DONALD MICHAEL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 930

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2444

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONALD MICHAEL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date3 December 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................[Sgd]................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Age Pension – Applicant legally married – Change in living arrangements – Continued to live in the same residence as wife – Applicant a “member of a couple” – Discretion not to treat applicant as a member of a couple cannot be exercised – Centrelink must be provided with requested information of wife’s income and assets – Decision under review affirmed.

Social Security Act 1991 (Cth), ss 4(2), 4(3), 4(6), 24, 1064

Social Security (Administration) Act 1999 (Cth), ss 36(1), 37(1)

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531

Cocks v Centrelink (2000) 32 AAR 360

In the Marriage of Pavey (1976) 10 ALR 259

In the Marriage of Todd (No 2) (1976) 9 ALR 401

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

REASONS FOR DECISION

3 December 2009 Mr S Karas, AO, Senior Member

BACKGROUND

1.      Mr Donald Michael (the applicant) claimed age pension on 3 July 2008.  Centrelink determined that the applicant was not separated from his wife and was a member of a couple.  Then, on 29 August 2008, Centrelink rejected the applicant’s claim for age pension on the basis that he had not provided details of his wife’s income and assets.  That decision was affirmed by an Authorised Review Officer and, on 9 April 2009, by the Social Security Appeals Tribunal (“SSAT”).  The applicant now applies to the Administrative Appeals Tribunal (“the Tribunal”) for review.

ISSUES

2.The issues the Tribunal must determine are:

·   whether the applicant was a member of a couple on 3 July 2008 (the date of application for age pension); and

·   whether the applicant’s application for age pension should have been rejected.

LEGISLATION

3.      The legislation relevant to this application is contained in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999. Pursuant to s 36(1) of the latter Act, a claim for age pension is to be either granted or rejected. Furthermore, s 37(1) of the same Act requires such a claim to be granted if the respondent is satisfied that a claimant qualifies for age pension and that it is payable. The above two sections imply that a person’s claim is to be rejected if the respondent is not satisfied he qualifies for age pension.

4. When determining whether a member of a couple is qualified for an age pension, the income, assets and expenses of both members of the couple must be taken into account: see the rate calculator in s 1064 of the Act.

5.      

Whether the applicant is a member of a couple for social security purposes is to be determined by reference to the definition of “member of a couple” contained in

s 4(2)(a) of the Act and also by consideration of the criteria set out in s 4(3) of the Act. These two subsections provide as follows:

(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 …

(4)(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) … 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.

6. Section 4(6) of the Act provides that a person is not a member of a couple if a determination under s 24 of the Act is in force. That latter section establishes a discretion for a decision maker to treat a person as not being a member of a couple should there be a special reason for doing so. The Guide to Social Security at s 2.2.5.50 provides guidelines to take into account when exercising that discretion.

EVIDENCE AND SUBMISSIONS

The applicant

7.      The applicant, who was self-represented, gave oral evidence during the hearing of this matter.

8.      The applicant and his wife were married in 1958.  They had nine children, six girls and three boys.  The family lived for a while in Cairns.  The applicant worked as a surveyor while his wife looked after the household and raised the children of the marriage.  The applicant and his family then moved to Brisbane, where he worked for some time with the State Government.

9.      The applicant claims that he has now been separated from his wife for a number of years.  He described the separation as a “gradual event” starting about seven years ago.  He does not intend to divorce his wife nor change her from being the beneficiary under his will and superannuation. He “respects” the marriage and regards himself as married, having no plans to move from his current residence.

10.     Both the applicant and his wife live in the same house in Ashgrove.  The applicant lives downstairs in what he described as a separate “flat” (photographs of which he tendered as evidence: Exhibit B).  His wife lives upstairs with their grandson, John.  The applicant finds it “quieter and more peaceful downstairs”, especially when his children visit.  The children visit him separately.

11.     The applicant described the downstairs area being separate from the upstairs quarters, there being no internal staircase.  He has to go outside the house to gain access to the upstairs area.  He conceded that the downstairs area of the house did not have a separate address, contrary to the home address he gave in the age pension claim form of “Flat 1/9 … Ashgrove”: T11, folio 65.

12.     The applicant does his own shopping and washing.  His wife does not cook for him, nor does she clean his downstairs living area.  They do not share meals together, although they both use the shower and telephone located upstairs.  They have not had a sexual relationship for a number of years.  John (their grandson) is the conduit through which they communicate (he also helps the applicant on occasion).  That is the only way in which they interact.

