Grech and Secretary, Department of Family and Community Services

[2004] AATA 1122

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/660

GENERAL ADMINISTRATIVE DIVISION		)
Re		KENNETH GRECH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr M.A. Griffin

Date28 October 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr M.A. Griffin
  Member

CATCHWORDS

SOCIAL SECURITY - married couple rate of pension – not living separately and apart - decision under review affirmed.

Social Security Act 1991 sections 4(2) and 4(3).

REASONS FOR DECISION

28 October 2004 Mr M.A. Griffin       

1.          This is an application by Mr Kenneth Grech for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 10 May 2004. The SSAT affirmed the decision of an authorised review officer (“ARO”) of Centrelink, dated 9 January 2004, that Mr Grech was a member of a couple and could not be paid the single rate of pension that he had applied for.

2.          At the telephone hearing of this matter on 31 August 2004, Mr Grech represented himself. Mr J. Kenny, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (“the Respondent”).

3. The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act1975 (T1-T28).

BACKGROUND

4.          On 25 August 2003 Mr Grech lodged an Assessments of Living Arrangements form with Centrelink seeking payment of his existing pension at the increased single rate, on the basis that he and his wife were living permanently and separately apart under the one roof.

5.          On 22 October 2003 a delegate decided that Mr Grech was still a member of a couple and could not be paid pension as a single person (T2/6). At Mr Grech’s request the determination was reviewed by an ARO and affirmed. The SSAT subsequently affirmed the decision and Mr Grech now seeks review of that decision.

ISSUE

6.          The issue before the Tribunal is whether or not Mr Grech is living separately and apart from his wife on a permanent or indefinite basis.

EVIDENCE

7.          Mr and Mrs Grech were married on 10 August 1962. Mr Grech is 77 years old. Mrs Grech is 74 years old. They have four adult children and several grandchildren. They are devout members of the Jehovah’s Witnesses religion. They reside in the same house. They sleep in different bedrooms and have done for many years.  Mr Grech said the marriage had broken down some years ago after the last child left home. He said he and his wife are unhappy in their relationship and do not get along.

8.          However, Mr Grech said they share household chores and expenses. He said Mrs Grech does the cooking and they eat together at the kitchen table. He said Mrs Grech cleans most of the house and does his laundry. Mr Grech said he tidies the bathroom. He said they watch television together in the lounge room. He said they go to church together and attend social functions together including family and church gatherings. He said that on a recent trip to be with family, he and Mrs Grech shared the same bed.

9.          Mr Grech said that his religious beliefs would not allow him to abandon his wife. He said a husband has certain obligations to his wife that must be met. He said “I accept that as part of marriage”. He said “I can’t move out unless we get the full pension [single rate] each, as I have the responsibility of debts for the household”.

10.        Both Mr and Mrs Grech have children from previous marriages. Mr Grech said he and Mrs Grech continue to support each other in helping their own and each other’s children with problems.

11.        Mr Grech said he and Mrs Grech share the cost of the rent on their house. He said Mrs Grech pays for the groceries and he pays for their car expenses. Mr Grech said he would care for his wife if she became ill and she would do the same for him.

12.        Mr Grech was asked if he would move out of the marital home if he got the single rate of pension. He said “my wife wants me to but I couldn’t because the church elders would say, what’s wrong with you?”.

LEGISLATION

13.        Sections 4(2) and 4(3) of the Act provide as follows:

“Member of a couple – general

4(2)Subject to subsection (3), a person is a member of a couple for the purposes of the 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; or

(b)       all of the following conditions are met:

(i)the person has a relationship with a person of the opposite 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 marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.

Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

·     an ancestor of the person; or

·     a descendant of the person; or

·     a brother or sister of the person (whether of the whole blood or the part-blood).

Member of a couple – criteria for forming opinion about relationship

4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), 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 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 enage 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”.

CONSIDERATION OF THE ISSUE

14.        Mr Grech was open and candid in his evidence and the Tribunal accepts him as a witness of truth. The Tribunal accepts that he has been unhappy in his marriage for some years. Nevertheless, the Tribunal does not accept that he is living separately and apart from his wife for the purposes of the Act. The evidence is to the contrary. They have lived together for 42 years and will continue to do so even if Mr Grech received the single rate of pension. They share household chores and expenses. They watch television together and eat together. They share expenses. They go to church together. They socialise with family and friends together. They offer emotional support to each other and family members. Their friends and family understand that they, to quote Mr Grech, “just don’t click along type of thing” and are unhappy. However they continue to receive and accept invitations to social and family gatherings as a couple.

15.        Having regard to the evidence of their relationship and the legislative requirements, the Tribunal finds that Mr Grech is a member of a couple and as such is not eligible to receive the single rate of pension.

DECISION

16.        The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M.A. Griffin

Signed:         Neil Glaser
  Associate

Date of Hearing             31 August 2004
Date of Decision  28 October 2004
Representative for the Applicant              Mr Grech (Self-Represented)  
Advocate for the Respondent                   Mr J Kenny