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

[2020] AATA 1424

Edler and Secretary, Department of Social Services (Social services second review) [2020] AATA 1424 (22 May 2020)

Division:GENERAL DIVISION

File Number(s):2019/7352      

Re:Melinda Edler

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Ms L Rieper, Member

Date:22 May 2020

Place:Hobart

The Tribunal affirms the decision under review.

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Ms L Rieper, Member

SOCIAL SECURITY – disability support pension – rate – member of a couple – whether the Applicant is living separately and apart from the other person on a permanent or indefinite basis – Applicant receiving financial support from other person – little change in nature of the household – decision under review affirmed

Legislation

Social Security Act 1991

A New Tax System (Family Assistance) Act 1999

Cases

Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
Lambe v Director-General of Social Services (1981) 4 ALD 362

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

REASONS FOR DECISION

Ms L Rieper, Member

22 May 2020

1. Mrs Edler seeks review of a decision made in the Social Security and Child Support Division of this Tribunal on 14 October 2019.

2. The decision was in respect of whether Mrs Edler is a member of a couple for the purposes of determining her entitlements to disability support pension and family tax benefit.

3. A hearing took place by telephone on 20 April 2020.  Mrs Edler appeared for herself and the Respondent was represented by Ms Campbell.

   CONSIDERATION

4. Mrs Edler has been in receipt of disability support pension since 6 February 2017.  She was initially paid at the single rate.  On 6 February 2019, Centrelink determined that Mrs Edler should be paid on the basis she was a member of a couple.  That decision was subject to internal review prior to the decision of 14 October 2019 and in that internal review, the authorised review officer also considered Mrs Edler’s relationship status for the purposes of family tax benefit.

5. During the hearing Mrs Edler confirmed that she remains legally married to Mr Edler but she denies that they are a couple.

6. The relevant legislation is contained within the Social Security Act 1991 (the Act) and the A New Tax System (Family Assistance) Act 1999 (the FA Act).

7. Section 4 of the Act sets out the criteria to be considered when determining whether a person is a member of a couple. In the case of a person who remains legally married, it must be determined whether the person is living separately and apart from the other person on a permanent or indefinite basis. In forming an opinion about the relationship regard is to be had to all the circumstances of the relationship including 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.

8. Section 3 of the FA Act states that the definitions of member of a couple and partner for family assistance purposes are the same as under the Act.

9. There is considerable case law in respect of the task of determining if someone is a member of a couple.  Of particular assistance is the guidance set out by the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 in which a list of subject matters to be considered in determining the nature of the relevant relationship is set out before the court goes on to note (at [20]-[21]):

   [20] It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

   [21] It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.

10. The Respondent’s cross-examination of Mrs Edler, and its submissions, proceeded in accordance with the broad categories set out in section 4 of the Act and the Tribunal has considered the evidence in this case in a similar manner.

    Financial aspects of the relationship

11. Mr and Mrs Edler have been married since 1990 and live in a home held solely in Mr Edler’s name.  Mrs Edler acknowledged during the hearing that if they divorced, she would be entitled to a share of the proceeds of the sale of the house.

12. In cross-examination Mrs Edler said little had changed with regards to financial matters since she says she separated from Mr Edler on 10 October 2015.  They have never had joint bank accounts.  She said that Mr Edler always used to pay for everything but now she pays for things when she can.  Mr Edler continues to pay the mortgage and Mrs Edler does not pay any board or rent.  They share the cost of food.  Mr Edler pays for Mrs Edler’s private health insurance.  Mr Edler remains the beneficiary of Mrs Edler’s superannuation fund, but she said that she intends to change that to her daughter.  Mr and Mrs Edler share ownership of a vehicle although Mrs Edler does not drive.

13. Mrs Edler does not have a will.  Mrs Edler said she has little to leave but intends to leave her jewellery to her daughter.

14. Mrs Edler confirmed that Mr Edler does not require any financial support from her.

15. Mr Edler signed a Centrelink form entitled ‘Relationship Detail Separated Under One Roof’ on 9 November 2019.  He said that he and Mrs Edler were separated but living under the same roof and he hoped to reconcile with her.  The information he provided in the form regarding the financial aspects of the relationship was largely consistent with Mrs Edler’s evidence.  In addition, he advised that he pays for the electricity for the household but noted that Mrs Edler would contribute if she could afford to.  He also advised that he does not have a will or life insurance, but Mrs Edler is currently nominated as the beneficiary under his superannuation policy.

16. In Lambe v Director-General of Social Services (1981) 4 ALD 362 at [369], the Full Federal Court held that “financial support, [while] important, is not necessarily crucial, and is only one of a number of relevant matters which the Tribunal should take into account ...”.

17. In this case, whilst Mr Edler receives little or no financial support from Mrs Edler, it is clear that Mrs Edler receives financial support from Mr Edler including her accommodation, private health insurance and at least some portion of her utilities.  This amounts to significant financial support.  In the Tribunal’s view, this significant financial support points in favour of Mrs Edler being a member of a couple.

    The nature of the household

18. Mrs Edler’s evidence was that little has changed with regards to the nature of the household other than that she no longer shares a bedroom with Mr Edler, and he spends more time out the back of the house rather than inside.

