Gerrie and Secretary, Department of Family and Community Services

[2003] AATA 1188

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1188

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/601

GENERAL ADMINISTRATIVE DIVISION		)
Re		GLORIA THERESE GERRIE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO, Member

Date24 November 2003

PlaceSydney

Decision The decision under review is affirmed

[Sgd] Rear Admiral A R Horton AO
  Member 

Administrative
Appeals
Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL  )  
  )   N2003/601
GENERAL ADMINISTRATIVE DIVISION     )

Re:GLORIA THERESE GERRIE

Applicant

And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

ORDER TO AMEND WRITTEN DECISION [2003] AATA 1188

TribunalRear Admiral A R Horton AO, Member

Date29 July 2004

PlaceSydney

WHEREAS:

1.The Tribunal released a written decision in this matter, which was dated 24 November 2004.

2.It has come to the Tribunal’s attention that there was an incorrect citation number in the decision.

3.The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that the citation in the decision should be read as: Re Holmes and Secretary, Department of Social Security ( AAT 4046, 23 December 1987).

[Sgd] Rear Admiral A R Horton AO
  Member

CATCHWORDS

SOCIAL SECURITY – age pension - whether member of a couple

Legislation

Social Security Act 1991:section 4

Cases

Re Holmes and Secretary, Department of Social Security (1987) AATA 4049

REASONS FOR DECISION

24 November 2003 REAR ADMIRAL A R HORTON AO        

1. This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 18 February 2003 that affirmed a decision of an Authorised Review Officer (“ARO”) of 24 December 2002 to cancel the age pension of Mrs Gloria Gerrie (“the Applicant”). At a hearing before the Administrative Appeals Tribunal (“the Tribunal”) on 4 November 2003, Mrs Gerrie was self-represented, and Ms M Buckley represented the Department of Family and Community Services (“the Respondent”). The Tribunal had before it the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”), and additional T documents (T1).

2.      Mrs Gerrie became eligible for the age pension in 1995.  Her husband, Mr Cyril Gerrie, was in employ at the time her age pension was granted, but became redundant when his employer ceased operations the following year.   In 2000, Mr Gerrie obtained employment with JJ Richards and Sons, employment that continues to the present.  The Respondent suspended payment of the age pension to Mrs Gerrie in November 2002, because the combined income of Mr and Mrs Gerrie precluded such payment.  The matter before the Tribunal is whether Mrs Gerrie is a “member of a couple” as defined in subsection 4(2) of the Social Security Act1991 (“the Act”);  were she to be found not to be “member of a couple” then the suspension on her age pension would be lifted.  As a separate issue, and one not before this Tribunal, the Respondent is considering recovery of an overpayment of age pension during the period 1995 to November 2002.

3.      Mrs Gerrie and her husband were married in 1977, both for the second time.  They own and live in a house at Whalan, together with two grand daughters (of Mrs Gerrie), Vicki aged 22 and Krystal aged 19.   Both girls are employed; Mrs Gerrie does not work. The house is in joint names; there is no mortgage.  Mrs Gerrie considers the marriage as such ceased in June 2000, and that whilst there are other factors, the principal reason for them both remaining in the family home is to provide, for the present, a secure and comfortable home for the two girls.

4.      The relevant facts in respect of the circumstances of the relationship between Mr and Mrs Gerrie, as addressed by the latter, are:

a.        Mrs Gerrie sleeps apart from her husband in a back room of the house.  They have no sexual relationship.

b.        They individually or formally as a couple have few friends, and hence there is not an issue as to whether they are seen to be married or separated.  He works most days of the week.  She only goes out to shop or play bingo at a local community hall.  They have never had a strong social life.  They only rarely go out together, and then only if they “must”..

c.        Mr and Mrs Gerrie have always had separate bank accounts.  There are no joint accounts.  Mr Gerrie pays for all household expenses, and since the suspension of Mrs Gerrie’s age pension, prior to which she purchased the food necessities, gives her $350 per week for food.  The grand daughters each pay $50 per week board to Mrs Gerrie. 

d.        They are the beneficiaries of each others wills, and each accept the need to support her married son David, as necessary, and the grand daughters.  

e.        Sale of the house presently would not be economical, nor be in the interest of the grand-daughters, but both anticipate that Mr Gerrie will be forced (for health reasons) to give up work in about a year, at which time they would split the proceeds and independently find alternate accommodation.  Mr Gerrie does not want to sell the house whilst he continues in work.

f.         Mrs Gerrie does not drive, and unless helped by Vicki in her car, takes buses and trains as necessary.  Mr Gerrie owns a car for travel to and from work.

g.        Mrs Gerrie does most of the household chores, being assisted by the grand daughters as required.  Generally the family make their individual arrangements as regard to meals, but Mrs Gerrie will often cook for all.   

h.        A divorce, in either the short or long term is considered unlikely, being both contrary to their religious beliefs and not necessary.

