Hartley and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 470
•26 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 470
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5022
GENERAL ADMINISTRATIVE DIVISION ) Re PETER HARTLEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms Naida Isenberg, Senior Member Date26 June 2009
PlaceSydney
Decision The decision under review is affirmed. ................[sgd]..............................
Ms Naida Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – whether person is a member of a couple – consideration of all of the circumstances of the relationship – decision under review affirmed
Social Security Act 1991 – s 4
Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495
Re Pelka and Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Re Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718
REASONS FOR DECISION
26 June 2009 Ms Naida Isenberg, Senior Member BACKGROUND
1. Mr Hartley married Gail Hartley on 16 October 1976. Following an initial inquiry made on 26 June 2008 Mr Hartley lodged a claim at Centrelink for Newstart Allowance on 3 July 2008. Based on information provided on 10 July 2008 by Mr and Mrs Hartley concerning their relationship (T6 and T7), Centrelink decided on 29 July 2008 to reject Mr Hartley’s claim for Newstart Allowance because he was considered partnered and his partner’s income was above the allowable limit. That decision was affirmed on internal review and by the Social Security Appeals Tribunal (“SSAT”), on the basis that Mr Hartley should be assessed as being a member of a couple as he is not separated from his wife on a permanent or indefinite basis.
2. At the time of his application for Newstart Allowance Mrs Hartley was living in the marital home with Mr Hartley, having returned in May 2008 after being absent since December 2007. Two weeks prior to the SSAT hearing she again moved out of the marital home (T2/7).
3. Shortly after the SSAT’s decision Mr Hartley reapplied for Newstart Allowance. His claim was rejected on the same basis as the first claim. However, on 11 May 2009 the SSAT found that Mr Hartley was not a member of a couple as of 29 October 2008.
LEGISLATION
4. The Social Security Act 1991 (“the Act”) contains calculators to determine at what rate a person is to be paid certain benefits, including Newstart Allowance. Following section 1068 of the Act is the calculator to be used to determine the rate of Newstart Allowance payable to a person. The maximum basic rate payable to a person who is partnered is less than that for a person who is not a member of a couple. Additionally, in the case of a person who is partnered their partner’s income is taken into account when the rate payable is calculated.
5. In relation to married couples the Act provides that a person is a member of a couple if the person is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis: subsection 4(2)(a). Subsection 4(3) of the Act states in determining whether a person is a member of a couple all of the circumstances of a relationship must be considered, including the following:
(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 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.
ISSUE BEFORE THE TRIBUNAL
6. Was Mr Hartley a “member of a couple” as defined in section 4 of the Act for the purpose of calculating his entitlement to Newstart Allowance?
CONSIDERATION OF THE EVIDENCE
7. At the request of the Applicant and with the consent of the Respondent the application was considered on the papers.
8. In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.
9. Centrelink contended that at all relevant times Mr Hartley was the partner of Mrs Hartley and therefore a member of a couple as defined in section 4 of the Act, whereas Mr Hartley’s position was that he and his wife had ceased to be a couple.
10. The following evidence was submitted in relation to the statutory criteria, as enunciated in section 4(3) of the Act.
financial aspects of the relationship
11. Mr and Mrs Hartley jointly owned (and continue to own) a house at Killcare Heights (T19/85, T15/75). Mr Hartley expressed the view that the house was more than a disposable asset to him; in any case, neither he nor Mrs Hartley could afford to buy the other’s share of the house and the current economic climate was not an ideal time to be selling a house (T1/2, letter of 2 June 2009).
12. As at 26 June 2008, Mr and Mrs Hartley also jointly owned an investment property at Labrador (T6/43, T15/77, T20/91). Mr Hartley stated that he did not contribute to the purchase of the property and his name was added as a one per cent shareholder to facilitate the loan. The property has now been sold and he received no funds from the sale (T1/4).
13. As at 26 June 2008, Mr and Mrs Hartley maintained a joint bank account (T6/46). It is not entirely clear, but Mr Hartley may have been authorised to use visa cards on accounts held in Mrs Hartley’s name (T6/46). Mr Hartley told Centrelink in a letter dated 11 August 2008 (T19):
We have always held a joint credit card to pay for things like Electricity, Telephone, Council rates etcetera and pay half each when it is due it is more convenient to do it this way rather than try to pay bills with two separate cards.