19. Mr and Mrs Edler share the use of the house other than the bedrooms.  Mr and Mrs Edler buy groceries together and Mrs Edler does the cooking.  She denied that she eats with Mr Edler and said that she rarely eats.  Mr and Mrs Edler share the housework.

20. Mrs Edler has a foster child who is two years old.  She said that it was a private arrangement and was not organised by an agency.  The house has only two bedrooms and so she shares her bedroom with her foster child.  Mrs Edler is the sole carer of the foster child.

21. In the form signed by Mr Edler on 9 November 2019 he noted that he maintains the garden and carries out general maintenance.  Mr Edler contradicts Mrs Edler regarding meals, stating that they eat together about five times per week.  He also said that they do each other’s laundry.

22. The Tribunal notes that Mrs Edler’s evidence regarding some of the household arrangements seems to have changed over time.  According to the authorised review officer who carried out Centrelink’s internal review, Mrs Edler told her that she and Mr Edler eat meals together. 

23. All in all, there is very little in the nature of the household to distinguish it from any other married couple’s household.

    Social aspects of the relationship

24. Mr and Mrs Edler have two grandchildren who they see regularly.  Mrs Edler said that Mr Edler often takes their grandson to his soccer games.  She denied going to matches very often because she said it is too cold and it is difficult to take her two-year-old foster child.  However, she did say that she and Mr Edler take their grandchildren to the park together and to visit family, such as her mother. 

25. Mrs Edler said that she still goes on holidays with Mr Edler although she could not say how often.  She said they travel together to Melbourne and Launceston.  She described staying in two-bedroom accommodation and said that they each pay their own way.  She said that she goes on these holidays because of her grandchildren.

26. It appears that Mr and Mrs Edler have taken very different approaches to how they present their relationship to others.  Mrs Edler’s friends and family are aware of the separation and three friends provided statements to the effect that Mr and Mrs Edler are no longer a couple.  By contrast, Mr Edler’s family and friends are unaware of the separation. 

    Any sexual relationship between the people

27. The Respondent concedes that there is no evidence of a sexual relationship but submits that it is not a conclusive indicator of a complete breakdown of the relationship.  Rather, it is just one factor that must be considered (Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792 at [34]).

    Nature of the commitment to each other

28. Mr Edler’s commitment to the relationship is clear from the information he provided in the form he completed for Centrelink.  Mrs Edler acknowledged during the hearing that Mr Edler hopes to reconcile. 

29. As already noted, Mr and Mrs Edler have been married since 1990; some 30 years.  Mrs Edler’s evidence was that she has no plans to divorce at present.  She said that she had taken some recent steps to secure alternative accommodation by registering with the Salvation Army and looking for a private rental but without any success.  Under cross-examination she conceded that she intends on staying with Mr Edler indefinitely.

30. It should also be noted that Mr Edler is Mrs Edler’s carer.  In a ‘Relationship Detail Separated Under One Roof’ form Mrs Edler signed on 21 November 2019, she acknowledged that Mr Edler cooks for her if she is sick but otherwise provided no other details of what Mr Edler’s role as a carer entails.  In his form Mr Edler also noted that he is Mrs Edler’s carer, but he also provided few details of what is involved other than some cooking.  It appears that Mr Edler drives Mrs Edler to places she needs to go but it is not apparent to the Tribunal whether this is because of Mrs Edler’s incapacity (due to a back injury) or because she does not drive.

    CONCLUSIONS

31. The Tribunal must determine whether Mrs Edler is living separately and apart from Mr Edler on a permanent or indefinite basis.

32. The evidence is that Mr and Mrs Edler have been married for approximately 30 years and are still residing together in the family home.  Whilst Mrs Edler says that she and Mr Edler separated five years ago, her evidence was that little has changed since the separation other than that they now sleep in separate bedrooms and Mr Edler now spends more time out the back of the house.  Mr Edler still provides significant financial assistance to Mrs Edler, they share many of the household chores, they holiday together, and they spend time together with their grandchildren including visiting Mrs Edler’s mother.  Mrs Edler is currently still the named beneficiary of Mr Edler’s superannuation fund and as neither Mr nor Mrs Edler has a will, as next of kin they are the beneficiaries of each other’s estates.  Mr Edler wants to reconcile, and Mrs Edler has no real plans to leave the family home and set up her own residence.  Whilst Mr Edler is Mrs Edler’s carer there is little information before the Tribunal as to what is required of Mr Edler in that role and Mrs Edler did not put it forward to the Tribunal as a reason for her continuing to live with Mr Edler.

33. Overall, the Tribunal is satisfied that the majority of the evidence supports the conclusion that Mr and Mrs Edler are not living separately and apart from each other on a permanent or indefinite basis. It follows that Mrs Edler is a member of a couple for the purposes of the Act and the FA Act and that her rate of disability support pension should be calculated on that basis.

34. The decision under review must therefore be affirmed.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Ms Lynette Rieper, Member.

Date(s) of hearing:	20 April 2020
Applicant:	By phone
Solicitor for the Respondent:	Ms Claire Campbell

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Associate

Dated: 22 May 2020