Gerd Baumeister and Secretary, Department of Social Services

Case [2015] AATA 149

[2015] AATA 149  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/1862

Re

Gerd Baumeister

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Ron McCallum AO, Member
Date 16 March 2015
Place Sydney

The Tribunal affirms the decision under review.

........................................................................

Ron McCallum AO, Member

CATCHWORDS – Social Security – Age pension – Pension Bonus Scheme – whether pension should be paid at single rate or member of a couple rate -  member of a couple test – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) ss 4(2) and (3), 93D, 93J

Administrative Appeals Tribunal Act 1975 (Cth) s 35(2)(c)

Cases

Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789

Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546

Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404

REASONS FOR DECISION

Ron McCallum AO, Member

16 March 2015

Background

  1. The Applicant, Mr Gerd Baumeister, was born in Germany in 1943. He and his family  emigrated to Australia in 1953.  The Applicant married Anna Baumeister in November 1968 and they are still legally married.  There are four children of the marriage: Eric aged 44, Jonny aged 43, Tanya aged 41 and Monica aged 39.  At all relevant times, the Applicant was living in shared rental accommodation with Anna, Jonny, Eric and his wife, Janine Bauemeister, and their seven children who are the applicant’s grandchildren.

  2. The Applicant reached age pension age in 2008, however, he continued to undertake employment. On 5 March 2010, the Applicant lodged a registration form for the pension bonus scheme. On 23 August 2013, the Applicant claimed the age pension and sought payment under the pension bonus scheme. On the relevant form, the Applicant noted that he did not have a partner, he was both married and separated, and he was still living with his ex-partner. 

  3. On 3 October 2013, the Applicant lodged a Separated Under One Roof form.

  4. On 10 October 2013, Centrelink made a decision that the Applicant was not a member of a couple with Anna Baumeister from 16 August 2013. The Applicant was subsequently paid Age Pension and Pension Bonus at the single rate as from 16 August 2013. However, this meant that with respect to social security payments to the Applicant prior to 16 August 2013,  the Applicant would be paid as a member of a couple.

  5. On 18 October 2013, the Applicant requested a review of the decision by the Original Decision Maker who confirmed the original decision. The decision was affirmed on review by an Authorised Review Officer (ARO) on 30 January 2014, and on 12 March 2014, the Social Security Appeals Tribunal (SSAT) affirmed the decision under review.

  6. On 4 April 2014, the Applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision of the SSAT.

    THE ISSUE WHICH I AM REQUIRED TO DECIDE

  7. The issue which I am required to decide is whether between 5 March 2010 and 16 August 2013,…

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Gerd Baumeister and Secretary, Department of Social Services [2015] AATA 149
Case
[2015] AATA 149
Decision Date

CaseChat Overview and Summary

Gerd Baumeister sought review of a decision by the Secretary, Department of Social Services to assess him as a member of a couple for the purposes of determining his eligibility for the pension bonus scheme. The dispute centred on whether Baumeister was to be assessed as a single person or as part of a couple for the period between 5 March 2010 and 16 August 2013. This distinction was crucial as the rate of pension and pension bonus payable to a person deemed to be part of a couple is lower than that payable to a single person. The court had to determine whether Baumeister and his wife, Anna Baumeister, met the criteria for being considered a "member of a couple" under the Social Security Act 1991.

The court examined various factors to ascertain if Baumeister and Anna Baumeister met the definition of a "member of a couple," which includes financial, household, social, and commitment aspects of their relationship. Evidence from both parties, statutory declarations, and other documents were considered. The court found that despite some indicators suggesting separation, such as separate sleeping arrangements and lack of sexual relations, the overall relationship demonstrated a long-standing commitment, financial pooling, and joint care for grandchildren. The court concluded that these factors outweighed the evidence of separation, thus affirming the Secretary's decision that Baumeister was a member of a couple for the relevant period.