14. In a letter to the Tribunal dated 2 June 2009 Mr Hartley advised that the joint account “had not been used for many years” and their salaries were paid into their separate accounts. According to the SSAT, Mr Hartley’s evidence was that in the two weeks prior to the hearing “they had separated their finances and now had separate bank accounts and credit cards” (T2/8).
15. Mr Hartley indicated Mrs Hartley is the beneficiary of his will, superannuation and life insurance (T7/61). Mr Hartley advised the Tribunal in his letter dated 2 June 2009 that his will has now been changed and that he no longer has any superannuation.
16. Mr and Mrs Hartley did not declare any joint debts or other liabilities.
17. Mrs Hartley had advised Centrelink that she had “continued to support Peter financially by continuing to maintain [the] household …” (T6/42). At the same time Mr Hartley advised Centrelink that “Gail has continued to help me financially since my money ran out” (T7/53). By way of clarification, Mr Hartley advised Centrelink by letter dated 11 August 2008 that Mrs Hartley had not provided him any cash (T19/85). Mr Hartley informed the Tribunal that there was a period of one or two weeks when he had no funds and was waiting for the release of his superannuation when Mrs Hartley had provided assistance by providing him food but no cash (T1/3-4). Both Mr and Mrs Hartley advised Centrelink that utility bills were shared equally (T6/47, T7/58). They bought food separately (T6/48, T7/59).
18. Following the September 2008 separation, according to Mr Hartley, each parent provided money to their daughter, but it was he who paid for his daughter’s food (T1/3). At the second SSAT hearing Mr Hartley told the tribunal that he went without food and medications after Mrs Hartley left the family home in September 2008. Since then he has been employed on a casual basis and according to the second SSAT decision he was supporting himself.
19. Mr Hartley is included in medical insurance paid by Mrs Hartley (T6/49, T19/85). In his letter to Centrelink dated 11 August 2008 Mr Hartley advised that “I have always been covered with [private health insurance] however, Gail maintains this and always has, I have never contributed to the fund. Gail is continuing the cover as a favour to me during my present illness” (T19/85-86).
20. Mr Hartley is recorded as being responsible for the running costs of one of the cars registered in Mrs Hartley’s name (T6/49). At the time of the SSAT hearing Mr Hartley could not afford to transfer ownership of the car which was bought from Mrs Hartley in 2006, however, registration of the car has since been transferred to Mr Hartley (T2/8, T1/2, letter of 2 June 2009).
21. The Respondent contended that overall, the evidence supports the view that there is a significant pooling of financial resources in a manner that is indicative of a married couple residing together. Mr Hartley submitted that there was no significant pooling of financial resources, and they had no major financial commitments or legal obligations.
nature of the household
22. At the time of Mr Hartley’s claim he and Mrs Hartley were living in the martial home with their daughter. They indicated that they did not share a bedroom or bathroom (T6/44, T7/55). However, all other areas, including kitchen and living areas were shared (T7/56), perhaps with the exception of the study (T6/45). The household cleaning was shared and each did their own washing (T6/44, T6/48, T7/55, T7/59). Mrs Hartley was largely responsible for the gardening, but Mr Hartley helped with heavier tasks if able, otherwise her brother helped her (T6/48, T7/59). They usually cooked separately, although Mrs Hartley, at times, cooked for Mr Hartley when he was ill. They ate their meals in separate parts of the house (T5/33, T6/44, T7/55).
23. Mrs Hartley stated in a statutory declaration dated 23 December 2008:
I separated from Peter Hartley 26/12/07. I left our family home … but due to Peter’s illness I returned for a short period of time to assist him with his daily living such as: cooking, assisting him to tie shoelaces as he had difficulty bending and reaching, during the acute phase of his illness. He was unable to maintain the upkeep of the house and garden during this time as well it was necessary for me to maintain these.
I ceased residing at [the family home] on 21 September 2008. I have been living at … since 21 September 2008. I continue to be separated from Peter Hartley.
24. According to Mr Hartley, Mrs Hartley left the family home again in September 2008 because his “condition had improved somewhat and Gail was no longer needed there as a nurse and I felt that it would perhaps make it possible for me to get relief by claiming a benefit” (T1/2).
25. According to the recent SSAT decision, Mrs Hartley moved back into the family home early this year. Mr Hartley also continues to live on the property, but now lives in the studio apartment above a garage which is separated from the main house by approximately 30 metres (letter of 2 June 2009). In July 2008 the Mr and Mrs Hartley indicated that the studio was occupied by their daughter (T6/44, T7/55).