13.     The applicant and his wife have not been out together socially for the last six to eight years.  She attends church four or five times a week without him and he visits the Broncos Leagues Club every week without her.  He drinks a few beers at the club but rarely gambles.  He also goes to “the pictures” on his own.  He agreed with the contents of a statement by Margaret Michael (his daughter) dated 14 July 2008 (T13C, folio 113) that he and his wife have, over the past ten years, “attended functions, including weddings, funerals, Christmas lunch etc.  However, for the most part they do not socialise or spend time together”.  He said that the statement was also “more or less correct” in describing him and his wife as having “connections to the community, church, doctors, neighbours etc.  Both have commented that they cannot see themselves living anywhere else”.  The applicant stated that they do not have a common circle of friends.

14.     The applicant described his recent attendance at his brother’s funeral with his wife and daughter.  He stated that he sat apart from his wife, as he also does at Christmas family lunches. 

15.     The applicant explained that after he was “laid off” as a surveyor, he used his superannuation to buy the Ashgrove house in which they live - his wife bought a flat in Chermside.  They jointly own the Ashgrove house, although his wife now possesses other property and income as well. 

16.     After the applicant’s retirement, he was told by his wife that it was his job to pay the bills and her job to do the household chores and look after their children.  He therefore continued to pay all outgoings in relation to the Ashgrove house until his wife agreed about three years ago to take over this task after their children found that he had incurred large debts.  His wife sometimes goes to Charters Towers without leaving him any money.

17.     The applicant agreed he ran up a credit card debt of some $60,000 over a long period when he was paying all the household bills.  The applicant described how his children, particularly Margaret, helped him pay off that debt and that his wife “did not chip in”.  He did not respond to the assertion of Mr Hamilton, for the respondent, that he was a “spendthrift”.

18.     The applicant and his wife had joint bank accounts from the time of their marriage in 1958 until recently, when their daughter arranged for the accounts’ closure (the applicant has not provided documentation confirming this).  He could not recall when the joint bank account that his wages were paid into was closed.

19.     The applicant’s wife is included as his spouse for tax purposes on his tax return (a fact which he could not recall) and remains his beneficiary under his will. 

20.     The applicant explained that he is “always running out of money”.  He lodged a claim for age pension as he is “going backwards fast”.  He needs money for his eyes, teeth and car.  He needs help.  He is 79 years of age and is pleading for money from Centrelink “to live as a human being”. 

21.     The applicant stated that he has not provided the details of his wife’s income and assets requested by Centrelink because she refuses to release that information.  He stated that he has no knowledge of or access to his wife’s properties and assets; nor does he receive any benefit from them.

22.     It was submitted by the applicant that the Tribunal should accept his claim for age pension by finding that he was not a member of a couple.  He asserted that he and his wife are separated and that the consortium vitae had ended.

23. The applicant also submitted that the fact his wife at times travels to and remains in north Queensland constitutes a “special reason” under s 24 of the Act, meaning that he should not be treated as a member of a couple. The applicant likened his circumstances to a case where a person’s wife was overseas.

The respondent

24. The respondent’s case that the applicant was not entitled to age pension is essentially based on one fact and a submission. The relevant fact is that Centrelink has not been given details of the income and assets of the applicant’s wife. The central submission of the respondent is that in July 2008 the applicant and his wife were still a couple for the purposes of the Act. According to the respondent, that submission is supported by the evidence.

25.     The evidence, according to the respondent, shows that the applicant and his wife operate as a family and still have the support of their children.  Although circumstances changed after his retirement and he grew apart from his wife, they still care for each other.  She now owns the major assets.  This change should not be seen as unusual, as circumstances often change in a relationship.  The applicant and his wife, according to the submissions of the respondent, still have a caring relationship even though they occupy separate rooms and beds: their relationship was still a “marriage-like relationship”.

26. Mr Hamilton noted that the applicant and his wife still operated a joint account in 2008 and that the applicant paid the household bills past July 2008. Both of them benefited from their mutual financial arrangements and the family as a whole is now helping out in that respect. Although they live in separate parts of the same house, this is not suggestive of a separation said to have occurred some years ago. Mr Hamilton also referred to other aspects of their relationship and living arrangements to indicate that the applicant and his wife were still a couple for age pension purposes under the Act.

CONSIDERATION AND FINDINGS

27. While the Tribunal feels a degree of empathy for the applicant, it is bound to apply the legislation to the present facts and circumstances. In deciding whether the applicant is a “member of a couple”, the Tribunal must consider whether, pursuant to ss 4(2) and 4(3) of the Act, he and his wife are living separately and apart on a permanent or indefinite basis. Section 4(3) of the Act requires the Tribunal to consider a number of aspects. The Tribunal must base its decision on all of the evidence presented: see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170.