In affirming the Secretary's decision, the court held that Baumeister was a member of a couple with Anna Baumeister for the purposes of social security law. The long duration of their marriage, financial interdependence, and shared responsibilities in caring for their grandchildren were significant in reaching this conclusion. The decision underscored the necessity of a holistic approach in applying the "member of a couple" test, considering all aspects of the relationship rather than isolated incidents. The court's decision ensured that Baumeister's pension benefits were correctly calculated according to his marital status under social security legislation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue which I am required to decide is whether between 5 March 2010 and 16 August 2013, the Applicant should be assessed for the purposes of the pension bonus scheme as either a single person or as a member of a couple. THE EVIDENCE The Applicant and his daughter in law Mrs Janine Baumeister both gave sworn evidence. I found them to be truthful witnesses. I have examined the following documents which are before this Tribunal: (a)Applicant’s revised statement of facts and contentions; (b)Respondent’s statement of facts and contentions; (c)Mr Gerd Baumeister, statutory declaration dated 24 October 2014;(d)Mr Fred Baumeister, the applicant’s brother, statutory declaration dated 19 August 2014;(e)Mrs Janine Baumeister, statutory declaration dated 13 October 2014;(f)Mr Steve Walker, the applicant’s son-in-law, statutory declaration dated 20 August 2014; and(g)the documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), (the AAT Act) which are known as the T documents. The Tribunal also had before it five supplementary documents. The Respondent applied to the Tribunal for an order pursuant to section 35(2)(c) of the AAT Act prohibiting the disclosure of these documents to the Applicant because of the confidential nature of the material contained in them, which order was made on 2 June 2014. At the hearing, the Respondent consented to give access to these documents to the applicant’s legal representative, Mr Turton. Mr Turton agreed not to disclose the documents to the Applicant. After the conclusion of the hearing, acting pursuant to section 35(2)(c) of the AAT Act, I made an order dated 19 February 2015, varying the order of 2 June 2014, allowing the legal representative of the Applicant access to the documents, with disclosure to the Applicant prohibited. THE LEGISLATION The relevant legislation is the Social Security Act 1991 (Cth) (the SS Act). Subsection 93D of the SS Act and related provisions provide for the calculation of a person's Pension Bonus. Section 93J of the SS Act provides specific calculations to determine how much Pension Bonus a person is entitled to during the relevant period. The annual rate of Age Pension and Pension Bonus for a person who is partnered is lower than the rate for a person who is single. This is because the SS Act takes into account the joint pooling of financial resources presumed to be available to members of a couple. The expression "member of a couple" is defined in sub-sections (2) and (3) of section 4 of the SS Act. These two sub-sections relevantly provide:Member of a couple—general(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;…Member of a couple—criteria for forming opinion about relationship(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a),…the 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.THE "MEMBER OF A COUPLE" TEST

Decision

Reasons for decision

Weighing up all of the elements of the relationship, I find that the aspects of the relationship in favour of the Applicant being a member of a couple, outweigh the aspects of the relationship which point to the applicant not being a member of a couple. Accordingly, I find that the Applicant was a member of a couple with Anna Baumeister before 16 August 2013 for the purposes of social security law. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In his evidence, the Applicant said that he fills in all forms for Anna Baumeister. On his form for a senior's card dated 25 November 2011, the Applicant ticked that he was married. He explained in his evidence that he knew he was still married to Anna Baumeister, but his view was they were no longer a couple and they were not partners.Consideration In determining whether or not the Applicant is a member of a couple, the "member of a couple" test obliges me to examine the totality of the relationship between the Applicant and Anna Baumeister. The following aspects of the relationship point to the Applicant being a member of a couple. First, the Applicant and Anna Baumeister have been married since 1968, and therefore their relationship is a long-standing one. Neither has seen a lawyer to file for divorce. Anna Baumeister's anger when she learned of the Applicant's girlfriend shows that she was committed to a relationship where sexual intercourse with others went against her concept of the relationship. Second, from an examination of their financial arrangements, I find that they did pool their finances to pay off their credit cards, and to pay the rent of the shared accommodation. Further, Anna Baumeister is a beneficiary of the Applicant's will. Third, the Applicant fills in all forms for Anna Baumeister which points to a level of cooperation between them. Fourth, I find that the Applicant and Anna Baumeister both take care of their grandchildren, and whilst I accept care is undertaken separately, in my view they are engaged in the joint enterprise of caring for their grandchildren. The following aspects of the relationship point to the Applicant not being a member of a couple with Anna Baumeister. First, they have been sleeping in separate rooms for at least a decade. Second, they have not had sexual relations for many years. Third, they do not have much if at all social interaction, even at family gatherings. Weighing up all of the elements of the relationship, I find that the aspects of the relationship in favour of the Applicant being a member of a couple, outweigh the aspects of the relationship which point to the applicant not being a member of a couple. Accordingly, I find that the Applicant was a member of a couple with Anna Baumeister before 16 August 2013 for the purposes of social security law. DECISION The decision under review is affirmed.