26. The Respondent submitted that the evidence indicates that the household is managed jointly, with each party having distinct roles, as is common for married couples.
27. Mr Hartley submitted that their separation did not mean they ceased to feel compassion for each other; noting too that they were both nurses by profession. Mr Hartley stated that it was significant in the context of considering the level of care and commitment between them that Mrs Hartley had not provided financial support to him.
social aspects of the relationship
28. Mr Hartley stated that “we do not hold ourselves out as a married couple” (T1/4).
29. Mr and Mrs Hartley indicated they did not socialise together, nor did relatives or associates consider their relationship to be similar to that of a married couple (T6/45, T7/56). They do not holiday together (T6/45, T7/56).
30. Mr Hartley provided statements from his brother-in-law and Dr Raymond Lee regarding the state of their relationship, both statements indicate Mr Hartley separated from Mrs Hartley in September 2008, that is, about three months after the date of the decision under review.
31. Mr Hartley explained that Mrs Hartley had told her friends and regular associates about their separation; but he has no close friends, only associates, and he felt uncomfortable discussing his personal life (T1/4). He stated that “If we are invited to a wedding etc we would travel separately and stay in different hotels or rooms, or I would travel back the same night, we do not have joint social activities at all” (T1/4).
any sexual relationship between the people
32. Mr and Mrs Hartley have stated that they have not had a sexual relationship for more than two years (T1/4, T6/42, T7/53).
nature of the people’s commitment to each other
33. Mr and Mrs Hartley have been married for over 30 years.
34. Mr Hartley characterised the relationship between himself and Mrs Hartley as a nurse-patient relationship (T1/5). Mr Hartley told Centrelink that he would provide care and support for Mrs Hartley in times of illness and personal crisis (T5/33, T20/92). Mrs Hartley’s explanation for returning to the family home in May 2008 was to provide assistance to Mr Hartley during the acute phase of his illness (statutory declaration dated 23 December 2008).
35. In July 2008 Mrs Hartley indicated to Centrelink that she did not think that she and Mr Hartley would reconcile (T6/42). This is consistent with her evidence at the recent SSAT hearing where she indicated that she considered her marriage had ended in December 2007. Mrs Hartley advised Centrelink that she had sought legal advice regarding divorce, but she was told that she needed to be separated for 12 months before filing for divorce (T6/43).
36. In July 2008 Mr Hartley advised Centrelink that he was not sure if he and Mrs Hartley would reconcile (T5/32) and had not consulted a solicitor about divorce, citing as a reason his current poor health (T7/53-54). He now considers that he was in denial (T1/2). He says that he intends to return to England once the marriage is “annulled” to be closer to his father (T1/4). However, he says, without an income he “cannot afford a solicitor to act on my behalf in divorce proceedings” (T1/2). He indicated that Mrs Hartley has never had any intention of going to England (T1/4).
37. The Respondent contended that there are strong factors that indicate that the couple have a level of care and commitment to each other that is inconsistent with separation on a permanent or indefinite basis.
CONSIDERATION OF THE EVIDENCE
38. The concept of a “marriage-like relationship” under the Act was discussed in ReSRWW and Secretary, Department of Family and Community Services [2001] AATA 495, where the Tribunal noted at [61] that each matter is to be considered on its merits and that the Tribunal should remain flexible in its approach:
The Tribunal notes that each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs. It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters…
39. In Re Pelka and Secretary, Department of Family and Community Services(2006) 151 FCR 546, French J, referring to section 4(3) of the Act, said (at paragraph 46) that the decision-maker:
Must undertake the preceding consideration [i.e. in relation to section 4(3)] 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.
40. In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining if a person is a member of a couple. However, as there is no guidance as to how much weight is to be attributed to each criterion, it falls to the Tribunal to consider all of the circumstances of the relationship and what weight is to be accorded to those circumstances.
41. The issue of how two cohabitating persons view their relationship, based on their mutual or individual perceptions of what constitutes a “marriage-like relationship”, is not determinative. The test is an objective one, having regard to the legislation and facts of the particular case. In this context the Tribunal said in WAP (at paragraph 12):
The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in s4(3) of the Act and consider all the relevant circumstances of this case.