28.     The Tribunal finds that the applicant was legally married at the time he applied for age pension (July 2008). 

29.     It appears that the arrangements whereby the applicant was responsible for the household accounts while his wife tended the household and family continued even after his retirement, until his children discovered the substantial debt he had accrued on his credit card.  She then took over payment of the household bills and continues responsibility for these today.  However, although the applicant and his wife now maintain substantial financial independence, this does not of itself indicate that they live separately and apart and not as a couple.

30.     The evidence and material suggests a readjustment in the applicant’s relationship with his wife following his retirement.  For example, their social milieux drifted apart: the applicant’s visits to the Broncos Leagues Club for relaxation and entertainment can be contrasted with his wife’s adherence to her church and religion.  Also, the applicant moved downstairs as he found it quieter and more peaceful there. However, that downstairs area was not a separate address. The applicant’s entry to the upstairs part of the house does not appear to be restricted and it is there that he showers and takes phone calls from the only telephone in the house.  The above facts point to a change in living arrangements rather than a marital separation.  As noted in the case of In the Marriage of Pavey (1976) 10 ALR 259:

Where the parties continue to live in the same residence there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation and accordingly the party alleging separation must adduce sufficient evidence to satisfy the court that such separation has occurred notwithstanding the parties’ continued residence under the same roof.

31.     The Tribunal notes that the applicant and his wife do not intend to divorce or to disrupt and alter their current living arrangements.  The evidence presented reflects that the applicant still regards himself as being married and that his wife does not seek or want a divorce.  The applicant still refers to his wife as his spouse for taxation purposes and she is still his beneficiary.   

32.     Although the applicant stated the marriage was “just a piece of paper”, it was clear to the Tribunal that he cares for his wife and family and feels strongly about them.  The Tribunal notes that at the end of the hearing he spoke emotionally, warmly and glowingly about his wife and was somewhat overcome by his emotions.  This indicated that he still cared deeply for his wife and that the consortium vitae had not ended.  His reactions and words were hardly those of a man estranged and separated from his wife for some years.  The evidence reflects that there has been a change in the relationship over more than 50 years of marriage but that it is still a relationship with a strong and committed family background.  The applicant and his wife continue to have a relationship with their children and family.  

33. The applicant submitted that his wife’s travels to north Queensland constitute a “special reason” under s 24 of the Act, and that therefore he should not be treated as being a member of a couple. The applicant submitted that his wife’s trips are comparable to cases where a “special reason” has been found to exist because a person’s partner is overseas. However, a consideration of past cases reveals that the temporary absence of a partner does not, in and of itself, constitute a “special reason”. Instead, the Tribunal must consider whether the position of the applicant and the circumstances affecting him are unusual or different (but not extremely so): Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535-537 [18], [25]. The Tribunal may take into account all relevant circumstances, including the position of the applicant’s wife to the extent it affects the applicant: Boscolo (1999) at 537 [25].

34. Considering all of the evidence and material before it, the Tribunal finds that the applicant does not satisfy the requirements of s 24 of the Act. His circumstances do not reveal the existence of a “special reason”. A relevant example is found in his financial arrangements. As stated in Cocks v Centrelink (2000) 32 AAR 360 at 363 [12]: “[t]he marriage of a man and woman is taken to mean, in ordinary circumstances, that they will pool their resources, share their expenses, and thereby live more cheaply…” On the evidence, such a pooling of resources does occur, even when the applicant’s wife is in north Queensland: she pays all expenses relating to the Ashgrove house. The discretion not to treat him as a member of a couple cannot be exercised.

35.     The Tribunal does not accept the applicant’s assertions that he and his wife are separated and that the consortium vitae has ended: see In the Marriage of Todd (No 2) (1976) 9 ALR 401. The Tribunal finds that the applicant is legally married to his wife and is not living separately or apart from her on a permanent or indefinite basis. The Tribunal finds that the applicant was a member of a couple at the time of his application for age pension in July 2008 and that no “special reason” exists allowing a determination otherwise. As Centrelink was not provided with the requested information in relation to the applicant’s wife’s income and assets, the respondent correctly rejected his claim for age pension.

DECISION

36.The Tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.

Signed: .............................[Sgd].....................................
  Mátyás Kochárdy, Research Associate

Date of Hearing  5 November 2009
Date of Decision  3 December 2009
The Applicant was self represented
For the Respondent                    Mr R Hamilton, Departmental Advocate