5.        Mr Gerrie attributed the breakdown in relationship to changes in his wife and increasing arguments, leading him to decide that a separation was.  He has been in full employment since 2000.   His tax returns for 2001 and 2002, prepared by an agent, identify Mrs Gerrie as his spouse, record her separate income and claim a spouse rebate.  Neither he nor she was aware of this.  Mrs Gerrie is recorded as his wife for taxation and superannuation purposes, and with his employer.  Mr Gerrie did not consider his marital situation to be the business of these people or organisations.  He has a number of children from his previous marriage, but sees no financial responsibilities in that regard.  In respect of superannuation, he presently has superannuation from his previous employment being rolled over, and will be eligible for some further superannuation payout in respect of his present employment when that ceases. 

6.        In late 2001, Mr Gerrie was diagnosed with cancer and intensively treated.  Whilst he stated he did not need looking after at that time, he saw it as a reason to remain in the family home.  Mrs Gerrie saw it as her role, regardless of the marital state, to provide support in such situations. 

6.        The Respondent referred the Tribunal to Re Holmes and Secretary, Department of Social Security (1987) AATA 4049, which was considered to be relevant to this matter.  In Holmes, the Tribunal stated:

“The living situations of different people that could constitute “separate under one roof” are too numerous to detail.  At the least the evidence must satisfy the decision maker that a couples lives are led separately, not only in the personal but also in the social and economic sense and that joint activity is not because of the existence of an exclusively binding relationship but for some material advantage. Commonly, in the quite numerous similar cases coming before this Tribunal, the reason for remaining under one roof is the fact that the property is jointly owned and that division would be economically disastrous”.

7. The Tribunal has had regard to the criteria in subsection 4(3) of the Act, which details the criteria to be considered “when forming an opinion” as to whether a person is a “member of a couple”, these covering financial aspects of the relationship, the nature of the household, social aspects, sexual relationships and commitment.   In this matter, there is joint ownership of the property, there are legal obligations pertaining to both parties and the respective wills illustrate these obligations and prior to Mrs Gerrie losing her age pension, household expenses were shared within the constraints of available resources.  Even now, Mr Gerrie accepts the responsibility of financing household expenses by remaining in the present home.

8.        Both parties accept the responsibility for providing care and support of Mrs Gerrie’s two grand daughters, which the Tribunal holds in high regard.  The living arrangements indicate a separation between Mr and Mrs Gerrie, but seemingly much remains as before, including some of her personal effects remaining in the previous “master” bedroom and her willingness to undertake most of the communal household chores, albeit that the grand daughters assist in that regard.

9.        Social interrelationship is more difficult to define given that they seemingly have few friends, and have never had an emphasis on a strong social life.  Hence the need to play a married or separated role is apparently minimal.  There is no sexual relationship between the two, and whether this may or may not have been attributed in recent years to Mr Gerrie’s illness with cancer is, in the view of the Tribunal, irrelevant.

10.      The extent of commitment to each other is perhaps more easily defined.  The relationship has been over some 26 years, and the expressions of intent to observe the other person’s attitude to his or her provision in the relative will, including the care and support of Mrs Gerrie’s son, and her two grand-daughters, is evident.  Mr Gerrie accepts an ongoing commitment to provide support, albeit that may not occur in the fullness of time if and when they live apart.  Both parties expressed the view that sale of the house was not presently feasible economically or in the interest of the grand daughters, but could be achieved once Mr Gerrie ceased work, which would also coincide with the girls being that much older.  Suffice that the current arrangements seem to suit both parties, a view expressed by Mrs Gerrie.

11.      The SSAT formed the opinion that the weight of evidence supported the view that Mrs Gerrie is a “member of a couple and not living separately and apart from her husband”, citing a financial commitment to each other, Mrs Gerrie’s stated personal commitment to her husband and their joint commitment in respect of the grandchildren.   On the evidence before it, the Tribunal accords with this view.   Notwithstanding that the couple sleep in separate rooms in the jointly owned house, there remains a strong sense of financial responsibility within the limitations of resources available to each person, and a strong sense of commitment not only to the two girls, but to each other.  The evidence of Mrs Gerrie, was, in the opinion of the Tribunal, quite clear in this regard.  Whilst the financial implications are understood, the Tribunal must nonetheless find that Mrs Gerrie is a “member of a couple” as defined in section 4 of the Act.

12.      This decision means that Mr Gerrie’s income is taken into account by the Respondent when assessing an age pension entitlement for Mrs Gerrie.  The decision under review, that is by the SSAT which affirmed a decision by an ARO to cancel the age pension, is therefore seen as appropriate, on the understanding that the original decision appropriately took account of the relevant incomes.

13.     The Tribunal accordingly affirms the decision of the SSAT dated 18February 2003, that the age pension payable to Mrs Gloria Gerrie be cancelled, she being a member of a couple with Mr Cyril Gerrie, and their combined income having been taken into account.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         .....................................................................................
           Niamh Kinchin         Associate

Date/s of Hearing  4 November 2003
Date of Decision  24 November 2003
Counsel for the Applicant         Self-Represented
Solicitor for the Applicant           
Counsel for the Respondent     Ms M Buckley
Solicitor for the Respondent