42. In Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789 (at paragraph 16 and 22), Senior Member McCabe observed that:
Application of the criteria [in section 4(3) of the Act] 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.
…
There are aspects of this relationship that are certainly unusual if one thinks of marriage in a narrow way. The legislation does not do that: it is important not to approach the definition with a fixed view of what constitutes a marriage…
43. As to the indicia of a “marriage-like relationship” in section 4(3) of the Act, there is no one feature in their relationship that stands out as dictating a conclusion. I have reached my conclusion from the totality of the evidence. I should make it clear that I accept that, like most relationships, there is a change over time. While I am not canvassing the whole of Mr and Mrs Hartley’s 30 years of marriage it is important to note that the relevant date for the purposes of this review in that of 26 June 2008. There was considerable information about the dis-entangling of their affairs after that date.
44. While I must consider each of the matters set out in section 4(3) of the Act, the assessment it is not a checklist exercise: Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170. As I said in Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050 at [70]:
... being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
45. Determining whether a relationship is “marriage-like” is a difficult task. The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above.
46. I consider that the evidence supports a finding that at the relevant date Mr and Mrs Hartley had taken few steps to arrange their financial affairs separately. A major consideration, in my view, is in relation to the home and the investment property. It is highly relevant in considering the nature of a relationship that the largest asset of the parties – the family home – was a property held as joint tenants. While ever they were joint tenants of that property, had either unexpectedly passed away, the survivor would have been the sole owner of that property. I acknowledge that neither Mr nor Mrs Hartley may have been able to afford to buy the other’s share of the family home, but the joint tenancy could have been dissolved.
47. At the relevant time the investment property was also owned by them together, albeit as tenants-in-common. As to the economic climate militating against sale, at the relevant date the property market, I would suggest, was in a far better state than now, and the property could have been sold. The ownership of properties together is an important factor in coming to my decision.
48. Also, at 26 June 2008, Mr and Mrs Hartley maintained a joint bank account and a joint credit card from which bills were paid. Mrs Hartley was a beneficiary of Mr Hartley’s will, superannuation and life insurance. These are major considerations also. While Mr Hartley was ill Mrs Hartley supported him financially by maintaining the household. It is irrelevant whether she provided him with cash or whether she was the sole source of income to the household; in either case, she supported Mr Hartley. Up until then utility bills were shared equally. Mr Hartley was included in medical insurance paid by Mrs Hartley.
49. Mrs Hartley left the family home in December 2007 but returned in May 2008 to care for Mr Hartley when he became ill. There they lived separately, with most of the household chores being shared, although each did their own washing. They attended to their own meals, although Mrs Hartley cooked for Mr Hartley when he was ill. At that time Mr and Mrs Hartley neither socialised together, had a sexual relationship, nor holidayed together. While some people may have known of their separation the statements by Mrs Hartley’s brother and Dr Lee indicate Mr and Mrs Hartley separated in September 2008, well after the relevant date.
50. Mr and Mrs Hartley had been married for over 30 years, and, I accept that Mr and Mrs Hartley did not cease to feel compassion for each other, and that this may have been the reason Mrs Hartley returned to the family home. That is consistent with Mrs Hartley leaving again in September 2008 when Mr Hartley’s condition had improved. In July 2008, though, Mr Hartley held out hopes for reconciliation (although he now considers that he was in denial). At the same time Mrs Hartley thought otherwise, she having considered her marriage to have ended in December 2007. It may be that the marriage was breaking down at that time, but at least as far as Mr Hartley goes, it was not over at the relevant time.
51. Mr Hartley told Centrelink that he likewise would care for Mrs Hartley if she were ill or experienced a personal crisis. He characterised the relationship between himself and Mrs Hartley as a nurse-patient relationship. I cannot accept this to be the case, especially having regard to their financial entanglement, and his hopes for reconciliation. (For completeness, I note that absence of a sexual relationship, per se, does not in itself mean the lack of a marriage-like relationship: Re Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718.) The level of care and commitment, compassion notwithstanding, is inconsistent with separation on a permanent or indefinite basis.
52. Therefore, upon reviewing the totality of the evidence, I have come to the view that Mr and Mrs Hartley were in a “marriage-like relationship” at the relevant date and were not living separately and apart on a permanent or indefinite basis.
DECISION
53. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member
Signed: .................[sgd]...............................................................
AssociateDate of Hearing Hearing on papers
Date of Decision 26 June 2009
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