GMHK and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 554
[2012] AATA 554
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4310
Re
GMHK
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 29 June 2012 Date of written reasons 24 August 2012 Place Orange The decision under review is affirmed.
..............................[sgd]..........................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY - overpayment of disability support pension - debt - member of a couple - waiver - special circumstances - decision under review affirmed
LEGISLATION
Social Security Act 1991 - s 4(2)(b), 4(3), 4(3)(a)
WRITTEN REASONS FOR DECISION REVISED FROM THE TRANSCRIPT
Senior Member A K Britton
29 June 2012
CONFIDENTIALITY ORDERS
Despite the presumption in favour of openness enshrined in s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), I have decided to make orders that the hearing shall take place in private and restricting the publication of the names of the applicant and any other witness.
The facts of this case are of a highly personal and sensitive nature and there is no public interest in their disclosure.
Accordingly, in these reasons for decision, the applicant will be referred to by the pseudonym “GMHK” and her alleged partner, “TYSP”.
BACKGROUND
The applicant (GMHK) seeks review of a decision made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal (SSAT), to raise and recover a debt of about $15,000 said to have arisen as a result of an alleged overpayment of Disability Support Pension (DSP). The applicant has been in receipt of DSP since 1986 and until April 2010, was paid at the rate payable to a single person, which is higher than that payable to a “member of a couple”. In May 2010, Centrelink notified the applicant of the decision to treat her as a member of a couple (with TYSP) for the period 22 November 2008 to 27 April 2010 (the relevant period). Centrelink also notified the applicant that as a consequence she had received an overpayment of DSP and, owed a debt to the Commonwealth of about $15,000.
Critical to the decision the subject of this review is the meaning of the term “member of a couple”. Section 4(2)(b) of the Social Security Act 1991 (Cth) (the Act) provides that subject to subsection (3), a person is a member of a couple for the purposes of the Act if:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
There is no argument that the applicant and TYSP satisfy all of the above criteria apart from paragraph (iii). Accordingly, it is necessary to form an opinion about whether the relationship between the applicant and TYSP, is a de facto relationship. Section 4(3) directs that in forming that opinion, the decision-maker 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.
Before turning to those issues, I observe I have no reason to doubt the truthfulness of the evidence the applicant and TYSP each gave today. Ultimately, the decision I am required to make is whether a de facto relationship exists having regard to the matters listed in s 4(3) of the Act. I acknowledge that minds may differ on this question. The opinion held by the applicant and TYSP about the proper characterisation of their relationship while relevant, is not determinative.
Turning first, to the financial aspects of their relationship, except for a brief period in late 2009, throughout the relevant period TYSP and the applicant have lived together. They lived first at an address in Orange, after entering into a joint lease in November 2008. In or around August 2009 they moved to a property of a different address in Orange, where they stayed until apparently unfairly evicted in February 2010. Since about March 2010, they have lived in a Department of Housing property in Manildra.
In addition, throughout the relevant period, TYSP and the applicant took out joint loans for, among other things, the purchase of white goods.
The evidence reveals that, throughout the relevant period, the arrangements in respect of the payment of household expenses remained largely unchanged and they shared responsibility for the payment of rent and other domestic expenses. The evidence also indicates that the domestic arrangements between TYSP and the applicant also remained largely unchanged throughout that period — the applicant, who was not employed during that period, was largely responsible for the housework. They shared the shopping and cooking and had meals together.
Again, in terms of the social interaction between the applicant and TYSP, the evidence shows that it remained largely unchanged throughout the relevant period. They ate out together on occasion and socialised with their respective families. the applicant’s brothers sometimes visited her and TYSP on a Saturday afternoon and she cared for TYSP’s grandchildren from time to time. The picture painted is one of a fairly quiet life with TYSP and the applicant occasionally visiting relatives and entertaining at their home.
In terms of the social aspects of their relationship I accept the evidence given by the applicant and TYSP that throughout the relevant period, they maintained separate bedrooms. The evidence indicates that following a series of tragic events that occurred at the end of 2009 the applicant and TYSP grew closer, and at some point, probably the early part of 2010, an occasional sexual relationship developed. In overall terms the development of that relationship in my opinion is of no particular note.
I have looked very carefully at how the applicant and TYSP see the relationship and I acknowledge that, as stated, people can have different views about and use different terms to define, a particular relationship. Over the relevant period the relationship between TYSP and the applicant has been exclusive in nature; their commitment to each other is real and enduring; and, in my opinion at least at this point in time, is likely to continue forever. The question is not how TYSP and the applicant now see the relationship, but rather how they saw the relationship throughout the relevant period. The effect of TYSP’s evidence is that while the underpinning domestic and financial arrangements remain largely unchanged, their commitment to each other grew over that period. I accept that nonetheless TYSP genuinely believes that his relationship with the applicant is not a de facto relationship, even though as he admits that he would consider marrying the applicant.
