwer Street property to the Eton Street property after their son had passed away but, because of the “bad memory” of his son and the fact that he had a stroke while living there, he felt that he could not continue to live there, and he then returned to the Bulwer Street property where he has lived alone ever since.
17. Ms Dimov comes to the Bulwer Street property to do the cleaning, washing and shopping for him. He pays for the shopping and for the gas, electricity, Council rates and Water Corporation charges in respect of the Bulwer Street property. He does as much (“little bit”) of the gardening as he can, and Ms Dimov does the rest of the gardening for him. If he is ill, he calls Ms Dimov to take him to the doctor, and she takes care of him. He and Ms Dimov have a joint bank account.
18. Although he is married to Ms Dimov, they are now “separate” and he does not see them as a married couple. He did see them as a married couple when they were younger but now they are “too old” and he regards Ms Dimov as “just like a friend”.
Fay Tollis
19. Ms Tollis, the elder daughter of Mr Dimov and Ms Dimov, is married with 4 adult children. She is the joint owner, with Mr Dimov, of the Bulwer Street property.
20. After her brother passed away in August 1988 her mother moved from the Bulwer Street property to the Eton Street property in order to “hang on to his memory” and she maintains that property “like a monument”. Her father, however, has stayed at the Bulwer Street property where he has his birds, pigeons and chickens, there are no neighbours and where he is happier being on his own.
21. As regards the relationship between Mr Dimov and Ms Dimov, Ms Tollis said:
“There is no relationship. There’s like a caring thing, like friends, like brothers and sisters, there’s no – I’ve never seen no romantic involvement. You know, there never has been and she goes over there and looks after him, make sure he’s fed and stuff and he’s okay. …But mum will make sure that he’s okay, once or twice a week she does the shopping for him. She washes his clothes for him, cooks for him and then she goes back and stays at Eton Street. Sometimes if she’s tired she’ll fall asleep there on the chair and then she’ll leave the next day. But that’s all, there’s nothing romantically – I mean they don’t do nothing together. What can I say, there’s nothing romantic there, they don’t hold hands, or go to the pictures, or something, you know, or stroll down the park. They don’t do that.
Okay? --- I’ve never seen it.”
(Transcript, p10)
22. Ms Tollis described her parents as “two people hurting in their own ways” because of the loss of what meant the most to them, namely, their only son.
Report of Dr Rowena Koek
23. Dr Koek provided the following report, dated 28 April 2004, to Centrelink:
“Both Mr and Mrs Dimov have been patients of mine for over 10 years. Mr Dimov has serious chronic health problems (diabetes, atrial fibrillation, prostate cancer, hypertension) for which he takes medication and modifies his stress levels. Mr Dimov has not lived at the Eton Street address for the past 3 or 4 years because of emotional links and tension with the neighbours. His personality is such that this is not negotiable for him, and he refuses to leave his Bulwer St address.
His wife likes to stay in the family home which has the associations of things belonging to their son, who was killed in a traffic accident in 1988. She visits to the Bulwer Street house to take care of the husband and set things up, but prefers to stay in Eton Street. She has severe anxiety problems for which she takes medication and modifies stressors.
I believe that maintaining the two houses is desirable from a medical standpoint.”
(Section 37 Documents, T16, p83)
Analysis and Findings
Is Ms Dimov a “member of a couple” for the purposes of the Social Security Act?
24. Ms Dimov is still legally married to Mr Dimov and, therefore, the question whether she is a “member of a couple” turns, in accordance with s 4(2) (a) of the Act, on whether she is “living separately and apart from [Mr Dimov] on a permanent or indefinite basis”. In forming an opinion about the relationship between Ms Dimov and Mr Dimov for this purpose, the Tribunal is required, by s 4(3) of the Act, to have regard to all the circumstances of the relationship including, in particular, the matters referred to in paras (a) – (e) of s 4(3). The Tribunal will first address those matters.
The financial aspects of the relationship
25. Ms Dimov and Mr Dimov jointly own the Eton Street property and they share the cost of the Council rates and Water Corporation charges for that property. They have a joint bank account. Ms Dimov herself pays all the other expenses associated with that property where she lives. Mr Dimov himself pays the expenses associated with the Bulwer Street property where he lives.
The nature of the household
26. Ms Dimov lives in the Eton Street property and does all of the housework in relation to that property. Mr Dimov lives in the Bulwer Street property but Ms Dimov visits him there several times per week and does most of the housework in relation to that property.
The social aspects of the relationship
27. Ms Dimov and Mr Dimov hold themselves out as living separately from each other, and friends and regular associates would see their relationship in that light. They do not generally plan for, or engage in, joint social activities. There is no longer a sexual relationship between them and there probably has not been for many years.
The nature of the people’s commitment to each other
28. Ms Dimov and Mr Dimov have been legally married for about 52 years and they have lived together for most of that time, although they have been living in separate residences exclusively for about the last 5 years since Mr Dimov suffered a stroke. They see themselves as “separate” and do not see their present relationship as marriage-like, nor do they see themselves as ever living together again.
29. The Tribunal notes, however, that in giving their evidence Ms Dimov consistently referred to Mr Dimov as her “husband” and Mr Dimov referred to Ms Dimov as his “wife”. They have never considered getting a divorce or a legal separation.
30. Ms Dimov has demonstrated her continuing commitment to Mr Dimov during the period in which they have been living exclusively in separate residences. She visits him several times per week to look after him and she does his cooking, washing, ironing, cleaning, gardening, shopping and generally cares for him. She is clearly concerned about his wellbeing and visits him to ensure that he is all right. If he is sick she will not leave him by himself and she stays with him.
Finding
31. Having regard to all the circumstances of the relationship between Ms Dimov and Mr Dimov, the Tribunal is of the opinion that, although Ms Dimov and Mr Dimov have been exclusively living in separate residences and maintaining separate households for about the last 5 years, their matrimonial relationship has not broken down but rather has continued throughout that period and is continuing. The Tribunal is, therefore, of the opinion that Ms Dimov has not been, and is not presently, “living separately and apart from [Mr Dimov] on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act: see Re Utczas and Secretary, Department of Social Security (1989) 19 ALD 110.
32. Accordingly, the Tribunal finds that Ms Dimov is, and has at all material times been, a “member of a couple” for the purposes of the Social Security Act.
What is Ms Dimov’s “principal home”?
33. For the purpose of applying the “assets test” in the Social Security Act in this case, it is necessary to determine what is the relevant “principal home” : see s1118(1)(b) of the Act. On the evidence before the Tribunal, there can be no doubt that Ms Dimov’s “principal home” is the Eton Street property which she and Mr Dimov jointly own, and the Tribunal so finds.
Conclusion
34. The Tribunal concludes, therefore, that the rate of age pension payable to Ms Dimov is to be determined on the basis that she is a “member of a couple” (comprising herself and Mr Dimov) for the purposes of the Social Security Act and that the relevant “principal home”, for the purpose of s 1118(1)(b) of that Act, is the Eton Street property. The value of Mr Dimov’s interest in the Bulwer Street property is, therefore, to be taken into account in calculating the rate of Ms Dimov’s age pension.
Decision
35. For the above reasons the Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: June Rainey
AssociateDate of Hearing 8 July 2005
Date of Decision 20 September 2005Advocate for the Applicant Ms C Belcher
Welfare Rights & Advocacy ServiceAdvocate for the Respondent Mr A Holt
Service Recovery Team, Centrelink
7
0
0