Gerd Baumeister and Secretary, Department of Social Services
[2015] AATA 149
•16 March 2015
[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
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.
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.
On 3 October 2013, the Applicant lodged a Separated Under One Roof form.
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.
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.
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
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
This Tribunal is required to decide 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. In other words, I am required to decide whether, during this time period, the Applicant was a member of a couple with his wife Anna Baumeister for the purposes of social security law.
This requires me to apply the "member of a couple" test which is set out in sub-sections (2) and (3) of section 4 of the SS Act reproduced above.
There are a significant number of decisions of the courts and of the AAT where the "member of a couple" test and similar tests in prior legislation have been discussed. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe helpfully expounded upon the criteria set forth in these provisions. The Senior Member said at [16]:
16. Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
In Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546, French J (as he then was) sitting in the Federal Court of Australia, dealt with the application of the "member of a couple" test. In the matter before him, the woman and man were not legally married, however, the "member of a couple" test applies both to persons of the opposite sex and also to persons who are married and who are living under the same roof. French J said at [46-47]:
46. Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship; .
(d) any sexual relationship between the people; and
(e) the nature of the people's commitment to each other.3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(e) mutual commitment.47. The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of “marriage-like”, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
The Applicant referred me to Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404. The AAT decided that a husband who was living under the same roof with his wife was entitled to be paid his pension at the single rate because he was no longer a member of a couple. I did not find this decision helpful because it turned on its facts as do almost all decisions which apply the "member of a couple" test.
The financial aspects of the relationship
The first issue under the "member of a couple" test is the financial aspects of the relationship.
In his evidence, the Applicant said that he has the following financial arrangement with Anna Baumeister: her salary is paid fortnightly into a bank account and Anna Baumeister takes money out, puts it in an envelope and leaves it for the Applicant.
The Applicant said that he uses this money and his own money to pay off the credit cards and to pay the rent for the shared accommodation.
In his evidence, the Applicant said that Anna Baumeister is a beneficiary under his will, and this is also noted in his statutory declaration. The Applicant said that as he has next to no assets he hasn't bothered to alter his will.
The nature of the household
The Applicant said that he remains in the shared accommodation to be with his seven grandchildren and that he helps with their care. Janine Baumeister said that both the Applicant and Anna Baumeister undertake caring tasks for the grandchildren, however I infer from the evidence that they do not do this jointly.
In his evidence, the Applicant said that he and Anna Baumeister have been sleeping in separate rooms for about ten years. In her statutory declaration, Janine Baumeister stated that Anna Baumeister shares a room with her 11 year old grandson and that Anna has occupied this room since before the birth of that grandson.
The Applicant said that after his shower, he leaves his dirty clothes in the bathroom corner and that the women of the house do the clothes washing. His clean washing is left on a chair for him. Janine Baumeister said that she does the clothes washing, but that on occasions Anna Baumeister does some of the washing.
Janine Baumeister says that she sometimes cooks for the Applicant, but the Applicant and Anna Baumeister never sit at the same table to eat.
In his evidence, the Applicant said that Anna Baumeister does not accompany him when he visits the doctor, and that he never accompanies Anna Baumeister when she attends the doctor.
The social aspects of the relationship
Janine Baumeister, Fred Baumeister and Steve Walker, who are all close family members, signed statutory declarations in which they stated they regard the Applicant and Anna Baumeister as no longer being a couple. It is noted in the statutory declarations that the Applicant and Anna Baumeister have little social interaction with one another even when attending family gatherings. However, in his evidence, the Applicant said that his brother Henry, who rarely visits, does not know that he and Anna Baumeister are no longer a couple. It does appear that persons beyond the close family circle are unaware of the breakdown of the marital relationship.
In his evidence, the Applicant said that he and Anna Baumeister usually travel in separate cars when driving to Sydney to see their grandchildren. However, it does appear that on one or more occasions they may have travelled in the same car going to and from Sydney.
Any sexual relationship between the people
From his evidence, and more especially from the Applicant’s statement of facts and contentions, the Applicant and Anna Baumeister have not had sexual relations for many years.
The nature of the people’s commitment to each other
The Applicant and Anna Baumeister married in 1968 and remain married. Neither has brought divorce proceedings.
In his evidence the Applicant said he had a girlfriend in 2010, the details of which are given in the Applicant’s statement of facts and contentions. The Applicant had sexual intercourse with the girlfriend, but when Anna Baumeister found out about this relationship she became angry. The Applicant stated in his evidence that Anna Baumeister hit him with a hard plastic jug, and later when she came into his room she tried to pour hot tea over him, but he protected himself with his arms. By Anna Baumeister’s response, I infer that she regarded their relationship as exclusive in the sense that sexual relations with others went against her concept of their relationship.
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.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ....................................................................
Associate
Dated 16 March 2015
Date of hearing 19 February 2015 Representative for the applicant Mr Ian Turton Representative for the Respondent Ms Martini, Government Lawyer
0
3
0