I also accept as far as the applicant is concerned, that she considers the relationship to be one between two close friends — although I note there is a degree of ambivalence on her part — she said if TYSP was with another woman, she would “understandably” feel jealous and, if he was to ask her to marry her, she would have to think about it very carefully.
The relationship between the applicant and TYSP is not a usual relationship and I suspect that is why they have differing views about its nature. As I have said, I accept that their respective assessment of their relationship is one each honestly hold.
Notwithstanding the opinion held by TYSP and the applicant, that their relationship is not a de facto relationship, given the factors that I am required to take into account, the weight of evidence leads me to form the opinion that the relationship, throughout the relevant period, was a de facto relationship within the meaning of the Act. Of particular importance in reaching that decision has been their financial interdependence, the fact that they operate, effectively, as a domestic unit, and that the relationship between them is a close and enduring one and in my opinion is likely to endure indefinitely.
TYSP submits that the decision should not be backdated. He says that it is one thing to make a decision in respect of some future period but unfair for a decision to relate to some earlier period especially given that as a result, he and the applicant must now repay a debt relating to the 18 months ending April 2010. I understand that argument. However where, as in this case, the Secretary obtains further information which causes him or her to review an earlier finding relevant to determining a person’s rate of pension, in this case, their single status, the Act permits the Secretary (and the Tribunal on review) to reconsider that earlier finding and, where appropriate revise the original decision, even where that decision is retrospective in operation.
I am satisfied that the applicant’s rate of DSP throughout the relevant period should have been calculated on the rate payable to a person who is a member of a couple and as a result she received an overpayment of DSP. Having reviewed the calculation provided by the Secretary I am satisfied that the figure of $15,623.60 was correctly calculated. I am also satisfied that the decision to raise and recover a debt in that sum was the correct decision.
The next question I must decide is whether the power to waive or write off the debt can or should be exercised.
The power to write off the debt under s 1236 of the Act cannot be exercised because none of the four pre-conditions to the exercise of that power listed in s 1236(1) apply. These include in capacity to repay the debt (s 1236(1A)(b)). A debt is deemed to be recoverable under the social security law if it can be recovered by means of a deduction from the person’s social security payments as has happened in this case.
The right to recover all or part of a debt may be waived if the decision-maker is satisfied that there are special circumstances (other than financial hardship alone) that make it desirable to waive (s 1237AAD). A finding that “special circumstances” exist requires that I be satisfied that there is something which distinguishes the applicant’s case from others, to take it out of the usual or ordinary case. This does not mean that the applicant’s circumstances must be extremely unusual, uncommon or exceptional. All of the circumstances must be considered. It is apparent, from the information provided to me today, that collectively, the applicant and TYSP are not in a strong financial position, they have two debts which they are in the process of repaying at the rate of about $500 a month. They pay rent of $165 a week and live frugally.
TYSP’s take home pay is about $1300 a fortnight. It goes without saying that that is not a significant sum. The applicant’s pension has been reduced to $165 a fortnight. The applicant said today that on occasion, she is unable to afford medication and for the last couple of months, has been unable to afford her asthma medication. I accept that TYSP and the applicant and not in a sound financial position. Indeed, if the applicant were to live without the support of TYSP on her current reduced rate of DSP, her financial circumstances would be perilous. Fortunately for the applicant, this is not the situation she finds herself in. So, coming back to the question of whether there are circumstances which distinguish the applicant’s case from the usual or ordinary case of a person in receipt of social security benefits, I conclude that there are not. So, for that reason, I have decided that the power to waive the debt cannot be exercised.
To summarise, I find that, for the relevant period, the applicant and TYSP were in a de facto relationship and the power to waive or write off the debt cannot be exercised.
I understand, GMHK and TYSP, that you are not happy with this decision. The law, however, is clear on both the characterisation of persons who are “members of a couple” and the circumstances under which the power to write off or waive a debt can be exercised. In those circumstances I must affirm the decision of the Secretary. Thank you very much for your assistance in the inquiry.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ...............................[sgd].........................................
Associate to Senior Member A K Britton
Dated 24 August 2012
Date(s) of hearing 29 June 2012 Applicant In person Solicitors for the Respondent Mr G Lozynsky, Centrelink Program Litigation and Review Branch
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